Concrete Supply Co.

National Labor Relations Board - Board Decisions

May 5, 1964

146 N.L.R.B. 1371 (N.L.R.B. 1964)

CONCRETE SUPPLY CO. . 1371
Disputes of job applicants, such as are involved herein, are precisely the type of
matters which article III; section 8 of the Agreement between the. Union and the,
employers (General Counsel's Exhibit No. 2) was intended to handle through the
contractual grievance and arbitration procedures. This provides for the creation of
a "Joint Hiring Committee" to determine disputes arising out of work registrations,,
work referrals, and the preparation of the referral registration lists. The alleged dis-
criminatees failed to avail themselves of this grievance procedure. As Member
Brown has stated: "Under the agreement, arty. matter dealing with the Union' s alleged,
breach of a contractual duty to refer [job applicants] should have been submitted
as a grievance" [to the Joint Hiring Committee].36 It would appear therefore, that-
the failure to exhaust their remedies first under the contract might warrant dismissal
of the complaint 37 .
In arriving at these conclusions, the Trial Examiner'has been mindful of Holton
and Sanuita's militant predisposition toward the Union and, also, the Union's antip-
athy toward both of them because of their having repeatedly filed charges against
the Union with the Board and having established a rival union to compete with Re-
spondent, as well as Sanuita having been expelled from the Union and Holton's re-
quested transfer from the Fairbanks Local of the Laborers Union to the Respondent
Union having been denied, but. conjecture, suspicion, -speculation, and surmise are
not an adequate substitute for the requisite burden of proof necessary to substantiate
the unlawful discrimination allegations of the complaint38 Nor-is the Trial•Ex-
aminer unmindful of the fact that :both Sinyon and Kahkonen were-not even registered
on the Union's referral lists and that Sanuita has received 21 job referrals from the
Union for the period August 1960 to May 25, .1963, which includes referrals subse-
quent to the time that the two incidents detailed above occurred.
In view of the foregoing conclusions, .and upon the entire record, it is found that
the General Counsel has failed to establish by a preponderance of the credible testi-
mony that the Respondent committed unfair, labor practices within the meaning of
Section 8(b)(1)(A) and 8(b)(2) of the Act.39 It will, therefore, be recommended
that the complaint be dismissed in its entirety 40
36Local Union No. 18, Operating Engineers ( Ohio Pipe Line Construction Co.), supra.
37 See Consolidated Aircraft Corp., 47 NLRB 694 , enfd . 141 F. 2d 785 (C.A. 9) ; United
Telephone Company, et at., 112 NLRB 779.
38 Punch and Judy Togs, Inc., 85 NLRB 499.
sa See N.L.R .B. v. News Syndicate Company, Inc., 365 U.S. 695 , where the Supreme
Court held that provisions for union control over hiring and job requirements were not
violative of the Act. " Referral by the union violates the Act only where there is dis-
crimination based upon union membership or union activity ." N.L.R.B. v. Local 294,
International Brotherhood of Teamsters , et al. (Valletta Motor Trucking Co., Inc.),
315 F . 2d 746 (C.A. 2).
+o The conventional "conclusions of law" which are customarily repeated at this point
are omitted'as they will be found ' in the body of this Decision.
Concrete Supply Co . and Howard Freeman . Case No o ,15- CA-
2330. May 5, 196.E a
DECISION AND ORDER
On January 31, 1964, .Trial Examiner' Stanley Gilbert issued his
Decision in the above case, finding that. the Respondent had not en-
gaged in the unfair labor practices alleged in the complaint and recom-
mending that the complaint be dismissed, as set forth in his attached
Decision. Thereafter, the General Counsel filed exceptions to the Trial
Examiner's Decision and both the General Counsel and"the Respond-
ent filed briefs.
146 NLRB No. 163.
1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARb
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Leedom and
Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision and the entire record in this case, including the
exceptions and the briefs, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of die National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint herein be, and it
hereby is, dismissed.
TRIAL EXAMINER'S. DECISION
STATEMENT OF THE CASE
Upon a charge filed on July 21, 1963, by Howard Freeman, an individual, the
complaint was issued September 24, 1963. The complaint alleges, in essence, that on
or about July 19, 1963, 24 named employees 1 of Concrete Supply Co. (hereinafter
referred to as Respondent) concertedly went on strike; that on or about the same
date Respondent discharged said employees because of their protected concerted
activity; that on or about July 19 and 20, 1963, all of said employees made uncon-
ditional offers to Respondent to return to its employment; that, from said dates of
request until on or about July 23, 1963, Respondent refused to reinstate 8 of said
employees; that, from the aforesaid dates of request to the date of the complaint,
Respondent has failed to reinstate the 16 other employees; and that the alleged con-
duct of Respondent was violative of Section 8(a)(1) and (3) of the Act. In its
answer Respondent denied the alleged violations of the Act.
