Maumee Stone Company, The

National Labor Relations Board - Board Decisions

Jan 25, 1982

259 N.L.R.B. 1168 (N.L.R.B. 1982)

1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Maumee Stone Company, Union Quarry Divi- was not an employee of Respondent when he was
sion and Ronald W. Taylor. Case 8-CA-13815 asked to leave the negotiation session is not an un-
usual circumstance sufficient to bar him from theJanuary 25, 1982
session, for he had been chosen, as the union ste-
DECISION AND ORDER ward, to represent the employees in bargaining.
Whether Respondent's actions were objectionable
BY MEMBERS FANNING, JENKINS, ANDBY MEMBERS FANNING, JENKINS, AND to others or had any adverse impact on the negoti-
ZIMMERMAN
ations is not the test; that was the Administrative
On April 15, 1981, Administrative Law Judge Law Judge's subjective reaction. The test is wheth-
Lewis F. Parker issued the attached Decision in er Respondent's conduct reasonably tends to inter-
this proceeding. Thereafter, the General Counsel fere with protected rights. We find here that it did
filed exceptions and a supporting brief, and Re- so, in violation of Section 8(a)(l) of the Act and
spondent filed an answering brief in support of the that a remedy is required.
Administrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the CONCLUSIONS OF LAW
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au- 1. Respondent Maumee Stone Company, Uniontional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel. Division, is an employer engaged in co
The Board has considered the record and the at- merce within the meaning of Section 2(6) and (7)
tached Decision in light of the exceptions and of the Act.
briefs and has decided to affirm the rulings, find- 2. The Union is a labor organization within the
ings,' and conclusions of the Administrative Law meaning of Section 2(5) of the Act.
Judge, as modified herein. 3. Respondent, by Paul Pruitt, violated Section
The Administrative Law Judge found that Re- 8(a)(l) of the Act by refusing to permit Ronald
spondent excluded Ronald Taylor, the elected ste- Taylor, a representative chosen by the employees
ward, from a collective-bargaining negotiation ses- for purposes of bargaining, to participate in collec-
sion. However, the Administrative Law Judge then tive-bargaining negotiations.
concluded that "an entry of an order with respect
to this violation" is not appropriate because "the THE REMEDY
union representative did not complain about Mr. Having ound that Respondent engaged in the
Taylor's exclusion and none of the hourly employ- t eunfair labor practice set forth above, we shall order
ees or the representative objected to negotating that it cease and desist therefrom and take certain
without Mr. Taylor."
The General Counsel excepts, contending that affirmative action to effectuate the policies of theThe General Counsel excepts, contending that Act
the Administrative Law Judge applied an improper c
test in determining whether Respondent's actions ORDER
violated the Act. We find merit in this exception.
Absent unusual circumstances, an employer cannot Pursuant to Section 10(c) of the National Labor
refuse to bargain with a person who represents a Relations Act, as amended, the National Labor Re-
labor organization. Booth Broadcasting Co., 223 lations Board hereby orders that the Respondent,
NLRB 867 (1976). The fact that Ronald Taylor Maumee Stone Company, Union Quarry Division,
Scott, Ohio, its officers, agents, successors, and as-
The Administrative Law Judge found that agents of Respondent an- signs shall
nounced to Respondent's employees that they saw no reason why the
employees would join a union because they would receive all the same 1. Cease and desist from:
benefits as Respondent's unionized employees. He further found that inas- (a) Insisting or demanding that a person selected
much as the statements were not made with the intent to discourage
union activity and did not have the effect of discouraging that activity, by the employees as a representative for bargaining
they were not unlawful. be excluded from participating in collective-bar-
The General Counsel excepts, contending the Administrative Law . .
Judge's credibility findings are erroneous and that he applied an improper gaining negotiations.
standard in reaching his conclusion. We agree that the Administrative (b) In any like or related manner interfering
Law Judge applied an erroneous standard, for the test is not whether Re-
spondent intended to discourage union activity or whether its conduct with, restraining, or coercing employees in the ex-
had that effect, but whether Respondent's conduct "reasonably tends to ercise of the rights guaranteed them by Section 7
interfere with the free exercise of employee rights under the Act." Hanes f th A
Hosiery. Inc., 219 NLRB 338 (1975). Although the Administrative Law of the Act.
Judge applied an inappropriate standard in determining whether the state- 2. Take the following affirmative action which is
ments violated Sec. 8(a)(l) of the Act, in the circumstances of this case, necessary to effectuate the licis f the A
including the nature of the statements and the nonexistence of union ac-ary e e e policies te Act
tivity at the time the statements were made, in our opinion, the agents'
comments did not constitute a promise of benefit.
259 NLRB No. 150
.

