Humboldt Readymix, Inc.

National Labor Relations Board - Board Decisions

Mar 16, 1977

228 N.L.R.B. 733 (N.L.R.B. 1977)

HUMBOLDT READYMIX, INC.
Humboldt Readymix, Inc. and Acey A. Brickey. Case
20-CA-11191
March 16, 1977
DECISION AND ORDER
BY MEMBERS FANNING, PENELLO, AND
WALTHER
On November 2, 1976, Administrative Law Judge
David G. Heilbrun issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and the
Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions' of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Humboldt
Readymix, Inc., its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order.
I We do not, however, find it necessary to rely on his conclusion that the
apparent minority position of the Union , regardless of whether the
Respondent recalled Bnckey, militates significantly against finding that the
failure to recall him was unlawful.
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN, Administrative Law Judge: This
case was heard at Winnemucca, Nevada, on August 24,
1976, based upon a first amended charge in the underlying
complaint issued May 28, 1976, alleging that Humboldt
Readymix, Inc., herein called Respondent, violated Section
8(a)(1) and (3) of the Act by interrogating employees about
their interest in or activities on behalf of Teamsters Local
i All date references hereafter in July through December are 1975; those
in January through June are 1976.
2 Respondent corporation engages in supplying transit mix concrete and
related products to building and construction industry users, annually
selling materials valued in excess of $50,000 to Max Riggs Construction
Company of Las Vegas , Nevada, which itself annually purchases and
receives noncapital goods valued at $75,000 directly from sources outside
Nevada. I find Respondent is an employer engaged in commerce within the
meaning of Sec. 2(6) and (7) of the Act, and the Union a labor organization
within the meaning of Sec. 2(5). This finding obviates treatment of other
228 NLRB No. 74
733
533, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, called the Union;
by threatening to so terminate employees ; and by discrimi-
natorily, or because he engaged in other protected
concerted activities , so refusing to recall and/or rehire
Acey A. Brickey since on or about March 1, 1976.
Upon the entire record in this case , my observation of
the witnesses and upon consideration of posthearing briefs,
I make the following:
FINDINGS OF FACT' AND RESULTANT CONCLUSIONS
OF LAW
In July certain employees importuned truckdriver Brick-
ey respecting unionization.2 He contacted the Union,
obtained authorization cards, attended meetings conducted
by organizers, and successfully solicited support from
among Respondent's 10 employees at the time. A represen-
tation petition was eventually filed, notice of which was
received by Respondent's former part owner and president,
Joseph (Gene) Baum, on September 25. Lucy Lee, former
bookkeeper and general office employee, credibly testified
that she gave Baum this material as an item of incoming
business mail that date, heard him react by stating the
business was too small to be unionized and later say that he
would await the opportunity to "dismiss all that signed."
On September 25 Baum went into the work area near
quitting time where several employees were grouped
together. Brickey testified they were working on disfunc-
tioning rivet guns as Baum approached, called him a
"Union prick" and stated he needn't appear for work next
day unless called. Drivers Norris (Hap) Swope and Ralph
Van derVeen, both present at the time, confirmed the
substance of these utterances. Baum concedes he made
unthinking remarks toward a vexatious group, with
particular advice to Brickey that he work only when
needed since now "play[ing]" union .3 Driver Michael
Aboud credibly testified that on September 26 Baum, in
the presence of Respondent's other former part owner and
Corporate Officer John Dufurrena, informed him that
practices would be different because of employees playing
union with future work to be oncall when needed. Driver
Roger Armstrong credibly testified that about September
26 Baum questioned whether he had signed a union card,
and upon an affirmative response coupled with Arm-
strong's advice he would soon quit called this "chickensh-
it." Swope and Van derVeen also credibly testified that
about this time Dufurrena asked them individually about
signing, which each admitted.
In October proceedings on the representation petition
were concluded by its withdrawal.4 On December 24
Brickey and driver James Brotherton were laid off for
potential bases of jurisdiction under the Board's retail, nonretail, and
national defense standards.
3 On September 26 Bnckey arrived for work as usual but left after an
hour of "standing around" upon not receiving any delivery or other
assignment from Dispatcher Foreman (and batch plant operator) Johnson
Smith . Brickey was later paid m full for the day at behest of a union
representative.
