Miller Material Co.

National Labor Relations Board - Board Decisions

Aug 21, 1979

244 N.L.R.B. 496 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Miller Materials Co. and Heavy Construction Labor-
ers Local No. 633 affiliated with Laborers Interna-
tional Union of North America, AFL-CIO and
Miller Materials Workers Association, Party to the
Contract. Case 17-- CA 8330
August 21, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
ANI) PENEI.()
On May 4, 1979, Administrative Law Judge David
L. Evans issued the attached Decision in this proceed-
ing. Thereafter, Respondent filed exceptions and a
supporting brief, and the General Counsel filed an
answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings.' and
conclusions of the Administrative aw Judge and to
adopt his recommended Order, as modified herein 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent, Miller
Materials Co., Kansas City, Missouri, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so modi-
fied:
I Respondent has excepted to the Administrative Law Judge's findings on
the basis that no violative conduct occurred within the 10tb) statute of limi-
tations period, We have carefully examined the record and find no basis for
reversing his findings. All operative events necessary for finding a violation
occurred within the 10(b) period. Other events occurring outside the 10(b)
period are clearly admissible, "when used as background or to shed light on
the true character of matters occurring within such period." Local Lodge No.
1424, International Association of Machinists,4 FL CIO /Brvan Manufactur-
ing Co.j v. N.L.R.B., 362 U.S. 411 (1960).
The Administrative Law Judge has recommended that a broad order
issue against Respondent. However, in accordance with our decision in
Hickmott Foods, Inc., 242 NLRB No. 177 (1979). in which it was decided
that unless a respondent has been shown to have a proclivity to violate the
Act, or has engaged in such egregious or widespread misconduct which dem-
onstrates a general disregard for employees' fundamental rights, a broad
order will not automatically be included. Therefore, we shall modify the
recommended Order and notice accordingly.
We also modify the Administrative Law Judge's notice to conform with
his recommended Order.
I. Substitute the following for paragraph (d):
"(d) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of their rights to self-organization. to form labor or-
ganizations, to bargain collectively through represen-
tatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to re-
frain from any or all such activities."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOICE To EMPI.OYIEES
POSTED) BY ORDER OF IHE
NATIONAL LABOR RLAII()ONS BOARI)
An Agency of the United States Government
WE IIL. NOT interfere in the formation or ad-
ministration of Miller Materials Workers Associ-
ation, or any other labor organization of our em-
ployees. or give support to such labor
organization.
WE WILL NO maintain in effect our existing
collective-bargaining agreement with Miller Ma-
terials Workers Association; however, present
benefits will not be disturbed.
WE WILL NOI give any other assistance or sup-
port to Miller Materials Workers Association.
WE WVIl.L NO[ in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization,
to join or assist Heavy Construction Laborers
Local No. 663 affiliated with Laborers Interna-
tional Union of North America, AFL CIO, or
any other labor organization, and to engage in
other concerted activities for the purposes of col-
lective bargaining or other mutual aid and/or
protection.
WE WILl. withdraw and withhold all recogni-
tion from Miller Materials Workers Association
as a bargaining representative of any of our em-
ployees unless and until the association has been
certified as such by the Board.
All of our employees are free to become or remain,
or refrain from becoming or remaining, members of
any labor organization.
MILLER MATERIALS Co.
DECISION
STATEMIENI 0F rHE (CASE
DAVID L. EVANS. Administrative Law Judge: This pro-
ceeding under Section 10(b) of the National Labor Rela-
244 NLRB No. 73
496
MILLER MATERIAL.S (CO.
tions Act. as amended (the Act), arises from charges filed
by Heavy Construction aborers l.ocal No. 633, affiliated
with aborers International Union of North America.
AFL CI ( therein alled the laborers). against Miller Mate-
rials Company (herein called Respondent), on May 25.
1978. Based thereon, the General Counsel of the National
Labor Relations Board issued a complaint on June 30.
1978. Respondent filed an answer denying the commission
of any unfair labor practices. The issues posted were heard
by me in Kansas City., Kansas, on October 30 and 31. 1978.
The ultimate issue in this case is whether Respondent has
interfered with the formation of a labor organization, in
violation of Section 8(a)(2) and (I) of the Act. The General
Counsel advances two theories of unlawful interferences by
Respondent. These theories are that Respondent unlawfully
assisted Miller Materials Workers Association (herein
called the association) by (1) recognizing the association
while there was outstanding a question concerning repre-
sentation and/or (2) offering its employees financial induce-
ments to form the association.
