Hanover Concrete Co.

National Labor Relations Board - Board Decisions

Apr 18, 1979

241 N.L.R.B. 936 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hanover Concrete Co. and Chauffeurs, Teamsters and
Helpers Local Union 430, affilitated with Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America. Cases 4-CA-
8846 and 4-RC- 12744
April 18, 1979
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY MEMBERS PENELLO, MURPHY, AND TRUESDALE
On September 11, 1978, Administrative Law Judge
Sidney J. Barban issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief; Respondent filed
cross-exceptions and a supporting brief; and Respon-
dent also filed an answering brief to the General
Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge as
modified herein and to adopt his recommended Or-
der, as modified.
The Administrative Law Judge found that Respon-
dent had violated Section 8(a)(1) of the Act in four
separate respects, but that, contrary to the General
Counsel's contentions, four other allegations of the
complaint had not been proven. Based on the viola-
tions found, the Administrative Law Judge further
recommended that the election held on August 26,
1977, be set aside and that a new election be directed.
The General Counsel and Respondent have excepted
to those findings adverse to them. We affirm the Ad-
ministrative Law Judge with respect to the various
violations found by him and, based thereon, we also
adopt his recommendation to set aside the election.
However, contrary to the Administrative Law Judge,
we further conclude that the General Counsel has es-
tablished that Respondent violated Section 8(a)(l) of
the Act in two further respects, as detailed below.
1. The Administrative Law Judge concluded, inter
alia, that Respondent had not violated Section 8(a)(l)
I Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established pol'cy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
of the Act by interrogating two employees concerning
their union sympathies. We disagree.
The alleged interrogations-in separate incidents-
occurred during the Union's organizational campaign
and involved employees Michael Hnatkowicz and
David Arndt, and Respondent's acknowledged
agents, George Albright, and his son, Ronald Al-
bright.2
During the first week of July,3 Michael Hnatko-
wicz, one of Respondent's cement truck drivers, was
asked by George Albright if employee Randy Rei-
chart was his friend. When Hnatkowicz replied in the
affirmative, Albright asked if Reichart was "head of
the Union." Hnatkowicz stated that he did not know.
On or about July 8, the Albrights called a number
of employees into an office, one at a time, ostensibly
to discuss Respondent's pension system. While David
Arndt was in the office, Ronald Albright asked Arndt
if he knew who was behind the Union, but when
Arndt said that he did, Albright did not pursue the
issue. Albright further stated that because the em-
ployees had not come to management first Respon-
dent felt that the employees were trying to stab the
Company in the back, and, that being the case, Re-
spondent could "make it rough" on the drivers. Dur-
ing the meeting with Hnatkowicz, Ronald Albright
asked him how he felt about the Union.
Contrary to the Administrative Law Judge, we find
that, with respect to the individual meetings held with
the employees, Respondent's questioning of Hnatko-
wicz and Arndt-by high level management-was co-
ercive and interfered with the employees' Section 7
rights to engage in union activity.
Thus, two employees were summoned into an of-
fice-the locus of authority-one at a time, and inter-
rogated by Respondent's top management about their
union activities as well as those of other employees.
Respondent did not tell the employees that it had any
legitimate purpose for the questioning, and gave the
employees no assurances against retribution. In fact,
as found by the Administrative Law Judge, other vio-
lations of the Act occurred during the meeting. Under
the circumstances, we find that the interrogations
were coercive and therefore violative of Section
8(a)(1) of the Act.4 Similarly, we find that the sepa-
rate interrogation of Hnatkowicz at his work station
by Respondent's president as to the identity of the
union leader was not for a legitimate purpose and
clearly tended to interfere with the employees' Sec-
tion 7 rights. Accordingly, we find that this incident
also violated Section 8(a)(l) of the Act.
2. The Administrative Law Judge further con-
2 George Albright is the president of Respondent: Ronald Albright is its
vice president.
All dates are 1977, unless noted otherwise.
'See, e.g., Solboro Knilling Mills, Inc., 227 NLRB 738, 757 (1977).
