Escondido Ready-Mix Concrete, Inc.

National Labor Relations Board - Board Decisions

Mar 30, 1971

189 N.L.R.B. 442 (N.L.R.B. 1971)

442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Escondido Ready-Mix Concrete , Inc. and Building in Case 21-RC-11552 on March 5, 1970, be, and it
Material & Dump Truck Drivers Local No. 36, hereby is, set aside, and all proceedings in that case
International Brotherhood of Teamsters , Chauf- be, and they hereby are, vacated.
feurs, Warehousemen and Helpers of America
Escondido Ready-Mix Concrete , Inc. and Building
Material & Dump Truck Drivers Local No. 36,
International Brotherhood of Teamsters, Cauffeurs,
Warehousemen and Helpers of America , Petition-
er. Cases 21-CA-9060 and 21-RC-11552
March 30, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On November 16, 1970, Trial Examiner Stanley
Gilbert issued his Decision in the above-entitled
cases, finding that Respondent had engaged in certain
unfair labor practices and recommending that it cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. He also found that Respondent had not
engaged in certain other unfair labor practices and
recommended that the allegations of the complaint
pertaining thereto be dismissed. The Trial Examiner
further recommended that certain objections to the
election conducted in Case 21-RC-11552 be sus-
tained and that the election be set aside. Thereafter,
Respondent filed exceptions to the Trial Examiner's
Decision and a brief in part supporting its exceptions
and in part supporting the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a three-
member panel.
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, the exceptions and briefs, and
the entire record in these cases, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner and hereby orders that
Respondent, Escondido Ready-Mix Concrete, Inc.,
Escondido, California, its officers, agents, successors,
and assigns, shall take the action set forth in the Trial
Examiner's Recommended Order.'
IT IS FURTHER ORDERED that the election conducted
I In footnote 9 of the Trial Examiner's Decision, substitute "20" for
"10" days
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
STANLEY GILBERT, Trial Examiner: Based on a charge
filed on March 11, 1970, by Building Material & Dump
Truck Drivers Local No. 36, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, referred to herein as the Union or the Petitioner,
the complaint in Case 21-CA-9060 was issued June 18,
1970. Said complaint alleges that Escondido Ready-Mix
Concrete, Inc., variously referred to herein as the
Company, the Respondent, or the Employer, engaged in
conduct violative of Section 8(a)(1) and (5) of the Act.
Respondent by its answer denies that it committed the
unfair labor practices alleged in the complaint.
By order dated June 23, 1970, Case 21-RC-1 1552 was
consolidated with Case 21-CA-9060 for a hearing on
Objections I and 5 filed therein by the Union to the election
conducted by the Board on March 5, 1970.
Pursuant to notice a hearing was held in Vista, California,
on August 18, 1970, before the undersigned Trial Examiner.
Appearances were entered on behalf of all of the parties
and briefs were received from them within the designated
time.
On the entire record in this proceeding and on
observation of the witnesses as they testified, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Company, a California corporation, is engaged in
Escondido, California, in the manufacture and sale to retail
and nonretail customers of ready-mix concrete. During the
past calendar year the Company, in the course and conduct
of its business operations, sold and distributed ready-mix
concrete valued in excess of $500,000, and purchased and
received goods, materials, and supplies originating outside
the State of California valued in excess of $15,000.
As admitted by the Company it is, and has been at all
times material herein, an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
If. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
111. RESOLUTION OF THE ISSUES
The Bargaining Unit Involved Herein
There is no dispute that the bargaining unit involved
herein is appropriate for the purpose of collective
189 NLRB No. 69
ESCONDIDO READY-MIX CONCRETE 443
bargaining within the meaning of Section 9(b) of the Act.
Said appropriate bargaining unit is as follows:
All truckdrivers employed by the Company, excluding
all casual employees, office clerical employees, guards,
watchmen, and supervisors as defined in the Act.
