Enterprise Aggregates Corp.

National Labor Relations Board - Board Decisions

Aug 14, 1984

271 N.L.R.B. 978 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Enterprise Aggregates Corporation and Local No.
12, International Union of Operating Engineers,
AFL-CIO and Joseph Velasco. Cases 22-CA-
21337 and 21-CA-21628
14 August 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 2 August 1983 Administrative Law Judge
Burton Litvack issued the attached decision. The
Respondent filed exceptions and a supporting brief
and the General Counsel filed a brief answering the
Respondent's exceptions.
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,' and
conclusions, and to adopt the recommended
Order. 2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Enterprise
Aggregates Corporation, Paramount, California, its
officers, agents, successors, and assigns, shall take
the action set forth in the Order, except that the at-
' The Board's established policy is not to overrule an administrative
law judge's credibility resolutions based on demeanor unless the clear
preponderance of all of the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544, 545 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the credibility findings in the judge's decision.
2 We cannot agree with our dissenting colleague's assessment of the
issues in this case.
The essential issue is whether under the Respondent's vacation policy
the second year or the third year of employment constituted the basis for
a second vacation week.
We agree that aspects of the testimony of employees Ortega and Ve-
lasco were "inconsistent and confusing." However, both the judge's deci-
sion and the record bear out that the inconsistencies go merely to wheth-
er vacation benefits accrued during or after completion of certain years of
employment. This was a comparatively minor matter and irrelevant to
the ultimate issue of discrimination. On the key issue Velasco's and Orte-
ga's testimony was both clear and consistent: the basis for a second vaca-
tion week was 2 years' employment and not 3 years as the Respondent
contended. The "2 weeks after 2 years" version of the policy was further
corroborated by a third employee, Belvill, who was not claiming that the
Respondent unlawfully withheld his vacation benefits. The Respondent's
president, Donald Nourse, testified that there was no written vacation
policy and no documents available which would substantiate the nature
of the policy as it was administered. Taking this into account it is our
determination that the General Counsel more than adequately established
the pertinent elements of the policy through the consistent testimony of
three employees who were familiar with the Respondent's administration
of it. With the employees' version of the policy credited by the judge the
legitimacy of Velasco's and Ortega's requests for fully accrued vacation
benefits was sufficiently established especially in the absence of any con-
travailing evidence which would support the Respondent's position.
271 NLRB No. 152
tached notice is substituted for that of the adminis-
trative law judge.
MEMBER HUNTER, dissenting in part.
Contrary to my colleagues, I find that the Re-
spondent did not deny accrued vacation benefits to
striking employees Ortega and Velasco and there-
fore that the Respondent did not violate Section
8(a)(1) and (3) of the Act in this respect.
It is well established that an employer may not
discriminate against striking employees with regard
to the payment of accrued benefits. However, in
my view, the General Counsel has not established
that Ortega and Velasco had accrued any vacation
benefits at the time of the strike.
Thus, the record contains no adequate descrip-
tion of the Respondent's vacation policy. In this
regard, the judge specifically discredited the testi-
mony presented by the Respondent that employees
were entitled to 2 weeks' vacation after 3 years of
service. In finding that Ortega and Velasco had ac-
crued vacation benefits, the judge relied on the em-
ployees' description of the Respondent's vacation
policy. The judge found their testimony "inconsist-
ent and confusing particularly as to the matter of
accrual and as to exactly when employees became
eligible to take their earned vacations." Despite
these findings, the judge "credited" their versions
of the Respondent's policy because he concluded
that their testimony was honest. Contrary to the
judge and to my colleagues who adopt his findings,
I fail to see how the fact that the employee's testi-
mony was honest cures the inconsistent and confus-
ing nature of the testimony itself.I It is clear to me
that the testimony of Ortega and Velasco falls far
short of establishing what the Respondent's vaca-
tion policy was and that the employees had ac-
crued benefits under that policy. Thus, in my view,
the General Counsel has failed to establish that
Ortega and Velasco were entitled to vacation bene-
fits at the time such benefits were requested and
denied, and therefore that he has failed to establish
matters essential to his case.
In these circumstances, dismissal of the alleged
8(a)(1) and (3) allegations involving vacation bene-
fits is compelled. Accordingly, I dissent from my
colleagues' finding of these violations.