Upon the entire record, my observation of the witnesses,
and consideration of the arguments made at the hearing
and in the briefs submitted by the General Counsel and
Respondent which have been duly considered, I make the
following:'
FINDINGS OF FA( I
1. TlE BUSINESS OF RESP(ONDENT
The complaint alleges. Respondent admits, and I find
that Respondent is a Missouri corporation engaged in the
manufacture and sale of concrete blocks and other masonry
products in Kansas City, Missouri. where in the course and
conduct of said business, it annually purchases goods and
services valued in excess of $50,000 directly from sources
located outside the State of Missouri and is an employer
engaged in commerce within Section 2(6) and (7) of the
Act.
II. LABOR ORG;ANIZATION INVOLVEI)
The complaint alleges, Respondent admits, and I find
that the laborers and the association are and have been at
all times material herein labor organizations within the
meaning of Section 2(5) of the Act.
Iii. TIlE AI.I.EGED UNFAIR ABOR PRACTICES
A. Chronology and Credibility Resolutions
For several years prior to the events of this case, the
Union had represented Respondent's production and main-
tenance employees who were divided into four groupings:
block plant employees, forklift operators, panel plant em-
ployees, and mechanics. Respondent and the Union were
parties to successive collective-bargaining agreements, the
most recent of which was a 3-year agreement which expired
I Although the association was served with notice of this proceeding. there
was no appearance on its hehalf
on March 31, 1977. During the first week in April 1977. the
Union commenced an economic strike. and Respondent
commenced hiring permanent replacements. A deccrtiica-
tion petition was filed on May 9. Atter dismissal of a series
of blocking charges filed h the Utnion. an election pursuant
to a Stipulation for Certification UIpon onsenl Election
was conducted on August 30. The original tall! of the votes
was that of 26 eligible voters. 23 ballots were cast. 7 were
for the Union and 16 were challenged (15 bh the I'nion and
I b the Board agent conducting the election). The UInion
filed several objections. On December 28. the Regional Di-
rector issued his Report on Objections and Challenged Bal-
lots and Recommendations in which he recommended that
the Board overrule the Union's objections in their entirety:
sustain the challenge to I ballot: overrule the challenges to
15 ballots: order that said ballots be opened and counted at
a time, date, and place to he determined by him and that he
thereafter issue a revised tally of ballots and appropriate
certification. Due date for exceptions to the report, as stated
herein, was January 10, 1978. No exceptions were tiled and
on January 19. the Board adopted the recommendations of
the Regional Director. On January 24. a revised tally of
ballots was issued which was 7 votes for the Union and 15
against. A Certification of Results of the Election was is-
sued by the Regional Director on February 2.
As stated, the gravamen of the complaint is that Respon-
dent interfered in the formation of an employee committee.
the Miller Materials Workers Association. It is undisputed
that the first mention of an employee committee was at the
plant during an August 1977 employee meeting conducted
by undisputed supervisors of Respondent. namcly. Owner
Robert Patek. Business Manager Robert Head, and Plant
Manager Gene Yarborough. Head testified, and I find, that
after he explained the mechanics of the then forthcoming
election, some employees asked what would happen if the
Union won the decertification. According to lead he re-
plied that Respondent would bargain with the Union again,
but if the employees (each of whom had crossed the
Union's picket line) won, they would then decide if they
wanted an employee committee, another union, or no union
at all. While the testimony about the August meeting varies
in certain respects (indeed. Hlead denied the meeting oc-
curred on the first day of the hearing. but acknowledged it
on the second), it is undisputed that no employee had men-
tioned the possibility of establishing an employee commit-
tee before Head brought it up.
None of the production and maintenance employees re-
ceived wage increases while the election results were pend-
ing. Head testified that during fall 1977. employees individ-
ually approached him about the status of the ob jections and
challenges and the possibilities of raises. According to Head
in each case he replied that the representation case had not
been closed and that there could be no wage increases until
it was.
In November 1977, employee Jim Safley discussed the
possibility of forming an employee committee with at least
two other employees. Wayne Butler and Tom Maclntyre.
neither of whom testified. In December 1977. Satley ap-
proached Head in his office. According to Safley. he asked
about the status of the representation case and what it
497
DI).('ISIONS OF NATIONAL L.ABOR RELATIONS BOARI)
would take to "start the ball rolling" toward getting the
employees and management together for negotiations. Ac-
cording to both men, Ilead responded that the Regional
()ffice had not act'-d on the representation case and that
there could be no negotiations until the Board case was
resolved and that whether the employees formed their ovwn
organization or contacted an outside labor organization to
conduct negotiations was up to the employees.
