Buffalo Concrete; District Concrete Co., Inc.; Howat Concrete Co., Inc.; Maloney Concrete Co.; Silver Hill Concrete Corp.; And Super Concrete Corp.

National Labor Relations Board - Board Decisions

Sep 30, 1985

276 N.L.R.B. 839 (N.L.R.B. 1985)

BUFFALO CONCRETE 839
Washington Materials, Inc., t/a Buffalo Concrete;
District Concrete ' Company, Inc.; Howat Con-
crete Company , Inc.; Maloney Concrete Compa-
ny; Silver Hill Concrete Corporation ; and Super
Concrete Corporation and Maloney Concrete
Company and Drivers, Chauffeurs , and Helpers
Local Union No. 639 , International Brother-
hood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America . Cases 5-CA-14351, 5-
CA-14525, 5-CA-14625, and 5-CA-14679
30 September 1985
. DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 31 August 1983 Administrative Law Judge
Walter H. Maloney, Jr. issued the attached deci-
sion. The Respondents, the General Counsel, and
the Charging Party filed exceptions and supporting
briefs, and the Respondents filed briefs in answer
to the General Counsel's and the Charging Party's
exceptions. i .
The National Labor Relations Board has delegat-
ed 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
decided to affirm the judge's rulings, findings,2.and
conclusions only to the extent consistent with this
Decision and Order.3
1. The judge found. that the Respondents, in vio-
lation of Section 8(a)(5) and (1) of the Act, refused
to bargain in good faith with the Union as the ex-
clusive representative of the unit employees by fail-
ing and refusing "to honor a request of the Union
to inspect their books and records after claiming
that they were financially unable to agree to the
Union's collective bargaining demands." For the
reasons set forth below, we agree in part, but re-
verse in part.
The -facts are set forth at length in the judge's
decision but briefly are as follows:
The six Respondents are -ready-mix concrete sup-
pliers in the Washington, D.C. area. Their most
recent collective-bargaining agreement with the
Union expired on 15 May 1982. The Respondents,
i The Chamber of Commerce of the United States has moved for leave
to file a brief, amicus curiae This motion is granted and the beef has
been considered
2 The Respondents have excepted to some of the judge's credibility
findings The Board 's established policy is not to overrule an administra-
tive 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 re-
versing the findings
9 The Respondents . request for oral argument is denied as the record
and the beefs adequately present the issues and positions of the parties
desiring - to conclude a new agreement by the
spring of 1982, contacted the Union in late 1981
and requested that bargaining commence. An infor-
mal meeting of the parties' representatives took
place and was, followed by a formal meeting on 7
January 1982.4 At the formal meeting William
Willcox, the Respondents' representative,5 present-
ed the general position that because nonunion con-
tractors had made substantial inroads into the con-
crete industry in the local area, the unionized con-
tractors, were not competitive. Willcox made it
clear that the unionized contractors, to be com-
pletely competitive, had to take steps to narrow the
cost gap between the union and nonunion compa-
nies and made general reference to cost items such
as wages, overtime, and fringe benefits. Daniel
George, the Union's primary representative, re-
sponded that he understood the problem, but that
"take-aways" were a serious matter.
Two more bargaining sessions were held on 2
and 4 February at which the Respondents made
some specific contract proposals. The Union, in ad-
dition to setting forth its own specific proposals, as-
serted that it was concerned that the Respondents'
nonunion competition was coming from -double-
breasted companies in which some of the Respond-
ents had a financial interest. At the 4 February
meeting, the Respondents presented proposals
modified since the 2 February meeting, but agree-
ment was not reached. The parties then agreed to
break off negotiations and resume after the 60-day
notice to modify the contract was sent.
The parties met again on 14 April at which time
the Union presented detailed proposals. On 19
April the Respondents countered with their own
set of detailed proposals which included "take-
backs."6 The Union responded by requesting to see
the Respondents' books, suggesting the books
would reveal, inter alia,, whether any of the Re-
spondents were operating nonunion companies
which were taking business away. The Respond-
ents refused and the negotiating session ended.
On 12 May the Union sent each of the Respond-
ents a letter requesting, inter alia, certain financial
data, bids the Respondents had submitted for work
covered by the collective-bargaining agreement,
and lists of employees currently on layoff.
At the next bargaining session on 13 May, the
parties reviewed the Union's 12 May request for in-
formation. Willcox indicated that the books would
not be helpful, but rather that the Union should be
4 All dates are 1982 unless otherwise indicated
S Willcox is an attorney retained by all six of the Respondents to repre-
sent them as their bargaining spokesperson
e These take -backs included , inter alia , a wage decrease, fewer paid
holidays and vacations , and more restrictive overtime
276 NLRB No. 40
840 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD
able to see the situation because the nonunion com-
panies paid lower wages, benefits, etc.
On 15 May the collective-bargaining agreement
expired. The Union filed charges -concerning the
Respondents'- refusal to provide the financial infor-
mation and the union membership authorized a
strike with a deadline of 26 May. -
During a phone conversation on 19 May George
repeated his request to review the Respondents'
books and Willcox replied the NLRB would
decide whether the Union was entitled to them.
By letter of 21 May the Respondents again
denied the Union's request for information.
The parties met on 24 May and again the sub-
jects of labor cost differentials and double-breasted
operations were discussed. The Respondents modi-
fied their- contract proposals and these 'modifica-
tions were rejected by the Union. The Union re-
peated its request to review the books, maintaining
the books. would indicate whether the Respond-
ents' competition was coming from double-breasted
companies or true competitors. The Union also in-
dicated the financial information was necessary to
formulate counterproposals.
On 25 May the union membership met to vote
on whether to strike immediately or await further
negotiations. George addressed the group and went
through each of the Respondents' proposals.
George told the membership that without seeing
the Respondents' books he' could not recommend
that take-backs were-justified. The membership re-
jected the Respondents' proposals, but voted to
wait 1 day before striking.
Another bargaining session was held 26 May at
which the Respondents modified most of their
take-backs except that 'concerning overtime. The
Respondents restated that their competitive posi-
tion had diminished under the- recently expired col-
lective-bargaining agreement and the Union restat-
ed and broadened their request for financial infor-
mation. No final agreement was reached. A union
membership. meeting was held that night and
George again refused to recommend Respondents'
proposals absent the requested information.
The strike began 27 May and continued until 15
July. .
in mid-June George again wrote -to each Re-
spondent and requested, inter alia , information re-
garding their double-breasted operations.
On 8 and 20 July Willcox responded by-letter
and, inter alia, denied' both-that a great majority of
nonunion companies had any connection with any
of the Respondents and 'that any Respondent had
ever stated they were not making money.
On 15 July the.Union made an unconditional
offer to return to work. Negotiations were con-
ducted on 9 and 23 August, and during the hear-
ing, but no agreement was reached.
In determining whether' 'an employer is required
to supply information requested by the union, it is
well- established -that requested information must be
provided to the union "if there is a probability that
such data - is relevant and will be of use to the
union in fulfilling its statutory duties and. responsi-
bilities as the employees' exclusive bargaining rep-
resentative." Associated General Contractors of Cali-
fornia, 242 NLRB 891, 893 (1979), enfd. 633 F.2d
766 (9th Cir. 1980). See also NLRB v. Acme Indus-
trial Co., 385 U.S. 432 (1967). -
In determining the relevance of the requested in-
formation, a liberal discovery-type standard is used.
NLRB v. Truitt Mfg. Co., 351 U.S. 449 (1956).
Thus, some information is presumed _ relevant such
as information concerning the terms and conditions
of employment of the employees represented by
the union. Ohio Power Co., 216 NLRB 987 (1975),
enfd. 531 F.2d 1381 (6th Cir. 1979). This presump-
tion of relevance does not apply to information
concerning financial data. The relevance of that
type of information must be established - by the
union.
In evaluating, whether the financial information
requested by the Union was relevant and the Re-
spondents were therefore obligated to provide it,
we agree with the judge that such an evaluation
must start from the following premise:
[W]hen an employer objects to a union's bar-
gaining demands on the basis that it is unable
to afford the cost of the proposal, it is under a
duty to let the union see its books and records'
so that the union can verify the truthfulness of
the employer's contentions. [Supra at 838.] -
The key determination in this case is thus wheth--
er the Respondents refused to agree to the Union's
contract proposals because of an inability to_ afford
the cost of the proposal or because they did- not
want to pay the cost of the proposal. -
The instant case involves concession bargaining
and, as such, we also agree with the following
statement of the judge:
[W]here concession bargaining does take place,
an implied major premise of the employer's
position necessarily is that it has been paying
wages and benefits which it could afford at
onetime but which it no longer wishes to-pay.
[Id.] -
We disagree- with the judge's reasoning, however,
that the only justification for such a major premise
is that the employer can no longer afford to pay
what it has been paying. Rather, as set forth in our
BUFFALO CONCRETE 841
recent decision in Atlanta Hilton,7 "words convey-
ing simple unwillingness to meet the employees'
demands, rather than inability to do so," do' not
invoke ' an obligation under Truitt. to supply finan-
cial information. Thus, we will not assume that an
employer who no longer wishes to pay wages and
benefits it once agreed to is unable to make such
payments.
A review of the evidence reveals that during the
entire bargaining process the Respondents main-
tained they needed take-back' to make them more
competitive in the local industry. While referring
to a general loss of jobs in the unionized sector of
the industry,, the Respondents stopped short of
claiming they were unable to afford the Union's
proposals.
As set forth above; at the first negotiating session
Willcox stated that unionized contractors were not
competitive due to the large inroads into the indus-
try made by the nonunion contractors. Willcox
consistently repeated this theme throughout the
entire bargaining process. At no time did the Re-
spondents assert they were unable to pay what was
required under the union contract proposals but
rather consistently maintained they wanted to
obtain a more competitive position ii the industry.
The Respondents thus had no Truitt obligation to
provide the Union with all their financial' records
and therefore did not violate Section 8(a)(5) and (1)
by refusing the Union's request for that informa=
tion.
Contained in the request for financial records,
however, was a request for information regarding
the double-breasted nature of the operations of Re-
spondents Buffalo, Maloney, Super, -and Howat.
The Union contended this particular financial infor-
mation was necessary, as the nonunion competition
which allegedly rendered the Respondents non-
competitive arose fiom such double-breasted oper-
ations. These four Respondents refused to supply
this information, but only replied that a majority- of
the nonunion competitors had no relation to any of
the Respondents.
A review of the' testimony indicates, inter alia,
that George had received reports from different
union members indicating that employees of both
the Respondents and nonunion companies were
working on the same jobs and that work- was being
interchanged between the 'two. Additionally, union
members reported instances of nonunion companies
doing work when "delivery tickets indicated one of
the Respondents was the supplier. 'According to
George's unrebutted testimony, the Union became
so concerned with this problem that they took pic-
7 271 NLRB 1600 at 1602 (1984)
tures of the work interchanges. The evidence,
therefore, indicates that the Union had an objective
factual basis for believing that these four Respond-
ents were operating double-breasted operations.
Accordingly, we find that the Union has estab-
lished the relevance of the information it requested
regarding the double-breasted 'nature of the oper-
ations of these four Respondents and that by- refus-
ing to provide this information Respondents Buffa-
lo, Maloney, Super, and Howat have violated Sec-
tion 8(a)(5) and (1). Walter N. Yoder & Sons v.
NLRB, 118 LRRM 2706, 102 LC ¶ 11,359 (4th Cir.
1985); National Cleaning Co., 265 NLRB 1352
(1982), enfd. 723 F.2d 746-(9th Cir. 1984); Bins-
wanger Glass Co., 245 NLRB 253 (1979).
2. We now turn to the issue of whether the strike
which commenced - on 27 May was an economic
strike or an unfair labor practice strike. As set forth
by the judge, if a strike is caused at least in part, by
unfair labor practices committed by the employer,
the strike is an unfair labor practice strike. If so,
the employees are entitled to reinstatement; upon
request, at the conclusion of the strike.
The judge found that the Respondents' refusal to
provide the Union with ' all the financial informa-
tion they had requested was a material cause of the
strike. As set forth above, however, contrary to the
judge's finding, the Respondents were not obligat-
ed to provide all. the financial `information request-
ed by the Union. Rather, only four of the Respond-
ents were required to provide information concern-
ing their double-breasted operations. Thus, if the
strikes by the employees of these four Respondents
were caused, at least in part, by the unlawful refus-
al to provide the information regarding double--
breasted operations, the strikes are unfair labor'
practice strikes.
A review of the record indicates that the issue of
double-breasted operations, was discussed through-
out the negotiations ; Thus, it was an issue of some
concern to the parties. As set forth above, when no
contract had been arrived at by 25 May, the union
membership met to vote on whether to strike im-
mediately or delay pending further negotiations. At
this 'meeting, George told the 'membership that if
the Respondents supplied the requested information
to justify a wage cut, he might be in a position to
recommend the 'Respondents' offer. As the Re-
spondents had not supplied any of the information,
however, he could -not recommend their proposal.
The members then voted to reject the Respond-
ents' latest offer, but delay the strike for a day.
A negotiating session was held 26 May at which
George indicated he could not recommend the Re- _
spondents' proposal to the membership unless the
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondents could justify their proposal through
the information he had requested.
