Folson Ready Mix, Inc.

National Labor Relations Board - Board Decisions

May 9, 2003

338 N.L.R.B. 1172 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1172
Folsom Ready Mix, Inc. and Chauffeurs, Teamsters
& Helpers Local Union No. 150, International
Brotherhood of Teamsters, AFL–CIO. Case 32–
CA–19801
May 9, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS WALSH
AND ACOSTA
On February 10, 2003, Administrative Law Judge John
J. McCarrick issued the attached decision. The Respon-
dent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated 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, and has decided to
affirm the judge’s rulings,1 findings, and conclusions2
and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Folsom Ready Mix, Inc.,
Rancho Cordova, California, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order.

Jennifer E. Benesis, Esq., for the General Counsel.
E.A. Hubbert Jr., Esq. (Rediger, McHugh & Hubbert, LLP), of
Sacramento, California, for the Respondent.
DECISION
STATEMENT OF THE CASE
JOHN J. MCCARRICK, Administrative Law Judge. This case
was tried before me in Sacramento, California, on December

1 Respondent excepts to the judge’s granting of the General Coun-
sel’s motion to amend the complaint. We find that the judge properly
granted the motion. Rule 102.17 allows for the amendment of a com-
plaint before, during, or after a hearing upon such terms as may be
deemed just. Whether it is just to grant a motion to amend a complaint
depends on whether the new allegations are closely related to the alle-
gations of the complaint, see Payless Drug Stores, 313 NLRB 1220,
1221 (1994), and whether the amendments are so late that the Respon-
dent will be prejudiced by them, see New York Post, 283 NLRB 430,
431 (1987). We agree with the judge that the new allegations proposed
by the General Counsel in his motion to amend arose from the same
leafleting incidents that gave rise to certain of the other complaint alle-
gations, and find that the amendments, being made at the beginning of
the hearing, were not so late as to prejudice the Respondent.
2 Respondent excepts to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law
judge’s credibility resolutions unless the clear preponderance of all the
relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951.) We have carefully examined the record and find no basis for
reversing the findings.
17, 2002 upon the General Counsel’s complaint1 which alleges
that Respondent violated Section 8(a)(1) and (3) of the National
Labor Relations Act (the Act). The principal issues presented
are:

1. Did Respondent violate Section 8(a)(1) of the Act
by creating the impression of surveillance of employees’
union activities?
2. Did Respondent violate Section 8(a)(1) of the Act
by engaging in surveillance of employees’ union activi-
ties?
3. Did Respondent violate Section 8(a)(1) of the Act
by attempting to hit union organizers with a vehicle to in-
terfere with leafleting and soliciting employees?
4. Did Respondent violate Section 8(a)(1) of the Act
by interrogating an employee about his union activities?
5. Did Respondent violate Section 8(a)(1) of the Act
by threatening an employee with discharge for engaging in
union or protected-concerted activity?
6. Did Respondent violate Section 8(a)(1) and (3) of
the Act by terminating Robert Lahn (Lahn) for engaging in
union activities.

Respondents filed a timely answer and denied any wrongdo-
ing.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs of the
parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
Folsom Ready Mix, Inc. (Respondent) is a California corpo-
ration with an office and place of business in Rancho Cordova,
California that is engaged in the retail sale of cement and ag-
gregate concrete. During the past 12 months, Respondent, in
the course and conduct of its business derived gross revenues in
excess of $500,000 and has purchased and received goods val-
ued in excess of $50,000 directly from suppliers located outside
the State of California.
Respondent admitted and I find that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
1 At the hearing, counsel for the General Counsel moved to amend
par. 5 of the complaint to allege that Jack Eaton (Eaton), Respondent’s
training supervisor/truck boss is a supervisor within the meaning of the
Act and by adding paragraph 6(d) to allege that Respondent through
Eaton on an unknown date in June or July 2002, threatened an em-
ployee with discharge if the employee picked up a union flyer from a
union representative who was distributing flyers near Respondent’s
facility. Over counsel for Respondent’s objection, I granted counsel for
General Counsel’s motion to amend the complaint and denied Respon-
dent’s motion for a 90-day continuance. Counsel for General Counsel
advised Respondent’s counsel on December 13, 2002, that she intended
to amend the complaint as set forth above. The amendments are suffi-
ciently related to the extant allegations of the complaint and arise from
the same set of circumstances such that no prejudice is visited upon
Respondent. Payless Drug Stores, 313 NLRB 1220, 1221 (1994).
