S & G Concrete Co.

National Labor Relations Board - Board Decisions

Mar 13, 1985

274 N.L.R.B. 895 (N.L.R.B. 1985)

S & G CONCRETE CO
S & G Concrete Co. and Chauffeurs, Teamsters, and
Helpers Local Union No. 391, affiliated with
the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, Petitioner . Case 11-RC-5126
13 March 1985
DECISION AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
The National Labor Relations Board has consid-
ered objections and challenges to an election held 7
April 1983 and the hearing officer's report recom-
mending disposition of them. The election was con-
ducted pursuant to a Stipulated Election Agree-
ment. The tally of ballots shows eight for and eight
against the Petitioner, with three challenged bal-
lots, a sufficient number to affect the results.
The Board has reviewed the record' in light of
the exceptions and briefs and has adopted the hear-
ing officer's rulings, 2 findings, 3 and recommenda-
tions only to the extent consistent with this deci-
sion and finds that the election must be set aside
and a new election held.
The hearing officer recommended that the chal-
lenges to the ballots of Ben Nelson and Charles
Van Dorman be overruled. Specifically, the hear-
ing officer found that both laid-off employees had a
reasonable expectancy of recall as of the time of
the election and were therefore eligible to vote.
The Employer excepts to the hearing officer's
finding that Nelson and Dorman had a reasonable
expectation of future employment. The Employer
contends that Nelson was hired specifically to
work on two special projects and when they were
completed his service was no longer needed. It fur-
ther contends that Dorman's layoff was dictated by
i We find that there is nothing raised in the Employer's exceptions
warranting an examination of the investigatory materials compiled by the
Regional Director Therefore, we deny the Employer's motion to compel
transfer of the record to the Board The record on which we have re-
solved the issues in this proceeding is based exclusively on evidence pre-
sented to the hearing officer Accordingly, the materials earlier presented
to the Regional Director and on which he made a limited determination
to send the now disputed matters to a hearing before the hearing officer
are irrelevant for the purposes of our review of the hearing officer's find-
ings and recommendations
2 At the hearing the Respondent objected to the hearing officer's refus-
al to sequester witnesses after testifying if they were to be called by the
Petitioner as rebuttal witnesses We find no abuse of discretion here, as
the Respondent has not offered to demonstrate the manner in which the
ruling prejudiced its case See Plumbers Local 633 (B & W Construction),
249 NLRB 67 fn 2 (1980)
3 The Employer has excepted to some of the hearing officer's credibil-
ity findings The Board's established policy is not to overrule a hearing
officer's credibility resolutions unless the clear preponderance of all the
relevant evidence convinces us that they are incorrect Stretch-Tex Co,
118 NLRB 1359, 1361 (1957) We find no basis for reversing the findings
except as expressly modified herein
895
economic reasons resulting from increased competi-
tion in the area and a permanent decrease in the
available business to the Employer. For the reasons
set forth below, we agree with the Employer
The Employer is engaged in the manufacture of
concrete and delivers it by truck to jobsites in the
vicinity of Wilmington, North Carolina. Its busi-
ness is seasonal with decreased activity from No-
vember through February and upward increases
beginning in March. In 1981 the Employer was the
only such ready-mix concrete company in the Wil-
mington area and in that year made a profit of
$37,000 from the delivery of 51,000 yards of con-
crete. However, during that year and the next, two
competitors entered the Wilmington market and
the Employer's delivery of concrete was reduced
in 1982 to 40,300 yards. In that year the Employer
lost $47,000.
About the same time, commencing in March
1982, the Employer engaged in two special
projects to modify its operations. One involved the
building of a concrete plant in Castle Hayne, North
Carolina4-about 15 miles north of Wilmington-
and the other entailed consolidating two operations
at the Employer's main plant in Wilmington. The
projects were completed by mid-January 1983.5
The two layoffs occurred during the following
month.
Ben Nelson was hired in March 1982 to perform
unskilled labor. 6 His tasks included cleaning up,
spraying, sandblasting, and painting equipment in-
cluding trucks, and assisting welders on the afore-
mentioned special projects.' During the first few
weeks of employment, he worked at Castle Hayne
and thereafter at Wilmington. According to
Nelson, he was told on 20 January by Plant
Manger Bob Matheson that due to lack of work he
was temporarily laid off and that when work
picked up he would be recalled.
Matheson gave a different version as to the cir-
cumstances of the layoff. According to him, Nelson
was hired solely to work on the special projects
and work assignments unrelated to the projects
were given merely to complete a day's work.
Matheson testified that after the completion of the
special projects there no longer was a need for the
service of a full-time laborer. Matheson further tes-
tified that on 20 January he informed Nelson he
had created work just to keep him busy that week,
4 Apparently this plant was being relocated from Riverside, North
Carolina
All dates are 1983 unless otherwise indicated
e The Employer's other employees were in the following classifica-
tions mechanic, maintenance welder, batch plant operator, and driver
' The parties are not in dispute regarding these duties
274 NLRB No. 116
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he had run out of work for him, and that he
was being laid off.