Another union meeting was held during the
evening of 26 May. At this meeting, George pre-
sented the Respondents' most recent proposal and
indicated he still could not recommend it because
the Respondents had not provided any of the re-
quested data. According to George's unrefuted tes-
timony, at this meeting, among other items, the
issue of whether the requested material would
show that the 'Respondents had controlling inter-
ests in competing nonunion firms was specifically
raised. George indicated he thought it would. The
membership responded by saying that they thought
it was grossly unfair that the Respondents were
talking about competitiveness when the Respond-
ents were competing with themselves via their non-
union companies. A strike vote was taken and
strikes commenced the next morning at the facili-
ties of all. six Respondents.
From all of the above undisputed testimony, it is
clear that the strike commenced by the employees
of Respondents Maloney, Buffalo, Super, and
Howat was caused, at least in part, by the unlawful
refusal of these four Respondents to supply the in-
formation concerning double-breasted operations..
The strikes engaged in -by the employees of these
four Respondents -are thus unfair labor practice
strikes,-and the employees are entitled to reinstate-
ment , upon request, at the . conclusion of the
strike.8 - -
The Union apparently did not seek information
concerning double-breasted operations from Re-
spondents District and Silver Hill and therefore
these two Respondents did - not violate Section
8(a)(5). As these two Respondents did not engage
in any unfair labor practices which even in part
-caused their employees to strike, the strikes com-
menced by their, employees were economic strikes,
and their employees are entitled to the rights, ac-
corded economic strikers. -
The judge, however, found that the employees
of these two Respondents were engaged in an
unfair labor practice strike and thus declined to ad-
dress the issue of whether the employees of Re-
spondents District and Silver Hill, as economic
strikers, were lawfully offered reinstatement or
were reinstated in a discriminatory manner. This
determination may require additional findings- of _
fact and credibility resolutions. We shall therefore
remand the 8(a)(1) and (3) allegations concerning
the reinstatement of the economic strikers of Re-
8 In its exceptions, the General Counsel maintains that the judge inad-
vertently failed to find that' Respondents Maloney and Super violated
Sec 8(a)(3) and (1) by refusing to reinstate their unfair labor practice
strikers We agree and our Order corrects this omission
spondents District and Silver Hill to the judge for
analysis, decision, and recommended Order consist-
ent with our findings and conclusions in this Deci-
sion and Order.
3. The remaining issue concerns Respondent
Super's refusal to reinstate Charles Johnson at the _
conclusion of the strike.
As set forth in detail by the judge, Johnson was
a striking employee who was, somewhere near the
scene when another striking employee assaulted a
nonstriking employee. It is undisputed that Johnson
did not actually participate in the assault. Rather,
he appeared near one of Respondent Super's trucks
after the assault and said to the driver: "Don't get
on the radio." The judge found that this conduct
made Johnson an accessory to the assault after the
fact and justified the Respondent's refusal to rein-
state him.
As we have recently stated, the standard used to
determine if verbal misconduct warrants a denial of
reinstatement is "whether the misconduct is such
that, under the circumstances existing, it may rea-
sonably tend to coerce or intimidate employees in
the exercise of rights protected under the Act."
Clear Pine Mouldings, 268' NLRB 1044, 1046
(1984). See also NLRB v. W. C. - McQuaide, Inc.,
552 F.2d 519'(3d Cir. 1977), and Operating Engi-
neers Local 542 v. NLRB, 328 F.2d 850 (3d Cir.
1964). -
Thus, we agree with the judge that the assault
between the striking employee and the nonstriking
employee was an act of serious misconduct, which,
if at issue, would warrant denial of reinstatement.
However, we disagree with the judge's finding that
Johnson's conduct associated him with the assault -
so as to justify denying him reinstatement. A
review of the. evidence indicates that Johnson's
conduct consisted merely- of stating to one .of Re-
spondent's drivers: "Don't get'on the radio." While
the judge hypothesizes what Johnson may have
meant by this,statement, the fact remains that there
is no other evidence of any other conduct by. John-
son: he did not threaten Respondent's driver or
elaborate to the driver what he meant by "Don't
get on the radio."
Absent something more, we cannot - find that
Johnson's conduct reasonably tended to coerce or
intimidate anyone or is significant to show that he
acted in concert with the striker who engaged in
serious misconduct. Accordingly, Respondent
Super's refusal 'to reinstate Johnson at the conclu-
sion of the strike violated Section 8(a)(3) and (1).
We shall therefore order that Respondent Super
offer Johnson reinstatement to his prior position or
a substantially equivalent position,,with appropriate
backpay.
BUFFALO CONCRETE
ORDER
The National Labor Relations Board orders that
the Respondents, Washington Materials, Inc., t/a
Buffalo Concrete, Tuxedo, Camp Springs, and La-
Plata, Maryland; Maloney Concrete Company,
Chevy Chase and Rockville, Maryland and Wash-
ington, D.C.; Howat Concrete Company, Beaver
Heights, Maryland; and Super Concrete Corpora-
tion, Marlow Heights, Maryland and Washington,
D. C., their officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to furnish Drivers, Chauffeurs, and
Helpers Local Union No. 639, International Broth-
erhood. of Teamsters, Chauffeurs, Warehousemen,
and Helpers of America with information or data
which is relevant to the performance by the Union
of its responsibilities as the bargaining representa-
tive of the Respondents' truck drivers, dump truck
drivers, and plant and yard helpers.
(b) Discouraging membership in and activities on
behalf of Drivers, Chauffeurs, and Helpers Local
Union No. 639, International , Brotherhood of
Teamsters Chauffeurs, Warehousemen and Helpers
of America, or any other labor organization, by re-
fusing to reinstate unfair labor practice strikers on
their unconditional offer to return to work, and, in
the case of Respondents Maloney and Super, by
discharging employees because of their membership
in or activities on behalf of the Union, or- otherwise
discriminating against- employees in their hire or
tenure.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Permit -the Union to inspect - and copy all
books and records of each individual Respondent,
which show tale relationship of each individual. Re-
spondent to any partially or., wholly owned con-
crete company or any concrete company partially
or wholly owned by principal stockholders of the
Respondent companies, beginning with calendar
year- 1980 and running to the date-of compliance
with this Order; the names, dates of hire and termi-
nation, wages, fringe benefits, and other payments'
made to replacements hired during the 1982 strike;
and ; any other information or data which is rele-
vant to the performance by this Union of its re-
sponsibility as the bargaining representative of cer-
tain of the Respondents' employees.
(b) Offer to all employees engaged in a strike in
the summer of. 1982 and who were not reinstated
by these respective Respondents on or before 20
843
July 1982, including Edward A. Winter and
Charles Johnson, but excluding those employees
who were lawfully discharged as set forth in .the
attached judge's decision, immediate and full rein-
statement to their former jobs' or, if those jobs no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other'
rights or privileges previously enjoyed. -
(c) Make -the employees named in paragraph 2(b), .
above whole for any loss of earnings and other
benefits suffered as a result of 'the discrimination
against them, in the manner set forth in the 'remedy
section of the judge's decision. - -
(d) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under.the terms of_ this
Order. -
(e) Post at their respective plants in and about
Washington, D.C., copies of ,the attached notices
marked "Appendix A, B, and C."9 Copies of the
notices, on forms provided by the Regional Direc-
tor 'for Region 5, after being signed by the Re-
spondents' 'authorized representatives, shall be
posted by the Respondents immediately upon- re-
ceipt and maintained for 60 consecutive - days in
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondents to
ensure that the notices are not altered, defaced, or
covered by any other material. -
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondents have taken to comply. .
IT IS FURTHER ORDERED that the administrative
law judge shall prepare and serve on the parties -a
supplemental decision containing credibility resolu-
- tions, findings of fact on the entire record, conclu-
sions of law, and a recommended Order, consistent
with the remand, 'concerning those sections of the
complaint alleging that Respondents District and
Silver Hill unlawfully reinstated employees who
engaged in an economic strike. Following service
of the supplemental decision on the parties, the
provisions of Section 102.46 of the Board's Rules
and Regulations shall apply. .
The portions of the complaints which allege con-
duct not found to be violative of the Act are dis-
missed.
9 If this Order is enforced by a' Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation'
al Labor Relations Board " ' '
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United - States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to . post and abide by this notice.
Section 7 - of the Act gives employees these rights.
To organize
To form , join, or assist any union
To bargain collectively through representa-
tives of their own choice -
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT refuse to provide Drivers, Chauf-
feurs , and Helpers Local Union No. 639, Interna-
tional Brotherhood of Teamsters , Chauffeurs, War-
ehousemen and Helpers of America , with informa-
tion and data which is relevant to- the performance
by that Union of its responsibilities as the bargain-
ing representative of our truck drivers, dump truck
drivers , and plant and yard helpers.
WE WILL NOT discourage membership in or ac-
tivities on behalf of Drivers, Chauffeurs, and Help-
ers Local Union No. 639, -International Brother-
hood of Teamsters ; Chauffeurs , Warehousemen and
Helpers of America , or any other labor organiza-
tion, by. refusing to reinstate unfair labor practice
strikers , or by otherwise discriminating against em-
ployees in their hire or tenure.
WE = WILL NOT - in any like or ' related manner
interfere with , restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL permit - the Union to inspect and copy
all of- our books and records which show. the rela-
tionship of each individual company to any partial-
ly or wholly owned concrete company or any con-
crete company partially or wholly owned by prin-
cipal stockholders ' of our companies , beginning
with the calendar year'1980 and running to the
date of compliance with the Board's order. WE
WILL also permit the Union to inspect and copy
any records showing the names , dates of hire and
termination , wages, fringe benefits ,- and other pay-
ments made by us to replacements who were hired
during the 1982 strike.
WE WILL offer full and immediate reinstatement
to their former or substantially equivalent positions
to any unfair labor practice striker who had not
been reinstated on or before 20 July 1982 and WE
WILL make them whole for any loss of pay or ben-
efits which they have suffered by reason of the dis-
crimination practiced against them , with interest.
WASHINGTON MATERIALS , INC. T/A
BUFFALO CONCRETE ; HOWAT CON-
CRETE COMPANY, INC.-
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE -
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government '
The National Labor Relations Board has found
that , we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.' -
WEWILL NOT refuse to provide Drivers , Chauf-
feurs , and Helpers Local Union No. 639, Interna-
tional Brotherhood of Teamsters , Chauffeurs, War-
ehousemen and Helpers of America , with informa-
tion and data which is relevant to the performance
by that Union of its responsibilities as the bargain-
ing representative of our truck drivers , dump truck
drivers, and plant and yard helpers.
WE WILL NOT discourage membership in or ac-
tivities on behalf of Drivers , Chauffeurs , and Help-
ers Local Union No. 639 , International Brother-
hood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America , or any other labor organiza-
tion , by refusing to reinstate unfair labor practice
strikers , or by otherwise discriminating against em-
ployees in their hire or tenure.
WE WILL NOT in any like or related • manner
interfere with , restrain , or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act. - -
WE WILL permit the Union to inspect and copy
all of our books and records which show the rela-
tionship of each individual company to any partial-'
ly or wholly owned concrete company or any con-
crete company partially or wholly owned by prin-
cipal stockholders of our companies , beginning
with the calendar year 1980 and running to the
date of compliance with the Board 's order. WE
BUFFALO CONCRETE
WILL also permit the Union to inspect and copy
any records showing the names, dates of hire and
termination, wages, fringe benefits, and other pay-
ments made by us to replacements who were hired
during the 1982 strike.
WE WILL offer to Edward A. Winter and to any
unfair labor practice striker who had not been rein-
stated on or before 20 July 1982 full and immediate
reinstatement to their former or, substantially equiv-
alent positions and WE WILL make them whole for
any loss of pay or benefits which they have suf-
fered by reason of the discrimination practiced
against them, with interest.
MALONEY CONCRETE COMPANY
APPENDIX C-•
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor. Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
'Section 7 of,the Act gives employees these rights.
To organize -
To form, join, or assist any-union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT,refuse to provide Drivers, Chauf-
feurs, and Helpers Local Union No. 639, Interna-
tional Brotherhood-of Teamsters, Chauffeurs, War-
ehousemen and Helpers of America, with informa-
tion and data which is relevant to the performance
by that Union of its -responsibilities as the bargain-
ing representative of our truck -drivers, dump truck
drivers, and plant and yard helpers.
WE WILL NOT discourage membership in or ac-
tivities on behalf of Drivers,"Chauffeurs, and.Help-
ers Local Union No. 639, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other labor organiza-
tion, by refusing to reinstate unfair labor practice
strikers, or by otherwise discriminating against em-
ployees in their hire or tenure.
WE WILL NOT in any like or related--manner
interfere with, restrain, or coerce you ^ in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
845
WE WILL permit the Union to inspect and copy
all of our books and records which show the rela-
tionship of each individual company to any partial-
ly or wholly owned concrete company or any con-
crete company partially or wholly owned by prin-
cipal stockholders of - our companies, beginning
with the calendar year 1980 and running to the
date of compliance with the Board's order. WE
WILL also permit the Union to inspect and copy
any records showing the names , dates of hire and
termination, wages, fringe benefits, and other pay-
ments made by us to replacements who were hired
during the 1982 strike. '
- WE WILL offer to Charles Johnson and to any
unfair labor practice striker who had not been rein-
stated on or before 20, July 1982 full and immediate
reinstatement to their former or substantially equiv-
alent positions and WE WILL make them whole for
any loss of pay or benefits which they have suf-
fered by reason of the discrimination practiced
against them, with interest. .
