Co-Con, Inc.

National Labor Relations Board - Board Decisions

Sep 22, 1978

238 N.L.R.B. 283 (N.L.R.B. 1978)

('10, herein called the Unions, and a complaint issued
thereon on January 10, 1978. The charge in Case 28 CA
4699 was filed on January 25, 1978, by the Unions. A com-
plaint, which was amended at the hearing, issued thereon
on February 16, 1978. The two cases were consolidated by
order dated February 28, 1978. The complaints allege that
Co-Con. Inc.. herein called Respondent. violated Section
8(a)(1) and (3) of the National Labor Relations Act. as
amended.
Co-Con, Inc. and International Union of Operating
Engineers, Local 953, AFL-CIO; International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Local Union 492
(Ind.); and Laborers' International Union of North
America, Local : 16, AFL-CIO. Cases 28-CA
4630 and 28-CA 4699
September 22, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENILI.O
AND TRUESDAILE
On July 17, 1978, Administrative Law Judge Rich-
ard D. Taplitz issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, and Respondent filed
an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the complaints be, and they hereby are,
dismissed in their entirety.
I The General Counsel has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative l.aw Judge's resolutions with respect to credibil-
ity unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect. Standard DOn WaIll Products, Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951) We have carefully
examined the record and find no basis for reversing his findings.
DECISION
SIAsIV.1MNI 01F riI CASE
Ri(HARD D. TAPIIrz, Administrative Law Judge: This
case was heard at Silver City. New Mexico on March 9 and
15-17, 1978. The charge in Case 28 CA 4630 was filed on
December 2. 1977, by International Union of Operating
Engineers. Local 953. AFL-CIO: International Brother-
hood of Teamsters. Chauffeurs, Warehousemen and Help-
ers of America. Local Union 492 (Ind.), and Laborers' In-
ternational Union of North America, Local ; 16, AFL
Issues
The primary issues are:
1. Whether Respondent violated Section 8(a)(1) of the
Act by coercively interrogating employees, creating the im-
pression of surveillance, abusing employees because they
were subpenaed to a Board proceeding. and threatening
employees with job loss and other reprisals because of their
union activity.
2. Whether Respondent's employees engaged in an un-
fair labor strike to protest Respondent's unfair labor prac-
tices and whether Respondent violated Section 8(a)(3) and
(I) of the Act by refusing to recall unfair labor practice
strikers after they offered to return.
3. Whether Respondent violated Section 8(a)(3) and (I)
of the Act by notifying employees Carrasco and Arguello
that they were ineligible for reinstatement because of mis-
conduct during the strike.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses. to argue orally. and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of the
General Counsel and Respondent.
Upon the entire record of the case' and from my observa-
tion of the witnesses and their demeanor. I make the follow-
ing:
FINDINO(lS cOF FACI
1. THl BtUSINISS OF RFSI'ONDFINT
Respondent's principal office and place of business is at
524 Montano Road, N.W. Albuquerque. New Mexico. It is
engaged in light engineering work at various sites in New
Mexico and Texas. One of those sites is an open pit mining
operation near Fierro, New Mexico, where it is engaged in
the removal of overburden to allow access to an open pit
copper mine. The Fierro mine is the only facility involved
in this proceeding. During the past year Respondent pur-
chased goods valued in excess of $50,000 which were trans-
ported in interstate commerce and delivered to its places of
business in New Mexico directly from suppliers located in
States other than New Mexico. During the same period
Respondent sold and shipped goods or provided services in
interstate commerce valued in excess of $50,000 directly to
customers located in States other than New Mexico. Re-
spondent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
I Certain errors in the transcript herein have been noted and corrected.
238 NI.RB No 41
CO-CON. INC. 283
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATIONS INVOLVED
The Unions are labor organizations within the meaning
of Section 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent performs highway, utility and various types
of light engineering work in New Mexico and Texas. It
employs 400 or 500 employees. At the times material
herein, Respondent was working on three jobs in the Silver
City, New Mexico area. One was a water transmission line,
another a sewer job, and the third involved work at a min-
ing site in Fierro, New Mexico. Respondent's practice was
to transfer employees when needed between the projects.
The job involved in this proceeding was the one in Fierro,
New Mexico. At that site, Respondent was performing ser-
vices with some 23 employees for UV Industries, Inc.,
herein called UV. UV operates both an underground and
an open pit copper mine. Respondent, pursuant to its con-
tract with UV, strips overburden from the open pit mine.
