Leyendecker Paving, Inc.

National Labor Relations Board - Board Decisions

Jan 2, 1980

247 N.L.R.B. 28 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Leyendecker Paving, Inc. and Brewery, Soft Drink,
Grain, Flour, Candy, Industrial and Allied Work-
ers, Local Union No. 1110, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America. Case 23-
CA-6963
January 2, 1980
DECISION AND ORDER
By CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On August 16, 1979, Administrative Law Judge
Benjamin Schlesinger issued the attached Decision in
this proceeding. Thereafter, the General Counsel 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,2 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 recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is,
dismissed in its entirety.
' The Administrative Law Judge granted Respondent's motion to strike
employee Rosendo Galvan's testimony on the ground that the General
Counsel improperly refused to be sworn and to testify concerning the possible
existence of an affidavit given by Galvan to the Board and not made available
to Respondent at the close of Galvan's testimony. However, the Administra-
tive Law Judge in the alternative discredited Galvan's testimony on its merits
and dismissed the allegation concerning unlawful statements made by
Respondent's president in a preelection speech. Since we agree with the
Administrative Law Judge that Respondent did not unlawfully threaten its
employees in that speech, we do not rely on and disavow the Administrative
Law Judge's further comments involving Respondent's motion to strike
Galvan's testimony. Moreover, we specifically disavow the Administrative
Law Judge's comments concerning the alleged partisan advocacy of the
General Counsel, and the supposed "inescapable conclusion" that the
Administrative Law Judge drew from the General Counsel's failure to testify.
In addition, the Administrative Law Judge denied the General Counsel's
motion during the hearing to amend the complaint to allege an additional
8(a)I) violation arising out of a conversation between employee Apolonio
Trevino and Supervisor Jorge Ramon. He further found that, in any event, the
alleged conversation did not take place. Although we agree with the General
Counsel that the motion to amend should have been granted as the issue was
fully litigated, the Administrative Law Judge's erroneous ruling was not
prejudicial since we agree with his finding that the incident did not occur.
I The General Counsel 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
247 NLRB No. 10
unless the clear preponderance of all of the relevant evidence convinces us that
the resolutions are incorrect. Standard Dry Wall Products Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
However, there are certain inadvertent errors in the Administrative Law
Judge's Decision which we hereby correct. Although he found that employee
Guillermo Guerrero helped pay the expenses for the "illness" of Supervisor
Baldomar Ortiz' daughter, the testimony in this regard does not specifically
refer to any illness. However, it appears that Guerrero did render financial
assistance vis-a-vis Ortiz' daughter for some unspecified reason. In addition,
the Administrative Law Judge found that employee Adan Coronado's
prehearing affidavit stated that he was threatened by "union sympathizer"
Ruiz rather than Supervisor Ortiz as claimed at the hearing. However, the
record testimony indicates that the affidavit does not contain the word
"union," referring only to "sympathizer Ruiz." Neither of these corrections
affects our decision herein.
Since we adopt the Administrative Law Judge's finding that Supervisor
Ortiz did not interrogate employee Guerrero, we find it unnecessary to pass
on his further comment that, assuming an interrogation took place, it was not
coercive in view of the relationship between the two employees.
DECISION
STATEMENT OF THE CASE
BENJAMIN SCHLESINGER, Administrative Law Judge:
This case was heard before me in Laredo, Texas, on
November 15-17, 1978.' The unfair labor practice charge in
this proceeding was filed on March 9, and a complaint
thereon issued on June 2, later amended at the hearing,
alleging that Leyendecker Paving, Inc. (herein called Re-
spondent or the Company), engaged in various unfair labor
practices within the meaning of Section 8(a)(3) and (1) of the
National Labor Relations Act, as amended (herein called the
Act), by numerous threats and interrogations, the transfer of
2 employees to more onerous and less desirable positions, 14
discriminatory layoffs, and I constructive discharge.
I have considered the entire record of the proceeding
before me, including my observation of the demeanor of the
witnesses, and the briefs filed by General Counsel and
Respondent. Accordingly, I make the following findings of
fact and conclusions of law:
FINDINGS OF FACT
I. JURISDICTION
I find, as Respondent admits, that Respondent is a Texas
corporation engaged in the business of highway and road
construction and maintains its principal office and place of
business in Laredo, Texas. During the 12 months preceding
the issuance of the complaint herein, a representative period,
Respondent purchased goods valued in excess of $50,000
directly from firms located outside the State of Texas, which
goods were shipped directly from points located outside the
State of Texas to Respondent at its Laredo, Texas, facility. I
therefore conclude, as Respondent admits, that Respondent
is now and has been at all times material herein an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
I further find, as Respondent admits, that Brewery, Soft
Drink, Grain, Flour, Candy, Industrial and Allied Workers,
Local Union No. 1110, affiliated with International Brother-
' Unless otherwise indicated, all dates herein refer to the year 1978.
28
LEYENDECKER PAVING, INC.
hood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America (herein called the Union), is and has been at all
times material herein a labor organization within the
meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR I.ABOR PRACTICES
A. Credibility
There are serious conflicts between the testimonies of the
witnesses called on behalf of the General Counsel and those
called on behalf of Respondent. The 8(a)(1) allegations,
many of which involve isolated conversations between a
supervisor and an employee, are virtually dependent upon
which of the witnesses presented the most accurate narration
of the incidents relied upon, and the resolution of them is
made more difficult by the fact that Respondent's witnesses
merely denied, with a naked "No," that various threats and
interrogations took place. Thus, in many respects, the
determination of credibility herein is based solely upon my
observation of the demeanor of the witnesses. However,
more often the determination herein is also based upon the
weight of the respective evidence provided by the parties,
established or admitted facts, inherent probabilities, and
reasonable inferences which may be drawn from the record
as a whole. N.L.R.B. v. Walton Manufacturing Co. &
Loganville Pants Co.. 369 U.S. 404 (1962).
I found many of the General Counsel's witnesses to
indicate their utter confusion in directly answering the
questions posed by counsel in this matter. I have taken into
account the fact that many of the witnesses testified in
Spanish and had to answer questions put to them through an
interpreter. I have no cause to believe, however, that the
questions asked of the witnesses in English and then
translated by the interpreter became less clear and more
obscure in the process of translation. Some witnesses, such
as employees Adan Coronado, Paulino Fernandez, and
Guillermo Guerrero, testified directly contrary to certain of
the facts which were given by them in their investigatory
affidavits. I have also taken that into account.
There was little documentary evidence introduced in this
proceeding, but what little there was supports the conten-
tions made by Respondent's president, John S. Leyendecker
Jr., of the contents of his preelection speech of February 16
and the contentions of Douglas Howland, Respondent's
executive vice president, of the reason for the layoff of
certain members of the curb gangs in late February.
Conversely, such documents belie the violations alleged in
oral testimony of various of General Counsel's witnesses as
well as the theory alleged by General Counsel to support the
discriminatory nature of the February layoff.
Before wending my way through the 21 separate allega-
tions of statements which General Counsel complains are in
violation of Section 8(a)(l) of the Act, which are discussed in
no particular order, it may be helpful to focus on the key fact
in this proceeding, that is, that a representation election was
conducted on February 17, which the Union won. Out of
103 eligible voters, 57 voted for the Union, and 33 voted
against it; there were 8 challenges, not enough to affect the
results of the election. A Certification of Representative
issued on March 8 and, at some point in time thereafter,
Respondent and the Union agreed upon the terms of a
collective-bargaining agreement.
This proceeding involves alleged threats and interroga-
tions made from the time the Union's organizing campaign
began, about December 24, 1977, through January 18, 1978,
when the Union filed its petition for an election, and after
that to the date of the election and shortly afterward. It also
involves certain allegations of reprisals for the organizing
activities prior to the election and the later effectuation of
certain threats to lay off employees for their support of the
Union.
B. The Alleged Threats by Esparza
Employee Leandro Gutierrez testified that a week before
the election he heard Supervisor Augustin Esparza state at
the Vista Hermosa to employees Genaro Martinez, Julian
Villa, Hilberto Montoya, Jose Guadalupe Reyna, and
Paulino Fernandez that all employees who had signed a card
had committed a "stupidity," that the Company was not
going to tolerate "this Union business," that the Company
was going to be hard with the signers, and that if the Union
won, Respondent would fire the employees one by one, two
by two, three by three, until Respondent was finished with
all of them.
The only participant in this conversation who, according
to General Counsel's brief, corroborated Gutierrez' testimo-
ny was Fernandez, who testified that Esparza threatened to
fire, one by one, the employees who had signed cards.
Fernandez testified, however, that this incident took place
not at Vista Hermosa, but at Mall del Norte. Further,
Fernandez was utterly confused when he attempted to
pinpoint the date of the alleged threat, first testifying that it
was before the election, then, a week before the election, and
then, during the week of the election. In his investigatory
affidavit, Fernandez averred that the conversation took
place after the election. Indeed, the word "before" was
crossed out in his affidavit, and the word "after" was
inserted in its place. Fernandez attempted to limit the
impact of the difference between the averments of his
affidavit and his oral testimony by confessing to his difficulty
in discerning the distinction between the words "before" and
"after." General Counsel's brief, however, is barren of any
suggestion as to how I should resolve the difference between
the testimonies of Gutierrez and Fernandez of the location
where Esparza is alleged to have made the threats attributed
to him.
Esparza denied making any threats to any of the employ-
ees and testified that Respondent's president, John S.