January 25, 1982 z3 lyz r i i i - i-i
By MEMBER. FANNING, JENKINS, ANDWhether espondent's actions ere objectionable , L i A A.iZIM„ „MA,
i it i
ti ri f, - s , in i lati f Section 8(a)(l) of the ct and
ri f i s rt f the that a re edy is required.
_ R M m e C
ti al r l ti s r as l t its a - IQarDvpindent Maumee Stone Company, Union
Q""^ r-
m e r c e w th n t h e
e c t .
,'
i nt ti i t l i t f t t i
l r' l i f t rl l - u l p s f a,, w
ti t
it t r. l r." affirmativ e a n t tuate the pakesceftahe
i t iv e action to effectuate the policies of the
t' ti s ORDER
t t t - , :

e efits as es e t's unionized e ployees. He further found that inas- (a) Insisting Or de anding that a person Selected
l f l i ll ti
.
egotiations.
t i r i is l si . e a ree t at the d inistrative (b) In a li e Or related anner interfering

t h , O
f l ri ts under the ct." Hones f th A t
. ). e c t.
l) nnlicip n rt:
- necssary to ffeCtUat te of he :

A
^""at've
THE MAUMEE STONE COMPANY 1169
(a) Post at its premises in Scott, Ohio, copies of DECISION
the attached notice marked "Appendix." 2 Copies of
said notice, on forms provided by the Regional Di- STATEMENT OF THE CASE
rector for Region 8, after being duly signed by an LEWIS F. PARKER, Administrative Law Judge: This
authorized representative, shall be posted as herein case was heard on February 4, 1981, in Van Wert, Ohio.
provided immediately upon receipt thereof, and be The complaint, which issued on June 30, 1980, and
so maintained for a period of 60 consecutive days which was amended at the hearing,' alleges that Re-
thereafter, in conspicuous places, including all spondent The Maumee Stone Company, Union Quarry
places where notices to employees are customarily Division, violated Section 8(a)(l) of the Act by: (1)
posted. Reasonable steps shall be taken by Re- promising, through its agents and supervisors, benefits to
its employees if they refrained from engaging in union
spondent to insure that said notices are not altered, activities; (2) prohibiting an employee from engaging in
defaced, or covered by any other material, protected union activity, and; (3) discharging or termi-
(b) Notify the Regional Director for Region 8, in nating the employment of Ronald Taylor, the Charging
writing, within 20 days from the date of this Order, Party, to discourage employees from engaging in pro-
what steps Respondent has taken to comply here- tected union activity. The complaint also alleges that Re-
with. spondent, by discharging Taylor, violated Section 8(a)(3)
of the Act.
2 In the event that this Order is enforced by a Judgment of a United Upon the entire record and from my observation of
States Court of Appeals, the words in the notice reading "Posted by the demeanor of the witnesses, and after consideration of
Order of the National Labor Relations Board" shall read "Posted Pursu-iled by the General Counsel and Respondent,
ant to a Judgment of the United States Court of Appeals Enforcing an b ,
Order of the National Labor Relations Board." I hereby make the following:
APPENDIX FINDINGS OF FACT
NOTICE To EMPLOYEES A. Commerce
POSTED BY ORDER OF THE Respondent admits that it is an employer engaged in
NATIONAL LABOR RELATIONS BOARD commerce within the meaning of Section 2(6) and (7) of
the Act.
An Agency of the United States Government the Act.
B. Background
The National Labor Relations Act gives em-
ployees the following rights: Union Quarry Company operated a quarry, an asphalt
plant, and a road construction business in Scott, Ohio,
To engage in self-organization for several years. Wiley Sauls was the owner of Union
To form, join, or assist any union Quarry. Bernie Fisher, an employee of Union Quarry
To bargain collectively through repre- since 1960, was its superintendent, and he now fills the
sentatives of their own choice same capacity for its successor, Maumee Stone. Vondale
Taylor was, prior to its takeover by Maumee Stone, gen-
To engage in activities together for the eral manager of Union Quarry.
purpose of collective bargaining or other Ronald W. Taylor, the Charging Party, had been, as
mutual aid or protection of the date of his last employment with the Company
To refrain from the exercise of any or all (November 24, 1979) an employee of Union Quarry for
such activities. 4-1/2 years. Until 1978, when he suffered a back injury
and was placed on medical leave, Ronald Taylor worked
WE WILL NOT insist or demand that any primarily in the quarry. On his return to the Company
person selected by the Union to be a member on June 4, 1979, Vondale Taylor told him he could not
of its bargaining committee not be present at return to his job because it was filled. After some discus-
or participate in bargaining negotiations. sion, Ronald Taylor was given a job at the asphalt plant.
WE WILL NOT in any like or related manner He stayed there until he was laid off on November 24,
interfere with our employees in the exercise of 19
In late December 1979, Maumee Stone purchased the
the rights guaranteed them by Section 7 of the quarry, its equipment, and buildings from Union Quarry.
Act. The asphalt plant was purchased by a company named
Oamco and Fred R. Creager & Sons purchased Union
THE MAUMEE STONE COMPANY, Quarry's road construction operation. After the takeover
UNION QUARRY DIVISION of Union Quarry, Vondale Taylor was hired by Fred R.
Upon motion by the General Counsel, I amended the third sentence
of par 2 of the complaint to read: "Annually, in the course and conduct
of its business, the Employer received goods valued in excess of $50,000
directly from points located outside the State of Ohio"
IS
f,
'
)(l) )
poste. Reaonabl ken posted. Reasonable steps shall be taken by Re- its plyee's ifthe rfS ^^^ Ì‚ ^ Ì‚ ^^in i
t i l ti iti ; ( ) r i iti l fr engaging in
. )
)
' s
l , t t t it , ft r c si erati of
l ti r s all read "Posted Pursu- ^ ^ ,. , iled by the General Counsel and Respondent,
t l f r i an th b
R

