Pioneer Conrete Co.

National Labor Relations Board - Board Decisions

Jan 14, 1987

282 N.L.R.B. 749 (N.L.R.B. 1987)

PIONEER CONCRETE CO. 749
Cousani Company , Inc. d/b/a Pioneer Concrete' `Co.
and General Truck Drivers , Warehousemen and
Helpers Union , Local No. 624, Marin and
.Sonoma Counties, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Help-
ers of America . Cases 20-CA-19854 and 20-
RC-15902
14 January 1987
DECISION , ORDER, AND
CERTIFICATION OF
REPRESENTATIVE
By CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 30 October 1986 Administrative Law Judge
Roger B. Holmes issued the attached decision. The
Charging Party filed exceptions and a supporting
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions' and brief and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended, Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Consani
Company, Inc. d/b/a Pioneer Concrete Co., Santa
Rosa, California, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
CERTIFICATION OF
REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid bal-
lots have been cast for the General Truck Drivers,
Warehousemen and Helpers Union, Local No. 624,
Marin and Sonoma, Counties, International Brother=
hood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, and that it is the exclusive col-
lective-bargaining representative of the employees
in the following appropriate unit:
All full-time and regular part-time ready-mix
drivers, bulk drivers, end dump drivers, and
mechanics; excluding yard boys, batch per-
sons, confidential employees, office clericals,
guards, and supervisors as defined in the Act.
1 The Charging Party excepts only to the judge's finding that Craig
Bloom is a supervisor within the meaning of the Act.
Paula J. Paley, Esq., for the General Counsel.
Jay G. Putnam, Esq., of Santa Rosa, California, for the
Respondent-Employer.
282 NLRB No. 109
David A. Rosenfeld, Esq. (Van Bourg, Weinberg, Roger &
Rosenfeld), of San Francisco, California, for the Charg-
ing Party-Petitioner.
DECISION'
STATEMENT OF THE CASE
ROGER B . HOLMES,` Administrative Law Judge. The
Charging Party, General Truck Drivers, Warehousemen
and Helpers Union, Local No. 624, Marin and Sonoma
Counties, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America (the
Union), filed the unfair labor practice charge in Case 20-
CA-19854 on 22 August 1985.
The Regional Director for Region 20 of the National
Labor Relations Board, who was acting on behalf of the
General Counsel, issued the complaint in this proceeding
on 4 October 1985. The General Counsel alleged that the
Respondent, Consani Company, Inc. d/b/a Pioneer Con-
crete Co. (the Respondent or the Employer), had en-
gaged in unfair labor practices within the meaning of
Section 8 (a)(1) of the Act. The General Counsel was
permitted to amend her complaint allegations during the
case-in-chief and towards the end of the first day of the
hearing.
The Respondent filed an answer to the General Coun-
sel's complaint and denied that it had engaged in the al-
leged unfair labor practices. The Respondent also amend-
ed its answer to deny the General Counsel's complaint
amendments made at the hearing.
The Union filed the representation petition in Case 20-
RC-15902 on 24 May 1985. The Union and'the Employ-
er signed a Stipulation for Certification Upon Consent
Election, which was approved by the Regional Director
on 18 June 1985. In order to be eligible to vote, unit em-
ployees had to be employed by the Employer during the
payroll period ending on Friday, 14 June 1985.
An election by secret ballot was conducted between 3
and 4 p.m. on 8 August 1985 among employees in the,
unit described below:
All full-time and regular part-time ready-mix driv-
ers, bulk drivers, end dump drivers, and mechanics;
excluding- yard boys, batch persons, confidential
employees, office clericals, guards, and supervisors
as defined in the Act.
The tally of ballots disclosed that four employees cast
votes for the union, and that three employees cast votes
against union representation. There were four challenged
ballots. On 15 August 1985 the Union filed objections to
conduct of election and/or to conduct affecting the out-
come of an election.
On 18 October 1985 the Regional Director issued a
Report on Objections and Challenged Ballots, order con-
solidating cases and, notice of hearing. The Regional Di-
rector recommended to the Board that the Union's Ob-
jections 2, 3, 6, 7, and 8 and the issues involving the
challenged ballot of Mark Allmon be consolidated for
hearing with the complaint in Case 20-CA-19854. The
Regional Director recommended that the Union's Objec-
tions 1, 4, and 5 be overruled; that the challenges to the
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ballots of Rocky Flowers and Robert Johnson be sus-
tained; and that the challenge to the ballot of Craig
Bloom be overruled.
On 23 December 1985 the Board in Washington, D.C.,
issued a Decision and Direction in Case 20-RC-15902 in
which the Board adopted the Regional Director's find-
ings and recommendations except that the Board found
that the challenged ballot of Craig Bloom raised issues of
fact that may best be resolved by a hearing.'
On 31 December 1985 the Regional Director issued an
Amendment to Report on Objections and Challenged
Ballots , order, consolidating cases and notice of hearing
in which the issues regarding the challenged ballot of
Craig Bloom were referred for hearing in this proceed-
ing.
I heard the evidence in this consolidated proceeding
on 4 March 1986 and 29 , and 30 April 1986 at Santa
Rosa, California. The attorney for the Charging Party
made a closing argument on the record at the hearing.
The General Counsel and the attorney for the Respond-
ent filed posthearing briefs by the due date of 21 July
1986. On 28 July 1986 the General Counsel filed a
motion to strike a certain portion of the posthearing brief
filed by the attorney for the Respondent. On 31 July
1986 I issued an Order to Show Cause why the General
Counsel's Motion to Strike should not be granted. The
attorney for the Respondent did not object to the grant-
ing of the General Counsel's motion. Accordingly, on 11
August 1986 I issued an Order that granted the General
Counsel's motion.
FINDINGS OF FACT
1. JURISDICTION
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Evidence
The Respondent first met on 22 May 1985 with
Donald B. Azevedo, the union president. The meeting
took place at Papa Vito's pizza parlor. As a result of his
meeting with the employees, Azevedo authorized Patrick
C. McLaughlin, a union ,organizer , to send a letter to the
Employer.
General Counsel's Exhibit 3 is a copy of the letter that
McLaughlin addressed to Robert Consani, the owner of
the Employer. The letter is dated 23 May 1985 . In sum-
mary, General Counsel's Exhibit 3 stated that the Union
represented a majority of the Employer's truckdriver
employees, and that the Union was prepared to prove its
majority status by submitting signed authorization cards
to a mutually selected impartial person, General Coun-
sel's Exhibit 3 also requested that the Employer enter
into negotiations with the Union with regard to wages,
hours, and other terms and conditions of employment.