Respondent admitted the supervisory status of Eaton.
338 NLRB No. 181
FOLSOM READY MIX, INC. 1173
Respondent admitted and I find that Chauffeurs, Teamsters
& Helpers, Local Union No. 150, International Brotherhood of
Teamsters, AFL–CIO (Union) is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. The union organizing, interrogation, threats,
and surveillance
Respondent has been engaged in the sale and distribution of
concrete from its batch plant (facility) located at 11374 Gold
Dredge Way in Rancho Cordova, California. Respondent’s
owner and president is Scott Silva (Silva). Respondent’s vice
president and operations manager is Randy Barnes (Barnes).
Matt Barsamian (Barsamian) is Respondent’s lead dispatcher
and Jack Eaton is Respondent’s training supervisor/truck boss.
Respondent’s employees contacted Edward Rogers (Rogers),
business agent/organizer for the Union between April and June
2002.2 On June 26, Rogers and Michael Tobin (Tobin), the
Union’s organizer, distributed leaflets at Respondent’s facility.
On July 3, Rogers and Tobin returned to Respondent’s facility
and distributed more leaflets to Respondent’s drivers, including
driver Lahn. The leaflets announced a union meeting on July 9
at Mountain Mikes Pizza on Bradshaw Road in Rancho Cor-
dova. While Rogers and Tobin were handing out the leaflets on
the sidewalk near the driveway entrance to Respondent’s facil-
ity, Barnes drove his pickup truck up over the curb forcing both
Rogers and Tobin to move out of the way.3 Barnes asked
Rogers and Tobin, “Are you stopping my drivers?” Rogers
replied, “No, I’m waving to them and announcing a meeting.”
Barnes then sped off showering Rogers and Tobin with dirt and
rocks from his spinning tires.
Barnes denied attempting to run over Rogers and Tobin on
July 3. Rather he contends he simply pulled the truck far to the
right to avoid blocking the driveway. Barnes said that the truck
tires spun and threw up dirt because he was not familiar with
the truck he was driving. Based upon Rogers and Tobin’s tes-
timony, General Counsel’s Exhibits 5 and 8 and Respondent’s
Exhibit 5, it is clear that Barnes drove over the curb near where
Rogers and Tobin were standing. It is unlikely Barnes’ truck
tires would have thrown up dirt at Rogers and Tobin unless he
had crossed into the dirt area shown on the exhibits by driving
over the curb and nearly hitting the union representatives. I
find that Rogers and Tobin were credible witnesses while Bar-
nes was disingenuous. Barnes’ excuse for peeling out of the
dirt area and throwing up dirt on Rogers and Tobin is specious.
Barnes further compromised his credibility by lying about en-
gaging in surveillance of the July 9 union meeting. Barnes said
he was at the gas station to get a soft drink not to watch the
union meeting. However, Barnes later admitted on cross-

2 All dates are in 2002 unless otherwise specified.
3 At the time of this incident one of Respondent’s drivers was com-
ing down Respondent’s driveway where he could see the incident.
Later that day a senior driver named Bob told another of Respondent’s
drivers, Jim Trousdale, that Barnes had tried to run over a union repre-
sentative in front of the facility.
examination, when confronted with his Board affidavit, that he
had gone to the restaurant on July 9 to see the union meeting. I
do not credit Barnes’ testimony.
On July 3, while at work, Lahn spoke with three other driv-
ers about the union meeting to be held on July 9. On July 5,
Lahn signed an authorization card for the Union.
In June or July Eaton approached Respondent’s driver, Jim
Trousdale as Trousdale was leaving the facility. Eaton said,
“[T]hat there was a union official out in front of the plant, and
that if I stopped to talk to him or accept any literature from him,
I was fired.”
Eaton denied telling Trousdale he would be fired if he talked
to the union official or accepted any literature from him. Eaton
admitted he told Trousdale not to stop and get a flyer from the
union representatives. Eaton’s concern was allegedly that
trucks were blocking the exit from Respondent’s facility.