241 NLRB No. 120
936
HANOVER CONCRETE CO.
cluded that Respondent did not violate Section
8(a)(1) of the Act by threatening to have a former
employee arrested because of his union activities. As
noted, we disagreed with this conclusion also. On Au-
gust 28, the day of the election, Michael Hnatkowicz
came to the plant to vote.' Ronald Albright instructed
him to go in and cast his ballot, not to talk to anyone,
and to come out and leave the plant premises. After
voting, Hnatkowicz drove his car out of Respondent's
premises and parked on the public road outside the
plant. As Hnatkowicz proceeded to talk to another
terminated employee who was parked a short dis-
tance away, he was approached by Ronald Albright
who stated in strong, vulgar terms, that he did not
want "any ... Teamsters parked here." When Hnat-
kowicz asserted that he was on public property, Al-
bright threatened to call the police if he did not de-
part. Larry Bollinger, an employee of Respondent
and a member of the voting unit, overheard the con-
versation. Albright asserted that he asked Hnatko-
wicz to move as a safety precaution.
We agree with the Administrative Law Judge's
finding that Albright's statement reflected Respon-
dent's great animosity toward Hnatkowicz because of
his union affiliation. We disagree with his conclusion
that it did not violate Section 8(a)(l) of the Act.
There is no evidence that the presence of Hnatko-
wicz on public property located outside Respondent's
facility was unlawful and Respondent has not as-
serted a proprietary interest in such property. In view
of the strong, vulgar language applied by Albright in
referring to Hnatkowicz as a Teamster, we find that
Respondent's threat to have Hnatkowicz arrested was
motivated, not by any concern over a safety hazard,
but by his union activities. Accordingly, we conclude
that by threatening Hnatkowicz with arrest because
of his union activities, in the presence of a voting unit
employee, Respondent violated Section 8(a)(1) of the
Act.
In light of the above additional violations, we shall
modify the Administrative Law Judge's recommend-
ed Order and proposed notice.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent, Hanover
Concrete Co., Hanover, Pennsylvania, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so modi-
fied:
1. Insert the following as paragraphs l(d) and (e)
and reletter the subsequent paragraph accordingly:
"(d) Coercively interrogating its employees con-
cerning their union activities and the union activities
of other employees.
"(e) Threatening employees who are on public
property with arrest because of their union activities."
2. Substitute the attached notice for that of the
Administrative Law Judge.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all employ-
ees the right:
To form, join, or assist labor organizations
To bargain collectively through representa-
tives of their own choosing
To engage in other concerted activities for
the purpose of collective bargaining or other
mutual aid or protection
To refrain from any or all such activities,
except as may be required by a legal agree-
ment between an employer and the represent-
ative of the employees.
WE WILL NOT coercively interrogate employ-
ees concerning their union activities or the union
activities of other employees.
WE WILL NOT threaten employees with loss of
benefits, or with other reprisals, because they
join, assist, support, or vote for Chauffeurs,
Teamsters and Helpers Local Union 430, affili-
ated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America.
WE WILL NOT threaten employees who are on
public property with arrest because of their
union activities.
WE WILL NOT solicit employee grievances, or
convey to employees that voting for a labor or-
ganization would be futile, in order to discourage
our employees from engaging in union activities,
or from joining, assisting, or supporting a labor
organization.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their rights guaranteed by the
National Labor Relations Act.
I Hnatkowicz had been discharged on July 15.
937
HANOV'ER CONCRETE CO.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
SIDNEY J. BARBAN, Administrative Law Judge: This mat-
ter was heard before me in Hanover, Pennsylvania, on
January 27-28, 1978, upon a complaint issued on Septem-
ber 30, 1977 (all dates hereinafter are in 1977, unless other-
wise noted), based on charges filed on August 10 and 12, by
Chauffeurs, Teamsters and Helpers, Local Union 430, affili-
ated with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, the Charg-
ing Party (herein called the Union), consolidated with
hearing on objections to the election in Case 4 RC 12744,
by an Order of the Regional Director dated October 17.
The complaint, as amended at the hearing, alleges that
Respondent violated Section 8(a)(l) of the National Labor
Relations Act, as amended (herein called the Act), by (1)
interrogation of employees concerning union activities, (2)
informing employees that no union outsiders would run the
plant, (3) threatening employees concerning union activi-
ties, (4) forcing a former employee, in the presence of cur-
rent employees, to leave public property near Respondent's
plant because of the former employee's union activity, (5)
informing employees that if the Union were selected as the
employees' bargaining representative, Respondent would
change certain working conditions, (6) promising an em-
ployee a raise if he voted against the Union in a representa-
tion election, (7) offering benefits conditioned upon cessa-
tion of union activities, (8) compelling employees to attend
Respondent's party to prevent attendance at a scheduled
union meeting.