Pursuant to due notice a hearing was held in this matter in Pensacola, Florida,
November 12 and 13, 1963, before Trial Examiner Stanley Gilbert. At the close
of the hearing, oral argument was waived. Within the time designated therefor,
briefs were submitted by the General Counsel and Respondent.
Upon the entire record herein and my observation of the witnesses, I make the
following:.
q FINDINGS OF FACT
1. THE BUSINESS OF°THE RESPONDENT
Respondent, a Florida corporation with its principal place of business in Pensacola,
Florida, is engaged in the business of supplying concrete to individuals and the build-
ing industry in the State of Florida. During the 12-month period ending June 30,
1963, a representative period, Respondent, in the course and conduct of its business
operations, purchased and received goods and materials valued in excess of $50.000,
which goods and materials were shipped directly to it in the State of Florida from
points outside the State of Florida?
Although Respondent in its answer denied that it is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the Act, it has failed to urge
any ground in support of said denial. In view of the amount of inflow of goods
and materials, it is concluded that Respondent is an employer engaged in commerce
within the meaning of said Section of the Act.
I Including the Charging Party.
2 At the start of the hearing Respondent amended its answer by admitting the allega-
tion in paragraph 3 of the complaint with respect to the Inflow of goods and materials.
CONCRETE SUPPLY CO. 1373
II. THE ALLEGED UNFAIR LABOR PRACTICES
The record discloses few contradictions in the testimony as to the facts material
to the issues herein . The findings of fact set forth hereinbelow are not in dispute
except in those instances which are indicated . The dispute is chiefly as to the ap-
propriate inferences to be drawn from the facts.
General Counsel contends , in essence , that the 24 employees went on strike on
the morning of Friday , July 19 , 1963, in protest of the failure of Respondent to
grant their requests for an increase in pay, and that their strike was converted into
an unfair labor practice strike by reason of their alleged discharge that afternoon.
On the other hand , Respondent contends in its brief that it did not discharge the
employees , that they were at all times economic strikers , and that after it received
a request for reinstatement from the employees (collectively on the morning of
July 23, 1963, and in the case of three , sometime prior thereto ), it reinstated on a
nondiscriminatory basis those who had not been replaced.
Sequence of Events
During the workday on Thursday , July 18 , certain of the employees 3 decided to ask
for a raise , and one of them , Marion Evans, advised R. W. Egelhoff , Respondent's
assistant manager and son of Respondent 's president and manager , R. E. Egelhoff,
of the employees ' desire to discuss this decision with him . ( Hereinafter, R. W.
Egelhoff is referred to as Mr. Bobby, and R. E. Egelhoff is referred to as Mr. Bob,
in accordance with similar references in the transcript .) Mr. Bobby consulted with
his father who instructed him to explain to the employees that they had been given
a raise "about 60 to 90 days before " and that the Company "couldn '.t do it." On
the evening of that day Mr. Bobby met with 19 or 20 employees and discussed their
requests 4 with them. In accordance with his father 's instructions he stated that
the requested raise could not be granted . Employees discussed the matter among
themselves and decided they would meet again with Mr. Bobby the next morning,
which they arranged to do.
The next morning , Friday, July 19 , the employees , in a meeting with Mr . Bobby,
again requested a raise, which he again denied . The employees decided not to go
to work and so informed Mr. Bobby. Mr. Bobby contacted his father and advised
him of the employees ' action and his father instructed him "not to do anything or
talk to anyone" with respect to the matter . Friday is the day when Respondent
distributes the paychecks for the workweek ending the night of the previous Wednes-
day. Mr. Bob ordered that the employees be given paychecks for the regular
workweek and in addition checks for the 1 day, Thursday , on which they worked
in the current workweek . The employees returned to the plant between I and 2
p.m. for their pay , and each of them received two checks.