The parties stipulated that at all times material herein there
were 16 employees in the aforesaid appropriate bargaining
unit and that during said period there was no change in
personnel.
On November 25,1969, a petition for an election was filed
in Case 21-RC-11552 and, pursuant to an order of the
Regional Director on January 27, 1970, directing an
election, and election by secret ballot was conducted on
March 5, 1970, among the employees in the
above-described bargaining unit. The results of the election
were as follows: There were 16 eligible voters and 16 votes
cast, 5 for the Petitioner and I I against.
On March 11, 1970, the Union filed timely objections to
the election and, as aforesaid, Case 21-RC-11552 was
consolidated with Case 21-CA-9060 for a hearing on two
of said objections (nos. 1 and 5).
The Issues in Case 21 -CA-9060
The issues raised by the pleadings are as follows:
I Whether the Union represented a majority of the
employees in the above-described appropriate bargaining
unit;
2. Whether Respondent on or about November 28,
1969, unlawfully interrogated employees;
3. Whether Respondent on or about January 13, 1970,
unlawfully attempted to and did bargain directly with the
employees in the aforesaid bargaining unit;
4. Whether Respondent on or about March 4, 1970,
unlawfully granted employees in the aforesaid bargaining
unit an immediate pay increase of $1 per hour without first
giving notice to, or bargaining with, the Union;
5. Whether the Respondent unlawfully refused to
bargain with the Union, and
6. Whether in the circumstances of this case a
bargaining order would be an appropriate remedy.
The Union's Majority Representation
As a result of a call in the early part of November 1969,
from Roger Tavernier, an employee in the bargaining unit,
Hugh McDonald, Jr., a business representative of the
Union, met with i I of the 16 employees in the bargaining
unit at Tavernier's home on November 17, 1969. All of said
employees signed authorization cards at that meeting.'
The Respondent contends that these cards cannot be
relied on as proof of majority on the claim that they were
solicited on the representation that they would be used only
for an election. Considerable testimony was elicited with
respect to statements regarding an election made by
McDonald at the meeting on November 17. The testimony
of employees who were present ranges from that of Joseph
Parcells who testified he did not remember any mention of
an election to that of several employees that the only use to
which the cards would be put would be to have an election.
These contradictions are explained by the credited
testimony of McDonald. He testified that his statements
regarding an election were made in response to a question
as to how the Union would proceed to obtain recognition
and bargain for them. He explained that the Union, after
obtaining authorization cards from a substantial majority,
proceeds by petitioning for an election and on winning the
election then bargains with the employer for a contract,
that the Union never obtained recognition through a "card
check." Thus, it is understandable that some of the
employees present would testify that he stated that the
cards would only be used to obtain an election.
However, it is evident from the circumstances that the
employees did not sign the cards merely for an election to
determine whether a majority wished to have the Union
represent them. It is clear from McDonald's credited
testimony as well as the credited testimony of Parcells that
by signing the cards the 11 employees present intended to
authorize the Union to represent them as their bargaining
agent. McDonald discussed with them the advantages of
having a union contract and then they requested that he
step out of the meeting to permit them "to talk over whether
to ask the Union to represent us or whether we wanted to go
to the management by ourselves," chiefly to obtain a raise.
It appears that they decided among themselves "that the
Union would be the best way to go after it." Before he left
the room McDonald left blank authorization cards on a
table and when he returned he found authorization cards
signed by all of the employees present. Thus, it is concluded
from the circumstances that the authorization cards were
signed by the I I employees not for the sole purpose of
obtaining an election, but to signify that they wanted the
Union to represent them as their collective-bargaining
agents.2 Levi Strauss & Co., 172 NLRB No. 57. True, they
were told that the cards would be used to obtain an
election, but not for the purpose of testing whether a
majority wanted the Union to represent them but as a means
of establishing the Union as their representative.
