Ohio Concrete Products Lancaster

National Labor Relations Board - Board Decisions

Sep 18, 1979

244 N.L.R.B. 1161 (N.L.R.B. 1979)

()110 ('ONCRF IF PROI)I'TS I NCASTER
Ohio Concrete Products-I.ancaster and L.aarencc E.
Young and lames L. Starkey. Cases (A 12957
and 9 CA 13012
September 18, 1979
Dr)ICISION AND ORDER
B' ('HA IRMAN I:ANNIN(; ANID lI:MBI RS )tNI I I
AND) TRtI SI)AI I
On June 19, 1979, Administrative Law Judge
James T. Youngblood issued the attached Decision in
this proceeding. Thereafter, counsel for 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 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 2 of the Administrative La Judge and to
adopt his recommended Order, as modified herein.
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. Ohio
Concrete Products-Lancaster, Lancaster. Ohio. its
I The General Counsel has excepted to certain credibhlity findings made b.
the Administrative Law Judge. It is the Bard's established policy not to
overrule an administrative law judge's resolulitons with respect ti crediblity
unless the clear preponderance of all of the relevant evidence ons inces us
that the resaolutions are incorrect Standard D Wall Productr In . 91
NLRB 544 (1950). enfd. 188 F.2d 362 (3d (ir 1951!. We have carefulls
examined the record and find no basis fIr reversing his findings.
However n his discussion of the testinmoiny oI emplosee Rogers, the Ad-
ministrative Law Judge inad'ertently states tha;t Rogers requested Respon-
dent's plant manager. Cras ford. to warn ralher than fire emplosees Starkey
and Young because "this tpe of conduct had been going on for a long time
and had not been tolerated," when it is cle.tr that Rogers told ('rass trd that
such conduct had been tlerated preslousl We herets correct this error.
which does not in ans was affect our deciion herein
In adopting the Administrative aw Judge's conclusion that Respon-
dent's discharge of employee Young did not violate Sec 8ta)(3) and ( I) of
the Act, we do not rely on his comment that, II Resplndent intenided to fire
Young for his union actisity, it would hasc dile so prior it, August 24. 1978
1 The Adminisfative L.aw Judge provlided in his recmnimended Order that
Respondent shall cease and desist from "[iln an5 other manner" infringing
upon employee rights guaranteed in Sec 7 iof the Act Ilrsoer. we have
considered this case in light tof the standards set i0rth n U. imtt FiOdli.
Inc.. 242 NI.RB 135 7 1979), and have cintcluded thai a broad remedial
order is nappropriate Inasmuch as it has not been shou n that Respondet
has shown a proclivity lo vioslate the Act ,l has engaged in such egregious or
widespread misconduct as to demonstrate a general disregard for the em-
ployees' fundamental slatutory rights. Accirdingl. sve shall mldif the rec-
ommended Order hby substituting the narrow inunctise language. "in anx
like or related manner"
officers agents. successors, and assigns shall take the
action set forth in the said recommended Order. as so
modified:
1. Substitute the foillowing for paragraph (f):
"(f) In any like or related manner interfering with.
restraining, or coercing employees in the exercise of
their rights guaranteed in Section 7 of the \ct."
2. Shbstitltt the attached notice tor that of the
Administrative lbaw Judge.
A. PP[N DIX
NoI I(. T EPI()YI IS
POSIIlI) BY ORDI)IR OF 1IlE
NAII()NAI LABOR REI.AIIONS BOARD
An Agency of the United States Government
W'l: \'VII. NOT interrogate our employees con-
cerning their union activities and sympathies and
the activities and sympathies of their fellow em-
ployees.
W': NWILl NOI threaten our employees with
plant closure because of their union activities.
NWE wl.l. Nol threaten to fire employees be-
cause of their union activities.
W\I: WNIL NOT promise our employees addi-
tional benefits if the3 do not select the Union as
their collective-bargaining representative.
Wl 'Vill. NOI' create the impression of surveil-
lance of our employees' union activities by tell-
ing employees that employees would be fired be-
cause of their union activities.
WF, WIL. N T in any like or related manner
interfere with, restrain. or coerce our employees
in the exercise of their rights guaranteed by Sec-
tion 7 of the Act.