The Board, by its Order dated November 9, adopted the
Regional Director's Report and Recommendation on Ob-
jections to Election, dated October 17, and ordered a hear-
ing on the following objections to the election: That the
employer (I) engaged in and made material misrepresenta-
tion interfering with the election, (2) interrogated employ-
ees concerning their union sympathies, (3) promised bene-
fits if the employees voted against the Union, (5) promised
wage increases if the employees voted against the Union.
and (6) by other acts and conduct prevented and interfered
with a free and fair election. (Objection 4 was dismissed.)
Respondent's answer to the complaint denies the com-
mission of the unfair labor practices alleged, but admits
allegations of the complaint sufficient to justify the asser-
tion of jurisdiction under current standards of the Board
(Respondent, engaged in the manufacture and processing of
concrete at Hanover, and at Shrewsbury, Pennsylvania,
purchased goods valued in excess of $50,000 directly from
outside the Commonwealth of Pennsylvania for use at its
Pennsylvania facilities), and to support a finding that the
Union is a labor organization within the meaning of the
Act.
Upon the entire record in this case, from observation of
the witnesses and their demeanor, and after due consider-
ation of the briefs filed by the General Counsel, the Union
and Respondent, I make the following:
FINDINGS AND CONCLUSIONS
The following findings of fact are based upon a consider-
ation of the entire record. In addition, credibility resolu-
tions have been derived in large part from impressions
which the various witnesses made upon me at the hearing.
To the extent that the testimony of any witness is not con-
sistent with the findings made, that testimony is not cred-
ited.
A. Preliminary
As has been noted, Respondent maintains two facilities
for the production and distribution of concrete, one at Han-
over, and a second at Shrewsbury. 20 miles away. Although
there is a significant reference to Shrewsbury, all of the
events involved in this matter occurred at Hanover, which
is Respondent's main facility.
It is admitted that George Albright, president of Respon-
dent, and G. Ronald Albright, its vice president, are agents
of Respondent, and supervisors within the meaning of the
Act. The General Counsel contends and Respondent de-
nies, that Frederick E. Rummel is also a supervisor and
agent of Respondent. These three are alleged to have com-
mitted the various unfair labor practices discussed hereinaf-
ter. We will first consider Respondent's responsibility for
Rummel's activities.
B. Rummel's Status
Respondent has a shop at Hanover for the maintenance
and repair of its trucks and equipment. Rummel and Mar-
tin Storm, two of Respondent's most senior men, are en-
gaged in the shop, primarily as mechanics. The major part
of Respondent's work force are the truckdrivers. They re-
port to the shop area, and during a considerable part of the
time are dispatched from there, or are assigned to work in
or around the shop. However, the dispatcher is physically
located in a separate portion of the Hanover facility. At
various times during the day, estimated to be 50 percent of
the time, George Albright may be in the shop.
When the dispatcher needs to have a truck loaded and
sent out, or when various materials sold by Respondent
need to be cut or prepared for a customer, the dispatcher,
or someone else in the office, will call the shop. Normally,
Rummel will answer the call. Based on the requirements of
the dispatcher, or whoever is calling, Rummel will tell one
of the drivers who is available to do what is required. It
would appear that on infrequent occasions, Rummel may
perform the task himself. The record indicates and I infer,
that Storm is involved in the dispatching process to a lesser
degree, but when he does answer the telephone, he appar-
ently operates as Rummel does. On those less frequent oc-
casions when one of the truckdrivers answers the telephone,
that driver would normally take the assignment and per-
form it himself. If for some reason that driver was not avail-
able or not able to do what was required, he would ask
another driver to do what was required.
Rummel's testimony indicates that he exercises consider-
able authority with respect to the drivers in and about the
shop area, using his personal judgment and discretion.
Thus, Rummel states, that when someone "calls down on
the telephone" to have some work done, "then I go out, I
get some guys to get done whatever needs to be done."
