Enterprise Aggregates Corp.

National Labor Relations Board - Board Decisions

Aug 27, 1985

276 N.L.R.B. 71 (N.L.R.B. 1985)

ENTERPRISE AGGREGATES CORP
Enterprise Aggregates Corporation and Robert
Hansen and Joseph Valasco and Ramon
Ortega Cases 21-CA-22745, 21-CA-22844,
and 21-CA-22902
27 August 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 12 April 1984 Administrative Law Judge Jer
rold H Shapiro issued the attached decision The
General Counsel filed exceptions and a supporting
brief
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 brief i and
has decided to affirm the judge s rulings, findings,
and conclusions as modified and to adopt the rec
ommended Order 2
Although we agree with the judge s dismissal of
the complaint alleging that the Respondent violated
Section 8(a)(3) and (1) by refusing to pay retire
ment benefits to three employees who had engaged
in a strike, we do so for the reasons set forth
below
As more fully detailed in the judge's decision,
employees Robert Hansen Joseph Velasco, and
Ramon Ortega were eligible to receive a percent
age of their accumulated straight time wages as a
retirement benefit following termination of their
employment with the Respondent The record es
tablishes that the Respondent paid such benefits to
several employees prior to a strike which lasted
from November 1981 until May 1982 The three
employees involved here participated in the afore
mentioned strike In May 1982 the Respondent re
fused to pay retirement benefits to another striking
employee-Clifford Belvill-following Belvill s
tender of resignation In an earlier unfair labor
practice proceeding an administrative law judge
concluded on the evidence before him that the Re
spondent's refusal was based on its animosity
toward those who participated in the strike, thus
establishing an 8(a)(3) violation 3
I We agree with the General Counsel that in the first paragraph of sec
I B 2 of the judge s decision the judge inadvertently identified January
20 1983 as the date the Charging Parties quit the Respondent s employ
The proper date as reflected in the record and elsewhere in the decision
is 20 July 1983 This error is corrected
2 Chairman Dotson believes that an issue concerning the Board s Juns
diction is present here Nevertheless he concurs in the result of this case
7 Employees Velasco and Ortega were involved in that case also
where the judge found that the Respondents refusal to pay them vacs
tion benefits violated Sec 8(aX3) A Board majority recently affirmed the
71
On 21 June 1983 the Respondent ceased oper
ations for economic reasons and has not engaged in
business since that time By letters dated 20 July
1983 Hansen, Ortega and Velasco, who had been
awaiting reinstatement, informed the Respondent
that they were terminating their employment and
requested payment of their accrued retirement ben
efits The Respondent never replied to their re
quests The three subsequently charged that the
Respondent's failure to pay the benefits violated
Section 8(a)(3) since it allegedly hinged on their
participation in the strike
On our review of the record we conclude that
the General Counsel failed to provide evidence suf
ficient to support a finding that the Respondent
violated Section 8(a)(3) As the Board stated in
Wright Line 251 NLRB 1083, 1089 (1980) `[O]ur
task in resolving cases alleging violations which
turn on motivation is to determine whether a
causal relationship existed between employees en
gaging in union or other protected activities and
actions on the part of their employer which detri
mentally affect such employees employment ' The
burden of establishing that causal relationship be
longs to the General Counsel, whose initial respon
sibility is to provide a prima facie showing suffi
dent to support the inference that protected con
duct was a motivating factor' in the employer's de
cision " Ibid
In this case the General Counsel would have us
infer that the three employees involvement in the
strike was a motivating factor in the Respondent s
failure to pay their retirement benefits However,
the sole basis offered to support the proposed infer
ence is the prior decision with respect to employee
Belvill Such evidence alone is not sufficient to sat
isfy the General Counsel's burden See Bill Fox
Chevrolet 270 NLRB 568 (1984), Tama Meat Pack
mg Corp v NLRB, 575 F 2d 661 (8th Cir 1978),
cert denied 439 US 1069 (1979) The General
Counsel did not offer other evidence to support his
case For example, a showing that the Respondent
distributed retirement benefits to other employees
after its cessation of business would have substan-
tially supported the complaint allegations The ab
sence of such evidence is not helpful to the Gener
al Counsel s case See W & F Building Maintenance
Co, 268 NLRB 849, 852-853 (1984) We also note
that more than a year passed between the end of
the strike and the cessation of the Respondents op
erations followed by the employees' subsequent re
quest for retirement benefits In view of this pas
sage of time and in the absence of any evidence
judge s decision in all respects Enterprise Aggregates Corp 271 NLRB
978 (1984) (Member Hunter dissenting in part )
276 NLRB No 11
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that would suggest that the Respondent continued
to harbor a hostile attitude toward those who par
ticipated in the strike, we find that the General
Counsel failed to establish a connection between
the employees' protected activity and the failure to
pay retirement benefits
The absence of evidence sufficient to bridge the
causal gap between the employees strike activity
and the Respondent's conduct in this case con
vinces us that the General Counsel failed to meet
his initial responsibility under Wright Line On this
basis we adopt the judge's dismissal of the com
plaint
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis
missed
Frank M Wagner Jr for the General Counsel
Norman Jones Esq (Jones Jones & Jones) for the Re
spondent
DECISION
STATEMENT OF THE CASE
JERROLD H SHAPIRO Administrative Law Judge The
