Independent Gravel Co.

National Labor Relations Board - Board Decisions

Dec 7, 1976

227 N.L.R.B. 39 (N.L.R.B. 1976)

INDEPENDENT GRAVEL CO.
Independent Gravel Company and Stanley L. Mathis.
Case 17-CA-6992
December 7, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
JENKINS AND PENELLO
On July 12, 1976, Administrative Law Judge Irwin
H. Socoloff issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting 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 brief,
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.2
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, Independent
Gravel Company, Webb City, Missouri, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order except that
the attached notice is substituted for that of the
Administrative Law Judge.
i Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy 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 (C.A. 3, 1951) We have carefully examined the
record and find no basis for reversing his findings.
2 In par. 1(b) of his recommended Order, the Administrative Law Judge
uses the narrow cease-and-desist language, "in any like or related manner,"
rather than the broad injunctive language, "in any other manner," which the
Board traditionally provides in cases involving serous 8(a)(3) discrimination
conduct. See N.LR B. v. Entwistle Mfg Co, 180 F.2d 532, 536 (C.A. 4, 1941);
Electrical Fittings Corporation, a'subsidiary off-T-E Imperial Corporation, 216
NLRB 1076 (1975). Accordingly, -we shall modify the recommended Order to
require the Respondent to cease and desist from in any other manner
infringing upon employee rights. This change is also made in the-revised
notice.
APPENDIX
39
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or otherwise discrimi-
nate against our employees because of their union
activities or sympathies.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights guaranteed by Section 7 of
the Act.
WE WILL offer reinstatement to Stanley L.
Mathis, Jackie Inman, and John Bildeau to their
former positions or, if such positions no longer
exist, to substantially equivalent positions, with-
out prejudice to their seniority or other rights and
privileges, and make them whole for any- losses
they may have suffered as a result of our discrimi-
nation against them.
All of our employees are free to become or remain
members of Teamsters Local Union No. 823, or any
other labor organization of their choosing.
INDEPENDENT GRAVEL
COMPANY
DECISION
STATEMENT OF THE CASE
IRwIN H. SocoLoFF, Administrative Law Judge: Upon a
charge filed on February 25, 1976, by Stanley L. Mathis, an
individual, against Independent Gravel Company, herein
called Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 17, issued a complaint dated April 12,1976, alleging
violations by Respondent of Sections 8(a)(1) and (3) and
2(6) and (7) of the National Labor Relations Act, as
amended, herein called the Act. Respondent's answer to the
complaint denies the allegations of statutory violations.
Pursuant to notice, hearing was held before me in Joplin,
Missouri, on May 18, 1976, at which the General Counsel
and Respondent were represented by counsel.
Upon the entire record in this case, and my observation
of the witnesses, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent is a corporation engaged in the manufacture
of gravel and related products at its Webb City, Missouri,
plant. In the course and conduct of its business at said
plant, Respondent annually purchases goods and materials
valued in excess of $50,000 directly from sources located
outside the State of Missouri, and annually sells goods and
materials valued in excess of $50,000 directly to customers
227 NLRB No. 7
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
located outside the State of Missouri . I find that Respon-
dent is now , and at all times material herein has been, an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Teamsters Local Union No. 823, herein called the Union,
is a labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The General Counsel contends that Respondent dis-
charged or "laid off" employees Mathis, Inman, and
Bildeau , on February 2, 1976, as a result of the union
activities of those employees. Respondent asserts that its
actions in that regard were economically motivated-. Also at
issue is whether Respondent, by its supervisor, Hatfield,
created the impression of surveillance of a February 1,
1976, union meeting.
An initial organization meeting of Respondent's employ-
ees was held on Sunday, February 1, 1976, at the "Joint-
and-a-Half," a local tavern. Respondent's truckdrivers,
Stanley Mathis, John Bildeau, and Jackie Inman, attended.
Also present at the meeting were truckdrivers Boles and
Slankard, the latter serving as a principal spokesman.' On
the following morning, February 2, 1976, Respondent laid
off some 12 employees. Among the truckdrivers, Mathis,
Bildeau , Inman, and Slankard2 were selected for layoff,
while Ritz, Daniels, and Moss were retained. Boles was also
retained on that date, but left his employment some weeks
later. The drivers laid off were the least senior employees in
the truckdriving department.
B. Surveillance
The Joint-and-a-Half is located alongside the road
normally traveled by -Plant Manager Hatfield in commut-
ing between his residence and the plant. Although the
February 1 meeting occurred on a Sunday, Hatfield was
seen on that day, driving a company truck, on the road
adjoining the tavern parking lot. Thus, employees Bildeau
and Mathis observed Hatfield at 1 p.m., heading north
toward the plant,. Employee Turner testified that he saw
Hatfield driving south- at 1:05 p.m. Inman spotted Hatfield
at 1:30 p.m., heading south.
