San Antonio Cement Co.

National Labor Relations Board - Board Decisions

Apr 14, 1984

270 N.L.R.B. 535 (N.L.R.B. 1984)

SAN ANTONIO CEMENT CO.
Alamo Cement Company d/b/a San Antonio Port-
land Cement Company and United Cement,
Lime and Gypsum Workers International
Union, AFL-CIO. Case 23-CA-8753
14 April 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 21 April 1983 Administrative Law Judge
Leonard M. Wagman issued the attached decision.
The General Counsel filed exceptions and a sup-
porting 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
conclusions2 and to adopt the recommended
Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
i The General Counsel has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance 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 re-
versing the findings.
· The General Counsel excepted to the judge's conclusion that Enrique
Zapata and Sergio Zapata, both employed as foremen by the Respondent,
had no apparent personal interest in the outcome of this case. We have
considered the record and conclude that even though they are both fore-
men there is nothing in the record to indicate that either had a personal
interest in the outcome of this case sufficient to warrant reversing the
judge's credibility findings. The General Counsel also excepted to the
judge's failure to consider the threat of court action in the employee
warning record issued by the Respondent. It is clear that the judge con-
sidered the threat and concluded that there was no evidence that the Re-
spondent had ground for believing that the threat of court action includ-
ed the filing of an unfair labor practice charge with the Board. (See fn. 7
of the judge's decision.)
DECISION
STATEMENT OF THE CASE
LEONARD M. WAGMAN, Administrative Law Judge.
Upon a charge filed by United Cement, Lime and
Gypsum Workers International Union, AFL-CIO, the
Union, the Regional Director for Region 23 of the Na-
tional Labor Relations Board, the Board, issued a com-
plaint on March 4, 1982, alleging that Respondent Alamo
Cement Company d/b/a San Antonio Portland Cement
Company, the Company, violated Section 8(a)(4) and (1)
of the National Labor Relations Act by discharging em-
270 NLRB No. 94
ployee Jesus A. Contreras Jr. because he had testified as
a discriminatee and witness in a prior Board unfair labor
practice proceeding' involving the Company as a party
respondent, and because Contreras announced his intent
to file unfair labor practice charges against the Company
with the Board if his supervisor did not cease harassing
him at work. The Company, by its timely answer, denied
commission of the alleged unfair labor practices. In this
decision, I have recommended dismissal of the com-
plaint.
From the entire record, including my observation of
the demeanor of the witnesses, and after due consider-
ation of the briefs filed by the General Counsel and the
Company, respectively, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
The Company, a Texas corporation, maintains its prin-
cipal office and place of business in San Antonio, Texas,
where it engages in the processing and manufacturing of
cement. The Company, in the course and conduct of its
business operations, annually purchases and receives
goods and materials valued in excess of $50,000 directly
from points and places located outside the State of
Texas. The Company admitted the foregoing data from
which I find, as the Company also admitted, that at all
times material, the Company has been an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
The complaint alleges, the Company admits, and I find
that the Union is, and has been at all times material
herein, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The complaint alleges, the answer admits, and I find
that:
Employee Jesus A. Contreras, Jr., subpoenaed as
a witness by counsel for the General Counsel, testi-
fied as a discriminatee in the prior unfair labor prac-
tice proceeding involving, inter alia specific allega-
tions of Section 8(a)(1) (Weingarten) and Section
8(a)(4) violations of the Act and wherein Respond-
ent [the Company] and the Union were parties and
which proceeding, pending issuance of Board deci-
sion and order, was heard before Administrative
Law Judge James T. Barker, with decision issued
May 21, 1980. San Antonio Portland Cement Compa-
ny, Cases 23-CA-7182, 23-CA-7281, 23-CA-7360,
23-CA-7415 and 23-CA-7648 [JD-(SF)-155-80].2
San Antonio Portland Cement Co., Cases 23-CA-7182, 23-CA-7281,
23-CA-7360, 23-CA-7415, and 23-CA-7648.
2 I also find from the administrative law judge's decision that the hear-
ing in those cases opened on September 24. 1979, and closed on Septem-
ber 26, 1979.
535
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Company employed Jesus A. Contreras Jr. from
April 1960 until December 11, 1981.3 At the time of his
discharge on the latter date, Contreras was employed on
the 11 p.m. to 7 a.m. shift, as a crane operator, at the
Company's San Antonio plant. Contreras began perform-
ing as a crane operator in April 1981. However, his pro-
motion into that job was not formalized by the Company
until October 17. Along with this promotion, Contreras
received a 28-cent hourly wage increase.'