Shortly after the meeting of November 17, four of the five
employees in the unit who had not attended the meeting
also signed authorization cards. There is no evidence in the
record which would support a finding that three of said
cards were signed only for the purpose of obtaining an
election. However, this cannot be said of the fourth card,
which was signed by David Smith. Smith testified and his
testimony is uncontradicted and credited that he obtained
the card from Tavernier and that Tavernier and other
employees told him it was "just to hold an election." There
is no indication that in the circumstances in which he
i The authorization cards were in the form of applications for
membership and included a paragraph which clearly stated that the
individual signing it authorized the Union to act as his
collective-bargaining representative During the course of the hearing,
counsel for Respondent raised a question as to the validity of the
authoiizations based on the paragraph in the application which provided
for forfeiture of any money paid toward the initiation fee if the initiation
fee is not paid in full within 31 days and the fact that none of the
employees paid the initiation fee This contention is without merit and it is
noted that Respondent made no mention of it in its brief The forfeiture
provision would not affect the validity of the authonzation provision
2 This conclusion is buttressed by the action of the employees on
January 13, 1970, at which time, as described more fully herembelow, all of
the employees in the bargaining unit indicated to Respondent that they
wanted a contract between the Union and their employer
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signed the card he must have reasonably understood that
the election would not be for the purpose of testing whether
a majority wanted the Union but as a device to obtain
union representation. Consequently, it cannot be found
that by signing his card David Smith intended to authorize
the Union to represent him.
It is concluded that commencing on November 17, 1969,
the Union represented a majority of the employees in the
bargaining unit, 11 of 16 as of November 17, and 14 of 16 as
of November 20, 1969.
The Request for Recognition
On November 18, 1969, the Union sent a letter to the
Respondent addressed as follows:
Ready Mix Concrete, Inc.
1508 Mission Road
Escondido, California
In said letter the Union advised Respondent that the
majority of its employees in the unit described as "all
regular full time production and maintenance employees"
had authorized it as their bargaining representative and
demanded recognition . Also in said letter the Union offered
to submit proof of its majority status . By letter dated
November 19, 1969, Respondent informed the Union that
it did not believe it enjoyed majority status and suggested
recourse to the Board. On February 16, 1970, the Union
sent another letter to Respondent similarly addressed and
similar in content to that of the earlier letter with the
exception that the unit was described as "all truck drivers."
By letter dated February 23, 1970, Respondent replied as
follows:
For your records there is no such firm at that address.
If, however, you s[h]ould mean Escondito [Escondido]
Ready Mix Concrete, Inc. would you so indicate.
The Union made no reply to Respondent's letter of
February 23, and there was no further correspondence
between them.
It appears that counsel for Respondent, during the course
of the hearing, raised the question of whether the February
16 letter constituted an effective demand in that it was
addressed to Ready Mix Concrete, Inc., instead of
Escondido Ready-Mix Concrete, Inc. Although the previ-
ous letter was similarly addressed, the Respondent
apparently was not confused as to whether it was the
intended addressee of that letter. Shortly thereafter and
well before the second letter, it received a copy of the
petition in Case 21-RC-11552. By the time the February
16th letter was received Respondent was well aware of the
Union's interest in its drivers and their interest in it. The
Trial Examiner is of the firm opinion that the claim by
Respondent of a doubt as to whether the Union's letter of
February 16 was addressed to it or some other company
was wholly specious and that the question in its letter of
February 23, 1970, as to whether it was the intended
addressee of the Union's letter did not merit an answer. It is
3 It is inferred from this testimony of what he stated to Brouwer and
Reiff that Parcells was asked what he thought of the Union . It is, of course,
not clear in what context the question was propounded It might very well
noted that no mention of this claim of doubt is made in
Respondent's brief.
As to the description of the bargaining unit in the first
letter, the record does not disclose whether or not the
Respondent had employees other than the truckdrivers and
whether they could be classified as production or
maintenance employees. Although not specifically raised
herein by Respondent, there is a question whether the first
demand was ineffective with respect to Respondent's
drivers by reason of the wording of the unit description.