After the employees walked out , Respondent contacted some employers in the
area who might have a surplus of labor and interviewed applicants for employ-
ment on Friday, July 19 , and on the following morning. Of those interviewed,
Respondent engaged the services of 23 workers by about 7 a.m. on July 20. Three
of these worked only 1 day, July 19 . Of the remaining 20, 5 commenced work
on July 19, 4 on Saturday , July 20 , 9 on Monday, July 22 , and 2 on July 23. The
above findings with respect to the hiring of employees are based upon the payroll
records of the Respondent , the applications for employment and the uncontradicted
and credible testimony of Mr . Bobby with respect to these facts . The payroll
records disclose that of the aforementioned 20 replacements , 1 remained in the
employ of Respondent until August 17, 3 until about the middle of September, 2 to
the beginning of October , 1 to the end of October , and the remainder are still in the
employ of Respondent . In my opinion , the aforesaid 20 replacements were hired
as permanent , not temporary , replacements.
On Friday night , July 19 , employee George Rush called Mr. Bobby and asked to be
reinstated , to which request Mr. Bobby responded that "Daddy was handling the
whole thing and he would have to contact him Monday, that he was out of town."
Early the next morning , Saturday , July 20, the employees returned to the plant.
Mr. Bobby, who was in .the shop when they arrived , got in his car and drove to the
dispatcher 's office in order to meet them. It appears that by this time he had com-
pleted engaging the services of the aforementioned 20 permanent replacements.
3 Unless otherwise Indicated , all references herein to "employees" are to those who
went on strike.
4 In addition to a raise the employees also asked for a timeclock and an additional week
of vacation , but these requests apparently were not considered by the employees to be of
importance.
.1374 DECISIONS OF.NATIONAL LABOR. RELATIONS BOARD
There is contradictory testimony with respect to whether, just before Mr. Bobby left
the shop, Orlander Packer communicated •a request for reinstatement to the dis-
patcher, Don Shear, who relayed the request over the intercom system to Mr. Bobby,
to which Mr. Bobby replied that the matter was out of his hands and had been
"turned over to Daddy." There is also contradictory testimony as to whether- he
communicated the same position to the other employees in reply to a similar request
by Marion Evans. 'In view of my finding that the 20 permanent replacements had
been engaged before: Packer's and Evans' requests for reinstatement, and in view
of my finding hereinbelow that the employees had not been discharged as alleged,
no purpose would be served in resolving these conflicts in the testimony, for even--
if the employees had requested reinstatement as of the morning of July 20, on a
numerical basis all but 4 of the employees had already been replaced.5
That morning the striking employees -began, picketing with a sign bearing the
legend, "Employees of Concrete Supply Co. on strike. We protest unlawful dis-
charge." The picketing continued during the morning of Saturday and on the fol-
lowing Monday and Tuesday. There was no further effort on the part of the striking
employees to obtain reinstatement until Tuesday, except through the action of
John Reed, a mortician. Reed testified that early in the morning of July 20, at
the request of the employees, he interceded for them with Mr. Bobby, and that
Mr. Bobby stated that he had turned the matter over to his father and that there was
nothing he could do. Reed further testified that Mr. Bobby also said that as far as
he was concerned, "they walked off and they cannot come back to work." Mr.
Bobby denied that he had made such a statement to Reed. I credit his denial in
view of the credible testimony as to the instructions he received from his father
that the matter was out of his hands and he was not to discuss it with anyone, his
meticulous adherence to these instructions in all. other instances, his transmittal to
his father -of several individual requests for reinstatement; and, also, in view of
the subsequent conduct of Mr. Bob in reinstating eight of the strikers.
On Monday, July 22, Mr. Bob observed Rush picketing and asked him if he wished
to talk to him (because his son had advised him that Rush had called him on Friday
night to request reinstatement). Rush answered that he could not talk to him while
he was on the picket line. About 10 a.m., Tuesday, July 23, the employees met
with Mr. Bob and requested to return to work. He told them they had been replaced
except for three (Evans, Rush, and Monroe), who had previously requested rein-
statement, and that he would take back any further men needed in accordance with
their seniority. The record discloses that he then reinstated a total of eight em-
ployees. To the date of the hearing Respondent has not recalled any of the. other
employees. It does not appear that there was any additional hiring done by Re-
spondent until September 3, 1963. In view of the reinstatement of the 8 employees
and the hiring of 20 replacements, it appears that more than 24 positions vacated by
the striking employees had been filled as of July 23.