In the spring of 1977, Respondent's employee, Sam Car-
rasco, spoke to Local 953 Operating Engineers Representa-
tive Morce about organizing Respondent's employees at the
Fierro site. He also spoke to employees, but as they showed
no interest the matter was dropped. Carrasco again sought
to interest employees in unionization in September 1977,
and he obtained a number of authorization cards. On No-
vember 4, 1977, the Unions filed a petition for an election in
Case 28-RC-3396.2 Respondent took the position that the
unit as set forth in the petition was inappropriate, and,
rather than proceed to a hearing, the Unions withdrew the
petition. The complaint herein alleges that during Novem-
ber 1977, Respondent violated Section 8(a)(1) of the Act by
coercively interrogating employees, creating the impression
of surveillance, abusing employees because they were sub-
penaed to a Board proceeding, and threatening employees
with job loss and other reprisals because of their union ac-
tivity. On December 5, 1977, Respondent's employees en-
gaged in a strike allegedly in protest against the Respon-
dent's unfair labor practices.3 Thereafter the Unions
notified Respondent that the strikers they represented de-
sired to return to work, and some of the strikers were re-
called. The complaint alleges that the strikers were unfair
labor practice strikers and that Respondent violated the Act
by not affording them the rights they would have as such.
In addition, the complaint alleges that the Respondent vio-
lated the Act by disqualifying employees Carrasco and Ar-
guello from reemployment because of alleged misconduct
on their part during the strike.
2 The unit sought was "all Operators, Teamsters, Laborers. Mechanics.
Welders and Oilers, employed by Co-Con, Inc., at the stripping operation on
the open-pit copper mine located near Fierro, New Mexico, excluding all
employees employed by the Employer at locations or projects other than the
open-pit copper mine located near Fierro, New Mexico, office clerical em-
ployees, guards, watchmen and supervisors as defined by the Act as
amended."
The strike was accompanied by a picketing. On January 3, 1978, before
the end of the first 30 days of picketing, the Unions filed a new petition for
an election in Case 38 RC 3420 seeking an election in the same bargaining
unit. That petition is still pending.
B. The Alleged Violations of Section 8(a)(1) of the Act
1. The testimony of Carrasco and Arguello
Sam Carrasco 4 testified that on about November 5, 1977,
he had a private conversation on the jobsite with Respon-
dent's job superintendent, L. L. McCartney.' Carrasco
averred that McCartney asked if he knew of any union
activity: that McCartney pointed to employee Jose (Joe)
Jaurequi and said that Jaurequi was causing the problems
and that he (McCartney) was not going to put up with it;
and that McCartney said that he might put on a whole new
crew and get rid of all of them. Carrasco also testified that
McCartney said that it was Johnny Morce who was doing it
and 'spreading bullshit' and that Morce had done it before.
McCartney, in his testimony, flatly denied having any such
conversation with Carrasco. As between McCartney and
Carrasco I have no hesitation in crediting McCartney. As is
set forth in substantial detail below, Carrasco testified con-
cerning certain allegations that he engaged in misconduct
during the strike. His testimony in that regard was so utter-
ly unconvincing that I am compelled to conclude that he is
capable of distorting facts fobr his own advantage. McCart-
ney on the other hand appeared to be a careful, scrupulous
witness who was worthy of belief. I credit McCartney and
do not credit Carrasco.
A number of employees were subpenaed to appear at a
representation case in Case 28-RC-3396 on November 22,
1977.6 Carrasco and employee Joe Jaurequi were among the
employees subpened. Both of them showed their subpenas
to McCartney early on the morning of November 22. Car-
rasco testified that he showed his subpena to McCartnev;
that Jaurequi then came up to where they were standing:
that McCartney said he knew who two of the guys were and
he asked where the other five were: that McCartney said
that he was not going to put up with it; that he referred to
Jaurequi and said that Jaurequi was another one of the
guys who were stirring up "this bullshit" and that he was
going to get rid of him: that McCartney said that he was
going to wake up and have a whole new crew out there:
and that McC(artney wrote Carrasco's and Jaurequi's name
down on a pad. Jaurequi7 testified that he saw McCartney
on the job and told him of the subpena: that McCartney
said that there were five others who were supposed to ap-
pear in court and he asked who they were: and that Mc-
Cartney wrote down his name on a pad that already con-
tained Carrasco's name. Jaurequi further averred that
McCartney said that he (McCartney) was going to court
and someone had to represent the Company. McCartney
testified that Carrasco and Jaurequi approached him sepa-
rately. According to McCartney, Carrasco told him about
the subpena and he told Carrasco that he (McCartney) had
Carrasco and Arguello are the two alleged 8(a)(3) discriminatees. Both
participated in the December 5, 1977, strike and neither has been recalled.