Leyendecker, Jr., did not want any trouble and had
instructed his supervisors not to make deals with any
employee and what they should or should not say. Leyen-
decker credibly testified that he had instructed his supervi-
sors not to make threats. Other than the "one by one" threat
of discharge, there is no corroboration of Gutierrez' testimo-
ny and no facts which would cogently explain why Esparza
should have, on this lone occasion, a week before the
election, expressed his displeasure with the union card
signers. At that point in time Respondent's interest, if it was
as opposed to the Union as General Counsel argues and
willing to violate the Act in order to seek its goals, would
29
DECISIONS OF NATIONAL LA1()R REI.ATIONS BO)ARI)
has e been to threaten employees with discharge if they voted
for the Ullnion. The signing of cards no longer made any
diffterence with an election only a week away.
I find that Esparza was a credible witness. I recognize that
as a supervisor of Respondent, he had an interest in
protecting Respondent by denying that he violated the Act.
However, Esparza was candid and forthright and, in fact,
took a position at odds with that of Howland when Esparza
stated that he had no complaints about the work performed
by certain of the employees laid off from the curb gang,
discussed infra. and that as to the knowledge of the jobs to
be done on the gangs. "[t]hey do the samejob." As a result. I
credit Esparza, finding him much more reliable than
General Counsel's witnesses, whose testimony failed to be
mutually corroborative and whose testimony was otherwise
lacking in support.
C. The Alleged Coercive Statement Marie to Coronado
Adan Coronado testified that on March 23. on the
Highway 59 job, Field Superintendent Baldomar Ortiz asked
him for water. Coronado then asked him for a raise or if he
could get a raise for Coronado. Ortiz said that he could not,
because Coronado was with the Union and because "the
cards were supposed to arrive, the cards that we had
signed." On direct examination. Coronado said that he made
no reply, and that ended the conversation: but on cross-
examination, after he initially reaffirmed that he made no
reply, his attention was called to his inlestigatory affidavit.
in which he stated in reply to Ortiz that he was not in the
Union. However. during his oral testimony. Coronado
insisted that Ortiz had told him that he was in the Union.
although Coronado confessed that he had never talked about
the Union or wore any insignia which indicated that he was
a union adherent. Further, there was some question that
Ortiz came up to ask for water in the first place. Coronado's
affidavit names the person as "union sympathizer" Ruiz. but
Coronado insisted that the affidavit %,as incorrect and that
Supervisor Ortiz was intended.
Ortiz denied that he ever told employees that they could
not get pay raises because they were in the Union, He
admitted that he was at the Highway 59 job in March. but he
denied that Coronado ever went to work on that job. Later
in his testimony, Ortiz did not recall Coronado asking about
a raise (for, if he had. Ortiz would have sent him to the
office, because he had nothing to do with granting raises, but
did recommend them). nor did Ortiz think that he had
talked to Coronado about the Union, because, he stated, he
did not care whether an employee was in the Union or not.
Thus. the tenor of his later responses seemed to imply that
Ortiz had conversations with Corondo even though he was
not at the Highway 59 job.
Despite my reservations of believing Ortiz fully, I have
more difficulty believing, and do not believe. Coronado
because of the discrepancies between his testimony and his
I am only assuming that the "cards" referred to authorization cards
employees signed designating the Union as their represenative. I know of no
other cards which Coronado might he referring to. ad General Counsel's
brief gives me no guidance at all.
Guerrero originally was asked to tell about his conversations with
supervisors starting with the fir. conversation. This one. allegedly held ion
February 10. was the First related by him. According t his lestimonl).
however. there was no chronological order of presenlation.
affidavit. Further I am unable to understand Coronado's
testimony, in the face of the timing of the alleged 8X(a)(l)
violation. HBy March 23 the election had beenl held and the
results wcrc long since known; el Coronado speaks of
cards' that the employees signecd as ot el arris ig. The
cards, at that point, were no longer ain issue fir tlie election
h;ld been held. Bsed on the inprobahiliti Itl ())rtiz w suld
have made atny mention ofl'cards and based o)t the denicaniIor
of the witnesses, Ihe General Counsel has not met his bulden
of proving this allegation of the complaint hb a prcponider-
ance of the evidence.
D. (he 41/c / edl Coercirc .SI(1tcet rl Ma .i t'o G (i'rrcr
Guillermo Guerrero testified to five collncersations ithl
Baldomar Ortiz which General Coulnisel alleges to be
violaliols of Section 8(a)( ) of the Act. Malln o' these
conversations were not pinpointed as t their datle,. or
Guerrero was confused about their dates. so it is impossible
to list them in any order ()n IFebrua ry 10, at the Paul Y ouung
Chevrolet job, ()rti/ statced that if te Union)l camIe i
Leyendecker wotuld sell out tihe Companly or close it up. if he
did not do bolth of those things., and Ihai t h Comlpain
wo tld only work Ithe lig hiway 59 allnd Pal Young johs anld
thel close up. (uettrcro replied that if tles closed. t I he
closed. After the election. ad again atl tle Paul Y'oulig job.
Ortiz told him that there was no work for his mnachinie and
that he would he laid off because the Highway 59 job had
not started. Ortiz fuirther stated that if here were no vork
available which required the use of Respondetil's machinery,
the employees ho h;ad not oi ld tlie ULnionl ould
constalntly be orkilg at sonmetling else. w-hereas those
employees who belonged to the Unlion vould he laid off.
There are yet three other conversations for which Guerre-
ro failed to clearl) defline (or perhaps General Counsel Iailed
to elicit) when they took place. The first vas at the Paul
Young job, when ()rtiz asked Guerrero if lie knew ansthling
about the Union, to which Glerrero said thlat he did not.
Guerrero first testified that this conersatlion took place on
January 23; later, he testified it took place after the election.
The second conversation look place the day after Ortiz' son-
in-law took Guerrero to the yard to pick up his car. That
day, at the Mall del Norte, Ortiz told Guerrero that he had
learned that Guerrero had asked his son-inl-law to joill the
Union and that as a result Ortiz kew that Guerrero was a
member of the Union. Guerrero first testified that ()rtiz had
stated that this occurred on December 23. 1977. Then he
testified that the conversation with Ortiz took place after the
election. To compound the confusionl Guerrero qualified the
contents of the conversation when, after statiig that Ortiz
openly stated that Guerrero was a member of the Union. he
testified, somewhilt ilconsistently, that Ortiz asked him if lie
knew anything about the Union, to which Guerrero said.
"No."'
h' tie (General Couillsel lales in hl, brieF "(ilerrerl furlher testified thal he
had anot her conlversaillon ill Orti, w lile tic wils sorkmilg at the Paul Young
Chterolet obhsile. ()rliz told him that he kine he ((;iuerrero) belonget tO the
Unison. because Guerrero had asked Ortiz' snll-inl-lals Iol joill lhe Union."
lootlnliting that; "'hc presllou, da) ()rill' iln-i-lata had taken Guerrero to
thIe ard rom the jiobhilc where (icrrero 'as s orklnig" It i pssible. with
3(
LEYENDECKER PAVING. INC.
The third conversation which is marked by Guerrero's
inconsistent testimony took place, according to his initial
testimony, on or about December 24, 1977, or at least in
December 1977, at the Miller pit, where Ortiz stated that the
reason employee Rosendo Galvan was taken off his truck
was, so he had been told by Howland, that the Respondent
knew he had been passing out cards for the Union. Guerrero
was sure that Galvan was not working on the truck at that
time, because he saw him working as a laborer.
His testimony about this conversation was marked by a
number of fatal contradictions. In Guerrero's investigatory
affidavit he stated that when Ortiz told him of the reason for
Galvan's no longer working as a driver, Ortiz told him that
he in turn had been informed of this by Duarte, a welder.
Guerrero insisted, however, on cross-examination, that the
name of Duarte had been inserted in his affidavit by mistake;
rather, he intended it to be Douglas, as he testified during his
direct examination. This "mistake" hardly makes sense,
because Douglas Howland is not a welder, and Guerrero's
original recollection, as recorded in his affidavit, was clearly
intended to be of a welder, whether named Durante or,
because of a mistake, someone else, but certainly not
Howland.'
Further, the timing of the conversation was contradicted
by Galvan's testimony, corroborated by other witnesses, that
Galvan was taken off his truck in early February. Yet
Guerrero stated first, on cross-examination, that Galvan was
taken off his truck in January and then, "something like
that." Finally, he was shown his affidavit in which he stated
that the conversation took place in March, three months
removed from the date that Guerrero originally identified as
the correct date. Guerrero then further amended his testimo-
ny by stating that he knew that Galvan wrecked the truck,
but he did not know that that was the reason he was taken
off the truck. Guerrero further testified that it was not
around the time of the wreck that the conversation took
place, which was after the election. Finally. he did not know
whether the conversation took place before or after the
wreck.'
Ortiz denied each of these conversations, each of which,
Guerrero testified, took place in Ortiz' pickup truck outside
the presence of anyone else. Indeed, in almost all the alleged
8(a)(l) conduct, these incidents are marked by the absence
of corroboration. They are also marked by an absence of
clear, direct testimony of the alleged violations of law, which
General Counsel has the burden of proving by a preponder-
ance of the evidence.
In any event, it is interesting to note the contrasting
perspectives in which Ortiz and Guerrero viewed each
other-Guerrero stating that he did not get along with Ortiz
some corrections of the official transcript. that the testimony could he read
this way. I did not understand that this was what Guerrero was saying, nor
apparently did Respondent, which discusses the alleged conversation in its
brief in much the same way as I have. Indeed, if I misunderstood the
conversation, ad General Counsel is correct. there is nothing in the
complaint which alleges that this conversation constituted a violation of the
Act Conversely. if I am correct, it may be claimed that the mere mention of
the "Union" is somehow violative of the Act. The confusion is compounded
h5 the General Counsel's utter failure to state, under any version of the facts.
what it is that he is complaining about. I refuse to engage in conljecture;:
having found the facts as set forth in the bidy of the decision I find no
violatio.