The other employee in dispute, Charles Van
Dorman, worked for the Employer as a truckdriv-
er from May or June 1982 until his layoff on 18
February. Dorman testified that at the end of his
shift that day he was called to Matheson's office
and was told by Matheson that he was being laid
off for a while due to lack of work. Dorman asked
Matheson when he could check back with Mathe-
son and, the latter indicated in a couple of weeks.
Matheson also told him that two other drivers,
Sasser and Bass, also were being laid off.
Matheson's testimony conflicts with that of
Dorman. Matheson testified that on 18 February he
told Dorman the Employer did not have the work
to support all the people they had; they were cut-
ting back and he was being laid off due to lack of
work. Matheson specifically testified that he told
Dorman that there was no reasonable expectation
of recall or foreseeable need for his services in the
future. Matheson denied telling Dorman to check
back with him in a couple of weeks. Matheson fur-
ther testified that, shortly after the layoffs of
Dorman, Sasser , and Bass, he was instructed by the
Employer's president to prepare two cement trucks
for transfer out of the Wilmington fleet and that
they were removed in late February.8
The evidence on the Employer's past record re-
garding recall of laid-off employees indicated that
prior to 1983 the Employer laid off six employees
and that two of these six were subsequently re-
called.
In examining the status of these two laid-off em-
ployees, the hearing officer correctly set forth the
test for establishing the eligibility of laid-off em-
ployees to vote in a representation election, citing
D. H. Farms, 206 NLRB 111 (1973). Such entitle-
ment depends on objective factors supporting a
reasonable expectancy of recall in the near future
which include the past experience of the employer,
the employer's future plans, the circumstances of
the layoff, and what the employee was told about
the likelihood of recall. Accord: Atlas Metal Spin-
ning Co., 266 NLRB 180 (1983).
In applying the above test to this case, the hear-
ing officer found that with respect to each employ-
ee the controlling factor was the circumstances of
the layoff. He relied primarily on the seasonal
nature of the Employer's business and the fact that
the layoffs occurred shortly before the customary
increase in business in March. With respect to
Nelson the hearing officer found that, although
Nelson's unskilled duties could be performed by
others during the slack period, someone would be
needed to do this work as business increased. The
hearing officer found that this led Matheson to tell
Nelson, whose testimony was credited, that the
layoff was temporary and he would be called back
when work picked up. The hearing officer also
credited the testimony of Dorman over that of
Matheson and found that when the workload in-
creased there might be a need to recall Dorman. In
summation the hearing officer found that the Em-
ployer's operations were in a state of flux which
precluded the Employer from knowing its future
personnel needs by the date of the election on 7
April. He concluded that Nelson and Dorman had
a reasonable expectation of recall at the time of the
election and that they were both eligible to vote.
Contrary to the hearing officer, we find that the
preponderance of the evidence indicates that
Nelson and Dorman had no reasonable expectation
of recall in the near future. A review of the record
convinces us that the hearing officer erred in con-
cluding that these layoffs merely were a result of
the seasonal nature of the Employer's business.
Nelson was hired as a laborer to work on the Em-
ployer's special projects and there is no evidence
that the Employer ever previously employed per-
sons to work solely as laborers. Nelson was laid off
soon after the completion of these projects and has
not been replaced. Although there is some evi-
dence that he performed duties unconnected to the
special projects, it is not in dispute that this was
only to supplement his regular duties on the special
projects.9 At no time during Nelson's employment,
even during the height of the Employer's business
activity in mid-1982, is there any evidence showing
the need for Nelson or any other person to work
primarily as a laborer in connection with the Em-
ployer's regular business activity. Accordingly, the
circumstances of Nelson's layoff indicate it was di-
rectly connected to the completion of the Employ-
er's special projects and not seasonal business activ-
ity.
Dorman's layoff also may not be attributed to
the seasonal nature of the Employer's business. i 0
The record is clear that the Employer's economic
position in Wilmington deteriorated significantly
8 President Holub testified that at the beginning of 1983 the Employer
had 12 or 13 trucks in Wilmington After the three d-,^ers were laid off,
he had two or three concrete trucks relocated to another S & G Con-
crete operation in Edgewood , Maryland He stated t . iat Dorman 's truck
was one of those transferred Dorman admitted in his testimony that he
subsequently learned that two trucks had been "sent up not th "
9 It is apparent from the record that employees in other classifications
also performed general cleanup duties and other unskilled work in addi-
tion to their normal work assignments
10 If the Employer's primary reason for laying off Dorman was a tem-
porary seasonal reduction in work, the hearing officer failed to explain
why the Employer waited until almost the end of the 4-month slow
period before laying off Dorman
S & G CONCRETE CO
after two competing ready-mix concrete companies
started business in the area. The Employer made a
business decision to reduce its cost of operation by
laying off three drivers and permanently removing
at least two concrete trucks from its fleet, includ-
ing the one assigned to Dorman. The record fur-
ther shows that Dorman became aware of the re-
moval of these trucks. Given the removal of Dor-
man's truck from the Wilmington operation, it is
clear that his layoff was directly connected to a
permanent reduction in the Employer's need for
drivers.
