Ready Mix, Inc.

National Labor Relations Board - Board Decisions

Aug 1, 2002

337 N.L.R.B. 1189 (N.L.R.B. 2002)

READY MIX, INC. 1189
Ready Mix, Inc. and Teamsters, Chauffeurs, Ware-
housemen & Helpers, Local 631 affiliated with
International Brotherhood of Teamsters, AFL–
CIO. Case 28–CA–14984
August 1, 2002
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN
AND BARTLETT
On September 27, 1999, Administrative Law Judge
Frederick C. Herzog issued the attached decision. The
General Counsel filed exceptions and a supporting brief
and the Respondent filed a brief in opposition to the
General Counsel’s exceptions.
The National Labor Relations Board has delegated 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 briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions, as
modified below, and to substitute a new Order for that of
the judge.
1. In dismissing four allegations of violations of Sec­
tion 8(a)(1), the judge relied solely on the ground that the
General Counsel failed to establish that Dave Hampton
was a supervisor under Section 2(11) of the Act. In
adopting the judge’s dismissal of these allegations, we
also rely on the lack of merit in the complaint allegation,
renewed by the General Counsel in his exceptions, that
Hampton was an agent of the Respondent.
The Respondent is in the business of providing ready-
mix concrete to construction sites. It employs employees
who mix concrete and transport the concrete in trucks to
the jobsite. The General Counsel contends that
mixer/driver Hampton was the Respondent’s agent when
it assigned him temporarily to perform the duties of a
“field representative” or coordinator. We find no merit
to that contention because there is no evidence that per­
formance of field representative duties is, or was per­
ceived by employees to be, a managerial or supervisory
function. As the judge found, the field representative or
coordinator merely relays and helps implement customer
instructions at the jobsite where cement is to be deliv­
ered. Moreover, Operations Manager Michael Ramsey
testified that all driver/mixers are expected to perform
such field duties if they are the first to arrive at the job-
1 The General Counsel has excepted to some of the judge’s credibil­
ity findings. The Board’s established policy is not to overrule an ad­
ministrative law judge’s credibility resolutions unless the clear prepon­
derance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
site and can facilitate customer needs upon their arrival.
Accordingly, Hampton’s temporary performance of such
nonmanagerial duties was insufficient to make him an
agent of the Respondent.
As the judge also found, Hampton made various
claims to employees that he had authority to direct work
and to coordinate job tasks. There is no evidence, how-
ever, that the Respondent either conferred this authority
on Hampton or cloaked him with apparent authority to
act as its agent.
The Board applies common law principles of agency
to determine whether an individual possesses actual or
apparent authority to act for an employer, and the burden
of proving an agency relationship is on the party who
asserts its existence. See, e.g., Pan-Oston Co., 336
NLRB 305, 305–306 (2001). “Apparent authority results
from a manifestation by the principal to a third party that
creates a reasonable basis for the latter to believe that the
principal has authorized the alleged agent to perform the
acts in question.” Southern Bag Corp., 315 NLRB 725
(1994). The test is whether, under all the circumstances,
employees would reasonably believe that the alleged
agent was reflecting company policy and speaking and
acting for management. See, e.g., Pan-Oston Co., supra,
citing Waterbed World, 286 NLRB 425, 426–427 (1987),
enfd. 974 F.2d 1329 (1st Cir. 1992).
Here, there is no showing that the Respondent placed
Hampton in a position that employees would reasonably
believe that he was acting for management. Hampton’s
mere claim of alleged authority is insufficient to make
him an agent.2 Nor is there evidence that Hampton was
held out as a conduit for transmitting information from
management to employees. Compare Pan-Oston Co.,
supra (no evidence that employer communicated to em­
ployees that alleged agent was acting on its behalf) with
Hausner Hard-Chrome of KY, Inc., 326 NLRB 426, 428
(1998) (employees held to be conduits where they at-
tended daily production meetings with top management,
from which they returned to communicate management’s
production priorities and were the “link” between em­
ployees and upper management).
Accordingly, because the General Counsel has not met
his burden of proving that Hampton was either an agent
or a supervisor, we shall dismiss the 8(a)(1) allegations
pertaining to Hampton.
2 One of the employees allegedly threatened with reprisals by Hamp­
ton told Operations Manager Michael Ramsey that Hampton “was out
to get his job.” Ramsey credibly testified that he assured the employee
that Hampton could not do so. Ramsey also told another employee that
Hampton was not a supervisor.
337 NLRB No. 181
1190 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2. Contrary to the judge, we find that in August 1997,
the Respondent, through Operations Manager Ramsey,
violated Section 8(a)(1) by interrogating an employee.
Ramsey credibly testified that he initiated a conversa­
tion in the driver’s room with employee Richard Ed-
wards. Ramsey “jokingly” asked Edwards if he had a
listening device in his lunchbox. Ramsey then informed
Edwards that he had “heard that you were passing out
union cards.” Although Edwards had been passing out
union cards, he initially denied to Ramsey that he had
done so. After Edwards’ denial, Ramsey said, “[W]ait a
second, Rick, the reason I’m saying that is because you
can’t do it on work time.” Edwards then admitted that
“I’m doing it” and Ramsey replied, “[O]kay.”
As the Board found in Continental Bus System, 229
NLRB 1262, 1264–65 (1977), in which a manager told
an employee that “I heard that you [were] getting people
signed up for the Union,” such a statement begs a reply.
And, indeed, Manager Ramsey’s statement to employee
Edwards that he had “heard that you were passing out
union cards” drew a reply—a false denial of union activ­
ity. Thus, Ramsey’s statement was a coercive interroga­
tion because it amounted to an invitation to Edwards
either to confirm or deny the truth of Ramsey’s state­
ment. See Debber Electric, 313 NLRB 1094, 1098
(1994) (manager coercively interrogated employees by
stating that “I guess you know that the union is trying to
organize us”).
In finding that Ramsey coercively interrogated Ed-
wards in violation of Section 8(a)(1), we also note that
Ramsey was a high management official, that Edwards
initially felt compelled to reply to Ramsey’s statement by
falsely denying his union organizational activity, and that
there is no evidence either that Edwards has solicited
union cards openly or that he had done so during work
time as Ramsey suggested.3 Brigadier Industries Corp.,
271 NLRB 656 (1984), relied on by the judge, is inappo­
site. In that case, unlike the present case, the employee
at issue was an “open and active” union supporter.4
3 We construe Edwards’ reply to Ramsey as an admission that he
had passed out union cards, but not that he had done so during work
time.