SUPER CONCRETE CORPORATION
Joseph J. Baniszewski, Esq. and Charles Possner, Esq., of
Baltimore, Maryland, for the General Counsel.
Kenneth Henley, Esq. and John V. Long, Esq., of• Bethes-
da, Maryland, for the Charging Party.
Adin C. Goldberg, Esq., William H. Willcox, Esq., James
J. Kearney, Esq., John M. Wood, Esq.- and Ronald A.
Lindsay, Esq., of Washington, D.C., for the Respond-
ents.
DECISION
WALTER H. MALONEY, JR., Administrative Law
Judge. This case came on for hearing before me at
Washington, D.C., ona consolidated unfair labor prac-
tice complaint,' issued by the Regional Director for
i The principal docket entries in this case are as follows
Charge filed herein by Drivers, Chauffeurs, and Helpers Local Union
No 639 , International Brotherhood of Teamsters , Chauffeurs , Warehou-
semen, and Helpers of America (Union or Local 639), against Respond-
ents Buffalo Concrete Company (amended to read Washington Materials,
trading as Buffalo Concrete , a Division of Joseph Smith and Sons, Inc,
and herein called Buffalo), District Concrete Company, Inc (District),
Howat Concrete Company, Inc (Howat), Maloney Concrete Company,
Inc (Maloney), Silver Hill Concrete Corporation (Silver Hill), and Super
Concrete Corporation (Super), in Case 5-CA-14351, on May 18, 1982,
first amended charge filed by the Union against the same six Respondent
Companies on June 24 , 1982, charge filed by the Union against all re-
spondents in Case 5-CA-14525 on July 20, 1982, consolidated complaint
in Cases 5-CA-14351 and 5-CA-14525 issued on August 13, 1982, by the
Regional Director, for Region 5 against all Respondents , respondents'
answer filed on August 25, 1982, consolidated complaint amended by the
Regional Director , for Region 5, on September 22, 1982 , charge filed by
the Union against all Respondents in Case 5-CA-14625 on August 19,
1982, complaint issued by the Regional Director against all Respondents
in Case 5-CA-14625 on October 1, 1982, charge filed by the Union
against Respondent Maloney on September 8, 1982, in case 5-CA - 14679,
complaint issued by the Regional Director against Respondent Maloney
in Case 5-CA-14679 on October 1, 1982, all four cases consolidated by
Continued
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Region 5 of the National Labor Relations Board. which
alleges that the six respondent companies2 violated Sec-
tion 8(a)(1), (3), and (5) of the Act. The principal matter
at issue is whether, ih the course of protracted negotia-
tions, the Respondents took the position that they could
not afford to pay certain economic demands which were
under discussion; thereby giving rise to an obligation to
disclose their financial records in support of that position
under the doctrine of the Truitt case.3 The consolidated
complaint also alleges that a strike called by the Union
was caused or prolonged by the failure of the Respond-
ents to disclose financial information which was .request-
ed by the Union, that-Respondent Super violated the Act
by refusing to reinstate striker Charles Johnson, and that
Respondent Maloney violated the Act by refusing to re-
instate striker Edward A. Winter. Respondents contend
that they did not assert that they could not afford the
terms of the expiring contract and the Union's demands,
insist that the strike was wholly economic in character,
thus giving them the right to replace strikers with per-
manent replacements, that Johnson was denied reinstate-
ment because"of egregious-misconduct at and away from
the picket line,. and that Winter was denied reinstatement
and was discharged because of a long history of job-re-
lated deficiencies. When the proceeding reopened, the
General Counsel proceeded upon an alternative theory,
namely, that Respondents Buffalo, District, Howat, and
Silver Hill had failed to reinstate named economic strik-
ers in- order of seniority or. had failed to accord contrac-
tual superseniority to shop stewards in' reinstating strik-
ers:"The"four named Respondents denied these allega-
tions. On these'contentions, the issues were drawn.4
order of the Regional Director on October 5, 1982 , answers of Respond-
ents filed on October 14, 1982, hearing held before me in Washington,
D C , on December 6- 10, December 21, 1982, and January I 1 and 13,
1983, briefs filed by all parties with me on or before March 28, 1983,
charge filed by the Union against Respondents on January 6, 1983, in
Case 5-CA-15010, complaint issued by the Regional Director against
four Respondents (excepting Maloney and Super) on April 22, 1983,
complaint in Case 5-CA-15010 consolidated with complaints pending
before me by order dated May 9, 1983, hearing held in Washington,
D C, on June 13 and 28, 1983, and supplementary briefs filed with me on
or before August ' 15, 1983
2 Respondents admit that Buffalo Concrete , a division of Joseph Smith
and Sons, Inc ., is a Delaware corporation with office and places of busi-
ness in Camp Springs, Tuxedo, and LaPlata , Maryland , that Distract is a
Maryland corporation with office and place of business in Marlow
Heights, Maryland, ' that Howat is a Maryland corporation with office
and places of business in Beaver Heights, Maryland , and Arlington, Vir-
gmia, that Maloney is a Delaware corporation with office and places of
business in Chevy , Chase and Rockville , Maryland , and in the Distract of
Columbia , that Silver Hill is a Maryland corporation with office and
places of business - in Marlow Heights , Maryland, and in the District of
Columbia, and .that Super is a Virginia corporation with an office and
place of business in the District of Columbia From these respective loca-
tions, the respective - Respondents manufacture , sell, and deliver ready-
mix concrete to points and places located in Virgmia , Maryland, and the
Distinct of Columbia In the course and conduct of this business , each re-
spective Respondent derives annual gross revenues in excess of $500,000,
and annually purchases and receives goods - directly in interstate com-
merce valued in excess of $50,000 Accordingly , each Respondent is an
employer , engaged in commerce within the meaning of Sec. 2(2), (6), and
(7) of the Act' The Union is a laboi organization within . the meaning of
Sec 2(5) of the Act -
. 3NLRB v Truitt Mfg Co., 351;U S 149 ( 1956)
4 Transcript errors have been noted and corrected
FINDINGS OF FACT -
1. THE UNFAIR LABOR PRACTICES ALLEGED
The six Respondents are all of the unionized ready-mix
companies in the Distract of Columbia and in nearby
Montgomery and Prince George's Counties. From their
respective plants, located. either in the city of Washing-
ton or its suburbs, they deliver ready-mix concrete to
construction sites in the District of Columbia and nearby
Maryland. They also make occasional deliveries to the
Northern Virginia suburbs of Washington. The six Re-
spondents are in competition with each:other, as well as
with several nonunion companies which have been able
to obtain a progressively larger share of. the market in
recent years. In 1982, when the events in this case oc-
curred, these six employers employed a total of about
150 mixer drivers, dump truck drivers, and yardmen. In
1979, when previous negotiations took place, this figure
was at 250.
Because ready-mix concrete is a perishable item and
must be poured from a delivery truck within an hour or
two after the truck is loaded, the geographical limits of
the market of each Respondent is limited. As their batch
plants are located at different spots throughout the Met-
ropolitan Washington area, each has an immediate locali-
ty in. which it predominates. in comparison with its
unionized competitors. -
For a number of years, the six Respondents have bar-
gained with Local 639 through an informal association.
They maintain' that the bargaining here in question is
multiemployer in character.5 Each Company. designated
Attorney William H. Willcox as its attorney and spokes-
man for purposes of negotiating with Local 639. Their
most recent contract with Local 639 was concluded in
May 1979 and expired on May 15, 1982. The effort to
conclude a- new contract in the spring of 1982 is what
has given rise to the dispute in this case.
Late in 1981, Richard Morauer, -president of Howat,
contacted Daniel George, president. of -Local 639, and
suggested the possibility of early negotiations in order to
arrive at a contract well in advance of the May 15-expi-
ration date of the then existing agreement. In that same
time period, George held a meeting with Morauer, James
Russ, the principal officer of Buffalo, John T. Maloney,
president of Maloney, and Marion Brevard, a principal in
District-and Silver Hill: All echoed•the same sentiment,
informing George that there was a lot of construction on
the drawing board which was due to commence in the
spring of 1982 and the unionized companies would, be in
.a better position to bid on it if they knew what their
labor costs would be and could assure prospective cus-
tomers that deliveries would not be interrupted by a
strike. • •
Following this informal meeting, George was contact-
ed by Willcox who , speaking on behalf of all six Em-
ployers, suggested a- meeting in Willcox's law office. A
meeting took place on January 7, 1982. At this meeting
5 The General Counsel contends that the bargaining herein was con-
solidated bargaining rather than true multiemployer bargaining . Howev-
er, for purposes of this case , the distinction is immaterial and inconse-
quential.
BUFFALO CONCRETE
Willcox made no specific proposals but laid out a bar-
gaining position which was to continue both throughout
negotiations and to date, namely, that the nonunion seg-
ment of the ready-mix concrete industry had been
making substantial inroads in the Washington area be-
cause the costs of unionized companies were not com-
petitive so the unionized contractors had to take steps to
"narrow the gap" in labor costs. Willcox estimated that'
there was a 25-percent to 35-percent differential between
the costs of union and nonunion ready-mix contractors
and asserted that it was of paramount importance that
this gap be closed. During this meeting Willcox made
generalized though not specific reference to such cost
items as wages, overtime, vacations, pension contribu-
tions, health and welfare fund contributions, starting
times, a reduced new-hire rate, and automatic overtime
for Saturday work. George made a noncommittal re-
sponse, indicating that he understood the prpblem of the
union contractors but saying also that "take-aways" were
a serious matter. He informed Willcox that the Union
could deal more easily with some "take-away" items
than it could with others.
The parties met in formal negotiating sessions at the
Ramada Inn in Lanham, Maryland, on February 2 and
again on February 4. At these meetings, as at all future
meetings, George acted as the Union's lead negotiator
while Willcox was the chief spokesman for the employ-
ers. Other officers and stewards frequently atiended on
the union side and a principal representing each of the
six Companies was normally present on the Association
side.
At this meeting, Willcox and George reiterated many
of the topics they had' discussed on January 7 in Will-
cox's office. Willcox made some specific proposals-a
freeze in wages during the first year of the new contract
and wage reopeners during the nest 2 years, with a 75-
cent cap on increased economic costs each year and no
right of the Union to strike. Willcox also proposed a
broader no-strike clause, certain limitations on overtime,
vacations, and holidays, and more restrictive language in
the arbitration clause in the existing contract. For' his
part, George asserted that many of his members were
concerned that much of the nonunion competition about
which Willcox had been complaining was being provid-
ed by double-breasted companies in which some of the
Respondents themselves had a financial interest.. He
claimed that Howat controlled Falcon Materials and
Capital Ready-Mix, that Super owned Opportunity Con-
crete Company, that Maloney owned a nonunion firm
named CSC, and that Buffalo was operating a nonunion
competitor named National. The Union also advanced
certain proposals concerning superseniority for stewards
and a liberalized revision of the language of the arbitra-
tion clause.
'On February 4, Willcox placed a written set of compa-
ny proposals on the table. They were a modification of
the items discussed on February 2. They included a
freeze on current wages for the first year of the new
contract; an increase of 14 cents in fringe fund contribu-
tions ; a reiteration of wage reopeners, without right of
strike, during the second and-third years, with a 75-cent
cap; and weekly overtime only after 40 hours 'and daily
847
overtime after 10 hours, as opposed to overtime after 8
hours each day which was contained in the expiring
agreement Willcox also proposed elimination of a provi-
sion in the current contract calling for automatic over-
time for Saturday work, regardless of the number of
hours previously worked during the week, and the elimi-
nation of premium pay for hours worked before 5.30
a.m. and after 5 p.m. each day. There was no agreement
on any of these items. It should be noted that the Com-
pany's position on overtime-a term broadly used by the
parties to include the' elimination of premium pay after 8
hours in any given day, elimination of premium pay for
Saturday work unless the employee had completed 40
hours from Monday to Friday, and elimination of premi-
um pay for early morning and late afternoon work-
became and remained throughout the negotiations the
most intractable economic issue dividing the parties. As
early negotiations failed to achieve their desired result,
both parties mutually decided to break off the discussions
and resume later on following service of the 60-day
letter of notification to modify the contract In the inter-
im, Willcox and George held a brief discussion in Will-
cox's office but it accomplished nothing.