However, it is not necessary to resolve this question
inasmuch as it is apparent that the second demand which
clearly refers to the truckdrivers was effective with respect
to the bargaining unit described in the complaint. (It is
noted that the record discloses that as early as November
28, 1969, the Respondent understood the Union was
seeking to represent its drivers as indicated by its
interrogation of one of its drivers on or about that date.
Any doubt that the Respondent could have had as to
whether the Union was seeking to represent the drivers
must have been dispelled when the petition was amended
on December 9, 1969, to include "truck drivers.")
The Interrogation
The only evidence in the record of interrogation of an
employee by Respondent is the uncontradicted and
credited testimony of Parcells. He testified with respect to a
conversation he had with Jacob Brouwer and Jerry Reiff,
president and vice-president respectively of Respondent,
within a few days after the petition was filed (on November
25). According to his testimony, Brouwer and Reiff told
him that they had received the Union's petition for an
election. His entire testimony with respect to interrogation
is contained in his answer to a question as to what was said
at the time "concerning the Union." His said answer is as
follows:
A. As I remember, it came up when they were
talking about what I thought of the Union, and I said I
didn't think it was anything of their, you know,
anything of their business, you know, what I thought
about it.3
There is no evidence that during the course of this
conversation, or at any time fairly contemporaneous
thereto, the Respondent engaged in conduct constituting a
threat or pormise of benefit or exhibited union ammus. The
only acts of the Employer constituting independent
violations of Section 8(a)(l) of the Act did not occur until
January 13, 1970, and March 4, 1970, as found below. In
the circumstances, particularly in light of the facts that the
questioning of Parcells was the only instance of interroga-
tion, that it was unaccompanied by threats or promises of
benefit, and that it was remote in time from any conduct of
Respondent found to be independently violative of Section
8(a)(1) of the Act, it is inferred that said interrogation could
not reasonably have interfered with, restrained, or coerced
Parcells or other employees in the exercise of their Section 7
rights.
Therefore, it is concluded that the General Counsel has
have been asked in the course of a discussion about the Union in which he
was voluntarily participating
ESCONDIDO READY-MIX CONCRETE
failed to sustain the burden of proof of the allegation in the
complaint that Respondent unlawfully interrogated its
employees.
Respondent's Attempt to Bargain
Directly with Employees
Testimony was elicited from a number of General
Counsel's witnesses with respect to events on January 13,
1970, which the General Counsel contends supports the
allegation in the complaint that Respondent attempted to
and did bargain directly with employees. Respondent did
not call any witnesses to testify with respect to said
allegation. While the testimony of General Counsel's
witnesses in not wholly consistent and in some respects
contains contradictions, the Trial Examiner credits certain
material portions of said testimony and based thereupon
makes the findings of fact set forth herembelow.
On January 13, 1970, Respondent notified the employees
(by showing them or posting a notice) that Respondent had
been advised by its attorneys that it was their opinion that it
could discuss with employees the matter of wages and
benefits and that the employees had until 5 p.m. that day to
submit a wage proposal. Late in the afternoon of that day,
all 16 employees in the bargaining unit met at a cafe in
Escondido. They discussed Respodent's notice and what
steps they should take. Parcells suggested that the Union be
consulted and by telephone discussed the matter with a
union attorney. The attorney advised him that, if the
employees desired to do so, they give the Respondent a
copy of the union contract and inform Respondent that the
contract was what the employees wanted. Parcells then
related to the other employees the advice he had received.