Eaton’s proffered reason is specious. There is no evidence that
Respondent’s drivers were blocking the exit by picking up
cross traffic at the exit onto Gold Dredge Road. Moreover,
there is sufficient space at the sidewalk for two vehicles to pass.
I credit Trousdale’s testimony.
At work on Saturday, July 6, after returning from a delivery,
Lahn spoke with Barsamian. Lahn facetiously thanked Bar-
samian for sending him out on a particularly nasty job. Bar-
samian said he did not send Lahn out on the job. Lahn said,
“Well if you didn’t do it, who did?” Barsamian replied that
Barnes had sent him because Barnes and Silva were mad at
Lahn for organizing the Union and betraying them. This was
part of the payback. Barsamian said Barnes and Silva couldn’t
understand why Lahn was organizing the Union since he was at
the top of the pay scale, was driving a new truck, had seniority
and had just about everything the company could offer. Lahn
told Barsamian he had nothing to do with organizing the Union.
Barsamian said Lahn better get hold of Barnes and have a talk
because things were getting pretty damn hot.
Barsamian denied only that he told Lahn Barnes and Silva
were mad at him for organizing the Union. I find that Lahn’s
testimony concerning this conversation was more detailed and
plausible than Barsamian’s version. I find it more likely that
this conversation began with Lahn’s complaint about being sent
out on the bad job and Barsamian’s denial it was his responsi-
bility. Lahn had no reason to raise the union issue initially, as
Barsamian testified, until Barsamian advised him Barnes and
Silva were mad because of his union activity. I will credit
Lahn’s testimony.
Lahn called Barnes cell phone number on July 6 at about
1:30 p.m. Lahn told Barnes, “I had nothing to do with the Un-
ion. I was not the Union organizer.” Barnes said, “If you’re
not the Union organizer, who is?” Lahn replied he could only
speak for himself. Barnes told Lahn the wanted to see him in
the office at 7 a.m. on Monday July 8.
It was Barnes’ testimony that the substance of this telephone
conversation was Lahn’s complaint about being sent to a bad
job. According to Barnes, only later in the conversation did
Lahn mention Barnes’ belief that Lahn was the union organizer.
Barnes said Lahn asked him whom Barnes thought was in-
volved with the Union. It is unbelievable that just after being
told by Barsamian that Barnes and Silva were mad at Lahn for
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1174
organizing the Union, Lahn would have called Barnes about
being sent on a bad job. It is even more unbelievable that Lahn
would have continued to ask Barnes who Barnes thought was
involved with the Union. This certainly was not in Lahn’s
interest. I credit Lahn’s version of this conversation.
On July 8, Lahn went to Barnes’ office at about 7:10 a.m.
Lahn told Barnes he had nothing to do with the Union. Barnes
replied he didn’t know who to trust and who to believe. Barnes
then asked Lahn, “What was I willing to do to keep my job.”
Lahn said he didn’t understand the question. Again Barnes
said, “What was I willing to do to keep my job.” Lahn did not
reply. Barnes said that Lahn, “had been seen talking to the un-
ion representatives, taking a flyer, showing a flyer to other
drivers on the job site.” Lahn responded that he knew the union
representatives outside work and had socialized with them.
Barnes then said that Lahn was an on-going problem and that
he had been sticking up for Lahn for 18 months. Lahn said this
was the first time he had heard about this. At this time Silva
drove into the facility. Barnes said he was going to get Silva
and bring him into the meeting so Lahn could explain to Silva
that he had nothing to do with the union activity. About a min-
ute and a half latter Barnes returned to the office and told Lahn
he was fired.
According to Barnes, Lahn began this conversation with
complaints about being dispatched to onerous jobs. Only much
later, after Barnes told Lahn he was tired of Lahn’s behavior
and attitude, did Lahn bring up the subject of the Union. Again
Barnes said it was Lahn who repeatedly questioned him about
who Barnes thought was involved in the Union. For the rea-
sons set forth above, I find Barnes is an incredible witness. I
will credit Lahn’s version of this conversation.
On July 9 at 5:30 p.m., a union meeting was held at Moun-
tain Mike’s Pizza in Rancho Cordova. Present were Rogers,
Tobin, Lahn, Mike Lahn, Eric Rickman, and Tracy Cameron.
