Granite Paving Co.

National Labor Relations Board - Board Decisions

Dec 5, 1969

179 N.L.R.B. 899 (N.L.R.B. 1969)

GRANITE PAVING CO. 899
Granite Paving Co. and International Union of
Operating Engineers , Local 4. Case 1-CA-6631
December 5, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
charge filed on April 25, 1969 by International Union of
Operating Engineers, Local 4, hereinafter called the
Union. On May 1, 1969, the Acting Regional Director of
the National Labor Relations Board for Region 1 issued a
complaint and notice of hearing alleging violations of
Section 8(a)(I) and (3) of the National Labor Relations
Act, hereinafter called the Act. The General Counsel and
the Respondent timely filed briefs with me.
Upon consideration of the briefs and upon the entire
record of the case, and my observation of the witnesses, I
make the following:
On August 19, 1969, Trial Examiner James T.
Barker issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged and was engaging 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. The
I rial Examiner also found that the Respondent had
not engaged in certain other unfair labor practices
alleged in the complaint and recommended that the
complaint be dismissed as to them. Thereafter, the
General Counsel filed exceptions to the Trial
Examiner's Decision and a brief in support thereof,
and the Respondent filed an answering brief.
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 this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds 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 this case, 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
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Granite Paving
Co., Topsham, Maine, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order.
'The General Counsel excepts to the Trial Examiner's credibility
findings . It is the ' Board 's established policy, however, not to overrule a
Trial Examiner's resolutions with respect to credibility unless, as is not the
case here , the preponderance of all the relevant evidence convinces us that
the resolutions are incorrect . Standard Dry Wall Products. Inc, 91 NLRB
544, enfd. 1.88 F 2d 362 (C A 3)
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES T. BARKER , Trial Examiner: This matter was
heard at Portland, Maine, on May 27, 1969, pursuant to a
charge filed on March 5, 1969, and a first amended
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is and has been at all times material herein
a Maine corporation engaged at its principal office and
place of business in the city of Topsham, Maine, in the
manufacture, sale and distribution of sand, gravel and
bituminous products.
In the course and conduct of its business operations the
Respondent causes and continually has caused at all
relevant times large quantities of sand, gravel and asphalt
to be purchased and transported in interstate commerce
from and through various States of the United States
other than the State of Maine. Further, in the course and
conduct of its business operations Respondent annually
receives directly from points outside the State of Maine
goods valued in excess of $50,000.
Upon these admitted facts I find that Respondent is
and has been at all times material herein an employer
engaged in commerce and in operations affecting
commerce as defined in Section 2(2), (6), and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The evidence of record reveals that the Union at all
times relevant herein has existed, in whole or in part, for
the purpose of dealing with employers engaged in the
manufacture of bituminous products concerning the terms
and conditions of employees of said employers and for the
additional purpose of representing employees of said
employers in a representative capacity and administering
collective-bargaining contracts. Upon this evidence I find
that the Union at all times material herein has been a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The complaint as amended at the hearing alleges that
for the purpose of defeating the Union's attempt to
organize its employees the Respondent engaged in certain
acts of interrogation, threatened employees and gave them
the impression that their union activities were under
surveillance and that as a consequence thereof the
Respondent violated Section 8(a)(1) of the Act.
Additionally, the complaint alleges that for discriminatory
purposes the Respondent discharged employee Carroll
Small and unlawfully laid off employee Harland Lebel.
The Respondent denies the commission of any unfair
labor practices and with respect to the alleged
discriminatory discharge of Carroll Small contends, (1)
that rather than except a modification in the manner and
179 NLRB No. 151
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
amount of his compensation as ordered by the Wage and
Hours Division of the U.S. Department of Labor, Small
resigned his employment and, (2) with respect to the
layoff of Harland Lebel the Respondent contends that his
layoff was accomplished in the normal order of seniority
and was necessitated by a seasonal decline in business
operations and related financial considerations.
B. Pertinent Facts
1. Background facts
a. The Respondent's operations
Harold C. Plummer, Jr., is president and
superintendent of Respondent and Richard Murphy is vice
president. Respondent is engaged principally in the
manufacture and laying of bituminous concrete and as an
incident of this operation engages in the crushing of
material utilized in the bituminous product. During the
winter of 1968-69 Respondent operated from a gravel pit
at Durham, Maine, some 12 miles from its Topsham
plant. The normal operating season for Respondent's
plant operation is from April 15 to the last week in
November. Normally, during the balance of the year the
Respondent endeavors to engage some employees in the
hauling and stockpiling of gravel and related materials, in
the repair of vehicles and machines and in general plant
maintenance.