Beginning in the latter part of November 1981, Con-
treras perceived that his foreman, Enrique Zapata, was
checking his work more closely. Whenever Foreman En-
rique Zapata observed that Contreras was not on his
crane, he would inquire as to what Contreras was doing.
If Contreras was going on a break, the foreman would
direct him to return to the crane and get to work. How-
ever, there was no showing that these incidents were ac-
companied by any remarks or references to Contreras'
participation in the prior Board proceeding involving the
Company.
On the night of November 30, at approximately 11:20,
Contreras came down from his crane for a lunchbreak.
At 12:45 a.m., Foreman Enrique Zapata saw that Con-
treras was not in his crane. Enrique Zapata instructed
Contreras to return to work. Contreras answered, telling
Foreman Zapata not to concern himself about Contreras'
work. Despite Zapata's instruction, Contreras did not
return to his crane.6
On December 1, at 11:20 a.m., Contreras went to the
home of Company Foreman Sergio E. Zapata, who is
Enrique Zapata's son. Contreras was met at the door by
Sergio's wife. At Contreras' request, she awakened
Sergio Zapata and told him of Contreras' presence.
When Sergio Zapata appeared at the door, Contreras de-
manded a discussion concerning Enrique Zapata, Plant
Manager William Dimick, and other persons at the plant.
At Contreras' insistence, the discussion was held in his
automobile.
The ensuing conversation, which lasted 30 to 45 min-
utes, began with Contreras' complaints about Enrique
Zapata. Contreras asked Sergio to talk to his father and
"tell him to get off [Contreras'] back because he [Con-
treras] didn't like people telling him what to do." When
Sergio suggested that Contreras talk to Enrique Zapata,
Contreras insisted that Enrique would listen to his son
Sergio and would not listen to Contreras. Contreras then
warned:
I Unless otherwise stated, all dates hereafter refer to the year 1981.
' Contreras' employment record also showed that in January, when
the Company employed him as a kiln helper, he had received a 61-cent
hourly wage increase.
I I have based my findings regarding the incident on the night of No-
vember 30 on the testimony of Contreras and Enrique Zapata. However,
where an issue of credibility arose because of contradiction or inconsist-
ency, I credit Zapata. Contreras' testimony regarding this incident was
drawn from him on cross-examination. Although he appeared to answer
most questions candidly, on occasion he seemed reluctant to provide an
answer which might cast doubt on the propriety of his remarks to Fore-
man Zapata. I have also taken into account the fact that Contreras is per-
sonally interested in the outcome of this proceeding. In contrast, I noted
that Enrique Zapata has no apparent personal interest in the outcome of
this case, and that while testifying regarding this incident, he seemed to
be giving his best recollection in a candid and straightforward manner.
I don't want to cause trouble, but I have people
that will back me up that will cause trouble for him
if he doesn't leave me alone.
As Contreras and Sergio drove to a store to purchase
beer, Contreras repeated his desire to be free of Enrique
Zapata's close attention at the plant. Contreras reiterated
his earlier warning saying:
Look, I have known your father for too many years
and he has worked at the company for such a long
time. I would hate to see him lose his job over
something like this. And I want you to get him off
my back or I am going to get him in trouble.
After leaving the store, Contreras and Sergio Zapata
drove first to Contreras' home and then returned to Ser-
gio's home. Contreras again said he did not want to
cause "trouble" for Enrique Zapata, but insisted that he
would do so unless Enrique ceased pressuring him. Con-
treras emphasized his sentiments by hitting the steering
wheel as he spoke. At no time during his remarks to
Sergio Zapata did Contreras ever state that he intended
to go to the National Labor Relations Board. 6
Enrique Zapata testified that his son reported to him
that Contreras had threatened to go to the Board regard-
ing his complaints against Enrique Zapata. However, En-
rique Zapata, whose command of English seemed limit-
ed, was uncertain as to the content of his son's report. I
also considered the likelihood that Sergio Zapata would
have had a better recollection than Enrique of what
Contreras had said to him on the morning of December
1 because of his direct involvement.
There is some testimony and evidence in the record
that Contreras' remarks to Sergio Zapata included a
threat to go to court against Enrique Zapata. However,
Sergio's testimony did not include such a threat. Upon
considering the materiality of such a remark in this case,
I determined that it was unnecessary to make a finding
on the question of whether Contreras' remarks included
a threat of court action.
By December 2, news of Contreras' remarks had
reached his plant management. On the night of Decem-
ber 1, Sergio Zapata reported Contreras' remarks to En-
rique Zapata. The next morning, Personnel Manager
Manuel Galindo received word of the incident from En-
rique Zapata. Later, that same day, Sergio gave an oral
account to Galindo, who wrote it in a report and in-
formed Plant Manager William Dimick of the incident.