FINDINGS OF FACT
A C o m m e r c e
)
flip
o n Q u a r r y

... tatives c., .heir .wn .hir e .
sentatives of their own choice l r
i t t f r t eral anager of nion uarry.
. ,
,
i s.

t h e r e n t h e w a s l a id o f
79.
the rights guaranteed them by- Section 7 of the
I n
, t
the rights guaranteed

.
.
'
.
l ."
Cile
pf
'
fthe
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Creager & Sons. Sauls, the former owner, was retained Maumee Stone quarry. He arranged for a union repre-
as a consultant by Maumee Stone but Michael Uhl, the sentative to be at his house on the following Saturday;
treasurer of that company, denied that either Sauls or on that day, the whole quarry crew signed union cards.
Vondale Taylor had any authority on the day that it Ronald Taylor was not at this meeting.
began to operate the quarry to speak on behalf of On January 30, 1980, Vondale Taylor and Bernie
Maumee. Maumee Stone began operating the quarry on Fisher called two quarry employees, Brent Harris and
January 2, 1980. Leo Carrier, to a meeting at the quarry. Harris testified
i. The January 2 meeting that Taylor and Fisher said that they heard the employ-
ees were going union, that they did not have 100 percent
On January 2, a morning meeting of all employees of of the employees to sign union cards,and that if they
Maumee Stone was held at its new quarry.2 Vondale were going to be 100 percent, Rock (Ronald) and
Taylor addressed the employees and informed them of Connie Taylor would have to sign union cards. Fisher
the change of ownership. According to Routt, who at- also repeated his statement to other employees on the
tended this meeting, when one of the employees asked same day.
about a union, Vondale Taylor stated: "All the other On February 13, 1980, Ronald Taylor was invited to a
quarries is union and chances are that we would be union meeting at the Holiday Inn in Van Wert, Ohio. He
union, too, but he said he saw no reason why we'd want signed a union card at this meeting. On March 6, 1980, at
to go union, because we get the same as others." a union meeting in Scott, Ohio, the quarry employees
Later that same day Uhl of Maumee Stone was intro- present elected Ronald Taylor as steward. The next day
duced to the employees by Sauls who also discussed a he went to the quarry to pick up his wife's check and
union: ". . . he sees no reason why we'd want to go saw Vondale Taylor and Bernie Fisher:
union, because we'll get the same as what others get."
Another employee, Mace, corroborated Routt's de- Q. What, if anything, was said?
scription of the statements made by Vondale Taylor and A. Well, I was joking, I said, I see you got a new
Sauls. Mace believed that Sauls was speaking for the steward. And he said, Who? And I said, I'm your
new company. Uhl told the employees that no changes new steward. And he said No you won't ever be
new steward. And he said, No, you won't ever bewould be made for the time being and that the 10 quarry.
employees then working would be retained and paid themy steward He sa because youre on
same salary as before. He also said that he could not On March 10, 1980, Fisher telephoned Ronald Taylor
make any further commitments to them but that Maumee at home and told him that he should attend a Federal
Stone's president, Kirkby, would speak to the employees safety meeting which was to be held at the Auglaize
about a week later.Iabout a week later.nay KrbspktoteQuarry on April 8. On March 14, 1980, Fisher told
In mid-January, Kirkby spoke to the Union Quarryn mid-J , Kiry s e to t Uio Q Ronald Taylor to attend another safety meeting sched-
employees, told them that all Maumee Stone quarries uled for March 29 at the Union Quarry. Quarry employ-
were union and said that if they wanted to they could e d r r by Federal law to attend these meeting.
form a union. He asked them to choose two or three rep- ee s a re req u red b y F ed e ral w at t t ir esentatives and said that ngotitios o would begin ine Fisher testified that he decided to send Ronald Taylor toresentatives and said that negotiations would begin in the meetings in case he was hired.
about 2 weeks. The quarry employees contacted a repre- c a s e h e w a s h r e d
sentative of the International Union of Operating Engi- On March 28, 1980, Ronald Taylor went to the Union
neers. Two meetings took place, and in late January all Quarry offices after he was informed that there would be
active quarry employees signed union authorization a negotiating meeting at 10 a.m. He testified that shortly
cards. before 10 a.m.:
2. Ronald Taylor's status after his November 1979 . . . Fred, the union representative, come in. They
layoff all walked in the office. Fred walked right on by
me. I tailed in right behind him. I got about ten feet
Although Ronald Taylor had been laid off in Novem-inside the door
ber 1979, he continued to have some connection with the
quarry, for he went with his wife, Connie, to pick up her Q. And what, if anything, happened when you
check at the quarry office during the first few months of got ten feet inside the door?
1980. At one of these visits, Bill Snyder, the weigh A. Mr. Pruitt come over, put his hand on my
master, gave him a W-2 form to fill out. shoulder and asked me to leave without any further
On January 18, 1980, while Ronald Taylor at theexolanation
quarry, he asked Vondale Taylor and Bernie Fisher e
about the possibility of employment with the new cor-Q H e d d s a y m o r e th a n
pany. They answered that they did not buy the company . .
and that, "They didn't know nothing about it." s r
Sometime during January 1980, three Union Quarryeti e , Pruitt (Respondent's general manager) explained at the
employees visited Jack Smith, a union steward at another hearing that he asked Ronald Taylor to leave because he
hearing that he asked Ronald Taylor to leave because he
thought it would be inappropriate to sit down at a nego-'Maumee Stone hired all 10 employees who were working in the thoht it would be inappropriate to sit down at a neg
quarry as of that date. Ronald Taylor was not one of them, since he was tiating table and discuss wages and benefits of employees
on layoff. with someone who was not an employee.