Harold C. Plummer credibly testified that he
commenced operating Respondent in 1962 and that in
each year, including the winter of 1968-69, the
Respondent experienced a seasonal shutdown.
b. The organizational activities
In the latter part of January 1969, Harland Lebel spoke
with some of his fellow employees concerning their
feelings toward union representation and as a consequence
of these conversations compiled a list of names and
addresses which he gave to his father, Arthur Lebel an
organizer for the Union. Harland Lebel had carried out
his efforts with respect to the Union during lunch hours
and on coffee breaks as well as before and after working
hours.
In due course Clement Cronin, business representative
of the Union, was contacted by Arthur Lebel and
informed of the apparent interest in unionization.
Subsequently, Cronin spoke with Harold Lebel and the
two made arrangements for a meeting of employees to be
held on March 3. The meeting was held as scheduled at
an establishment known as Curley's restaurant and was
attended by approximately 17 or 18 of Respondent's
employees, including Harland Lebel and Carroll Small.
During the course of the March 3 meeting both Lebel and
Small signed union authorization cards. Two subsequent
meetings were held between employees and union
representatives.
2. The alleged unlawful conduct
a. Plummer converses with Dube
During the workday of March 3, Plummer called
employee Henry Dube into his office and behind closed
doors the two spoke together. The conversation was
devoted principally to a discussion of Dube's work as a
truckdriver and the crews to which Dube was assigned
During the course of the conversation Plummer asked
Dube if he had heard any "gossip about union" and Dube
answered that he had heard some. The "morale" of the
employees became a topic of their discussion and Dube
observed that he would like to have vacation and holiday
pay.
b. Sproul speaks with supervision
On March 4 Richard Murphy, vice president of
Respondent, approached employee Harold Sproul as he
was working and asked Sproul if he knew of any union
meeting that had taken place the night before. Sproul
answered that he had not and Murphy stated that he
thought that it was a meeting of the drivers '
Thereafter, on March 4 or March 5 Eugene Hamrick
approached Sproul as Sproul was working in the garage
and observed that he had seen Sproul's pickup truck at
Curley's restaurant on the night of March 3 Hamrick
further stated that he "knew all about" the union meeting
that had been held.2
c. The layoff of Harland Lebel
1. The February conversation
In late January or early February , Plummer had
become aware of dissatisfaction among the employees and
he had been informed that Harland Lebel was the leader
or organizer of the employees ' contacts with union
representatives . As a result , during a workday in late
January or early February , as the opportunity arose,
Plummer spoke with Lebel. He commenced the
conversation by observing that he had heard of dissension
and dissatisfaction on the part of the crew and asked
Lebel whether he was the leader or organizer of the group
which had contacted the Union. Lebel stated that he was
not and stated further that he had heard no talk
concerning the Union and that the concept that he was the
leader of any union effort may have derived from the fact
that he was attempting to become a member of the Union
so that he could go out of state and obtain a better job.
Plummer stated that he had heard Lebel ' s father was a
union organizer and Lebel affirmed that he was . Plummer
observed that he could not believe that there was
dissension among the employees because he had attempted
to give work to the crews during the wintertime and had
started a profit-sharing plan for the employees. He
observed further that he was thinking of starting a
vacation and holiday arrangement . Plummer continued by
observing that the union wage rates in Boston and other
localities concerning which he had knowledge were of such
'As subsequently found, on the morning of March 3 an employee had
volunteered to Plummer the information that a union meeting was to be
held on the evening of March 3
'In the month of March when this conversation transpired Hamrick was
serving as a rank -and-file employee but during the summer months of
Respondent 's operations Hamrick worked as a foreman on a crew and had
authority to hire and discharge employees He had served in this
summertime capacity during previous seasons and Hamrick 's advice with
respect to the layoff or retention of employees who worked under him
during the summer months was sought in relation to decisions reached
regarding the layoffs which transpired , as subsequently delineated, in the
spring of 1969 Although the testimony with respect to the aforesaid
conversation between Sproul and Hamrick was taken as an offer of proof
on the ground that the General Counsel in his case in chief had failed to
establish the supervisory capacity of Hamrick, the testimony of Plummer
reveals that Hamrick possessed this authority during the summer months
of his employment
GRANITE PAVING CO. 901
a nature that it would be impossible for the Company to
compete. Lebel an?;we) ed that the Union would probably
attempt to organize all of Plummer ' s competition and
Plummer asked why the Union had not started with the
"big ones" first and was "picking on" him . In this context
he stated that it was necessary for him to keep "at least
equal" to his competition in order to stay in business.
As the conversation continued Plummer stated to Lebel
that while he had attempted to maintain the gravel
operation during the wintertime it would have been
possible for him to have shut down operations in the
winter months , to have purchased additional trucks and to
have stockpiled more gravel during the summertime. He
stated that he had not done so because he felt that it was
important to give men the work during the wintertime. He
asserted that no other contractor in the State did so. The
conversation terminated on this note.'