Rummel states that he selects "[w]hich one is doing the
least important work." He says that "I sort of-I know, on
938
HANOVER CONCRETE CO.
hand, a little hit what we are going to do, or should be
done, and that is what we try to get done." At another
place, Rummel testified that. in running the shop, if George
Albright is not there, he tries "to see that the guys are work-
ing, that they all have jobs to do, that they are not just
standing around talking." Hie says that he "tellls] them dif-
ferent jobs to do," and that it could be said that he "as-
sign[s work." With respect to which drivers are assigned to
work in the shop, or which are sent out to haul concrete,
Rummel testified that "[e]verybody works in the shop un-
less they are out hauling concrete." As to who makes the
decision in respect to who goes and who stavys Rummel
says that depends on "which trucks are broke down, and
which . . . need to he worked on. I guess I make some of
those decisions." When the driver comes back from a trip,
he reports to the dispatcher. If the dispatcher does not give
him an assignment, the driver washes up his truck, and then
if he does not know what else to do, according to Rummel.
the driver reports to him and asks "what we would like him
to do." Rummel testified that he would make that decision.
based on "[wjhat we have to do in there, what is broke
down." Although Rummel asserts that he was not told, or
assigned to conduct himself in this way, I would infer from
the amount of time George Albright says he spends in the
shop area that he is well aware of what Rummel is doing in
Respondent's interest, and had not disapproved of it.
Rummel, Storm, and others are listed on Respondent's
group life insurance policy as "supervisors" in order that
they may receive substantially larger life insurance policies
than others. This is known to the drivers. On the other
hand, it is denied that Rummel has hired, discharged, trans-
ferred employees, given them time off, or recommended
such action. David Arndt, a former driver for Respondent,
called as a witness by the General Counsel, testified that he
did no! consider Rummel to be his "boss." By agreement of
the parties Rummel voted in the election.
This issue is close and difficult. The evidence is that
Rummel, with Respondent's acquiesence and approval. has
assumed attributes of a first line supervisor, acting in Re-
spondent's interest. Clearly Respondent has given Rummel
a superior status of that of the drivers. Thus, Respondent
put Rummel in a position of such responsibility identifying
him with management that the employees would reason-
ably understand that he spoke for management in regard to
Respondent's labor policies, and Respondent is therefore
responsible for his actions within the area of such apparent
authority. See S & NM Grocers, Inc. S. Cook Enterprises,
Ltd.; and Cook's Supermarkets. 236 NLRB 1594 (1978), and
cases cited at JD slip op. p. 6.
In the circumstances, I find it unnecessary to decide
whether Rummel was a supervisor within the meaning of
the Act.
C. The Alleged Unfair Lhbor Practices
The Union's petition for certification as bargaining repre-
sentative was filed with the Board on June 20. The election
was conducted on August 26. with a majority of the votes
cast against representation. It is of some significance to the
events set forth below to note that the Union has unsuccess-
fully sought to be certified by the Board the previous year,
and that George Albright's brother. who was active in the
business. had died just before that election. for which event
the Alhrights apparently held the Ulnion responsible.
Upon the basis of the entire record. I find the following:
I. Toward the end of June, in a conversation in which
driver Michael Hnatkowicz was asking George Albright
why Ronald Albright "more or less' had been questioning
linatkowic7' about the Union, George Albright replied, in
the words of Hnatkowicz, "he was telling me how he al-
ready lost a brother because outside or they didn't want
outsiders running his plant." George Albright admittedly
made similar statements to all the employees during a
group meeting before the election.:
2. In early July,. George Albright asked Hnatkowicz if
employee Randy Reichart was his friend. When Hnatko-
wicz replied in the affirmative, Albright asked if Reichart
was "the head of the Union." Hnatkowicz said that he did
not know.
3. In early July, Rummel approached a group of drivers
who were in the shop and told them that George Albright
had asked him to get the employees to prepare a list "of
what [the employees] wanted . . . instead of going to the
Union." However, later that same day. before the employ-
ees could comply with the request, Ronald Albright came
to the employees and told them "to forget it," that they
should not meet to prepare such a list.