OtIo CONC(REtI PRODU(CTS-LANCAS'ER
DECISION
S1 I l MEN 01 TIl CASE
JAMES 1 YOUN(;BI o1), Administrative Law Judge: This
matter was heard before me on February 27 and 28, 1979,
in Lancaster. Ohio. The consolidated complaint,' which is-
sued on October 30. 1978. alleges that Respondent engaged
in various acts and conduct in violation of Section 8(a)(1)
and that it discriminatoril) discharged Lawrence E. Young
in siolalin of Section 8(a)(3) of the Act. Respondent filed
James L. Starke)y. the Charging Party in Case 9-CA 13012. did not ap-
pear at the hearing and therefore did not testify. On the second day of the
hearing. ehruar 28, 1979. the General Counsel advised that the Region
had recelsed a request for withdrawal from Starkey. requested that I ap-
prose the withdrawal request, and also moved that the complaint in Case 9-
('A I l012 he dismissed These motions were granted. his Decision deals
onl' with the alleged 8(a) I) conduct and the discharge of Charging Party.
l.as rc!c I Young
244 NLRB No. 180
1161
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an answer to the complaint, admitting the jurisdictional al-
legations of the complaint: that the Teamsters Local 637,
International Brotherhood of Teamsters. Chauffeurs, Ware-
housemen and Helpers of America (herein the Union), is a
labor organization within the meaning of Section 2(5) of the
Act, but denied the commission of any unfair labor prac-
tices.2 All parties were represented at the hearing, and fol-
lowing the hearing the General Counsel filed a post-trial
brief. Respondent did not file a brief.
Upon the entire record, and upon my observation of the
witnesses and their demeanor, and after consideration of
the brief filed by the General Counsel, I make the follow-
ing:
FINDINGS OF FACT
Respondent, an Ohio corporation, is engaged in the
manufacturing of concrete blocks at its Lancaster, Ohio.
facility. Respondent admits, and I find, that Respondent is,
and has been, at all times material herein. an employer
within the meaning of Section 2(2) of the Act, engaged in
commerce and in operations affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
I. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
I1. THE UNFAIR LABOR PRACTICES
On July 1, 1978,7 Respondent purchased from Frank
Maddox (herein Maddox) the Ohio Concrete Products-
Lancaster block facility, which is involved in this proceed-
ing. Apparently, when it purchased the facility, Respondent
also accepted all the employees that then were working for
Maddox at the Lancaster block facility. Although Maddox
was supposed to inform its employees that Respondent had
purchased the facility, Maddox failed to do so. Thus, when
Respondent took control, the employees were very disgrun-
tled about the fact that the business had been sold without
their knowledge, and apparently some believed they were to
be discharged. Immediately upon taking over, Respondent
began cleaning up the premises and refurbishing certain
portions of the buildings, particularly the office building.
Around mid-July, the employees of Respondent began
considering a union at the Lancaster facility. At this time,
Kenneth Carpenter contacted the Union, and a union orga-
nizing campaign was underway at the facility in Lancaster.
Carpenter was the principal inside organizer for the Union.
He obtained authorization cards from the Union and, with
the assistance of Ed Rogers, passed out these cards at Re-
spondent's facility in Lancaster. Carpenter also discussed
the Union with many of the employees, including charging
party, Lawrence Young. Young, a new employee, having
been hired on July 5 by Plant Manager John Crawford
2 Additionally, in its answer, Respondent admitted that Larry Young,
president, John Crawford, plant manager, and Roger Moore, foreman, are
agents of Respondent and at all times matenal were acting on its behalf.
3 Unless otherwise specified. all dates refer to 1978.
agreed, as a laborer, to speak to other employees about the
Union. Young signed a union card and did, in fact, speak to
several employees about joining the Union. He also at-
tended at least one union meeting.
On July 28, a number of Respondent's employees met at
Mulligan's, a restaurant and saloon located near the Lan-
caster facility. Many of the employees ate their lunch at
Mulligan's and often frequented this place on their paydays
(where they could get their checks cashed). On this particu-
lar Friday, after cashing their paychecks, a number of the
employees began drinking beer and discussing the union
campaign. Present among these employees were Kenneth
Carpenter, the principal union organizer, and the dis-
patcher for Respondent, George Waits. Waits discussed
with Carpenter the fact that the men were attempting to
join and organize a union. On Saturday morning, July 29,
George Waits informed Plant Manager John Crawford that
the men were discussing the Union at Mulligan's Bar the
night before. Following this, Crawford went throughout the
plant and questioned a number of the employees about
their union sympathies and the sympathies of their fellow
employees. Crawford admitted this, and several witnesses,
including Carpenter, Ed Rogers, Albert Long, and Law-
rence Young, testified that they were, in fact, questioned by
Crawford on that morning about the Union.