i
, . i , t ti t t . i t tifi
1. The January 2 meeting
t h a t Taylor a n d Fisher said that they heard the e ploy-
, s~
.
.
l
ti
i i ' i , , t
ti r
i t l
t t l l l i '
i : _ ... r ' t t l i i :
' . t, if t i , i
ri ti f t t t t l l . ,
l . li t t l ki f t . , i '
. l t l t l t t s . , , ,,, * * r . . , * * , , . ., ,„
l e f r t ti i t t t rr m s a , b o -
i i
l r f r . l i t t l t , , i l l
f rt r it t t t t t t t t l i t t l tt l
t ' r i t, ir , l t t l t ti i t l t t l i
about a l t r. Quarry .
o 1i .j .. r. . --In mid. -January, Kiry spoke to the nion uarry al l r t tt t r f t
e ployees, t l t e t at all a ee t rri s f t n ar rr
r i i t t if t t t t l eul e d f o r M ar c h 2 9 rat h e U nl o n Q ry. Quarry employ-
f r a i . t t c s t r t r r - Fee sha r er r eq us r ed b y F ed e r a lce w to at tsend Rona Taytiort
r s t tiv s s i t t ti ti l i i Ft sh e r t es ti f i ed t h a t e d e c da ed t o se n d R o n a lddy.^ t o
r t h e m eet in gs *" "*^
t ti l ti M ar c h 8 , 19
80 R o n al T a lo r w nt t t i
t r ll o ic es af t er
w as i f r t t t r l
ti l i a ti ti ti ti rtl
* F e d , t h e
e. I t il i ri t i
l ee laid off in ove - inside the door.
rr i i i i , t i . t, if t i ,
ffi ri t first fe t s f got ten feet inside the door?
. t f t i it , ill r, t i . r. r itt r, t i
ll l
t explanation
rr , e as e l l r r i i r Q He d sa a
m- Q l d " l M y tb ^ r pleave
A os
' l .
ti i .ut n t
l i it it , i t t t P r ui t t ( R e s p o n d e n t s general manager) xplained at t
eari t t s l l r t l
ug
t
o-
fi
. .
F s h e r t h a t
t