4 Respondent is party to a "limited" agreement with the Union requiring
scale wages and assignment only of union members to readymix concrete
delivery on AGC (Associated General Contractors) jobs. Baum understood
(Continued)
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stated lack of business. Over ensuing months Respondent
operated with four employees,5 grossing less than $5,000
and $10,000 during January and February, respectively.
Around late February Jerry Miller applied for work of
any kind, claiming urgent need of employment. He was
hired as a laborer and assigned cleanup and helpout tasks
around Respondent's premises . Shortly afterward Brother-
ton was rehired as a driver following a short delay during
which he was first unavailable upon contact by Baum.
Around mid-April Miller was briefly trained in driving
skills and frequently assigned thereafter to deliver concrete.
Since layoff in December, Brickey has not requested
reemployment with Respondent (other than by initiation of
this case) .6
General Counsel contends that Respondent deliberately
failed to recall (or rehire) Brickey because of his strong
identification with the organizing drive and its strident
opposition to becoming a fully unionized employer.
Respondent's defense is that Brickey, during the 2 years of
his employment, had been excessively talkative, offensive
to fellow employees and critical of customer personnel.
Resolution of the issue posed by these contentions requires
first an assessment of witness credibility. Lee was most
impressive; offering plausible balanced testimony. From
this it is accepted that Baum expressed angry dismay over
the Union's petition in September, uttered a threat to
discharge card signers and habitually found fault with most
employees. Lee also provides a basis to believe, as I do,
that although intrashop animosities were typical, the
personality of Brickey was known as a singularly overbear-
ing one. Larry Nulph, foreman with Sheppard Construc-
tion Co., established convincingly that Brickey was given
to exasperatingly gratuitous comment concerning how
delivered concrete should be handled and that he (Nulph)
voiced complaints about this trait to Baum, Dufurrena, and
Smith. I find Armstrong, Aboud, Swope, and Van derVeen
adequately credible, and believe they accurately recalled
utterances of Baum and Dufurrena which establish
coercive interrogation and threats as alleged.? Least
plausible are Baum , Dufurrena, and Brickey, each of whom
were evasive or inclined to shade true facts. On the chief
issue of inferred discrimination, I believe Brickey had not
been warned about his traits and that Respondent's
owners, principally Baum as general operating manager,
were conscious that Brickey was detrimental to customer
this agreement was a bar to further representation proceedings until 1977
and its existence caused withdrawal of the petition. The agreement had
application primarily to deliveries made for a major highway job near Battle
Mountain, Nevada, during times material to this case
s Van derVeen had been discharged in October for general driving
ineptitude and backing his transit mix truck into a car.
fi Around February Brickey engaged in a locally publicized campaign for
election as county commissioner, an office ordinarily requiring attendance
at 2 day long Thursday meetings per month . He also worked sporadically
for Murdock Farms as a driver On May 31 Baum and Dufurrena conveyed
their interest in Respondent to T. G. Sheppard and family in a transaction
leaving sellers responsible for corporate liability incurred prior to that date.
Respondent argues in its brief that incidents during September are
untimely raised within the meaning of Sec. 10(b). The original charge filed
March 16 addressed only Brickey's December 24 layoff plus printed
phraseology tantamount to a generalized 8(a)(l) allegation The first
amended charge, coextensive in point of time with issuance of complaint,
hao express thrust only respecting the claimed refusal to recall I reject
Respondent's contention since factual matters here are all broadly related to
the originating charge Lubank Co, et a!, 175 NLRB 213 (1969); Evergreen
relations, with this aggravation alleviating during the
exceptionally slack winter season of early 1976.
The question is whether Respondent's failure to solicit
Brickey's return to work around early March was, in part
at least, discriminatorily bottomed. I first observe that
Baum's reaction in September was pronouncedly hostile,
and that notwithstanding effort to characterize the union
matter as closed it was, contrarily, still viable at least
respecting the organizer' s persistence in calling on Baum
during January .8 There are several indicators weakly giving
direction to the contending theories. General Counsel relies
largely on the notion that past tolerance of personal foibles
makes suspect the overlooking of Brickey in March. Lee
could recall no instance of ever receiving a customer
complaint against him. Further, and considering Baum's
testimony that experienced drivers were difficult to obtain
in the Winnemucca vicinity, it would seem natural to again
utilize one concededly adept in performance of basic
occupational tasks. On the other hand Baum's obvious
chagrin had dissipated during relatively normal fall
months, conduct violative of Section 8(axl) was actually
confined to several days following receipt of the petition
and there was some implication of Brickey gravitating into
entirely unrelated endeavor.9 The point is extremely close.
