Harrison Ready Mix Concrete Co.

National Labor Relations Board - Board Decisions

Feb 7, 1995

316 N.L.R.B. 242 (N.L.R.B. 1995)

242
316 NLRB No. 53
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The unit is described as: All truckdrivers, vehicle maintenance
employees, and batch plant employees employed by (Respondent) at
its Harrison, Ohio facility, excluding all office clerical employees
and professional employees, guards, and supervisors as defined in
the Act.
2 The Respondent gave no wage increases in 1986, 1987, and 1988
because of its poor financial condition.
Harrison Ready Mix Concrete and Supply Com-
pany, Inc. and International Brotherhood of
Firemen and Oilers, Local 320, AFL–CIO.
Cases 9–CA–30093, 9–CA–30227, 9–CA–30259,
and 9–CA–30410
February 7, 1995
DECISION AND ORDER
BY MEMBERS BROWNING, COHEN, AND
TRUESDALE
On April 12, 1994, Administrative Law Judge Don-
ald R. Holley issued the attached decision. The Gen-
eral Counsel filed exceptions and a supporting brief
and the Respondent filed a response to the General
Counsel’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions except as modified below and to adopt the
recommended Order as modified and set forth in full
below.
The facts are undisputed. The Respondent makes
and sells concrete. On November 4, 1991, the Union
was certified to represent a unit of the Respondent’s
truck drivers, vehicle maintenance employees, and
batch plant employees.1 In January 1992, the parties
commenced negotiations for a first contract. The par-
ties bargained through 1992 and reached final agree-
ment in July 1993.
In July 1989, the Respondent adopted a policy of
giving the unit employees an annual wage increase.2
This increase had two components—a fixed across-the-
board percentage and an additional merit percentage.
The Respondent determined the fixed across-the-board
percentage of the wage increase by assessing cost-of-
living indexes, the Respondent’s current profitability
and financial projections, and wage increases given by
other similar enterprises in the industry. In 1989 and
1990, the across-the-board percentage was 3 percent, in
1991 it was 4 percent. The record also shows that the
merit percentage increases ranged from 0 to 2 percent
for each of these 3 years depending on the individual
employee’s evaluation. Some employees received the
full 2 percent, some employees received nothing, and
some received amounts varying between 0 and 2 per-
cent. Thus in July 1989 and 1990, the Respondent’s
employees received at least a 3-percent wage increase
with many employees receiving varying amounts be-
tween 3 and 5 percent. In July 1991, the Respondent’s
employees received at least a 4-percent wage increase
with many employees receiving varying amounts be-
tween 4 and 6 percent.
David Gumz, the Respondent’s plant manager, testi-
fied that all the employees asked him about the 1992
wage increase. He also testified that he told employees
that wages were frozen because of the negotiations
with the Union. He further testified that Clarence
Roudebush, the Respondent’s owner, and James
Griebel, the Respondent’s vice president of operation,
told him to tell the employees this. These exchanges
occurred in July 1992. Mike Moses, the Union’s busi-
ness representative, testified that when he became
aware during negotiations that the Respondent was
evaluating employees, he asked the Respondent if it
was going to continue the practice of giving the pay
raises. The Respondent told Moses that the negotia-
tions would take care of the issue. This exchange oc-
curred in August or September 1992. The Respondent
gave no wage increase to employees in 1992.
The judge dismissed the allegation that the dis-
continuance of the annual wage increase violated Sec-
tion 8(a)(5). He noted that the Union’s initial wage
proposal did not request that the discretionary in-
creases be continued and reasoned that the Respondent
would have violated the Act if it had continued the in-
creases. The General Counsel excepts.
We recently reaffirmed the proposition that an em-
ployer that has a practice of granting merit raises that
are fixed as to timing but discretionary in amount may
not discontinue that practice without bargaining to
agreement or impasse with the union. See Daily News
of Los Angeles, 315 NLRB 1236 (1994). Here the Re-
spondent had a 3-year practice of granting a July pay
raise to employees pursuant to its across-the-board and
evaluation-merit formula. The Union tried to initiate
bargaining with the Respondent about the July 1992
increase but the Respondent did not bargain about the
increase. The Respondent, nonetheless, discontinued
the practice of the July pay raise during the 1992 ne-
gotiations.
Accordingly, for the reasons stated in Daily News of
Los Angeles, supra, we find that the Respondent’s dis-
continuance of its customary wage increases in July
1992 without bargaining to agreement or impasse with
the Union violated Section 8(a)(5) and (1) of the Act.
Further, since the unilateral discontinuance of the in-
crease violated the Act, the Respondent’s statements to
employees in July 1992 that wages were frozen be-
cause of negotiations with the Union violated Section
8(a)(1) of the Act.
243HARRISON READY MIX CONCRETE CO.
3 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
ORDER
The National Labor Relations Board orders that the
Respondent, Harrison Ready Mix Concrete and Supply
Company, Inc., Harrison, Ohio, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with International Brother-
hood of Firemen and Oilers, Local 320, AFL–CIO as
the exclusive bargaining representative of all truck-
drivers, vehicle maintenance employees, and batch em-
ployees employed by Respondent at its Harrison, Ohio
facility, excluding all office clerical employees and
professional employees, guards, and supervisors as de-
fined in the Act.
(b) Unilaterally withholding annual wage increases
from employees in the appropriate unit.
(c) Unilaterally increasing its employees’ wages in
amounts not offered to the Union during negotiations
at a time when the parties are not at impasse in their
negotiations and refusing to negotiate with the Union
during times when no impasse in negotiations exists.
(d) Informing employees that wages are frozen be-
cause of negotiations with the Union with reference to
the July 1992 wage increase.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of
their rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, reinstate the wages and terms and
conditions of employment that existed before the uni-
lateral changes. However, no provision of this Order
shall in any way be construed as requiring Respondent
to revoke unilaterally implemented improvements in
terms and conditions of employment of unit employ-
ees.
(b) Make whole the employees in the appropriate
unit for any monetary losses they may have suffered
by reason of the Respondent’s unilateral withholding
of annual wage increases that the employees would
have received. The amount shall be computed on a
quarterly basis in the manner set forth in Ogle Protec-
tion Service, 183 NLRB 682 (1970), plus interest as
computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Post at its Harrison, Ohio facility copies of the
attached notice marked ‘‘Appendix.’’3 Copies of the
notice, on forms provided by the Regional Director for
Region 9, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with International
Brotherhood of Firemen and Oilers, Local 320, AFL–
CIO as the exclusive bargaining representative of all
truckdrivers, vehicle maintenance employees, and
batch employees employed by us at our Harrison, Ohio
facility, excluding all office clerical employees and
professional employees, guards, and supervisors as de-
fined in the Act.