Hatfield testified that he made two trips to the plant that
day, along his normal route, causing him to pass the Joint-
and-a-Half. Thus, a sand mill was undergoing repair at the
plant on that Sunday, and Hatfield briefly checked on the
progress of the work in the early morning and, again, at or
about noon. Although Hatfield was evasive and inconsis-
tent in other portions of his testimony, I credit the foregoing
uncontradicted explanation of his travels on February 1.
That account is consistent with the further testimony of
Bildeau, Mathis, Inman, and Turner that Hatfield, when
observed, was driving at a normal speed and exhibited
neither awareness of, nor concern with, employee presence
at the tavern. While Hatfield testified that he made his
second trip to the plant at or "about noon," and Bildeau
and Mathis observed him driving in that direction at 1 p.m.,
the inconsistency is not overwhelming, showing, at most,
that Hatfield may have been mistaken with respect to the
precise time of his trip. The timing of the return trip, as
observed by Inman some 30 minutes later, coincides with
Hatfield's testimony that he stayed at the plant for a short
while before beginning the 3-mile trip back home. I am thus
of the view that employee Turner, in testifying that he saw
Hatfield driving south (toward his home) at 1:05 p.m., was
mistaken. I think it's more likely that Turner observed the
same return trip seen by Inman at 1:30 p.m. Accordingly, I
find that, on February 1, 1976, Hatfield was neither
engaged in surveillance, nor attempting to create the
impression that employee union activity was under surveil-
lance. I conclude that the allegation that Respondent
violated Section 8(a)(1) in that regard must be dismissed.
C. The Discharges
As noted, Mathis, Bildeau, and Inman were laid off or
discharged by Hatfield on the following morning, February
2, 1976, allegedly for lack of work. Other employees,
including Slankard, were laid off for the same reason. For
the reasons detailed below, I find that, while Respondent
had ample economic justification for its actions, the
motivating consideration for the layoff of the truckdrivers
was not economic, but, rather, their attendance at the union
meeting on the preceding day.
Respondent's business has, traditionally, been subject to
seasonal variations . The winter months are the slowest and
the amount of available work normally increases in the
spring. In the past, Respondent has resorted to winter
layoffs of its nontruckdriver employees. However, Hatfield,
whose decision it was to lay off the truckdrivers on
February 2, conceded on cross -examination that, in the 22
years he has worked for Respondent, truckdrivers had
never before been laid off for lack of work. Rather, when
necessary, it was Respondent's practice to utilize the
truckdrivers for "odd jobs" and make-work, rather than to
lay them off. Indeed, consistent with this longstanding
practice, Hatfield, in response to employee inquiries in
January on the subject of layoffs, told, nontruckdrivers: "I
don't know, but if things don't pick up we are going to have
to do something." On the other hand, he assured the
truckdrivers that there would be no layoff.
The layoff of February 2 was sudden , without prior
warning, and effective immediately. While General Coun-
sel's witnesses did not substantially dispute Hatfield's
assertion that Respondent's actions were justified bylack of
work, this does not explain Respondent's sudden departure
from its longstanding practice of retaining its truckdrivers
during slack periods. Hatfield, in his testimony, suggested
that the 1976 economic slump was more severe than that
i Respondent's remaining ttuckdnvers, Ritz, Moss, and Daniels, were not earlier been transferred to the sand null department, certain of Respondent's
in attendance. records reflect that Slankard was still a truckdnver on February 2 The
2 While Respondent adduced testimony to the effect that Slankard had conflict need not be resolved herein.
INDEPENDENT GRAVEL CO.
which occurred in 1975. This suggestion is not supported by
sales volume records, or other reliable proof.3
Hatfield initially testified that he first heard about the
February 1 union meeting a day or two later, and that he
was unaware of that event on the morning of February 2
when he effectuated the layoffs.-He also testified that he
never learned the identity.of the employees who attended
the meeting. However, Hatfield later conceded that, when
he learned through the "grapevine" that the meeting had
occurred, he was also informed of the names of the
employees who attended. Hatfield's own testimony, that he
learned of the meeting a day or two after it occurred,
permits the inference that he was aware of-it on the morning
of February 2. In light of all the circumstances, I so infer.
Hatfield's further testimony, denying specific knowledge as
of the morning of February 2, is not credited.
Perhaps most damaging to Respondent's case is the
undisputed fact that, within 8 days of the truckdriver layoff,
Respondent hired another truckdriver, one Fred Luttrell.
Luttrell was a recent retiree and, according to Hatfield, was
rehired upon request, pursuant to Respondent's policy of
rehiring retirees who desire to come back to work. Accord-
ing to Hatfield, "I made work for him as a past employee."