4. Also in early July, on a morning when Hnatkowicz
had been talking with other drivers, away from his truck,
George Albright later told Hnatkowicz that "we should be
down there checking out our trucks instead of having union
meetings."
5. On or about July 8, a number of the employees were
called into an office one at a time apparently to be told
about Respondent's pension system. While in the office,
Ronald Albright asked employee Arndt why some of the
employees had not come to management first for what they
wanted, instead of going to the Union. Arndt reminded Al-
bright that after Rummel had told the employees that this
was what the management wanted, the employees were
going to make up such a list, but that Albright had told the
employees not to do that. Albright asked if Arndt knew
who was behind the Union. but when Arndt said that he
did, Albright did not pursue it. In the course of this conver-
sation, however, Albright said that because the employees
had not come to management first, Respondent felt that the
employees were trying to stab the company in the back, and
that being the case, Respondent could "make it rough" on
the drivers too. During the meeting with Hnatkowicz, Al-
bright asked him how he felt about the Union.
6. Also at this same time, when Hnatkowicz reminded
Ronald Albright of his previous complaint that newer em-
ployees were making the same amount of money as he, and
of Hnatkowicz' desire for a wage raise, Albright told Hnat-
I Hnatkowicz later explained that he had been informed that Ronald Al-
bnght had been questioning another employee. Spangler, about Hnatkowicz'
involvement in the Union. and that at another time Albright was more or
less asking me questions, and I knew, had a good idea it was about the
Union."
2 Alhrighl asserted that he said that "Union or non-union, no outsider is
going to come in here and operate this plant as long as I am president." I am
convinced that the insertion of reference to "non-union" is a bit of after-
embellishment,. and do not credit that. I find that Albnght said that no union
outsider was ever going to come in and run his plant.
939
DECISIONS OF NATIONAL I.ABOR RELATIONS BOARD
kowicz, "Get your hair cut and vote the Union out, and we
will give you a raise."'
7. Respondent held at least two group meetings with em-
ployees before the election, one of them a day or two before
the election. At one or more of these, Ronald Abright held
a document which he said was a bargaining agreement be-
tween the Union and a competitor of Respondent.4 The
object of the meeting, according to Ronald Albright, was to
explain the advantages of Respondent's practices in com-
parison with the union contract. At this meeting. Albright
referred to the fact that the union contract provided that, if
there was no work for any employee who reported for work.
the employer must grant the employee at least 4 hours
"show up" pay.' Albright said that operating under such
contract, Respondent would call the employees the night
before or the morning before work and tell the employees
not to come in to work if there was no concrete to haul or
the weather was unsuitable, or would send the employees
home if work ran out during the day, instead of following
Respondent's normal practice in such cases of permitting
the employees to come in and work a full day around the
shop.,
At this meeting, Albright also told the employees that, if
Respondent were operating under the union contract, em-
ployees stationed at Hanover who were told to go to
Shrewsbury to deliver concrete from that facility would
have to drive to Shrewsbury in their own cars, on their own
time, punch in at Shrewsbury, and after work punch out at
Shrewsbury, and return to Hanover on their own time,
whereas under Respondent's normal practice employees as-
signed to work at Shrewsbury clocked in at Hanover, drove
Respondent's equipment from Hanover to Shrewsbury, on
time paid by Respondent, and at the end of the day's work
clocked out again at Hanover.
Though Albright first denied referring during this meet-
ing to changing the punch-in and punch-out procedure with
respect to those employees who went to Shrewsbury (or
that he had done so at any other time), on cross-examina-
3Hnatkowicz identified salesman Brian Smith and dispatcher Cyril Rum-
mel as being present when this incident occurred, Both denied ever hearing
Albright say anything to this effect to Hnatkowicz. Albright denied it was
said. I consider Hnatkowicz to be a reliable witness with respect to this
matter. In particular, I was impressed with the detail with which he ex-
plained this incident. I do not believe he made it up. I was not similarly
impressed, on the whole, with Albright's testimony. Smith and C. Rummel
were not involved in the incident and possibly did not hear it or have forgot-
ten. C. Rummel agrees that he is not attentive to matters going on around
him when he is at work. Smith, on cross- and redirect-examination, gave the
impression of not remembering, or not caring to remember, other communi-
cations between management and the employees.