2. The layoff effectuated
Harland Lebel was employed by Respondent from
March 1966 until March 4, 1969 . Early in his employment
he drove a cement truck and operated a small frontend
loader. For the last 2 1/2 years prior to his layoff he
operated a large frontend loader. At the time of his layoff
on March 4 he was compensated at the rate of $2 50 per
hour.
On the evening of March 4 Plummer called Lebel by
telephone and informed him that he was "all done" and
Asked him for the keys to the loader which he operated
explaining that the loader was going to be repaired.4
Lebel was in layoff status until April 21 when he
returned to work pursuant to instructions of Murphy.
3. The general layoff
On Monday morning, March 3, Respondent laid off
two or three employees , and on the following day, March
4, seven employees, including Lebel were laid off. Other
layoffs were effectuated on March 5.5 Lebel had not
previously been laid off during the term of his
employment and worked through the normal seasonal
layoffs of 1966-67 and 1967-68. During the winter of
1967-68 when the seasonal layoff lasted from mid-January
to mid-April, he worked for a period of approximately 7
The foregoing is based principally upon the credited testimony of
Harold Plummer . I have considered the testimony of Harland Lebel with
respect to this conversation and am unable to credit some aspects of his
version of the conversation . Specifically I do not credit Lebel's testimony
to the effect that Plummer stated in specific terms that if the Union came
in he would shorten the work season and lay off the hourly rated men and
keep salaried employees for doing the repair work In this instance , as with
respect to other facets of the conversation between them , I am convinced
that Lebel severely condensed the conversation and gave the remarks of
Plummer a connotation which is not due them . In my view of Lebel as he
testified concerning this conversation he attempted to point up the facets
which gave support to his interest in the litigation
'Plummer testified credibly that he had earlier instructed Vice President
Murphy to inform employees of the layoff and that Murphy had failed to
contact Lebel It was for this reason according to the credited testimony of
Plummer, that he contacted Lebel personally I do not credit Plummer's
testimony to the effect that in contacting Lebel he informed Lebel that he
was "done for the season ." Rather, I find Plummer 's terminology left
some doubt in Lebel 's mind for he clarified his status when, as I find, he
turned in the keys to the loader and spoke to Murphy concerning his
status However, I credit Plummer 's explanation of the common usage and
understanding of the term "through" or "done" when used to denote the
conclusion of a season's work , and do not find evidence sufficient to
warrant the inference that Plummer initially intended to terminate Lebel
completely
weeks in the plant garage doing maintenance tasks." Prior
to his layoff on March 4, 1969, Lebel's services had been
utilized in his normal assignment as operator of the large
loader in service at the Durham gravel pit. Lebel testified
that the gravel operation shut down on the day he was
laid off.
In the days preceding the layoffs of March 3, 4, and 5,
Plummer had been informed by civil officials that due to
thawing conditions the access road to the Durham gravel
pit would be posted, thus effectively closing the road to
Respondent's trucks hauling gravel for stockpiling at the
plant some 12 miles distant from the gravel pit
Additionally, during the period preceding the layoff
Plummer had become aware of a serious erosion in the
Respondent's cash position and had projected an
unfavorable balance in the Company's profit and loss level
for the year. On Sunday, March 2, Plummer decided to
effect a layoff as a counteraction to the prevailing adverse
economic conditions.'
The general layoffs which were placed in effect in
March 1969 came later in the season than had previous
seasonal layoffs. Plummer attributed this to the
Company's desire to maintain as great a degree of
continuity of employment as possible in the face of an
existing and increasingly tight labor market and to the
additional fact that, contrary to prior years, the Company
had at its disposal additional trucks which it could utilize
during slack periods for the transporting of gravel from
the Durham gravel pit to the plant for stockpiling.
However, because of the economic stress and the
imminent posting of the gravel pit access road Plummer
decided to terminate all operations at the gravel pit and to
effectuate a substantial layoff of employees in order to cut
costs.
In selecting the personnel for layoff Plummer consulted
with his supervisory force and with his immediate
assistant Richard Murphy.'
Pursuant to the process of discussion and selection
between Plummer and his supervisory assistants, 13
employees were designated for retention. Five of those
retained were foremen who exercised supervisory authority
during the summer work season. Another was the parts
man who served in that capacity the year around and did
general maintenance work for Respondent and associated
companies. The other employees retained were Robert
Beard and Harold Sproul, concrete drivers; Robert
McKenna a truckdriver, Harvey Barstow, a raker and
laborer experienced in maintenance work; James Stone, a
'In November 1968, seven employees had been laid off and two were
laid off in January 1969.