4 Our dissenting colleague Member Bartlett finds that during his
April 1997 employment interview, Edwards asked whether the Re­
spondent was union represented and, that during an earlier occasion
when employed by another company, Edwards indicated to Ramsey
that he would come to work for the Respondent if it were unionized.
Contrary to Member Bartlett’s suggestion, these incidents do not estab­
lish that Edwards was “openly” engaged in union card solicitations in
August 1997, or was otherwise an open union adherent during the time
at issue. Indeed, in his pretrial Board affidavit, upon which the Re­
spondent cross-examined Edwards at the hearing, Edwards stated that
he tried to keep his union activities a secret.
Finally, we note that Ramsey’s initial comment con­
cerned Edwards’ alleged passing out of union cards. It
did not concern Edwards’ alleged passing out of union
cards during worktime. It was only after Ramsey’s
comment solicited a false response that Ramsey sought
to narrow his comment to solicitation during worktime.
Accordingly, for the reasons above, we find that the
Respondent coercively interrogated an employee in vio­
lation of Section 8(a)(1).5
3. The General Counsel contends that the judge erred
by failing to grant its motion to amend the complaint, as
set forth in its posthearing brief to the judge, to allege
that the Respondent, through Operations Manager Ram­
sey, advised employees that it would be futile for them to
support the Union. Assuming, arguendo, and without
deciding, that such an amendment would be appropriate,
we find that Ramsey’s statements did not, in any event,
constitute coercive statements of futility regarding un­
ionization.
Ramsey was asked by employees on several occasions
whether the Respondent “was union” or had “plans to go
union” or was “going to go union.” In each instance,
Ramsey responded either that the Respondent was not
unionized or had no plans to go union or to be union.
Further, Ramsey did not state or imply that the Respon­
dent intended to ensure its nonunion status through dis­
criminatory or coercive means. In these circumstances,
we find that Ramsey’s answers to employees’ inquiries
were, in context, noncoercive statements regarding the
Respondent’s nonunion status and, therefore, would not
reasonably cause employees to believe that efforts to
5 Chairman Hurtgen agrees with Member Bartlett, concurring in part,
that the judge correctly found that Ramsey’s statement would not tend
to create an impression that Edwards’ union activity was under com­
pany surveillance. In the Chairman’s view, at most, the statement
created an impression that Ramsey had learned in some way that Ed-
wards was engaged in soliciting cards. However, the statement does
not inform the listener whether the information was obtained through
company surveillance or picked up “through grapevine,” i.e., overheard
in casual conversations. In these circumstances, Chairman Hurtgen is
unable to find that the statement, without more, conveyed the former
impression.
Member Liebman would find that Ramsey’s statement, in addition to
coercively interrogating Edwards, also created an impression that Ed-
wards’ union activities were under surveillance. In her view, Ramsey’s
statement to Edwards communicated that management knows that the
employee is a union organizer and that it has a source of information
concerning the employee’s union activities. Even assuming that the
information could have been obtained “though the grapevine,” as the
Chairman speculates, employee Edwards would have no reasonable
basis to know, or to infer, that Ramsey was merely referring to informa­
tion overheard in unidentified “casual conversations.” See Continental
Bus System , supra at 1265. See also Publishers Printing Co., 317
NLRB 933, 934–935 (1995) (employer created impression of surveil-
lance when, after employee secretly commenced union card solicita­
tions, supervisor asked employee for a union card).
READY MIX, INC. 1191
serve union representation would be futile. Compare
Wellstream Corp., 313 NLRB 698, 706 (1994) (company
president statements that no “son of a bitch” would bring
a union into Wellstream and that he would see to it that
Wellstream was never unionized were clearly intended to
and had the effect of conveying to employees the futility
of their support for the union); and Soltech, Inc., 306
NLRB 269, 272 (1992) (statement that Soltech did not
need a union and would do everything it could to assure
the Company could run nonunion was designed to and
did notify employees that efforts to secure union repre­
sentation would be futile).6
ORDER
The National Labor Relations Board orders that the
Respondent, Ready Mix, Inc., North Las Vegas, Nevada,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees concerning
their union or protected concerted activities.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in their exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post
copies of the attached notice marked “Appendix” 7 at its
location in North Las Vegas, Nevada. Copies of the no­
tice on forms provided by the Regional Director for Re­
gion 28, after being signed by Respondent’s authorized
representative, shall be posted by Respondent immedi­
ately upon receipt thereof, and maintained by it for 60
consecutive days thereafter in conspicuous places, in­
cluding all places where notices to employees are cus­
tomarily posted. Reasonable steps shall be taken by Re­
spondent to ensure the notices are not altered, defaced, or
covered by other material. In the event that, during the
pendency of these proceedings, Respondent has gone out
of business or closed the facility involved in these
proceedings, Respondent shall duplicate and mail, at its
6 In finding that the Respondent did not violate Sec. 8(a)(3) and (1)
by denying a leave of absence and reemployment to Butch Youmans,
the judge noted that the Respondent did not commit any independent
violations of the Act. Although we find that the Respondent also vio­
lated Sec. 8(a)(1), we adopt the judge’s finding as to Youmans. In
doing so, we emphasize that the Respondent sought to persuade You-
mans to prolong his employment and, as the judge found, had ample
reason to deny a leave of absence to an employee returning to a busi­
ness competitor.
7 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 Na­
tional Labor Relations Board” shall read “Posted Pursuant to a Judg­
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
own expense, a copy of the notice to all current and for­
mer employees employed by Respondent at any time
since August 1, 1997.
(b) Within 21 days after service by the Region, file
with the Regional Director for Region 28, a sworn certi­
fication of a responsible official on a form provided by
Region 28 attesting to the steps the Respondent has taken
to comply.
MEMBER BARTLETT, concurring and dissenting in part.
I would affirm the judge’s dismissal of the allegations
that the Respondent, through Operations Manager Mi­
chael Ramsey, violated Section 8(a)(1) by interrogating
employee Richard Edwards and creating the impression
of surveillance.
As indicated in the majority opinion, the subject con­
versation occurred in the driver’s room. Ramsey initi­
ated the conversation, telling Edwards that he’d like to
talk to him. When Edwards came into the room and
opened his lunchbox, Ramsey “jokingly” asked him if he
had a listening device in the lunchbox. Ramsey went on
to say that he’d heard that Edwards had been passing out
union cards. The judge found that Ramsey credibly testi­
fied that he did not say this to inquire about it, but merely
to open the conversation and identify the subject matter
of the conversation. Edwards initially responded un­
truthfully by denying that he had been doing so. Ramsey
then said, “[W]ait a second, Rick, the reason I’m saying
that is because you can’t do it on work time.” At that
point, Edwards admitted that “I’m doing it” and Ramsey
replied, “[O]kay.”