I Marion Lee Smith, Respondent's president, is responsible for the overall
operation of Respondent. McCartney is Respondent's job superintendent at
the Fierro site and he reports to Smith. The complaint in Case 28-CA 4630
alleges, the answer in that case admits, and I find that McCartney is a
supervisor within the meaning of the Act.
I A conference took place at that time. though the hearing was not held
and the petition was withdrawn.
7 Jaurequi participated in the December 5 strike. lie has not been recalled.
284
CO-CON. INC
to go also. He averred that he had a similar conversation
with Jaurequi. McCartney acknowledged that he might
have written down the names of those individuals because
he kept track of anyone who was off the jobsite for any
period of time. Jaurequi did not corroborate the hulk of
Carrasco's testimony. and, as indicated above, I do not be-
lieve that Carrasco was a credible witness. As indicated be-
low, I believe that McCartney was a more reliable witness
than Jaurequi. However, even if McCartney did ask Jaure-
qui who else would be at the hearing, that question would
reasonably relate to McCartney's normal procedure for
keeping track of people who are off the jobsite.
Carrasco testified that he had another conversation with
McCartney later in the day of November 22. He averred
that he was present when McCartney asked employee
George Acosta why Acosta had signed an authorization
card. Acosta did not testify, and McCartney averred that he
did not make that type of inquiry to anyone. I do not credit
Carrasco. In addition. Carrasco averred that McCartney
asked him what he would do it' a picket line was put up:
that he answered that he knew where an oiling job was
available: and that McCartney replied that he guessed they
would have an opening for an oiler job there, too. McCart-
ney averred that he did not recall having any discussion
with C'arrasco about what might happen in the event of a
picket line. I do not credit Carrasco.
Arguello testified that sometime between November 18
and 27, 1977, McCartney approached him and said that if
the Union came in they were going on two 8-hour shifts. He
averred that he was not the one who brought up the subject.
At that time, employees were working a great deal of over-
time, and a second shift would have reduced the overtime.
McCartney testified that Arguello approached him and
asked whether there was a possibility of going on two shifts
if the Company went union. McCartney averred that he
responded by saying that the normal procedure for union
jobs in the mining industry in that area was to have 8-hour
shifts and that he did not know what the company policy
would be. As is set forth in the discussion of the misconduct
incidents below. I do not believe that Arguello was a credi-
ble witness. I do credit McCartney.
Arguello testified that 3 or 4 days after the incident de-
scribed above, he had a second conversation with McCart-
ney in which McCartney asked him whether he thought
there would be a picket line. McCartney denied asking Ar-
guello whether Arguello thought there would he a picket
line. I do not credit Arguello.
2. The testimony of Jose .laurequi and Robert C'. Gomez
Jose Jaurequi testified that he had a conversation with
McCartney in February 1977. when he was hired by Re-
spondent." Jaurequi testified that McCartney told him that
he did not have anything against the Union, but that par-
ticular job was strictly nonunion; that he told McCartney
that he was willing to work nonunion; that McCartney re-
peated that he did not have anything against the Union and
The original charge ',as filed on December 2. 1977. which was more than
6 months aiter that conversation, and there was no allegation in the com-
plaint that there was a violation of the Act at that time.
then said that if he found someone messing around with the
Union he would fire everyone and get a new crew: that he
told McCartney that he was a union member and that he
had a union card; and that he was hired. Though Jaurequi
gave a pretrial affidavit, that incident was not mentioned.
Jaurequi testified that he did not think it was important
at the time he gave the affidavit. McCartney testified that
he has told applicants for employment that it was an open
shop. He further averred that he normally makes such a
remark when he is asked by the employee and that he does
so because it makes no difference to Respondent if the ap-
plicant has a union card or not when they hire him. I am
unable to credit Jaurequi's testimony. His assertion that
McCartney told him that he (McCartney had nothing
against the Union and in the same conversation said that it'
he found anyone messing with the Union he would fire
everyone and get a new crew is difficult to believe. The
same is true of Jaurequi's assertion that McCartney made
such a threat and then hired him atter he (Jaurequi) openly
acknowledged his union membership. laurequi's testimony
that he didn't believe the incident was important enough to
include in his affidavit also sheds some doubt on his credi-
bility. Moreover, the incident occurred well before there
was any union activity on the site and it is not likely that
such remarks would have been made at that time.