I Nor do I find persuasive my colleagues' reliance on the "corrobora-
tive" testimony of employee Belvill concerning the Respondent's vaca-
tion policy. Although Belvill and Ortega testified that the policy provid-
ed for I week of vacation during the first year and 2 weeks each year
thereafter, I note, as found by the judge, that Ortega did not take a vaca-
tion during his first year. More importantly, Velasco disagreed with both
Belvill and Ortega when he testified that employees must complete I
year of service before becoming eligible for a 1-week vacation. Also, I
note that the judge did not rely on Belvill's testimony in concluding that
the nature of the Respondent's vacation policy had been established.
978
ENTERPRISE AGGREGATES CORP.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR REI ATIONS 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.
WE WILL NOT refuse to pay retirement benefits
to employees because they engaged in a strike
against us.
WE WII.L NOT refuse to pay accrued retirement
benefits to employees because they engaged in a
strike against us.
WE WILL NOT in any like or related manner
interfere with, coerce, or restrain you in the exer-
cise of the rights guaranteed you in Section 7 of
the Act.
WE WILL pay to Clifford Belvill his retirement
benefits to be computed at the established formula,
with interest.
WE WILL. pay to Ramon Ortega and Joseph Ve-
lasco their respective accrued vacation benefits,
with interest.
ENTERPRISE AGGREGATES CORPORA-
TION
DECISION
STATEMENT OF THE CASI:
BURTON LITVACK, Administrative Law judge. The
above-captioned matters were heard by me in Los Ange-
les, California, on February 3, 1983. On November 10,
1982, the Regional Director for Region 21 of the Nation-
al Labor Relations Board (the Board), issued a consoli-
dated amended complaint, based on an unfair labor prac-
tice charge in Case 21-CA-21337 filed by Local No. 12,
International Union of Operating Engineers, AFL-CIO
on July 23, 1982 and an unfair labor practice charge in
Case 21-CA-21628 filed by Joseph Velasco, an individ-
ual on October 12, 1982, alleging that Enterprise Aggre-
gates Corporation, (Respondent), engaged in acts and
conduct violative of Section 8(a)(l) and (3) of the Na-
tional Labor Relations Act (the Act). Respondent timely
filed an answer, denying the commission of any unfair
labor practices. At the trial, all parties were afforded the
opportunity to offer into evidence all relevant material,
to examine and cross-examine witnesses, to argue their
positions orally, and to file posthearing briefs. Accord-
ingly, on the entire record' in these matters, including
l At the close of the hearing, counsel for the General Counsel was af-
forded the opportunity to examine the books and record underlying G C
Exh. 8 which is a compilation, prepared by Respondent, of its vacation
records of three employees, including Ramon Ortega Counsel wais fur-
ther given permission by me to move that the record to be reopened to
receive any relevant documents disclosed by the examination Thereafter.
consideration of the oral arguments at the close of the
hearing, and my observation of the testimonial demeanor
of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a California corporation, is engaged in the
mining, processing, and sale of concrete aggregates and
operates a plant located in Arcadia, California. In the
normal course and conduct of the business operations,
Respondent purchases and receives goods and products
valued in excess of $50,000 directly from suppliers locat-
ed within the State of California each of which, in turn,
purchased the same goods and products directly from
suppliers located outside the State of California. Re-
spondent admits that, at all times material herein, it has
been an employer engaged in commerce and in a busi-
ness affecting commerce within the meaning of Section
2(6) and (7) of the Act.
II. LABOR ORGANIZATION
Respondent admits that Local No. 12, International
Union of Operating Engineers, AFL-CIO (the Union),
has been, at all times material herein, a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. ISSUES
1. Did Respondent refuse to pay retirement benefits to
employee Clifford W. Belvill because he participated in a
strike against it, in violation of Section 8(a)(1) and (3) of
the Act?
2. Did Respondent refuse to pay accrued vacation ben-
efits to employees Velasco and Ramon Ortega because
they participated in a strike against it, in violation of Sec-
tion 8(a)(1) and (3) of the Act?
IV. THE ALLEGED UNFAIR LABOR PRACT ICtS
A. The Facts
The record establishes that Respondent operates a
plant in Arcadia, California (at which it processes materi-
als utilized in the production of ready-mix concrete and
loads the products onto the trucks of ready-mix custom-
ers) and an office in Paramount, California, at which all
normal office-related functions are performed. Approxi-
mately 15 individuals are employed as production work-
ers at the plant and, until January 4, 1980, at which time
it was decertified, the Union represented the employees
for purposes of collective bargaining. Donald G. Nourse
is the president of Respondent; Mike Nourse, his
nephew, is the plant superintendent;2 and Cheryl Nourse,
on February 23. 1982. counsel moved that a document, a photocopy of
Respondent's insurance records regarding an insurance claim for Ortega
in 1979. he received. I grant his motion and the record is reopened for
the limited purpose of receiving the document, referred to herein as G C.