The judge found that Ramsey neither unlawfully inter­
rogated Edwards nor unlawfully created the impression
of surveillance. I agree. Edwards was a known union
supporter. Thus, prior to being hired by Respondent, he
indicated to Ramsey that he would come to work for Re­
spondent if it were unionized. Further, in his April 1997
employment interview, just a few months prior to the
events here, Edwards had asked whether the Respondent
was union represented.
In addition, Ramsey made clear that his sole reason for
raising the subject of card solicitation was to make sure
that Edwards did not solicit cards on worktime. As noted
by the judge, this was a legitimate concern.1 Further, at
that point, Edwards admitted that he was “doing it,” and
Ramsey simply replied, “[O]kay.” Ramsey made no
threats of retaliation against legitimate or protected card
solicitation activities. Nor did the conversation occur in
the context of other unfair labor practices. The judge
1 It is well established that an employer may lawfully prohibit solici­
tation during working time. See Our Way, 268 NLRB 394 (1983).
1192 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
dismissed all the other allegations of the complaint, and
we have adopted the judge’s findings.
In these circumstances, I agree with the judge’s find­
ings that the conversation was noncoercive and therefore
did not violate Section 8(a)(1) of the Act. See Brigadier
Industries Corp., 271 NLRB 656 (1984); and Rossmore
House, 269 NLRB 1176, 1177 (1984).
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 vio­
lated the Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene­
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT interrogate employees concerning their
union or protected concerted activities.
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.
READY MIX, INC.
Nathan W. Albright, Atty., for the General Counsel.
Gregory E. Smith, Atty. (Smith and Kotchka), of Las Vegas,
Nevada, for the Respondent.
Thomas J. Corey, of Las Vegas, Nevada, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
FREDERICK C. HERZOG, Administrative Law Judge. This
case was heard by me in Las Vegas, Nevada, on November 3
and 4, 1998,1 and February 18, 1999, and is based on a charge
filed by Teamsters, Chauffeurs, Warehousemen & Helpers,
Local 631 affiliated with International Brotherhood of Team­
sters, AFL–CIO (Union), on February 3, 1998 (and subse­
quently amended), alleging generally that Ready Mix, Inc.,
(Respondent), committed certain violations of Section 8(a)(1)
and (3) of the National Labor Relations Act (Act). On March
30, the Regional Director for Region 28 of the National Labor
1 Unless otherwise indicated, all dates hereafter refer to the calendar
year 1998.
Relations Board (Board), issued a complaint and notice of hear­
ing alleging violations of Section 8(a)(1), (3), and (4) of the
Act. Respondent thereafter filed a timely answer to the allega­
tions contained within the complaint, denying all wrongdoing.
All parties appeared at the hearing, and were given full op­
portunity to participate, to introduce relevant evidence, to ex­
amine and cross-examine witnesses, to argue orally, and file
briefs. Based upon the record, my consideration of the briefs
filed by counsel for the General Counsel and counsel for Re­
spondent, and my observation of the demeanor of the witnesses,
I make the following
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, the answer admits, and I find that Re­
spondent is a Nevada corporation, with an office and place of
business in North Las Vegas, Nevada, where at all times mate-
rial, it has been engaged in the business of a ready-mix concrete
plant, manufacturing and delivering ready-mix concrete; that
during the 12-month period ending February 3, in the course
and conduct of its business operations, derived gross revenues
in excess of $500,000; and that it purchased and received at its
facility mentioned above goods, products, and materials valued
in excess of $50,000 directly from points outside the State of
Nevada.
Accordingly, I find and conclude that Respondent is now,
and at all times material has been, an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. THE LABOR ORGANIZATI ON
The complaint alleges, the answer admits, and I find that the
Union is now, and at all times material herein has been, a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR L ABOR PRACTICES
A. Background
Around December 1997, the Union began an organizing
campaign among Respondent’s employees. On January 5, the
Union filed a petition for an election in Case 28–RC–5595. On
January 16, a preelection hearing was held in Case 28–RC–
5595. During this same period of time, Respondent employed
approximately 40 mixer-drivers. In January, Respondent began
its campaign against the Union. An election was held on Feb­
ruary 20, which the Union lost.2
B. Allegations
1. The complaint alleged the following violations
of Section 8(a)(1) of the Act
a. On January 29, at a jobsite near Boulder City, Nevada, by
a supervisor named Dave Hampton, interrogated employees
and threatened reprisals if employees selected the Union as
2 The Union filed objections to the election. For a time they were
consolidated with this case for hearing. However, shortly before the
opening of the trial, they were severed. Accordingly, none of the issues
presented therein are decided herein.
READY MIX, INC. 1193
their representative and promised them benefits if they rejected
the Union.
b. In the first 2 weeks of February, by a supervisor named
Dave Hampton, engaged in surveillance of employees and har­
assed employees by augmenting their supervision.
c. On February 20, by a supervisor named Dave Hampton,
Respondent informed employees it would be futile to select the
Union as their representative, disparaged its employees because
of their support for, membership in, and activities on behalf of
the Union.
d. In early February, by a supervisor named Dave Hampton,
at a jobsite in Las Vegas, Nevada, Respondent interrogated
employees, and informed employees that it would be futile for
them to select the Union as their representative.
e. In August 1997, by Ramsey, Respondent interrogated em­
ployees and created the impression of surveillance.
f. On February 11, by Kenneth D. Nelson, director of corpo­
rate benefits,3 and a vice president of Meadow Valley Contrac­
tors, Inc., Respondent promised employees that benefits would
increase, terms and conditions of employment would improve,
and that they would receive a 401(k) plan and improved insur­
ance if they rejected the Union as their bargaining representa­
tive.
g. On November 6, by a written memorandum issued to em­
ployees, Respondent intimidated, restrained, coerced, and dis­
paraged employees who had engaged in union activities and
who cooperated with the National Labor Relations Board dur­
ing the unfair labor practice investigation and trial herein.
2. The complaint alleged the following violations of
Section 8(a)(1) and (3) of the Act4
a. On January 17, Respondent failed and refused to grant
employee Butch Youmans a leave of absence, and since Febru­
ary 5 has failed to employ him, reemploy him, or consider him
for employment.5
b. On or about January 25, Respondent issued its employee,
Thomas Warburton, an unwarranted and undeserved 5-day
suspension.6
3. The supervisory issue
Robert Morris (vice president), Michael Ramsey (operations
manager), Bill Austin (fleet manager), and Kenneth D. Nelson
(director of corporate benefits, and a vice president of Meadow
Valley Contractors, Inc.),7 are all admitted by Respondent to
be, and to have been at all relevant times herein, supervisors of
Respondent within the meaning of Section 2(11) of the Act.