On April 14, the parties met again . At this point,
George presented a written outline of union demands,
which included superseniority for stewards, liberalized
language permitting arbitration, wage increases amount-
ing to $1 an hour for each year of a 3-year agreement,
substantial increases,in fringe benefit fund payments, and
an -additional paid-holiday. On April 19, the employers
made a detailed written proposal. They proposed a first
year hourly wage of $9, which was 75- cents per hour
less than drivers were 'currently making. They further
proposed to restore 50 cents of that cut in May 1983 and
to pay ^an additional 50 cents per hour in May 1984. The
expiring contract had a wage differential between dump
truck drivers and mixer drivers of 80 cents per hour. The
April 19 company proposal reduced this wage from
$8.95 to $8 during the first year, with a 70-cent restora-
tion in May 1983. It also called for a special hourly rate
for newly hired drivers which would be $3 less than the
regular rate during the first year of employment, $2 less
during the second year, and $1 less during the third year
of employment. Only after completing 3 years of em-
ployment would a driver receive the regular contract
rate. The Respondents proposed to reduce the number of
paid holidays from eight to five, limit recall rights (then
without a time limitation) to 6 months, modify the exist-
ing guarantee of 12 hours' work in each week, restrict
overtime to hours worked in excess of 40 per week (as
opposed to 8 per day), remove the requirement for pre-
mium pay for hours worked after 5 p.m., and reduce the
amount of vacation time provided for in the expiring
contract. George's response was that, in view of what
the Respondents'were proposing, the Union would insist
on looking at the Companies' books if the Respondents
were serious in proposing these things. While the precise
text of Willcox' s response is in dispute , it is quite clear
that he flatly refused. At further sessions held on April
21 and 29, the parties reached agreement on a few minor
items but remained far apart on the major items, includ-
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing all - 6f the so-called take aways . One of the items in
the expiring contract which the Union insisted most
strongly on retaining was the provision permitting it to
strike upon giving 7 days' notice in order to collect de-
linquent health and welfare payments.
The next bargaining session took place on May 10.
George stated that the parties started this session by
simply staring at each other . The Respondents highlight-
ed six proposals which they thought were most impor-
tant-wage freeze , wage reduction , adjustments in over-
time (as broadly defined), reduction in number of holi-
days, a new hire, rate, and revision of starting time re-
quirements . In bringing up these . matters , Willcox stated
that these items would serve to reduce costs and to make
his clients more competitive with - those who were taking
work away from union companies and union employees.
George replied that , while it was trying to understand
the Companies ' position , the Respondents should try to
understand his. Part of his problem was retaining credi-
bility with his membership and he needed to look at the
Companies ' books in order to obtain verification that the
Respondents really needed the reductions they were pro-
posing . They branched out into a discussion of what
George thought the books would show . George suggest-
ed that they would reveal , not only the profitability of
the respective Companies but also whether excessive
compensation to officers was affecting that profitability,-
as well as whether several of the Companies had owner-
ship interests in the nonunion firms which , they were
contending , were taking away their business . George
suggested that the Respondents might , in fact , be com-
peting - against themselves and that a ' look -at the books
was necessary to ascertain whether or not this was true.
This session ended without any agreement on substantive
matters and without any change in the Respondents' re-
fusal to permit George to examine their financial records.
On May 12, George wrote almost identical letters to
--Willcox and to each . of -the Respondents . His letter to
Willcox read: •
Drivers , Chauffeurs and Helpers Local Union
No. 639 has very carefully reviewed your proposal
of April 19, 1982 , paying particular attention to
those items emphasized by your chief spokesman on
April 19, 1982.
In view of your company's steadfast position to
hold for wage reduction as.well as other so-called
takeaways , the Union restates its original request
made on April 19, 1982 , that the Union must have
greater details relative to the economic viability or
lack of it on - the part of your company.
In order for the Union to fashion , realistically, a
response to your latest proposal , the local union
must have the following information:
1) Certified year end financial statement for the
year ending December 31; 1981:
If by chance the company year end audit had not
been completed as of the date of this request, then
Drivers , Chauffeurs and Helpers Local Union No.
639 would like to bring in its own accountant to _
review the books for the same period as afore
stated. -
2) A list of all bids submitted by you or an agent
of your company on your behalf relative to per-
forming any work covered by your collective bar-
gaining agreement with Local Union No. 639.
3) Copies of any contracts , bid specifications, or
memorandums which establish that general contrac-
tors or subcontractors within the metropolitan area
of Washington have stated that the language that
has the effect as that language proposed by the
companies -at Article II (continuity of work) is a re-
quirement of any contract between your company
and the contractor before any Union concrete sup-
plier is allowed to bid on such jobs for such con-
tractors. -
(a) Names of such - contractors and the dates of
such conversations , if verifiable. -
•(b) What action, if any , was taken by your
company to combat such an agreement and has
your company suffered any financial loss result-
ing therefrom. - -
4) A list of all employees currently on layoff, the
original date of hire, the original date of recall, if
presently is working , and -the original date of layoff.
On May 12 , Willcox and George met privately . Will-.
cox indicated that , at their next session, the Respondents
would- modify their proposals on wage reductions and
the right t6 strike during the term of the contract to col-
lect delinquent health and welfare payments. George and
Willcox both agreed that the question of overtime, as
broadly defined , was a major sticking point on both
sides. _
At the general negotiating session on May 13 , the par-
ties began by discussing George 's request for financial in-
formation . Willcox stated that the books would not show
the Union anything . He-added that the-situation which
prompted the Respondents ' proposals should be obvious
to the Union and to all of its members , namely , that jobs
in the concrete industry were "leaking away." Willcox
said that $133 (or $138) million in nonunion jobs had
been let and , as a result of the fact that nonunion compa-
nies paid fewer holidays , less vacation time, and weekly'
rather than daily overtime, manhours , and the truck
usage in the unionized segment of the industry were
down. George replied that Willcox's figures could be
misleading, inasmuch as nonunion general contractors, to
whom the figures referred , could and did use union sub-
contractors . The parties reviewed the previous bargain-
ing and the Respondents announced the concessions
which Willcox had previously indicated to George they
would make . However,• the parties were still far apart in
terms of an ultimate settlement.
It should be noted that, while -bargaining -was in
progress with the six union concrete companies in Mary-
land and the District of Columbia , Local 639 was also
conducting separate negotiations with Virginia Concrete
Company covering _ drivers who are employed by the
largest unionized concrete company in Northern Virgin-
ia. The Virginia Concrete contract was due to expire
about the same time as the Association contract. Agree-
ment was reached between Virginia Concrete and Local
BUFFALO CONCRETE
639 without a strike and this agreement was ratified on
May 17. During this same week , George and Willcox
had two telephone conversations , one on May - 14 and
one on May 19 , concerning the Association bargaining
Nothing substantive was resolved In the course of the
second conversation , George told Willcox that he would
have to have at least the Virginia Concrete contract in
order to reach an agreement with the Association and he
doubted that even those provisions would do it . He also
- said that he still needed to see the Companies ' books.
Willcox objected , accusing George of giving him an ulti-
matum . By this time, the Association contract had ex-
pired and the employees of the Association had taken a
vote authorizing a strike but deferring any actual walk-
out for a few days to give George an opportunity to ne-
gotiate further . Moreover , the Union had already filed
the first of several charges in this consolidated case, al-
leging that the Respondents had wrongfully refused to
supply the Union requested financial data . In response to
George's renewed request for the. "books ," Willcox re-
plied that the NLRB would decide whether or not he
was entitled to them.
On May 21 , Willcox wrote to George responding to
George's request for information of May 12. The letter
read.
This letter responds to your letter to each of the
Ready Mix Companies , dated May 12, and to your
statements on the phone to me on the morning of
May 19 that the Companies must ' agree to "nothing
less" than the Virginia Concrete contract , ratified
by the Virginia employees the night of May 17, or
the Companies will be struck Wednesday , May 26.
In our opinion , ultimatums like the one you deliv-
ered to me on May 19 are not the way to reach
agreement and in fact constitute bad faith bargain-
ing We have had no discussion with you whatso-
ever of the Virginia contract . In addition , we have
every right and desire to shape our own relations
and agreements with the Union rather than to
simply agree to something that the Union and
others have worked out. We believe that what you
should do is not indulge
-,
in ultimatums but instead
continue bargaining . We would like to do that and
suggest that , we meet again for that purpose
promptly.
The May 19 ultimatum dictating the Virginia set-
tlement to us supersedes the May 12 letter which
requests information purportedly needed for bar-
gaining . Nevertheless , I will respond to the letter
anyway.
The Companies have taken the position that there
must be a freeze in the mixer driver wages and only
modest increases thereafter ; reform in overtime and
some other items essential to improve productivity;
a strong no-strike clause , with the only exception
being that relating to nonpayment of fringes; and a
more realistic differential between yardmen and
mixer drivers . As we have said very often , to know
the reason for our position and the facts that must
be dealt with on your side of the ' table , as on ours,
you don 't need our financial statements. You have
849
only to look about you. It is as evident to you as it
is to us that the amount of work and the amount of
jobs have been steadily eroding for years in the face
of the non-union competition . During these years
the nonunion competition in construction in general,
and in ready-mix concrete in particular , has become
very strong in D.C. and its environs . The labor
costs of the non-union companies are, as you know,
substantially below those of the unionized compa-
nies. The nonunion companies do not have the inhi-
bitions on productivity - that are contained in our
contract . Their customers are not faced with the
possibility that promised deliveries will be interrupt-
ed by drivers refusing to work . Therefore the
reason we have made our proposals is to try to
'bring our labor costs and productivity and assur-
ances of uninterrupted deliveries more in line with
those of the nonunionized companies , although our
labor costs would still be very substantially above,
and our productivity below , those of the nonunion-
ized companies even - if you agreed to all our pro-
posals. If we don 't do this the decline in work and
jobs for your membership will continue , and oppor-
tunities to increase work, and thus jobs, will be lost.
We will end up working only on unionized projects,
of which there are fewer all the time.
We have informed you that the hours worked by
bargaining unit employees of the unionized compa-
nies dropped 34% from 1978 to 1981 ; that the
number of mixer trucks went from approximately
228 to approximately 150 in that period; that the
bargaining unit workforce which • wis'228 in 1978 is
now 140, plus approximately 15 now on layoff. We
have informed you that there are at least 14 major
current nonunion concrete jobs in the city in which
nearly. 200,000 yards of concrete have been or are
being poured . Half of these jobs we would have
had a crack at if we had settled in January or early
February , as we tried to do. None of this is news to
you at all . You can calculate the hours worked as
well as we can because it is all reported in connec-
tion with our H & W payments for hours worked
pursuant to the contract; you can count trucks as
well as we; you know the size of the work force as
well as we from the Companies ' daily activities and
from dues checkoffs, etc. You are as aware, as we of
the numerous nonunion construction jobs in general,
and non -union concrete jobs in particular, that
decorate the city and the area . These are.the facts
that are the reason for our proposals.
Hard bargaining is not bad faith bargaining. Nor
does the fact that we have summoned the temerity
to bargain somewhat . hard-asking for reasonable
and modest changes in the face of obviously serious
erosion of work and jobs-entitle you-to our finan-
cial statements . You don 't need a financial statement
to know that companies suffering serious reductions
in work and jobs have every reason to try to
narrow the gap between their labor costs and the
lower labor costs of other companies who are get-
ting that work and those jobs, and to try to bring
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their productivity closer to the productivity of
those companies.
Furthermore, accusations of bad faith bargaining
against us cannot be sustained in light of our long
history of good faith bargaining and our efforts to
reach a realistic and fair agreement with you for a
new contract this year. These efforts will continue.
We should meet again promptly to talk about the
economic matters and contract language matters
still on the table. .
You have also made an information request re-
garding our proposal for a promise of no work
stoppage of any kind, other than for non-payment
of H & W and pension contributions as provided in
the current contract. We assure you of the obvious,
i.e., that the language in the contract that just ex-
pired which permits work stoppages, including re-
fusal to honor picket lines, during the term of the
contract (as in Section 4 on p. 2) is aserious impedi-
ment to our getting contracts from non-union con-
tractors and non-union sub-contractors. How could
it possibly be otherwise? We have discussed this
self-evident problem with you at length in 'the nego-
tiations.
We also reject your request to furnish you with
lists of our bids, to which you are also obviously
not entitled.
We believe you have the requested data about
employees on layoff, but we will furnish you a list
shortly.
The next meeting between the parties occurred on
May 24, just 2 days before the extended deadline for the
strike. George brought with him to the meeting a copy
of the recently ratified Virginia Concrete contract and
told Willcox that the latter's most recent offer differed
materially from the Virginia Concrete contract because
there were no "take-aways" in the Virginia Concrete
contract After an acrimonious exchange on the subject
of labor cost differentials and double-breasted operations,
the Employers caucused and returned with a modest
change' in their wage proposal. While sticking to the
concept of a wage freeze during first -year of the contract
(a modification of their, former offer of a 75-cent cut),
they proposed 25-cent increases in the hourly rate of
mixer drivers for the second and third years, daily over-
time after 10 hours in place of their former insistence
upon overtime only after 40 hours in a single week, and
seven rather than five paid-holidays. They also increased
their original offer on hourly contributions to fringe ben-
% funds and increased the rates offered to dump truck
drivers. The offer was rejected. In the course of the dis-
cussion, George again insisted on looking at the books,
stating that they would show among other things wheth-
er the Respondents were operating double-breasted com-
panies or .whether the nonunion companies were actually
competing organizations . He also said he needed the in-
formation in order to be in. a position to formulate mean-
ingful counterproposals. -
'On the night of May 25, the union membership met at
the Local 639, hall to take a strike,vote. In fact, a strike
authorization vote had already been taken on May 18 so
the nature of the proposal to be voted upon that evening
was whether to implement the strike vote immediately gr
to delay the-proposed strike pending-further negotiations.