General Counsel's Exhibit 3 further asserted that no
other person or organization represented a majority of
the Employer's employees at that time and cautioned the
Employer against entering into any contract or renewing
any contract with any other person or organization.
General Counsel's Exhibit 3 indicated that the letter was
sent by certified mail. General Counsel's Exhibit 4 is a
copy of a Postal Service return receipt card, which indi-
cates that the date of delivery of the letter was 24 May
1985.2
As indicated in the statement of the case section of this
decision, the representation petition in Case 20-RC-
15902 was filed on 24 May 1985.
The Respondent is engaged in both the retail and non-
retail sale and delivery of ready-mix concrete. The Re-
spondent has an office and place of business in Santa
Rosa, California.
During the 12 months preceding 31 May 1985, the Re-
spondent had gross revenues in excess of $500,000, and
sold and shipped products, goods, and materials valued
in excess of $50,000 to other enterprises located within
the State of California that are engaged directly in inter-
state commerce.
Based on the pleadings and the evidence presented in
this proceeding, I find that the Respondent has been at
all times material an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
II. LABOR ORGANIZATION
Based on the pleadings and the evidence presented in
this proceeding , I fmd that the Union has been at all
times material a labor organization within the meaning of
Section 2(5) of the Act.
' The Board's panel consisted of Chairman Dotson and Members Jo-
hansen and Babson. The Decision and Direction was not published in the
Board 's bound volumes.
B. The Allegations Pertaining to Robert Consani
1. Allegations
The General Counsel alleged the following conduct in
paragraphs 6 and 8 of her complaint, as amended, as
being violations of Section 8(a)(1) of the Act:
6. Beginning about 22 May 1985, and ending
about 8 August 1985, Respondent, acting through
Robert Consani, at Respondent's facility:
(a) threatened to close Respondent's facility if the
employees selected the union as their bargaining
agent.
(b) informed its employees that it would be futile
for them to select the union as their bargaining rep-
resentative.
8. In or about late May 1985, Respondent, acting
through Robert Consani, at Respondent's facility:
(a) interrogated its employees regarding their
union membership, activities, and sympathies and
the union membership, activities, and sympathies of
their fellow employees.
2 The foregoing is based on a credited portion of the testimony of Aze-
vedo and documentary evidence
PIONEER CONCRETE CO.
(b) informed its employees that it would be futile
for them to select the union as their bargaining rep-
resentative.
(c) threatened to close Respondent 's facility if the
employees selected the union as their bargaining
agent.
2. Facts
Ernest Moore was employed as a ready -mix truckdriv-
er for the Employer from sometime during the summer
of 1983 until sometime in September 1985. At the hear-
ing, Moore related two conversations that he had with
the owner of the Employer, Robert Consani.
Moore did not recall the specific dates of his two con-
versations with Consani. Moore believed the first con-
versation took place a few days after the first union
meeting among the Employees of the employer. He had
been told that a union meeting was scheduled to be held.
He believed he had been told that in May 1985, and he
said it was after Moore had begun reporting to Jerry
Griffith .3 Moore did not attend the union meeting, but
Moore was told by some of the Employer 's drivers that
the union meeting had been held.
The first conversation regarding the Union between
Moore and Consani took place in the Employer 's yard.
Moore had just driven his truck into the yard, and he
was waiting in the truck to gel , a load of concrete. Con-
sani approached the truck . No one else was present
during their conversation . Consani asked Moore if
Moore had heard about the union meeting. Moore re-
plied that he had heard about it . Consani then asked if
Moore had gone to the meeting. Moore replied no. Con-
sani next asked if Moore knew who was instigating this.
Moore replied that he thought it was Tim, and that
Moore had some cards in the glove compartment that
Tim had given to him . Moore then reached into the
glove compartment of the truck , and Moore showed the
cards to Consani . Consani -then asked Moore if Moore
had passed out any of them . Moore replied no, and that
he was not going to do so. Consani next asked if any-
body had signed them . Moore replied no. Consani, then
told Moore that it had cost Consani $30 ,000 to get the
Union out . Consani pointed , towards the Company 's gate.
Consani told Moore that they were "crazy as hell" if
they thought they were going to get the Union back in,
and that Consani would close Lhat gate before that hap-
pened.
Moore said that his conversation with Consani ended
when another truck drove into the yard. Moore ob-
served that Consani then went over to talk to the other
truckdriver.
When Moore had his first conversation with Consani,
Moore was not wearing a union button or pin on his
coat . He was not wearing any insignia of any kind such
as a union T-shirt , union helmet, or union hat . Moore did
not have a union bumper sticker , a "vote yes" sticker, or
any kind of sticker on his personal car. However, when
Moore was hired by the Employer during the summer of
s Griffith testified that he had become general manager of the Employ-
er on 5 May 1985.
751
1983; Moore had informed the Employer that he was a
member of the Teamsters Union on withdrawal.
The second , conversation between Moore and Consani
occurred in July 1985 .,Consani had put up a poster re-
garding the representation election. Moore asked Con-
sani what the poster was. Consani replied that Moore
had to vote , and that was it. No one else was present
during that conversation . Moore did not have any dis-
cussion about the Union with Consani after that conver-
sation in July.
The findings of fact in the foregoing paragraphs in this
section are based on a composite of the credited portions
of the testimony given by Moore . Consani did not testi-
fy. Thus, Moore 's testimony regarding the above matters
was not contradicted by the testimony of any other wit-
ness. In making credibility resolutions throughout this
decision, I have relied primarily on the demeanor of the
witnesses as they gave their testimony at the hearing. I
have considered the perception, the memory , and the
ability of the witnesses to relate past events on the wit-
ness stand.
In addition , I have considered the matters brought out
on the record by the attorneys for the three parties. For
example, Moore had, been fired by the Employer. After
Moore was fired by the Employer , Moore contacted
Griffith about three times to ask Griffith what the story
was. Moore's first conversation with Griffith regarding
Moore's being fired was the next evening after Moore
had been fired . Moore did not recall at the hearing when
that had occurred , but he estimated that it occurred in
mid-September 1985 . Moore telephoned Griffith. Moore
asked Griffith if there was any work. Griffith replied
that there was no work for Moore . Moore replied that
he would call. Griffith the, next day. Griffith said all
right.