The complaint also alleges that one Dave Hampton is a su­
pervisor. Respondent denies that Hampton has, or has ever
3 Admitted at trial to be a supervisor of Respondent.
4 At trial an additional allegation that “on or about January 17, Re­
spondent denied access of its employee, Thomas Warburton, to Re­
spondent’s office and computer” was withdrawn.
5 Respondent avers that Youmans announced his resignation on
January 12, and that, after being denied a leave of absence on January
16, Youmans quit, and has not been rehired.
6 Counsel for the General Counsel asserts that Respondent’s actions
in this latter respect violated Sec. 8(a)(4) of the Act, in addition to Sec.
8(a)(3).
7 Per an amendment to the complaint at trial.
had, status as a supervisor. The issue is of considerable impor­
tance, since Hampton is alleged to have been the person who,
on behalf of Respondent, engaged in the majority of conduct
alleged as violative in this case. Thus, I discuss this issue first.
Hampton is employed by Respondent as a mixer/driver.
Hampton, like other mixer/drivers, was placed on a seniority
list for purposes of receiving overtime and other assignments.
Hampton drove a mixer/truck like other drivers. Hampton was
known to be a vocal antiunion voice and freely mentioned this
to others, both employees and supervisors.
Respondent also employed “field representatives” or “coor­
dinators.” Their job was to visit the various jobsites, interfac­
ing with customers and relaying the customers’ needs to Re­
spondent’s dispatchers and other mixer/drivers. They served as
a “point men” between the customer, dispatch, and the drivers.
They could and would, when necessary, tell drivers where to
place their cement on various jobs or what jobs to go to. Ac­
cording to employee Weber, these field representatives’ duties
were generally fulfilled by Respondent’s two salesmen, but
they could be done as well as by Austin and Ramsey.
Beginning February 2, until February 23, Hampton was as-
signed to drive a different type of truck, i.e., a pickup, and to
fill in as a temporary field representative. When Hampton was
given this temporary assignment, nothing was said about it to
other employees. According to Ramsey, all that happened was
that he told Hampton that he would be filling in for one of Re­
spondent’s two salesmen/field representatives, Nick Kane, who
was out on medical leave, and that he (Ramsey) needed time to
devote to the union campaign. Morris credibly, and logically,
testified that Hampton was never selected to, or told that he
would, fill in for Ramsey, but only that he’d be a field man for
awhile, as a result of Kane’s absence. Thus, there was a short-
term vacancy which, due to competing duties, Ramsey couldn’t
cover for at that time. Hampton was told his position would be
temporary and he was provided with an old company pickup
truck, which was waiting to be sold at auction for salvage.
Employee Dan Weber testified that he was at a job at the Las
Vegas Speedway in early February, and that he saw Hampton
driving a company pickup truck of the sort driven by salesmen
and supervisors, rather than a mixer truck. So, he asked Hamp­
ton about it. According to Weber, Hampton told him was
through with mixer/drivers, and was going to drive a pickup
from then on. He observed Hampton working as a coordinator
on the Speedway job, and calling to find out where drivers’
locations were, and letting the drivers know.
Weber also related that on February 11, at Respondent’s
Sundale job, Hampton told him that if he voted for the Union,
he would be alienating the Company. Weber admitted that
Hampton never said or otherwise indicated that he was relaying
some message from either Ramsey or Morris. Weber knew
from the time that the petition was filed in early January that
Hampton was antiunion.
Weber also recalled Hampton told him that day that he was
going to “hang” employee Louis Hayes because Hayes was
1194 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
always showing up with wet concrete loads.8 The “wetness” of
a ready mix load is known as its “slump.” Weber had previ­
ously heard Hampton complaining of Hayes’ wet loads. Weber
acknowledged that the wetness of the loads delivered by Hayes
could be verified simply by looking at the paperwork for any
particular load, which specified its desired “slump.” So far as
has been shown, Hayes was never disciplined on account of wet
loads.
Weber admitted that neither Ramsey nor Morris ever told
him that Hampton was a supervisor. He also admitted that
coordinators have no authority to reassign drivers to go to other
pour sites, unless it was as a result of relaying the desires of a
customer. Nor, according to Weber, do coordinators have au­
thority to warn, or to issue any discipline, that he’s ever been
told of. While Weber allowed as how he’d follow the instruc­
tions of coordinators at the jobsite, he also admitted that some-
times those same duties are fulfilled by regular drivers when no
coordinator is present, and he’d also expect to follow the in­
structions of fellow drivers.9
According to the testimony of another employee named
Richard Edwards,10 Hampton told him in early February, that
he (Hampton) had a new job. Hampton said he had a pickup
truck, a radio, a phone, and he was waiting for a gas card. I
said that was fine. Hampton told Edwards that he (Hampton)
was going to be coordinating jobs and directing, and Edwards
thereafter saw Hampton several times talking to the job super­
intendents to find out where trucks were needed to pour at job-
sites, and then directing the trucks there. Hampton agreed that
the duty was generally performed by the Respondent’s two
salesmen. While Edwards opined that drivers would be disci­
plined for failing to follow the directions of the salesmen, or
Hampton, he also admitted that no one ever told him that. He
also acknowledged that Hampton never claimed that he was a
supervisor, and that Hampton and the salesmen were simply
relaying instructions from the superintendents of the customers.
At the time Hampton was temporarily assigned to serve as a
coordinator in January and February, Respondent removed
Hampton’s name from the mixer/driver seniority list for pur­
poses of Saturday overtime. However, Edwards acknowledged
that Hampton also drove a ready-mix truck from time-to-time
during the roughly 3 weeks that he filled in as a coordinator.
According to an employee named David Feldman, on Janu­
ary 29, Hampton spoke to him at a jobsite in Boulder City,
Nevada. Feldman recounted that Hampton told him that he was
glad to be out of a concrete truck and that he (Hampton) would
be supervising the job. Feldman also testified that a short time
later that same day, Hampton came up to Feldman on the job
and asked him what he thought about the union stuff. Feldman
8 This “threat” apparently found its way to Hayes, who complained
about it to Ramsey. Ramsey simply assured him that Hampton had no
such authority.