I Albright at various times identified this meeting as occurring on August
5 and on August 25. Arndt states that it occurred on August 5. George
Albright states that he attended a group meeting addressed by Ronald Al-
bright 2 days before the election (which took place on August 26).
Albnght at first recalled that the guarantee was for 4 hours: later he
stated he could not remember the minimum guarantee. Arndt testified to
discussion of a 4-hour guarantee.
I In his testimony, Albright contended that in making these statements he
was following the contract, or that the changes would be caused by the
contract. The testimony is not credited, There is no evidence that the con-
tract would compel any such change in Respondent's practices, or that the
Union would be likely to ask for such changes. Respondent, though it had
the contract used in these talks, did not offer it in evidence. Albright could
not recall any provision of the contract which would have required Respon-
dent to call employees not to come in to work, or which required that they be
sent home. I find that there was none.
tion. he finally agreed that he did discuss this matter at that
meeting. Albright testified that the statements made were in
accordance with the seniority provisions of the union con-
tract. Since the contract was not submitted, it is impossible
to determine whether there is any basis to this claim. How-
ever, on this record, I find that this contention was not
explained to the employees at the time, the message con-
veyed to the employees being that set out above.7
During this meeting, George Albright interrupted Ron-
ald Albright, stating, as discussed above, that as long as he
was president of Respondent, no union outsider was going
"to come in here and operate this plant." George Albright
then told the employees, "I [am] fed up with this whole
damn mess," and abruptly walked out of the meeting.
8. The Union scheduled a meeting for Respondent's em-
ployees on August 17. Respondent scheduled a party for
the employees that same time. Arndt recalled that Ronald
Albright had told him that Arndt should attend the party,
"or else." There is evidence that Respondent had given par-
ties for the employees in other years. There is other, coun-
tervailing evidence that these other parties were different,
held at different places, with more participation by the em-
ployees in the arrangements, including the setting of the
date, than was the case in 1977. I see no reason to discuss
this in detail. There is no evidence that the date of the
union meeting was publicized to the general public, how far
in advance the meeting was scheduled, or how widely infor-
mation about the meeting was disseminated. Respondent
denies knowing about the meeting. Though the incident is
curious, there is not enough evidence to justify an inference
that Respondent knew of the meeting and deliberately
scheduled its party to interfere with the meeting.
9. On August 26, the day of the election, Hnatkowicz,
who had been discharged in July, came to the plant to vote.
Employee Larry Bollinger, who had been assigned by Ron-
ald Albright to watch the gate that day, let Hnatkowicz in,
who parked in the employee parking area. Ronald Albright
told him to go in and cast his ballot (presumably a chal-
lenged ballot; there was then a change pending that his
discharge was discriminatory), not to talk to anyone, and to
come out and leave the plant premises. After voting Hnat-
kowicz drove his car out of Respondent's premises and
parked on the shoulder of the road (off the roadway) out-
side the plant. At this point Hnatkowicz was proceeding to
talk to Larry Sipling (another terminated employee) who
was parked a short distance away, when Hnatkowicz was
accosted by Ronald Albright, who told Hnatkowicz, in
rather strong, vulgar terms, that he did not want "any ...
Teamsters parked here." When Hnatkowicz asserted that
he was on public property, Albright threatened to call the
police if he did not move. At the time Bollinger was within
earshot of the conversation. Hnatkowicz had his brief con-
versation with Sipling, and departed. Ronald Albright, de-
nying the language attributed to him, says he asked Hnat-
kowicz to move as a safety precaution. I have considerable
' In his testimony, Arndt asserted that Albright also stated that under the
union contract Respondent could discharge employees if they were not at
home when Respondent called them to come in to work to handle unex-
pected orders. This testimony is not discussed in either the General Counsel's
or the Union's brief (though set forth in the latter), and it does not appear to
be covered by the allegations of the complaint. In the circumstances, I have
not further considered it.
940
HANOVER CONCRETE CO.
doubt as to this, but find it unnecessary to resolve the ques-
tion.