'Lebel' s testimony suggests that his retention on this occasion may have
been attributable to a slide in January or February 1968 which damaged
equipment, and Plummer testified that as he anticipated Lebel's loader to
be tied up for servicing for only 3 or 4 weeks he had retained Lebel to do
repair and maintenance work in the garage
'The General Counsel does not allege as violative of the Act the general
layoff which transpired
'The record is unclear whether the initial meeting between Plummer and
his supervisory assistant at which in a somewhat formal and detailed
context personnel for layoff were designated , transpired on March 3 or on
March 4 This is of little moment for Plummer had knowledge of the
impending union meeting on the morning of March 3 The credited
testimony of Plummer reveals that an employee whom he had himself
selected for layoff and who he so informed on the morning of March 3
reacted abrasively and accused Plummer of laying him off because of the
union meeting which was scheduled for that evening Plummer testified
also that this was his first inkling of the meeting More significantly,
Plummer conceded that prior to meeting with his supervisory force he
knew that the meeting of March 3 was to be held
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
raker and laborer; Francis Derosier, a mechanic; and Joe
Pickett, a loader operator with welding skill.
Plummer testified credibly that skilled rakers were
essential to his operation and were in short supply. He
characterized Stone, in substance, as a superior raker and
further testified credibly that Barstow who had skill as a
raker was an experienced maintenance worker.
Additionally, Plummer testified that at the time of layoffs
he was planning to commence crushing operations within
a short period of time and weighed this factor in
connection with the retention of McKenna and Stone.
Moreover, with respect to the retention of McKenna, both
Plummer and Murphy testified credibly that McKenna
was under certain financial demands, known to them,
which were given additional weight in deciding upon his
retention. Plummer testified that Derosier was his "best
mechanic" and that Pickett was his "oldest loader
operator." Sproul was a regular concrete driver who used
his own truck.
In making the selection of employees for layoff or
retention Plummer gave weight to the skills which were
presently or soon to be required; considered seniority only
as between employees in the same job classification or
possessing the same job skill; and weighed personal
financial considerations only with respect to McKenna
and a certain supervisor. He did not seek to elicit from
the employees then on the payroll any information
concerning their family responsibilities or financial means.
Lebel testified that he had greater seniority than four
employees whom he designated as having been retained to
perform work which he was capable of performing and in
which he had had experience. Without specifying these
employees by name, Lebel identified them as a cement
truck operator; as a mechanics helper and truckdriver;
and two as laborers working as helpers repairing the
plant. The context of Lebel's testimony suggests that he
had reference to Harold Sproul, Robert McKenna, James
Stone and Harvey Barstow . Lebel testified that three of
the four had been laid off during the previous late fall or
early winter.
At the time of his layoff Lebel was compensated at a
higher hourly rate than any of these four employees. The
highest hourly rate paid any of them was $2.40 while
Lebel was paid $2.50 per hour Plummer testified that a
10-cent per hour differential was paid Lebel because his
work at the gravel pit involved responsibility to maintain
an orderly dispatch and flow of concrete trucks through
the gravel pit
Joe Pickett had succeeded Lebel as operator of the
small frontend loader and substituted for Lebel on the
large loader in Lebel's absence. Pickett's seniority is
greater than Lebel's.
Plummer testified, in substance, that prior to selecting
Lebel for layoff he considered specifically the fact that he
was "a younger man" and that, of the two loader
operators, he was the junior in term of seniority. He
testified further that Lebel had no welding skill while
Pickett did.
Lebel testified that during his layoff he returned to the
plant and observed Joe Pickett operating the large loader
which he normally operated in the course of his duties at
the gravel pit He testified that while he was at the plant
during a 15 minute interval he observed Pickett use the
leader to pick up certain materials. On the other hand,
Plummer testified credibly that the loader had undergone
repairs, that upon being returned to the plant it had not
functioned properly and that when Lebel returned to the
plant it was merely being tested to determine whether the
malfunction had been corrected.9
d. The termination of Carroll Small
1. The change in manner of compensation
a. Small's work and salary
Carroll Small worked in the employ of Respondent as a
cement batcher and mechanic from August 1966 until
March 4, 1969.10 For approximately the first year of his
employment Small was compensated at an hourly rate.
Thereafter, commencing in July or August 1967, he was
placed on a salary of $110 per month. At the time of his
alleged termination on March 4, 1969 he was
compensated at the rate of $125 per week. Additionally,
at relevant times immediately preceding his termination
Small was annually granted a 2-week paid vacation,
received holiday pay, sick leave and was entitled to
certain insurance benefits. Moreover, he received work
uniforms and a gasoline allowance." Small received no
overtime for the hours worked in excess of his normal
workweek. Small testified that during the summer months
he worked an average of 55 hours per week.
b. The Wage and Hour directive
In late January or early February representatives of the
Wage and Hour Division of the U.S. Department of
Labor directed Respondent to cease compensating on a
salary basis certain individuals specified as "foreman" and
to begin paying them at an hourly rate. Included in this
category was Carroll Small. As a consequence of that
directive Small received additional backpay in the amount
of several hundred dollars.