hearing in this consolidated proceeding which was held
February 28 1984 is based on unfair labor practice
charges filed against Enterprise Aggregates Corporation
(Respondent) by Robert Hansen in Case 21-CA-22745
on November 7 1983 by Joseph Velasco in Case 21-
CA-22844 on December 20 1983 as amended January
31 1984 and by Ramon Ortega in Case 21-CA-22902 on
January 11 1984 The Regional Director for Region 21
of the National Labor Relations Board (the Board) on
behalf of the Boards General Counsel issued a consoh
dated amended complaint in these cases on February 3
1984 alleging that since July 1983 Respondent has re
fused to pay Hansen Velasco and Ortega certain ac
crued fringe benefits because they engaged in union or
other protected concerted activities and that by engaging
in this conduct Respondent has violated Section 8(a)(1)
and (3) of the Act Respondent filed a timely answer to
the complaint denying the commission of the alleged
unfair labor practices
On the entire record t from my observation of the de
meanor of the witnesses and having considered the par
ties oral arguments and the General Counsels posthear
ing brief I make the following
1 The General Counsels motion to correct transcript is granted
FINDINGS OF FACT
I JURISDICTION AND THE ALLEGED UNFAIR LABOR
PRACTICES
A The Evidence
Respondent is a California corporation which for ep
proximately 11 years was engaged in the mining proc
essmg and the sale of concrete aggregates from its place
of business in Arcadia California Respondent ceased
doing business June 21 1983 but as of the date of the
hearing no action has been taken to liquidate the Compa
ny However all of Respondents equipment was repos
sessed by its creditors and Respondent has no assets Re
spondent was always an unprofitable business enterprise
and its operations for 1983 were essentially the same as
for 1982 and earlier years
In the normal course and conduct of its business oper
ations during calendar year 1982 which was also its
fiscal year Respondent purchased and received goods
and products valued in excess of $50 000 from suppliers
located within California each of which in turn pun
chased the same goods and products directly from sup
pliers located outside the State of California During the
approximately 6 months of its operation in 1983 before
ceasing operations in June Respondent purchased goods
and materials valued at $49 887 which included $10 702
in parts that were manufactured within California
Respondent employed approximately 15 employees as
production workers at its Arcadia plant who were rep
resented by Local No 12 International Union of Operat
mg Engineers AFL-CIO (the Union) until the Union in
January 1980 was decertified by the Board following a
Board conducted secret ballot decertification election
In March 1980 Respondents president Donald
Nourse held a meeting with the Company s production
workers and 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
mg for 1 year and that he contemplated some sort of an
IRA account which would pay an employee upon re
tirement a benefit of 6 percent of his straight time pay
He further said that under the plan employees would
accure benefits retroactive to January 1 1980 Thereaf
ter although no employee IRA accounts were ever actu
ally established Respondent carried on its books the
promised retirement benefits and paid to employees who
left it empioy b5 reason of retirement quit layoff dis
ability or death an amount equal to 6 percent of their
accumulated straight time pay Thus Darryl Clark and
David Warner who both quit in Septemeber 1980 Patn
cia Taylor who quit in November 1980 Eugene Kenne
dy who became disabled in November 1980 and Jerry
Bumgarner and Everett Yander who were laid off in
May 1980 all received amounts ranging from $431 to
$1271 in IRA benefits upon leaving their jobs Employee
Richard Harvey died on November 18 1980 and Re
spondent paid $1077 in IRA moneys to his estate
On November 17, 1981, approximately 13 production
workers employed at the Arcadia plant went out on
strike including the Charging Parties and there was
ENTERPRISE AGGREGATES CORP 73
picketing at the plant for approximately 5 months with
signs which read Enterprise Aggregates Not Paying
Prevailing Wages Operating Engineers Local 12 Sanc
tioned by the Construction Trades Council and by the
Teamsters During the strike Respondent permanently
replaced the staking employees with striker replace
ments
During the strike on December 10 1981 the 13 stnk
ers sent Nourse a joint letter which stated I the under
signed request an immediate payment for all the moneys
deposited in the Individual Retirement Account in my
name In response Nourse mailed the following identi
cally worded letter dated December 22 1981 to each of
the strikers including the Charging Parties
We are in receipt of the letter which you signed
along with the other employees dated December
10 1981 regarding payment of any moneys present
ly 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 or laid
you off we cannot disburse any moneys to you
unless you have quit To date we have not been no
tified of your having quit
In May 1982 just after the cessation o" the picketing a
group of the former striking employees including the
Charging Parties met in Respondents office with Nourse
and Respondent s labor relations consultant Norman
Jones The former strikers offered to return to work and
were advised by Nourse that they had been replaced by
striker replacements and would be called back to work
when their positions became available On the subject of
retirement benefits Nourse informed the group that he
could not do anything about paying these benefits until
the employees quit and the matter had been settled on
the picket line One of the former strikers referring to
Nourse s December 22 1981 letter which had indicated
that Respondent would pay them their accrued retire
ment moneys if they quit their employment asked
Nourse what would happen if he resigned and asked for
his money Nourse replied that was then and this is
now and told the employees that payment of the retire