WE WILL NOT unilaterally withhold any wage in-
creases from you to which you may have been entitled.
WE WILL NOT unilaterally increase our employees’
wages in amounts not offered to the Union during ne-
gotiations at a time when we are not at impasse in our
negotiations, and WE WILL NOT refuse to negotiate with
the Union during times when no impasse in negotia-
tions exists.
WE WILL NOT inform employees that wages are fro-
zen because of negotiations with the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their rights guaranteed by Section 7 of the Act.
WE WILL, on request, reinstate the wages and terms
and conditions of employment which existed before
the unlawful unilateral changes. However, we are not
required to revoke unilaterally implemented improve-
ments in terms and conditions of employment of unit
employees.
WE WILL make whole the employees in the unit de-
scribed for any monetary losses they may have suf-
244 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates herein are 1992 unless otherwise indicated.
2 Respondent admits the named individuals, with exception of
James Weitz, are statutory supervisors and are agents of Respondent
within the meaning of Sec. 2(13) of the Act. As the record reveals
Weitz hired drivers, I find him to be a supervisor within the meaning
of Sec. 2(11) of the Act.
fered by reason of our unilateral withholding of the an-
nual wage increases they would have received.
HARRISON READY MIX CONCRETE AND
SUPPLY COMPANY, INC.
Eric A. Taylor, Esq., for the General Counsel.
J. Michael Fischer, Esq. (Ennis, Roberts & Fischer), of Cin-
cinnati, Ohio, for the Respondent.
Don C. Meade, Esq. (Miller & Meade, P.S.C.), for the
Charging Party.
DECISION
STATEMENT OF THE CASE
DONALD R. HOLLEY, Administrative Law Judge. Upon an
original charge filed by the above Union in Case 9–CA–
30093 on October 26, 1992,1 amended on November 18, the
Regional Director for Region 9 of the National Labor Rela-
tions Board issued a complaint on November 23 which al-
leges that Harrison Ready Mix Concrete and Supply Com-
pany, Inc. (the Respondent) engaged in conduct which vio-
lates Section 8(a)(1) and (5) of the National Labor Relations
Act. Respondent filed timely answer denying that it violated
the Act as alleged. Thereafter, upon an original charge filed
in Case 9–CA–30227 on December 11, amended on Decem-
ber 23, and an original charge filed in Case 9–CA–30259 on
December 21, amended on January 27, 1993, the Region
issued a second complaint on January 29, 1993, which re-
alleged the matter set forth in the earlier complaint, alleged
additional violations of Section 8(a)(1), (3), and (5) of the
Act and consolidated Cases 9–CA–30227 and 9–CA–30259
with 9–CA–30093 for trial. Respondent filed timely answer
denying it had engaged in the unfair labor practices alleged
in the second complaint. On February 8, 1993, the Region
issued an amended complaint which realleged the matter set
forth in the January 29, 1993 complaint and added a
conclusionary paragraph which alleged that, by engaging in
specified conduct, Respondent independently violated Section
8(a)(1) of the Act. Respondent filed timely answer to the
February 8, 1993 amended complaint denying it had engaged
in the unfair labor practices alleged therein. On February 17,
1993, the Union filed the charge in Case 9–CA–30410, and
on April 1, 1993, the Region issued an order consolidating
Case 9–CA–30410 with Cases 9–CA–30093, 9–CA–30227,
and 9–CA–30259 for trial, and it issued a second amended
complaint which realleged the matter set forth in the Feb-
ruary 8, 1993 complaint, and alleged that by discharging em-
ployee Charles Whaley because he engaged in union and/or
concerted activities, Respondent violated Section 8(a)(3) of
the Act. Respondent filed timely answer denying it had en-
gaged in the unfair labor practices alleged in the complaint.
The case was heard in Cincinnati, Ohio, on September 30
and October 1, 1993. All parties appeared and were afforded
full opportunity to participate. Upon the entire record, includ-
ing consideration of posthearing briefs filed by the parties,
and from my observation of the demeanor of the witnesses
who appeared to give testimony, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, has been engaged in the manu-
facture and sale of concrete at its Harrison, Ohio facility at
all times material. During the 12-month period preceding
issuance of the original complaint on November 23, 1992, it
sold and shipped from its Harrison, Ohio facility goods val-
ued in excess of $50,000 directly to points outside the State
of Ohio. It is admitted, and I find, that Respondent is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. STATUS OF LABOR ORGANIZATION
It is admitted, and I find, that International Brotherhood of
Firemen and Oilers, Local 320, AFL–CIO is a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent is engaged in the business of manufacturing
and selling concrete at its Harrison, Ohio facility. It is a fam-
ily-owned business and at present is owned by Clarence
(Bud) Roudebush and his wife, Peggy A. Roudebush. Clar-
ence Roudebush is president of the corporation and Peggy
Roudebush is vice president and general manager. Other
management personnel involved in the instant proceeding
are: James Griebel, vice president of operation; David Gumz,
plant manager; James Weitz, residential sales director; and
James Wheeler, garage and safety department supervision.2
For some unstated period prior to 1983, Respondent’s em-
ployees were represented by the Teamsters. A strike in 1983
resulted in the Teamsters ceasing to represent Respondent’s
employees and they remained unrepresented until the Union
was certified as the exclusive bargaining representative of
employees in the following unit, admitted to constitute an ap-
propriate unit for bargaining, on November 4, 1991.
All truck drivers, vehicle maintenance employees and
batch plant employees employed by (Respondent) at its
Harrison, Ohio facility, excluding all office clerical em-
ployees and professional employees, guards and super-
visors as defined in the Act.
The record reveals that the Union and Respondent com-
menced negotiations for a first contract in January 1992. The
Union was represented in negotiations by: Mike Moses, its
business representative; Dennis Jackson, a committee person;
and employee Charles Whaley. Management was represented
by: Michael Fischer, Respondent’s attorney; Clarence (Bud)
Roudebush, Respondent’s president; and James Wheeler, Re-
spondent’s garage and safety department supervisor. During
calendar year 1992, the parties held approximately 16 bar-
gaining sessions. They eventually reached agreement on a
contract in mid-1993.
245HARRISON READY MIX CONCRETE CO.
3 Respondent presented its first wage proposal on July 29, 1992.
See R. Exh. 3.