None of the people were current employees of Respondent. At
about 6 p.m. Rogers stepped outside the restaurant and saw a
pickup truck across the street in a gas station facing the restau-
rant. With his camera in hand, Rogers approached the pickup.
As Rogers headed toward the vehicle it backed up quickly and
drove around the gas station and came out from the rear of the
station. When Rogers was about 90 feet from the pickup truck,
he recognized Barnes as the driver. Barnes admitted Silva was
a passenger in the pickup truck.
Barnes’ testimony was further compromised when he lied
about his purpose for being present at the gas station. On direct
examination Barnes said he was at the gas station to get a soda
on his way to Respondent’s nearby facility. However, on
cross-examination, when confronted with his Board affidavit,
Barnes admitted he was at the gas station to see the union meet-
ing.
2. Respondent’s termination of Robert Lahn
Respondent contends that it fired Lahn because of his bad at-
titude and behavior rather than for engaging in any union or
protected-concerted activity. Respondent hired Lahn as a con-
crete truckdriver in May 2000. In February, Respondent pro-
moted Lahn to training supervisor/truck boss and gave him a
$2/hour pay raise to $19/hour. In mid-March Respondent re-
moved Lahn from the training supervisor/truck boss job but
retained him as a concrete truckdriver at $19/hour. Between
July 2000 and early 2002, Respondent gave Lahn gift certifi-
cates five times, cash three times, and baseball tickets once as
rewards for his performance.
Respondent relies on a number of incidents for terminating
Lahn. Barnes testified that he received a complaint from a mo-
torist on August 11, 2000, that Lahn was rude to her. Barnes
discussed the matter with Lahn and Lahn denied rudeness to
any motorist. No warning was given to Lahn. Barnes also said
he received a complaint from an employee of DBC Concrete on
August 2, 2000, complaining Lahn was standing around for 10–
15 minutes. Barnes discussed the matter with Lahn and Lahn
denied the incident. No warning was given to Lahn concerning
this incident.
In March or April 2001, Lahn threw a plastic mud flap on the
floor of Barsamian’s office and cursed about the cause of the
accident that caused him to damage the flap on his truck. Re-
spondent did not place any warning in Lahn’s file concerning
this incident.
On August 11, 2001, Respondent gave Lahn a plan for im-
provement notification. It is signed by Supervisor Chris
Stanley (Stanley) and notes improvement areas in communica-
tion and attitude. Stanley had no recollection concerning the
events of this notification. There is no evidence that Respon-
dent ever gave Lahn a copy of this notification. Barnes issued a
second plan for improvement notification dated September
21/September 22, 2001. It is signed by Barnes and notes a need
for improvement in Lahn’s attitude. Barnes said the warning
was for Lahn’s use of hand gestures in the yard. Barnes admit-
ted he never gave Lahn a copy of this notification. On Novem-
ber 9, 2001, Respondent gave Lahn his first warning for having
his air tank pressurized while loading under the batch plant.
Stanley had no recollection of discussing this matter with Lahn.
Further there is no evidence Respondent gave Lahn a copy of
the warning. On November 19, 2001, Respondent gave Lahn a
second warning for not getting a release signed by a customer.
There is no evidence Respondent discussed this matter with
Lahn or gave him a copy of the warning. On November 20,
2001, Respondent issued Lahn another warning for failing to
release pressure from the tank on his truck. There is no evi-
dence that Respondent discussed this matter with Lahn or gave
him a copy of the warning. On February 22, Respondent gave
Lahn a warning for hitting another cement truck. Lahn admit-
ted the incident as well as receiving a copy of the warning. On
March 15, Respondent gave Lahn a warning for keeping the
keys to his truck overnight. Lahn admitted the incident as well
as receiving a copy of the warning.
In early 2002 Lahn entered Barsamian’s office with a chair
and threw it against a desk in an angry manner. Lahn did not
receive a written warning for this incident according to Bar-
samian because they recognized Lahn had a volatile personality
and they let it blow over. However, Lahn was removed from
his position as training supervisor/truck boss for the chair-
throwing incident.