General Counsel states ill his brief "Guerrero testified that Ortiz told him
("he called [Guerrero] bad") and Ortiz, more conciliatory,
describing Guerrero as his "compadre" saying that Guerrero
helped him pay for the expenses of Ortiz' daughter's illness
and that, at least as of the time of the hearing, Guerrero was
going to be the godfather of Ortiz' child. I found both of
them to be sincere in their descriptions of their feelings for
each other, and, although at a loss to explain how two men
could view each other so disparately, I find it somewhat
helpful in resolving the credibility issues presented by their
testimony, resulting in a finding that Ortiz' testimony was
more reliable. First, as noted above, I found Guerrero's
testimony as to certain incidents confused and inconsistent
as to particular events. This is not to say that by discrediting
his narration of certain conversations, I must perforce
discredit all of his testimony. The rule is often stated that
"[niothing is more common in all kinds of judicial decisions
than to believe some and not all" of a witness' testimony.
N.L.R.B. v. Universal Camera Corp., 179 F.2d 749, 754 (2d
Cir. 1950), vacated and remanded on other grounds 340 U.S.
474 (1951). However, Guerrero obviously bore a grudge
against Ortiz, which I find caused him to tailor his testimony
to statements made in his nvestigatory affidavit (including
his stubborn admission that the date of the affidavit, a year
before the events at issue, was correct) and expand upon his
testimony to embarass Ortiz. In fact, as Guerrero continued
to testify, the number of alleged incidents increased, adding
the threats that if Guerrero's machine broke down, Guerrero
would be fired, and another similar one, but with the threat
that Guerrero would be laid off.
To the contrary, Ortiz' sincere fondness for and friendship
with Guerrero causes me to doubt that he would have
threatened Guerrero in any way.' Admittedly, the reasons
for making my credibility resolutions are less than precise,
but such conclusions are never subject to verification by a
litmus test; and demeanor, which I rely upon heavily, causes
me to have no doubt that Ortiz was truthful.
E. The Alleged Threats by Salazar
Apolonio Parra, a former backhoe operator, testified on
his direct examination that approximately 2-3 weeks before
the election, alleged Supervisor Arturo Salazar stated at
Mall del Norte that "he wasn't going to take me on the
tractor if I voted for the Union" and later that "Douglas
[Howland] told Salazar that if I voted for the Union, he was
going to lay me off the tractor." On cross-examination, the
alleged threat was further refined to "Howland told him to
tell me that if I voted for the Union, he was going to get me
off the tractor." Parra stated that he had not been talking to
Salazar for a half-hour before Salazar made the alleged
that Douglas Howland had given him the information about Galvan. A
welder named Durante had told Leyendecker that Galvan had started the
Union.
'
This does not accurately reflect Guerrero's testimony.
' Par. 8(a) I) of the complaint states that this conversation toolk place on
December 24, 1977. an indication of the overall confusion involving this
allegation.
' Under this analysis I find it very possible that Ortiz mentioned to
Guerrero the fact that his son-in-law had told him that Guerrero had
attemptcd to solicit a union card and that Ortiz expressed his knowledge that
Guerrero was a member of the Union. In the context of the relationship
between the two employees, I find that, assuming this to be interrogation.
which I do not find, there was in ally event nothing coercive about it to
constitute a violation of the Act.
31
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
threat, nor did the conversation consist of anything other
than the threat.
Salazar denied that any threat was made because of
Parra's union activities, but admitted relaying a message for
Howland in February that Howland was changing Parra's
job to another job, but was not sure whether Parra could
handle it, and if Parra were not able to perform the job, then
he would have to be taken off the tractor. Howland
amplified Salazar's testimony by stating that Parra had twice
broken utility cables in the operation of the backhoe, and
Salazar had complained to Howland that the past accidents
caused Parra to slow down in his work, to which Howland
replied that he would try to get another backhoe operator (of
which the Respondent had several) on Salazar's job and
reassign Parra to another location.
I find both Salazar's and Howland's explanations of this
incident credible, and I was particularly impressed with the
lack of clarity of Parra's testimony, with the shift of
emphasis from Salazar's statement alone, to one which
Salazar attributed to Howland, to one which Salazar was
relaying to Parra on behalf of Howland. I was further
impressed with Parra's failure to deny that he had indeed
twice broken utility lines. I further find it unusual at best
that Salazar would threaten Parra's future employment
because of the upcoming election, without any background
which might explain why and how the threat came about.
General Counsel argues in its brief that "Salazar admitted he
had asked Parra about the Union"; however, I do not find
that such interrogation occurred during the conversation at
issue, and the record is devoid of any facts indicating when
Salazar asked Parra about the Union, whether before or after
the incident alleged or even shortly before the hearing
herein.
Although I find that no violation of the Act was
committed by Salazar, I do not do so for the alternate reason
urged by Respondent, that Salazar was not a supervisor.
There is no doubt that Arturo Salazar was classified by
Respondent as a foreman and that Superintendent Luis
Moncevais referred to him as a supervisor; but nomenclature
is often deceiving, and it is necessary to examine his duties to
determine whether he meets the statutory definition of a
supervisor within the meaning of Section 2(11) of the Act.
Salazar was in charge of a crew of three employees fixing or
making small bridges and in February made and built forms
and prepared, laid, and finished cement. Paulino Fernandez
testified that Salazar worked with his hands, that is, he
hammered and sawed (as did the other employees) and
planed and used a level. Sometimes he helped pour concrete,
which the other employees did, too. Salazar initially denied
on cross-examination by General Counsel, however, that he
did any work with his hands at all; later, on redirect, he
admitted that he did indeed work with his hands every day,
often using a hammer and electric saw or handsaw.
Salazar earned at least $4.25 per hour, much more than
the other members of his crew, and was given a company
truck for his own daily (and weekend) use. There is no
evidence that he had the authority to hire,' fire, grant pay
· Salazar did recommend to Leyendecker the hiring of his son. I do not find
this to be the result of Salazar's authority as a supervisor, but merely the act of
a parent who wished to obtain employment for his child.
'Other testimony indicates that this employee was Lozano.
raises, or recommend the same. However, Salazar conceded
that his principal duties involved giving assignments to his
crew and that he was responsible for reviewing and checking
their work. In doing so, he conceded, he could discipline an
employee who refused to carry out Salazar's assignments
and that he had authority to direct employees to work
overtime. He also had the authority to permit a sick
employee to go home early and to transfer an employee to
another assignment, although he insisted that he needed the
approval or the direction of Moncevais before doing so.
Because of his authority to discipline and to grant overtime,
I find that Salazar was a supervisor within the meaning of
Section 2(1 1) of the Act.
F. The Alleged Threats by Ramon
During the direct examination of Apolonio Trevino, he
testified that during work on one day before the election,
alleged Supervisor Jorge Ramon had a conversation with
him and employees Victor Ramirez, Pedro Martinez, Juan
Ochoa, another person, and Delores (last name unknown),9
or that he heard a conversation, in which Ramon said "not
to join the Union because the Company would fire us, that
the Company did not want the Union." Based on this
statement, General Counsel moved to amend the complaint.
I reserved decision on the motion,'" awaiting further identifi-
cation of the time and place the incident was alleged to take
place, in order to afford the Respondent the right to
intelligently investigate the allegation. In addition, I request-
ed that General Counsel draft the specific language of the
proposed amendment, which General Counsel never did.
Later in his testimony Trevino stated that Ramon made his
comments about 2 weeks before the election, at a location
across from the Laredo Packing slaughterhouse. However,
Trevino denied that he had a conversation with Ramon, who
merely said "not to go to the Union because we were going
to be fired."
It is difficult to assess from Trevino's testimony exactly
what it was that he claims Ramon said, and it is impossible,
because of General Counsel's failure to propose the language
of the amendment, to know what it is that is alleged to be a
violation of the Act. The situation is complicated by General
Counsel's withdrawal, at the end of General Counsel's direct
case, of paragraph 9 of the complaint, which contained the
allegations of unfair labor practices alleged to have been
committed by Ramon, which Respondent argues was also a
withdrawal of the amendment, which was never formally
proposed. In these circumstances, I find that General
Counsel never finalized its amendment in proper form and
that the matter never was placed in issue, and in the interests
of justice I deny the motion to amend the complaint in the
manner proposed by General Counsel.
I must admit being somewhat mystified by General
Counsel's proof of this allegation, which-as are almost all
of the other allegations-was wholly uncorroborated by the
other five alleged participants. On the basis of the proof, a
group of six employees are working, and Ramon announces
"' The record inaccurately reflects, at p. 125, . 18, that I granted the
motion. I did not, and the line is hereby corrected to read "I will not grant the
amendment ."
32
LEYENDECKER PAVING. INC.
the threat that if they "join" or "go to" the Union, they will
be fired. No conversation precedes or follows this state-
ment-the only act which General Counsel apparently
alleges that Ramon participated in that had something to do
with the Union. This would mean that Respondent engaged
in a concerted effort of hit-and-run threats to employees
throughout the Union campaign. Although that is certainly
a possibility, I do not believe it on the state of this record.
Trevino, I admit, was sincere, but his memory about this
particular allegation was anything but clear. I recognize that
Ramon did not deny it, but I nonetheless conclude that it did
not happen."