The entire union industry contract was read aloud at the
meeting, the employees discussed it, and they agreed that
they would follow the advice given them by the union
attorney. All 16 drivers then proceeded to Respondent's
plant and gathered in the office. Fourteen of the drivers
remained in the outer office. The other two proceeded into
the inner office, gave Brouwer and Reiff a copy of the
union contract, and told them that that is what the drivers
wanted. Respondent indicated that the contract was not
acceptable, that it would not "fit its operations." Thereafter
there was discussion about safety matters. In its brief
Year From -- to
1965 $2.50 -- $2.70
1966 $2.70 -- $3.00
$3.00 -- $3.20
445
Respondent argues by way of defense that "there was no
direct bargaining with the employees over wages, hours,
and working conditions."
Respondent's conduct clearly constituted an offer to the
employees to bargain directly with them, despite the
pendency of the Union's petition for an election, and by its
offer to entertain a wage proposal from employees, it
impliedly promised that it would grant a wage increase if
the amount proposed by the employees did not exceed that
which the Respondent was willing to give. It is evident that
Respondent's conduct was calculated to induce the
employees to withdraw from their adherence to the Union.
It is concluded that, by offering to entertain wage
proposals from the employees (thus bypassing the Union)
and impliedly promising that it would grant wage increases
to an extent acceptable to it, Respondent interfered with
the rights of employees to organize for mutual aid in
violation of Section 8(a)(1) of the Act. Cf. N.L.R.B. v.
Exchange Parts Co., 375 U.S. 405,409 (1964).
In addition , it is noted that the employees in the
bargaining unit unanimously decided to notify the
Respondent that they wanted the union contract and by so
doing clearly demonstrated that they wanted the Union to
act as their representative and afforded Respondent
objective evidence of the Union's majority representation.
This action by the employees supports the above finding
that by signing authorization cards 14 of the 16 employees
in the bargaining unit intended to authorize the Union to
act as their representative.
The Wage Increase on March 4, 1970
As noted above, the Board conducted an election in the
bargaining unit involved herein on March 5, 1970. On the
preceding day, March 4, 1970, the employees in the
bargaining unit received their paychecks, which contained
a wage increase of 1 per hour for the pay period beginning
February 14, 1970. In its brief, the Respondent defends its
action by the argument that it had a "prior policy on
granting such wage increases each year." Citing Union
Carbide Caribe, Inc., 173 NLRB No. 131.4
The pattern of wage increases granted by the Respondent
for the period between 1965 and the date of the hearing was
as follows:
Date
Increase Increase
Per hour Effective
20 cents March 1, 1965
30 cents March 1, 1966
20 cents December 1, 1966
(continued)
4 The case cited by Respondent is of no aid to it since the Board found
in said case that the respondent therein violated Section 8(a)(5) and (1) of
the Act "by unilaterally announcing and thereafter effectuating increases in
the wages and other benefits of the unit employees "
446
Year
1967*
1968
1969
1970
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
From -- to
$3.20 -- $3.40
$3.40 -- $3.50
$3.50 -- $3.60
$3.60 -- $4.00
$4.00 -- $5.00
Date
Increase Increase
Per hour Effective
20 cents February 23, 1967
10 cents
10 cents
40 cents
$1.00
March 7, 1968
September 1, 1968
March 1, 1969
February 14, 1970
*Payroll period changed from twice monthly to every 2 weeks
with payroll period ending every other Saturday and pay
checks distributed to employees on the following Wednesday.
It appears that the practice of the Respondent was to
grant a wage increase effective on or about the beginning of
March each year. It is further noted that , except for 1970,
the only year in which the increase was effective prior to
March 1 was in 1967 and that in that year the increase was
effective as of February 23. In 1970, the increase was made
effective as of February 14, and, as a result , the checks
reflecting said increase were distributed on March 4, 1970,
the day prior to the election. No notice was given either to
the Union or the employees prior to March 4 of the
intention to grant the increase. It is also noted that the
amount of increase ( 1 per hour) was considerably greater
than any prior increase granted.
Apparently to justify the amount of the raise, Reiff
testified that on September 1, 1969, there was a consider-
able increase in the price of its product to its customers.