Plummer credibly testified that for a period of
approximately 2 weeks after the Wage and Hour Division
directive he explored with his bookkeeper alternative
methods of compensating Small with the objective in mind
of continuing to designate him formally as a "foreman"
but compensating him on an hourly rated basis. However,
it was decided that this approach could not be followed
and still remain consistent with the Wage and Hour
directive.
c. The February conversation
During the month of February Plummer conversed with
Small informing him of the Wage and Hour decision.
There was some discussion relative to alternative plans
which at that point in time were under consideration by
Plummer and his bookkeeper. Plum ner mentioned as a
possibility an arrangement whereby Small could be
compensated at an hourly rate but could retain his fringe
benefits.' S
'Lebel testified that he returned to the plant twice during his layoff but
he was specific only with respect to the aforesaid incident
"Small had skills as a mechanic prior to being employed by Respondent
and had operated his own garage He learned to batch cement while in the
employ of Respondent
"The evidence of record reveals that this gasoline allowance was
accorded other drivers and was for the purpose of compensating them for
the expense of driving their trucks to and from work and for the utilization
of their trucks in fulfilling their work assignments
"The foregoing is based upon the credited testimony of Carroll Small
construed in light of testimony of Harold Plummer concerning his efforts
at that point in time to devise a compensation plan which would both
comply with the Wage and Hour directive and salvage Small's status as a
"foreman ," so designated
GRANITE PAVING CO.
d. The events of March 4
I. The morning conversation
On the morning of March 4, Plummer spoke with
Small and asked him why he had attended the union
meeting the night before. Small answered that he had
attended the meeting out of curiosity and in order to be
able to compare the wage scale that he was receiving with
that offered under a union pay scale. Plummer observed
that Small was the only salaried person who had attended
the meeting and inquired why there was dissatisfaction
and dissension among the employees. He stated his feeling
that he had treated Small "properly." As the conversation
proceeded Plummer referred again to the effort that he
and his bookkeeper had made to work out alternative
plans to comply with the Wage and Hour Division
directive but stated that he had not been able to work out
a plan which would permit him to retain Small as a
foreman. He asserted that as a result he would have to
retain Small as an hourly rated employee. Plummer at
first stated that Small's hourly wage would be on the
order of $2.40 or $2.45 an hour. However Small protested
asserting that Plummer had offered him $2.50 an hour the
summer before. Plummer then stated that Small's hourly
rate would be $2.50 an hour. He stated that Small's
compensation would not include fringe benefits."
2. The "layoff" incident
During the afternoon of March 4 Small sought
Plummer out and asked him if under the new hourly rated
pay arrangement which they had discussed he would
However I am unable to credit the interpretation given Plummer's
statement on this occasion by Small wherein he characterized as a
"fluctuating hourly " one the plan which Plummer had devised for his
compensation . The plan which Small testified Plummer outlined to him
during the February conversation was one which would have clearly
conflicted with the Wage and Hour directive and I am accordingly
convinced that it was not proffered by Plummer and that Small's
testimony reveals his erroneous understanding of what Plummer did in fact
advance as one alternative approach.
"The foregoing is based upon a composite of the testimony of Carroll
Small and Harold Plummer . I do not credit the testimony of Small to the
effect that at the outset of the conversation Plummer stated in specific
terms that he was "disgusted" with Small for attending the union meeting
Nor do I credit Small's testimony that Plummer offered , on the one hand,
to leave Small on salary with his fringe benefits if he would inform
Plummer "who was behind" the union organizational activities while, on
the other hand , threatened that if he did not so inform him he would place
Small on an hourly rate . Not only would this tact have been impossible
under the Wage and Hour order but Small knew that under the Wage and
Hour edict Plummer had no such freedom . It is implausible in the
circumstances that Plummer would have resorted to such a transparent
ploy. Moreover , this type of undisguised threat was out of keeping with the
tenor of the conversation and I am convinced that Plummer did not
employ these abrasive tactics . However, while Plummer , by inference,
denied having made direct inquiry of Small concerning his attendance at
the March 3 meeting I do not credit him in this respect and find,
consistent with the testimony of Small that Plummer's inquiry concerning
this subject was more direct than Plummer 's testimony would indicate.
Plummer conceded asking Small why employees were dissatisfied and thus
it is likely that the subject of unionization was broached . Moreover, I am
unable to credit Plummer's testimony to the effect that his reference to his
inability to retain Small as a "foreman" was as tangentially approached as
Plummer 's testimony would indicate . Rather, consistent with the testimony
of Small I find that Plummer did broach the subject of placing Small on a
hourly rated basis , as found above , and that there was some specific
"bargaining" with respect to the precise hourly rate of pay to be set for
Small's services.