G. The Preelection Speech of John Leyendecker
1. The investigatory affidavits of Rosendo Galvan
Rosendo Galvan, one of the discriminatees herein and the
instigator of the Union's efforts to organize Respondent's
employees, was the sole witness to various alleged threats
made by Respondent's president, Leyendecker, in a speech
made on February 16.
At the beginning of his cross-examination, Galvan testi-
fied that he had given more than the two investigatory
affidavits which General Counsel had produced upon
demand of Respondent's counsel. Further examination of
Galvan indicated precise areas about which, he stated, he
gave written affidavits to the Region's attorneys; these areas,
however, were not included in the affidavits produced by
General Counsel. As a result, Respondent moved to strike
all of Galvan's testimony pursuant to Section 102.118(b)(2)
of the Board's Rules and Regulations, which reads, in part,
as follows:
If the General Counsel elects not to comply with an
order of the Administrative Law Judge directing
delivery to the Respondent of any such statement, or
such portion thereof as the Administrative Law Judge
may direct, the Administrative Law Judge shall strike
from the record the testimony of the witness.
I reserved decision on this motion at the hearing, but
offered Respondent the right to proceed with its cross-
examination of Galvan, without prejudice to its motion.
Respondent rejected that offer and declined to cross-exam-
ine Galvan.2 I have carefully reviewed the transcript of his
testimony, as well as my notes of my personal observation of
Galvan's demeanor, and am persuaded that Galvan was
utterly confused during the course of his examination with
regard to the number of the affidavits that he gave to the
Regional Office. Despite the fact that later in his testimony
Galvan admitted his confusion and corrected his testimony
to the effect that he gave only two affidavits, the fact remains
that he also clearly stated that he gave another affidavit to
the Region prior to February 17, the date of the election.
" In view of General Counsel's withdrawal of the two allegations set forth
in the original complaint and Respondent's position concerning the attempted
hut aborted amendment during the hearing, it is difficult to understand
Respondent's purpose in calling Ramon as a witness. All the allegations had,
by that time, been withdrawn. In any event. Ramon testified solely to his
duties vi%-a-vis his alleged supervisory status and did not deal with the
substantive allegations made against him. As to his status, I find that he is a
supervisor. Although he worked with his hands. he also was paid substantially
greater wages than the rest of his crew, drove a company truck, had the power
Admittedly, the likelihood that he did so, when no unfair
labor practice charge or objections were pending. is at best
slim. However, on the basis of Galvan's testimony alone,
there is still the possibility that there was a third affidavit,
given at some point in time, which Galvan admitted
encompassed his claim that he was reassigned to a different
and more onerous job, the subject of paragraph 20 of the
complaint, as amended and added at the hearing.
As a result, I requested Ruiz, counsel for the General
Counsel, to testify with regard to his search of his files and
those of the Region for the third affidavit, if any. Ruiz
refused to do so, relying upon Section 102.118(a) of the
Board's Rules and Regulations, which reads, in part, as
follows:
No regional director, field examiner, administrative
law judge, attorney, specially designated agent, general
counsel, member of the Board, or other officer or
employee of the Board shall . . . produce or present
any files, documents, reports, memoranda, or records of
the Board . . . or testify in behalf of any party to any
cause pending in any court or before the Board, or any
other board, commission, or other administrative agen-
cy of the United States, or of any State, territory, or the
District of Columbia, . . . with respect to any informa-
tion, facts, or other matter coming to his knowledge in
his official capacity or with respect to the contents of
any files, documents, reports, memoranda, or records of
the Board, . . . whether in answer to a subpoena....
subpoena duces tecum, . . . or otherwise, without the
written consent of the Board or the chairman of the
Board if the [official or document] . . . is subject to the
supervision or control of the Board; or of the general
counsel if the [official or document] is subject to the
supervision or control of the general counsel....
Whenever any subpoena ad testificandum or subpoena
duces tecum. the purpose of which is to adduce
testimony or require the production of records as
described hereinabove, shall have been served on any
such person or other officer or employee of the Board,
he will, unless otherwise expressly directed by the
Board or the chairman of the Board or the general
counsel, as the case may be, move pursuant to the
applicable procedure, whether by petition to revoke,
motion to quash, or otherwise, to have such subpoena
invalidated on the ground that the evidence sought is
privileged against disclosure by this rule.
Ruiz advised that General Counsel refused to consent to
his testifying under oath, without giving any reason therefor.
Instead, Ruiz stated, as an attorney and an officer of the
Board, that he had "examined the files and can find no other
affidavit given by this witness, and that the only affidavits
that [he] was able to find have been turned over to counsel
for Respondent." In his brief General Counsel relies upon
to authorize overtime work, recommended some wage increases. assigned jobs
based on what he felt ought to be done. transferred employees to another curb
crew, had the authority to discipline employees who failed to follow his
orders, and conceded that his job was the same as that of Esparza, an
admitted supervisor.
': Galvan was called by General Counsel as a rebuttal witness, without
objection. At that point Respondent cross-examined him. I do not construe
that to be a waiver of its previously maintained position regarding Galvan's
testimony on General Counsel's case-in-chief.
33
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this statement as proof that no other affidavits of Galvan
"exist."" I cannot agree.
In the posture of Galvan's testimony, it was necessary for
me, if I were to rule intelligently on Respondent's motion, to
ascertain whether, in fact, there was a third affidavit which
was being withheld from Respondent. That could not be
determined from Galvan's testimony, standing alone. It was
he who created the question of fact by raising the possibility
that another affidavit existed. As a result, I requested Mr.
Ruiz to testify about the results of his review of his files and
his search for other files maintained by the Region in order
to insure that no third affidavit existed. In doing so, I merely
followed the procedure utilized in Harvey Aluminum (Inc.).
et al., d/b/a Wallace Detective and Security Agency v.
N.L.R.B, 335 F.2d 749, 759 (9th Cir. 1964), wherein the
Board took no exception to a trial examiner's direction to
counsel for General Counsel to take the stand and testify to
the results of his search of files.'4 I also took note of the fact
that the basis of the Jencks rule is to permit fair play and to
permit the respondent in a proceeding to have full knowl-
edge of all the facts pertaining to a witness' testimony that
the Agency is privy to. As the Fifth Circuit said in N.L.R.B.
v. Borden Co., 392 F.2d 412, 417 (1968), the rule "means
what it says;" and information is not to be withheld
cavalierly.
Yet that is what happened herein. Ruiz did not testify,
because he was advised that he could not testify. In so doing,
no reason or rhyme was given. When the Board's Rule
permits testimony to be given, subject to consent, I read that
inherent in that Rule is the dictate that "consent shall not
unreasonably be withheld." Here, there was no justification
offered, and no justification that I can imagine, for the
refusal of counsel to testify about the results of his search of
the files he had in his possession, as well as the result of his
inquiries of the whereabouts and contents of other files, to
affirmatively counter the prevailing doubts as to the exis-
tence of a third Galvan affidavit. What Ruiz was able to
state not under oath, and freely did, he should have stated by
becoming a witness, in fairness to himself, to his witness,
and, above all, to Respondent.
I fully recognize that, because of the division in the
structure of the National Labor Relations Board, the
General Counsel is an advocate. Nonetheless, the position is
a public one and should hardly be used solely as a means to
win a case. What is disturbing is that, as a rule, General
Counsel rarely has difficulty in authorizing one of its
' Respondent argues that because General Counsel refused to testify it
cannot be determined that General Counsel acted in good faith in failing to
produce the statement. N.L.R.B. v. Seine and Line Fisherman ' Union of San
Pedro. aff/w Seafarer'. International Union of Nonh America. AFL-CIO [M V
Liberator. et atl. 374 F.2d 974 ( 1967). 1 agree.
" In the cited case the Board did not disagree with the trial examiner's
refusal to permit crossxexamination of counsel. Cf. Paul Biazevitch. et al.
d/b/a MV Liberator. 136 NLRB 13, 16, fn. 8 (1962), in which the Board
accepted a seemingly unsworn statement of a counsel for General Counsel
that no other statements were found. Since Mr. Ruiz refused to be examined,
pursuant to the advice of his Region. I never had to reach the issue as to the
right of Respondent to cross-examination, and I do not reach that issue
herein. See. however, Bricklayers and Masons Union No. 24. et. (Booth and
Flinn Company). 129 NLRB 867 (1960).
I make this finding based on two proceedings that I have heard within the
past year. In Young Movers. Inc.. JD-458-79,. an office clerk testified to
demonstrate proper and timely service of a document. In Custom COred
Products. Inc.. 245 NLRB 33 (1979), an attorney testified to authenticate the
affidavit of a deceased charging party.
attorneys to testify in a proceeding where relevant evidence
is required to support General Counsel's case." Yet there
has been difficulty in this proceeding in testifying to the
result of a search of files, which became vital as a result of
Galvan's testimony. In other words, it appears that partisan
advocacy now dictates whether permission to testify shall be
granted. Instead of viewing the issue as whether the public
would be served, it appears that the decision is based on
whether General Counsel, in that particular proceeding, will
be served.