However , Reiff also testified that in 1968 there was an
increase in the price of its product in August or September,
and it is noted that in that year about the same time as the
price increase was put into effect the employees were also
given a wage increase . No explanation was offered as to
why there was a delay of approximately 6 months in
granting a wage increase after the price increase in
September 1969. The Trial Examiner is convinced that,
even if the substantial amount of the wage increase (2 1/2
times the largest previously given ) was economically
justified ,5 the timing in giving effect to it was reasonably
calculated to induce the employees to vote against the
Union by eliminating the primary purpose for which the
employees sought union representation . The record fails to
estaolish any other reason for the timing of said raise. If the
general pattern of the timing of previous raises had been
followed , the employees would not have received their
checks reflecting the raise until after the election , i.e., if the
raise had been made effective on or about March 1, the
checks reflecting the raise would not have been given to the
employees until about the middle of March.
It is concluded that, in the circumstances , Respondent's
5 The only evidence submitted by Respondent to prove economic
justification for the substantial raise given was the testimony of a
unilateral granting (on March 4, 1970) of the wage increase
which was made effective as of February 14, 1970, was
violative of Section 8(a)(I) of the Act.
The Unlawful Refusal to Bargain
Respondent, by its answer, admits the allegation of the
complaint that commencing November 18, 1969, it has
refused to bargain with the Union. It has been found
hereinabove that commencing on November 17, 1969, the
Union was authorized by a substantial majority of the
employees in the bargaining unit to act as their representa-
tive; that even though the description of the bargaining unit
in the Union's letter of November 18, 1969, may not have
been an appropriate description of the bargaining unit
sought, the Respondent shortly thereafter was aware that
the Union was seeking to represent the drivers; that in any
event, the unit was unambiguously described in the Union's
letter of February 16, 1970; and that on January 13, 1970,
the Respondent had objective evidence that the entire unit
desired to have the Union represent them. Therefore, it is
concluded that by refusing to bargain with the Union, by
offering to bargain directly with the employees and
impliedly promising to grant wage increases on January 13,
1970, and by unilaterally granting substantial wage
increases on March 4, 1970 (effective as of February 14,
1970), Respondent violated Section 8(a)(5) and (1) of the
Act.
The Appropriateness of a Bargaining Order
General Counsel contends that the appropriate remedy
herein would be to issue a bargaining order and cites in
support of his contention, Tower Enterprises, Inc., 182
NLRB No. 56, C & G Electric, Inc., 180 NLRB No. 52, and
N. L. R. B. v. Gissel Packing Co., 395 U.S. 575.
It is well established that where an employer's unfair
labor practices are relatively inconsequential and do not
substantially interfere with the free choice of the bargaining
substantial increase , some six months earlier, in the price of its product
ESCONDIDO READY-MIX CONCRETE
representative, a cease and desist order may be adequate to
remedy the unlawful conduct and permit employees a free
choice in a Board-conducted election. Under the doctrine
in the Gissel case, supra, the bargaining order remedy is
appropriate in situations where, in fact, a union's majority
can be established by authorization cards and the nature
and extensiveness of the employer's unfair labor practices
appear to make a subsequent free choice by the employees
problematical.
In 1 he instant case, not only was the majority established
by authorization cards but also the Respondent had
objective evidence that the Union's assertion of majority
representation was well-founded. The record shows that
the primary purpose the employees had in authorizing the
Union to represent them was to gain a wage raise. By
granting a wage raise on the day prior to the election, it is
inferred that the Respondent effectively destroyed the
Union's status as a representative of a majority of the
employees, since their very purpose for authorizing the
Union was eliminated. Consequently, in order to remedy
the conduct of Respondent which was found hereinabove
to have violated Section 8(a)(5) and (1) of the Act, it is
deemed necessary to issue not only a cease and desist order
but also an order to bargain, because it is unlikely a fair
election could be held. N.L.R.B. v. Gissel Packing Co.,
supra, Tower Enterprises, Inc, supra, C & G Electric, Inc.,
supra; and Pacific Abrasive Supply Co., 182 NLRB No. 48.6
It should be noted at this point that, based on the findings
hereinbelow that two of the Union's objections to the
election are meritorious, the Order which is recommended
will provide that the election on March 5, 1970, be set aside.