9 Ramsey credibly testified that he’d expect “any” employee to ful­
fill the duties of a coordinator if they were first on the job. He also
credibly testified that ordinary employees do, on a regular basis, fulfill
that duty.
10 This witness was forced to admit during his cross-examination
that he lied, both during his direct examination and during his conversa­
tions with management officials, regarding his union activities.
responded that he would go along with what the other drivers
wanted. Hampton told Feldman that if employees voted for the
Union, they would really alienate themselves from the Com­
pany. Feldman did not reply.
Feldman also testified that during January and February, he
often heard Hampton on Respondent’s radios directing the
work of other drivers to and from jobsites.
Feldman also testified that on small concrete jobs, Respon­
dent generally never sent any supervisors or engaged in over-
sight of such jobs. Employees simply knew what to do and did
it. In February, prior to the union election on February 20,
Feldman noticed that Hampton came by at least two small jobs
where Feldman was working alone. In Feldman’s experience
with Respondent, such oversight by management was unusual.
Feldman had never seen supervision on small jobs prior to this
visit by Hampton. When Feldman questioned the site supervi­
sor on that job as to what Hampton wanted, the site supervisor
told Feldman he wasn’t sure why Hampton was there.
Feldman testified that on February 20, the day of the elec­
tion, he served as the Union’s observer. He recalled that
Hampton, chosen by Ramsey, served as the Respondent’s ob­
server. During the election, Hampton and Feldman took a bath-
room break together. As they were headed to the bathroom,
Hampton told Feldman that he (Feldman) was a dirty dog and
said this was not necessary. During another bathroom break
during the election, Hampton again told Feldman that this was
not necessary, there was no reason for doing “this,” and asked
Feldman why was he doing “this.”
Finally, Feldman told on an incident on February 2, in which
Hampton told him that his headlights were on, and to turn them
off. Feldman didn’t do so. Hampton said the same thing some
10 minutes later. Feldman was never disciplined over this inci­
dent.
Ramsey testified that from February 2 to 23 Hampton was
assigned “more of a—not quite full time, but more of a full
time status in helpin [sic] in the field.” No announcement was
made to others, as he remained a driver/mixer. He was not
given any supervisory authority during this time. He can’t
discipline, hire, fire, or commit Respondent’s credit. Nor do
employers in the area use field representatives for supervisory
duties. I never heard that he held himself out as a supervisor,
except that in a couple of instances I heard that Dave said he
could get their jobs, and I told them he couldn’t do that.
Based upon the evidence detailed above, I find that counsel
for the General Counsel has failed to prove that Hampton pos­
sessed either the real or apparent authority of a supervisor for
Respondent during any relevant time.
First of all, I note that the testimony of each of counsel for
the General Counsel’s witnesses is suspect, as I announced at
trial, each made a poor impression for credibility. Indirect
contrast thereto, I found that both of Respondent’s witnesses,
Ramsey and Morris, were forthright, convincing, apparently
truthful, and credible. Thus, in any area of conflict, I will credit
the testimony of Ramsey and Morris over that of Weber, Ed-
wards, Feldman, and Youmans.
I further note that it is axiomatic that the authority of an
agent is neither self-proving, nor properly established by the
words of the alleged agent, himself.
READY MIX, INC. 1195
I decline to draw any inference, adverse or otherwise, from
the failure of any party to call Hampton as a witness, as I have
been invited to do by counsel for the General Counsel. In my
opinion, the totality of the evidence shows that Hampton’s
interests were more closely aligned with ordinary employees
than they are with management. Further, there is no evidence
to even suggest that he was not equally available to either
party’s subpoena. Nor does it appear that he lay within the
control of one party more than the other.
It is important to recall that none of the witnesses for the
General Counsel has testified that any member of management
ever told them that Hampton possessed supervisory authority.
To the contrary, the evidence of the General Counsel’s wit­
nesses were solely upon events which equivocally suggest the
possession of such authority.
For example, Weber has testified that he observed Hampton
driving a truck, albeit an older one, such as those normally
driven by supervisors and salesmen. Thus, he apparently in­
ferred that Hampton was doing the job of a coordinator or field
man. Yet, despite his recital of Hampton’s history of complain­
ing about the wetness of the slump delivered by some drivers,
such as Hayes, he admitted that coordinators are not empow­
ered to reassign drivers, or to warn them or to discipline them.
As he testified, the coordinators are just there to relay instruc­
tions. Ramsey’s testimony directly confirmed that lack of au­
thority by the field men or coordinators, and credibly refuted
any suggestion that Hampton ever succeeded in imposing dis­
cipline, as he was alleged by Weber to have threatened, upon
Hayes. Thus, I find and conclude that Weber’s testimony fails
utterly to establish Hampton’s authority as a supervisor.
Nor was Edwards’ less-than-credible testimony much more
substantive. As to Hampton’s authority, he testified that Hamp­
ton once bragged to him about his new-found status, and that
he, Edwards, “felt” that he had to obey Hampton. Yet, Ed-
wards never testified that Hampton was expressly granted any
authority by a management official of Respondent. Instead, he
admitted that no one ever told him he’d be disciplined if the
didn’t follow instructions from Hampton. He just saw him with
a pickup truck, and a phone, etc. Yet, he also admitted that
Hampton carried his own phone even before these incidents.
Indeed, he ultimately was compelled to admit that Hampton
and the salesmen were merely relaying instructions and infor­
mation from the job superintendent to the trucks, and that he’d
seen Hampton perform the very same tasks even before the
time when Hampton was temporarily assigned a pickup truck.
Further, he observed that Hampton was performing his new
duties sporadically, as he observed during the 3-week period
that Hampton was assigned a pickup truck that Hampton also
drove a regular ready mix truck from time-to-time. Such
equivocal testimony cannot, and does not withstand, the credi­
ble and forthright testimony of Ramsey on the same subject.
Thus, I find and conclude that Edwards’ testimony fails to es­
tablish Hampton’s authority as a supervisor.
The final unconvincing witness for counsel for the General
Counsel on the supervisory issue was Feldman. As summa­
rized above, Hampton was never specifically told that Hampton
was a supervisor. He merely divined that from his observation
that Hampton was driving a pickup truck, and from several
incidents in which Hampton, himself, spoke of his new author­
ity or behaved as though he was possessed of authority to disci­
pline. Of course, none of those incidents led to actual disci­
pline. All other “evidence” cited by Feldman consisted of his
observation of Hampton “bossing” others around while serving
as a field man, as other field men did, and as he’d observed
Hampton do prior to the time that he started driving a pickup
truck, whenever he filled in as a coordinator on a jobsite. In-
deed, when faced with the prospect of discipline by Hampton,
Feldman thought so little of the prospect that he ignored two
explicit instructions he claims were given him by Hampton to
turn off his truck’s lights. Evidently just as he’d suspected,
Feldman was never disciplined for having ignored Hampton’s
instructions. As with other witnesses on this issue, the testi­
mony of Ramsey is far superior, and is credited in any instance
of dispute. Accordingly, I find and conclude that the testimony
of Feldman fails to establish that Hampton was ever possessed
of supervisory authority.