i i '
-January, irkby
ath Union uar ,
add oend yl sst
d
,
11 k
.
THE MAUMEE STONE COMPANY 1171
Ronald Taylor left. Later, when the union representa- 2, 1980, was a consultant to that company. Vondale
tive came out of the meeting, Ronald Taylor said, "Hey, Taylor was not, according to Uhl, employed by Maumee
what's the story?" He said, "The company don't recog- Stone on that date, and denied that either Vondale
nize you as an employee, until you're an employee. I Taylor or Sauls had authority to speak for the Company
can't help you one bit." on that date, yet Fisher, the quarry supervisor, testified
Ronald Taylor then asked Pruitt, "Just where do I that until January 1981, Vondale Taylor was "over me"
stand with the company?" Pruitt said that he had no and he later canceled Ronald Taylor's Blue Cross policy
record of Ronald Taylor's seniority with the Company, on Vondale Taylor's orders. Uhl also conceded that em-
had never seen Ronald Taylor before that day, and asked ployees of the quarry had been in the habit of talking to
Ronald Taylor to explain what he had done before the Vondale Taylor for 10 years. Furthermore, he stated that
takeover. Pruitt told Ronald Taylor that he would be while Vondale Taylor was employed by the Creager
called if the quarry needed help that summer. Later that ompany "I'm not saying there wasn't some fow over
day, Bernie Fisher told Brent Harris to inform Ronald
daylor noti to attenld rthe safety meetinf. Althouh from before," the "before," I take it, referring to his job
Taylor not to attend the safety meetings. Although U
Bernie Fisher told him that some employees were a little with Uon Quarry.
upset about Ronald Taylor's exclusion from this meeting, After considering the evidence on this point, I reject
Pruitt testified that none of the hourly employees or the Uhl's conclusion that Sauls and Vondale Taylor had no
union representative objected to conducting negotiations authority to speak for Maumee Stone. They may not
without Ronald Taylor being present. In April 1980, have been directed to make the challenged statements,
Union Quarry and the Union signed a collective-bargain- but both of them had a past history of authority over the
ing agreement effective February 1, 1980, through Janu- employees of the quarry. Sauls was a consultant with the
ary 31, 1983. Ronald Taylor did not appear at union new company, and Vondale Taylor was employed by a
meetings to discuss the agreement, nor did he vote on company whose operations were apparently closely re-
ratification. lated to the quarry's operations. 3 Vondale Taylor also
took actions on behalf of the quarry after the takeover
3. Ronald Taylor's Blue Cross coverage which are consistent with the conclusion that he was still
Although he was laid off in November, Ronald Taylor acting as a de facto supervisor at Union Quarry. Finally,
used the last pay which he received from Union Quarry Uhl's failure to disavow the statements made by Sauls is
to pay $240 for Blue Cross coverage until February inconsistent with the claim that he spoke without author-
1981. At that time, although he was not on Maumee ity. See Cagle's Inc., 234 NLRB 1148, 1149 (1978), affd.
Stone's payroll, he received a new policy from Blue 588 F.2d 943 (5th Cir. 1979). In conclusion, I find that
Cross which was paid for by Maumee Stone. From that Sauls and Vondale Taylor spoke at the January 2 meet-
time until September 16, 1980, he received no bills for ing as agents of Respondent.
Blue Cross insurance. Uhl stated at the hearing that If this conclusion is incorrect, the statements made by
Ronald Taylor's Blue Cross coverage was mistakenly Sauls and Vondale Taylor are nevertheless imputable to
paid by Maumee Stone after February because Sauls Respondent because the quarry employees had reason to
gave him a list of road crew employees whose Blue believe that they spoke for the new owner. This belief,
Cross coverage should be continued even though they expressed by Mace at the hearing, was not unreasonable
had been laid off. Ronald Taylor's name was included in in light of Sauls' and Vondale Taylor's status, and the
that list. At the direction of Vondale Taylor, Fisher sent fact that Uhl, representing the new owner, accompanied
a letter to Ronald Taylor canceling his policy effective Sauls to the meeting. Moreover, the fact that Uhl never
October 10, 1980. disavowed Sauls' statement would indicate to the em-
Ronald Taylor testified that as far as he knew, management of Maumee
ployees that Sauls spoke for the management of MaumeeMaumee Stone had taken no action against any other Stone. royi Company, 210 NLRB 288, 294 (1974),
employees because of their union activities, and Routt af. 514 F.d 65 (h Ci 197 Contai
agreed that Maumee Stone did not do anything actively . 4 85 85 (197); E an Pelt. Inc.
to prevent the Union Quarry employees from having a dba Vn Pt Te T , NLRB 794, 798 (l978
union. Ronald Taylor has not been hired by Maumee
Stone, although a temporary employee was taken on in 2. The promise of benefits
November 1980.
According to the Board in American Telecommunica-
C. Legal Discussion tions Corporation, Electromechanical, 249 NLRB 1135,
1136 (1980), an employer's statement that "employees
. The authority of Wiley Sauls and Vondale would receive all the benefits of a union contract with-
'~~Taylor ~out a union was promise of benefits made for the purpose
Respondent denies that either Sauls or Vondale Taylor of coercing the employees into rejecting the Union."
were its agents or supervisors when they made the state-
ments which the General Counsel claims are illegal, but 3 See Budget Marketing. Inc., 241 NLRB 1108, fn. 1 (1979).
the evidence convinces me that their statements are bind- ' Dayton Food Fair Stores, Inc., 399 F.2d 153 (6th Cir. 1968). cited by
ing on Respondent. Respondent, is not inconsistent with this ruling, for there the court held
on the basis of a different factual situation that an employee did not have
Sauls was the former owner of Maumee Stone who, at just cause to believe that a supervisor's remarks were made on behalf of
the time he talked with the quarry employees on January the employer
,
,