Exh 10.
I There can, of course. be no dispute that Donald Nourse is. at least,
an agent of Respoindent within the meaning of Sec. 2113) of the Act. As
to Mike Nourse. the record reveals that he is responsible for hiring and
Continueid
97
)
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the daughter of Donald, is the corporate bookkeeper,
working in the office. 3
The alleged genesis of the events herein occurred on
November 17, 1981, at which time pickets appeared at
the entrance to the plant, carrying signs reading "Enter-
prise Aggregates not paying prevailing wages, Operating
Engineers Local 12, sanctioned by the Construction
Trades Council and by the Teamsters." Donald Nourse
testified that approximately 13 of his production employ-
ees honored the picket line and thereafter engaged in a
strike against Respondent. Clifford Belvill, one of the
striking employees, testified that the precipitating cause
of the work stoppage was the withholding by Respond-
ent of a promised pay raise the previous September. Al-
though the exact date is not clear from the record, the
strike lasted for at least 5 months, with the cessation of
picketing occurring in May or early June 1982. The
record reveals that, during the pendency of the strike,
Respondent utilized replacement workers for many, if
not all, of the strikers.
The controversies herein concern Respondent's alleged
failure to honor its commitment to pay retirement bene-
fits to Belvill and its alleged failure to pay accrued vaca-
tion benefits to strikers Joseph Velasco and Ramon
Ortega during and after the strike. With regard to the
former, Donald Nourse testified that he held a meeting
with the production workers in March 1980 and that
during it he announced his intention to establish some
sort of a retirement system for them. Nourse told them
that employees would be eligible for the plan after work-
ing for 1 year and that he contemplated some sort of
IRA account which would pay an employee, upon re-
tirement, a benefit of six percent of his straight-time pay.
He further said that, under the plan, employees would
accrue benefits; after a back-and-forth discussion with
the assembled workers, Nourse consented to make the
commencement of the accural retroactive to January 1,
1980. The record discloses that thereafter, although no
employee IRA accounts were ever actually established,
Respondent carried on its books the promised retirement
benefit and paid to employees who left its employ by
reason of retirement, quitting, layoff, disability, or death
an amount equal to 6 percent of their accumulated
straight-time pay. Thus Darryl Clark and David Warner,
who both quit in September 1980, Patricia Taylor, who
quit in November 1980, Eugene Kennedy, who became
disabled in November 1980, and Jerry Bumgarner and
Everett Yander, who were laid off in May 1980, all re-
ceived amounts ranging from $431.81 to $1,271.55 on
leaving their jobs. 4
With knowledge of the aforementioned benefit, ap-
proximately I month into the strike the 13 strikers sent
to Nourse a joint letter dated December 10, 1981, and
signed by each reading, "I, the undersigned, request an
firing at the plant and is involved in all major plant operational decisions.
Based on this, and the record as a whole, I find that he is a supervisor
within the meaning of Sec. 2(11) of the Act.
3 With regard to her legal status, the record discloses that Cheryl
speaks Spanish and is the individual to whom employees speak if they
have insurance or other financial problems.
4 Employee Richard Harvey died on November 18. 1980, and Re-
spondent paid $1,077.72 to his estate.
immediate payment of all the monies deposited in the in-
dividual Retirement Account in my name." 5 In response,
Nourse mailed the following identically worded letter,
dated December 22, to each signatory employee:
We are in receipt of the letter which you signed,
along with other employees, dated December 10,
1981, regarding payment of any monies presently
due you from the Retirement Fund. Monies held in
this fund are disbursed only when an employee is
laid off, fired or quits.
Inasmuch as the Company has not fired nor laid
you off, we cannot disburse any monies to you
unless you have quit. To date we have not been no-
tified of your having quit.
Just prior to the cessation of the picketing by the
Union, about May 11 or 18, 1982, a group of striking em-
ployees, including Belvill and Velasco, met at Respond-
ent's office facility with Nourse and Respondent's labor
relations consultant, Norman Jones. Among the subjects
discussed was the reinstatement of the strikers. Nourse
testified that several offered to end the strike and return
to work, but that he told them there were no openings at
that time as they had been replaced. According to
Nourse, he assured the strikers that they were subject to
being recalled when openings occurred. With regard to
the matter of the retirement benefit, Belvill testified that
"Don told us that he could not do anything until we had
quit, and the matter had been settled out there" and
Nourse testified that he said that payment of the retire-
ment money was, as yet, not under consideration as the
company did not know where it stood and as no one had
informed him that the strike was over.