The next afternoon Moore telephoned Griffith once
again. Griffith told Moore that he did not think that
Moore could work for the Employer any more because
Consani was mad. Griffith said that Consani was mad be-
cause the back-end of Moore 's truck was - dirty. Moore
then told Griffith that Consani should not be mad about
that because Moore had just paid the yard boy $5 to
wash it. Moore acknowledged at the hearing that he be-
lieved that the truck had been dirty.
The following day Moore again telephoned Griffith.
Griffith told Moore in that conversation that Griffith did
not believe that Moore could work for the Employer
anymore because Moore was uninsurable . Griffith told
Moore that he had a letter from an, insurance agent who
had stated that Moore was , uninsurable. When Moore
came in to the Employer's office the next day, Moore
got a copy of that letter and his paycheck. Moore then
left the Employer's office . Moore identified the attach-
ment marked as Exhibit A to his prehearing affidavit,
Respondent's Exhibit 2, as being a copy of the letter
dated 10 August 1985 that had been given to him. As a
result of the foregoing, Moore began to operate a board-
and-care home where he lived.
Moore's two prehearing affidavits were introduced
into evidence as Respondent 's Exhibits 2 and 3. I have
considered those documents, but I conclude that they do
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not impeach Moore's otherwise believable testimony. I
consider the differences to be minor and not truly signifi-
cant.
Craig Bloom is one of the voters whose ballot was
challenged at the representation election. The issues per-
taining to a resolution of his eligibility to vote in the
election will be discussed in section V,B of this decision.
As will be indicated in that section, I have concluded
that Bloom was a supervisor within the meaning of the
Act at the times relevant herein. Thus, I would have to
consider any statements regarding the Union made by
Consani solely to Bloom and not in the presence of em-
ployees in light of the fact that I have found Bloom to
be a supervisor. However, based on the criteria for re-
solving credibility summarized above with regard to
Moore's testimony, I find that I cannot base any findings
of fact on Bloom's accounts of his conversations with
Consani. His perception, memory, and ability to relate
those conversations on the witness stand were not reli-
able. Although Bloom guessed that he had four to six
conversations with Consani regarding the Union, he also
acknowledged that he could have had a dozen such con-
versations because he did not remember. Bloom ac-
knowledged at the hearing that he could not state with
certainty what month any of those conversations with
Consani had taken place. Linking the date of his first
conversation with Consani to the union meeting was not
helpful because Bloom did not know when that union
meeting had been held. He said it could have been in
May or June, but he said he did not know. In response
to the question of whether the union meeting could have
been in April, Bloom replied: "It could have been yester-
day. I don't know." When he was asked again whether
the meeting could have been in April, Bloom testified,
"Sure." He also acknowledged at the hearing that he
could not state with certainty that no one else was
present during any of his conversations with Consani.
Bloom further acknowledged at the hearing that he
could not recall the contents of his conversations with
Consani separately, but instead he could only recall "bits
and pieces" of some of the conversations. Some facts
were elicited from him by the use of leading questions on
direct examination, but I am not convinced that he actu-
ally recalled those facts without reliance on the specific
facts suggested to him in the leading questions. Thus, I
have not credited the portions of Bloom's testimony re-
garding his conversations with Consani as being reliable
and accurate even though his versions were not contra-
dicted. McCormick & Co., 254 NLRB 922 (1981).
3. Conclusions
Based on the findings of fact set forth above regarding
Moore's first conversation about the Union with Con-
sani, I conclude that Consani coercively" interrogated
Moore regarding Moore's union activities and regarding
the union activities of other employees of the Employer.
In reaching that conclusion, I have considered to be es-
pecially significant: (1) the nature of the information
sought by Consani in his questioning of Moore; (2) the
position of Consani as the owner of the Employer; and
(3) the fact that in the same conversation Consani made a
threat to Moore to close the Employer's facility if the
employees selected the Union as their collective-bargain-
ing representative. Under all the circumstances, I con-
clude that Consani's questioning of Moore reasonably
tended to restrain, coerce, and interfere with rights guar-
anteed by the Act. Therefore, I further conclude that
such interrogations violated Section 8 (a)(1) of the Act.
The Well-Bred Loaf, 280 NLRB 306 (1986); Kona 60
Minute Photo, 277 NLRB 867 (1985); Sunnyvale Medical
Clinic, 277 NLRB 1217 (1985); and Rossmore House, 269
NLRB 1176 (1984).
As indicated above, I also conclude that Consani made
an unlawful threat to Moore that was not a carefully
phrased prediction based on objective facts that con-
veyed the Employer's belief as to demonstrably probable
consequences beyond his control. NLRB v. Gissel Pack-
ing Co., 395 U.S. 575, 618 (1969). Instead, the threat
made here was directly linked merely to the employees'
selection of the Union as their collective-bargaining rep-
resentative, and not to any valid economic factors or
other factors beyond the Employer's control. Therefore,
I further conclude that such a threat violates Section
8(a)(1) of the Act.
I conclude that the findings of fact set forth above do
not support the General Counsel' s allegations that Con-
sani informed employees that it would be futile for them
to select the Union as their bargaining representative.
Accordingly, I recommend to the Board that those alle-
gations pertaining to Consani be dismissed.
C. The Allegations Pertaining to Jerry Griffith
1. Allegations
The General Counsel alleged the following in para-
graph 7 of her complaint, as amended, as being a viola-
tion of Section 8(a)(1) of the Act:
7. Beginning on or about May 22, 1985, and
ending on or about August 8, 1985, Respondent,
acting through Jerry Griffith, at Respondent's facili-
ty, informed its employees that it would be futile
for them to select the union as their bargaining rep-
resentative.
2. Facts
About a 1-1/2 to 2 weeks after Ernest Moore had his
first conversation with Consani, as described above in
section III,B, Moore was present in a group of employ-
ees when Jerry Griffith made statements regarding the
Union. Griffith and the employees were in the secre-
tary's office at the employer's facility during lunchtime.
Present in the office were: Griffith, Moore, Jerry Nich-
ols, Steve Palmer, and an employee who was identified
only as Greg. Those persons were having lunch at the
time. Nichols told the group that his feelings were hurt
because he had not been invited to attend the union
meeting. Someone else replied that the reason Nichols
had not been invited to the union meeting was because
the first thing Nichols would do would be to run right to
Consani and tell Consani about it. At the hearing Moore
did not recall which person in the group stated the fore-
going. Nichols then told the group that it was not legal
PIONEER CONCRETE CO.
for him to vote because he was now a management-iruc°k
boss, and his vote would not count. Griffith then told the
group either that it was silly, or that it was dumb, for
them to try to get the Union in because they would just
go on strike; that they would be out there walking on
the picket line; that the Company would get nonunion
drivers to drive and to haul concrete as usual ; and that
the employees would be out of a job. Moore then told
the group: "I'll be damned if I'll walk a picket line."