The Objections to the Election
The aforesaid objections to the election are as follows:
Objection 1
The Employer granted bargaining unit employees a
substantial increase in wages with the object and purpose of
dissuading employees from engaging in protected concert-
ed activities.
Objection 57
The Employer, by these and other acts and conduct
coerced, restrained, and intimidated its employees in an
effort to dissuade them from engaging in protected
concerted activities.
With respect to Objection 1, inasmuch as the conduct
described therein was found hereinabove to constitute an
unfair labor practice and to have been reasonably
calculated to undermine the employees' adherence to the
Union, it is found that Objection I is meritorious.
With respect to Objection 5, it is noted that in his Order
providing for a hearing in this proceeding on the aforesaid
objections the Regional Director related Objection 5 to
allegations of unfair labor practices in the complaint. The
only allegations in the complaint which would relate to this
6 The Pacific Abrasive case is cited in further support of the
determination of the appropriateness of a bargaining order in that in said
case a bargaining order was deemed appropriate where the Respondent
refused to bargain with the union despite objective evidence (other than
447
objection are (1) that the Company unlawfully interrogated
its employees and (2) that on January 13, 1970, it attempted
to and did bargain directly with the employees.
It was found that the allegation of unlawful interrogation
was not sustained and, therefore, it is concluded that the
evidence of the conduct of Respondent relating to said
allegation does not sustain this objection. It was also found,
however, that Respondent engaged in unfair labor practices
in attempting, on January 13, 1970, to bargain with the
employees in order to bypass the Union, impliedly
promising a wage increase. Although the record discloses
that said conduct of the Company apparently did not
dissuade employees, at that time, from their adherence to
the Union (since they informed the Company that they
wanted a union contract), nevertheless, considered in light
of the subsequent conduct on March 4, 1970 (when the
Respondent unilaterally granted a wage increase), it affords
a basis, in the Trial Examiner's opinion, for a finding that
the Company's said conduct on January 13 must have
reasonably had the effect on the employees of persuading
them that it would be to their advantage to bargain directly
with the Company and forego their allegiance to the Union.
Consequently, it is found that Objection 5 is meritorious.
In view of the above findings with respect to the
objections to the election, it is concluded that the
Company's conduct must have reasonably affected the
results of the election and, therefore, it will be recommend-
ed that the election on March 5, 1970, be set aside.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unfair labor practices of the Respondent set forth in
section III, above, occurring in connection with its
operations described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
It having been found that Respondent engaged in certain
unfair labor practices, it will be recommended that
Respondent be ordered to cease and desist therefrom and
take certain affirmative action designed to effectuate the
policies of the Act.
It having been found that Respondent unlawfully refused
to bargain with the Union as the exclusive representative of
its employees in an appropriate unit, it will be recommend-
ed that Respondent be ordered to bargain collectively with
the Union, upon request, and, in the event an understand-
ing is reached, embody such understanding in a signed
agreement.
On the basis of the foregoing findings of fact and on the
entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is, and at all times material herein has
authorization cards) that the employees wished union representation (as is
true in the instant case).
7 This final objection was not assigned a number in the objections as
filed by the Petitioner
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been, 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
meaning of Section 2(5) of the Act.