I recognize that at one point of his testimony Galvan flatly
denied that he had given any more than the two affidavits
which General Counsel produced and exhibited to counsel
for Respondent. Nonetheless, his testimony is filled with
such confusion and contradiction that I cannot believe il,
standing alone and without corroboration. The testimony of
General Counsel in these circumstances was particularly
appropriate and absolutely necessary to insure that the clear
mandate of Rule 102.118 was complied with. That requires
General Counsel to deliver any statement to Respondent for
its examination and use fo- the purpose of cross-examina-
tion. To determine whether General Counsel has complied
with the Rule, especially in view of Galvan's testimony, and
to cogently rule on Respondent's motion. I must determine
whether there are any other affidavits. A statement of
position does not satisfy my search for the truth.'" The
failure of General Counsel to testify under oath leads me to
the inescapable conclusion that there were certain facts
which someone did not desire to share with Respondent and
this tribunal. International Union. United Automobile, Aero-
space and Agricultural Imnplement Workers of America
(UAW) [Gyrodyne Co. of America] v. N.L.R.B.. 459 F.2d
329 (D.C. Cir. 1972). By reason of the lingering doubt which
has been caused by General Counsel, I am not satisfied that
General Counsel had complied with its obligation to
produce all of Galvan's affidavits, and accordingly I grant
Respondent's motion to strike Galvan's testimony pursuant
to Rule 102.118. However, recognizing that I may be
mistaken in my application of this Rule, particularly in the
circumstances of this proceeding and in view of the novelty
of the issue, and in order to fully dispose of the issues raised
herein, I have discussed Galvan's testimony as if I did not
grant the motion and have discredited it, based upon
Galvan's confusion, unreliability, and demeanor.
" The responsibility rests on the Government in a court-martial to prove
that an unavailable statement was destroyed or misplaced in good faith. once
the accused has made a showing that there is a sufficient basis for inquiry.
Richard G. .ugenblick v. United Stoust, 377 F.2d 586. 598 (1967). reversed on
other grounds 393 U.S. 348 (1969). There, the witnesses to the statement..
except otne. testified under oath. The Court of Claims held that it was an error
for the law officer to refuse to call the remaining witness. who had previously
hbeen examined and cross-examined under oath during the pretrial investiga-
tion and whose testimony the law officer reviewed. reasoning that he "h;a a
special responsibility. and is not merely a passive arbiter f the parties'
contentions . . . The ainm is t), insure that the judicial officer is able to ibtain
sufficient information to determine whether the coiditions of the Jencks Act
have been fulfilled." 377 F.2d at 60t.-M)l. The Supreme Court. in reversing
the dccision of the Court orf Claims, found that the question or whether the
remaining witness should have been called is "a matter of debate and perhaps
doubt'" hut that qluestilon did not rise t a constitutional level.
34
LEYENDECKER PAVING. INC.
2. The alleged threats made by Leyendecker
Galvan testified that at 7 a.m. on February 16 Leyendeck-
er addressed approximately 65 to 70 percent of Respondent's
employees and stated during the course of his speech (a) that
if the Union would come in, it would break the Company;
(b) that the Union did not need employees from the across
the border; (c) that the Company did not need the 100
employees; and (d) that those employees who favored the
Union could be let off, and the Company could operate with
those employees who favored the Company. As noted above.
Respondent refused to cross-examine Galvan; and his
testimony stands as he gave it on General Counsel's direct
case.
Leyendecker flatly denied that he had made any of those
statements. His testimony was supported by Howland and
Parras, the Spanish interpreter who was at the time of the
speech employed by Respondent. Leyendecker testified most
credibly that he was advised by his attorneys of exactly what
he could say, and the attorneys prepared a speech for him,
which was offered in evidence and which Leyendecker
followed verbatim. This testimony was also corroborated by
Howland and Parras.
Numbers are not always sufficient to decide an issue.
Here. it is Galvan's story against three of the Employer's
witnesses. I am impressed, however, with the fact that of 103
employees employed by Respondent. of whom Galvan
admitted that 65 to 70 percent attended the preelection
speech, General Counsel could muster no more proof of
these alleged statements than the sole testimony of Galvan.
The complaint alleges (paragraph 12(a)) that Leyendecker
made these statements through an employee acting ias an
interpreter; however. Galvan testified that these statements
came directly from Leyendecker.' I note that Galvan
testified in English and for the most part clearly understood
the questions that were being asked of him in English. He
did not testify that the statements were made by the
interpreter, but testified that Leyendecker himself made
them. I reject Galvan's testimony.
H. The Alleged Discriminatory Lavojfl
1. Preliminary statement re: Respondent's motion to
dismiss
Paragraph 13 of the complaint alleges that 14 employees
had been laid off, commencing on or about February 24. for
periods ranging from a half to I or more days because of
their membership in or activities on behalf of the Union.
During the course of General Counsel's direct case, there
was no evidence adduced that employees Sergio Ortiz,
Eduardo Ramon, Pedro Garza, Ruben Mendoza, and
" General Counlel's brief (p II. fn. 10} concedes that the threats relied
upon were made by eyendecker. noting: "Galsan :as reflected by his
testimony. is fluent in the English language and thus able to understand
Leyendecker without the aid of the intrpreter" Although Parras admitted
that he added to L.eyendecker's speech in certain respcts. the additions are
not relied upon by General Counsel, and I find that he d not support the
complaint in any event.
" Gutierrez testified that an employee named Eduro was laid off. but could
not remember his last name. ()n redirect. Geineral Cioiisel asked whether his
last name might be Lozanlo. to which Gutierrez replied that he beliheed it wasl
I do not consider this to he credible prolof wilhil more. Iiat Eduro I o;ano
Everado Rodriguez were laid off at any time for any reason.
Respondent moved to dismiss the complaint as to these
employees and Heleandro Lozano; and I reserved decision
on the motion, except as to Rodriguez. with respect to whom
I denied the motion. I hereby grant Respondent's motion as
to Ortiz and Mendoza. There was no showing on General
Counsel's direct case that either of these employees was, in
fact, laid off.' However, I also dismiss the allegations
concerning Ramon. Garza, and Rodriguez, because General
Counsel did not prove that these employees were active in
the Union or members thereof or that Respondent laid them
off for reasons which violated the Act.''
As to the remaining employees, the layoffs consisted of
some members of curb crews who were laid off for
substantial periods of time as a result. Respondent argues. of
a reduction of work, requiring the maintenance of only one
curb crew rather than the two curb crews which had been
employed by Respondent since early 1977."' Other layoffs
were only for brief periods, typically. when an employee was
sent home before normal quitting time because there were no
other jobs to do.
2. The February 24 layoffs
It is undisputed that onl February 24 employees Fernan-
dez, Gutierrez. Reyna. Trevino. Lozano. Victor Ramirez.
and Pedro Martinez were laid off. The motivation for their
layoffs anid the failure of Respondent to recall most of them:
constitutes the principal issue in determining whether
Respondent violated Section 8(a)(3) of the Act. I find that
there is no credible proof that Respondent had any knov il-
edge of these employees' union activities or membership in
the Ulnionl and that its layoff of them did not violate the Act.
In fact. the record does not sustain General Counsel's
contenltion that Revna and Lozano were members of the
Union or engaoged i aniv union activities.
General Counsel argues that knowledge of union activities
should be found fromn (I) Leyendecker's conversations with
mainy of them. individualls: (2) the "stonewalling" of
Respondent's witnesses, who uniformly maintained that they
neither knew of nor cared about their employees' union
activities: and (3) various acts of interrogation and threats.
I reject those arguments. It is true that Leyendecker spoke
individually with most of the persons laid off on February 24
in an attempt to persuade them not to vote for the Union.
General Counsel does not allege that Respondent was not
entitled to do so or that Leyendecker violated the Act during
the course of the conversations. General Counsel's submis-
sion that "through these 'conversations' Leyendecker surely
obtained knowledge of his employees' Union activities" is
wholly unsubstantiated and admittedly conjectural. Surmise
is no substitution for proof. which is wholly lacking.
is the same persiiil as Heleanldro .allno Hoveser. I take note of
Rerspidelt' .ilnlser, w hich ;adnmitted that telc;aledrol .laln wahs laid AT.
aind fitnd RespolidentlI hullltd herohb In addillti. Ra:ltno and Hol.lald
admitted that oano vas laid IoffTon Fchbruary 24
In his brief. the (Genlral Counsul cnicedes "Apparenill the layofflTs of
these enlplol% ecs erc f hrief duuratllln
Prior to early 177 Respiondent had ransacted bullness tinder Its present
nlile antid owniership Nstice at least l172 w ittll in11 onie curb crew
Reyn;a was recalled (to the curb rew in late Mai or Julle .oza:no as,
recalled i, a conllcrete finisher helper anid lcarpelnter, helper on a; concrete
cre at or about lie sai te
35
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel argues that a finding of Respondent's
knowledge of union activities should be grounded upon the
contrary testimony of Respondent's witnesses. This is based
on the assumption that if I find a witness' testimony wholly
unreliable and unbelievable, I may find that the opposite is
true. However, I find neither that their testimony was
unreliable nor that there was any hint that the laid-off
employees gave Respondent any indication that they, as
opposed to other employees, were union adherents or
activists. Instead, the testimony of these employees uniform-
ly disclosed that they kept their union activities secret; that
the union meetings they attended were far removed from the
Respondent's premises and jobsites; that solicitation of
union cards and support took place out of the sight and
hearing of Respondent's supervisors; and that there was no
occasion which I have credited where any of the employees
was less than secretive about his union activities.
Finally, General Counsel relies upon the interrogation by
Ortiz of Guerrero on January 23, the statement of Ortiz that
he knew that Guerrero and Galvan belonged to the Union,
and the conversation prior to the election wherein Esparza
allegedly ridiculed his employees for signing union cards. I
have previously concluded that, with the exception of Ortiz'
statement that he knew Guerrero was a member of the
Union (which was never pinpointed as to date), none of these
incidents took place. It follows that none of them may be the
basis for proving knowledge of union activities or member-
ship.