About 2 or 3 days following the 'conversation de-
scribed above and continuing on five or six occasions be-
tween then and a couple of days before the representa-
tion election, Moore overheard Griffith tell employees:
"Everybody is going crazy with this union thing. It's
nuts., They'll never get in." Moore acknowledged that he
could not be more specific regarding the dates and
places when Griffith made those remarks. However,
Moore stated that Griffith made those comments when a
new NLRB poster was posted, and when employees
were talking about the Union and were talking about
who was for the Union and who was against the Union.
The findings of fact set forth in the foregoing para-
graphs in this section are based on credited portions of
the testimony given by Moore based on the same reasons
for resolving credibility regarding Moore's testimony as
set forth in section III,B.
Griffith became the general manager of the Employer
on 5 May 1985. Previously, Griffith had worked for
Carter Maxwell from April 1978 until sometime in 1981
when he went to work for another employer. Carter
Maxwell owned the Company prior to selling the Com-
pany to Consani. The name Pioneer Concrete was not
used as the trade name of the Company during the time
that Griffith was employed by Maxwell. The Company
was known as Maxwell Concrete dining that period of
time.
As the general manager of the Employer since 5 May
1985, Griffith has been charged with the 'responsibility
for the day-to-day running of the Employer's operations.
Griffith has, under his control the dispatcher, the truck-
drivers, the office manager, and the truckdrivers who
haul raw materials into the plant.
Griffith acknowledged at the hearing that beginning in
late May 1985 he became aware that there was a union
organizing campaign being conducted among the em-
ployees of the Employer. Griffith also acknowledged
that he had spoken to,some of the employees of the Em-
ployer about the Union beginning in late May and early
June 1985. , Griffith acknowledged that he probably had
spoken about the union election with Moore, Bloom,
Barrett,' and Allmon. However, Griffith stated at the
hearing that he did not recall the substance of his con-
versations with them. In Griffith's opinion, what he told
the employees was not "prejudicial" insofar as the elec-
tion was concerned. Griffith did not elaborate or define
what he viewed "prejudicial" comments to be. As indi-
cated above, I have credited Moore's testimony with
regard to the statements that Moore attributed to Grif-
fith. None of the other persons who were present in the
secretary's office during lunchtime, as described above
by Moore, testified as witnesses at the hearing.
753
3. Conclusions
Based on the findings of fact set forth above regarding
the statements made by Griffith to employees during
lunchtime in the secretary's office, I conclude that Grif-
fith expressed to the employees that their efforts to orga-
nize a union at the facility would be an exercise in futili-
ty. In-reaching that conclusion, I have considered to be
especially significant the fact that Griffith was the gener-
al manager of the Employer at the time, and that Griffith
told the employees that the selection of the Union would
result in them going on strike and would result in the
employees losing their jobs. In essence, Griffith's state-
ments on that occasion were an anticipatory refusal to
bargain in good faith with the Union. Kona 60 Minute
Photo, 277 NLRB 867 (1985). Therefore, I further con-
clude that Griffith's statements to employees on that oc-
casion violated Section 8(a)(1) of the Act.
IV. THE PETITIONER'S OBJECTIONS IN THE
REPRESENTATION CASE
Five of the Petitioner's objections to the election in
the representation case were referred by the Regional
Director to be resolved after the hearing in this consoli-
dated proceeding. These were Objections 2, 3, 6, 7, and
8, alleging:
2. The employer, by its agents, intimidated eligi-
ble voters with loss of employment opportunities if
they supported the union,
3. The employer, by its agents, made promises of
benefits to those eligible voters who would vote
against the union, and made promises of benefits to
all eligible employees as an inducement not to vote
for the union, and promised benefits if the union
lost.
6. The above-named employer, by its agents,
threatened to close the facility and/or to take other
retaliatory measures if the union won the election.
7. The ' above-named employer, by its agents,
interfered with, restrained, and/or coerced its em-
ployees in the exercise of their rights guaranteed by
Section 7 of the Act.
8. The employer threatened known union adher-
ents because of their membership in and activities
on behalf of the union.
Based on the findings of fact set forth in sections III,B,
and C, I find that the evidence already set forth in those
sections support the Petitioner's Objections 2, 6, 7, and 8.
Dal-Tex Optical Co., 137 NLRB 1782, 1786-1787 (1962).
I further conclude that the findings of fact do not sup-
port Petitioner's Objection 3.
I will make recommendations to the Board with
regard to the representation case in section VI of this de-
cision.
V. THE CHALLENGED BALLOTS
A. Mark Allmon
The ballot of Mark Allmon was challenged by the
Union at the representation election on the grounds that
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Allmon was hired by the Employer after the eligibility
date.
1. Facts
Andy Kilass is a management consultant with the Red-
wood Employers Association. Kilass has been a manage-
ment consultant for approximately 11 years. Kilass was
involved in representing the Employer in the representa-
tion case . He represented the Employer in dealing with
the Board and in setting up the representation election.
In that connection Kilass was sure that he had discus-
sions with Consani regarding the representation matter.
Kilass had no specific recollection of any conversation
regarding the representation case with Griffith, but he
said he was sure that he did have some conversations
with Griffith regarding that. He, stated that he did not
specifically remember any conversations with Griffith
during the period of May through August 1985.
Kilass ' recollection was that the parties stipulated to
an election at the time that had been scheduled for the
hearing in the representation case . Kilass said that the
hearing was scheduled to be held on 14 June 1985 in
Santa Rosa. The parties actually reached verbal agree-
ment to stipulate on the night before the scheduled date
for the hearing. The next day the parties executed the
stipulation rather than going on the record at the hear-
ing. With regard to the Excelsior list, Kilass asked Con-
sani when the payroll cutoff dates were. Because the
payroll ended that day, Kilass told Consani that the list
of names of employees would be as of that day. Consani
expressed his concern to Kilass about people whose em-
ployment had been terminated,' and that their names
would be on the'list. Kilass assured Consani that those
persons had to be currently employed. Kilass also told
Consani that supervisors would not be on the Excelsior4
list. Kilass did not remember discussing with Consani an
employee by the name of Flowers, and the question as to
whether Flowers should be on the Excelsior list. Kilass
did not remember any discussion regarding Allmon with
Consani at that time.