3. All truckdrivers employed by Respondent, excluding
all casual employees, office clerical employees, guards,
watchmen, and supervisors as defined in the Act, constitute
a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. The Union is, and at all times since November 17,
1969, has been, the exclusive representative of the
employees in the aforesaid unit for the purposes of
collective bargaining with respect to rates of pay, wages,
hours of employment, and other terms and conditions of
employment
5. By refusing, on request, to bargain in good faith with
the Union as the representative of its employees in the
above-described appropriate bargaining unit, by offering
to bargain directly with employees in an attempt to bypass
the Union, impliedly promising them a wage increase, on
January 13, 1970, and by unilaterally granting a wage
increase on March 4, 1970, Respondent has engaged in
unfair labor practices within the meaning of Section 8(a)(5)
and (1) of the Act.
6. The General Counsel has failed to sustain the burden
of proof of the allegation in the complaint that Respondent
violated Section 8(a)(1) of the Act by unlawfully interrogat-
ing its employees.
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
It is hereby ordered that Escondido Ready-Mix Con-
crete, Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Offering to bargain directly with employees in an
attempt to bypass the Union, or any other authorized
representative of its employees.
(b) Promising employees wage increases to induce them
to forego their adherence to the Union, or any other labor
organization.
(c) Granting employees wage increases to induce them to
forego their adherence to the Union, or any other labor
organization.
(d) Refusing to bargain collectively with the Union as the
exclusive representative of employees in the appropriate
unit described above
(e) In any like or related manner interfering with the
rights of employees guaranteed them in Section 7 of the
Act
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Upon request, bargain collectively with the Union as
the exclusive representative of the employees in the
above-described appropriate unit, and embody in a signed
agreement any understanding reached
(b) Post at its Escondido, California, place of business
copies of the attached notice marked "Appendix." 8 Copies
of said notice, to be furnished by the Regional Director for
Region 21, shall, after being duly signed by an authorized
representative of Respondent, be posted by Respondent
immediately upon receipt thereof and maintained by it for
a period of at least 60 consecutive days thereafter in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of receipt of this
Order, what steps Respondent has taken to comply
herewith .9
The allegation in the complaint that Respondent
unlawfully interrogated its employees should be, and is
hereby, dismissed.
Objections 1 and 5 filed by the Union to the election
conducted on March 5, 1970, have been found to be
meritorious and said election is hereby set aside.
8 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations , and Order herein shall, as
provided in Section 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 In the event that the
Board's Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "posted by order of the National
Labor Relations Board" shall be changed to read "posted pursuant to a
Judgment of the United States Court of Appeals enforcing an order of the
National Labor Relations Board "
9 In the event that this Order is adopted by the Board, this provision
shall be modified to read "Notify the Regional Director for Region 21, in
writing, within 10 days from the date of this Order, what steps it has taken
to comply herewith "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT offer to bargain directly with our
employees in an attempt to bypass the Building
Material & Dump Truck Drivers Local No. 36,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any other
authorized representative of our employees.
WE WILL NOT promise employees wage increases to
induce them to forego their adherence to said Union or
any other labor organization.
WE WILL NOT grant employees wage increases to
induce them to forego their adherence to said Union or
any other labor organization.
WE WILL NOT refuse to bargain collectively with said
Union as the exclusive representative of our employees
in the appropriate bargaining unit described as follows:
All truckdrivers, excluding all casual employees, office
clerical employees, guards, watchmen, and supervisors
as defined in the Act.
WE WILL NOT in any like or related manner interfere
with the rights of our employees guaranteed them in
Section 7 of the Act.
WE WILL, upon request, bargain collectively with said
Union as the exclusive representative of our employees
in the above-described appropriate bargaining unit,
ESCONDIDO READY-MIX CONCRETE 449
and embody in a signed agreement any understanding This is an official notice and must not be defaced by
reached . anyone.
This notice must remain posted for 60 consecutive days
ESCONDIDO READY-MIX from the date of posting and must not be altered, defaced,
CONCRETE, INC. or covered by any other material.
(Employer) Any questions concerning this notice or compliance with
its provisions, may be directed to the Board's Office,
Dated By Eastern Columbia Building, 849 South Broadway, Los
(Representative) (Title) Angeles, California 90014 , Telephone 688-5200.