I am satisfied that Respondent did, in fact, have a policy
of accepting retirees who desired to return to work.4
Indeed, in hiring Luttrell during a slack period, and
allowing him to perform odd jobs and "make-work,"
Respondent acted in a manner perfectly consistent with its
policy of at least 20 years; namely, to make work for
truckdrivers rather than lay them off during slow periods.
That policy was effectively reannounced to the truckdrivers
several weeks before February 2, when Hatfield assured
them that there would be no layoff that winter. The only
breach in adherence to this policy occurred on February 2,
1976, when three truckdrivers, who attended a union
meeting the day before, were abruptly laid off.
In view of my finding that, at the time of the layoffs,
Respondent had knowledge of the union meeting and of the
identity of those who attended, its sudden one-time
abandonment of a policy adhered to for at least 20 years is
adequately explained in only one manner ; namely, as an
action in reprisal for the union activities of the laidoff
drivers. The suddeness of the event, its timing, the absence
of satisfactory explanation, and Respondent's subsequent
action with respect to Luttrell justify the conclusion, even in
the absence of specific evidence of union animus prior to
February 2, that Respondent, in laying off Inman, Mathis,
and Bildeau, acted in response to their attendance at the
February 1 meeting. Accordingly, I fmd that the Respon-
dent laid off those employees in violation of Section 8(a)(3)
of the Act.5
3 Respondent did place in evidence certain comparative data with respect
to total hours worked by various employee classifications in 1976 and earlier
years. That document does not reveal the number of employees in each
classification for the respective years, and, in some years , reflects vacation
time as hours worked Moreover, according to the testimony of Richard
Norton, Respondent's office manager, Respondent's use of truckdnvers in
other departments , during slack periods in prior years, is shown on
Respondent's records as hours worked in the truckdnvmg department.
4 Hatfield was unable to recall any other instance in which a retiree was
rehired at a time when other employees were on layoff status.
5 1 have assigned no weight to the fact that, subsequent to the filing of the
CONCLUSIONS OF LAW
41
1. Respondent, Independent Gravel Company, is an
employer engaged in commerce and in operations affecting
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. Teamsters Local Union No. 823 is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By discharging Stanley L. Mathis, Jackie Inman, and
John Bildeau because they engaged in union activities,
Respondent violated Section 8(a)(3) and (1) of the Act.
4. The aforesaid unfair labor practices have a close,
intimate, and substantial effect on interstate commerce
within the meaning of Section 2(6) and (7) of the Act.
5. Respondent did not violate Section 8(a)(l) of-the Act
by creating the impression of surveillance of employees'
union activities.
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, I will recommend that it be
ordered to cease and desist therefrom, and that it be
required to take certain affirmative actions designed to
effectuate the purposes and policies of the Act. The
recommended Order shall provide that Respondent, inter
alia, offer reinstatement to Mathis, Inman, and Bildeau to
their former or substantially equivalent positions, and make
them whole for loss of earnings as provided in F. W.
Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
Upon the foregoing findings of fact and conclusions of
law, and pursuant to Section 10(c) of the Act, I make the
following recommended:
ORDER6
Respondent, Independent Gravel Company, Webb City,
Missouri , its officers, agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Discharging or in any other manner discriminating
against employees because of their union activities and
sympathies.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exer',ise of their
rights protected by Section 7 of the Act.
2. Take the following affirmative actions necessary to
effectuate the policies of the Act:
(a) Offer to Stanley L. Mathis, Jackie Inman, and John
Bildeau immediate and full reinstatement to their former
positions or, in the event their former positions no longer
exist, to substantially equivalent employment, without
prejudice to their seniority or other rights previously
charge in the instant matter, Respondent reinstated Mathis and Inman.
Likewise , that evidence will not be considered in fashioning a recommended
remedy, but, rather, its impact will be left for analysis during the compliance
period.
6 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.
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
enjoyed , and make them whole for any loss of pay or other
benefits suffered by them by reason of the discrimination
found, in the manner described above in the section entitled
" Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll and other records necessary to analyze the amount
of backpay due under the terms of this recommended order.
(c) Post at Respondent's place of business at Webb City,
Missouri , copies of the attached notice marked "Appen-
dix." 7 Copies of said notice , on forms provided by Regional
7 In the event that 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
Director for Region 17, after being duly signed by a
representative of Respondent, shall be posted immediately
upon receipt thereof, and shall be maintained by the_
Respondent for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to employees
are customarily placed. Reasonable steps shall-be taken by'
the Respondent to insure that said- notices are not altered,
defaced, or covered over by any other material.
(d) Notify the Regional 'Director for, Region 17, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."