The first time that Kilass discussed Allmon by name
specifically with Consani was after Allmon's ballot had
been challenged in the election. Kilass advised Consam
that'Allmon's ballot had been challenged. Consani asked
Kilass why it had been challenged. Kilass stated at the
hearing that he did not remember what he had told Con-
sani on that occasion, but Kilass probably said something
to Consani to the effect that they had questioned wheth-
er Allmon was an employee. Consani then told Kilass
that Allmon, was employed. That was all Kilass remem-
bered being said between him and Consani on that occa-
sion.
Several days or a week or so after the election, Kilass
had another conversation with Consani regarding All-
mon's challenged ballot. That conversation took place
over the telephone. Kilass told Consani what the prob-
lem was. Kilass did not remember specifically what Con-
sani said . Thereafter, Kilass believed that he had several
conversations with Consani about Allmon, because
Allmon was the subject of a challenged ballot. Kilass did
4 Excelsior Underwear, 156 NLRB 1236 (1962)
not remember specifically anything being said except
that, they discussed the status of Allmon and whether
Allmon was an employee as of the cutoff date. Consani
told Kilass that Allmon was. Kilass believed that Con-
sani told him that Allmon was a ready-mix driver. Kilass
did not recall that Consani mentioned a specific date that
Allmon had been hired, but Kilass remembered that he
was satisfied that Consani had stated to him that Allmon
was "on board" as of the cutoff date. Consani did not
testify at the hearing in this proceeding.
The only kind of record that Kilass saw was a copy of
one of Allmon's W-4 forms. When a copy of Charging
Party's Exhibit 6 was shown to Kilass on the witness
stand, Kilass did not believe that he had seen that W-4
form before. That document is dated 5 July 1985. When
a copy of Charging Party's Exhibit 8 was shown to
Kilass on the witness stand, Kilass said he did not believe
that he had seen that W-4 form before. That document is
dated 8 November 1985. When a copy of Charging
Party's Exhibit 3 was shown to Kilass on the witness
stand, Kilass said that he believed that Charging Party's
Exhibit 3 was the form that had been shown to him.
Kilass did not remember whether it was Consani or the
bookkeeper who had shown that form to him. Kilass ac-
knowledged that he did not do anything, other than
looking at Charging Party's Exhibit 3, to verify when
Allmon's employment had begun. That W-4 form is
dated 13 June 1985.5
Kilass identified the second page attached to a letter
from the Regional Director to the Union as being a copy
of the voter eligibility list, which previously had been
sent to Region 20. The letter from the Regional Director
to the Union was received into evidence as Charging
Party's Exhibit 14. The Excelsior list attached to Charg-
ing Party's Exhibit 14 indicates that Allmon had been
hired on 12 June 1985.
Kilass identified General Counsel's Exhibit 6 as being a
letter written on the stationery of the Redwood Employ-
ers Association. Kilass identified the signature as that of
David Comb. General Counsel's Exhibit 6 is a copy of a
letter dated 11 September 1985 from Comb to Andy
Baker, agent of Region 20. In summary, General Coun-
sel's Exhibit 6 states that the payroll records of the Em-
ployer substantiated the fact that Mark Allmon was hired
on 13 June 1985; reported for work on that date; and
was paid for work that he had performed on that dates
Charging Party's Exhibit 2 is Allmon's application for
employment with the Employer. The application was
dated 13 June 1985. The date shown as the date Allmon
could start to work was 15 June 1985.
Charging Party's Exhibit 5 is Allmon's personnel infor-
mation folder from the Employer's files. It has a date of
12 June 1985 written on it. To the left of that date some-
thing has been marked over in black ink. I was unable to
determine what was written underneath that marking. As
s There was still another W-4 form for Allmon on file with the em-
ployer. That W-4 form is undated and is attached to Allmon's personal
information folder, C P. Exh. 5.
S The findings in the foregoing paragraphs in this section are based on
credited portions of the testimony of Kilass and on documentary evi-
dence.
PIONEER CONCRETE CO.
indicated previously,, Allmon's W-4 form attached to
Charging Party's Exhibit 5 is not dated.
Charging Party's Exhibit 7 is a copy of Allmon's pay-
roll record from the Employer's files. It shows the date
Allmon started to work as 12 June 1985. His wage rate is
shown as $13.25. It shows his gross pay as of 18 June
1985 to have been $56.32.7
Griffith acknowledged at the hearing that the amount
of $56.32 shown on Charging Party's Exhibit 7 as being
paid to Allmon was not consistent with the number of
hours shown on the weighmaster's certificates in Charg-
ing Party's Exhibit 4 as having been worked by Allmon
on 13 and 14 June 1985.
Charging Party's Exhibit 4 contains the Employer's
copies of the weighmaster certificates for June 1985.
Those certificates are bound into two folders or books.
The weighmaster certificates sometimes were referred to
at the hearing as delivery tickets, tags, or invoices. Those
certificates contain such information as the date of the
delivery; to whom the concrete was sold; the amount
and type of concrete; information regarding the times
that the driver left the employer's facility, delivered the
load, and returned to the, plant; and the name of the
ready-mix truckdriver and the truck number. The weigh-
master's certificates are numbered. Each weighmaster
certificate comes in a set, which consists of an original
and three copies. The original copy is white, and the
other three copies in the set are colored pink, yellow,
and goldenrod. The set consists of what is commonly
called carbonless paper. Although there is no carbon
paper in the set, an impression made on the original copy
is simultaneously made on the other three copies in the
set. Griffith acknowledged at the hearing that the name
of the driver and the truck number were written on the
weighmaster's certificate before the copies were separat-
ed from the original. The employer retained the original
white copy of the weighmaster certificate. According to
Griffith, at the end of each month, the original white
copies of the weighmaster's certificates were placed in a
folder or book.
The employer's white copy of weighmaster certificate
number 20142 has the name "'Mark" written over the
name of "Dave" and the truck number 11 written over
truck number 14. The weighmaster's, certificate number
20142 is dated 13 June 1985. However, the customer's
copy of weighmaster's certificate number 20142 shows
that the driver was Dave and the truck number was 14.