Union spokesman, Moses, indicated during his testimony
that the parties, by mutual agreement, treated noneconomic
matters first during their negotiations. He explained that as
agreement was reached on an issue, the practice followed
was one in which the agreement was reduced to writing and
he and Fischer would sign off on the document. Through
Moses’ testimony, General Counsel placed in evidence as
General Counsel’s Exhibit 7 documents which Moses and
Fischer signed off on during the 1992 negotiations. Subjects
signed off on included: no discrimination, promotions and
transfers, grievance procedure, vacations, seniority, dis-
cipline, sick days, recognition, hours of work and overtime,
no strike or lockout, company rules and regulations, manage-
ment rights, payday, layoff and recall, leave of absence, con-
tinuance clause, holidays, funeral leave, union rights, scope
and purpose of contract, safety and health, and jury duty.
While negotiations apparently proceeded smoothly until
midsummer 1992, the complaint in its final form alleges, and
General Counsel contends, that Respondent engaged in con-
duct which violates Section 8(a)(1), (3), and (5) of the Act
during the latter half of 1992.
B. The Alleged 8(a)(1) Violations
The issues posed by the pleadings are:
1. Whether Respondent violated Section 8(a)(1) and (5) of
the Act by unilaterally discontinuing annual wage increases.
2. Whether Respondent violated Section 8(a)(1) of the Act
by informing employees annual wage increases were being
withheld ‘‘because of negotiations’’ and/or because they
were ‘‘frozen as a result of the Union.’’
3. Whether Respondent violated Section 8(a)(1) and (5) of
the Act by unilaterally implementing a wage increase on Jan-
uary 3, 1993.
4. Whether Respondent violated Section 8(a)(1) and (5) of
the Act by ceasing and refusing to bargain with the Union
prior to a good-faith impasse in negotiations.
5. Whether Respondent violated Section 8(a)(1), (3), and
(5) of the Act by unilaterally changing its referral bonus pol-
icy for the purpose of depriving known union adherents
Charles Whaley and Clifford Fulmer of the bonus.
6. Whether Respondent violated Section 8(a)(1) and (3) of
the Act by suspending and discharging employee Charles
Whaley because of his support for and activities on behalf
of the Union.
C. The Annual Wage Increases
Peggy Roudebush testified that she came with the Com-
pany in 1985, and it was in poor financial condition at that
time. She indicated employees received no wage increases in
1986, 1987, or 1988 because Respondent was financially un-
able to give any increases. In 1989, the Company adopted
what she described to be a pay for performance increase sys-
tem which provided for a combination of across-the-board
and merit increases. Under the policy, Respondent selected a
percentage increase which all employees would receive. The
across-the-board percentage increase was selected on the
basis of such factors as cost of living indexes, Respondent’s
profitability and financial projections, and increases that were
being granted in the industry. An employee could also re-
ceive up to an additional 2-percent increase depending on the
employee’s performance as determined by the employee’s
evaluation. Some employees received the full 2-percent merit
increase, some received no additional increase and the rest
of the employees received additional merit increases of be-
tween 0 and 2 percent. She recalled the minimum base raise
in 1989 was 3 percent, in 1990 it was 3 percent, and in 1991
it was 4 percent. She indicated the amount which could be
received in the form of incentive raise in each of the 3 years
was 2 percent, i.e., a maximum of 5 percent in 1989, a maxi-
mum of 5 percent in 1990, and a maximum of 6 percent in
1991. The raises were conferred effective July 1 each year.
Peggy Roudebush testified there was discussion concern-
ing giving a raise in July 1992, but none was given because
legal counsel advised that giving one could be construed as
an unfair labor practice.
The Union’s spokesman in negotiations, Moses, testified
that after the Union became aware that evaluations of some
employees had been completed in August or September
1992, he asked Respondent’s representatives if Respondent
intended to continue the practice of giving annual wage in-
crease after the employee evaluations were completed. The
reply was that they would be in negotiations over wages
soon and the negotiations will take care of that process.
General Counsel contends that Respondent violated Sec-
tion 8(a)(1) and (5) of the Act when it failed to give employ-
ees their annual wage increase in July 1992 because the an-
nual increase had become a term or condition of employment
and Respondent could not unilaterally alter the terms and
conditions of employment of employees during negotiations
without the permission and consent of their collective-bar-
gaining agent. Respondent contends that it necessarily exer-
cised discretion when determining the base rate and the por-
tion of increase given because of performance or merit, and
it submits that the Act makes unlawful the granting of discre-
tionary raises after employees obtain union representation.
In early January 1992, the Union presented Respondent
with its initial contract proposal by giving it a whole con-
tract. Union spokesman, Moses, indicated that a document
placed in evidence as Respondent’s Exhibit 1 was the wage
proposal presented in the Union’s original contract. Summa-
rized, that proposal proposed specified hourly wage rates for
all persons working in batch plant, driver, and vehicle main-
tenance positions except for the batch plant weigh master and
dispatcher. Weekly salaries were proposed for persons in the
last named job classifications (R. Exh. 1). Respondent re-
sponded to the Union’s initial contract proposal on January
10, 1992, indicating at the time that it was not addressing
salary and fringe benefits as it assumed noneconomic issues
would be handled first (R. Exh. 2). Moses signified the
Union agreed to proceed with negotiations in that manner.3
There are two lines of cases which treat the subject of the
granting or withholding of discretionary increases during that
period when parties are negotiating an initial contract. One
line, typified by Central Maine Morning Sentinel, 295 NLRB
376 (1989), is to the effect that if a Respondent had an es-
tablished practice of granting its employees an annual wage
increase, they can reasonably expect, after they have selected
union representation, that the wage increase would continue
to be a part of their ongoing conditions of employment, at
least until an initial collective-bargaining agreement was in
place to establish a wage scale independent of Respondent’s
246 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 David Gumz is referred to as David Gumms in the transcript,
which is hereby corrected to reflect the individual’s correct name.
past practice, or until the parties had bargained to impasse
about changing their conditions. The second line of cases is
illustrated by American Mirror Co., 269 NLRB 1091, 1094–
1095 (1984). There, the situation was described by Adminis-
trative Law Judge Russell King to be as follows (at 1094):
The Union was certified on July 6. Contract bargain-
ing commenced in late July. Throughout the negotia-
tions the topic of the previous or so-called ‘‘cus-
tomary’’ increases came up. The Union’s position re-
mained the same, and the Union requested that raises
be granted notwithstanding the negotiations, and inde-
pendent of any final contract. The Company took the
position that any raises which would be granted was an
issue that was ‘‘on the table,’’ to be negotiated and ad-
dressed in a final contract.