In early December 1977, a union meeting was scheduled
at a bar in Hurley, New Mexico. Jaurequi testified that he
saw McCartney on the job on the morning before the meet-
ing: that McCartney asked him what he was going to say at
the meeting that night: that he said that he didn't know and
that he asked McCartney whether McCartney was going to
he there: that McCartney said that he was not and that if
he did go he would be kicked out: that McCartney also
asked him who the big union guy was that he was with the
other day: and that he replied that he did not know and
that it was the first time he met him. McCartney made no
reference in his testimony to that conversation. It is custom-
ary in the absence of contradiction to credit a witness' testi-
mon). However, in the instant case, I do not believe Jaure-
qui to be a credible witness. His testimony with regard to
his conversation with McCartney at the time of his hire was
not credible. There is no independent evidence to indicate
that his testimony w ith regard to the later conversation with
McCartney was any more credible. I do not credit Jaurequi.
See NV.L.R. B. s Walton Manufacturing Co. & Loganilille
Pants Co., 369 U.S. 404, 408 (1962); Penasquitos I'dlag,.
Inc. et al. v. N.L.R.B., 565 F.2d 1074 (C.A. 9, 1977).
Robert Gomez' testified that on the morning of Nosem-
ber 22. McC'artney spoke to him on the jobsite and asked
him what was going on concerning the signing of cards and
whether he knew anything about it. He averred that he
answered in the negative. Robert Gomez averred that Mc-
Cartney never spoke to him about the Union on any other
occasion. McCartney denied that he asked any employee
about signing cards. G(omez' demeanor on the stand was
not impressive. I believe that McCartney was a credible
witness and I do not credit Gomez.
'( Gomez participated in the December 5 strike tie has not been reinsat-
ed
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The testimony of John Nations, Benjamin Lockett, and
Reginaldo Dominguez
John Nations'0 testified that on about November 15,
1977, he was in the Manhattan Bar near the jobsite with
Ben Lockett when McCartney joined them. Nations
averred that they discussed the subject of going on strike
and McCartney said that if they went on strike or if they
went union there would be no more overtime because the
Union felt that if there was overtime there was room for
another man on the job. Nations further averred that Mc-
Cartney asked them both if they were for the Union; that
both said that they were not; and that McCartney said he
thought he knew who was trying to get the Union on the
job. Benjamin Lockett" testified that he was at the bar with
Nations and McCartney. In his initial testimony he averred
that he did not remember anything that was said. After
being shown an affidavit that he gave to the Union on De-
cember 6, 1977, he corroborated Nations' testimony con-
cerning McCartney's remark relating to loss of overtime.
Beyond that, his testimony substantially expanded on that
of Nations. He averred that McCartney asked them who
was pushing to get the Union in and said that he would
replace him if he found him. Lockett also averred that Mc-
Cartney said that under a clause in the contract with UV,
Respondent would close down after 10 days if there were
union troubles. Though Lockett denied any current recol-
lection, he acknowledged that in the affidavit he said that
McCartney told them that if the employees went union, he
could force them to work harder, that they had it made
now, and that they should have left well enough alone. Mc-
Cartney testified that he had a conversation with Carrasco
and Johnny Morce in a bar in November 1977 and that
Lockett may also have been there. He averred that Morce
asked him whether he (McCartney) had ever taken out a
union card and that he answered in the negative. He flatly
denied that he ever had a conversation in a bar concerning
union activities with Nations and Lockett. Lockett was re-
called to work before the date of the trial and he is now
working in a higher paying classification than he had before
the strike. The possibility of bias must therefore be consid-
ered in evaluating his rambling, confused testimony and his
obvious reluctance to testify against Respondent. However,
after considering the demeanor of both Lockett and Na-
tions and the discrepancies in their testimony, I am unable
to credit them over McCartney, whom I believe to be a
truthful witness. Lockett's loss of memory in his original
testimony appears to be an attempt to recant prior misstate-
ments rather than to seek favor with his employer. I credit
McCartney's denial.
Nations testified that a few days before the incident at
the bar, McCartney spoke to him on the jobsite and said
that the job would continue if they went on strike. He then
averred that he did not recall anything else being said.
Thereafter he testified that McCartney also said that after
10 days if a strike was not settled, a new contractor would
be brought in. I do not believe that Nations was a reliable
1" Nations participated in the December 5 strike and has not been reinstat-
ed.
I L.ockett participated in the December 5 strike. He was reinstated on
March 2, 1978.
witness and I do not credit his testimony. Lockett testified
that on December 6 he had a telephone conversation with
McCartney in which McCartney said something about the
contract providing that if they were on strike for a particu-
lar period of time, the job would be closed down. In an
affidavit that he gave the Union, he averred that McCart-
ney said that he would not be a bit surprised if Respondent
did not just shut the job down and move out. I do not
believe that Lockett was a reliable witness and I do not
credit his testimony.