In March 2002, while he was still training supervisor/truck
boss, Lahn removed the photo of an employee’s child from the
FOLSOM READY MIX, INC. 1175
employee bulletin board. Respondent did not warn Lahn for
this incident.
Finally on April 12, Respondent issued Lahn a warning for
leaving his air tank pressurized overnight. While Lahn denied
receiving this warning, he did admit receiving a warning for
leaving his air tank to be pressurized overnight in March.
B. Analysis and Conclusions
1. The July 3 attempt by Barnes to hit union organizers
with his vehicle and thereby interfere with leafleting
and soliciting employees
An employer’s threat of physical harm to a union representa-
tive, when witnessed by employees, violates the Act. B & M
Linen Corp., 338 NLRB 5 (2002); New Life Bakery, 301 NLRB
421, 428 (1991). In New Life Bakery, the plant manager at-
tacked a union representative on the picket line. The Board
concluded employees would infer from the assault that the em-
ployer would likely retaliate in the same manner against em-
ployees who supported the Union.
In this case, Barnes threatened both Rogers and Tobin with
physical harm by attempting to hit them with his truck in the
presence of at least one of Respondent’s drivers. Later, other
employees perceived Barnes’ conduct as a deliberate attempt to
injure the union representatives. Employees would reasonably
infer from Barnes’ threat of physical harm to the union repre-
sentatives that Respondent would likely retaliate in the same
manner if they engaged in union activity. I conclude that Re-
spondent violated Section 8(a)(1) of the Act by threatening
Rogers and Tobin with physical harm.
2. The July 6 interrogation of Robert Lahn
In general, it is unlawful for an employer to inquire as to the
union sentiments of its employees. President Riverboat Casi-
nos of Missouri, 329 NLRB 77 (1999). Whether an interroga-
tion is unlawful is determined by the totality of the circum-
stances. Rossmore House, 269 NLRB 1176, 1177 (1984);
Sunnyvale Medical Clinic, 277 NLRB 1217 (1985). The stan-
dard is whether under all the circumstances the alleged interro-
gation reasonably tends to interfere with, restrain, or coerce
employees in the exercise of their Section 7 rights. The Board
applies an objective standard when determining whether a
statement is coercive. MDI Commercial Services, 325 NLRB
53, 63–64 (1997).
During his July 6 telephone conversation with Lahn, Barnes
asked Lahn if he wasn’t the union organizer, who was. This
interrogation came from Respondent’s vice president and asked
for the identification of a specific person, presumably for pur-
poses of retaliation. Under such circumstances the question
from Barnes was coercive and would tend to restrain employees
in the exercise of Section 7 rights. The interrogation violated
Section 8(a)(1) of the Act.
3. Creating the impression of surveillance on July 6 and 8
An employer may not create the impression that employees’
protected activities are under surveillance. Hudson Neckwear
Inc., 302 NLRB 93, 95 (1993). Telling an employee that he is
the ringleader for the Union when an employee has not openly
shown his support for the Union creates the impression that the
employee’s union activities are under surveillance. Peter Vitale
Co., 310 NLRB 865 (1993).
On July 6, Barsamian told Lahn that Respondent believed he
was the union organizer. Since Lahn was not an open advocate
for the Union, this statement unlawfully created the impression
that Lahn’s union activities were under surveillance and vio-
lated Section 8(a)(1) of the Act.
On July 8, at the meeting in Barnes’ office, Barnes told Lahn
that Lahn had been seen talking to union representatives, taking
a union flyer, and showing a union flyer to other employees on
the job. The statement that Barnes knew of every union activ-
ity Lahn engaged in, suggested that Lahn’s union activities
were being closely monitored by Respondent and violated Sec-
tion 8(a)(1) of the Act. United Charter Service, 306 NLRB 150
(1992).
4. The July 9 surveillance of the union meeting
Respondent contends that there was no impression of
surveillance created by Respondent at the July 9 union meeting
since no employees of Respondent were present. General
Counsel contends that an impression of surveillance can be
created even in the absence of employees. United Biscuit Co.,
of America, 38 NLRB 778, 782 (1942). For the reasons set
forth, infra, I find that Lahn was an employee at the time of the
July 9 union meeting. Barnes admitted that he was present at
the gas station across the street from the restaurant where the
union meeting was being held to see the meeting. Clearly,
Barnes and Silva were present to engage in surveillance of the
union meeting and their actions violated Section 8(a)(1) of the
Act.