That document was received into evidence as Charging
Party's Exhibit 9. Ann 'Vanderford, who performs the
bookkeeping for Merga Foundations, Inc., identified
Charging Party's Exhibit 9 as the yellow copy of the em-
ployer's weighmaster's certificate that she had received
during ' the first few days of July 1985. In the course, of
her business, Vanderford compared such yellow copies
of weighmaster's certificate with the goldenrod copies
that were left when the concrete was delivered at the
' The findings in the foregoing paragraphs are based on documentary
evidence.
755
jobsite, -and after comparing those, she made payment to
the employer.8
An examination of Charging Party's Exhibit 4 revealed
that there were weighmaster certificates from the Em-
ployer's files, which indicated that Allmon had made
three deliveries for the Employer on Thursday, 13 June
1985; one delivery on Friday, 14 June 1985; no deliveries
on Monday, 17 June 1985; no deliveries on Tuesday, 18
June 1985; two deliveries on Wednesday, 19 June 1985;
and two deliveries on Thursday, 20 June 1985. In every
instance the name "Mark" was written over the name of
another driver. In every instance there appears to be an
indentation on the white copy of the weighmaster certifi-
cate immediately under the weighmaster certificates on
which the name "Mark" had been written over someone
else's name . At the hearing, Griffith acknowledged that
he saw such an impression on such weighmaster certifi-
cates that followed weighmaster certificates number
20319, 20329, 20365, and 20379. Griffith was unable to
explain at the hearing how such indentations could
appear on the weighmaster's certificates. The numbers of
the weighmaster's certificates on, which Allmon's name
had been written over another driver's name were:
20124, 20133,' 20142, 20192, 20319, 20329, 20365, and
20379. ' Beginning with weighmaster certificate 17606,
which is dated 21 June 1985, the name "Mark" appears
for the first time in Charging Party's Exhibit 4 without
having been written over someone else's name. The
weighmaster's certificates for Friday, 21 June 1985 indi-
cate that Allmon made six deliveries on that date for the
Employer. Only one of those weighmaster's certificates
for that date had the name "Mark" written over some-
one else's name. That was weighmaster's certificate
number 17637. The other weighmaster certificates for
Friday,, 21 June 1985 that have Allmon's name on them
are: 17606, 17616, 17622, 17629, and 17640.9
2. Conclusions
After comparing Charging Party's Exhibit 9 with the
Employer's copy of that same weighmaster's certificate
in Charging Party's Exhibit 4, I conclude that the Em-
ployer's copy was changed sometime after 13 June 1985
by writing the name: "Mark" and the truck number "11"
on it. Considering the method in which those weighmas-
ter's certificates were prepared at the time of the deliv-
ery, I conclude that Charging Party's Exhibit 9, rather
than the weighmaster's certificate in Charging Party's
Exhibit 4, represents the accurate weighmaster's certifi-
cate. Based on the indentations on the Employer's copies
of the weighmaster's certificates that follow the weigh-
master 'certificates on which the name "Mark" was writ-
ten over someone else's name, I conclude that the Em-
ployer's copies, of the weighmaster certificates in ques-
tion were changed sometime after,the weighmaster cer-
tificates were bound in folders or books after the end of
June 1985. I further conclude that there is a consistency
or pattern with regard to the weighmaster certificates in
8 The foregoing findings are based on credited portions of the testimo-
ny of Vanderford and documentary evidence.
9 The foregoing findings are based on documentary evidence.
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
question involving Allmon up until Friday, 21 June 1985.
I conclude that that pattern distinguishes the changes
made on the weighmaster certificates in question from
some of the other weighmaster certificates in Charging
Party's Exhibit 4, which have some changes or mark-
overs on them.
My examination of the records presented at the hear-
ing leads to the conclusion that Allmon was hired by the
Employer, after the payroll period for eligibility, which
ended on Friday, 14 June 1985. On the basis of the evi-
dence before me, I conclude that Allmon was hired
Friday, 21 June 1985.
Allmon did not testify as a witness in this proceeding.
I do not credit Griffith's testimony that he hired Allmon
on 13 June 1985. I did .not find that his testimony was
credible, accurate, or reliable based on his demeanor
while testifying and based on the conflicts noted above
with regard to the Employer's records. Except for ad-
missions made by Griffith, I have not relied on his testi-
mony with regard to either one of the challenged voters.
In view of the fact that I have concluded that Allmon
was hired by the Employer after the eligibility period, I
further conclude that Allmon was not an eligible voter in
the representation election. Accordingly, I recommend
to the Board that the challenge to his ballot be sustained.
B. Craig Bloom
The ballot of Craig Bloom was challenged by the Em-
ployer at the representation election on the grounds that
Bloom was a supervisor within the meaning of the Act.
1. Facts
Bloom had two periods of employment with the Em-
ployer. The first time he worked for the Employer was
for just 1 week around March 1983. Bloom's job was to
keep the Employer's trucks running. Bloom's second
period of employment with the Employer began in Octo-
ber 1984 and continued until December 1985. Again, his
primary job for the Employer was to work on the- trucks
and keep them running. During the period of time be-
tween the Board-conducted election and the time that
Bloom quit working for the Employer in December,
1985, Bloom continued to perform the same work.
Bloom was not given any additional duties or responsi-
bilities and his salary remained the same during that
period of time. Bloom left the employment of the Em-
ployer in December 1985 because Bloom received a
better job offer.
As a general rule, Bloom worked his own hours at the
Employer's facility during his second period of employ-
ment. As long as Bloom got his work done, there was no
problem with Bloom's doing that. Bloom received a
$500-a-week salary during the entire time of his second
period of employment. Most of the time Bloom received
his entire, salary even if he missed a day of work that
week. However, on one occasion Bloom did not receive
pay for 1, day that he had missed. In addition to his
salary, Bloom received a paid vacation; paid holidays;
and health insurance benefits. Bloom's testimony with
regard to the benefits received by the truckdrivers em-
ployed by the Respondent was too uncertain on which
to base findings of fact. However, Moore testified that he
had received 1 week's,paid vacation after he had been
employed for 1 year by the Employer. Moore also testi-
fied that he had received some paid holidays while he
worked for the Employer, but he did not remember how
long he had worked for the Employer before he became
eligible to receive the paid holidays. Moore testified that
he did not receive any medical insurance coverage, and
that he did not punch a timecard. 10
The parties stipulated that the Employer's trucks are
an important part of its operation. That was true at all of
the times relevant in this proceeding. The Employer had
approximately 15 trucks, which included cement mixers,
dump trucks, and bulk trucks. In addition, the employer
had a loader, a transfer, and a backhoe. Bloom changed
oil, greased, fixed lights, changed clutches, changed tires,
performed brake jobs, and did whatever mechanical
work was necessary in order to make the equipment op-
erate.