Upon hearing Galindo's report, Plant Manager Dimick
declared his intention to terminate Contreras if the report
proved to be true.
6 My findings are based on the detailed testimony given by Sergio
Zapata who impressed me as a candid witness. I also noted that unlike
Contreras, Sergio Zapata has no interest in this proceeding and that he
appeared to be sincerely searching his memory for details of his encoun-
ter with Contreras. In contrast, Contreras provided only a sketch of the
encounter which he testified took only about 10 minutes. After listening
to Sergio Zapata's account, I concluded that Contreras' estimate was un-
likely. I also noted that Contreras twice changed his testimony regarding
his remarks to Mrs. Zapata on the morning of December 1, a factor
which cast doubt on his reliability.
536
SAN ANTONIO CEMENT CO.
On December 11, Plant Manager Dimick met with
Contreras and Personnel Manager Galindo in the plant
manager's office. Galindo gave to Dimick the original of
his report regarding Contreras' conduct on the night of
November 30 and his remarks to Sergio Zapata on the
morning of December 1. Galindo also furnished a copy
to Contreras. Dimick immediately read the report aloud
and asked Contreras if its assertions were true. Contreras
agreed that they were. When Dimick asked Contreras
for an explanation, the latter answered, "[Wlell I really
didn't mean it as a threat Mr. Dimick." At this, Dimick
announced that he was discharging Contreras forthwith.
B. Analysis and Conclusions
The General Counsel contended that the Company
violated Section 8(a)(4) and (1) of the Act because it ter-
minated Jesus A. Contreras Jr. in reprisal for his testimo-
ny at a prior unfair labor practice proceeding and be-
cause he told Sergio Zapata that he intended to file an
unfair labor practice charge with the Board. It is clear
that such conduct by an employer is violative of those
sections of the Act. E.g., Borden Inc., 248 NLRB 1228,
1232 (1980). However, I agree with the Company's con-
tention that the General Counsel has failed to substanti-
ate those allegations here.
The evidence before me shows no connection between
Contreras' participation as a witness in San Antonio Port-
land Cement Co., Cases 23-CA-7182, 23-CA-7281, 23-
CA-7360, 23-CA-7415, and 23-CA-7648, and his treat-
ment at the Company's hands in 1981. The hearing in the
earlier cases opened on September 24, 1979, and closed
on September 26, 1979. The administrative law judge in
that case issued his decision on May 21, 1980. Yet, the
record before me is bare of any evidence of hostility by
Plant Manager William Dimick, Personnel Manager
Manuel Galindo, or Foreman Enrique Zapata growing
out of Contreras' participation in the earlier Board unfair
labor practice proceeding. Absent was any showing that
Foreman Enrique Zapata singled Contreras out for close
attention, or that Contreras' conduct at the plant on No-
vember 30 did not warrant the foreman's attention. On
the contrary, the Company's records show that Con-
treras received a salary increase as a kiln helper on Janu-
ary 1, and later a promotion to crane operator at an en-
hanced wage, which became official on October 16, 8
weeks before his discharge. Further, there is no showing
that in considering Contreras' discharge the Company
gave any thought to his participation in the earlier Board
unfair labor practice proceeding.
Nor does the record sustain the General Counsel's
contention that Contreras' discharge was motivated by
his stated intention to file an unfair labor practice charge
with the Board. Thus, credited testimony shows that
Contreras' threat of reprisal did not include any mention
of the Board or its processes. Further, there was no evi-
dence that the Company interpreted Contreras' remarks
as containing any threat to resort to the Board to remedy
his complaint against Foreman Enrique Zapata.7
In sum, I find that the General Counsel has not estab-
lished the violation of Section 8(a)(4) and (1) alleged in
the complaint. Dittler Bros Printing Co., 258 NLRB 357,
362 (1981). Accordingly, I shall recommend dismissal of
the complaint in its entirety.
CONCLUSIONS OF LAW
1. Respondent Alamo Cement Company d/b/a San
Antonio Portland Cement Company is engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. Respondent has not, as alleged in the complaint, en-
gaged in unfair labor practices within the meaning of
Section 8(a)(4) and (1) of the Act.
On the foregoing findings of fact and conclusions of
law and as the entire record, I issue the following recom-
mended8
ORDER
The complaint is dismissed in its entirety.
7 Assuming that Contreras' remarks had included a reference to court
action, such a threat would not have provided ground for sustaining the
General Counsel's contentions. For there was no evidence that the Com-
pany understood, or had ground for believing that such reference includ-
ed the filing of an unfair labor practice charge with the Board.
I 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.
537