The judge found, with subsequent Board approval (at 1094
and 1095)
I find that once the Union was certified, the question
of raises became a mandatory subject of bargaining.
The duty to bargain collectively under Section 8(a)(5)
of the Act is defined in Section 8(d) of the Act as the
duty to ‘‘meet . . . and confer in good faith with re-
spect to wages, hours, and other terms and conditions
of employment . . . but such obligation does not com-
pel either party to agree to a proposal or require the
making of a concession. . . .’’ There is no evidence
or allegation in this case that the Company failed to ne-
gotiate in good faith the matter of wage increases. What
the Union wanted was a continuance of interim or past
discretionary raises outside of the contract negotiations.
The Union, in other words, wanted the best of both
worlds, and under the facts of this case I find that the
Company had no legal duty to comply with the Union’s
request. In this regard, I note the lack of any evidence
or testimony in the record to indicate that previous
wage increase patterns were acceptable by the Union’s
as future contract provisions on the subject. I thus find
and conclude that the Company did not violate Section
8(a)(1) of the Act as alleged in paragraphs 11 and 14
of the complaint. [Fn. omitted.]
Here, the record reveals that the Union was certified as the
representative of certain of Respondent’s employees on No-
vember 4, 1991. In its original contract proposal submitted
in early January 1992, the Union proposed that all employees
in the bargaining unit except the batch plant weigh master
and dispatcher receive stated hourly wages and certain de-
scribed fringe benefits. The parties thereafter agreed to nego-
tiate noneconomic issues first, and negotiations on economic
items did not begin until late July 1992. In the meantime,
Respondent, without discussing the situation with the Union,
failed on or about June 1, 1992, to give employees a discre-
tionary wage increase as it had during calendar years 1989,
1990, and 1991. When asked by the Union in August or Sep-
tember whether it was going to give the annual wage in-
creases, Respondent indicated that as negotiations were ongo-
ing, the issue of wage increases would be negotiated.
Noting that the Union in the instant case had presented
Respondent with initial wage proposals which did not in-
clude proposed continuation of discretionary wage increases
which had previously been conferred on July 1 of each year,
I, in agreement with Respondent, conclude it would have
violated Section 8(a)(1) and (5) of the Act if it had unilater-
ally granted employees a discretionary wage increase on July
1, 1992. I find the situation to be analogous to the situation
which existed in American Mirror Co., supra, and conclude
that General Counsel has failed to prove that Respondent
violated Section 8(a)(1) and (5) of the Act by failing to grant
unit employees a wage increase on or about July 1, 1992.
D. The Alleged 8(a)(1) Violations
The complaint alleges, in effect, that Respondent violated
Section 8(a)(1) of the Act by blaming its refusal to grant an-
nual wage increases in 1992 on the Union as Respondent’s
supervisors told employees they were not getting raises be-
cause of negotiations and/or because of the Union. General
Counsel sought to prove the allegation through testimony
given by employees Dennis Jackson, Harold Fraasman, Wil-
liam English, and David Hummeldorf.
Employee Jackson testified that at some point in July 1992
he asked Dave Gumz,4 Respondent’s plant manager, if he
was going to evaluate people for their raises this year. He
indicated Gumz told him he would let him know the follow-
ing Monday, but when Monday came he had not found out
anything. A couple days later, Jackson claims Gumz told him
he was going to do evaluations, but his understanding was
there would be no raise on account of the union and contract
negotiations. Employee Fraasman testified that when Gumz
explained his evaluation to him in September 1992, he told
him the evaluation would not get him a raise because it was
frozen because of the Union at the time. Similarly, employee
English testified that, when Gumz gave him his 1992 evalua-
tion, he told him ‘‘all the wage raises were frozen because
of the union contract.’’ Finally, employee Hummeldorf testi-
fied that at a time he could not specify, Gumz told him
things were on hold because of the Union.
When he appeared as a witness, David Gumz testified that
basically everyone who worked under him asked about the
wage increase in 1992. He indicated he, pursuant to advice
from upper management, told them ‘‘due to the negotiations
with the union that all wages right now are frozen.’’
Having found, supra, that Respondent did not violate Sec-
tion 8(a)(1) and (5) of the Act by discontinuing its annual
wage increase, I find it did not violate Section 8(a)(1) by
telling employees, in effect, that wage increases would be
handled in negotiations.
E. The Referral Bonus
Several years prior to the time the instant case was heard,
Respondent promulgated a referral bonus policy which was
placed in the record as Joint Exhibit 1. It provides:
If an active employee refers an individual for employ-
ment with Harrison Ready Mix, and the individual is
hired and remains actively employed for 1 year, on the
first anniversary of the new employee, the sponsoring
employee will receive a $500 bonus.
247HARRISON READY MIX CONCRETE CO.
The complaint alleges that Respondent violated Section
8(a)(1) and (3) of the Act about October 1992 by determin-
ing that employees Charles Whaley and Clifford Fulmer
were not eligible for a $500 referral bonus because they had
joined or assisted the Union. Additionally, it alleges that by
unilaterally altering its referral bonus policy in October 1992,
Respondent violated Section 8(a)(1) of the Act.
Employee Clifford Fulmer testified that in August 1991 he
told his brother Ralph Fulmer that Respondent was hiring
and he should contact JW (Jim Weitz) and get a job. Clifford
claims that he then told JW that his brother was looking for
a job, and he claims JW told him to have him come down
and talk to him about going to work for him. In September
1992, Clifford Fulmer filed a complaint with his union stew-
ard which asserted that Respondent had failed to pay him a
referral bonus for referring his brother Ralph to Respondent
in August 1992 (G.C. Exh. 17). He had not raised the matter
with any Respondent official before he filed the complaint.
He stated he had not because he asked JW in April 1992 if
the bonus plan was still in effect and JW said no.
Ralph Fulmer testified he had been a contractor for some
15 years before he was hired as a driver by Respondent. He
acknowledged that Weitz was first a driver and then a sales-
man for Harrison during the period, and that he became ac-
quainted with him as he came to jobs. Ralph claimed that
before he applied for a job at Respondent in 1991, his broth-
er Clifford told him they needed drivers and, although he had
no license, that Respondent would train him. He testified
Clifford told him to see JW about getting a job. Ralph testi-
fied he then telephoned Weitz about a job, mentioning during
the discussion that his brother told him he needed drivers. He
recalled Weitz acknowledged needing a driver and told him
he would call when he wanted him to come in to see him.
He recalled he was called to come in about a month later
and claims that, during the interview, he once against told
Weitz his brother had told him Respondent needed drivers
and he should get hold of Weitz.