l i til r
i l l ' l
l l ' i rit i t , l ' l
r i l
l l
t r. itt t l l l t t l l l
ll if t rr l t t r. t t t C , ' t i '
day, Bernie Fisher told Brent Harris to inform Ronald from before," the "before," I take it, referri t is j
w i p r
er ie is er t l i t at s e e l ees ere a little A nronsider . t. .
A f t e r ,
t l' s l i t t ls a ale a l r had no
t f r t . t
, h a v e b e e n i t t t ll state e ts,

. 3
.
,

,
l i ff. l l ' i l i ' '
t t list. t t ir ti f l l , i t ,
.
,
l ti
Maume Stne ad tken o ationagaist ny oher t t ti against any other C pay21NLB 8,29(97)
i ti , Sn B C t iner.
i ti l a 3 F2 5 15 r tine
i ., 2 N 851, 859 198 PE Van Pelt, I
l i
d / b l a V a n P e l t T ir e T r uc k s , 2
8 N L R B 794 , 79 8 ( 19 78 ) 4
l t l t i . i fit
. ,
1. The authority of Wiley, Sauls and Vondale1136 , ' t t t t t l
1. aylor l r i all t e efits f a i c tract ith-
out
" 9).
"o t res, y
t. t, , t t t lo n e

O W
l
nsideryn
h l '
NLRB , 859 975 Cr a I
-
iscussion oration, o e ical,
t
l e
t rit fylo l fi t
i
nt i i i t i li f l
f l i ti
f l r lf
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board reached this conclusion because American organization. Eskimo Radiator Mfg. Co., 243 NLRB 1127
Telecommunications' director of operations did not limit (1979). Although Ronald Taylor was not an employee of
his comments on benefits to "informing the . . . employ- Union Quarry when he was asked to leave the bargain-
ees that in the past Respondent had a practice of giving ing meeting, this is not an "unusual circumstance," for
the same benefits at all of its plants." Rather, his com- the quarry employees elected him as a union steward and
ments were interpreted as: were entitled to his representation at the meeting.
However, Respondent's violation of Section 8(a)(1),
l. conveying tohe message that any benefits which- while not strictly justifiable, is understandable. Pruitt
would accruole bato. i employees pursuant to subse- asked Ronald Taylor to leave the bargaining session be-
quent collective bargaining automatically would be appropriate to discussgranted to the Upland employees, and that these cause he did not feel that it was appropriate to discussgranted to the Upland employees, and that these
employees would receive such benefits whether or employee benefits with a nonemployee. Although Pruittemployees would receive such benefits whether or
not they also selected the Union as their bargaining was wrong as a matter of law, "the union representativenot they also selected the Union as their bargaining
representativ. Id. at did not complain about Mr. Taylor's exclusion and nonerepresentative. Id. at 1136. of the hourly employees or the representative objected
Respondent argues that the facts presented in this case to negotiating without Mr. Taylor." Thus, while Pruitt's
are far different from those in American Telecommunica- act was a violation of Section 8(a)(l) of the Act, it was
tions, supra, and claims that the statements made by Von- objectionable, apparently, only to Ronald Taylor, a non-
dale Taylor and Sauls amounted to nothing more than an employee, and it had no adverse effect on negotiations
argument that the quarry employees did not need a which, very shortly, resulted in the signing of a collec-
union, a claim which is lawful, citing Pearl Recycle tive-bargining agreement. Under these circumstances, I
Center, 237 NLRB 491, 494 (1978); Howard Johnson do not believe that the entry of an order with respect to
Company, 242 NLRB 386 (1979); and Gerry's Cash Mar- this violation is appropriate. See Bowling Corporation of
kets, Inc., Gerry's I.G.A., 238 NLRB 1141, 1153 (1978), in America, Inc. d/b/a Alganquin Bowling Center, Inc., and
all of which the Board agreed that statements to the Edgar Meyer, 170 NLRB 1768, 1770 (1968).
effect that union representation was unnecessary did not
violate Section 8(a)(l) of the Act. 4. The claim that Ronald Taylor was discharged
After considering the statements of Vondale Taylor because of his Union activity
and Sauls and the context in which they were made, I The General Counsel alleges that on March 28, 1980,
find that they were not promises of benefits made for the w
"purpose of coercing the employees into rejecting the p o U Ronald Taylor had stas as a