About 125-150 employees of the six Respondents attend-
ed the meeting. George filled them in on the latest devel-
opmerits in the negotiations, going through the Compa-
nies' proposal item by item. He said that he might be in a
position to recommend a wage cut if he could see a justi-
fication for doing so in the Companies' books but he
could not do so without this information in light of the
changes- in overtime which the Respondents were' insist-
ing upon He went over the Virginia Concrete contract
with the assembled drivers in order to learn their attitude
toward the provisions in that contract. A vote was taken
which rejected the Companies' offer by a.wide margin
but the membership agreed to give George an extra day
before beginning the strike to see if he could work out
something at the last minute, using the Virginia Concrete
contract as the basis for further discussion.
The last prestrike negotiating session took place on the
afternoon of May 26. It was a tense and acrimonious
meeting In a series of offers made in the course of the
afternoon, the Companies modified most of their original
"take-away" proposals, except for those relating to over-
time. On those proposals they stood fast and so did the
Union. They also offered a .wage package similar to the
one found in the Virginia Concrete contract. George still
said he would feel awkward in recommending this pack-
age without a look at the Respondents' financial state-
ments. On this point' the Respondents remained firm. In-
stead of a $1-per-hour increase in the wage rate in each
of the 3 years of the contract, the Union modified its
original proposal and called for a 75-cent-per-hour in-
crease in each of the 3 years of the contract. In support
of the Companies' position, Willcox stated that there had
been a, steady erosion of the Respondents' competitive
position throughout the life of the 1979-1982 agreement,
whereupon George replied that he was expanding his
demand for certified financial statements to cover that
entire period in light of Willcox's position that the prob-
lem with nonunion competition had extended over the
entire period of the expired contract. George also ex-
panded his request for bid information to extend
throughout the term of the 1979-1982 contract. While
agreement was reached on some items, the parties left
the May 26 meeting without any overall agreement.
At a union meeting which took place on the night of
May 26, George went over the most recent company
proposals with the membership but told them that the
Respondents still would not produce their financial
records. He did not recommend acceptance of the Re-
spondents' last offer and it was rejected by . a wide
margin . The strike began early the next morning and
continued until July 15.
,At the outset of the strike, several individual Respond-
ents wrote to George and supplied certain particularized
information which he had requested in his May 12 letter.
In response to one of George's questions, most Compa-
nies indicated that they had either no employees or few
employees on layoff and informed George of the names
and dates of hire of any laid-off employees. Several
BUFFALO CONCRETE
Companies provided George with lists of jobs on which
they had submitted • bids in 1982. The lists included the
location of the job, the date of the bid, and the name of
the general contractor, but none of the lists supplied
during the first weeks of the strike provided any pricing
information. All Respondents refused to provide certified
financial statements or any other financial records.
During the strike, the parties held one meeting at the
office of the Teamsters International in Washington. This
meeting took place at the suggestion of the Eastern Con-
ference of Teamsters. Nothing occurred at this meeting
except more acrimonious exchanges between the parties.
Between June 18 and June 22, George wrote another
letter to the various Respondents which had provided in-
dividual replies to his May 12 letter. • His letter was
lengthy and, in part, argumentative. He stated that the
various replies he had received met none of the require-
ments of his oral request or his letter of May 12. He then
said that one of the purposes of his demand for informa-
tion was to enable the Union to be in a position to ascer-
tain how much had been bid on each job as well as what
jobs were bid. He also asked for specifications and any
discounts or premium prices for early morning and late
evening delivery which had been offered and which
would affect price and the competitive position of Asso-
ciation members in the area. He requested the Respond-
ents' definition of "competitive" and also sought informa-
tion which would confirm the existence of double-breast-
ed operations by unionized companies. He also asked for
names and addresses of strike replacements, therrates of
pay and fringe benefits accorded to all employees who
were working during the strike, the manner of making
such payments, any additional payments (such as hotel
and housing charges) paid to strike replacements, and the
date of hire of any replacement and the name of the
striker he replaced. On July 8, Willcox replied with in-
formation concerning rates of pay and fringe benefits ac-
corded to nonstriking employees by each of the six Re-
spondents: He also included in his letter a chart showing
wages and benefits paid to employees of various un-
named competitors of the six Association members (e.g.,
Company A, Company B, Company C). Willcox stated
that this information had been obtained as the result of
an area wage survey-by Association members. On July
20, Willcox further replied to George's letter, setting
forth again the Respondents' position on the issues in this
case. He stated, inter alia, that the great majority of the
nonunion competing companies, such as Cardinal Con-
crete, A. H. Smith, Charles County, and Rockville Fuel
& Feed, had no connection with any Association
member. He denied the assertion that any individual As-
sociation member had ever said that his Company was
not making money. He criticized George's request for
bid data extending over a 3-year period, including puce
information, claiming that gathering and providing such
information was burdensome, but he added that consider-
ation was being given to supplying the Union with addi-
tional pricing information. He declined to provide names
and addresses of strike replacements because of the strike
violence and vandalism which was occurring, stating
only that replacements had been hired on a continuing
basis since the beginning of the strike, that some had left,
851
and that none had been hired on the basis, of having re-
placed any particular striker. Another letter, written 3
days later, contains certain information concerning the
average cost per yard _of materials produced by the six
unionized Companies over the past 3 years but it identi-
fied each company only by letter, not by name (e.g.,
Company A, Company B, etc .). On August 9, this infor-
mation was enlarged by naming each of the previously
unidentified Companies. On July 28, Willcox provided
George with a composite statement of profit and loss of
all six Companies for the year ending December 31,
1981. The statement, which was uncertified, showed
total sales of all six Companies amounting to $46,655,519
and a net income of all six Companies after taxes of
$477,018. '
On July 15, George sent a telegram to Willcox and to
the members of the Association which stated: "Dear Sirs:
On behalf of all Local Union No. 639 members currently
on strike, Local Union 639 hereby makes an uncondition-
al offer for all such employees to return to work immedi-
ately." It was signed by Daniel George. 6 Strikers began
to return to work and, with the exception of Maloney
mixer driver Edward A. Winter and individuals who
were discharged for engaging in strike-related violence,
most of these employees have regained their former jobs.
However, as discussed, later in greater detail, many were
not reinstated immediately.. On August 9 and 23, and
again on September 29, the parties met for purposes of
negotiations but were unable to resolve their outstanding
differences. During the pendency of the hearing in this
case, the parties also met for purposes of 'collective' bar-
gaining , as well as for purposes of attempting to resolve
the issues in this case , but no settlement was concluded.
The Respondents continue to operate their respective fa-
cilities for the most part under the economic terms and
conditions which were set forth in the contract which
expired on May 15, 1982.
The strike was attended by a considerable amount of
violence and vandalism which was - the subject of an
unfair labor practice charge and complaint in Case 5-
CB-4104. That case resulted in a formal settlement, to
which the employers herein objected, and which con-
tained a conventional nonadmission clause .- A Board
Order approving the formal settlement was issued on
February 10, 1983.
,One driver who was denied reinstatement because of
his, asserted participation in strike violence Was, Super
driver Charles Johnson. Johnson 'was one of many who
engaged in picketing the Super batch plant at Fourth and
T Streets, N.E., during this period of time. At the outset
of the strike, Johnson was among the 10 or 15' pickets
who patrolled the entrance.to the plant along a railroad
right-of-way leased by Super, at a time when a company
truck was prevented, for a period of minutes, from leav-
ing the premises. When the police were summoned, the
line was separated and apparently maintained thereafter
in such a manner that a recurrence of this problem did
6 There is a contention that Howat did not actually receive the mail-
gram offering reinstatement until about July 19. However; a copy was
sent about July 15 to Willcox, who was and is Howat's attorney
852 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not take place. No other picket" line stoppage involving
Johnson occurred.
On June 8, Johnson and two other strikers, Wesley
Worthington and Dunkin, attended a hearing at the Su-
perior Court for the District of Columbia involving an
application by the Employers for a temporary injunction
aimed at picket line misconduct. Worthington and
Dunkin were both employees of Super. Later that day,
Worthington was involved- in a fight at a street excava-
tion site with a nonstriking employee of Super named
Ecton. The jobsite in question was operated by, the B.
Frank Joy Company, a customer of Super. The Joy
Company was installing a power line conduit in a trench
which crossed Fourth Street, N.E., and Ecton and an-
other nonstriking Super driver, John A. Brown Jr., were
driving Super delivery trucks loaded with concrete to be
poured into the trench. Joy Foreman McDonald Spar-
row testified without contradiction that, while the trucks
were at the jobsite, he heard two people talking. He
turned and saw Worthington on top of Ecton, pounding
Ecton in the head with his fist. He told Worthington to
stop but Worthington kept on, -picking up a pipe that
was supposed to be installed in the trench. Sparrow
warned Worthington not to do anything, with the pipe,
so Worthington apparently dropped the pipe, picked up
a shovel, and hit Ecton in the arm and in the face. Spar-
row grabbed .the shovel from Worthington and hung on
to it, forcing Worthington to let go of it. Worthington
then left the scene and an ambulance was summoned for
Ecton. As Worthington was leaving,. Sparrow saw John-
son for the first time. Johnson yelled at Brown, who was
in the other Super. delivery truck, "Don't get on that
radio." Then Johnson left the' immediate scene and may
have departed the area separately from Worthington.
On July 22, 1983, Edmund G. Simpson, executive vice
president of Super, wrote' Johnson a letter denying him
reinstatement. The letter read:
Your- name has been presented to me as among the
strikers now desiring to return to work for the
Company when and as vacancies may occur. I am
sorry -to inform you that because of your acts
and/or threats of violence, harassment, and proper-
ty damage during the striking , damaging to the
Company and its employees, you are not eligible for
reemployment here.
report back to work from a seasonal layoff in _a timely
fashion and was denied reemployment for the 1982 con-
struction season on that account. Winter filed a griev-
ance and, after intervention by George on his behalf, was
reemployed.
When the strike began, Winter joined the strike and
picketed the Maloney plant from time. to time. There is
no evidence that his participation in the strike was of any
greater or lesser degree than that of any other striker
who stayed out until the strike was called off in July.
After the strike was over, Winter repeatedly went to the
Terra Cotta plant at the regular reporting time but was
never reemployed, even after strikers with less seniority
had been recalled. On one occasion, in the company of
six or seven other former strikers, he approached Antho-
ny Seidl, Maloney's personnel director, who was stand-
ing in the yard of the Terra Cotta plant, and asked to go
to work. Seidl told Winter and the others that the Com-
pany was not hiring that day. Winter continued to show
up each morning and to sign in on a yellow sheet indi-
cating his availability for work. On August 13, Winter
asked Seidl why he was not being recalled and Seidl said
that he had no idea.
On October 6, George wrote a letter to Maloney on
Winter's behalf which read:
It is my understanding that you have'stated clear-
ly that it is the firm intention of your company, Ma-
loney Concrete Company, not to recall Ed Winter
to work until told to do so by a Court of Law.
As you know, I have instructed all employees of
Maloney to show up daily for work until all em-
ployees have been placed in their rightful places on
the payroll of Maloney Concrete Company.
In view of your position not to recall Mr. Winter
until told to do so by a Court of Law, I would like
to be able to free Mr. Winter from this task.
Unless Local 639 is informed, in writing, by your
office by Friday, October 8, 1982, that the compa-
ny's position stated above is not accurate, we will
advise Mr. Winter that, as of Monday; October 11,
1982, he should not undertake a more beneficial task
relative to seeking employment other than reporting
to your company each day.
On August 3, Simpson, again communicated with John-
son, informing him of other jobs in the locality for which
Johnson might be. qualified and telling Johnson the
names of supervisors to whom he might apply if he were
interested. .
Edward A. Winter is a mixer driver who has worked
for Maloney since 1965, both at its Rockville plant and
at its Terra Cotta plant at Sixth and Emerson Streets,
N.E., in the District of Columbia. As more fully dis-
cussed later, during his employment Winter was the sub-
ject of numerous customer complaints and disciplinary
warnings . He also had a couple of run-ins with fellow
employees and had filed an unusually large number of
grievances against Maloney,. the latest of which was
pressed early in -March 1982, when Winter failed to
On October 19, Maloney replied to the above letter. He
also sent a copy of his reply to Winter, along with a
check for accrued vacation pay. The letter read:
In response to your letter of October 6, 1982, you
are correct that the Company will not recall E.
Winter and he should look for other work . His em-
ployment here is terminated . It is inconceivable to
me that the NLRB or a Court would ever order the
Company to reinstate a man with as terrible a job
performance as Mr. Winter - compiled at Maloney
Concrete.
BUFFALO CONCRETE 853
Analysis and Conclusions
A. The Obligation of the Respondent to Furnish
Financial Information
It is well established that, when an employer objects to
a union's bargaining demands on the basis that it is
unable to afford the cost of the proposal, it is under a
duty to let the union see its books and records so that
the union can verify the truthfulness of the employer's
contention. NLRB v. Truitt Mfg. Co., 351 U.S. 149
(1956). Such information must be provided by an em-
ployer if it is of probable or potential relevance in assist-
ing a labor organization in performing its statutory duty.
General Electric Corp., 199 NLRB 286; Goodyear Aero-
space Corp., 204 NLRB 831 (1973). An examination of
books and records can go as far as an audit of payroll
books and records, including all books of original entry,
payroll records, canceled checks, checkstubs, and quar-
terly payroll returns. Detroit Cabinet Co., 247 NLRB
1415 (1980).