Similarly, the basis for General Counsel's contentions that
Respondent exhibited union animus is not supported by the
evidence, because I have discredited the various threats
against employees for their union activities and support.
General Counsel's reliance upon the fact that certain of the
alleged threats were carried out is misplaced; others of the
alleged threats resulted in no action. Finally, the General
Counsel also refers to his Exhibit 2(a)-(d), campaign
literature distributed by Respondent, which he claims
establishes the antiunion motivation herein and shows that
"Respondent utilized threats of layoffs in order to dissipate
Union support." General Counsel did not specifically
identify what he was referring to; I find that the only
reference contained in that exhibit is the following:
Can the union guarantee me that I won't be "layed
off"? By asking for outrageous salaries or benefits, our
employer will have to increase his prices to stay in
business which will in turn cause business to slow down.
Can the union prevent some of usfrom being "layed-off '
due to decline in business?
The leaflet ended with:
BE SURE AND VOTE AND VOTE AS IF YOUR JOB
DEPENDED UPON IT,
General Counsel relies upon this leaflet solely to support
his claim of union animus. The leaflet is not alleged to
constitute an illegal threat of layoff, and no case has been
cited to support such a violation. Rather, I find that the
:: For similar reasons I find Leyendecker's conversations with individual
employees "free speech" within the meaning of Sec. 8(c).
' Guerrero also testified that there were two occasions when there was no
work for his machine, and he was sent home. At first he stated that they
happened before the election; then he stated that they took place after the
election.
statement is protected by Section 8(c) of the Act. In a similar
factual setting, the Board found no violation of Section
8(a)(l) where an employer stated that there might be layoffs
due to increased costs and changing of operations if the
union won the election. Bostitch Division of Textron, Inc..
176 NLRB 377 (1969). Similarly, where an employer
predicted that a union would possibly mean higher wages,
resulting in a higher sale price of its products, resulting in
decreased sales, reduced production, and possible layoffs, the
Board held that there was no threat of reprisal, but merely
the expression of opinion privileged by Section 8(c) of the
Act. Bayliner Marine Corporation, 215 NLRB 12 (1974).22
In sum, Respondent, although opposed to the attempts of
the Union to organize its employees, attempted through
Leyendecker, one of its principal officers, to legally persuade
the employees to vote against the Union, while leaving to the
supervisors the effective construction of roads. For this
reason, contrary to the General Counsel, I do not find
"surprising" the testimony of Ortiz and Luis Moncevais,
Respondent's general superintendent, in expressing their
failure to care whether the Union was successful. Their job,
and that of Howland, was production; and the union election
campaign was not to interfere with their job. Leyendecker, in
contrast, was apparently assigned the task of persuading the
employees not to vote for the Union; that was his bailiwick,
and not that of his production supervisors, who were
cautioned by him not to threaten or to make promises to
employees because of their union activities.
General Counsel further argues that Respondent's past
practice had never supported a layoff of "so many employees
due to lack of work" and that, instead, Respondent would
assign its employees to other jobs. There is some record
support for this proposition. Fernandez testified that the
only time there was no work was when it rained hard and
that, generally, he was never sent home early, not even when
he finished a job close to the end of the day. Gutierrez
testified that there were occasions when there was no work
for the curb crew. Then the employees would be given other
jobs to do, such as cleaning curbs and running stakes.
Guerrero testified that when the equipment he drove broke
down, he would be assigned to other duties, such as setting
levels."' Galvan stated that there had never been an occasion
when there had been no work; he was always kept around,
doing little odd jobs.?'
Moncevais testified, however, that if work ran out near
the end of a day, he would give another job to an employee if
other work were available; otherwise, if no work were
available, the employee would be sent home. Similarly, Ortiz
testified that if there were something else to do, he would
always "make" employees do something else. This, of
course, makes great sense; if there is no work available to do,
including little odd jobs, it cannot be contended that
Respondent was required by the Act to create a meaningless
task for an employee, merely to keep him on the payroll. The
underlying difficulty with General Counsel's case is that
' I note that Galvan, in his affidavit of April 13, stated: "Before the Union
came in to Leyendecker layoffs were not very common." Because the affidavit
was introduced for no purpose other than to support Respondent's motion to
strike, I have not considered this apparent inconsistency.
36
LEYENDECKER PAVING, INC.
there is a complete void of proof showing that there was
some work for the laid-off employees."'
In so holding, I credit the testimony of Howland that
there was a genuine lack of work for two curb crews and that
a decision had been made, in good faith and without any
consideration of the union activities or membership of the
employees, to consolidate the two curb crews into one. In
February it appeared obvious to Howland that there was
going to be a slackening in curb work, which is mostly
performed on city street jobs and housing subdivisions, and
rarely on highway jobs. The Vista Hermosa subdivision was
in its completion stage, and Respondent had no other
subdivisions to work on in the foreseeable future, having lost
a bid on a subdivision for the City of Laredo in January and
there being no other city jobs to bid on. The charts and
figures produced by Respondent satisfy me that the linear
feet of curb laid decreased from a high point in December
1977 of 19,082 to 10,351 in January; 8,345 in February;
4,054 in March; and 6,247 in April. When Respondent
obtained some small curb jobs in May or June, Reyna was
recalled.
General Counsel argues with some appeal that although
only eight employees were retained in March and April, the
past history of Respondent shows that it employed 21 curb
gang employees in September 1977, when it laid 6,279 feet;
18 employees in October 1977, when it laid 4,334 feet; and
16 employees in November 1977, when it laid 5,695 feet.
Respondent counters by noting that the months with very
heavy work followed this slack and that Howland chose not
to lay off employees when there was a known expectancy of
a work increase. I find that explanation reasonable in the
circumstances herein and note that the expectancy came to
fruition. Similarly, after the layoff of February 24 there has
been the renewal of little of the curb work formerly
performed by the curb crew; once there was additional work,
Reyna was recalled; and the overall complement of Respon-
dent's employees has decreased from 103 employees who
were eligible to vote in the Board-conducted election to 62
employees at the time of the hearing, a decrease of 40
percent. Only six to eight persons were employed in the
remaining curb crew.
General Counsel makes two additional arguments which
merit attention. One is that the steady decline of curb work
started before the election; nonetheless, Respondent waited
until after the election to lay its employees off. Howland's
answer was, in my estimation, rather weak, stating that he
thought that once employees' names had been placed on the
voters' eligibility list, the employees had to continue work-
ing, and that this understanding was obtained without the
advice of Respondent's counsel, whom he never consulted. I
find this somewhat astonishing, especially in light of
Leyendecker's care in consulting with and following the
preelection speech prepared for him by Respondent's law
firm. Nonetheless, if Respondent's real motivation were to
rid itself of union adherents and activists, its purpose would
have been equally served by laying off the employees prior to
' For this reason alone Orman O. McKinley Co.. Inc.. 235 NLRB 1069
(1978). relied upon by General Counsel, is distinguishable.
'" General Counsel impliedly argues that the employees were not picked in
accordance with their seniority, but fails to cite any legal authority to show
that seniority had to be followed. The facts demonstrate that Respondent had
never used seniority for the granting or denial of wages or any other condition
the election, with the possible added advantage of divesting
them of their voting rights. The earlier layoff, it may well be
predicted, would have resulted in the same allegations as are
leveled in this proceeding, and perhaps with more force. In
other words, once the curb work decreased, by happenstance
near the date of the election, it made little difference that the
layoff became effective after the election, because Respon-
dent would have been subjected to the same questioning of
its motivation. Despite my suspicions about Howland's
explanation, I find that the timing of the February 24 layoff
is not determinative of the issues herein.
General Counsel also argues that the selection of the
particular employees who were laid off on February 24 is
subject to question." Although I am disturbed with How-
land's explanation, that is still not enough to carry the day
for the General Counsel. My concern arises from the fact
that Howland spewed forth a litany of problems with the
work of the alleged discriminatees which in oto amounted
almost to a case of overkill, especially when balanced against
Moncevais' frank admission that all the employees were
good workers and the employees' testimony that their work
had never been complained about, although some had
worked for Respondent and its predecessor for many years.
It is unnecessary to detail the nature of Howland's
complaints;' it is enough to state that it was Howland's
decision to lay off members of the two curb crews and to
consolidate them into one crew. It was also his decision to
select certain of the employees for layoff. He credibly
testified that he was aware of the relative capabilities of the
employees and that the performances of some of the
employees left much to be desired. In view of that testimony,
it mattered not that he did not consult with the supervisors
to obtain their comments and thoughts. Just as the Board is
not empowered to substitute its own business judgments for
those of employers (FPC Advertising, Inc., 231 NLRB 1135,
1136 (1977)), so the Board may not substitute its own
method of reaching those judgments. In any event, General
Counsel offers no reasonable alternative for the actions taken
and does not dispute the underlying reasons for Howland's
decision, save for the comment that no complaints had been
made against the employees who were laid off. That there
were no complaints made is possibly helpful in certain
circumstances, but that fact does not lead to the inescapable
conclusion that the employees in question were wholly
satisfactory. With their faults, they still might have been the
best employees Respondent was able to employ. However,
when a decision was made to lay off employees, it may well
have been that, on a relative basis, the employees selected for
layoff were not as capable or dedicated as those who were
not laid off. Because General Counsel has not proved that
Respondent laid off the particular employees for reasons
of employment. In any event. I note that Trevino had been employed for only
3 months. Ceasar Contu, who was not laid off, had been employed for 8-10
years. Sig Cox. Inc.. 227 NLRB 1270, 1272 (1977).