Respondent displayed impermissible animus and Baum
was shown not to be so free of the Union as he would want
it to appear. He definitely associated Brickey to this
prospect, and at all times harbored ill-disguised opposition.
While a systematic recall policy may not be shown, it is at
least established that Respondent sought out Brotherton
under circumstances in which Brickey's possible availability
to work again for Respondent required only barest effort
toward ascertainment. But in the end a burden of proof
must be satisfied; a prima facie case presented. There was
conflict of personality present, with Baum openly disdain-
ful of Brickey's somewhat querulous nature. Spontaneous
altruism cannot be excluded as an influence in hiring
Miller, and his eagerly compliant disposition would not be
lost on an employer of ordinary awareness. Most signifi-
cantly, considerable time passed from Baum's "upset"
September phase. Readily a strong suspicion may exist that
he long harbored unlawful intent, manifesting it through
deliberate shunning of Brickey in spring.'° However more
is necessary to connect together various factual compo-
nents of the evidence into a reasonably inferable element of
Convalescent Home, Inc., 209 NLRB 990 (1974) ( citing National Licorice Co.
v. N L R.B., 309 U.S. 350,369 (1940)).
8 This aspect had limited factual development. The Union appears to
have pressed Respondent on Brickey's behalf, in a context of possibly
resurrecting organizational objectives. The terms and significance of the
"limited" AGC agreement are known only fragmentarily Notwithstanding
presumable error of law, Baum has not been shown as unreasonably
believing this agreement insulated Respondent until 1977 from formal
creation of an exclusively represented bargaining unit for all employees
involved in its main operations
9 I give no weight to the incident of concrete poured in a berm on Ray
Mills' premises, since this matter is wholly remote and inconclusive on the
issue of Bnckey 's competence
iU I have carefully weighed Baum 's verbalism that he would seize some
chance to retaliate against union adherents . I conclude that, while said
aloud, such predilection was not in fact operative over 5 months later
Furthermore, General Counsel's overall 8(a)(3) theory is undercut upon
consideration of Lee's testimony that Baum considered "the [Union]
workers in a minority" following late September quitting by Armstrong and
HUMBOLDT READYMIX, INC. 735
prohibited motivation. I decline this assessment, determin-
ing instead that within the realistic range of unconvention-
ality permitted employers, acting as they do through
human agents, a course of dynamics other than any based
in part on Brickey's union or protected concerted activities
resulted in Respondent's continuing failure to reemploy
him.
Accordingly, I render conclusions of law that Respon-
dent, by interrogating employees about their interest in or
activities on behalf of the Union and by threatening to so
terminate employees, has engaged in unfair labor practices
affecting commerce within the meaning of Section 8(a)(1)
and Section 2(6) and (7) of the Act; but has not violated
the Act in any respect other than as specifically found.
Upon the foregoing findings of fact, conclusions of law
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER"
steps shall be taken by Respondent to ensure that said
notices are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
in all other respects.
Aboud, since this left Respondent in no worse apparent tactical position at
the time than had it recalled Bnckey the following March.
11 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.
12 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board " shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.""
Respondent, Humboldt Readymix, Inc., Winnemucca,
Nevada, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees about their interest in or
activities on behalf of Teamsters Local 533, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other labor organization.
(b) Threatening to terminate employees because of their
interest in or activities on behalf of Teamsters Local 533.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Post at its Winnemucca, Nevada, facility copies of the
attached notice marked "Appendix." 12 Copies of said
notice, on forms provided by the Regional Director for
Region 20, after being duly signed by Respondent's
authorized representative, shall be posted by it immediately
upon receipt thereof and be maintained by it for 60
consecutive days thereafter, in conspicuous places, where
notices to employees are customarily posted. Reasonable
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate employees about their
interest in or activities on behalf of Teamsters Local
533, International Brotherhood of Teamsters, Chauff-
eurs , Warehousemen and Helpers of America, or any
other labor organization.
WE WILL NOT threaten to terminate employees
because of their interest in or activities on behalf of
Teamsters Local 533.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of rights protected by the National Labor Relations
Act.
HUMBOLDT READYMIX, INC.