While the Truitt decision contemplates the possibility
of concession bargaining, 351 U.S. 149 at 152, the bulk of
the decisional law which has eminated from Truitt has
arisen against a background.of employer offers to grant
more in wages and benefits than its employees currently
are enjoying but not as much as the collective-bargaining
representative is demanding. Thus, the issue at the bar-
gaining table normally is not whether the employer can
afford more than it is currently paying but whether it
can afford all that the union wants. Only recently has
concession bargaining arisen on a widespread scale.7
Where concession bargaining does take place, an implied
major premise of the employer's position necessarily is
that it has been paying wages and benefits which it could
afford at one time but which it no longer wishes to pay.
Unless explained by some rare and unusual circumstance,
the only rational justification for such a premise must be
that. the employer can no -longer afford to pay what it
has been paying.
In this case, the Respondents have persistently resisted
the Union's demand to see their "books," first expressed
by George on April 19, on the -basis that they are not
now and have never "pleaded poverty." In their view,
the premise on which a Truitt disclosure obligation must
be based has never come into existence. Inability to pay
a union contract demand need not be expressed in any
set formula before - an obligation to disclose 'financial
records comes about. An employer need not' use the
magic words "can't afford." Monarch Machine Tool Co.,
227 NLRB 1880 (1977). The statement "if we give any
more, I don't see how we can remain competitive" gives
rise to an obligation of financial disclosure to back up
that contention. Stanley Building Co., 166 NLRB 984
(1967). Such statements as "we can't reach your num-
bers," "your numbers are too high for us,"8 and "we
7 See, for example , .113 LRR 21 (May 9, 1983), and the Bureau of
Labor Statistics quarterly repori on major collective-bargaining agree-
ments for the first quarter of 1983, which is reproduced therein.
can't afford your total package" have been held to trig-
ger a disclosure obligation.
The record in this case is replete with controverted
testimony in which various principals of several of Re-
spondent Companies reportedly made comments during
the course of the negotiations indicating their inability to
pay what the Union was asking and what in fact they
had been paying under the 1979-1982 contract. It is not
necessary to resolve these factual disputes. to arrive at a
clear understanding of Respondents' overall position and
'its legal import. On February 2, when the subject of
"take aways" was being discussed in general terms, Will-
cox told George and the other union representatives that
his clients had to "narrow the gap" between the costs of
the six unionized concrete companies and costs borne by
their nonunion competitors. "We had to deal with the
fact of nonunion labor costs in order to keep jobs." -
On April 19, the employers presented the Union their
first specific proposals. Many of these proposals involved
substantial reductions in wages and benefits they were
currently paying. In justifying these specific "take
aways," Willcox stated that "our labor costs and our
other restrictions are not competitive with the non-union
companies." In his testimony he elaborated as follows: "I
went on to give what I suppose is a speech about the
problem of the non-union labor costs and also to describe
our contract [proposal] as one which really attempts to
deal with that by making proposals which bring us
closer, much closer, to the non-union labor costs." On
various occasions Willcox used the argument to George
that the jobs of union members were "leaking away" be-
cause union contractors were unable to bid competitively
on Washington area construction jobs against nonunion
companies so the latter were gaining a larger and larger
share of the industry. At one point in negotiations, Will-
cox provided George with statistics to substantiate the
fact that nonunion construction was on the rise and that
union construction was declining, although he felt that
George should have been well aware of this develop-
ment because of the decline in union membership and in
the collection of monthly fnnge-benefit contributions.
The Employers' repeated assertion that they needed
"take aways from the wage and fringe benefit provi-
sions of the 1979-1982 contract in order. to become com-
petitive with nonunion concrete suppliers in the Wash-
ington area is-the equivalent-of a'plea of inability to pay
what the Union was asking . Hiney Printing Co., 262
NLRB 157 (1979). As now-Chief Justice Burger wrote,
in -a decision rendered by the U.S. Court of Appeals for
the District of Columbia Circuit:
The Company asserts that a claim of inability to
pay is not shown when the Company merely claims
that the increases will not prevent it from compet-
ing. But the inability to compete is merely the ex-
planation of the reason why the Company could not
afford an economic benefit. [United Steelworkers of
America v. 'NLRB (Stanley Artex Windows), 401 F.2d
434 (D.C. Cir. 1968).]
- 8 Printing Pressmen's Local 5 Y. NLRB, 538 F 2d 496 (2d Cir. 1976) .9 Latimer Bros., 242 NLRB 50 (1979)
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, it is clear that the Respondents were under
a duty to furnish the Union with a look at their "books."
If they had any genuine doubt as to what George meant
by that word, he cleared it up in his letter of May 12
when he reiterated his demand, in writing and with spec-
ificity.
It is no defense to the Respondents that, by the time
the Union went out on strike, they had backed away
from many of the April 19 proposals which provoked
George's initial request. George's original request and
Willcox's original refusal constitute the basis for a find-
ing of a violation of Section 8(a)(1) and (5), irrespective
of what occurred thereafter. However, the Respondents
-did not, and have not, abandoned their refusal to meet
several key union demands , maintaining their position
that those demands would render them uncompetitive in,
the Washington marketplace. Faced with the imminence
of a strike, the Respondents moved away from many of
their original economic positions with remarkable haste.
`However, on the' question of overtime, as broadly de-
fined, the parties remain as far apart now as they ever
were. Respondents try to downplay the importance_ pro-
portionally of the overtime question to the balance of the
contract, while the Union maintains that their members
earn as much as one-third of their annual income in this
seasonal industry because of contract provisions calling
for daily overtime, mandatory Saturday overtime, and
premium pay for early morning and late afternoon deliv-
eries . How important this issue was or remains is a quan-
titative matter which the Board is in no position to
evaluate . Suffice it to say that issue has been of sufficient
importance to prevent a meeting of the minds, to pro-
voke in part a bitter strike, and to give rise to a situation
following the conclusion of the strike in which union
members have been working for these six Employers for
more than a year without a contract.
Partial compliance with George's demands for infor-
mation during or after the strike is likewise no defense to
the Respondents, nor does it diminish or eliminate the
causative factors which brought about the' 'strike in the
first place. It should be remembered that the underlying
purpose of the Truitt rule is to provide a union not only
information about an employer's economic condition but
also with verification of a position taken at the bargain-
ing table . Hence,- the refusal to permit an actual examina-
tion of the Respondents' financial records or to provide,
in lieu thereof, -a certified. statement of financial condition
.,by a public accountant who has examined those records
amounts to a violation of the Act. It may well be that
the information contained in these records is confidential
and of a nature that the six Respondents, who are com-
petitors among themselves, might not even wish to let
each other see: r ° However, the test of an obligation to
disclose financial information is relevance, not confiden-
- tiality. Where, as here, books and records are relevant,
the fact that the Respondents might wish to keep them
confidential does not shield them from disclosure.
In his letter of May' 12, and again in letters of June 18-
22, George expanded' upon his original request for infor-
10 One of the principals in this case was quoted as saying that he did
not even let his wife see his books
matron. He asked' for a list of bids submitted by each
Employer, any contracts with construction companies
which required the Respondents to guarantee continuity
of work (i.e., no interruption by strikes), and a list of em-
ployees on layoff with attendant factual data. The Re-
spondents all replied that none of them had, signed con-
tracts with customers guaranteeing continuity of work.
Those Companies with employees on layoff status pro-
vided George the information he sought concerning this
question. However, none provided a certified or other
statement concerning their individual financial condition.
As a result of certain information concerning bids which
he had received from some of the Respondents, George
enlarged upon his earlier request for bid information and
made it more specific. In addition to a list of jobs on
which they had bid, he asked the Respondent Employers
for specifications and any discounted or premium prices
for early and late delivery which they may have quoted,
as well as the actual price which had been quoted or bid,
and the name of the successful bidder. He also asked for
a definition of "competitive" and the names and address-
es of all strike replacements and the wages and fringe
benefits paid to them. He extended his earlier request for
bid information to embrace the entire 3 years of the
1978-1982 contract, rather than merely for calendar year
1981 which was the extent of his initial request. George
also asked Super, Maloney, Howat, -and Buffalo for
memoranda,'lease agreements, or other materials "clearly
establishing" that they had a definite relationship with al-
leged alter egos.
The thrust of the Employers' position was and remains
,that they were losing business because they could not bid
competitively, and that they could' not bid competitively
because their labor costs were too high. - The Union
countered these claims by alleging that many of the Re-
spondents' competitors were not arm's length competi-
tors but were in fact double-breasted extensions of the
complaining companies which had been established by
them to obtain nonunion business at reduced cost. Ac-
cordingly, specific bid information is relevant either to
verify, or contradict the Employers' basic claim of under-
bidding -and it should be produced. A mere list of jobs on
which any given employer had submitted a bid is worth-
less in substantiating or undercutting the Respondents'
basic argument on this point. However, extending the
scope of the request from 1981 back to 1979 requires the
striking of a balance at a point where diminishing rel-
evance becomes overshadowed by increasing burden-
someness. One additional year, namely the calendar year
1980, should be sufficient to give the Union a clear pic-
ture of how and whether the Respondents' bidding posi-
tion was undermined by related nonunion competitors.
George's request for a definition of "competitive" is
simply an effort to argue a point and lies well beyond
the scope of information, which, is all that the Respond-
ents can be required to produce. The names of strike re-
placements, together with their wages, fringe benefits,
and dates of hire and termination, are closely relevant to
the issues in this case and to the obligation of the Union
to protect the rights of its members to reinstatement and
backpay. Accordingly, it should be produced. As there is
BUFFALO CONCRETE 855
legitimate employer concern about the safety and well-
being of these replacements and because the addresses of
such individuals provide no insight as to their rights as
employees or their.status as bona fide replacements, I
would not require a disclosure of this information. .
With respect to the Union's contention that many of
the Respondents' alleged competitors were nonunion.or-
ganizations which they somehow established, sponsored,
or controlled, the evidence adduced in this record shows
a less than arm's length relationship between some of
these Respondents and various named nonunion concrete
Companies Whether these relationships were, or are,
close enough to warrant a Ifrnding that the companies in
.,question are alter egos within the meaning of Board
law 111 is not before me, nor was the legal, as distinct
from the' economic, aspect of these relationships an es-
sential element of George's contention. The question 'at
issue at the bargaining table was the genuineness of the
Respondents' contention that these companies were com-
petitors and were taking away business. In light of the
evidence in this record, it cannot be said that the Union's
demand for information concerning these companies was
frivolous or had' no substantial basis in fact. In light of
close relationships between Super, Buffalo, Maloney, and
Howat and the companies which George felt were their
double-breasted counterparts, his request was not in the
nature of a fishing expedition and his contentions were. at
least arguable if not completely grounded. Accordingly,
there is a solid basis for holding that the information he
requested was and is relevant to assisting the Union in
properly performing its function as bargaining agent, in
resolving the issues confronting it during negotiations
and it should have been produced. Leonard B. Hebert Jr.
& Co, 259 NLRB 881 (1981), enfd. 696 F.2d 1120 (5th
Cir. 1983); Doubarn Sheet Metal Co., 243 NLRB 821
(1979). The failure of these four Respondents to produce
the information requested by George violated Section
'8(a)(1) and (5) of the Act.
During and following the strike, various Respondents
supplied the Union with bits and pieces of what it had
asked for but the process of the requested data was a
painful and- attenuated one. Certainly the consolidated
profit and loss statement which they furnished, showing
the aggregate financial position of all six Companies, fell
far short of the Respondents' obligation under the Act,
not only because the document was uncertified but also
because the Union was entitled to individual certified
statements for each Company. Stanley Building Co., 166
NLRB 984 (1967). Other information- supplied may, in
part, have satisfied the Respondents' obligation, but
whether and to what extent this obligation has been dis-
charged is a matter best left to the compliance stage of
this proceeding.' It is 'established law that compliance is.
not a defense to a Board order, so partial compliance has
even less 'standing. Accordingly, I will recommend that
an' order be issued herein requiring the- Respondents to
supply the Union with all relevant information it request-
ed to assist it in performing its duty as bargaining agent.
NLRB v. Mexia Textile Mills, 339 U.S. 567 (1950).
" See for example Hagaman Underground Construction , 253 NLRB 60
(1980), Peter Kiewit Sons ' Co ; 231 NLRB 76 (1977)
II. THE CAUSAL CONNECTION BETWEEN THE
RESPONDENTS' FAILURE TO PRODUCE RELEVANT
INFORMATION AND THE STRIKE OF MAY 27, 1983
It is also, well settled that if a strike is caused, iii whole
or in part, by an unfair labor practice committed'by an
,employer, the strike is an unfair labor practice strike and
employees enjoy a right of reinstatement upon request at
the conclusion thereof, even though permanent replace-
ments have been hired to take their places. This charac-
ter is accorded to such a strike even though the unfair
labor practice committed by the employer is not the pri-
mary cause of the strike and even though there may
have been other issues of an economic nature which con-
tributed to bringing- it about. Juanita Packing Co., 182
NLRB 934 (1970); Larand Leisurelies, 213 NLRB 197
(1974); C & E Stores, 221 NLRB 1321 (1976); National
Fresh Fruit Co., 227 NLRB 2014 (1977); Pick-Mt. Laurel
Corp., 239 NLRB 1257 (1979) (revoked by 259 NLRB
302 (1982). In this case,' there is little-doubt that one'of
the contributing factors to the May 1982 strike was the
continued insistence rof the Employers upon "take
aways',' in the area of overtime pay enjoyed by their em-
ployees under the 1979-1982 agreement. Despite a -rapid
bailing out by. the employers on many of their original
economic proposals between April 19 and May 26, their
.insistence upon a substantial modification of overtime
.pay, as broadly defined, remained on, the table when the
strike began. So did George's unfulfilled request for fi-
nancial data justifying the "take aways." George was re-
peatedly importuned by Willcox to exercise leadership
by convincing his membership to accept the Respond-
ents' "take away" demands for the good of the order,
but George's idea of leadership was that he was unwill-
-ing to lay his -prestige as union president on the line in
support of the companies' proposals unless and until he
had verification that such, "take aways" were truly nec-
essary. Such verification never came, and George told
his membership on at least two different occasions, when
a strike decision was under consideration, that he was
unwilling to recommend the Respondents' various pro-
posals unless and until he saw the "books" which justi-
fied those proposals. There is little doubt that the Re-
spondents' refusal to provide the Union with requested
financial information was a material cause in bringing
about the strike which began on May 27. Since that re-
fusal was an unfair labor practice, the strike which-was
caused, at least in part, by that refusal was an unfair
labor practice strike. Lien Chemical Co., 241 NLRB 403
(1979).