903
continue to receive a gasoline allowance.' ° Plummer stated
that he would not. Small protested that this would amount
to a cut in pay of approximately $8 or $10 per week
whereupon Plummer responded, "It doesn't seem you can
satisfy me so I can't satisfy you." Plummer added that
Small could "always get a job somewhere else" Small
answered, "Well, I am not in the habit of working 3 years
for the place and start going behind." Small stated that he
would like to "take a layoff" if Plummer would give him
one.
Small was in layoff status from Tuesday, March 4 until
Monday, March 17. During the week of March 10, Small
returned and spoke again with Plummer in Plummer's
office. After initial amenities Small indicated his interest
in the possibility of returning to work and inquired if
Plummer could "do anything more" about his fringe
benefits if he returned to work and the union activities
ceased Plummer declined to converse with Small
concerning union matters but stated that if Small desired
to work only in the capacity of a mechanic as he had
earlier indicated was his desire he could compensate him
only at the rate of $2.50 per hour and still be fair to the
other employees so employed. With respect to the gasoline
allowance Plummer stated that the other mechanic was
receiving an allowance because he was using his truck to
"go out on the street" and that Small would receive a
similar allowance if he were called upon to perform those
duties. In substance, Plummer stated that Small could
work this matter out with his foreman. With respect to
the other fringe benefits Plummer pointed out that the
other hourly rated employees received overtime pay in lieu
of fringe benefits and that to be fair to those employees he
could not compensate Small in any different manner.
As the conversation continued Plummer stated that if
Small desired to perform mixer man duties in addition to
duties as a mechanic he would compensate him at $2.60
per hour. This was agreed to and Small reported for work
the following Monday.
Conclusions
Interference, Restraint, and Coercion
I find that the Respondent violated Section 8(a)(1) of
the Act when on February 3, pursuant to information that
employees were seeking to organize under the leadership
of Harland Lebel, Harold Plummer inquired of Lebel
whether he was the organizer or leader of the group
seeking union representation. This question, postulated by
the principal officer of the employer in the early stages of
a still convert effort of employees to organize is coercive
even though, as Plummer testified, the conversation was
held in friendly circumstances and even though, as I find,
the inquiry was not accompanied by any other coercive
statement. That Lebel found it necessary to deny his
involvement and to assume a dissembling attitude suggests
the coercive nature of Plummer's inquiry into his status as
"organizer."
Similarly, I find violative of Section 8(a)(1) of the Act
Plummer's interrogation of Carroll Small concerning his
reasons for attending the March 3 union meeting;
Plummer's interrogation of Henry Dube on the same
morning as to the extent of Dube's knowledge about the
Union; and Richard Murphy's question to Harold Sproul
wherein vlurphy inquired into Sproul's knowledge of the
"I do not credit Plummer 's testimony that on the occasion of this
conversation he went to Small and initiated the conversation.
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union meetingheld the night before.
These inquiries emanating from the two principal
officers of the Company and occurring in close time
relationship one with another reveal a coordinated though
somewhat disguised effort to achieve a disclosure of union
affinity on the part of those employees questioned and of
employees generally. The Respondent contends that it was
merely seeking to learn the causes of employee
dissatisfaction. However, the questions here found
violative were unnecessary to this asserted purpose.
Moreover, similar to the circumstances pertaining in
Liberty Coach 'Company, Inc., 172 NLRB No. 154, the
questions posed by Plummer and Murphy to the
employees indicated that Respondent's "knowledge of the
employees' union ^ affiliation was less complete than it
desired." As in Liberty Coach, the cautiously phrased
answers provoked by the question suggests that the
questions were interpreted by the employees as a search
for additional insight and were of the variety likely to be
looked upon by them as intrusion into their own affairs.
Also violative of Section 8(a)(1) of the Act was the
remark of Eugene Hamrick to Sproul on March 4 or 5
wherein Hamrick revealed to Sproul that Sproul's
attendance at the union meeting of March 3 was known.
The context of Hamrick's remarks were such as to convey
to Sproul -that his union activities were a matter of
interest= to supervision and were under a degree of
surveillance . As the record developed, it is clear that
Sproul worked during -the summer months on the crew
over which, during those months of high work activity,
Hamrick had supervisory authority. As the record shows
that, Hamrick's status as a seasonal supervisor was an
engrained one, and as Sproul had the reason to believe at
the time of Hamrick's remarks that he and Hamrick
would soon again be returning to their normal seasonal
relationship of crew member to supervisor, it is reasonable
to conclude that Hamrick's remarks would be interpreted
by Sproul as bearing an imprimatur of authority higher
than that to be attributed to a year around rank-and-file
employee. In these circumstances , I conclude that Sproul
was coerced in the exercise of rights guaranteed him by
Section 7 of the Act. 15
,The Terminations
However, I find that the, evidence fails to sustain the
allegations of the complaint relating to the layoff of
Harland Lebel and the discharge of Carroll Small.