A few days after this meeting, Belvill mailed the fol-
lowing letter to Nourse-"I Clifford W. Belvill, this day
May 17, 1982, hereby turn in my resignation as . . . an
employee of Enterprise Aggregates. I further more [sic]
request all monies due me in my retirement fund." Re-
ceiving no response from Respondent, Belvill telephoned
Nourse approximately 10 days later. According to Bel-
vill, "I asked when I was going to get the monies that
was due me through my retirement . . . I remember him
saying not till things were settled." Nourse admitted
having received the resignation letter and not respond-
ing. As to the telephone conversation, he testified, Belvill
asked what Nourse was going to do about the money
owed to him and Nourse replied "that I didn't know
where we stood, and whether the thing was over, and I
wasn't ready to make any decision on it."
What Nourse did not tell Belvill was that he assertedly
did not view Belvill's resignation letter as a new circum-
stance. He admitted that even if Belvill had come before
him and said he was quitting, "what he did wouldn't
change my position. I wasn't prepared to do anything at
that moment, and whether he sent the letter in or not
didn't change that." Taking the position that he never
5 Belvill testified, without contradiction, that he spoke by telephone
with Nourse within a day or two of sending the letter, and "I asked Don,
when we were going to get our retirement money, and he said not until
things had quieted down on the picket line."
980
ENTERPRISE AGGREGATES CORP.
promised to pay the retirement benefit at the exact
moment an employee quit or retired, 6 Nourse asserted
that, due to the identical financial considerations which
caused him to cancel the employee pay raise in Septem-
ber 1981, he was just unable to afford paying Belvill his
retirement when the latter resigned. Nourse further as-
serted that the strike was not a factor in his decision not
to give the benefit to Belvill and that he would have
acted in an identical manner had a nonstriker quit at that
time and requested payment of his retirement money.
However, Respondent offered neither financial books
and records nor any other evidence justifying or cor-
roborative of Nourse's claim that he was motivated by
business considerations in failing to pay Belvill his ac-
crued retirement benefit.
With regard to Respondent's alleged failure to pay va-
cation benefits to employees Joseph Velasco and Ramon
Ortega, it is initially necessary to ascertain Respondent's
policy regarding employee-paid vacations. Both Clifford
Belvill and Ortega testified that the policy was 1 week of
paid vacation during the first year of employment and 2
weeks of paid vacation each year thereafter. Denying
that he was required to work a full year before receiving
a vacation, Belvill insisted that he was given a 1-week
paid vacation early in this first year of employment by
Respondent. 7 Ortega, who commenced working for Re-
spondent on March 1, 1978, stated that he was informed
of the policy by employees Gene Kennedy and Tito
Nino and that he, like Belvill, took a I-week paid vaca-
tion during his first year with Respondent. Confronted
with his vacation records, 8 which reflect that he took his
initial vacation during the week of June 25 through July
1, 1979, and asked about the apparent inconsistency with
his testimony, Ortega responded, "I like that time better
to have my vacation." He further testified that sometime
during 1981, apparently prior to the start of the strike, he
spoke to Plant Superintendent Mike Nourse and request-
ed "a few weeks of vacation, but he said I could only
have one, because we were busy there. As to the other
vacations, I could take them later on." Joseph Velasco,
who was hired by Respondent on September 21, 1978,
was internally inconsistent and contradicted Belvill and
Ortega as to the specifics of Respondent's employee-va-
cation policy. Thus, he initially testified that on starting
to work Richard Harvey, a working foreman,9 informed
him that said policy was "after one year working there,
you get one week's vacation, and after two, you get two
[weeks] vacation." Later he altered this, explaining that
during his first year an employee could take a week of
6 Nourse averred that no time frame had ever been established.
I Belvill wsas hired by Respondent on April 25, 1976. Respondent's
compilation of employee vacation records (G.C. Exh. 8) goes back only
to calendar year 1979 and shows that Belvill received 2 weeks' vacation
that year-(July 9 through 22) and 2 weeks each year thereafter.
8 Ortega's vacation records show that he received I week of paid va-
cation in 1979 (June 25 through July 1), I week in 1980 (July 20 through
26) and I week of vacation in 1981 (March 27 through April 4).