Bloom had the authority to use the Company's credit
for parts. Bloom ordered such parts in order to maintain
the Employer's trucks and other equipment. Bloom did
not always discuss the purchase of the more expensive
parts with Consani, but on occasion Consani had in-
structed Bloom not to order such parts because Consani
was short of money.
Bloom acknowledged at the hearing that he had told
the truth to the best of his recollection and knowledge at
the time that he gave a prehearing affidavit to a Board
agent., In that affidavit, Bloom had stated that Consani
was his immediate supervisor, and that Griffith did not
direct Bloom's work because Bloom knew what to do.
However, Bloom said that if Griffith told Bloom what to
do, Bloom would do it. Because Consani signed Bloom's
paychecks; Bloom said that he considered Consani to be
his boss. I i
When 'Moore wanted anything done to the truck that
he was driving, Moore usually told Griffith first. On
those occasions Griffith then told Moore to contact
Bloom.-,Moore said that he never asked Bloom whether
Moore's truck had been fixed. Instead, Moore asked
Griffith. Moore did not know how many times his truck
had been fixed during the time of his employment with
the Employer. At the hearing Moore estimated that his
truck had been fixed under 100 times. However, Moore
also stated that he spoke to Bloom every time that
Moore picked up a load at the Employer's facility, sever-
al times each workday.12
10 As indicated, the findings just stated are based on credited portions
of the testimony of Moore for the reasons previously given in sec IH,B.
The other findings set forth above in this section are based on credited
portions of the testimony given by Bloom As indicated in sec. III,B,
Bloom had a poor recollection of the events pertinent to that sec. How-
ever, with regard to the foregoing matters set forth in this section, and
with regard to certain other findings to be set forth in this section, Bloom
appeared to have a better recollection of these matters affecting his em-
ployment. As I will indicate later, however, I have credited the testimo-
ny of former employee Desi Wiegand over the testimony of Bloom
11 The findings in the foregoing paragraphs are based on credited por-
tions of the testimony of Bloom.
12 The foregoing findings are based on credited portions of the testi-
mony of Moore.
PIONEER CONCRETE CO. 757
As indicated above, Bloom testified at the hearing that
he had told the truth to the best of his recollection and
knowledge at the time he gave his prehearing affidavit to
a Board agent. In that affidavit, Bloom stated that he had
told Consani that the helpers were getting out-of-hand,
and that Consani told Bloom, "Well, fire them." Bloom
stated in his affidavit that he replied to Consani: "Hey! I
didn't hire them." Bloom stated in -his affidavit that Con-
sani just shrugged his shoulders. At the hearing, Bloom
gave slightly different versions of that conversation with
Consani, but in one version at the' hearing, Bloom testi-
fied that he told Consani that a shopboy was lazy. Bloom
testified that Consani told Bloom, "Well, if he's not
doing his job, fire him." At the hearing, Bloom testified
that he replied to Consani: "I didn't hire him. It's not my
job to fire him." I have accepted Bloom's version given
in his prehearing affidavit, which he acknowledged to be
true, as being the more reliable account of Bloom's con-
versation with Consani on that occasion.
Desi Wiegand worked for the Employer as a yardboy
during October and November 1985. During that period
of time, no other yardboy was working for the Employ-
er.
When Wiegand sought work with the Employer, he
obtained an employment application at the Employer's
office from a secretary who he identified as being-Cindy.
Wiegand filled out the employment application at the
office, and he left his employment application with
Cindy.
About 2 months later, Griffith telephoned Wiegand
and asked Wiegand to come into the office for an inter-
view.
During Wiegand's interview with Griffith, Griffith
told Wiegand what his duties would be at the facility;
that his working hours would be from 7 a.m. to 5 p.m.;
and that his wage would be $4.50 an hour. Griffith also
'told Wiegand that Wiegand would be taking instructions
from' Griffith, Bloom, and the dispatcher, Greg.
In terms of his day-to-day activities, Wiegand received
his job instructions from Bloom about 80 percent of the
time. Wiegand received his job instructions from Griffith
and Greg the remainder of the time. As a yardboy, Wie-
gand spent most of his working time doing things for
Bloom; Wiegand gave going to get parts as an example.
Bloom told Wiegand what part was needed and Wiegand
would go and pick up that particular part., In addition,
Bloom instructed Wiegand regarding which trucks were
to be cleaned. Bloom also told Wiegand to sweep; pull
weeds; or move old tires, rims, and junk parts around in
the Employer's yard. Wiegand-gave as examples moving
old tires, rims, and junk parts. When Wiegand had noth-
ing to do, he asked Bloom to assign work to him.
Wiegand acknowledged at the hearing that he did not
get along with Bloom. Wiegand said that he occasionally
had arguments with Bloom and complained to Griffith
about these arguments. Griffith told Wiegand that Wie-
gand would have to listen to Bloom.
The findings in the foregoing paragraphs are based on
credited portions of Wiegand's testimony and on his de-
meanor While testifying. Wiegand was not 'employed by
the Employer at the time that he gave his testimony. Al-
though Wiegand acknowledged at the hearing that he
and Bloom did not get along during the 2 months that
Wiegand worked for the -Employer, I found that Wie-
gand's testimony at the hearing was believable and con-
vincing. I have not credited Bloom's testimony that
Bloom -had no responsibility for the yardboys, and that
the yardboys reported to Griffith. I have considered the
testimony given by Moore with regard to the yardboys,
but I found that Wiegand's testimony was more reliable
with regard to the work he actually performed and with
regard to his receiving instructions from Bloom 80 per-
cent of his working time.
On Wiegand's last day of employment with the Em-
ployer, Bloom and Wiegand had an argument. Prior to
the ' argument, Wiegand was looking for a masonry
hammer in order to chip cement. Wiegand spent about
15 minutes looking for the hammer. Bloom then walked
up to Wiegand, began to yell at him, and told him that
Wiegand was taking too much time, looking for the
hammer. An argument then ensued in which Bloom
swore at Wiegand, and Wiegand swore at Bloom. Bloom
then grabbed Wiegand and told him, "I'm going to kick
shit out of you." Wiegand said to go ahead and do it.