That -Respondent, and its principal officer, Harold
Plummer did not welcome the prospects of unionization
and desired to have the plant remain unorganized is
established and found. That Harland Lebel was known
prior to his layoff to be the principal proponent of
unionization among the employees is similarly found.
However, the evidence fails to preponderate in favor of a
finding , essential to sustaining the relevant allegation of
the complaint, that Lebel was included in the layoff
because he was a union proponent. Rather, I conclude and
"The parties wert - given full opportunity to litigate this issue and the
substantive aspects of Hamrick 's remarks were elicited by the General
Counsel through an offer of proof which was rejected. See in . 1, supra
While the hearing was still in progress the Trial Examiner , pursuant to a
request of the General Counsel for reconsideration of his rejection of his
earlier offer of proof, indicated to Respondent his intention to take under
advisement the curative aspects of the evidence `revealing some supervisory
capacity on the part of Hamrick . Respondent chose not to refute or
otherwise attack the testimony of Sproul concerning Hamrick 's remarks to
him.
find that his inclusion resulted from an objective selection
process tailored to Respondent's prevailing manpower
needs and tempered by existing economic exegencies.
Lebel's skills were not those necessary to the fulfillment of
the impending work tasks and he was laid off temporarily
as a consequence. The General Counsel failed to establish
discriminatory motivation as a contributing factor in the
decisional process utilized by Respondent in determining
employees to be laid off.
In this regard, granting their lower wage rates and
seniority status, there is no basis for finding that Harold
Sproul or Robert McKenna should have been deposed
from their regular truckdriving assignments in favor of
Lebel whose job assignment was not in this category and
whose skill was not shown to be as great or greater than
theirs. Moreover, Sproul had moved into a position of a
senior driver and McKenna had financial stresses known
to management. On neither score is there basis in the
record for finding Lebel's entitlement to equivalent
management consideration. Nor does the evidence reveal
the basis for inferring adverse motive in the preference of
either Stone or Barstow over Lebel. Both had raking skills
which Lebel did not possess in any degree; and the skill of
Stone was a superior one which Plummer wanted to
retain. The impending need for the raking services of both
Stone and Barstow was convincingly established and
Barstow's maintenance experience was one which could be
well utilized in the interim. Further, Pickett, an employee
senior to Lebel, whose normal assignment was the small
loader was both a capable and logical choice for retention
as the operator of the small loader. While it may be
speculated that Lebel could have beneficially augmented
the work of the employees the evidence establishes that
the gravel pit operation in which Lebel worked was closed
down out of necessity and Lebel's large loader was retired
for servicing. The evidence does not reveal that during the
period of Lebel's layoff the loader was reactivated or used
for productive purposes nor does it establish that there
was need, over and above that within the capacity of
employees retained, for maintenance and repair skills.
Given these considerations, and as the layoff was a
general one including in its scope employees whose union
affiliations or lack thereof were neither revealed by the
evidence or cited by the General Counsel as inferential
considerations in support of his complaint allegations
pertaining to Lebel, I find that the evidence of record does
not support the complaint with respect to the layoff of
Lebel. I shall accordingly dismiss the complaint in that
respect.
Nor did the General Counsel sustain the burden of
establishing that the termination of Carroll Small was
discriminatory. As I view the General Counsel's theory he
concedes the mandate of the Wage and Hour directive but
contends that it was implemented for discriminatory
reasons in a manner calculated to provoke Small to resign
his employment. The General Counsel overstresses both
Respondent's motivation and the degree of provocation.
The record establishes that prior to the advent of the
Union, Plummer looked upon Small as one of the
members of the nucleus group whose services were
contemplated and relied upon on a year-to-year basis. It
was only by direction of the Wage and Hour division that
Small's manner of compensation was to be changed and
Plummer gave interim thought to divising a payment
formula which would give a degree of recognition to
Small's former "foreman" status and be equitable to
other employees in related work categories who, like
Small, were to be hourly paid. He was not able to devise
GRANITE PAVING CO. 905
such a formula and Iam convinced by the testimony of
Plummer that he had reached a determination prior to
learning of Small's attendance at the March 3 union
meeting that Small's , compensation was of necessity,
dictated by legal and morale considerations , to be at an
hourly rate, devoid of former fringe benefits paid only to
salaried employees or supervisors. Having reached this
determination Plummer learned of Small 's attendance at
the March 3 meeting and out of pique and disappointment
he resolved to make immediately effective the modified
compensation base which, of legal necessity, he would
very soon have had to effectuate. Plummer was moved to
the implementation of his earlier wage decision by the
disenchantment he experienced upon learning that Small,
a salaried member of the nucleus group, had attended the
union meeting ; and the bartering which ensued over the
hourly wage rate to be applied reveals this. But Plummer
quickly recanted from his parsimony and agreed to a
$2.50-per-hour rate which was at the level of the highest
hourly rated employees. That this rate was not to be
supplemented by receipt of fringe benefits is not indicative
of discriminatory purpose for no hourly rated employee
received fringes and, unlike salaried employees, they were
compensated at premium Yates for overtime work which
was recurringly available to them. The income from
overtime was viewed by Plummer as an offset reward for
the value increment of the fringe benefits accorded
salaried employees. The cessation of the gasoline
allowance to Small was reasonable for this allowance was
an attribute of "street" use of a truck in the
performance of work tasks and it was anticipated that
like the other mechanic who received the allowance Small
would be similarly compensated. As with the other fringe
prerogatives of salaried status the allowance for driving to
and from work was to be withdrawn.