9 According to Donald Nourse, Harvey, who had nothing to do with
establishing or administering Respondent's vacation policy, was the night
foreman. In this position, while having no authority to hire or fire,
Harvley sas in charge of four other employees, was the only managerial
representative at the plant, directed the work, and assigned overtime if
necessary. tlovever. Nourse testified, if any major problems arose.
Harxey 'sas required Io consult with Mike Nourse.
vacation "and during the second year, you get two
weeks." Thereupon, confronted with his vacation
records which show him taking his first l-week paid va-
cation subsequent to his employment anniversary date in
1979,10 Velasco stated that he took his vacation then
"because you have to work there a whole year to com-
plete.... For me to get [a] vacation, I would have to
work until September '79. That's one year." He further
explained, "You have to work there a full year-that is
365 days-and after you have worked those 365 days,
you can take a week after that." Asked when one
became eligible for a 2-week paid vacation, Velasco re-
plied, "After you complete your second year."
Ortega and Velasco engaged in the employees' strike
against Respondent which commenced on November 17,
1981. Counsel for the General Counsel and Ortega claim
that, as of the start of the strike, Respondent owed the
latter 2 weeks' vacation pay." Therefore, Ortega testi-
fied, sometime in January 1982 he telephoned Cheryl
Nourse "to ask for my vacation."' 2 Speaking in Spanish,
he told Cheryl that he wanted to speak about his vaca-
tion pay, and Cheryl replied, "We cannot do anything
until the strike is over. That's all." According to Ortega,
he telephoned Cheryl again, after the conclusion of the
strike in May, and said that, as the strike had ended, he
wanted to talk about his vacation money. Stating that
she knew nothing about the matter, Cheryl abruptly
hung up the phone. Believing that he was still entitled to
2 weeks of paid vacation, 1 Velasco testified, he spoke
to Cheryl Nourse in October 1981 (before the strike) and
informed her he wanted to take a week of vacation
during Christmas that year; Cheryl said okay. Thereafter
in December he again telephoned her and, based on their
previous conversation, requested a week of vacation pay.
About January 9, 1982, Velasco received from Respond-
ent a check in the amount of $360. He further testified
that later that month he again telephoned Cheryl, "and I
told her that I wanted my I-week vacation that was still
owed me. She told me that Don was upset that she paid
me that first week's vacation and that I would not get
paid that second week's vacation until the strike was set-
tled." No more was said, and, according to Velasco, he
waited until September 1982 to again request the second
week of vacation pay which Respondent allegedly owed
to him.t 4 He spoke to Don Nourse, "and I told him that
io Velasco's vacation records show that he received a I-week paid va-
cation in 1979 (October I through 7), 1 week in 1980 (August 31 through
September 6), and I vacation week in 1981 (May 3 through 9).
ii Utilizing either Velasco's or Ortega's version of the vacation policy,
the claimed owed 2 weeks' vacation pay would be for the period Febru-
ary 27, 1980, through February 26, 1981. In the view of counsel for the
General Counsel and Ortega, the latter's paid vacation taken March 27
through April 4, 1981, was, in reality, the second week owed to Ortega
for the time period February 27, 1979, through February 26. 1980.
12 Ortega stated that he previously had spoken to Cheryl regarding in-
surance and other matters.
13 Based on either his or Ortega's formula for computing vacation pay,
the claimed owed vacation pay was for the period September 21, 1980,
through September 20, 1981. Thus, in his view, and that of counsel for
the General Counsel, the I week of paid vacation in 1981 (May 3
through 9) was, in reality, the second week owed Velasco for the time
period September 21, 1979, through September 20, 1980.
14 Counsel for the General Counsel likewise joins in this claim.
981
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I wanted my second week's vacation. And he told me
that I wasn't due another vacation."
Contradicting the testimony of Belvill, Ortega, and
Velasco, Donald Nourse asserted that Respondent's em-
ployee vacation policy has always been I week after I
year and 2 weeks after 3 years (the employees' third em-
ployment anniversary date).15 With regard to Ortega,
Nourse, testified, he would not ordinarily have been eli-
gible to receive 2 weeks' paid vacation until February
27, 1981; however, inasmuch as Ortega quit work for a
period of 6 weeks (July 15 through August 25) in 1979
and was returned to work as a new employee with a
new hire date, he was not eligible for 2 weeks of paid
vacation at the commencement of the strike. As to Orte-
ga's 6-week absence in 1979, Nourse stated that he just
stopped working and "It's my understanding that he
went to Mexico. I was told that that is what he did."