III. THE FAILURE OF THE RESPONDENTS TO PROVIDE
TIMELY REINSTATEMENT TO RETURNING STRIKERS
In light of the above finding that the -strikers were
unfair-labor practice strikers, it is not necessary to delve
at any length into the issues raised by the parties in the
reopened proceeding. The case was reopened by the
General Counsel for the purpose of presenting evidence
of unfair labor practices stemming from an -alternative
theory of liability, namely asserted violations committed
by four of the six Respondents in failing to recall-certain
strikers in order of seniority or in failing to give immedi-
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ate recall to certain shop stewards entitled to supersen-
iority under the terms of the expired contract . In review-
ing this aspect of the case , it• is well to point out certain
general principles governing the recall of strikers in the
status they enjoy under the terms of this decision.
Where replacement is not at issue , the rights - of eco-
nomic strikers and unfair labor practice strikers to rein-
statement are identical. Universal Insulation Corp., 149
NLRB 1397 (1964); Colony Material, 134 NLRB 1347
(1962); W. C. McQuaide, Inc., 220 NLRB 593 (1975);
Wilkinson Mfg. Co. v. NLRB , ' 456 F . 2d 298 (8th Cir.
1972). Normally , an employer faced with an uncondition-
al application for reinstatement by unfair laborpractice
strikers has five day 's' in which to accommodate the re-
quest . As -the Board pointed out in Drug Package -Co.,
228 NLRB 108 at 113 (1977), "Traditionally the Board
has commenced backpay five days after the striker's
offer to return . We believe that the 5 -day period is justi-
fied as providing a reasonable period of time for employ-
ers to accomplish those administrative tasks necessary to
the orderly reinstatement of the unfair labor practice
strikers and to accord some consideration to the replace-
ment employees who must be terminated ." See also
Crane Co., 244'NLRB 103 (1979)._ Following these prin-
ciples, it would appear that none of the Respondents
herein was under any ''obligation to accede to George's
request on July 15 until Tuesday morning , July 20., How-
ever, faced with George 's request , it was incumbent
upon the Respondents ' to communicate an- offer of rein-
statement to returning strikers so that they might , be
available for work on ' that date . J. H. Rutter-Rex, 158
'NLRB 1414 (1966), W. C. McQuaide,.237 NLRB 177
(1978):
About noon on July 16, '17 employees of Buffalo came
to the company office and met with James Russ, Buffa-
lo's president , and Robert Hornyak , Buffalo 's. safety di-
rector . They asked to go back to work . At this time,
Buffalo had hired about 25 to 27 replacements, all of
whom were working . Russ told the men that he did not
have vacancies for everyone and said that he had to con-
sider the rights of replaced employees in reinstating' sink-
ers. He learned from the dispatcher that -Buffalo -had
need of five drivers the following morning, a Saturday,
and offered the 'work to the assembled drivers. He re-
ceived no takers . The men said that they would-meet
him at the gate the following Monday morning. Later
that day, five individuals-F. Butler, Spenser , T. Butler,
Vernon, and Stiltner-contacted Hornyak individually
and told him they would work. They were put to work
on July 17 and continued to work thereafter . These men
occupied seniority, rankings 4, 10, 17, 22, and 27. On
Monday ', July 19 , Russ met a group of drivers' at the
gate . He' said that the drivers who worked on Saturday
would continue to -work and that ' he had room : for four
more . He informed the drivers that , - from that point for-
ward , he would reinstate by seniority as jobs : became
available through attrition . He then reinstated -the three
additional senior ' men on Buffalo 's May 24 roster,
Howard , Lusby , and Wade, and also - rehired the number
eight driver, Cooley , who is the shop steward. Thereaf-
ter, Buffalo continued to reinstate strikers throughout the
summer and early fall. Manning , J. Butler, Cofield and
Gillespie , whose names appeared on the May 24 roster,
never returned to work on a permanent basis.
I conclude , that Buffalo offered full reinstatement to
five permanent positions to assembled employees on July
16, 1982 , and that the offer ,was not accepted . Later the
five individual strikers applied for and were assigned to
work on Saturday;' July 17 . I -think that Russ made it
clear to the assembled employees that he was not merely
offering a day 's work but was offering permanent rein-
statement and, in fact , permanent reinstatement is what
those five individuals actually received . The assembled
drivers, including their shop steward , made it clear on
July 16 that they'Would - not return to work individually
until everyone returned to work, thereby effectively con-
ditioning the telegraphic offer which George had sent to
Buffalo and the other employers the previous day. Inas-
much as a steward was present and spoke ' and acted in
concert with the men who participated in this meeting,
their action became the action of the Union . Under the
5-day rule discussed above , Buffalo was under no obliga-
tion to reinstate any employees until July 20 . Assuming,
without at all deciding , that Buffalo was under an obliga-
tion to return strikers in order of seniority , Russ' offer on
July 16 ' satisfied this obligation and the refusal of 'the
Union and the assembled employees to accept employ-
ment , except on a mass basis , entitled him thereafter to
hire from among ' returning strikers anyone who might be
willing to make himself available . Russ ' further action on
July 19 at the plant gate, reinstating the steward and the
three senior individuals present , also complied both with
the seniority and superseniority provisions of the expired
contract . Concerning the first nine reinstated employees,
Buffalo acted in compliance with the law and its under-
taking with the Union. - -
It was on July 20 that Buffalo ran afoul of the law. It
is well settled that the failure or refusal to reinstate
unfair labor practice strikers to available jobs, when re-
quested, is a violation of Section 8(a)(1) and (3) of the
Act. The fact that the job has been filled by a permanent
replacement is no , defense . The replacement simply-_has
to be discharged- or, laid off, if necessary , to make room
for the returning striker . On July 20 , approximately 20
men on the roster had not been reinstated but about 25
to 27 replacements were still on the payroll. In light of
these facts , any issue respecting the obligation to rein-
state according to seniority is moot . Under those circum-_
stances, I conclude that , by failing to offer reinstatement
to these . individuals as of July 20 , Buffalo violated Sec-
tion 8(a)(1) and (3) of the Act. Buffalo has interposed
certain defenses with respect to certain employees, who
,-were ultimately rehired , most importantly unavailability
for work: or the fact that certain individuals had interim
earnings during the summer of 1982 . For the most part,
these defenses bear on the quantum of backpay, if any,
which might ' be'owed to them, so, with one exception, I
leave such matters to the compliance stage of these pro-
ceedings. .
John Butler had been employed by Buffalo for about
19 years. Originally he was assigned to drive a mixer.
During the last 7 years or so'of employment,-he worked
in the yard as a loader. This job entails driving a loader.
BUFFALO CONCRETE 857
It also involves many other tasks, such as greasing equip-
nient and climbing ladders and catwalks for the purpose
of inspecting and performing maintenance on Buffalo's
yard equipment. In the spring of 1981, Butler injured his
arm on a turn gate and was off work for nearly a year,
returning to the job' in March 1982 when he exhausted
his temporary workmen's compensation benefits. He con-
tinued to work until the strike began in late May.
During the 2 months or so that he was back at work,
Butler complained from time to time about his hand and
was having difficulty in 'doing some of the heavier tasks
assigned to him, 'such as squeezing a grease gun. He also
refrained from climbing ladders and catwalks because he
was afraid that his weakened hand would not support
him in making such climbs. During the strike his job was
assigned to replacements Cochran and Gunn. After the
strike, Butler was not reinstated. In July, just as the
strike was winding down, Butler .applied for and re-
ceived a workmen's compensation award of permanent
partial disability in the amount of 25 percent. Respondent
Buffalo claims that it was justified in not reinstating
Butler because he was unable fully to perform the job to
which he was assigned.
Despite the fact that he testified at the reopened hear-
ing, John Butler was not named in the new complaint
nor was any argument made on his behalf in the General
Counsel's supplementary brief., While Butler was rehired
and assigned to perform limited duties before the strike,
his' effort in seeking and obtaining a permanent partial
disability award during the strike clearly justifies Buffa-
lo's determination that he was not fit for duty after the
strike. I so find and conclude.
Under the above-recited 5-day rule, Howat also was
under obligation to offer to all of its former drivers full
and immediate reinstatement by July 20.12 Its prestrike
seniority list contained the names- of 21 drivers. The
record is silent about the number of replacements hired
by Howat during the strike. On July 19, eight or nine
Howat drivers showed up at its Arlington, Virginia load-
ing site. Company President Morauer went to the site,
told the assembled drivers that he had not heard any-
thing from ' the Union, but informed them that he had
four openings. He offered the openings to the drivers
present and they declined'. He told them that the jobs
would be open the following morning and that the four
senior drivers to appear and claim them would be rein-
-stated. The next day, seven drivers showed up. The
three senior drivers-who appeared were hired along with
a fourth man. who had specialized experience operating
tractor trailers. Thereafter, Howat continued to hire re-
turning strikers as vacancies became available. All driv-
ers on the prestrike seniority list were ultimately reinstat-
ed, with the exception of one driver who did not return.
In addition to its obligation to reinstate all of the driv-
ers on July 20 for whom work was available, discharging
if necessary replacements who had been hired during the,
strike, Howat was also obliged to make a bona fide effort
12 There is evidence in the record that, by July 19, Howat had not
actually received the Union 's mailgram unconditionally offering to return
strikers to their jobs However , the offer in question was served on Will-
cox, the attorney for each of the Respondents , and such service is tanta-
mount to service upon each Respondent.
to contact former strikers, notifying them of the avail-
ability of jobs on this 'date. By- failing and refusing to re-
instate unfair labor practice strikers' on July 20, 1982,
Howat violated Section 8(a)(1) 'and (3) of the Act. To
the extent that no work was available,-even after the dis-
charge of replacements, or that drivers were not or
could not have been reinstated because of injuries or fail-
ure to appear after timely 'notice, or' that some other
similar defense may be available to Howat to mitigate
backpay due and owing, 'such matters should be left to
the compliance stage of these proceedings.
The new complaint also alleges that Silver Hill and
District Concrete 'failed to observe the superseniority
clause in'the expired contract in delaying the reinstate-
ment of their respective shop stewards, Richard Brooks
and Joe R. Johnson. In light of the above-recited finding
that all strikers were unfair labor practice strikers, it is
not necessary to resoive the question of whether this
provision of the expired contract survived the termina-
tion date or whether these employees were singled out
for special discrimination Silver Hill and District were
obligated to return all striking employees, including
Brooks and Johnson, on July 20 and their 'failure to do
so constitutes a violation of Section 8(a)(1) and (3) of the
Act. Any defense relating to unavailability of work after
the discharge of replacements was effectuated affects
only the quantum of backpay due and 'owing to strikers
whose reinstatement occurred after that date and, as in
the cases of Buffalo and Howat, should be left to the
compliance stage of these proceedings.'_
IV. THE REFUSAL OF SUPER TO REINSTATE CHARLES
JOHNSON
Charles Johnson was a mixer driver who went. on
strike when the walkout began on May 27. As. detailed,
supra, Johnson was present at a picket line during the
first day of the strike when it succeeded in blocking the
entrance to the plant temporarily so that a truck was
prevented, for a matter of moments,, from leaving the
plant. Johnson was also present or near the site of an as-
sault which was committed on June 8 by a fellow striker
upon a nonstriking employee. Both • events were relied
upon by Super in support-of a letter, written to Johnson
on July 22, which denied him reemployment "because of
your acts and/or threats of violence, harassment,, and
property damage during the strike, damaging to the
Company and its employees." ' -
In determining the right of strikers to reinstatement at
the conclusion of a strike and the right of an employer to
discharge strikers for strike-related misconduct, . the
Board distinguishes between momentary "acts of animal
exuberance" and flagrant misconduct which is so "egre-
gious" as to require subordination of an employee's pro-
tected-rights in order to vindicate the broader interest of
society as a whole. W. C. McQuaide, 220 NLRB 593
(1975), enfd. in part 552 F.2d 519 (3d Cir. 1977); Over-
head Door Corp., 261 NLRB 657 (1982). Not every act of
strike-related misconduct justifies a denial of reinstate-
ment at the conclusion of a strike. 'The momentary
blocking of cars by pickets patrolling in front of a struck
plant is insufficient to warrant a denial of reinstatement.