The hearing in this case opened on March 15, 1978. Reg-
inaldo Dominguez, one of the strikers who had been rein-
stated, testified that the day before the hearing opened, he
was riding in a car with McCartney when McCartney told
him that both of them would be hauling no more rocks in
the pit after the court case was over. McCartney denied
making such a remark to any employee. Dominguez did not
testify concerning the context in which the alleged remark
was made. I credit McCartney over Dominguez.
4. Some comments on credibility
As indicated above, I have credited McCartney and dis-
credited a number of the General Counsel's witnesses with
regard to alleged Section 8(a)(1) violations. While I am re-
luctant to find that a number of witnesses have either made
up or distorted events, after observing the demeanor of
those witnesses and carefully evaluating their testimony, I
must do so in this case. On November 30, 1977, a strike
vote was taken at a union meeting. During that meeting
John Morce, business representative for Local 953 Operat-
ing Engineers told the employees that if they were not un-
fair labor practice strikers they could be replaced by the
Company. It is likely that that message reached some of the
employees even before the meeting. In their eagerness to
have the protection of an unfair labor practice striker status
I believe that a number of the employees were less than
candid or accurate in putting together a claim that McCart-
ney had violated the Act. While some of their testimony
may have been true, the parts I believe to be false were so
prevalent that there was little basis for sorting out the truth
from the falsity. The General Counsel cannot sustain a case
with such evidence. I shall therefore recommend that the
Section 8(a)(1) allegations of the complaint be dismissed.
C. The Strike
Company representatives, union representatives, and
some of the employees met at a prehearing conference on
November 22, 1977, before the representation case hearing
was scheduled to open. The parties were unable to agree as
to the scope of the bargaining unit, and on that day the
Unions requested withdrawal of the petition. During the
discussion Respondent's Attorney Poole told Union Attor-
ney Bloomfield that Respondent's contract with UV pro-
vided that UV had the option to cancel the contract in the
event of a labor dispute." Bloomfield said that the Union
i' This finding is based on the credited testimony of Respondent's pres-
ident, Marion Smith, who was present at the meeting. Neither Poole nor
Bloomfield testified. John Morce, a business representative for Local 953,
Operating Engineers, averred that Poole told them that the UV contract had
286
demand for recognition. The letter did not contain any indi-
cation that the strike was an unfair labor practice strike.
After the first week of the strike some of the strikers re-
turned, replacements were hired, and some of Respondent's
employees from other locations were transferred to the
site. By mailgram dated January 17, which was received by
Respondent on January 18, and a letter dated January 17,
1978, which was hand-delivered to Respondent on that
date, the Unions notified Respondent that a decision had
been made by the striking employees that they desired to
immediately return to work and that all striking employees
represented by the Unions unconditionally offered to re-
turn.' The letter from the Unions was somewhat confusing
in that it advised Respondent that all striking employees
"represented by the above named labor organizations"
were offering to return. The Union did not indicate whom it
represented, but instead annexed to that letter 15 separate
letters signed by individual employees," which stated "You
are hereby advised that I unconditionally offer to return to
work immediately." By letter dated January 31, 1978, Re-
spondent informed all of those employees except for C('ar-
rasco and Arguello that their jobs were not available at that
time or at any time since their offer to return and that if
they were still interested in their jobs, they would be con-
tacted when openings occurred. On January 24, one em-
ployee was recalled. Between February 6 and March 13,
1978, nine other employees who had left work on Decem-
ber 5, 1977, were recalled. Some employees were recalled
even though they had not signed individual letters asking to
return. Those employees had indicated a desire to return in
a manner other than the letter. As of the date of the trial, in
addition to Carrasco and Arguello, seven employees who
left work on December 5., 1977, and who had individually
asked to return, had not yet been reinstated."
The General Counsel's basic theory of the case is that the
striking employees were unfair labor practice strikers and,
as such, they could not be permanently replaced and were
entitled to reinstatement upon application. As found above,
they were economic and not unfair labor practice strikers.
As economic strikers, they were entitled to reinstatement as
openings occurred. N. L. R. B. v. Fleetwood Trailer Company,
t The text of the letter reads:
As you are aware, employees employed by your Company at the
strinpping operation located near the U.V Industnes, Inc. mine near
Fierro, N.M., are represented by the International Union of Operating
Engineers Local No. 953 AFL-CIO, Laborers International Union of
North America Local No. 16 AFL-CIO and Chauffeurs, Teamsters and
Helpers Local Union No. 492, The Employees have been on strike for
approximately five (5) weeks in protest of various unfair labor practices
committed by agents and representatives of Co-Con, Inc.