Lawrence Young testified that on July 29, Crawford
asked him what he thought about the Union, and Young
informed him that he thought the Union was a very good
thing and that he was in favor of it. Young also stated that
he was upset about the fact that the men received a low
salary and no benefits and that he believed Respondent did
not care about the men because it was putting large sums of
money into renovation of the office facilities, but was doing
nothing to improve the men's welfare at the plant. Young
was adamant in arguing for better wages and benefits for
the employees of Respondent.
Employee Edward Rogers testified that on Saturday, July
29, he was working in the garage when John Crawford ap-
proached him and asked him how he felt about the Union
and what the men really wanted. Rogers stated that he told
Crawford that he wanted all he could get and a little bit
more, but he had no idea what the rest of the men wanted.
As Crawford admitted questioning employees about the
Union and the feelings of their fellow employees, I find that
Respondent did, in fact, in violation of Section 8(aXl) of
the Act, interrogate its employees as alleged in the com-
plaint.
Rogers further testified that later on that day he had oc-
casion to be in the office and had another conversation with
John Crawford. He stated that he overheard John Crawford
and an insurance salesman, John Louis, and Bob Gordon, a
foreman at the block plant, discussing the Union when he
walked into the office. He testified that he overheard Craw-
ford state that he would haul block out of the Zanesville
plant if the Union came in and closed the Lancaster facil-
ity.'
Crawford attempted to explain these statements to mean
Employee Albert Fox testified that on September 12, several days before
the election, he had a conversation with Planl Manager Crawford in which
Crawford informed him that "he'd shut the whole damn plant down and
write it off as a tax loss."
1162
OHIO ('ON('REt. PRO)IDUClS I.ANCASTER
only that he could haul block rom Zanesville if it became
necessary. and this had nothing to do with the Union be-
cause the two plants always interchanged personnel. I do
not accept this explanation and find that Respondent
clearly threatened plant closure i the employees avored
the Union. Thus. I conclude that Respondent violated Sec-
tion 8(a)(1) in this regard.
Having learned that the employees were contemplating a
union at the plant. ('rawford contacted Larry Young. the
ow ner and vice-president of Ohio Concrete. and a meeting
was arranged for Monday. July 31. with the employees at
the Lancaster facility. Larry Young admitted that he in-
formed the employees of the benefits that the employees
had at the other Ohio Concrete facilities, and while he did
not admit that he promised these benefits to these employ-
ees, it is clear that he was indicating to the employees that
somewhere down the road they would get the same benefits
as the employees at the other facilities. Several employees
testified that he did promise these benefits to the men if the
Union did not come in, and others only had received this
impression. Prior to discussing the various benefits at the
other facilities with the employees, Young informed them
how strongly he was opposed to unionization.
It is my conclusion that a discussion of the benefits of
another facility of Respondent during an organizational
campaign (whether Respondent promised benefits or not is
of no importance) where it is quite clear that the employees
could reasonably believe that they were being promised
benefits. Otherwise the discussion would have been com-
pletely useless. Additionally, I credit the testimony of the
employees over that of Young and conclude that they were,
in fact, promised these benefits and such a promise of the
benefits in this situation is a clear violation of Section
8(a)(1) of the Act, and I so find.
On August 3, 1978. the Union filed a representation peti-
tion with the National Labor Relations Board; on Septem-
ber 15, 1978. a representational election was held at the
Lancaster facility and on September 25. 1978. the Union
was certified as the collective-bargaining representative of
the employees at the Lancaster facility.
Fox further testified that around October 19. Foreman
Roger Moore informed him that there were three other
guys going to be fired because of the Union and he named
Mike Carpenter. Bob Reid, and Ed Rogers. Although
Moore denied this, I credit Fox.' This conduct clearly con-
stitutes a threat to discharge because of union activities.
and also creates an impression of surveillance by giving the
employees the impression that their union activities are un-
der surveillance, and I so find.