As Ramsey credibly testified, Hampton has never had the au­
thority to hire, fire, discipline, promote, transfer, layoff, reward,
schedule, grant time off, reprimand, authorize overtime, prepare
vacation schedules, address grievances, or charge the Respon­
dent’s credit. While Hampton may have complained about
Hayes’ work, it is clear that neither Hayes nor any other em­
ployee was ever disciplined as a result of any complaint by
Hampton. Instead, while still punching a time clock, and col­
lecting the same hourly wage, Hampton was told to do some-
thing more regularly than he’d done so in the past, and, as a
convenience, told to use a pickup truck for a temporary period
of 3 weeks, until the regular salesman returned to work follow­
ing a sickness. I find that Hampton was not thereby granted
any regular, non-sporadic, or substantial authority of a supervi­
sory nature. Brown & Root, Inc., 314 NLRB 19 (1994). Jobs
such as those in issue, coordinators or field representatives, are
generally nonsupervisory in the industry. They merely facili­
tate in following the instructions of the customer’s job superin­
tendent, and may even be performed by the first driver who
happens to show up at the site. Where instructions are given to
other workers, the instructions must be based upon more than
the experience and knowledge of the craft skills necessary to
operate. North Shore Weeklies, Inc., 317 NLRB 1128 (1995).
Instead, independent judgment must be demonstrated. S.D.I.
Operating Partners, 321 NLRB 111 (1996).
Based on the credible evidence as a whole, I find that coun­
sel for the General Counsel has failed to establish that Hampton
was a supervisor. In light of my findings on this issue of
Hampton’s supervisory capacity, it follows that Respondent
should not be held liable for any action taken by Hampton, and
I find and conclude that the first four allegations of violations
of Section 8(a)(1), as enumerated above, are, as a result, un­
proven. Accordingly, they should be, and hereby are, dis­
missed.
4. Discussion and conclusions regarding remaining
allegations of Section 8(a)(1)
It is also alleged that in August 1997, by Ramsey, Respon­
dent interrogated employees and created the impression of sur­
veillance. Counsel for the General Counsel’s evidence on this
1196 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
point, adduced from Edwards, has been recited above. Re­
spondent, through Ramsey, has denied the allegations, despite
the fact that it is admitted that Ramsey did, as he was posting
notices on the bulletin board, begin one conversation with Ed-
wards by telling Edwards that he’d like to talk to him, and, after
Edwards came into the drivers’ room and opened his lunch box
on the counter before him, ask jokingly whether he had a listen­
ing device. According to Ramsey’s credited testimony, he went
on to say that he’d heard that Edwards had been passing out
union cards. Ramsey claimed, credibly, that he didn’t say that
to inquire about it, but merely to open a conversation, and to
identify the subject matter of the conversation. Edwards lied
and denied doing so. Then, Ramsey went on to tell Edwards
that he couldn’t do that on company time. At that, Edwards
admitted doing so. Then Ramsey merely responded, “O.K.”
and went on his way.
As noted earlier, I found Ramsey to be a credible witness,
and Edwards to be the opposite. Thus, I accept his version of
the facts that his words to Edwards contained no explicit in­
quiry, but merely indicated the subject matter which Ramsey
wished to discuss. However, I recognize that it is possible to
interpret Ramsey’s words as a sort of implicit or implied invita­
tion to “confess,” and, therefore, to serve the same purpose as a
direct inquiry. Nevertheless, I find that there is no merit to this
allegation. Respondent cites Brigadier Industries Corp., 271
NLRB 656 (1984), in support of its argument that this “interro­
gation” was noncoercive. Therein it was noted that the em­
ployee questioned was a well known and open supporter of the
Union, that the interrogation was not accompanied by any
threats, and did not seek any response. Buttressing this conclu­
sion is my observation that Edwards was never disciplined on
account of this, and that nothing beyond legitimate work direc­
tion was spoken to him. I find Respondent’s argument appro­
priate to the circumstances here, and further find that the allega­
tion concerning interrogation and implying surveillance is un­
proven. Accordingly, I find and conclude that it should be, and
it hereby is, dismissed.
It is also alleged that on February 11, by Kenneth D. Nelson,
director of corporate benefits,11 and a vice president of Meadow
Valley Contractors, Inc., Respondent promised employees that
benefits would increase, terms and conditions of employment
would improve, and that they would receive a 401(k) plan and
improved insurance if they rejected the Union as their bargain­
ing representative.
It is not entirely clear just what evidence counsel for the
General Counsel relies upon to support this allegation. I find
that nothing in the record supports a finding that Respondent,
through Nelson, on February 11, promised improved benefits to
employees. As a result, I would ordinarily dismiss the allega­
tion.
However, reading between the lines, it seems most likely to
me that counsel for the General Counsel was actually con­
cerned with events which occurred, if at all, on February 18,
and which, if done at all, were done by Ramsey, and which, if
violative, concerned threats rather than promises. At least,
11 Admitted at trial to be a supervisor of Respondent.
that’s the way I interpret the General Counsel’s brief, and as I
will deal with this matter.
Before doing so, however, I add parenthetically, that if I am
mistaken in my conclusion here, and if counsel for the General
Counsel is still, as he explained in response to my question at
trial, relying upon evidence of an “employer match,” I would
reach the same conclusion. This is so because the announce­
ment of this benefit was clearly made in a memo to employees
which long predated that Union’s campaign, i.e., on December
17, 1997. Further, Ramsey’s credible testimony on the issue of
a discretionary grant of benefits in connection with the Respon­
dent’s 401(k) plan was the sole evidence in the case on that
point. And, his testimony was to the effect that it was not up to
the Respondent’s discretion as to whether or not to give this
benefit, but was solely dependent upon whether or not a par­
ticular profit margin was met.