A decision has now been made by the stnking employees that the)
desire to immediately return to work. You are hereby advised that all
stinking employees represented by the above named labor organizations
hereby unconditionally offer to immediately return to work.
n4 Those employees were: Robert Gomez, Sam Carrasco. Weldon Forten-
berry, John Nations, Benjamin Lockett, Charles Jones, Rolando GComez,
Arturo Chavez. Max Alvarez, Enc Ramos, Jose Jaurequi, Robert Montoya,
Reginaldo Dominguez, John Schenk, and Manuel Arguello.
is Those employees are Max Alvarez, Arturo Chavez. Robert G(omez,
Robert Montoya, John Nations, John Schenk, and Jose Jaurequi. The em-
ployees who did return were: George Acosta on January 24, 1978. Roy Bevel
on February 6, Weldon Fortenberr D on February 13, Juan Herrerra on Feb-
ruary 10, Reginaldo Dominguez on February 14, Rolands Gomez on Febru-
ary 20, John Padilla on March 7. Ben LocketI on March 2, Enc Ramos on
March 2. and Charles Jones on March 13. Acosta and Jones returned at
another site in Silver CitS.
could strike. There was no discussion during the meeting
about any alleged harassment or threats by McCartney.
On November 30, 1977, the Unions held a meeting with
16 or 18 of Respondent's employees, at which the employ-
ees voted to go on strike. Three witnesses testified as to
what occurred. They were Ralph Chavez, assistant business
agent for Local 492 Teamsters: John Morce. business agent
for Local 953 Operating Engineers: and employee Regin-
aldo Dominguez. Though that testimony is somewhat con-
fused and it is difficult to determine the sequence in which
things were said, it appears that at some point in the meet-
ing, employees Arguello, Carrasco, Jaurequi, and Nations
told the employees about various threats that McCartney
allegedly had made; most of the time at the meeting was
spent discussing economic matters, such as fringe benefits:
and at some undetermined point at the meeting Morce told
the employees that if they weren't unfair labor practice
strikers they could be replaced. It also appears that some of
the employees expressed a fear that their jobs were in dan-
ger.
On December 5, 1977, the Unions called a strike and
began picketing Respondent. Only one employee (out of
Respondent's employee complement of about 23) crossed
the picket line and went to work that day. The picket signs
read: "Co-Con unfair." Some time thereafter. Morce, the
business representative for Local 953 of the Operating En-
gineers, spoke to McCartney and said that all that the Com-
pany had to do to get the men back to work would be to
sign a contract.
The complaint in Case 28-CA 4699 alleges that the De-
cember 5 strike was caused, provoked, and prolonged by
Respondent's unfair labor practices described in the com-
plaint in Case 28-CA 4630. An unfair labor practice strike
is one which is caused in whole or in part by an unfair labor
practice. In order for an unfair labor practice strike to exist,
it is necessary to find that a company's unlawful conduct in
fact constituted a contributing cause to the strike. Tufts
Brothers Incorporated, 235 NLRB 808 (1978). As I find that
Respondent has not engaged in any of those unfair labor
practices, it follows that the striking employees must be
considered economic strikers rather than unfair labor prac-
tice strikers.
D. The End of the Strike
For the first week after the December 5, 1977, strike,
Respondent's operation was completely shut down. During
that week Respondent sent letters to its employees notifying
them that work on the project would continue, that they
were invited to return to work on or before December 12,
and that if they did not do so, they would be replaced. By
letter dated December 7, 1977, the Unions reiterated their
a clause in it that would make the contract null and void 10 days after a
labor problem. I believe that Smith's recollection of the event was more
accurate than Morce's. The contract clause in question stated:
. . if an interruption or stoppage of work occurs at UV's Continental
Mine and its facilities as a consequence of contractor's performance of
work under this agreement, then, at UV's sole discretion, upon ten (10)
days notice to contractor, this Agreement shall terminate and the parties
shall determine the final payment due contractor for work performed to
the date of termination under this Agreement.
CO-CON. INC. 287
DECISIONS OF NATIONAL LABOR RELATIONS BOARI)
Inc., 389 U.S. 375 (1967): The Laidlaw Corporation. 171
NLRB 1366 (1968), enfg. 414 F.2d 99 (C.A. 7. 1969), cert.
denied 397 U.S. 920 (1970). The General Counsel does not
appear to contend, and the record does not establish, that
Respondent has denied them their rights as economic strik-
ers. That applies to all the strikers except Sam Carrasco and
Manuel Arguello. Their situation is discussed below.
E. Carrasco and Arguello
1,. Background
Samuel Carrasco and Manuel Arguello participated in
the strike against Respondent that began on December 5.
1977. On Januar 3 31, 1978, Respondent wrote to each as
follows:
We regret that the position formerly occupied by
you prior to the strike against Co-('on, Inc. at its U.V.