5. The June or July threat to terminate Jim Trousdale
An employer’s threat of discipline for engaging in union ac-
tivities violates the Act. Bestway Trucking, Inc., 310 NLRB
651, 671 (1993); Q-1 Motor Express, 308 NLRB 1267, 1277
(1992). There is no evidence Respondent has valid work rules
prohibiting solicitation or distribution. Further there is no evi-
dence that the union representatives’ actions at Respondent’s
facility at any time impeded the ingress or egress of Respon-
dent’s trucks or created any kind of hazard. When Eaton told
Trousdale if he stopped to talk to the union officials or take a
flyer on his way out of the plant, he would be fired, Respondent
violated Section 8(a)(1) of the Act.
6. The July 8 termination of Robert Lahn
The General Counsel has the initial burden of establishing
that union activity was a motivating factor in Respondent’s
actions alleged to constitute discrimination in violation of Sec-
tion 8(a)(3) of the Act. The elements required to support such a
prima facie violation of Section 8(a)(3) are union activity, em-
ployer knowledge of the activity, and a connection between the
employer’s antiunion animus and the discriminatory conduct.
Once General Counsel has established its prima facie case, the
burden shifts to Respondent to show that it would have taken
the disciplinary action even in the absence of protected activity.
Wright Line, 251 NLRB 1083 (1980).
General Counsel has established Lahn engaged in union ac-
tivity. Lahn was the only driver who took a flyer from the un-
ion representatives. After taking the flyer, Lahn discussed the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1176
coming union meeting with fellow drivers at the jobsite. On
July 5, Lahn signed a union authorization card. Respondent’s
knowledge of Lahn’s union activity has also been shown. On
July 6, Barsamian told Lahn that Barnes and Silva were angry
with Lahn for organizing the Union. On July 8 Barnes told
Lahn that Lahn had been seen talking to union representatives,
taking a union flyer, and showing a union flyer to other em-
ployees on the job. The record is replete with Respondent’s
antiunion animus. Barnes tried to run Rogers and Tobin down
while they were distributing flyers. Barsamian told Lahn that
Barnes and Silva were angry with him because he organized the
Union and that “things were getting pretty damn hot.” Eaton
threatened Trousdale that he would be fired if he talked to the
union representatives or took a flyer. Finally, the timing of
Lahn’s termination occurred shortly after he had engaged in
union activity.
I find General Counsel has established a prima facie case
that Respondent fired Lahn in violation of Section (8)(a)(1) and
(3) of the Act. The burden shifts to Respondent to show it
would have terminated Lahn even in the absence of union
activity.

Respondent contends it fired Lahn because of his poor atti-
tude and aggressive behavior. Yet the record reflects that Re-
spondent repeatedly excused Lahn’s aggressive behavior and
went so far as to give him monetary rewards and promotions
until it discovered he had engaged in union activity. Thus, as
early as August 2000, Respondent received a complaint from a
motorist claiming Lahn had yelled at her. Respondent did not
consider the matter sufficiently serious to issue Lahn a warning.
In March or April 2001 Lahn threw a mud flap in Barsamian’s
office because he was angry. In September 2001 Barnes placed
a note in Lahn’s file about unspecified hand gestures but did
not bother to give a copy to Lahn or discuss it with him. In the
early part of 2002 Lahn threw a chair in Barsamian’s office.
Barsamian explained no warning was issued to Lahn because
Respondent recognized this was how Lahn was and they knew
it would blow over. While Respondent removed Lahn from his
supervisory position, it did not fire him but retained him as a
driver with his raise because he was a good employee. Finally
in March, Lahn removed a photo of an employee’s baby from
the bulletin board and was not warned. The only warnings
Respondent issued Lahn were not behavior related. Respon-
dent cannot now contend that it was the accumulation of behav-
ior related incidents that resulted in Lahn’s termination when it
overlooked his behavior until he engaged in union activity.