Union." American Telecommunications Corporation, supra. ployee and a status was unlaw y
e is no d t tt on J y 2, te e s laid off employee and that his status was unlawfully ter-There is no doubt that on January 2, the employees of .m a
the quarry were concerned about their jobs, but the a t e d a s a re su l t o f s u o n a c t e s
General Counsel insists that the challenged statements The General Counsel's burden in this case is to estab-
were made to discourage the formation of a union, not to lish that protected conduct was a "motivating factor" in
alleviate fears about future employment. The evidence Respondent's treatment of Ronald Taylor. Wright Line, A
presented by the General Counsel does not support this Division of Wright Line, Inc., 251 NLRB 1083 (1980).
argument. The purpose of the meetings on this day was The General Counsel claims that Ronald Taylor pos-
to reassure the quarry employees about their positions sessed "the status of a laid off employee with full recall
with the new company, not to discourage the formation rights." These rights were supposedly recognized by Re-
of a union by the promise of benefits, for unionization spondent or its agents through their treatment of Ronald
was discussed only after some employees asked questions Taylor after the takeover. These facts are discussed fully
about this subject. Indeed, it was only several weeks above, but they do not indicate that Respondent un-
later (and after Kirkby said that he did not oppose a equivocally recognized Ronald Taylor's "recall rights."
union) that the quarry employees began serious union ac- Ronald Taylor's Blue Cross coverage was continued, not
tivity. Considering the timing of the challenged state- because he was an employee, but because of a mistake.
ments, and the lack of substantial evidence of union ani- He was scheduled to attend safety meetings in case of a
mosity, I conclude that they were, at most, expressions recall, not because he was considered an employee with
of opinion that employees would be as well off without a an absolute right to be recalled. Thus, I cannot agree
union as with one, Gerry's, supra. The statements were with the General Counsel that the facts of this case "es-
not made with the intent of interfering with the forma- tablishes the Respondent considered Ron Taylor to pos-
tion of a union at the quarry. Furthermore, the state- sess employment status with recall rights from January 1
ments did not have such an effect, for a collective-bar- through March 28."
gainin agreement with the employees was signed only a However, I will assume for purposes of discussion that
few months after the allegedly intimidating statements the General Counsel's conclusion is correct, and that
were made. Ronald Taylor was entitled to be recalled if there was an
opening. Assuming this to be true, none of Respondent's
3. The refusal to permit Ronald Taylor topar3. Thice refusal to permit Ronald Taylor to actions with respect to Ronald Taylor unlawfully affect-
participate in a collective-bargaining meeting ed this status, for he was never told that he would not be
Absent unusual circumstances, an employer cannot rehired if there was an opening. Pruitt told him on
refuse to bargain with a person who represents a labor March 28 that he was not an employee, but specifically
.,
' ).

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w. c v yi the essage t t fit i il t t i tl j i i l i l . i
l ccru tobgn e ployeesautomatcally ouldb l i i i
t l ti r i i t tically l ^ cas he di no fee tha it r ri t t isc ss
, c h na sproprat to Pruss
emply e woud cei ht tr r * ri .. *
t °
representative. Id .at 1136.did '„, * '. r i
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t i ri ti i
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is fi f t
"puroseof oeringtheemplyee ino rjecingthe when Pruitt told Ronald Taylor that he was not an em-"purpose f r i t l y s into rejecting the^ ^^Unin."Ameica TeecomuncatonsCororaion sura. ployee of Union Quarry, Ronald Taylor had status as a , rpra. '. „ , 11 r ic1.
There is no doub hat anuar ,, he mployees of ,r **
r i j t
m in t s r su l t f hi s
u n io n ac t i t ie s .
r l l l
T h e G en er a l C o u n se l s u r d e n t h i c ase t o e st ab -

sh t h a t P i i f t i
l l l t
l l D
i vi s W r i ).