During the first week in January 1978. after receipt of the
Regional [)irector's recommendations, Respondent con-
ducted another meeting of employees. Patek, ead, and
Yarborough represented Respondent. Hlead informed the
employees that the Regional )irector had issued his report
recommending that the objections and challenges to their
ballots be overruled. Sisco and Jim Safley (who were both
still employed at the time of the hearing), and former em-
ployee Oliver Bradley, testified that lHead added that it was
time for the employees to start thinking of whether they
wanted an employee committee or not. Head admitted that
he made the statement about the possibility of an employee
committee, but only in response to an employee question.
Sisco and Safley testified that Head told the employees that
Respondent had money for wage increases, but any wage
increases would have to be the subject of negotiations. Ex-
cept in a nonresponsive, convoluted answer which I dis-
credit. Head did not deny this remark. According to Brad-
ley, Yarborough added that if the employees formed a
committee, negotiations could commence immediately. but
if the employees chose an outside union, the negotiations
would not begin for one year as Respondent would not
recognize an outside union without an election and the
Board would not conduct another election for a year after
the date of the balloting. Sisco testified that Head said it
would be one year from the final tally before an outside
union could be brought in, but Sisco did not testify that
Head or Yarborough stated that Respondent would recog-
nize an employee committee any quicker. Head and Safley
testified that Head said only that Respondent would not be
compelled to recognize any labor organization, inside or
outside, for a year after the tally. Neither Safley nor Hlead
mentioned any statements by Yarborough. Employee Fred
Fulton (the only other employee to testify) was emploved
on the date of the speech, but was absent because of an
injury (although both Bradley and Head place him there).
Patek was present; neither he nor Head deny that Yarbor-
ough made the statement that a committee would be recog-
nized immediately. Yarborough did not testify;: he was not
employed by Respondent at the time of the hearing. but
there is no evidence that Respondent made any effort to
locate him and secure his attendance at the hearing. Al-
though not denied, the failure of corroboration on this
point compels me to conclude that Bradley was mistaken in
placing Yarborough's remarks in this meeting, rather than
the second January meeting, as discussed infra. Respondent
argues that Bradley should be discredited on all aspects of
his testimony because he had filed a Board charge against
Respondent regarding the fact that he was permanently laid
off on March 10, 1978. Bradley candidly admitted that he
thought his layoff was unfair as an employee junior to him
was retained. He testified that he withdrew the charge after
none of the remaining employees would come forth with
testimony on his behalf. Rather than detract from his credi-
bility, Bradley's testimony on cross-examination regarding
his charge enhanced it. Bradley withstood a strong cross-
examination on this point, as well as others, and at no point
did he reflect a disqualifying bias. Bradley had absolutely
nothing to gain by his testimony, and he evinced to vindic-
tiveness in giving his testimony.
During the course of the first January meeting one em-
ployee asked how they could go about forming a labor or-
ganization. As Head testified, he told them that "there
would have to be a request by a majority of' the employees
prior to us recognizing or being able to negotiate with any-
one ... I think that probably I made the statement that we
need there to be a petition or at least something that would
show a majority that we could check against the roster to
see if there was something signed, something written."
Safley and Ilead testified that after the meeting Safley
approached Head in his office and asked if there need be
any special form for the petition. Head told Safley that the
petition should give some sort of name to the committee
and indicate that the named organization was being desig-
nated as a collective-bargaining agent. At some point dur-
ing this second Safley-Head meeting (which Safley places at
January 4 or 5), Safley again asked about the possibility of
wage increases for the employees. It is undenied that Head
told Safley that any such wage increase would have to be
negotiated.
After the office meeting with Head, Safley composed a
petition which is dated January 10, 1978, which states: "We
the undersigned employees of Miller Materials Company
have elected to be represented by the Materials Workers.
with four representatives as our collective bargaining agents
'sicl." (Safley testified that the idea for four employee repre-
sentatives, one from each department, was his.) Safley
signed the petition and, alone, walked it around the plant
and secured the signatures of 15 other employees including
that of Sisco and Bradley. On January 10. Safley presented
the petition to Head who, after checking the payroll and
consulting with Patek. told Safley that a majority of the
employees had signed the petition and that Respondent was
then recognizing Miller Materials Workers Association, but
that negotiations could not commence until after the
Board's representation case had been closed.