Feldman seems to be counsel for the General Counsel’s sin­
gle source of evidence on this matter. Thus, right away, coun­
sel for the General Counsel’s allegation was in trouble, since
Feldman was no more convincing on this issue than he was on
the supervisory issue, above. But, in any event, Feldman did
testify that at the Respondent’s preelection meeting with em­
ployees someone, apparently Ramsey, told them that unknown
benefits that employees had concerning a 401(k) plan would be
“taken back” if the Union won the election. However, not only
was it unclear just what was to be taken back, Feldman admit­
ted that he did not even know that the employees previously
had a 401(k) plan with Respondent.
I credit Ramsey’s testimony on this over that of Feldman,
and accordingly find that it is unproven that either Ramsey or
Nelson, on either February 11 or 18, either promised benefits or
threatened to “take back” benefits from employees if the Union
was elected by the employees. Thus, this allegation should be,
and it hereby is, dismissed.
At the resumption of the trial on February 18, 1999, the
complaint was amended to allege that on November 6, by a
written memorandum issued to employees, Respondent intimi­
dated, restrained, coerced and disparaged employees who had
engaged in union activities and who cooperated with the Na­
tional Labor Relations Board during the unfair labor practice
investigation and trial herein.
Counsel for the General Counsel relies solely upon the con-
tents of a memorandum which Respondent admits that it dis­
tributed to its employees just a couple of days following the
adjournment of the trial on November 4. That adjournment
took place because, as I announced at trial, I failed to find that
counsel for the General Counsel’s case in chief was supported
in any respect by credible evidence, and that I was, accordingly,
considering dismissing it by way of a bench decision.
Counsel for the General Counsel objects to the memo’s char­
acterization of the testimony of employees as “false.” In fact,
the memo does advert to certain “false” evidence. According to
the plain words on the face of the memorandum, the same
“false” evidence was given during the first 2 days of the trial,
but had failed to convince me that violations had occurred.
However, as I stated at trial, I cannot agree with counsel for
the General Counsel’s argument. Instead, it appears to me that
Respondent did not exceed the boundaries of Section 8(c) in
READY MIX, INC. 1197
describing to the employees what actions I had taken in the trial
just preceding its adjournment. Accordingly, this allegation
should be, and it hereby is, dismissed.
5. Discussion and conclusions of the 8(a)(3) allegations
On January 17, Youmans was refused a leave of absence,
and since February 5 has not been reemployed or considered
for reemployment.
Youmans testified that he’d been a member of the Union
since April 1998, and had been active in getting pledge cards
signed by fellow employees in the fall of 1997, and he wore a
button showing his support for the Union.
Sometime before beginning his employment with Respon­
dent Youmans had worked for Eagle Ready Mix, a competitor
of Respondent’s, located right across the street. He was fired
from that job.
After going to work for Respondent, Youmans won his
grievance against Eagle Ready Mix regarding his discharge,
and wanted to collect. He mistakenly thought he had to return
to Eagle Ready Mix’s employment in order to do so, but there
is no evidence at all that this fact was ever explained to Ram­
sey.
According to Youmans, he talked to Ramsey about it around
January 16–18. He told Ramsey he wanted to go back and
collect his money, and that he could be finished in a week or
two. According to Youmans, Ramsey sort of looked at his
Teamsters button, and said he’d think about it. Later that day
Youmans saw Ramsey and asked again. Youmans recalled that
Ramsey responded that it wouldn’t be fair to the other drivers,
still looking at Youmans’ button, and denied the request. Thus,
Youmans decided to give notice, and did so. He asked if Ram­
sey would hire him back and Ramsey said definitely, but he’d
have to start at the bottom, without seniority. When Youmans
gave notice Ramsey asked him to continue working to the end
the week. Rather than do so, Youmans quit, and went back to
Eagle Ready Mix.
Youmans recalled that, less than 2 weeks later, he sought re-
employment by Respondent. About February 6, he spoke to
Ramsey, who said to check back next week. Youmans said
he’d lost his job at Eagle, for having a flat. According to You-
mans, Ramsey sort of laughed, and said he knew it’d happen,
and to check with him next week. But, the next week, Ramsey
said he wasn’t hiring drivers. Still a week later, in late Febru­
ary, Youmans testified that a mechanic named Bill said they
needed drivers but Ramsey said no drivers were needed then.
They’ve had no talks since, and he hasn’t been offered reem­
ployment.
Youmans admits that Ramsey told him he’d like him to stay.
Youmans claimed to have knowledge that one employee
named Karl Shifflett had been granted a leave of absence due to
his mother’s illness, and that another, named Joe Amendolaro,
got one to go out of state. Counsel for the General Counsel
argues therefrom that Respondent has engaged in disparate
treatment.
Ramsey’s version was that he tried to get Youmans to stay
with Respondent. As he recalled, he told Youmans to stay and
that he didn’t want to lose him. Ramsey recalled that Youmans
told him that if Respondent was going Union, he would stay,
but not otherwise. Ramsey testified credibly that he told You-
mans that Respondent wasn’t going Union, and wished him
well. According to Ramsey, they agreed that Youmans would
stay the rest of the week and that Friday, January 23 would be
his last day. Ramsey credibly testified that he’d never rehired
anyone under such circumstances. However, later in that same
week, Youmans asked Ramsey for a leave of absence, and
Ramsey said the answer was no if it was to go to work for a
competitor.
Ramsey denied that he’d ever permitted any such process,
and that, because of that, he didn’t rehire Youmans when he
came back seeking his old position just weeks later. He re-
called that one employee, Goodall, had been given a leave of
absence to attend to his sick mother, but was terminated after
two no-shows.
The governing law in this case is Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982). There, the Board announced the follow­
ing causation test in all cases alleging violations of Section
8(a)(3) or violations of Section 8(a)(1) turning on employer
motivation.
First, the General Counsel must make a prima facie showing
sufficient to support the inference that protected conduct was
a “motivating factor” in the employer’s decision.
Second, upon such a showing, the burden shifts to the em­
ployer to demonstrate that the same action would have taken
place even in the absence of the protected conduct.
The United States Supreme Court approved and adopted the
Board’s Wright Line test in NLRB v. Transportation Corp., 462
U.S. 393, 399–403 (1983).
In this case I conclude that the General Counsel has failed to
make out a prima facie case that Youmans was denied a leave
of absence, and subsequently was denied reemployment, be-
cause he participated in union activities during the pre-election
period. Despite the timing of the denials, relatively a short time
after his engagement in union activities, I cannot find that the
General Counsel’s case rises to the requisite level, even if I
presume, as I do for purposes of this decision, that the requisite
showing of employer knowledge has been made, that the em­
ployer acted as it did on account of Youmans’ union activities.