The remaining objective factors used to deter-
mine the existence of a reasonable expectancy of
recall also provide insufficient basis to support the
voting eligibility of Nelson and Dorman. The past
experience of the Employer does not indicate any
seasonal pattern of layoffs and recalls, and the
record shows the Employer has neither a policy
nor a practice of recalling laid-off employees. i i
The Employer's future plans as detailed above
clearly reveal no intent to hire a laborer or addi-
tional drivers.
The only evidence which may support a reasona-
ble expectancy of recall for Nelson and Dorman is
their testimony that Matheson told them their lay-
offs were temporary, that Nelson would be re-
called when work picked up, and that Dorman
should check back in a couple weeks. Matheson ef-
fectively denied having made such statements. As
set forth above, the hearing officer's analysis of the
circumstances of the layoff, which we have herein
found are erroneous, caused him to credit Nelson's
testimony and apparently that of Dorman.12 Be-
cause the hearing officer made his credibility deter-
minations based on his analysis of the facts, the
Board is dust as capable as the hearing officer of
evaluating the inherent probabilities of the testimo-
ny. Given that the circumstances of the layoffs as
discussed above do not support any expectancy of
recall, we find it inherently unlikely that these em-
ployees were given any assurance of recall at the
11 The hearing officer recognized that such evidence "merely
show[ed] that it has recalled some employees from layoff and that it has
failed to recall some employees from layoff "
12 Although the hearing office made an introductory reference to de-
meanor, it is clear that his decision to credit Nelson was not based on
demeanor but on "the circumstances of the layoff " The hearing officer
provided no additional rationale for crediting Dorman
897
time of the layoff.13 In any event it is clear that,
when the other factors involved do not support a
laid-off employee's having a reasonable expectancy
of recall, verbal statements indicating possible
recall will not overcome the totality of the evi-
dence to the contrary. 14 In conclusion, we find
that the evidence does not support a finding that at
the time of the election either Nelson or Dorman
had a reasonable expectancy of recall and we sus-
tain challenges to their ballots.
In view of our disposition of the challenged bal-
lots of Nelson and Dorman, and the uncontested
recommendation of the Regional Director that the
sole remaining determinative challenged ballot
(that of Freddie Foy) be sustained, it is necessary
to consider the merits of the Petitioner's oblec-
tions .15 The hearing officer recommended that the
Petitioner's Objections 3, 4, and 5 be sustained and
the Employer has excepted to these recommenda-
tions. On review of the record, we adopt the hear-
ing officer' s recommendation to sustain Objection 4
based on credited testimony that in a speech to em-
ployees prior to the election the Employer's presi-
dent indicated that it would be futile for employees
to select a union as their collective-bargaining
agent, that the Employer would not negotiate with
the Petitioner, and that a strike would be inevita-
ble.16 We therefore find it unnecessary tot pass on
the issues raised by Objections 3 and 5. According-
ly, we shall direct that a second election be con-
ducted.
[Direction of Second Election omitted from pub-
lication.]
13 Member Dennis does not join in reversing the hearing officer's
credibility determinations and relies instead on the rationale of the next
sentence
14 Precision Tumbling Co, 252 NLRB 1014 (1980), Pasquier Panel Prod-
ucts, 219 NLRB 71 (1975), Thomas Engine Corp, 196 NLRB 706 (1972)
15 As indicated at the beginning of this decision , the Petitioner has not
received a majority of the valid votes cast in this election
'6 The Employer has excepted , inter alia, to the hearing officer's fail-
ure to provide its counsel with all affidavits taken from employee Brown
in connection with the Board 's investigation of this case The record re-
veals that, during the presentation of Brown's testimony at the hearing,
the Employer's counsel requested a copy of an affidavit which Brown
gave to the Board on 24 February 1983 The hearing officer, who stated
that he did not possess a copy of the requested affidavits , nevertheless
found that the 24 February 1983 affidavit "could in no way relate to the
objections to the election which occurred in April " We reverse the hear-
ing officer's ruling that the 24 February 1983 affidavit was irrelevant as
we find that the Employer is entitled to receive a copy of this document
See Sec 102 118(c) of the Board's Rules and Regulations Accordingly,
in adopting the hearing officer's recommendation that Objection 4 be sus-
tained , we rely solely on the credited testimony of employee Garvin