Industries project is not available at this time, and has
not been available since your offer to return to work.
However, in any event you are ineligible for reemploy-
ment due to misconduct which you participated in dur-
ing the strike.
Respondent contends that Sam Carrasco and Manuel
Arguello engaged in such serious misconduct during the
strike that they are not entitled to reinstatement. Witnesses
on behalf of both General Counsel and Respondent testi-
fied with regard to alleged acts of misconduct. Their testi-
mony was keyed to two incidents involving Carrasco and
one incident involving Arguello.'
('arrasco and Arguello were economic strikers. As such,
after their unconditional application for reinstatement, they
were entitled to full reinstatement when jobs for them be-
came available. Laidlaw Corp., supra:; '. L,. R. B. v. F leetwood
Trailer (Compaanv supra. However, economic strikers can
lose their right to reinstatement if they engage in substantial
misconduct during a strike. When an employer discharges
an employee for misconduct arising out of a protected ac-
tivity such as a strike, the emplover's good-faith belief that
the misconduct occurred is not a defense to such a dis-
charge if it is shown that the misconduct never occurred.
N.L.R.B. v. Burnup and Sims. Inc.. 379 U.S. 21 (1964).
When an employer establishes such an honest belief, the
defense is adequate unless the General Counsel affirma-
tively establishes that such misconduct did not in fact oc-
cur. Rubin Bro.. Footrvear, Inc. and Rubin Brothers F'oor-
wear, Inc.. 99 NLRB 610 (1952). enforcement denied 203
F.2d 486 (C.A. 5, 1953). The incidents discussed below were
brought to the attention of Respondent's President Smith
and he decided to disqualify Carrasco and Arguello from
reemployment.
'i In addition. there was evidence of reports to Respondent's President
Smith regarding shots fred at company guards. sahotage to company equip-
ment, and violence and threats directed against employees who worked dur-
ing the strike However, except for the incidents set forth below, the evidence
is insufficient to eslahlish that Respondent had a good-iaith belief that Car-
rasco and Arguello were involved Those matters have therefoire not been
considered il evaluating the discharges.
2. The Carrasco-Bland incident
John Bland is an employee of Rust Tractor Company, a
concern that performed service work for Respondent at the
UV project. Shortly after the strike began, Bland was driv-
ing his truck through the picket line when he stopped to
speak to some of the pickets. One of those pickets, Lockett.
told Bland that he had better leave because Carrasco was
drunk and pushing his weight around. At that point Carras-
co approached Bland and asked him where he had been.
Bland replied that he had been working on the job. ('arras-
co called him a "little son of a bitch" and told him that he'd
better not be working there. Carrasco then told Bland that
Bland had better make sure he had hospitalization and in-
surance on his truck. The truck was new and had a card-
board dealer's plate. C(arrasco ripped the plate off the truck.
At that point, Bland left the area and reported the incident
to his leadman who in turn reported it to Respondent.
Thereafter, Bland was told to stay away from the project
and he did so for some time.
The above findings are based on the testimony of Bland.
('arrasco in his testimony gave a rambling, confused, and
totally unconvincing version of the incident. tie acknowl-
edged that he told Bland that he hoped the truck had good
insurance, but he also averred that he told Bland that he
might want to buy the truck. Carrasco testified that he did
not sax anything about hospitalization and did not rip the
deailer's plate from the truck. At one point in his testimony.
he averred that he just pointed at the dealer's plate and said
that it was ready to come off. At another point he averred
that either he or Bland took the plate off because it was
ready to come off. On a previous occasion Carrasco had
spoken to Bland about purchasing an old truck, but in the
context of the conversation at issue I do not believe that
C'arrasco spoke about insurance on the truck in relation to a
possible purchase. I do not believe his denial that he spoke
of hospitalization or that he was simply being helpful with
regard to a loose license plate. Bland was an extremely
credible witness while C'arrasco's demeanor and testimony
inspired disbelief. I credit Bland and I do not credit C(arras-
CO.
3. The incident with Hinsley's truck
Bob Hinsley is an operator for Mountain State C(ontrac-
tors, a concern that was working for Respondent on the UV
project. On December 19. 1977. Hinsley drove his truck
away from the project. After going about half a mile, he
noticed a truck on the bank off the right side of the road
and another truck off the bank on the left side of the road.