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Elmira Machine & Works, 148 NLRB 1695 (1964);
Mosher Steel Co., 226 NLRB 1163 (1976); Coronet Casu-
als, 207 NLRB 304 (1973); Golay & Co. v. NLRB, 371
F.2d 259 (7th Cir. 1966). To permit a finding that a strik-
er has engaged , in conduct sufficiently egregious to justi-
fy a denial of reinstatement, there must be evidence that
the striker himself was personally engaged in the miscon-
duct. Mere presence at a picket line or some other place
where strike misconduct has occurred is insufficient to
permit an employer to discharge a striker. General Tele-
phone Co., 251 NLRB 737 (1980); Moore Business Forms,
224 NLRB 393 (1976); Gold Kist, 245 NLRB 1095
(1979); MP Industries, 227'NLRB 1709 (1977).
Tested by these principles , the incident on the first day
of the strike involving the temporary blocking of a
driveway at the'Super plant is an insufficient basis to jus-
tify the discharge of Johnson . Not only was the incident
a relatively trivial one but- there is no clear proof of per-
sonal responsibility on the part of Johnson for the inci-
dent . The beating which took place on Fourth Street,
N.E., on June 8 at the B Frank Joy Street excavation
job is another matter . Worthington's assault ' on Ecton,
using a dangerous weapon and inflicting sufficient injury
on Ecton to require his hospitalization , was an act of se-
rious misconduct . It is true that Johnson did not person-
ally participate in the beating, nor is there proof that he
was immediately present when the fight was in progress.
However, as soon as the fight was- over , Johnson ap-
peared at or near another Super concrete mixer driven
by Brown and told Brown not to get on the radio. Thus,
by warning or instructing Brown not to summon help,
either to terminate the incident or to obtain medical as-
sistance for Ecton ,_ Johnson deliberately associated him-
self with Worthington 's activity as an accessory after the
fact . Thus, he should bear the onus that attaches to Wor-
thington 's egregious misbehavior . Accordingly, I con-
clude that Super was- justified in denying reinstatement
to Johnson on the basis of this incident, and that so much
of the consolidated complaint which alleges a violation
by Super for discharging Johnson should be dismissed.
See K & K Transportation Corp ., 262 NLRB 1481 (1982).
V. THE DISCHARGE OF EDWARD A. WINTER BY
RESPONDENT MALONEY -
Winter was employed by Respondent Maloney as a
mixer driver for about 17 years and had achieved a posi-
tion of approximately 12th on the Maloney seniority
roster of 25 names. Winter was less than a stellar
.
. per-
former . Over this period of time , he had received repeat-
ed warnings for violating many different company
rules . 13 At least two of these violations were classified as
is The following is a list of written disciplinary slips which were
placed in Winter's personnel folder between 1976 and 1982
1 Jan 22, 1976-negligent damage to chute truck number 72 on
1/19/76-four day. suspension for violating Rule 24 (negligent
damage to company vehicle-a major offense) - r
2 Jan 11, 1977-three violations of company rules-four day sus-
pension for violating Rule 55 (a general article-failure to use good
judgment), Rule 26 (failure to report mechanical defect ' iii truck),
and Rule 55 (general article)
3 May 10, 1976-Reprimand for violating Rule 55 (accepting a
check in the wrong amount from customer on a C O .D delivery),
major offenses in the company handbook. All of the
warning slips which he received contained the printed
refrain that "further violation of the posted rules may
result in the termination of your employment with the
Company.',. Winter was also the subject of several cus-
tomer complaints, some of which were reduced to writ-
ing14 and placed in his personnel file and others of
which were merely etched' in the memories of manage-
ment personnel.15 Over the years, Winter also incurred
the enmity of some of Maloney 's bargaining unit person-
nel by his general attitude and by engaging in fist fights
with some- of.them. Some years ago he was transferred
from the Rockville plant to the Terra. Cotta plant as a
result of a fight with a fellow employee in Rockville.
In the spring of 1982 , Winter was slow in responding
to a recall from winter layoff so Respondent Maloney
decided that it would not recall him at all. Winter filed a
grievance - concerning this decision and, after the inter-
vention of George, he regained his old position. John T.
Maloney testified that, d"uring" his employment, Winter
filed many grievances, including some which Maloney
4 May 3, 1976-Reprimand for violating Rule 26 (being in shop
without permission) -
5 July 26, 1976-Reprimand for violating Rule 55 (unspecified
customer complaint)
6 May 11, 1977-Reprimand for. violating Rule 2 (driving truck
over water pipe at the Terra Cotta plant and breaking pipe)
7 Sept 9, 1977-Reprimand for violating Rule 29 (going to a con-
struction job without bringing emulsion) -
8 Sept 9, 1977-Reprimand for violating Rule 37-B (improper use
of two-way radio in truck)
9 Oct 10, 1978-Reprimand for violating Rule 26 (failure to make
prompt report of truck defect) -
10 April 9, 1979-Reprimand for violating Rule 28 (failure to
know and use proper route'from ' plant to construction site-this is a
major offense) .
I I Aug 24, 1981-Reprimand for violating Rule 29 (forgetting to
bring emulsion to jobsite)
12 June 11, 1981-Reprimand for violating Rule 2 (pulled water
hose off left lane of Terra Cotta plant)
13 July 29, 1981 -Reprimand for violating Rule 43(a) (forgetting
to have customer sign delivery ticket)
14 Aug 24, 1981-Reprimand for violating Rule 29 (forgetting to
bring emulsion to jobsite)
15 March 18, 1982-Reprimand for' violating Rule 55 (wasting
fuel because of failure to give full time and attention to fueling proc-
ess) .
16 April 1; 1982-Reprimand for violating Rule 26(b) (failure to
make prompt report of mechanical defect in truck) '
' 14 The following is a list of customer complaints found in Winter's
personnel file -
1 An undated complaint from S & .M Constructors complaining
that Winter was uncooperative in positioning his vehicle at the cus-
tomer's pump and requesting that he not be sent back to that job.
2 A complaint, dated March 3, 1979, from Forest City Dillon Pre-
cast Systems , Inc, complaining that Winter would not take orders at
the jobsite from Forest City personnel or their subcontractor and
stating that Winter would no longer be permitted on the site
3 A complaint , dated March 22, 1979, from Dominion Caisson
Corporation , asking that Winter never be sent back to their jobsite
4 A complaint , dated March 27, 1980, from Curtin & Johnson,
Inc, complaining about Winter's uncooperative attitude on their job
`and requesting that he not be sent back to their jobsite
115 Sales Manager Michael Uzzo testified to a verbal complaint in April
or May 1982 made by a superintendent of the -Charles Tompkins Co
which was engaged on a construction project for the National Geograph-
ic- Society The Tompkins ' job superintendent told Uzzo that Winter was
slow in making deliveries and had a bad attitude He asked Uzzo to keep
Winter off that job, but he declined to make a written complaint Uzzo
continued to send Winter to the Tompkins job.
BUFFALO CONCRETE . 859
might not personally be aware of. - John Maloney re-
counted several occasions during Winter's term of serv-
ice when he unsuccessfully attempted to counsel Winter
about the latter's job performance, only to have Winter
respond in a brusque and indifferent manner and to
refuse to discuss his shortcomings. John Maloney also
testified that Winter liked to pretend that he was a
lawyer, adding that Winter had taken up a disproportion-
ate amount of company time, in comparison' with any
other employees, because of the many grievances which
he had filed.
In this case, as in all cases in which a discriminatory.
discharge is alleged, the legality of the discharge does
not depend upon justification but upon motivation.
Throughout Winter's 17 years of employment, Respond-
ent Maloney had repeated cause to discharge Winter but
failed to do so. John Maloney admitted that perhaps he
should have fired Winter long ago but, for one reason or
another, he did not do so, and he publicly faulted himself
for being too soft hearted. "Finally," testified John Ma-
loney, "I had to give up hope." The dispositive feature
of this dispute is that Maloney did not give up hope on
Winter until after Winter had gone on strike.
For years the Respondent had condoned the same kind
of misconduct by Winter that it relied upon in the
summer of 1982 to discharge him. The two most recent
instances of Winter's misbehavior-his failure to make a
timely report of a mechanical defect on his truck and the
request of a contractor to keep him off a jobsite-were
no different in kind or degree than deficiencies which
Respondent Maloney had tolerated for years, so the
question necessarily arises as to why they had become in-
tolerable in June and July 1982. Respondent Maloney did
not inform Winter that he had been discharged until long
after most of its striking drivers, including those with less
seniority than Winter, had been reinstated. When Winter
showed up for work each morning and signed the work
availability sheet, nothing happened. When he asked why
he was not being put back to work,-the personnel direc-
tor could give him no reason. John Maloney testified
that it was not until sometime after the strike began that
he finally came to the decision to discharge Winter, but
it was not until October 19, after receiving correspond-
ence from George on the subject, that he finally in-
formed Winter and the Union of his decision and of the
reasons which assertedly prompted it. While Winter is in
a weak position to complain about discourtesy on the
part of the Company, the Respondent's behavior in fail-
ing to tell Winter that he was terminated and in failing to
give him a reason for its action until months after the
event gives rise to a suspicion that its belatedly asserted
reasons were not its real reasons. However, the ultimate
question in assessing the history of Edward Winter and
Respondent Maloney is what was the proverbial "straw
that broke the camel's back." Between the latest acts of
Winter's misconduct and the time when Respondent Ma-
loney finally decided to discharge him, nothing had oc-
curred except the fact that Winter had gone on strike.
The grounds asserted as a -basis for the discharge existed
prior to the strike but those grounds failed to produce a
discharge, even though some of them were deemed seri-,
ous by the Respondent and all of his acts of misconduct
had resulted in warnings of future termination. It is clear
that the- event which caused'- the discharge was not the
employee's admittedly poor job record but the fact that
he joined in'the protected concerted activity of striking
his employer. Accordingly, by discharging Winter,-Re-
spondent-Maloney violated -Section 8(a)(1) and (3) of the
Act. I so find and conclude. Fisher Stove Works (Gordon
Cox), 235 NLRB 1032, at 1038 (1978); Markle Mfg. Co.
of San Antonio, 239 NLRB 1142 (1978). . -
- On the foregoing findings of fact and upon-the entire
record herein considered as a whole, I make the follow-
ing
CONCLUSIONS OF LAW
1. Respondents Washington Materials, Inc., t/a Buffalo
Concrete; District Concrete Company, Inc.; Howat Con-
crete Company, Inc.; Maloney Concrete Company;
Silver Hill Concrete Corporation; and Super Concrete
Corporation are, respectively, employers engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act. . -
21 Drivers, Chauffeurs, and Helpers Local Union No.
639, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen, and Helpers of America is a labor orga-
nization within the meaning of Section 2(5) of- the Act.
3. All truck drivers, dump truck drivers, and plant and
yard helpers employed by each respective respondent,
excluding guards, professional employees, all other em-
ployees, and supervisors as defined in the Act, constitute
a union appropriate for collective bargaining within the
meaning of Section 9(b) of the Act.
4. At all times material herein the Union has been the
exclusive collective-bargaining representative of all the
employees described above in the .units found appropn-
ate in- Conclusion of Law 3 for purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
5. By refusing to honor a request 'of the Union to in-
spect their books and records after claiming that they
were financially unable to agree to .the Union's collec-
tive-bargaining demands, the Respondents, and each of
them, violated Section 8(a)(5) of the Act.
6. The strike of Respondents' employees which took
place between May 27 and July 15, 1982, was caused or
prolonged by the failure and refusal of the Respondents
to permit the Union to inspect their books and records,
as set forth above in Conclusion of Law 3, and the em-
ployees who participated in the strike were unfair labor
practice strikers.
7. By failing and refusing to grant timely reinstatement
to unfair labor practice strikers upon their unconditional
request to return to work, Respondents Buffalo, Howat,
Silver Hill, and District violated Section 8(a)(3) of the
Act.
8. By its discriminatory refusal to reinstate Edward A.
Winter and by discharging Winter because of his mem-
bership in and activities on behalf of the Union, Re-
spondent Maloney violated Section 8(a)(3) of the Act.
9. By the acts and conduct set forth above in Conclu-
sions of Law 5_7, and 8, the Respondents have violated
Section 8(a)(1) of the Act.
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
REMEDY
Having found that the Respondents, and each of them,
have committed certain unfair labor practices, I will rec-
ommend that they be required to cease and desist there-
from and to take other affirmative actions designed to ef-
fectuate the purposes and policies of the Act. The rec-
ommended Order will require that the Respondents be
required to furnish the Union with certain requested fi-
nancial data, that they grant full and complete reinstate-
ment to returning unfair labor practice strikers, that Ma-
loney grant full and immediate reinstatement to Edward
A. Winter to his former or substantially equivalent em-
ployment, and that they make them whole for any losses
in wages or benefits which they may have suffered by
reason of the unfair labor practices found herein, with in-
terest thereon at the adjusted prime rate used by the In-
ternal Revenue Service for the computation of tax pay-
ments. Olympic Medical Corp., 250 NLRB 146 (1980); Isis
Plumbing Co., 138 NLRB 716 (1962). I will also recom-
mend the posting of the usual notice, advising employees
of their rights and of the results in this case.
[Recommended Order omitted from publication.]