3- The refusal to permit Ronald Taylor to i i t , t'
l i l ^ lwlyafetpartcipae ina cllecive- rginin meeingactions ith respect to onald aylor unla fully affect-
ti t is stat s, for he as never told that he would not be
.
'. i .
THE MAUMEE STONE COMPANY 1173
advised Ronald Taylor that he would be considered for of his status as a union steward or because of unwilling-
any future opening at the quarry. ness to negotiate with the union, for Pruitt did negotiate
Despite this conclusion, I will further assume for the with the union representative on this day and thereafter.
sake of argument that Ronald Taylor's status as employ- These negotiations were apparently conducted without
ee with recall rights was terminated on March 28, 1980; rancor, and they resulted in an agreement. There is, fur-
however, after considering the arguments presented by thermore, no evidence that Respondent took any adverse
the General Counsel, I find that his status was not termi- action with respect to other employees who supported
nated because he was engaging in protected activity. In the Union.
reaching this conclusion I have considered those factors Considering all of the evidence presented by the Gen-
which the Board has in past cases looked to for assist- eral Counsel, I find that Pruitt's action on March 28,
ance in determining the "true, underlying motive" for a
discharge. W H. Scott dba Scott's Wood Products, 242 1980, was not prompted by Ronald Taylor's union activi-
ties or any desire to discourage union activities.NLRB 1193 (1979). These are: knowledge of union activ-
ity, antiunion bias, demonstrated unlawful hostility, andCONCLUSIONS OF LAW
the timing of the discharge, Jeffrey P. Jenks d/b/a Jenks
Cartage Company, 219 NLRB 368, 369 (1975); N.L.R.B. 1. Respondent Maumee Stone Company, Union
v. Dan River Mills, Incorporated, Alabama Division, 274 Quarry Division is an employer engaged in commerce
F.2d 381 (5th Cir. 1960). The validity of the reason for within the meaning of Section 2(6) and (7) of the Act.
the discharge must also be considered. Paramount Metal 2. The International Union of Operating Engineers,
& Finishing Co., Inc. and Paramount Plating Co.. Inc., 225 Local 18, AFL-CIO, has been, and is now, a labor orga-
NLRB 464 (1976). nization within the meaning of Section 2(5) of the Act.
Neither the management of Maumee Stone nor Pruitt 3. Respondent did not, by its agents and supervisors,
has any history of union bias; in fact, other Maumeehas any history of union bias; in fact, other Maumee promise benefits to employees if they refrained from en-
quarries are unionized. Before Pruitt excluded Ronald gaging in union activities.
Taylor from the bargaining session because he was notn i aoe a e b a h qa 4. Respondent, by its agent, Paul Pruitt, at its facilities,recognized as an employee, Kirkby had told the quarry
recognized as an employee hadtoldr fused to permit an elected union steward, who was notemployees that he did not oppose a union and it is, there- refused to an elected unon steward who was not
fore, not credible that Pruitt's action on March 28 was an employee, from participating in collective-bargaining
the result of union animus, or animus toward Ronald negotiations, thus prohibiting him from engaging in
Taylor because he knew of his status as the union union activity protected by Section 7 of the Act; never-
steward. theless, because of the circumstances described above,
The reason for Pruitt's action of March 28 is explain- the entry of an order with respect to this violation of
able as due to puzzlement over the reason for Ronald Section 8(a)(1) of the Act would serve no purpose.
Taylor's appearance at the bargaining session. Pruitt was 5. Respondent did not unlawfully discharge or termi-
concerned that a nonemployee was to bargain over em- nate the employment of Ronald Taylor on March 28,
ployee rights. His action was incorrect as a matter of 1980.
law, and Ronald Taylor should have been admitted to [Recommended Order for dismissal omitted from pub-
the bargaining session, but he was not excluded because lication.]
ar y,.ness

,

i r t t activity. In the Union.
r i t i l i I i r t f t r i ri ll f t i r nt d t -
i t r i t l t f r i t- r l l, I fi t t itt' ti ,
ance i t r i i t "tr , rl i ti f 1 w n o b Ronald Taylr' i v
discharge. . . cott d/b/a Scott's ood Products, 242 1teso a s t dsua unio n ayloris.
. ti
i , t t la f l hostility, and CONCLUSIONS OF LAW
.

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.
). i ti ( ) t t.
i i . t r
i t r f i i s; i f t, t r pnefits to employees if they refrained from en-
. i l i .
l i i i ~ n - - >ir rr
Taylrcfrognized the bargaing e eesn behaue t uasrryt . t, l i i ,
recognized as an e ployee, irkby had told the quarry reudtopmianlcednonswrwhwsntr e f u sed p""" 1 n d l r d , h o s t
i l ' ti
an rti ti r ini g
l l ti ti , t i iti i fr i in
u n o n ti i ti
t ri
th e f
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