Mitchell Grubb worked for Respondent as a mechanic
until he quit sometime in 1989. In April 1991, Grubb en-
countered Charles Whaley while Whaley was providing con-
crete for a pour at a store in New Trenton. After Grubb indi-
cated he was unemployed, Whaley suggested he call Weitz
at Respondent and inquire about a driving job. Grubb recalls
that Whaley got on his truck radio to ask if Weitz was at
the plant and that, upon learning he was, he informed the
person to whom he was talking to stand by because someone
was going to call him in a few minutes. Grubb testified that
he went home after the radio conversation and called Weitz.
During his conversation with Weitz, Grubb indicated he had
talked to Whaley at the store and when he asked Whaley if
they needed drivers, Whaley told him to call Weitz. Whaley
described the situation which preceded Grubb’s call to Weitz
essentially as it was related by Grubb. Whaley testified that
after he referred Grubb, at some point Respondent had three
drivers he had referred and he stood to collect $1500 if they
all stayed a year. He claims he and Weitz joked about the
situation on several occasions and that one man he had re-
ferred went because he said something wrong on the radio,
and then a second failed to last out a year for some reason.
When Grubb’s year was up, Whaley asked both Dave Gumz
and Jim Weitz about getting the bonus for Grubb. They both
told him they would let him know, and they subsequently
told him Peggy Roudebush said he was not entitled to the
money because Grubb was a prior employee.
Respondent defended its failure to give employees Cliff
Fulmer and Charles Whaley referral bonuses through testi-
mony given by J. Weitz, Linda Platt, its human resources
manager, and Peggy Roudebush.
Weitz denied that either of the Fulmer brothers told him,
at the time Ralph Fulmer was interviewed and hired, that
Cliff had referred Ralph to Respondent. Weitz testified he
had known Ralph since 1979, and that the conversation lead-
ing to Ralph’s filing of an application was one wherein
Ralph called him to indicate he had experienced a falling out
with a partner and needed a job. He claims he told Ralph
to come in and file an application, and when Ralph did that,
he hired him. He testified that, after Ralph was hired, Cliff
did not inquire about a referral bonus for referring Ralph to
employment at Respondent. With respect to Whaley’s refer-
ral of driver Grubb, Weitz acknowledged that he knew there
had been some discussion between Whaley and Grubb on a
job near Grubb’s home before Grubb called to inquire about
employment. Additionally, he acknowledged that shortly be-
fore Grubb had been employed as a driver for a year,
Whaley asked him if he was going to receive a referral
bonus for referring Grubb to Respondent. Weitz claimed he
told Whaley he would check, but someone other than himself
thereafter told Whaley he would not receive the bonus.
Asked if he told Whaley he though it was unfair that he was
not given the bonus, he evaded the inquiry. Similarly, when
asked if he had joked with Whaley about the employee being
entitled to $1500 if three persons remained employed by Re-
spondent for a year, he equivocated.
Platt indicated during her testimony that she administers
Respondent’s bonus program and she is the person who au-
thorized payment of the bonus to employees. She stated ap-
plicants normally came to her to obtain and complete appli-
cations for employment and, if they have been referred by
a current employee, they normally tell her. She observed that
the application Respondent is using at the present time asks
who the application was referred by. Platt recalled that, when
Grubb applied, he mentioned that he had run into Whaley
and he told him they were hiring. She also indicated that
when Steve Veil applied, she noted on his application
‘‘Friend of Ralph Donathon,’’ because Viel told her
Donathon had told him to be sure he told her he had referred
him. Platt testified she did not believe Cliff Fulmer told her
he was entitled to a referral bonus after Ralph’s year was up.
She noted that Ralph Fulmer’s application said nothing about
him being referred by anyone. She indicated that during the
last year and a half, no referral bonus had been paid to any
employee who referred a former employee to work at Re-
spondent. She recalled that one referral bonus had been paid
to an employee although the individual referred did not men-
tion the referral when he came in. The individual referred
was Jim Huff and she learned within 4–6 weeks after he was
hired that Rick Ramey had referred him. When the referral
was confirmed by several people, Ramey received the bonus
when Huff completed his year of employment. Platt testified
that when an applicant tells her he was referred by an em-
ployee, she places the information on a list she maintains.
Peggy Roudebush explained during her testimony that she
originally conceived the referral bonus policy and caused it
to be effectuated. She indicated that the policy was instituted
248 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 I have considered General Counsel’s claim that employee
Donathon, allegedly known by Respodnent to be antiunion, was
treated favorably because of his sentiments when he was given a re-
ferral bonus for referring Steve Viel for employment. While the
record reveals employees knew Donathon was antiunion, it fails to
reveal that any Respondent official was aware of Donathon’s senti-
ments. Indeed, Platt, who placed Donathan’s name on her list of em-
ployees entitled to a referral, denied she was then aware of
Donathon’s sentiments.
to cause employees to refer new employees for employment.
When the Whaley-Grubb situation arose, Roudebush testified
she decided the referral bonus policy did not apply to referral
of a former employee because the policy specifically states
it applies to the referral of a ‘‘new’’ employee.
As indicated, supra, Respondent’s written referral policy
provides that an employee who refers a person for employ-
ment will received a $500 bonus ‘‘on the first anniversary
of the new employee.’’ (Emphasis added.) Here, General
Counsel contends that Respondent changed its referral policy
by deciding it was not applicable to rehires to enable it to
deny employee Whaley a bonus because he was a known
union activist. In making the contention, General Counsel of-
fered no evidence which would reveal that Respondent har-
bored antiunion animus, or evidence which would show that
it had an intention to punish Whaley or any other employee
because they joined or supported the Union. I find Respond-
ent’s interpretation of its referral policy to be a reasonable
interpretation. Accordingly, I find that General Counsel has
failed to prove that Respondent refused to give employee
Whaley a referral bonus for referring employee Grubb for
discriminatory reasons. Additionally, I find that General
Counsel failed to prove that Respondent altered its referral
policy without consulting the Union in violation of Section
8(a)(5) as alleged.