While assertedly taking Ortega back as a new employee,
Nourse required him to fill out no new employment
forms. Contradicting Nourse, Ortega testified that while
he did, indeed, miss work for a 6-week period in 1979,
he wa disabled as a result of a "knee problem" with thefull knowledge of Respondent and that he was not re-
quired to return to work as a new hire. While Nourse
denied the existence of any insurance records which
would substantiate the testimony of Ortega, in Respond-
ent's files, General Counsel's Exhibit 10, are insurance
forms showing the payment by Respondent's insurance
carrier, Occidental Life Insurance Company of America,
in November 1979 of $196.40 to a Dr. Lizarraga for
medical treatment given to Ramon Ortega in July 1979,
4 days before the latter began his 6-week absence. As to
Joe Velasco, Nourse initially testified that the January 9,
1982 payment to him was inadvertent as "the fact that he
had been paid early for his vacation was missed." Noting
that "while on the picketline he was given a check," Ve-
lasco, Nourse further testified, was not entitled to thatpayment and he (Nourse) would have stopped his daugh-
ter from paying had he been aware of her actions. Later,
Nourse again testified about the incident-"When I
found out that that had been paid, I said 'What the hell
did we do that for?' And [Cheryl] said, 'Well, he had a
week coming-he didn't get his vacation...."' Nourse
responded that Velasco had been paid already and, in his
words, was upset about the payment. When confronted
by the undersigned that, crediting his version of respond-
ent's vacation policy, Velasco had, in fact, celebrated his
third employment anniversary on September 21, had ac-
crued 2 weeks' paid vacation the preceding 12 months,
and was, at least, entitled to 1 week of paid vacation at
the time of his request to Cheryl, Nourse admitted his
error and explained his reaction to the January 1982
check as" I didn't think he was" entitled to the money. 15
Neither Cheryl Nourse nor Mike Nourse was called as
a w itness by Respondent to corroborate Respondent's
version of the facts.
'5 Nourse did, however, corroborate Velsaco that an employee ac-
cures the vacation time during the previous year-so that, for example,an employee accrues I week of paid vacation during his first year of em-ploym ent and is eligible to receive it after the first anniversay date. Inpractice, Nourse admitted, employees are permitted to take the accrued
vacation earlier than the anniversary date.
B. Analysis
The consolidated amended complaint alleges that by
withholding retirement moneys from Clifford Belvilli'
and by failing and refusing to pay accrued vacation bene-
fits to Joseph Velasco and Ramon Ortega, Respondent
engaged in conduct violative of Section 8(a)(3) and (1) of
the Act. There is, of course, no dispute that the afore-
mentioned employees participated in the general concert-
ed work stoppage and strike against Respondent; howev-
er, the latter asserts that the refusal to pay Belvill was
motivated solely by financial considerations and that, as
to Ortega and Velasco, the former was not eligible for
additional vacation payments and the latter had received
all payments due to him in accord with its vacation
policy. Contrary to Respondent, there exists ample evi-
dence in the record that the employee's strike was a mo-
tivating factor' ? in Respondent's decisions to act as it
did. Thus, Nourse did not controvert the testimony of
Belvill (who I found, was an honest and forthright wit-
ness and shall be credited herein) that, during a Decem-
ber 1981 telephone conversation, he told Belvill that no
retirement monies would be paid until things quieted
down on the picketline. Further, during the employee
meeting, in May 1982, with Nourse and his labor-rela-
tions consultant, Nourse reaffirmed his earlier comment
to the assembled strikers, saying nothing would be done
until the matter had been settled "out there." Finally,
after Belvill formally resigned, Nourse admittedly told
him, with regard to paying the promised retirement ben-
efit, "that I didn't know where we stood, and whether
the thing was over, and I wasn't ready to make any deci-
sion on it." Besides her father's somewhat cryptic but
nonetheless obvious references to the strike, Cheryl
Nourse, acting as Respondent's agent,"8 also mentioned
the ongoing strike as a factor in refusing employee re-
quests for their respective accrued vacation benefits.
Thus, it was uncontroverted that she denied Ortega's re-
quest for vacation pay, saying "We cannot do anything
is It is noted that Belvill resigned from Respondent's employ prior to
formally requesting his accrued retirement moneys. However, such doesnot detract from his status as a statutory employee within the meaning ofSec. 2(3) of the Act as that section of the Act has been construed broadlyto include former employees of a particular employer. Little Rock Crate
& Basket Co.. 227 NLRB 1406 (1977).