The complaint also alleges that on or about September
15. Respondent paid an employee to campaign among the
employees against the Union. The evidence to support this
allegation comes primarily from employee Albert Fox. who
testified that he did go among the employees and question
them concerning the Union and how they intended to vote.
Fox testified that he did this on his own. although at one
point he did inform John Crawford what he was doing. Fox
testified that one of the office girls. Mary Jo Kilbarger.
I Fox impressed me as a reliable witness, and his testimony had the ring of
truth.
came to him and asked him to go through the yard and
check how the men were going to vote. He said he did this.
and later John Crawford asked him if he had gone through
the ard and talked to the men. He informed Crawford that
he had. In myn view, this evidence is insufficient to establish
that Respondent paid an employee to canvass the other
employees to learn their union sympathies. and therefore I
shall recommend that this allegation of the complaint be
dismissed.
The Alleged Unlawful Discharge of Lawrence Young
Lawrence Young was hired as a laborer by John Craw-
ford on July 5. Within a few days. he was given a raise and
promoted to the job of truck driver. As one of his duties in
this capacity. Young would assist other employees in in-
stalling septic tanks, one of Respondent's products. On Au-
gust 22, Young was instructed to assist James StarkeN in
placing a septic tank in the ground at a construction site.
The record reflects that after several operations at Lancas-
ter. as well as Respondent's nearby Cedarville. Ohio. facil-
ity,. the men arrived at the job site in preparation for putting
the tank in the ground at approximately I p.m. The record
reflects that at approximately 3 p.m. they finished working
at the site and drove to a nearby local restaurant and bar
where they had their lunch. The record is quite clear that
Starkey and Young spent approximately I 1/2 to 2 hours
in the local bar and arrived back at the plant and clocked in
after 5 p.m. Young admitted that he had several beers while
he was at the bar, and Starkey was drinking cocktails. On
arriving at the plant, Young testified that he approached
John Crawford. who was then looking in the air at the
Company's helicopter, which was hovering over the
ground, and after laughing at the helicopter and the people
in it. Young informed Crawford that he would see him to-
morrow, and he left the plant. Young worked the next day
without incident. The following day. August 24. Young re-
ported to work as usual and worked until approximately 10
a.m., when Young and Starkey were instructed to go into
Crawford's office. There were several accounts of what took
place in Crawford's office, but the essential facts are that
Crawford told the men that he had reports that they had
been drinking on August 22. They were both informed that
they could either quit and receive a recommendation for
future employment or that they could be fired, in which
case they would not receive any recommendations. Ed Rog-
ers was present during this conversation. and he told the
employees that he believed they should not quit. Rogers
also requested Crawford to warn the men rather than firing
them because this type of conduct had been going on for a
long time and had not been tolerated.
The General Counsel contends and the complaint alleges
that Lawrence Young was discharged because of his union
activities and not because of the alleged reason given by
Respondent that he was drinking while on the job.
The record reflects. and the testimony of several wit-
nesses reveals, that no employee had ever been warned.
suspended, or discharged prior to Young for a drinking of-
fense. It is also clear from the record that prior to the take-
over by Respondent on July 1, the employees freely would
drink on the job. as well as on their lunch hour, and this
apparently was tolerated b the then owner. Maddox.
1163
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, the record reflects, and several witnesses testified,
that after the takeover by Respondent, Crawford informed
at least five or six employees that drinking would not be
tolerated. While there may have been some information
spread by Respondent to several of the employees that
drinking on the job would not be tolerated, it is clear that
there was no written work rules prohibiting employees from
drinking while on duty. Such rules were not promulgated
until October. At least one witness of the General Counsel
testified that he was in the presence of Lawrence Young
when John Crawford told him and several other employees
that drinking would not be tolerated on the job.
Respondent was acutely aware of the drinking problem
that existed at the facility prior to its takeover. And al-
though it did not post any rules prohibiting drinking during
working hours, it is quite clear from this record that it did
tell some of the employees that drinking on the job would
not be tolerated. Respondent had only been an occupant of
the Lancaster facility for less than 2 months, and much of
that time was spent in cleaning up the facility, with the
removal of trash, beer cans, and whiskey bottles from the
premises.