Patently, the Fulmer situation poses a credibility issue
which must be resolved. Clifford and his brother Ralph claim
they both told Weitz that Clifford was referring Ralph for
employment. Weitz and Platt both claim that Ralph merely
made reference to the loss of previous employment and
failed to mention Clifford at the time of his hire. Careful
consideration of the matter causes me to credit Respondent’s
witnesses rather than the employees. First, I note that the evi-
dence offered by General Counsel in an attempt to establish
that Respondent was aware of Clifford Fulmer’s prounion
sentiments is very weak. That evidence is merely testimonial
evidence which is to the effect that Clifford demonstrated his
pleasure in the company office when the Union won the
election. Significantly, no evidence was offered to show that
any particular Respondent official noticed or commented on
Clifford’s actions on election day. Second, Clifford admitted
during his testimony that prior to the time his brother had
worked for Respondent for a year, he asked Weitz if the
bonus was still in effect on an occasion when a buddy of his
was looking for work. He claims Weitz told him he thought
they had done away with it, and that caused him to fail to
ask for his bonus when Ralph completed his first year of em-
ployment. The uncertainty exhibited by Clifford on the occa-
sion described is inconsistent with his claim that he and
Ralph took great pains to establish his right to a referral
bonus at the time of Ralph’s hire. Finally, Weitz and Platt
were impressive witnesses, while the Fulmer brothers were
not.
In sum, the evidence offered by General Counsel fails to
convince me that Respondent harbored ill will against em-
ployee Clifford Fulmer because he was a union advocate. I
credit the testimony given by Weitz and Platt which would
lead one to believe that Ralph Fulmer obtained employment
at Respondent without the assistance of his brother Clifford.
Accordingly, I find that General Counsel failed to prove that
Clifford Fulmer was denied a referral bonus because he
joined or supported the Union.5
F. The January 3, 1993 Wage Increase
On December 23, 1992, Respondent’s employees were
given the following memoranda with their paychecks (G.C.
Exh. 5):
TO:
FROM: Bud and Peggy Roudebush
As you probably know, due to unfair labor practice
charges and a decertification petition currently pending
before the National Labor Relations Board, it may be
a while before contract negotiations with the Union re-
sume.
The Company is concerned and it assumes the Union
is also, about the length of time without a wage in-
crease which could occur under the circumstances. Ac-
cordingly, effective January 3, 1993, there will be a 2%
across-the board increase for all employees in the bar-
gaining unit.
Additionally, where applicable, all drivers who have
been employed for at least one year but less than two
years shall have their hourly rate raised to $9.00 per
hour; all drivers who have been employed for at least
two years but less than three years shall have their
hourly rate raised to $10.00 per hour; and all drivers
who have been employed for three years or more shall
have their hourly rate raised to $10.50 per hour.
Your new rate, effective January 3, 1993, is
lllllll.
Respondent admits in its brief (p. 14) that the wage in-
crease implemented on January 3 was ‘‘something less than
what was agreed to on October 15.’’ It seeks to establish that
the increase was lawfully conferred because: (1) it offered to
negotiate the increase with the Union and the Union refused
to negotiate; and (2) the wage increase was conferred after
the parties had reached an impasse in negotiations. The com-
plaint alleges that by giving employees the January 3, 1993
pay raise, Respondent violated Section 8(a)(1) and (5) of the
Act.
Respondent failed to establish that the parties were at im-
passe on January 3, 1993. Thus, union spokesman, Moses,
credibly testified that the Union made a package proposal to
Respondent on October 15, 1992, with the understanding that
Respondent accepted all proposals in the package or none
were to be deemed to be accepted. It is undisputed that Re-
spondent did not accept the package proposal which covered
issues such as wages, performance bonuses, insurance, retire-
ment, tool allowance and part-time employees, training pay,
and union security and dues checkoff because it was opposed
to union security. While the record reveals the parties may
have reached tentative agreement on some of the issues de-
249HARRISON READY MIX CONCRETE CO.
scribed, it fails to reveal what the areas of agreement were
and when they were reached. Indeed, the sole witness offered
by Respondent to describe the negotiations was James
Wheeler. While Wheeler did not exhibit excellent recall, he
testified he thought the parties reached agreement on wages
at the October 15 negotiating session; that they were still
talking about insurance at the session. He testified in
conclusionary fashion, without providing details, that out-
standing issues after the October 15, 1992 negotiation session
were union security and checkoff. Wheeler acknowledged
that no serious negotiations occurred at the last negotiation
session held prior to January 3, 1993—the November 19,
1992 session—as the parties then engaged in primarily in
discussion of the decertification petition filed by a Respond-
ent employee on November 16, 1992 (Case 9–RD–1668),
and the blocking charge filed in Case 9–CA–30093. In sum,
in the absence of documents to which negotiators Moses and
Fischer signed off on to indicate their agreement on the
issues which remained as of October 15, 1992, I find that
Respondent failed to establish that an impasse in negotiations
existed on January 3, 1993.
Similarly, I find no merit in Respondent’s claim that the
Union was given notice of its intention to grant employees
a wage increase, but it failed to seek bargaining concerning
the matter. Even assuming arguendo that the parties were at
impasse as of January 3, 1993, the Respondent would have
been free to implement only its last offer to the Union. Fi-
delity Printing Co., 299 NLRB 958 (1990).
For the reasons stated, I find that by awarding employees
a wage increase not offered to the Union during bargaining,
Respondent, on January 3, 1993, violated Section 8(a)(1) and
(5) of the Act.
G. Respondent’s Alleged Refusal to Bargain Since
December 17, 1992
I have found, supra, that the parties held negotiating ses-
sions on October 15 and November 19, 1992. Additionally,
I have found, contrary to Respondent’s contention, that the
parties were not shown to have been at impasse on Novem-
ber 19, 1992, and/or on January 3, 1993. The record reveals
that by letter dated December 10, 1992, Respondent in-
formed the Union it saw ‘‘no purpose in meeting at this
time’’ as it had not changed its position on union security
(G.C. Exh. 12). While the record reveals the parties eventu-
ally reached agreement and executed a contract in mid-1993,
it fails to reveal when they next met after November 19,
1992. By failing and refusing to meet with the Union during
times when the parties were not at impasse, I find, as al-
leged, that Respondent violated Section 8(a)(1) and (5) of the
Act.
H. The Alleged Unlawful Suspension and Discharge of
Employee Charles Whaley
Charles Whaley was hired by Respondent as a truckdriver
on March 3, 1983. From 1983 until 1990 or 1991, he trained
drivers for Respondent on occasion and for a time he was
the employee who qualified drivers so they could obtain
DOT approval. He testified his attendance record was excel-
lent for the first 9 years of his employment, and he indicated
his evaluations were high until 1992. Whaley admitted his
wife left him on the day the election was held at Respond-
ent’s facility and he indicated that caused him to attempt sui-
cide in December 1991 or January 1992, and he spent 5 days
in the hospital. Thereafter, he claims that medication and his
personal problems interfered with his sleep. As a result, he
built up a lateness record at Respondent and received numer-
ous warnings. At one point, he had accumulated 10 points
pursuant to Respondent’s progressive disciplinary system and
accumulation of more than 10 points subjected a driver to
discharge. Whaley received favorable ratings each year
through 1991, and he was one of five drivers who received
the highest rate (6 percent) given to drivers in 1991. He was
rated poorly in 1992 and protested by refusing to sign his
rating form. (See C.P. Exh. 3.)