Carrasco was standing in front of one of the trucks and
Arguello was sitting in the other truck. At that time, Hins-
ley was traveling 30 or 35 miles an hour. He saw Carrasco
motion to Arguello and Arguello drove his truck onto the
road. Hinsley slowed his truck and was forced to follow
Arguello's truck, which was traveling 10 or 15 miles an
hour. Arguello was driving and another man was also in the
truck. As Hinsley was slowly following Arguello down the
road, a 10- or 12-inch rock came from the hillside on the
right side of the road. The rock hit Hinsley's truck on the
right front portion of the hood, making a sizable indenta-
288
he had better have insurance on his truck and hospitaliza-
tion. In the context in which the remarks were made. Car-
rasco was threatening to inflict bodily injury on Bland and
threatening to damage his truck because Bland was crossing
the picket line. In addition, Carrasco ripped the temporary
license plate from Bland's truck.
As found above, Carrasco signaled to Arguello to pull his
truck onto the road and slow down Hinsley. When Hinslex
did slow down. his truck was hit by a large rock and two
unidentified men were seen on the hill above the truck. Car-
rasco and Arguello did not have an) credible explanation
tfor their conduct. Neither Carrasco nor Arguello personally
threw the rock at Hinsley. However, it was their conduct
which placed Hinsley in a situation where he was in a posi-
tion to be hit by the rock, and it is extremely difficult to
believe that their involvement was accidental. Based on a
preponderance of the credible evidence. I find that Carras-
co and Arguello were active, knowing participants in the
rock-throwing incident. Their actions with regard to Hins-
ley and Carrasco's threats to Bland constituted serious mis-
conduct. and that misconduct was not prompted by any
illegal activity on the part of Respondent. I find that the
misconduct of Carrasco and Arguello was sufficiently seri-
ous to support Respondent's action in making them ineligi-
ble for recall. Hedstrom Company, a subsidian, of Brown
Group, Inc., 235 NLRB 1198. I shall therefore recommend
that the Section 8(a)(3) allegations of the complaint be dis-
missed.
CO()N( I.tSIONS O(I LAw'
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Unions are labor organizations within the mean-
ing of Section 2(5) of the Act.
3. The General Counsel has not established by a prepon-
derance of the credible evidence that Respondent violated
the Act as alleged in the complaints.
Upon the foregoing findings of fact, conclusions of law',
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER'8
The complaints are dismissed in their entirety.
tion. Hinsley saw two men on the hill but could not recog-
nize them.' Hinsley reported the incident to the county
sheriff and filed a criminal complaint in magistrates court.
That complaint is still pending. The incident was also re-
ported to Respondent's President Smith.
The above findings are based on the testimony of Hins-
le. Carrasco, Arguello, and Rolando Gomez (the second
man in Arguello's truck) also testified concerning the inci-
dent.
Carrasco testified: On December 19 he left the site and
was driving his truck down the road when it stalled. He
pulled off to the side of the road and raised his hood. While
he was standing in front of his truck he saw Arguello and
Gomez in Arguello's truck and he flagged them down. Go-
mez was driving. He and Arguello made some repairs and
they both left. lie did not see Hinsley and he did not signal
Arguello to cut in front of Hinsley.
Arguello testified as follows: He was driving toward the
picket line in his truck with Gomez on December 19. Go-
mez was driving. Hle saw Carrasco holding some jumper
cables and Carrasco waved him to stop. He helped Carras-
co start the truck and then left. He did not see Hinsley and
did not see any rocks being thrown.
Gomez testified as follows: He was driving Arguello's
truck on December 19 when he saw Carrasco's truck on the
side of the road. He did not see Carrasco. Arguello told him
that C(arrasco might be having some kind of trouble and
asked him to stop. He remained in the truck while Arguello
got out. He read a letter and did not see anything that
happened. Arguello came back to the truck and they drove
away.
Hlinsley was a completely convincing witness. He had no
apparent motive for fabricating a story, and his demeanor
was such as to inspire belief. The opposite is true for Car-
rasco. Arguello. and Gomez. Carrasco and Arguello both
testified that Carrasco was standing in front of his truck.
Gomez, who claimed to be driving Arguello's truck, was so
anxious to avoid involvement in the incident that he even
denied seeing Carrasco and only acknowledged seeing Car-
rasco's truck. I do not believe his assertion that he did not
see anything because he was reading a letter. Arguello was
also an extremely unconvincing witness, as was Carrasco. I
do not credit Carrasco, Arguello. or Gomez, and I do credit
Hinslev.
4. Conclusions
The credited evidence set forth above. establishes that
Carrasco warned Bland to stay off the job and told him that
"That esening the sindshield of tHinsley's truck was broken while the
truck was parked at his home. There is no evidence that Carrasco or Arguel-
lo was involved in that incident
'B In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions. and Order, and all objections thereto shall be deemed
waived for all purposes.
CO-CON, IN(C. 289