During the week of January 24, employee Ted Fulton
returned to work from an absence caused by an injury. He
was informed by Safley that the employees had passed
around a petition to have a bargaining committee recog-
nized. After hearing this, Fulton approached Head and
stated that he did not believe the employees "could be sat-
isfied with just the Miller Materials Company as the Union
whatsoever. We would like to maybe contact other union
. . .possibly the Teamsters." (Respondent's truckdrivers
were then represented by a local of the Teamsters Union).
Head responded that contacting the Teamsters would do no
good as Respondent had already recognized the Miller Ma-
terials Workers Association.
On January 24. Head, Yarborough. and Patek conducted
another meeting of the employees. Head told the employees
that the revised tally of ballots showed that the laborers had
been defeated and that Respondent had recognized Miller
Materials Workers Association. According to Bradley,
498
MII.I.LlR 1MA1,FRIALS (()O.
Sisco. ulton. and Saflex. Yarborough added that he had
heard that the employees were considering contacting an
outside union. but that it would do no good as Respondent
had alreads recog::ized the association: that Respondent
would immediately bargain with the association. but that
bargaining with an outside union would not take place for
more than a ear after the balloting of August 30: that
Respondent had money fr wage increases and any delay
on the employees' part in commencing and completing ne-
gotiations was. in effect, the taking of money out of their
own pockets since there would be no wage increase until
the negotiations were started and finished.'
The employees' negotiation committee consisted of Brad-
ley. Sisco. Safley. and FEulton. There is no evidence that
Respondent participated in any way with the namling of
these employees as the negotiating committee members.
Negotiation meetings were conducted on January 30, Feb-
ruary I. 7. 9. and 16. and March 20. A contract was signed
on March 22. Neither the substance of the negotiations nor
the contract itself was placed in evidence, however. the
complaint alleges. and Respondent admits, that by its terms
the contract does not expire until January I. 1981.
B. Concluding Finings
Respondent used the strongest inducement available to it
to encourage formation of the employee committee:
Money. While there are variances regarding how the en-
couragement was articulated, by Head and Yarborough. to
Safley alone or to the group. there is really no dispute that
Respondent's two-fold message was: (1) no wage increases
without negotiations: (2) no negotiations for a year. with-
out formation of an employee committee. See. e.g.. Federal
Alarm. 230 NLRB 518 (1977). and A.rrosi Spcialities. Inc.,
177 NLRB 306 (1969). In both those cases simply suggest-
ing a committee and telling employees of the employer's
preferences for dealing with it was held to constitute en-
couragement which violated the Act's proscription against
interference in the formation of a labor organization. Here.
Respondent's message was closer to compulsion than en-
couragement. The employees had not received a wage in-
crease since before the petition was filed on May 9. 1977.
They were first told that there would be none while the
laborer's petition was pending. Then they were told that
although Respondent had money for raises, there would be
none until they formed a labor organization. I find that by
I fully recognize that the employees' testimony of Yarborough's remarks
is not completely congruent on all points made by Yarborough and that
Bradley had placed some of them in the first January meeting. However. this
finding represents a fair synthesis of the testimony of the employees who. I
believe, were honestly attempting to report their hest recollection. It s to he
specifically noted that the remark about the attempt to secure another union
is corroborated by Fulton's exchange with lead a few days before this meet-
ing. It is to be further noted that Head and Patek were present and neither
deny these remarks, and Yarborough was not produced by Respondent. even
though he was named in the complaint and no reason for not doing so was
advanced. Therefore. the remarks, individually or collectively, are undenied
(Head did testify that Yarhborough chastized the employees tbr procrastina-
tion in negotiating. but he places it in late March. That maN hase happened
also. However, since Bradley was terminated on March 10, and II is undis-
puted that he was present at the meeting described. it is obhvious that Head
and the employees were not testifying about the same meeting )
doing so Respondent interfered in the formation of the
Miller Materials Workers Association, a labor organization.
in violation of Section 8(a)(2) of the Act.'
('(( I SIONS 01 .A\\N
I. Miller Materials Company is an employer wi thin the
meaning of Section 2(2) of the Act engaged in commerce
and in operations afft'ecting commerce within the meaning
of Section 2(6) anid (7) of the Act.
2. Heav\ Construction Laborers Local No. 633. affiliated
with Laborers International nion of North America,
AF (' CIO. and Miller Materials Workers Association are
labor organizations within the meaning of Section 2(5) of
the Act.
3. By interfering with the formation of the Miller M\ateri-
als Workers Association. Respondent violated Section
8(a)(2) and I of the Act.
4. The aforesaid unfair labor practice is ain unfair labor
practice aff'ecting commerce , ithin the meaning of' Section
2(6) and (7) of the Act.