Bloom replied that he did not want to waste his time,
and Bloom told Wiegand: "Just get out of here. Go
home. You're fired."13
Wiegand did not talk to Griffith on the day that he
was fired. About 2 weeks later, Wiegand returned to the
Employer's facility and spoke with Griffith. Wiegand
asked Griffith for his paycheck. Griffith then gave the
paycheck to Wiegand. The paycheck already had been
made up. That was the last time that Wiegand spoke
with anyone at the Company.14
2. Conclusions
Based on the foregoing findings, I conclude that
Bloom possessed the authority to discharge employees of
the Employer at the times relevant in the representation
case. Those relevant - times were the payroll period for
eligibility through the time that the polls closed on the
date of the representation election. I conclude that the
evidence established that Consani gave the authority to
Bloom to discharge employees prior, to the date of the
representation election when Consani told Bloom that if
the yardboys were not performing their jobs to fire
them. Bloom did not exercise that authority until after
the representation election. However, his duties and re-
sponsibilities had remained the same during his second
period of employment with the Employer. The Board
held in its, decision in New Jersey Famous Amos Cookie
Corp., 236 NLRB 1093 (1978): "It is,long settled that the
existence of'authority, not the exercise of that authority,
determines whether an individual is an employee or a su-
pervisor." NLRB v. Brown & Sharpe Mfg. Co., 169 F.2d
331 (1st Cir. 1948); Hook Drugs, 191 NLRB 189, 191
(1971).
13 The foregoing findings are based on credited portions of the testi-
mony of Wiegand. For the reasons previously stated, I do not credit the
accounts given by Bloom to the contrary.
34 The foregoing findings are based on credited portions of the testi-
mony of Wiegand for the reasons previously given.
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thus, Bloom's decision to discharge Wiegand and
Bloom's taking such action, without consulting with
anyone in higher management, illustrates the fact that
Bloom possessed the authority to discharge employees
both before the representation election was held, as well
as after. The manner in which Bloom made an immediate
decision to fire Wiegand, without consultation with
higher management and the manner in which Bloom im-
mediately fired Wiegand, without any such consultation,
show that Bloom exercised his authority with independ-
ent judgment on behalf of the Employer.
It is not necessary that a person possess all of the stat-
utory authority set forth in Section 2(11) of the Act be-
cause that section is to be read in the disjunctive. Ohio
Power Co. v. NLRB, 176 F.2d 385 (6th Cir. 1949), cert.
denied 338 U.S. 899; Arizona Public Service Co. v. NLRB,
453 F.2d 228 (9th Cir. 1971); Big Rivers Electric Corp.,
266 NLRB 380, 382 (1983).
Because Bloom possessed the authority to discharge
employees during the relevant times before the election,
I have concluded that Bloom was a supervisor within the
meaning of Section 2(11) of the Act.
Moreover, I conclude that the evidence established
that Bloom responsibly directed the work of the yard-
boys in assigning tasks to them. The fact that the work
of the yardboys was not complex does not preclude such
a finding. The Board, held in its decision in New Jersey
Famous Amos Cookie Corp.,' supra: "Responsible direction
is not dependent on the complexity of the work , in-
volved; that would rule out a finding of responsible di-
rection whenever the work involved does not require a
high degree of skill or technical competence." See Holi-
day Inn of Dunkirk-Fredonia, 211 NLRB 461 (1974).
For the reasons set forth above, I conclude that Bloom
was not an eligible voter in the election, and I recom-
mend that the challenge to his ballot be sustained.
VI. RECOMMENDATIONS WITH REGARD TO THE
REPRESENTATION CASE
Because I have recommended that the challenges to
the ballots of both Allmon and Bloom be sustained, and
because the tally of ballots shows that the Union has re-
ceived a majority of the valid votes cast in the election, I
recommend that the Board issue a certification to the Pe-
titioner. In these circumstances, I further recommend
that all of the Petitioner's objections to the election be
dismissed.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the Act by
coercively interrogating an employee about his union ac-
tivities and about the union activities of other employees
of the Employer; by threatening an employee that the
Employer would close its facility if the employees select-
ed the Union as their collective-bargaining representa-
tive; and by telling employees that it would be futile for
them to select the Union as their collective-bargaining
representative because selecting the Union would result
in: (a) the employees going , on strike and walking a
picket line; (b) the Employer would get nonunion drivers
to drive and haul concrete as usual; and (c) the employ-
ees would lose their jobs.
4. The unfair labor practices described above affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Because I have found that the Respondent has en-
gaged in 'certain unfair labor practices within the mean-
ing of Section 8(a)(1) of the Act, I shall recommmend to
the Board that the Respondent be ordered to cease and
desist from engaging in such unfair labor practices and to
take affirmative action designed to effectuate the policies
of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed15
ORDER
The Respondent, Consani Company, Inc. d/b/a Pio-
neer Concrete Co., Santa Rosa, California, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating an employee about his
union activities and about the union activities of other
employees of the Employer.
(b) Threatening an employee that the Employer would
close its facility if the employees selected the Union as
their collective-bargaining representative.
(c) Telling employees that it would be futile for them
to select the Union as their collective-bargaining repre-
sentative because selecting the Union would result in: (1)
the employees going on strike and walking a picket line;
(2) the Employer would get nonunion drivers to drive
and haul concrete as usual; and (3) the employees would
lose their jobs.
(d) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its Santa Rosa , California, facility copies of
the attached notice marked "Appendix." 16 Copies of the
notice, on forms provided by the Regional Director for
Region 20, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
15 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec . 102 48 of the Rules, be' adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
16 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
PIONEER CONCRETE CO. 759
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered , defaced , or covered by
any other material.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps ' the Re-
spondent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
'The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form , join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities. '
WE WILL NOT coercively interrogate an employee
about his union activities and about the union activities
of other employees of our Company.
WE WILL NOT threaten an employee that we would
close the facility if our employees selected General
Truck Drivers , Warehousemen and Helpers Union,
Local No . 624, Marin and Sonoma Counties , 'Internation-
al Brotherhood of, Teamsters, Chauffeurs, Warehousemen
& Helpers, of America, or any other labor organization as
their collective-bargaining representative.
WE WILL NOT tell employees that it would be futile
for them to select the Union as their collective -bargain-
ing representative because selecting the union would
result in : ( 1) the employees going on strike and walking a
picket line; (2) our Company would get nonunion drivers
to drive and haul concrete as usual ; and (3) our employ-
ees would lose their jobs.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce you in the ,exercise of the rights
guaranteed you by Section 7 of the Act.
CONSANI COMPANY, ' INC. D/B/A PIONEER
CONCRETE CO.