Becker Group, Inc., 329 NLRB 103 (1999). It was not until
Lahn engaged in union activity that Respondent seized upon his
many previously forgiven “offenses” as a pretext to fire him. It
is clear that Respondent would not have fired Lahn but for his
union activity. I find that Respondent violated Section 8(a)(1)
and (3) of the Act by terminating Lahn.
CONCLUSIONS OF LAW
1. Respondent, Folsom Ready Mix, Inc., is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. Chauffeurs, Teamsters & Helpers, Local Union No. 150,
International Brotherhood of Teamsters, AFL–CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. By creating the impression of surveillance of employees’
union activities, engaging in surveillance of employees’ union
activities, by attempting to hit union organizers with a vehicle
to interfere with leafleting and soliciting employees, by interro-
gating an employee about his union activities and by threaten-
ing an employee with discharge for engaging in union or pro-
tected, concerted activity Respondent has engaged in unfair
labor practices affecting commerce within the meaning of Sec-
tion 8(a)(1) and Section 2(6) and (7) of the Act.
4. By terminating Robert Lahn for engaging in union or
other protected, concerted activities Respondent has engaged in
unfair labor practices affecting commerce within the meaning
of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act.
5. The Respondent, having discriminatorily discharged an
employee, it must offer him reinstatement and make him whole
for any loss of earnings and other benefits, computed on a quar-
terly basis from date of discharge to date of proper offer of
reinstatement, less any net interim earnings, as prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB 1173
(1987).
THE REMEDY
Having found that Respondent engaged in serious unfair la-
bor practices within the meaning of Section 8(a)(1) and (3) of
the Act, I shall recommend that it be ordered to cease and desist
therefrom and to take certain affirmative actions designed to
effectuate the purposes and policies of the Act. The Respon-
dent having discriminatorily discharged its employee, it must
offer him reinstatement and make him whole for any loss of
earnings and other benefits, computed on a quarterly basis from
date of discharge to date of proper offer of reinstatement, less
any net interim earnings, as prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), plus interest as computed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended4
ORDER
The Respondent, Folsom Ready Mix, Inc., Rancho Cordova,
California, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against any em-
ployee for supporting Chauffeurs, Teamsters & Helpers, Local
Union No. 150, International Brotherhood of Teamsters, AFL–
CIO or any other union.
(b) Coercively interrogating any employee about union sup-
port or union activities.
(c) Creating the impression of surveillance of employees’
union activities.
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.
FOLSOM READY MIX, INC. 1177
(d) Engaging in surveillance of employees’ union activities.
(e) Attempting to hit union organizers with a vehicle to inter-
fere with leafleting and soliciting employees.
(f) Threatening an employee with discharge for engaging in
union or protected, concerted activity.
(g) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Robert
Lahn full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previ-
ously enjoyed.
(b) Make Robert Lahn whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
him in the manner set forth in the remedy section of the deci-
sion.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharge, and within 3
days thereafter notify the employee in writing that this has been
done and that the discharge will not be used against him in any
way.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its fa-
cility in Rancho Cordova, California, copies of the attached
notice marked “Appendix.”5 Copies of the notice, on forms
provided by the Regional Director for Region 32, 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 including
all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these pro-
ceedings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since July 3, 2002.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official

5 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist any union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT discharge or otherwise discriminate against
any of you for supporting Chauffeurs, Teamsters & Helpers,
Local Union No. 150, International Brotherhood of Teamsters,
AFL–CIO or any other union.
WE WILL NOT coercively interrogate any employee about un-
ion support or union activities.
WE WILL NOT create the impression of surveillance of em-
ployees’ union activities.
WE WILL NOT engage in surveillance of employees’ union ac-
tivities.
WE WILL NOT attempt to hit union organizers with a vehicle
to interfere with leafleting and soliciting employees.
WE WILL NOT threaten employees with discharge for engag-
ing in union or protected-concerted activity.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s Order,
offer Robert Lahn full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or privi-
leges previously enjoyed.
WE WILL make Robert Lahn whole for any loss of earnings
and other benefits resulting from his discharge, less any net
interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s Order,
remove from our files any reference to the unlawful discharge
of Robert Lahn, and WE WILL, within 3 days thereafter, notify
him in writing that this has been done and that the discharge
will not be used against him in any way.

FOLSOM READY MIX, INC.