The Union won representational rights at Respondent at
about the same time Whaley’s personal problems started. He
was the Union’s observer at the November 1991 election, he
served as a union steward thereafter, and he served with em-
ployee Johnson and Union Representative Moses on the
Union’s negotiating team. Additionally, the record reveals
Whaley actively supported the Teamsters when they rep-
resented Respondent’s employees. Respondent admits it was
fully aware of Whaley’s union sentiments and union activi-
ties.
While General Counsel successfully established that
Whaley engaged in extensive union activity and that Re-
spondent was aware of his participation in protected conduct,
his proof of antiunion animus is extremely limited. That evi-
dence was established through the testimony of Peggy
Roudebush and employee Willard Woolums.
When called as a witness by General Counsel, Peggy
Roudebush was asked if Respondent was opposed to union-
ization of its operators. She responded by stating she did not
think they ever encouraged unionization and identified that
portion of Respondent’s employee handbook which contains
the Company’s position on unions, stating as follows (G.C.
Exh. 2, p. 283):
A WORD ABOUT UNIONS
We believe that a team performs best when its mem-
bers work together as a unit to achieve its goals. We
feel that direct, face-to-face dealings with your co-
workers and with any level of management are more
beneficial than paying a union to speak for you.
We are firmly committed to giving individual atten-
tion to your needs and concerns, face-to-face rather
than through an outside third party. We want to hear
from you and to speak directly to you. We will do ev-
erything morally and legally permissible to continue our
practice of dealing directly with our employees.
We believe that your interests, as well as our mutual
goal to provide the best service to our customers, will
be best served in this manner. Working together di-
rectly as a team will help to ensure the success and
growth of our organization. This is the best insurance
you can have for job security and good wages and ben-
efits.
Peggy Roudebush was then asked if Respondent was op-
posed to organization of its operations by the Teamsters in
1989 or 1990, and she answered ‘‘[Y]es, sir.’’
Willard Woolums, a driver, testified that in the spring or
early summer of 1992, his first year at Respondent, Dave
250 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Gumz approached him and employee Bill English while they
were sweeping and they asked him ‘‘what the big push is on
the ‘union’ . . . why some of the top guys was feeling the
need of the union.’’ Woolums recalled that Gumz responded
by saying ‘‘well for some of them if the union doesn’t come
in, they’re not going to have a job.’’ Woolums testified that
later, on the same Saturday, he overheard the following con-
versation between Dave Gumz and Jim Griebel (Tr. 224):
How the conversation got started, I don’t know. But
it was something to the effect that Dave was saying the
new guys are asking about the union, and Jim said
don’t worry about it. This will drag out long enough,
it’ll lose its momentum and it will be over.
At 4:30 p.m. on January 19, 1992, Whaley was driving his
empty cement truck north on I-75 approaching I-74 North.
Traffic was stop and go and he proceeded down the ramp
to I-74. As he approached a turn, the cars in front of him
stopped. The pavement was irregular and he ascertained he
would be unable to stop before he collided with the car in
front of him. He elected to steer for the guard rail. After
striking it, his truck turned around and rallied over. He was
cited for failure to have his vehicle under control. (See C.P.
Exh. 3.) He injured a leg in the accident but refused imme-
diate medical treatment. He was suspended by Jim Griebel.
During his suspension, Whaley was required to take a drug
test, which he passed. Additionally, he was asked to submit
to interview by a private investigator hired by Respondent to
investigate his accident. He claimed he had not known Re-
spondent to hire a private investigator prior to that time. On
February 3, 1993, Whaley was called to Peggy Roudebush’s
office where he was fired. He recalls Peggy Roudebush told
him they had gone back over the records for the last 10 years
and anybody that had turned over a truck on the highway
had been terminated. Peggy Roudebush informed the em-
ployee she had brought in an investigator to get all the facts
and the investigator said he was at fault and that was her rea-
son for terminating him. At the time of his termination,
Whaley was given a termination letter signed by Respondent
Vice President Jim Griebel. The body of the letter states
(G.C. Exh. 18):
This letter is to verify that as of February 2, 1993,
your employment with Harrison Ready Mix is termi-
nated.
On January 19, 1993, you turned over the concrete
mixer truck you were driving on the expressway at the
I-75 and I-74 interchange. You were cited by a Cin-
cinnati policeman for ‘‘failure to control’’ the vehicle.
An independent accident investigator agreed with the
police report that you were at fault in the accident.
The Company has consistently terminated drivers
whose trucks have turned over on a street or highway
as a result of the driver’s negligence, which is what oc-
curred in your accident on January 19. Moreover, you
have a history of being involved in accidents, and you
currently have 8-1/2 disciplinary action points accumu-
lated. After carefully considering all of these factors, it
was determined that the termination of your employ-
ment is warranted and in the best interest of the Com-
pany.
Your health and life insurance benefits are paid
through February 28, 1993. You will be notified by cer-
tified mail as to your insurance rights under COBRA.
You will be eligible to receive the money from your
401-K Plan following the June, 1993, evaluation of the
Plan.
During his testimony, Whaley claimed that several drivers
experienced accidents during his time at the Company and
they were not fired. He recalled that driver James Combs
rear-ended a car on John Grey Road and was not suspended
while waiting for drug test results and never missed a minute
of work although he was cited in the accident. Additionally,
he vaguely described a situation wherein driver Adams, the
Respondent’s observer in the election, had been involved in
an accident, but was still employed at the time of the hear-
ing. Similarly, Harold Fraasman testified that at some time
in 1992, he missed a turn, backed up and hit a car which
had a lady and a child in it. He indicated his punishment was
merely that he was required to attend a meeting as there was
no damage to the truck.