ment moneys was as yet not under consideration by Re
spondent as it did not know where it stood at that point
In May 1982 following the aforesaid meeting striker
Clifford Belvill informed Respondent that he was resign
ing and requested the moneys owed to him under the
Respondents retirement program In violation of Section
8(a)(3) and (1) of the Act the Respondent refused to pay
Belvill the retirement fund moneys it owed him because
of its animosity toward the strikers for striking 2
2The fmdmgs concerning Respondents refusal in May 1982 to pay
Clifford Belvill moneys owed him under its retirement program are based
on Administrative Law Judge Burton Litvack s dec-ion issued on
August 2 1983 in Cases 21-CA-21337 and 21-CA-21628 Although the
Board has not issued its decision in this matter I presume that it will
affirm Judge Litvack s decision in this respect because the Respondent
did not except to that portion of the judge s decision
In late July 1983 Respondent received letters dated
July 20 1983 from the Charging Parties stating that
each of them as of July 20 had quit their position with
Respondent and requested all moneys due to them with
interest that had been contributed to the retirement ac
Lount during their employment with the Company Re
spondent did not respond to these letters
Velasco began work for Respondent in September
1978 Ortega began work for Respondent in February
1978 Hansen began work for Respondent in April 1979
The Charging Parties have been in the job market
since the strike ended but none of them has been perma
nently employed or been able to find regular and sub
stantially equivalent employment with another employer
as compared to the positions of employment each held
with Respondent prior to the strike
B Discussion and Conclusionary Findings
1 Jurisdiction
The Board will use an employers last full calendar or
fiscal year preceding the year in which the employer s
alleged unfair labor practices occurred to determine
whether it will assert jurisdiction over the alleged unfair
labor practices See Reliable Roofing Co 246 NLRB 716
fn 1 (1979) and cases cited therein Here as described in
detail supra Respondent during its last full calendar and
fiscal year prior to the alleged unfair labor practices met
one of the Board s applicable discretionary jurisdictional
standards the indirect inflow standard and was an em
ployer engaged in commerce within the meaning of the
Act 3 Under the circumstances the fact that during the
calendar and fiscal year in which the alleged unfair labor
practices took place Respondent did not meet the
Board s jurisdictional standard is an insufficient reason
for the Board not to assert jurisdiction Moreover the
assertion of jurisdiction is particularly appropriate in this
case because Respondents calendar and fiscal year
which coincided with the period when the alleged unfair
labor practices occurred was less than 7 months and
there is no evidence that 1982 was an unusual business
year for Respondent or that its business normally did not
meet the Board s jurisdictional requirements It is for all
of the foregoing reasons that I am of the opinion that the
Board has jurisdiction over the alleged unfair labor prac
tices herein
2 The alleged unfair labor practices
The Charging Parties were eligible under Respond
ent s retirement program to receive 6 percent of their ac
cumulated straight time pay for the period from January
1 1980 until January 20 1983 the date they quit their
employ Prior to the employees November 17 1981
strike Respondent paid those employees who quit its
employ the moneys which had been accrued for them
under Respondents retirement program However late in
5The Board asserts unsdiction over nonretail enterprises such as Re
spondent under the indirect inflow theory where the employer purchases
from sellers in the State at least $50 000 worth of goods which originate
outside the State Siemons Mailing Service 122 NLRB 81 85 ( 1958) and
Southern Dolomite 129 NLRB 1342 (1961)
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
July 1983 when the Charging Parties who had supported
the Union s strike quit Respondent s employ and asked to
be paid the moneys owed to them under Respondents
retirement program Respondent ignored their request
Previously in May 1982 in violation of Section 8(a)(1)
and (3) of the Act Respondent refused to pay striker
Clifford Belvill the retirement fund moneys owed to him
because of Respondents animosity towards the strikers
Assuming that these circumstances establish that the
General Counsel has proven by a preponderance of the
evidence that a motivating factor in Respondents July
1983 failure to pay the Charging Parties the retirement
fund moneys owed them was the fact that they had sup
ported the Union s strike I am persuaded for the reasons
set forth below that the record as a whole rebuts this
conclusion
The record establishes that Respondent had a legiti
mate business justification for its failure in July 1983 to
pay the retirement moneys it owed the Charging Parties
and that it would have failed to pay them these moneys
at that time irrespective of their support of the strike
Thus 1 month before Respondents July 1983 failure to
honor the Charging Parties request for their retirement
moneys Respondent which for several years had been
an unprofitable business enterprise ceased doing business
and although it still existed as a legal entity all of its
equipment was repossessed by its creditors and it had no
assets These circumstances and the lack of evidence that
Respondent has distributed any retirement moneys since
its closure persuade me that Respondent has proven that
it had a legitimate business justification for failing to
honor the Charging Parties request for their retirement
moneys and that it would not have honored those re
quests irrespective of the Charging Parties support of
the strike
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed4
ORDER
The amended consolidated complaint is dismissed in its
entirety
4 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