" Parra, for example, broke some utility lines, which reflected on his work
by slowing down in an exercise of caution Gutierrez was primarily a laborer
and a pinsetter, but not a concrete finisher.
37
DECISIONS OF) NATIONA. I.AB()R RELATIONS B(OARI)
prohibited by the Act. Respondent-barring some legal
obligation -- had the right to lay off its emp'., ,ees for any
reason or for none at all.
Respondent contends that its good intentions and lack of
antiunion motivation are demonstrated by the fact that a
number of the employees who were not laid off from the
curb gangs were, in fact, union adherents. Among these were
Julio Ambios. Buentayo, Martin (last name unknown),
Ochoa, Mike Weis, Hilberto Montoya. and Villa. Only
Ceasar Contu, who was not laid off, was not identified as
being an activist in the union campaign. Thus, of 15
employees in the curb gangs. 12 were union adherents, and
only 3 were not. It is difficult to imagine how the actual
selection for layoff of five union adherents and two non-
adherents supports General Counsel's theory of discrimina-
tion, in view of the fact that 80 percent of the curb gangs
were supporters of the Union. However, the selection for
recall of Reyna and Lozano, the only 2 nonunion employees,
gives me pause-because all of the remaining employees on
layoff were active union supporters. Despite my reservations
about the method of recall, the General Counsel has not
specifically raised an issue about that method, nor has he
indicated that these two employees should not have been
recalled before any of the other five employees. Further,
General Counsel had not demonstrated that jobs were
available for the other five employees, even outside the
remaining single curb crew, and that new employees were
hired to fill those positions rather than the laid-off employ-
ees. As a consequence of all of the foregoing, I find that
General Counsel has failed to prove a violation of the Act by
a preponderance of the evidence.
3. The other layoffs
The General Counsel also complains that the brief layoffs
of Victorinio R. Ruiz and Galvan violated Section 8(a)(3) of
the Act.
a. The layoff of' Ruiz
Ruiz testified that on Monday, February 20," 3 days after
the election, Moncevais told him that his roller needed
repairs, that he was to go home until it was fixed, and that he
would then be called back. After 2 days of not working, Ruiz
went to see Leyendecker, who said that the roller had not yet
been fixed and that Ruiz was to work as a laborer. Ruiz then
worked for approximately 6 weeks as a laborer, despite the
fact that the roller was fixed, which he knew because he saw
Moncevais' cousin, Herwainio, driving it."' Respondent did
not contradict Ruiz' testimony.
Nonetheless, although Ruiz testified that he signed a
union card, talked with employees about the Union outside
Respondent's yard, and attended two or three union meet-
ings held from January through March, there was no
testimony that Respondent had any knowledge of his union
activities or membership. Without a showing of that knowl-
edge, the 8(a)(3) allegation must be dismissed. Furthermore,
No claim had been made that Respondent violated Sec. 8ta)(5) of the Act.
Wc'lhnan Idutrwms. Inc.. 222 NLRB 204 ( 1976).
' There is some question whether the layoff rof Rui took place on that dale.
Rene Anaya indicated that, February 2) being the Washilgto's irthday
holiday. Responldenl did not operate that day.
and equally important, the record is absolutely barren of any
showing that there was work for Ruiz to do. My understand-
ing of Moncevais' testimony was that if there was no work
for an employee to do, the employee would be sent home,
but if there were jobs to which the employee could be
assigned, he would be given those jobs. Without proof that
there were jobs for Ruiz to do while his roller was being
fixed, the "layoff of Ruiz did not violate the Act.
b. The layoff of Galvan
There is proof that Galvan was identified as a union
supporter, at least as of the date of the election, when he
acted as the Union's observer, and I discredit the testimony
of Respondent's witnesses who denied such knowledge. In
April, while Galvan was cleaning curbs at a jobsite near an
air force base, Moncevais told him at about 11:30 a.m. to
work until noon and to go home, because there was no more
work for him to do, and to report the following day at 8 a.m.
to see if there was any work available. The foregoing
constituted the full extent of Galvan's testimony. I assume
that Galvan was put to work the following day.
I have previously concluded that there must be some rule
of reason regarding Respondent's layoff policy, which, as I
have found, was that Respondent reassigned its employees
whenever there was work to send them to. Here, there is no
proof that there was anything for Galvan to do on that day
in April, and I cannot conclude, from these most barren
facts, that there was anything invidious about Galvan's
being sent home for a half day.
I. Anaya's Alleged More Onerous Working Conditions
and Le.ss Desirable Job and His Constructive Discharge
Rene Anaya was employed by Respondent in April 1977
and worked until a few weeks after the election, when he
quit as a result of his dissatisfaction with the work to which
he was being assigned-what General Counsel alleges to be a
constructive discharge.
Anaya testified on direct examination that he was active
in obtaining support for the Union, passing out cards and
talking with employees, but not in the presence of any
supervisors. In addition, on one day before the election, he
wore a button with the legend "Vote Teamsters," which,
Anaya testified, Ortiz saw at the Paul Young job, when he
came close and then shook his head. Ortiz denied that he
saw the button.
In February Anaya reported that there was a leak in the
815 compactor he was driving: as a result, he was initially
assigned to work as a laborer for the couple of days that the
roller was being fixed. Instead, he worked as a laborer for a
month, doing all kinds of "dirty work" while other employ-
ees drove the roller. Among his tasks were digging 200 holes
with Galvan for anywhere from 2 to 4 days" and planting
oleanders and running stakes to insure that the streets being
graded were level.
" General Counsel doe.s not complain, as he did about Anaya and Galvan,
ifia, that this reassignment constituted more onerous working conditions.
()On direct examinalioll, Anaya testified that he worked all entire week on
tI his job.
LEYENDECKER PAVING. INC
Dissatisfied with his assignment, Anaya went to see
Leyendecker to get his job back or, failing that, to quit.
When Leyendecker heard all of Anaya's complaint, he told
Anaya that he was doing a good job and that he awanted
Anaya to stay there. When Anaya pressed for a change of
duties.': Leyendecker accused Anaya of being lazy and told
him to draw unemployment. sit on his front porch. and
drink beer. Anaya then quit.
On cross-examination. Anaya's story changed in some
essential details. Rather than being a roller operator for all
of his employment, as he represented on his direct examina-
tion," Anaya had been assigned as a mechanic in the yard
for a week or more in December 1977. but apparently Anaya
did not have the skills he said he had, and he was reassigned
to the roller at the Paul Young job. Even before the leak
developed in the compactor, Anaya was doing engineering
work on the Highway 59 job." When the leak developed, he
was still operating a compactor (although apparently not the
same one), as well as running stakes in the first week of
February. On February 7 he spent a half day at the Paul
Young job rolling and the rest of the day and the following 2
days operating a roller at the Highway 59 job. Onl February
10 he was a flagman at that job, and part of the day he spent
setting stakes and operating a compactor. Anaya believed
that during the week of the election he was working at the
Highway 59 job, doing engineering work with the surveyors,
and spent some time running stakes. The day before the
election, he operated a roller at the Vista Hermosa job.
Anaya was, at best, not a candid witness. The information
to which he testified on cross-examination had to be pulled
from him and contrasts sharply with his liberal generaliza-
tions on his direct testimony that all that he was given after
the leak developed in the 815 compactor was laborer's work.
Obviously, Respondent was assigning Anaya to jobs in
accordance with its needs and Anaya's abilities." making
him a laborer, a flagman, a helper of the surveyors, and an
operator of different rollers. ' " These duties, which were
assigned to him weeks before Anaya allegedly wore his
union button.' create a grave question whether Respondent
was motivated in its assignment of Anaya because of his
union activities.
In this regard, I credit Ortiz' denial that he saw Anaya
wearing the button, for I am at best wary of Anaya's
credibility in this respect. Anaya testified that he was careful
not to talk about the Union when one of Respondent's
supervisors was nearby. Because Anaya was so wary,
conceding that he discussed the Union with other employees
only away from work, it seems improbable that he would
openly express his union preference by wearing a button
shortly before the election. I find that he did not, and I do
not credit his testimony. I would be remiss if I did not note
that all of the employees attempted to keep their union
activities secret from Respondent's supervisors and that only
': Anaya stated. however, that he did not ask Leyendecker to go hack to his
former position. Despite this clear testimony, it is equally clear that he wanted
to return to driving Respondent's equipment
In rebuttal, Anaya testified that he had operated a roller. off and on. fir 6
months. lie was initially employed in April 1977 The record. unfortunately.
is unclear concerning what he did during his first 4 months of employment
and what he meant by "iTff and on." It is clear hoevcer, that he did tasks
other than operating a roller and was not assigllcned o hat particular jlob.
' The engineering work apparently consisted of ,eting stakes fr the widths
of roads and their elev ations.
Anaya, of sonimec 1()3 enplovyees (anld 57 potenltial voters fior
the Ution). had tile nerie to opcnly express his preference.
Further. I ntolc that Ana;la as replaced on the X815
compactotr hb tlo emploccs (ne of wholll subsequlh centil'
quit). hoth of wilom % ere memniers f tile Unionll. 1 e
olh ious ql estion is If A1tlya's assignmlenCt t1 jos otther thiIan
the comnpac;or was so ollcrots anld diflicillt as to ca;llsc hin
to quit alld was made because lie as a rietiber of the
Ulnion. why II ould Rcspoidc tit assign two irlio adihereilts
to tle job frouti hich Anaa;; wits renmoved? Therle would he
more logic to Gieneral Counscl's case if Anaya were selected
because he was a member of the Unlion or active oil its behalf
and if others witholt tile same predliecationll vwere not
assigned to Anaya;'s iOrnler joh. That. however. is not tle
case.