TiII RmI1)\
Having found that Respondent violated the statute, it is
recommended that it be ordered to cease and desist there-
from and take certain affirmative action designed to eftectu-
ate the policies of the Act. Having ound that Respondent
has interfered with the formation of Miller NMaterials Work-
ers Association, it will be recommnended that Respondent
cease giving effect to its contract with said labor organiza-
tion and that Respondent withdraw and withhold all recog-
nition from said labor organization as the collectisc-bar-
gaining representative oft' its production and maintenance
employees unless and until it is certified as such by the
Board.
Under the foregoing findings of tact. conclusions of' law.
and the entire record. and pursuant to Section 10(c) of the
Act. I hereby issue the following recommended:
ORDER'
The Respondent Miller Materials Company, Kansas
City. Missouri. its officers, agents. successors. and assigns
shall:
In v e of this finding and conclusion I need not pass upon the legal
issue presented by the General Counsel's alternate theory that by recogniz-
ing (but not bargaining ith) the association while a quesllon concerning
representation was pending (because the Board had not had an opportunity
to rule on any exceptions [although none were filedl because they were not
due until the close of business the ery das recognition was granted). Re-
spondent ran afoul of the principle iof Midw est Priping and Suppi Co.. Inc. 63
NLRB 1060 (1945). Nor need I pass upon Respondent's contention that this
case is controlled by an exception to the ,fidvesl Pping doctrine which was
announced in T/or Forge Dlusion, Gul/ & 14'esttrn ,tfanu/tlluring Co. 227
NLRB 696 (1977). which held that employers. at their peril. may continue
(but not extend initial) recognillon Io a ris3al labor organizatlon while obhjec-
lions to elections (but nol determinatlse challenges) are pending before the
Board.
4In the event no) exceptions, are led as prosided bh Sec. 102.46 of the
Rules and Regulatlons of the Nalinal L.abor Relalions Board tlhe findings.
conclusions. and recommended Order herein shall, as provided in Sec. 10248
of the Rules and Regulations be adopted hb the Boird and beciome its
findings. conclusions. and ()rder, and all objections thereti shall he deemed
waived lor all purpoises
499
I)I ('ISIONS O}f NA IIONAI. I.ABOR RELA IONS BOARI)
I. ('ease and desist from:
(a) Interfering in the formniation or administration of
Miller Materials Workers Association or anv other labor
organizaltion of' its employees or giving support to such la-
bor organization.
(hb) (iiving eflect to any terms agreed upon in collective
bargaining with Miller Materials Workers Association in-
cluding those contained in the contract signed on March 22.
1978. or any modification. extention, or renewal thereof:
provided. however that nothing in this Decision and Order
shall require the Respondent. Miller Materials Company. to
vary or abandon any wage or salary, hours, seniority. or
other substitive feature of its relations with its employees,
which it has established in the implementation of' such
agreed terms, or to prejudice the assertion by employees of
any rights they may have under those terms.
(c) Giving any other assistance or support to Miller Ma-
terials Workers Association.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to selfl
organization. to form labor organizations, to bargaining
collectively through representatives of their own choosing.
and to engage in other concerted activities for the purpose
of collective bargaining or other material aid or protection,
or to refrain rom any or all such activity.
2. Take the following affirmative action to effectuate the
policies of the Act:
(a) Withdraw and withhold all recognition from Miller
Materials Workers Association as the representative of Re-
spondent's employees for the purpose of dealing with Re-
spondent concerning grievances, labor disputes. wages
rates of pay. hours of employment. or other conditions of
employment unless and until said labor organization shall
have been certified as such representative by the Board.
(b) Post at its Kansas City, Missouri. plant copies of' the
attached notice marked "Appendix."' Copies of' the notice
on forms provided by the Regional i)irector of' Region 17.
after being duly signed by an authorized representative o'
Respondent. shall be posted by Respondent immediately
upon receipt thereof and be maintained for 60 consecutive
da-s thereafter. in conspicuous places. including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to ensure that the
notices are not altered. deftaced, or covered by an5 other
material.
(c) Notifty the Regional I)irector of Region 17. in writ-
ing, within 20 days from the date of' this Order, what steps
Respondent has taken to comply herewith.
In the event that this Order is eniirced by a Judgment of the t Iiled
States Court of Appeals, the words in the notice reading "Posted by ()rder of
the National Labor Relations BHard" shall read "tstcd Pursuant to Judg-
ment of the Ulnited States ourt of ppealls nltrclng an Order Ol the N-
tional Labor Relations Board."
500