17 The existence of unlawful motivation is sufficient to establish aprima facie violation of Sec. 8(a)(I) and (3) of the Act, and the Boardwill not "quantitatively analyze" the effect of the unlawful motive.Wright Line, 251 NLRB 1083, 1089 fn. 14, enfd. 662 F.2d 899 (Ist Cir.
1981).18 The critical question with regard to Cheryl's status as an agent, forwhose conduct Respondent was responsible, is whether employees wouldhave reasonable cause to believe she spoke on behalf of Respondent. R..Liberto, Inc., 235 NLRB 1450, 1452 (1978). 1 believe such existed herein.Thus, not only did she have the title of bookkeeper, giving her a statussignificantly higher than rank-and-file production employees but also shewas the daughter of the company president, was able to effectively com-municate with employees because she spoke Spanish, and was the personto whom employees addressed questions concerning insurance and othermatters. In short, given these factors and the relatively small employeecomplement, when she expressed an opinion or attitude I believe employ-ees could justifiably conclude that she was expressing the opinion ofviews of Respondent. Town & Country Supermarkets, 244 NLRB 303, 306(1979); R.J. Libero, supra. Therefore, she acted as an agent of Respond-
ent within the meaning of Sec. 2(13) of the Act at all times material
herein.
982
ENTERPRISE AGGREGATES CORP.
until the strike is over. That's all," and that she handled
Velasco's demand for a second week of vacation pay in a
like manner, stating that her father was upset over her
payment of a 1-week paid vacation and Velasco "would
not get paid that second week's vacation until the strike
was settled." In these circumstances, given Donald
Nourse's admission that he had, indeed, committed Re-
spondent to paying a retirement benefit to employees
who resigned from its employ and, for the momemnt,
crediting Ortega and Velasco that each had accrued and
was entitled to receive vacation benefits prior to the start
of the strike and that each was denied same during the
strike, I believe that the General Counsel has established
a prima facie case that Respondent was unlawfully moti-
vated by the employees' participation in the ongoing
strike in refusing the respective requests of Belvill,
Ortega, and Velsaco for the said monies.
The burden of persuasion thereafter shifted to Re-
spondent to prove that it would have engaged in the
aforementioned conduct notwithstanding the existence of
unlawful motivation. Wright Line, supra; NLRB v. Trans-
portation Management Corp., 462 U.S. 393 (1983). With
regard to its failure and refusal to pay a retirement bene-
fit to Belvill, Respondent conceded its general liability to
pay but asserted that Nourse's refusal to pay in May
1982 was based on financial considerations and that, even
if a nonstriker quit and demanded payment of a retire-
ment payment at that time, Nourse would have similarly
refused. Other than this bare assertion, however, there
exists not a scintilla of corroborative evidence that Re-
spondent was financially unable to pay Belvill. More-
over, as will be fully explored below, I was not at all im-
pressed with Donald Nourse's demeanor and do not
credit his unsupported testimony. Accordingly, I do not
believe that Respondent has established that it would
have withheld payment of Belvill's retirement benefit,
notwithstanding his participation in the employees'
strike. As to the uncontroverted failure and refusal to
pay the requested vacation benefits to Ortega and Ve-
lasco whether, as asserted by Respondent, the former
was ineligible for additional vacation payments and the
latter had received all that was due to him is contingent
on the exigencies of Respondent's paid vacation policy, a
conclusion which depends on a resolution of the credibil-
ity of the witneses. In this regard, I profess that I was
less than impressed with the testimony of employee wit-
nesses Ortega and Velasco. Although the gist of their
testimony was that the policy was I week of paid vaca-
tion after I year of employment and 2 weeks after 2
years, I found their accounts inconsistent and confusing
particularly as to the matter of accrual and as to exactly
when employees became eligible to take their earned va-
cations. Despite the foregoing, I nonetheless believe that
their confusion was honest and not caused by deliberate
intent to fabricate and that each was a forthright and
candid witness. In contrast, Donald Nourse, who assert-
ed that an employee did not become eligible for 2 paid
weeks of vacation until he completed his third year of
employment, appeared to be a particularly disingenuous
witness. This conclusion is based not only on his de-
meanor while testifying but also on what I perceive as
constituting a deliberate falsehood-the matter of Orte-
ga's 6-week absence from work in 1979. While the em-
ployee testified that he had become disabled with a
"knee problem," Nourse insisted that Ortega had, in re-
ality, abruptly quit and departed for Mexico and that Re-
spondent's records contained no documents which would
substantiate Ortega's account. However, General Coun-
sel's Exhibit 10 clearly corroborates Ortega that he had
been treated for some sort of medical problem in July
1979, 4 days before the start of his 6-week absence from
work and that Respondent's insurance carrier paid a por-
tion of the medical-care costs. In these circumstances, I
credit the testimony of Ortega and Velasco over Donald
Nourse that Respondent's employees commenced earning
2 weeks' paid vacation during the second year of em-
ployment and are entitled to receive this benefit on their
second anniversary date. Therefore, I find merit in their
claims that each had accrued and accordingly was enti-
tled to receive earned vacation benefits prior to the start
of the strike.' 9 I further find that Respondent's asserted
defense in this regard is without merit as a sham.