I am a Iare f Moncevais' adnission thllt A:la as a
good worker atld a; good perator of rollers. MoliceCais wias
free with his praise -evervone, to him. as a good orker.
This is i stark conlr;ast to lo iland's desclription of Ani;a:
in particular. that lie was not doinig is joh otn the nmachies
It was obhvious also that hal particula;lrly annoyed Anal;ta.
said I1o) land, as that sltake running was dri iing himi
crazy, anld that 11; as the job he s;as trying to avoid. lowex er.
it was Respondent's function to assign Anaya work, a d I
see nothing ill the record which indicates that Anlaya's job
assignment was solely to operate rollers. Rather. he was
supposed to do the job assigned to hinm--whcther it hbe
operating equipment. helping engineers. settig stakes.
running stakes, or digging holes its a laborer. That lie did not
like one job to ashich he aas assigned. and that he quit
because of th;lt ;assignill nt. Is iot protected hi the Act and
does not add up to a coll ructli vc discharge under Section
8(a)(3) of the Act. and his assigncniet to different duties was
not calused h his union activities. oif which Responldent
knew nothing
J. Galin' A fllegd forc Oncrou lWorkitg Conditiont
cnd I.cL's Disiratle Jo/h
I. The Ibh) question
Respondent argues that the amerndmentl to the complaint
at the hearing alleging that Galvanl was gisen more onlerous
work because of his unlion acti itics should not have been
permitted. because it was barred by Section I(b) of the Act
and "cannot he said to relate back" to the complaint's
original allegationls. In R. J. Causev Coilstruction Co.. 241
NLRB 104() (1979). the Board adopted the following rule
articulated by the United States Court of Appeals for the
Second Circuit i N.:L.R.. v. Dinion Coil C(ompany. Ic..
201 F.2d 484. 491 (1952):
A nl)a adlll(It thaill hi, ahilllite a; aI operaitor oif sOlle equlipnltl. such
as a. scraper. %%ere Ilitted. li
t
e allo .ilnlilted iope·r;itillg a hackhie and ia loader
i' I making this ftildinig. I .im a are of konca us' tieollsleti testimiont
Ihat the reason for Aal;la's ranster as Iil ha he had a dispute with his
sr.uper.ir tio er. he tailli if tie eildence indlcarts no predisposition o
keep Anllaia prl;laicnll ;; ) froml operatinlg roller. ratiher. the eriphasi of
thie telinllony ai thllt AIna. ,is ilssigned 1o a lh lwhich apparentlt fll
satisfied Repolndenl's leeds In Mlncalls' solrds. sonlmebxd had to dii it
l.ceyldecker stalled Ihil sunic cploices perfirm the wlork of hoth
operalors of eqtUilpitll 111d laborers
3(
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) A complaint, as distinguished from a charge, need
not be filed and served within the six months, and may
therefore be amended after the six months. (2) If a
charge was filed and served within six months after the
violations alleged in the charge, the complaint (or
amended complaint), although filed after the six
months, may allege violations not alleged in the charge
if (a) they are closely related to the violations named in
the charge, and (b) [they] occurred within six months
before the filing of the charge.
The charge herein, to be sure, says nothing about "more
onerous" work. Indeed, it relates solely to Respondent's
alleged discrimination against "and/or" termination of 13
named employees, "among others," because of their union
activities. The 8(a)(1) violations are not detailed, but are
instead included under the blanket printed portion of the
charge, to wit: "By the above and other acts, the above-
named employer has interfered with, restrained, and coerced
employees in the exercise of the rights guaranteed in Section
7 of the Act."
Respondent has not questioned the propriety of the
allegations of the complaint concerning Anaya's being
assigned to more onerous work and the statement made to
an employee (Guerrero) that the reason Galvan was taken
off the water truck was because he started the Union and
was passing out union cards. The result of the statement
(which I have not credited) was that Galvan was assigned to
plant 200 oleanders, and he was subsequently joined on that
job by Anaya. Because the two foregoing allegations proper-
ly flowed from the charges, albeit in a most general way,
clearly the Galvan incident is closely related to those
"violations." Accordingly, I reject Respondent's contention
that the amendment adding paragraph 20 to the complaint is
barred by Section 10(b) of the Act.
2. The substance of the allegation
For reasons similar to those expressed in my discussion of
Anaya's claim, General Counsel has not made out his case
charging Respondent with assigning to Galvan more oner-
ous working conditions and a less desirable job. The
incidents alleged to be unfair labor practices occurred
several weeks before the election, and I am satisfied that
Respondent did not know of Galvan's union activities at that
time.
Galvan testified that in the last week of January or the
first week of February, Moncevais told Galvan to take his
truck to the yard, park it, and, if he wanted to continue to
work for Respondent, grab a shovel. Galvan reported to the
dispatcher, who showed him where to get a pick, insisted
that Galvan return his long-handled shovel in return for a
short-handled shovel, and assigned him and employee
Samuel Almanza to load oleander bushes in a pickup, take
them to a site where Respondent was building a new yard,
and plant them. Galvan worked there all week with
Almanza and one of his sons; one of the sons was later taken
off the job and was replaced by Anaya.
After Galvan and his fellow employees had planted 200
bushes (and dug 200 holes), Galvan was assigned to clean
out curbs, level the street that was being cut out, pick out
rocks off of the street, and clean off the dirt and gravel that
was left on the curb. Galvan also had to use his shovel to
make sure that the gravel base of the street would be level
with the curb after the asphalt was put on the street. In sum,
Galvan was a laborer and not a truckdriver, his previous
position.
Because of Respondent's refusal to cross-examine Galvan,
his testimony is unfortunately less than defined. It is unclear,
for example, how long Galvan continued as a laborer and if
he ever returned to driving a truck. Be that as it may, the
more onerous working conditions about which General
Counsel complains are directed to two facts: first, that
Galvan had to use a short-handled shovel, which he stated
created "bad strain," and, second, that he was assigned to
laborer's work.
It is difficult to assess the relative discomfort of using a
shovel with a 3-foot handle as opposed to one with the
longer, 4-5-foot handle. For those of us who are home
gardeners, the shorter shovel may be a staple. Whether,
when putting one's foot on the blade of a shovel, a body
must bend more or less than with a longer shovel is subject
to doubt. When lifting dirt, one does not hold on to the end
of a 5-foot handle, but grabs the handle much closer to the
blade. On the state of the record, it is impossible to hold, as a
matter of law, that Respondent's insistence that Galvan use
the shorter shovel constituted the imposition of a more
onerous working condition. General Counsel offered no
proof that Anaya and the Almanzas were using different
shovels, and I find it likely that they were also using the
short-handled shovels in light of Moncevais' testimony that
Respondent's supply of shovels consisted almost exclusively
of short-handled shovels. Finally, the General Counsel's case
is fatally flawed by his failure to prove that the dispatcher
who allegedly required Galvan to use a short-handled shovel
was a supervisor or agent of Respondent or acting pursuant
to the directives or desires of Respondent. In this posture,
Respondent is not responsible for the dispatcher's actions.
As to Galvan's being assigned to dig holes and to do
laborer's jobs, there is no doubt that Galvan was involved in
an accident involving his truck and that the front bumper
was damaged; there is a dispute as to whether the hitch was
also damaged. But there is no question that the blame for the
accident was fixed by the police upon Galvan, although he
seemed to argue at the hearing that he was not at fault. In
any event, subsequently, the truck needed repairs, or at least
it was laid up in the yard, and it was around that time that
Galvan was reassigned to work as a laborer. Howland
justified his transfer of Galvan by stating that he no longer
trusted Galvan's ability to drive. In addition, he testified that
Galvan was assigned primarily as a caliche or base truck
checker, which required him to check loads as they came in
on the Highway 59 job and to sign receipts, not a physically
demanding job. Galvan did not deny this, and I find that
Galvan attempted to maximize the difficulty of his job and
its less desirable aspects by emphasizing the digging of holes,
while omitting mention of some of the easier tasks he was
assigned to, which may have made the job more desirable. '
I conclude that Galvan was assigned not to a more
onerous and difficult job, but to a different job, as a result of
'" In this respect. there is a similarity between the testimonies of Galvan and
Anaya, the latter emphasizing that he was no longer assigned to work on a
40
LEYENDECKER PAVING, INC.
his traffic accident, and not because of his union activities.
There is a total lack of proof that Galvan was permanently
assigned to the duties of a truckdriver,. and I am satisfied,
on the basis of my credibility findings, based in part upon the
demeanor of the witnesses, that Howland had ample reason,
not based in any way upon Galvan's union membership or
activities, for assigning Galvan to different duties.
CONCLUSIONS OF LAW
I. Leyendecker Paving, Inc., is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
roller, the job he obviously preferred. However, on cross.examination, Anaya
conceded that after he was taken off the compactor, which required repairs,
he still was assigned to numerous driving jobs.
" His truck was subsequently driven by De Leon, a union member, and by
Moreno, who was not a union sympathizer.
'" In the event no exceptions are filed as provided by Sec. 102.46 of the
2. Brewery, Soft Drink, Grain, Flour, Candy, Industrial
and Allied Workers, Local Union No. 1110, affiliated with
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, is a labor organization
within the meaning of Section 2(5) of the Act.
3. Respondent did not engage in any of the unfair labor
practices alleged in the complaint.
Upon the entire record and upon the above Conclusions of
Law and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
ORDER'
The complaint is dismissed in its entirety.
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.
41