General Counsel's Contention as to the Discharge
In his brief General Counsel makes no alternative argument to that of his conten-
tion that the strikers were discharged. His brief is predicated on the assumption
that he has sustained the burden of proof of the unlawful discharge of the strikers
(as of the afternoon of July 19). He contends that the discharge is demonstrated by
"a series of related actions and 'statements by Respondent" which , in essence, are as
follows:
1. The employees were given two checks in payment of all moneys they had
earned to that date (the second check being for the 1 day's work in the current
workweek). It appears that it was the practice of Respondent to pay employees in
such a manner not only when they were discharged, but also on occasions when they
were expected to be away for any period of time, such as when going on vacation.
Furthermore, it appears that when an employee is discharged, he is also paid for
vacation time earned, his Christmas Club moneys are released to him, and insurance
arrangements are terminated. It does not appear that any such action was taken,
during the,material period, with respect to any of the employees, except in those
instances where there was a specific request for such action.
2. Mr. Bobby told several of the employees (and apparently thereby indicated to
all of them) when they requested reinstatement that the matter had been "turned over
.6 It appears that the strikers ' j obs need not be classified in order to determine who'ihad
been replaced.
CONCRETE SUPPLY CO. 1375
to Daddy." This statement cannot be construed as anything but a referral of the re-
quests to the person who had the ultimate authority and, at-most, resulted merely
in a not unreasonable delay with respect thereto. To illustrate, Mr. Bob offered
to talk to Rush on Monday, when he observed him on the picket line, because he had
been advised that Rush had called his son requesting reinstatement, and on the next
day, July 23, he reinstated the three men who he understood had individually re-
quested reinstatement previously and five others in order of their seniority.
3. Respondent hired employees on Friday and on Saturday morning. The record
discloses that the services of all of the newly hired- employees had been engaged
prior to any request for reinstatement, except that of Rush. The record demonstrates
that the Respondent had urgent need for immediate replacements of the strikers
and I, therefore, fail to see how their hiring in any way demonstrates that the
strikers were discharged.
4. General Counsel also relies on the testimony of John Reed that Mr. Bobby made
a statement to the.effect that "they [the strikers] can't come back to work." As above
indicated, I have not credited this portion of Reed's testimony.
5. General Counsel argues `.'at no time did Respondent make any effort to correct
the impression of the men that they were unlawfully discharged as. their picket signs
indicated they believed." 'Mr. Bob's offer to talk to picket George Rush on Monday,
July 22, and his action on Tuesday, July 23, granting reinstatment to eight of the
strikers; belies the appropriateness of any inference that. Respondent acknowledged
the legend on the picket signs to be true. Furthermore, 'to draw an unfavorable
inference from an employer's failure to challenge the truth of signs carried by
pickets in front of its plant would impose an unreasonable. burden upon such
employer.
6. General Counsel also argues that the discharge is further indicated by
Respondent's failure to recall any of the remaining 16 strikers rather than hiring
new employees subsequent to July 23, 1963. It appears that the first new hiring
after July 23, 1963, was on September 3, 1963, and that there had been no further
requests for reinstatement. Respondent was not required to maintain a preferential
hiring list, and there is no basis for inferring that Respondent's hiring of new em-
ployees starting on September 3 was discriminatorily motivated. It further appears
that in the selection of the eight strikers to be reinstated the Respondent employed
a nondiscriminatory basis. Two objective standards were used, those who Respondent
believed had individually requested reinstatement previously, and the remaining five
in order of their seniority. Furthermore, three of the men reinstated (McConico,
Evans, and Pace) were the apparent leaders in the strike, since they acted as spokes-
men for the group . I do not find that it is reasonable to infer from these facts
that the strikers had been discharged.
I am not persuaded that it is reasonable to conclude that Respondent did discharge
the strikers, as contended by General Counsel.
Concluding Findings
Based on the foregoing, I conclude that the 24 employees engaged in an economic
strike on the morning of July 19, and that as of July 20, 20 permanent replacements
had been hired prior to a request for reinstatement by any of the strikers who were
not reinstated; that Respondent did not discharge the strikers, and, therefore, the
strike was not converted into an unfair labor practice strike; that as of July 23,
Respondent lawfully refused.to reinstate 16 of the strikers because they had-been
permanently replaced.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case , I make the following: .
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. General Counsel has failed to sustain the burden of proof that the Respondent
has violated Section 8(a) (1) and (3) of the Act as alleged in the complaint.
RECOMMENDED ORDER
The complaint should be, and is hereby, dismissed, in its entirety.
744-670-85-vol . 146-88,