D. A4nalvsis and Conclusions
I. The unfair labor practices
I. Interrogation. Hnatkowicz was asked by George Al-
bright if another employee was head of the Union. He said
he did not know. Arndt was asked if he knew who was
behind the Union. He said that he did. The matter was
dropped there. On another occasion Hnatkowicz was asked
how he felt about the Union. All these questions were from
high level management. Two were in a private office, the
other in a working area. These instances, either standing
alone or in the context of this case, do not amount to coer-
cive interrogation within the meaning of the Act.'
2. Outsiders I find that George Albright's comments
that no union outsiders would operate his plant as long as
he was president of Respondent, had in the circumstances
of this case, a reasonable tendency to interfere with, re-
strain, and coerce employees in the exercise of their rights
under the Act, and thus violated Section 8(a)(l) of the Act.
Of course, the literal words, standing alone, as Respondent
argues, are an obvious statement of Respondent's right. In
fact, the statement is so obvious that the fact that Albright
felt the need to say it gives rise to the inference that he
meant to convey a meaning beyond the literal words. It was
uttered on more than one occasion in an atmosphere of
bitter hostility to the Union. On the last occasion. George
Albright interrupted a discussion of the changes that a
union contract would make in the operation of Respon-
dent's business, to state that the union outsiders were never
going to operate his plant, and proceeded to stalk out of the
room. It was reasonable for the employees to understand
from the total context of these events that Albright meant
them to know that bringing the Union in as their represent-
ative would be futile because he would not permit the
Union any meaningful participation in the determination of
working conditions.
3. Solicitation of grievances: I do not find that Rummel's
suggestion to the employees, which he asserted emanated
from George Albright, that the employees make up a list of
what they wanted instead of going to the Union constituted
a violation of the Act, since soon thereafter, and before the
employees could act on the suggestion, Ronald Albright
told the employees "to forget it." In these circumstances, it
cannot be said that by soliciting these grievances, Respon-
dent impliedly, or otherwise indicated an intention to rem-
edy the grievances. To the extent that such an inference
might be drawn from Rummel's action, it was quickly dis-
pelled by Albright. However later, Ronald Albright himself
upbraided the employees for not bringing their grievances
to Respondent, and in fact threatened reprisals because the
I do not consider that Hnatkowicz' testimony that Ronald Albright
"more or less" questioned him in circumstances not detailed, which gave him
"a good idea" that the questions pertained to the Union. iufficient to support
a finding that he was questioned by Ronald Albright about the Union. Nor
do I make any finding based on Hnatkowicz' testimony that he was told that
Ronald Albright had questioned employee Spangler about Hnatkowicz' in-
volvement in the Union. though Spangler's testimony was such that I would
not credit his denials that this occurred
employees had gone to the Union instead. I find that by
both of these actions Respondent violated Section 8(a) 1) of
the Act, for by such conduct, Albright forcibly indicated
that if the Union were defeated, the employees could suc-
cessfully bring those grievances to management in the fu-
ture, and, of course, clearly violated the employees' rights
by threatening reprisal for their union activities.
4. Promise of wage raise. When Hnatkowicz asked Ron-
ald Albright for a wage raise, Albright told him if he got a
hair cut and voted the Union out, he would be given a raise.
I find that by this action Respondent violated Section
8(a)(1) of the Act. Respondent argues that the reference to
the hair cut indicates that Albright was jesting. In the cir-
cumstances, however, even if I were to assume Albright was
in jest (which I do not), I am convinced that there was a
hard truth contained in the jest which expressed Albright's
true feelings.
5. Change in enefits. In a group meeting. or meetings,
before the election, Ronald Albright told the employees
that if the Union secured a contract with Respondent con-
taining terms like that he held in his hand, Respondent
would change certain working conditions then enjoyed to
the employees' detriment. Contrary to Respondent's argu-
ment, there is no showing that the Union's contract would
compel such changes, or that the union would request such
changes (I infer that it would not). And. in fact, these
threatened changes were presented to the employees as the
method by which Respondent would counter gains which
the employees might secure by selecting the Union as their
representative, thus impressing upon the employees the fu-
tility of pursuing their rights under the Act. By thus threat-
ening reprisal for the employees' activities in selecting the
Union as their representative, and demonstrating that Re-
spondent would take action to make such selection futile.
Respondent violated Section 8(a)( ) of the Act.