Respondent defended its decision to terminate Whaley
through testimony given by Peggy Roudebush. She indicated
that she assumed the responsibility for determining Whaley’s
fate because he was known to be active with the Union and
Respondent anticipated the filing of an unfair labor practice
charge if Whaley was disciplined. Peggy Roudebush claimed
she commenced her consideration of the Whaley incident by
obtaining his personnel file and by telling her human re-
sources manager, Linda Platt, to check the files back for a
reasonable time to ascertain what trucks had been turned
over on public thoroughfares, and what had happened to the
drivers. She testified Platt supplied her with the files of
former drivers Eugene Brabson and Ken Whiteman. Brabson
lost control of his cement truck and turned it over on a pub-
lic street on September 30, 1981. While no one was injured
in the accident, Brabson was terminated for losing control of
his vehicle and turning it over. While Peggy Roudebush did
not personally terminate Brabson, she testified that when Ken
Whiteman lost control of his truck and turned it over on a
public street in 1986, she made the decision to terminate him
because of the accident. Peggy Roudebush claimed that Re-
spondent deals severely with drivers who, through their own
negligence, turn cement trucks over on public thoroughfares
because such accidents expose Respondent to tremendous
possible liability. Peggy Roudebush testified that while she
reviewed Whaley’s personnel file and noted that he had ex-
perienced other accidents, and that he had amassed 10 points
because of absenteeism and/or lateness at one point, that she
viewed his personnel file to see if there was anything in it
that should cause her to refrain from terminating Whaley.
She said she concluded there was not. When she was asked
why she decided to terminate Whaley, she replied:
I decided to terminate Mr. Whaley as a result of the
fact that he had been found to be negligent in the oper-
ation of his vehicle at a public thoroughfare, resulting
in the overturning of his vehicle.
When he appeared as a witness, David Gumz, Respond-
ent’s plant manager, testified that he could not recall any
conversations with Bill English or Willard Woolums regard-
ing the Union. Additionally, he testified he did not know of
251HARRISON READY MIX CONCRETE CO.
plans by the Company to terminate the older employees if
the Union went away. I credit employee Woolums.
James Griebel, Respondent’s vice president, indicated dur-
ing his testimony that he, Jim Wheeler, and Linda Platt share
the responsibility for investigating accidents involving com-
pany drivers. He testified that, after they investigate an acci-
dent, they meet with the driver on how to prevent it in the
future. He stated disciplinary action is usually taken when
there is gross neglect involved. Griebel recalled that driver
James Combs was involved in a rear-end collision 3 or 4
years ago. After the investigation of the accident was com-
pleted, Griebel recalls that they merely met with Combs on
how to avoid accidents in the future. He was not disciplined
further, but the accident went into his file. Griebel testified
he also investigated the accident experienced by driver Har-
old Fraasman during which Fraasman missed a turn-off,
backed up to turn on the street, and backed into a car. As
was the case with Combs, Griebel testified they met with
Fraasman, reviewed the accident with him, and put it into his
file for future reference.
Conclusions
The evidentiary burden of the parties is set forth in Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982), where the Board
stated (at 1089):
First, we shall require that the General Counsel make
a prima facie showing sufficient to support the infer-
ence that protected conduct was a ‘‘motivating factor’’
in the employer’s decision. Once this is established, the
burden will shift to the employer to demonstrate that
the same action would have taken place even in the ab-
sence of protected conduct.
Careful review of the record causes me to conclude that
General Counsel has not made a prima facie showing suffi-
cient to support an inference that employee Whaley’s partici-
pation in protected conduct was a ‘‘motivating factor’’ in
Respondent’s decision to terminate him. While General
Counsel seeks in his brief (p. 14) to make much of
Roudebush’s admission that Respondent opposed the Team-
sters during their 1989 or 1990 organization campaign, and
he interprets Gumz’ ambiguous remarks to employees
Woolums and English to be an acknowledgment that Re-
spondent intended to rid itself of Whaley and other employ-
ees if the Union failed to negotiate a contract, the instant
record is essentially devoid of evidence which would show
that Respondent possesses marked antiunion animus. More-
over, even though it is apparent that employee Whaley has
been a union adherent throughout much, if not most, of his
employment at Respondent, it certainly appears that until he
started to experience personal problems around the time the
current Union was voted in, he was treated favorably by Re-
spondent. Illustrative is that testimony which reveals he was
asked to instruct and qualify other drivers during the first 9
years of his employment, and Charging Party’s Exhibit 1,
which reveals he was rated highly as late as July 1, 1991.
In a case such as this, one would expect General Counsel
to prove discriminatory intent by showing that the alleged
discriminatee was treated disparately. Here, General Counsel
was unable to make such a showing as former employees
who turned their trucks over while operating them on a pub-
lic thoroughfare from 1981 through the date of Whaley’s ac-
cident were terminated. Indeed, General Counsel established
that during the same time span, Peggy Roudebush also termi-
nated a driver who turned his cement truck over while on
other than a public thoroughfare. (See G.C. Exh. 4 (driver
Fulmer).)
In sum, the instant record contains insufficient evidence to
show that the Respondent possesses marked antiunion ani-
mus, and it contains no direct evidence which would reveal
it intended at any time to terminate Charles Whaley because
he engaged in protected activity. To the contrary, the record
reveals employee Whaley was well treated by Respondent,
even during periods when he was experiencing personal dif-
ficulties which interfered with his job performance. The
record fails to reveal that employee Whaley was treated in
disparate fashion when he was terminated for overturning a
cement truck due to negligent driving while he was on a
public thoroughfare. Instead, the evidence reveals that other
drivers who experienced similar accidents were also termi-
nated. For the reasons stated, I find that General Counsel
failed to prove that employee Charles Whaley was termi-
nated in violation of Section 8(a)(1) and (3) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(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. The following constitutes a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section
9(b) of the Act.
All truck drivers, vehicle maintenance employees and
batch plant employees employed by (Respondent) at its
Harrison, Ohio facility, excluding all office clerical em-
ployees and professional employees, guards and super-
visors as defined in the Act.
4. At all times material, the Union has been the exclusive
representative for purposes of collective bargaining of the
employees in the above-described appropriate unit.
5. By unilaterally increasing its employees wages in
amounts not offered to the Union during negotiations, at a
time when the parties were not at impasse in their negotia-
tions and by refusing to negotiate with the Union during
times when no impasse in negotiations existed, Respondent
violated Section 8(a)(1) and (5) of the Act.
6. The unfair labor practices recited above have a close,
intimate, and substantial effect on the free flow of commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I shall recommend that it cease and de-
sist therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
I shall order the Respondent, if requested by the Union,
to reinstate the wages and terms and conditions of employ-
ment that existed before its unlawful changes. To the extent
that the unlawful unilateral changes implemented by Re-
spondent may have improved the terms and conditions of
252 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employment of unit employees, I note that no provision of
my recommended Order shall in any way be construed as re-
quiring the Respondent to revoke such improvements.
[Recommended Order omitted from publication.]