While the elements of timing and knowledge12 are either evi­
dent or are conceded by Respondent, they are insufficient, by
themselves, to carry the day for the General Counsel
In this case there is no evidence that Respondent engaged in
independent violations of the Act. Nor is there any evidence
that Respondent has a proclivity to violate the Act. Finally,
there has been no demonstration of animus toward unionism,
which, as shown above, is prerequisite to findings such as are
sought herein.
Based upon Ramsey’s credible testimony, and Youmans’
admission, I find as fact that Ramsey needed employees during
that week when Youmans asked for what, by all appearances,
would be a leave of absence of indefinite length; yet Ramsey
12 Given the openness of Youmans’ activ ities and the small size of
Respondent’s operations, I think it is likely that Respondent had knowl­
edge of Youmans’ union sympathies.
1198 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
still sought to, and apparently did, persuade Youmans to agree
to stay on for the remainder of the week; only to have Youmans
return a short while later asking for further concessions; where-
upon, Youmans simply quit and went to work for Ramsey’s
competitor.
The General Counsel must establish unlawful motive or un­
ion animus as part of his prima facie case. If the unlawful pur­
pose is neither present nor implied, the employer’s conduct
does not violate the Act. Abbey Island Park Manor, 267 NLRB
163 (1983); Howard Johnson Co., 209 NLRB 1122 (1974).
However, direct evidence of union animus is not necessary to
support a finding of discrimination. The motive may be in­
ferred from the totality of the circumstances proved. Fluor
Daniel, 311 NLRB 498 (1993); Associacion Hospital del Maes­
tro, 291 NLRB 198, 204 (1988). I find that counsel for the
General Counsel has failed to establish this critical element of
animus in this case. There are no independent violations of the
Act, and there is no direct evidence of an intent to discriminate
on the part of Respondent. Nor is there credible evidence of
disparate treatment.
Youmans’ testimony concerning having knowledge of other
employees having received leaves of absence is insufficient to
overcome Ramsey’s credible testimony to the effect that he had
never given such leaves, and that he saw no good reason to
begin with Youmans. The fact that he’d granted time off to
attend to an ailing mother does not belie Ramsey.
Finally, I cannot say that the circumstances of Ramsey’s re­
fusal are so unreasonable on their face as to evidence an intent
to discriminate. Certainly no employer is caused to harbor
kindly feelings toward an employee who leaves him, despite
being told he’s needed, in order to work for a close competitor.
Nor is Ramsey’s explanation for denying the request for a leave
of absence unreasonable; in his position he would naturally be
concerned that other employees would perceive granting such a
request as unfair to them.
Accordingly, I find and conclude that the allegations con­
cerning Youmans are unproven and should be dismissed.
Finally, it is alleged that Respondent, through Ramsey, sus­
pended Warburton for 5 days on account of his union activities.
Warburton did not testify, and the only evidence concerning
this matter came from Ramsey, a credible witness.
Ramsey acknowledged that Warburton attended the repre­
sentation hearing on January 16, and testified there.
Ramsey also acknowledged that Warburton had, since
roughly October 1997, operated another business together with
employee Edwards. In doing so, Warburton worked on some
of his equipment in Respondent’s yard. Contrary to counsel for
the General Counsel’s argument, however, this was done by
Warburton without Respondent’s permission, and contrary to
Ramsey’s explicit instructions. Ramsey credibly testified that
he was concerned about the possibility of civil liability for hav­
ing equipment of others in Respondent’s yard, and, as a result,
he spoke to Warburton and Edwards on numerous occasions,
telling them they could not do their jobs on Respondent’s prop­
erty or use its time to do so. Warburton persisted, however,
even ordering parts, or taking parts from Respondent. Warbur­
ton and Edwards also persisted in discussing their business
during Respondent’s time. Neither was disciplined for doing
so, but Ramsey spoke to them again and again, directing them
not to do so.
However, in December, 1997, Ramsey noted that Warbur­
ton’s truck was overturned just down the street from Respon­
dent. Ramsey told him it was alright to take care of his truck,
but not to do it on Respondent’s property. Notwithstanding his
instruction, when Ramsey next noticed the truck, it was on
Respondent’s property. Ramsey told Warburton to get it off,
only to be told by Warburton that it couldn’t be moved imme­
diately, since he had to unload materials. So, Ramsey told him
to unload it and get it off the premises, but did not give him a
deadline. But, days later, it was still there, and by now had
been dismantled to the point that it couldn’t be moved.
The following month, on January 24, Respondent needed to
perform some maintenance upon its equipment. However, the
truck and equipment needed to do so were missing, and Ram­
sey surmised that Warburton had taken them to his house for
his own use. Going there, he found that his surmise was cor­
rect, and that all its tools were in use. Ramsey angrily ordered
Warburton to return the truck and all its equipment to Respon­
dent’s yard.
On the next work day Ramsey told Warburton that he was
suspended until further notice and said he’d meet with him the
next day.
Next day, feeling he’d let Warburton go on long enough not
accepting his authority, Ramsey informed Warburton that he
was to take a week off without pay. The next morning, War­
burton telephoned to say that he quit.
Upon these facts I cannot find that there is even a remote
chance that a prima facie case has been made out that Warbur­
ton’s suspension was motivated by his union activities or sym­
pathies.
Not only were Warburton’s activities apparently minimal, it
is not even clear which side his sympathies lay on. While he
testified at the representation hearing, it is not clear what he
said, or what that revealed about his sympathies.
Presuming, however, that Warburton was a strong union ad­
vocate, and that Respondent knew of such advocacy, the result
would be the same. For, as with Youmans, there is absolutely
no showing of animus present here.
I reject the specious argument that an employee who suc­
ceeds in flouting his employer’s instructions for a time without
discipline is thereby immunized against ever being disciplined.
This is especially so when the conduct is continued in an espe­
cially egregious way such as taking Respondent’s own equip­
ment, needed by Respondent at its place of business, to the
employee’s home.
Indeed, I consider that the discipline consisted of a mere 5-
day suspension, rather than discharge, to evidence a lack of
animus on Respondent’s part.
This allegation is totally lacking in merit, and should be dis­
missed.
Summarizing, I find and conclude that counsel for the Gen­
eral Counsel has failed to establish a prima facie case by the
preponderance of the credible evidence in any respect alleged.
Accordingly, the complaint shall be dismissed in its entirety.
READY MIX, INC. 1199
CONCLUSIONS OF LAW 3. Respondent has not violated the Act as alleged.
1. Respondent is an employer engaged in commerce within [Recommended Order for dismissal omitted from publica­
the meaning of Section 2(2), (6), and (7) of the Act. tion.]
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.