6. Other alleged violations: I find that Respondent did
not violate the Act by the following acts and conduct, and
shall recommend that the allegations of the complaint relat-
ing to these matters shall be dismissed:
(a) After observing Hnatkowicz and some others talking
during working hours, George Albright told Hnatkowicz
that the employees should have been checking their trucks
out rather than having union meetings. I see nothing coer-
cive or threatening in this. Respondent has the right to criti-
cize its employees for gathering in groups and talking when
they should be working. The reference to the gathering as a
"union meeting" adds nothing except Respondent's identifi-
cation of the talkers as involved with the Union. No illegal
ban on talk about the Union is shown or alleged.
(b) Respondent's party which was held on the same day
as a scheduled union meeting was not shown to have been
intentionally or knowingly scheduled to conflict with the
union meeting.
(c) Ronald Albright's statement to Hnatkowicz that he
did not want "any (expletive) Teamsters" parked on the
shoulder of the road outside the plant gate, on the day of
the election, while it shows great animosity, does not indi-
cate any interference with employee rights. Hnatkowicz,
who had been terminated, had been permitted to come into
the shop and vote his (presumably challenged) ballot. with-
out hindrance, and was on his way. Of the two employees
941
I)E('ISIONS OF NATIONAL LABOR RELATIONS BOARD
who heard this statement, which occurred outside the plant,
one also had been previously terminated (though also possi-
bly eligible to vote a challenged ballot) and the other had
been assigned by Respondent to monitor the gate that day.
There is no indication that either of these had an opportuni-
ty to convey this incident to other employees, or that it
affected their vote (if they had not already voted).,
Objections to the Election
Based on the above, and the entire record I find merit in
the Objections 3, 5, and 6, which are of a character that
would have substantial impact upon the employees' free-
dom of choice and prevented a free and fair election. It is
therefore recommended that the Board set aside the elec-
tion conducted by the Regional Director on August 26, and
remand Case 4 RC 12744 to the Regional Director for the
conduct of a new election.
CON(CI.USIONS ()F LAw
1. Respondent is an employer engaged in commerce
within the meaning of Sections 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. Respondent has engaged in and is engaging in unfair
labor practices in violation of Section 8(a)( I) of the Act as
found hereinabove, which unfair labor practices affect com-
merce within the meaning of Sections 2(6) and (7) of the
Act.
TIll REMtI)Y
It having been found that Respondent engaged in unfair
labor practices in violation of Section 8(a)( I ) of the Act, it
will be recommended that Respondent cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I issue the following recommended:
ORDER'0
The Respondent, Hanover Concrete Co.. Hanover, Penn-
sylvania, its officers, agents, successors, and assigns, shall:
9 The vote at the election was 16 votes against representation. 6 for. and 2
challenged ballots.
0 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board. the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 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.
1. Cease and desist from:
(a) Threatening employees with loss of benefits by
changes in working conditions or otherwise, or with other
reprisals, if they join, assist. support. or select a labor or-
ganization as their exclusive bargaining representative, or
seek the assistance of such a labor organization.
(b) Offering or promising wage increases or other bene-
fits to induce employees not to join or remain members of-
or to refrain from assisting, supporting, or voting for a labor
organization as bargaining representative.
(c) Soliciting employee grievances, or conveying to em-
ployees that voting for a labor organization as bargaining
representative would be futile in order to discourage em-
ployees from engaging in union activttes or from joining.
assisting. or supporting a labor organization.
(d) In any like or similar manner interfering with, re-
straining, or coercing its employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Post at its operations at Hanover and Shrewsbury,
Pennsylvania, copies of the attached notice marked "Ap-
pendix."' Copies of said notice, on forms provided by the
Regional Director for Region 4, after being duly signed by
an authorized representative of' Respondent, shall be posted
by it immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, defaced,
or covered by any other material.
(b) Notify the Regional Director for Region 4, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
I1 IS FURtIER RE(OMMENI)IED that the election held on
August 26, 1977. in Case 4-RC 12744 is hereby set aside
and said case is remanded to the Regional Director for Re-
gion 4 to conduct a new election when he deems that the
circumstances permit the free choice of a bargaining repre-
sentative.
r IS ALSO FURTIlER ORDERED that the complaint be, and
it hereby is. dismissed as to any alleged violations of the Act
not found hereinabove in this Decision.
" In the event that this Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
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