There is no doubt that Young took an inordinate length
of time for lunch on August 22 and that he was drinking on
the job along with his friend, Mr. Starkey. Respondent was
not aware of this at the time it occurred, but learned of this
through a contractor and one of the office girls. Upon learn-
ing that Young and Starkey were drinking on the job,
Crawford immediately called them into his office and gave
them an opportunity to quit, in which case he would give
them a recommendation, but informed them if they had to
be fired there would be no recommendation. The employees
selected to be fired.
There is no doubt that Young was a union sympathizer,
and Respondent was aware of this fact because Crawford
had, in fact, interrogated Young in this regard and learned
that his sympathies were for the Union. It is also true that
an employer has the right to discharge employees for cause,
and the fact that an employee is or was participating in a
union does not insulate him from discharge. It is my con-
clusion that Respondent discharged Young for the reason
stated and not because of his union activities. The Respon-
dent knew of Young's activities in mid-July and it is reason-
able to assume that if they intended to fire him for union
activity, Young would have been discharged prior to Au-
gust 24.
The fact that Respondent was opposed to the Union and
harbored some animus against the Union and its advocates,
does not justify a finding that Young was discharged for
union activities. Clearly, Young's activities on behalf of the
Union did not immunize him from discharge for cause. In
fact, Young's activities were very slight in that he signed a
union card, and testified that he had talked to two other
employees. While Young's discharge may seem harsh and
severe, I cannot conclude on the record before me that this
discipline was based on his union activities or that he was
disparately treated because of such activities. We must re-
member that Mr. Starkey also was discharged, and there is
nothing in this record to reflect whether Starkey was or was
not a union adherent. Although he did file a charge, that
charge was withdrawn during the hearing, and there was no
evidence taken on this part of the case. While the discharge
may give rise to some suspicion because of Respondent's
knowledge of Young's activities and the fact that Respon-
dent was not in favor of the Union and, in fact, had some
animus toward it, that in itself is insufficient to turn mere
surmise into a finding of an unfair labor practice.
Under the circumstances of this case, I must conclude
that the General Counsel has failed to establish that
Young's discharge violated Section 8(a)(3) of the Act.
11. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The unfair labor practices of Respondent set forth above,
occurring in connection with its operations, above, have a
close, intimate, and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
IV. THE REMEDY
As I have found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and that it take the following affirmative
actions which are necessary to effectuate the policies of the
Act. On the basis of the foregoing findings of fact, and upon
the entire record, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By interrogating employees, suggesting or giving em-
ployees the impression of surveillance of their union activi-
ties, by threatening employees with discharge and threaten-
ing that the plant may close down because of union
activities, and by promising employees additional benefits
in an effort to get them to not select the Union as their
collective-bargaining representative, Respondent has inter-
fered with, restrained, and coerced its employees in viola-
tion of Section 8(aX1) of the Act.
4. Respondent has not violated the Act in any manner
not specifically found herein.
5. The unfair labor practices found herein affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER6
The Respondent, Ohio Concrete Products-Lancaster,
Lancaster, Ohio, its officers, agents, successors, and assigns,
shall:
6 In the event no exceptions are filed, as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
1164
OHIO CONCRETE PRODUCTS- LANCASTER
1. Cease and desist from:
(a) Interrogating its employees concerning their union
activities and sympathies and the activities and sympathies
of their fellow employees.
(b) Threatening employees with plant closure because of
their union activities.
(c) Threatening to fire certain employees because of their
union activities.
(d) Promising their employees additional benefits it they
did not select the Union as their collective-bargaining rep-
resentative.
(e) Creating the impression of surveillance of Respon-
dent's employees' union activities by telling employees that
they would be fired because of their union activities.
(f) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights guaran-
teed by Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Post at its Lancaster facility the attached notice
marked "Appendix."' Copies of said notice, on forms pro-
vided by the Regional Director for Region 9, after being
duly signed by Respondent's representative, shall be posted
by Respondent immediately upon receipt thereof. and be
maintained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees customarily are posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 9. 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 enforced bh a Judgment of a United States
Court of Appeals. the words in the notice reading "Posted bh order ,I the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enfoircing an rder of the National
Labor Relations Board."
;: U.S. Government Printing Office: 1981-295-717/502
1 165