Based on the foregoing, as the record fully warrants
the conclusion that Respondent harbored unlawful
animus based on the employees' participation in the
strike and as Respondent offered no credible business jus-
tification for its conduct, I further conclude that Re-
spondent violated Section 8(a)(1) and (3) of the Act by
failling and refusing to pay retirement benefits to Clifford
Belvill and accrued vacation benefits to Ramon Ortega
and Joseph Velasco. Stokely-Can Camp, 259 NLRB 961
(1981); General Time Corp., 249 NLRB 1204 fn. 2 (1980);
Wallace Metal Products, 244 NLRB 41 (1979).20
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By failing and refusing to pay retirement benefits to
Clifford Belvill and accrued vacation payments to
Ramon Ortega and Joseph Velasco because each partici-
pated in a strike against it, Respondent engaged in con-
duct violative of Section 8(a)(l) and (3) of the Act.
REMEDY
Having found that Respondent violated Section 8(a)(1)
and (3) of the Act in the foregoing manner, I shall rec-
ommend that it be ordered to cease and desist therefrom
'9 In agreement with Ortega, I believe that as of the date of his final
demand for payment of vacation pay, May 1982, Respondent owed him 2
weeks' paid vacation which was earned during the time period February
27, 1980, through February 26, 1981. Inasmuch as employees apparently
were permitted to take vacations when they desired and as the date of his
demand was within 6 months of the filing of the charge in Case 21-CB-
21628, 1 see no 10(b) problems. Also, in agreement with Velasco, I be-
lieve that as of the date of his final demand for payment of vacation pay,
September 1982. Respondent owed him I week of paid vacation, earned
during the time period September 21, 1980. through September 20, 1981.
I see no 10(1,) difficulties with the filing of the charge by Velasco.
20 In light of the existence of unlawful animus herein, I find it unneces-
sary to decide whether or not Respondent would have violated the Act
absent proof of antiunion motivation. .LRB v. Great Dane Trailers. 388
U.S. 26 (1967).
983
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and to take certain affirmative measures designed to ef-
fectuate the policies of the Act. Having found that Re-
spondent unlawfully refused to pay a retirement benefit,
based on an established formula, to Clifford Belvill and
accrued vacation benefits totaling a week's wages to
Joseph Velasco and 2 weeks' wages to Joseph Velasco, I
shall recommend that Respondent be ordered to pay said
benefits to each with interest to be computed in the
manner set forth in Isis Plumbing Co., 138 NLRB 716
(1962) and Florida Steel Corp., 231 NLRB 651 (1977).
Also, I shall recommend that Respondent be ordered to
post a notice, setting forth its obligations herein.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed 21
ORDER
The Respondent, Enterprise Aggregates Corporation,
Arcadia, California, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Failing and refusing to pay retirement benefits to
employees because they engaged in a strike against it.
(b) Failing and refusing to pay accrued vacation bene-
fits to employees because they engaged in a strike against
it.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
I2 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act.
(a) Pay to Clifford Belvill his retirement benefit, based
on the established formula, in the manner set forth in the
Remedy section herein, with interest.
(b) Pay accrued vacation benefits to employees Ramon
Ortega and Joseph Velasco in the manner set forth in the
Remedy section herein, with interest.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its plant located in Arcadia, California,
copies of the attached notice marked "Appendix." 22
Copies of said notice, 23 on forms provided by the Re-
gional Director for Region 21, after being signed by the
Respondent's authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
22 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."
I2 Copies of said notice should be in Spanish and English.
984