Contrary to the General Counsel, I find that neither the
withdrawal of the gasoline allowance which preceded
Small's statement of resignation nor the cancellation of
the entire fringe benefit package constituted in the
circumstances of their- cancelation intentional, calculated
provocation. Nor do I find in them deprivation of a
character insufficiency justifying Small's request for
layoff. That Small acted impetuously out of injured pride
and without calculating the true money relationship of his
new income level to his old one is suggested by his return
within a week to accept essentially the offer made to him
by Plummer prior to his resignation. Plummer's retort
relating to his apparent inability to please Small and his
oblique observation to availability of work elsewhere were
manifestations of intemperance but were hardly threats of
discharge or of so severe a content as to trigger
resignation . That Plummer sought to retain Small's
services is shown by his ready acceptance of Small with
increased compensation for his assumption of additional
responsibilities. Contrary to the General Counsel the
pattern of the entire incident reveals an objective effort on
Plummer's part to strike an accommodation and to retain
Small's services. That Plummer was not over generous
does not establish discriminatory motive nor support a
finding of unlawful provocation.
In view of the foregoing I shall dismiss the allegations
of the complaint relating to the asserted termination of
Carroll Small.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent 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 of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices I shall recommend that it cease and
desist therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and
conclusions and upon the entire record in this case, I
make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. International Union of Operating Engineers, Local 4,
is a labor organization within the meaning of Section 2(5)
of the Act.
3. By interrogating employees concerning their own
union activities and the union activities of fellow
employees and by giving employees the impression that
their union activities were under surveillance the
Respondent has engaged in and is engaging in unfair labor
practices in violation of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
5. Respondent did not violate the Act by laying off
Harland Lebel or by terminating Carroll Small, as alleged
in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in this case,
I recommend that Granite Paving Company, its officers,
agents, successors, and assigns, shall.
1. Cease and desist from:
(a) Interrogating employees concerning their union
activities or the union activities of fellow employees, or
giving employees the impression that their union activities
are under surveillance.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the right to
self-organization, to form their own labor organization, to
join or assist the Union, or any other labor organization,
to bargain collectively with representatives of their own
choosing, and to engage in concerted activities for the
purpose of collective bargaining or for other mutual aid or
protection, or to refrain from any or all such activities
except to the extent that such right may be affected by an
agreement requiring membership in a labor organization
as authorized in Section 8(a)(3) of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Post at its Topsham, Maine, plant and places of
business and at all other places of business where notices
to employees are customarily posted, copies of the notice
attached hereto and marked "Appendix."16 Copies of the
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board 's Order is enforced by a decree of the United States
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
notice on forms provided by the Regional Director of
Region 1, shall, after being duly signed by a representative
of the Respondent, be posted immediately upon receipt
thereof and be maintained by it for a period of 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 ensure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 1, in
writing, within 20 days from the receipt of this Trial
Examiner's Decision, what steps have been taken to
comply herewith."
Court of Appeals the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify the Regional Director for
Region 1, in writing , within 10 days from the date of this Order what steps
the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
their own union activities or the union activities of their
fellow employees.
WE WILL NOT make statements to our employees
calculated to give them the impression that their union
activities are under surveillance.
WE WILL NOT in any like or related manner interfere
with, restrain or coerce our employees in the exercise of
their right to self-organization , to form , join , or assist
International Union of Operating Engineers , Local 4,
or any other labor organization , to bargain collectively
through representatives of their own choosing, to
engage in concerted activities for the purpose of
collective bargaining or any other mutual aid or
protection, or to refrain from any or all such activities.
All our employees are free to become , remain, or
refrain from becoming or remaining members of the
above-named labor organization or any other labor
organization.
GRANITE PAVING
COMPANY
(Employer)
Dated By
(Representative ) (Title)
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT interrogate our employees concerning
This Notice must remain posted for 60 consecutive days
from the date of posting, and must not altered , defaced,
or covered by any other material.
If employees have any question concerning this Notice
or compliance with its provisions , they may communicate
directly with the Board ' s Regional Office, 20th Floor,
John F. Kennedy Federal Building, Cambridge & New
Sudbury Streets , Boston, Massachusetts 02203, Telephone
617-223-3353.