University Sand 7 Gravel

National Labor Relations Board - Board Decisions

Apr 27, 1984

270 N.L.R.B. 61 (N.L.R.B. 1984)

UNIVERSITY SAND & GRAVEL
University Sand & Gravel, Inc. and Richard E.
Hubbell
University Sand & Gravel, Inc. and James E. Shaw,
Petitioner and International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local Union No. 65,. Cases
3-CA-11160 and 3-RD-777
27 April 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 18 January 1984 Administrative Law Judge
Edwin H. Bennett issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel submitted an an-
swering brief to the Respondent's exceptions.
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 briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, University
Sand & Gravel, Inc., Brooktondale, New York, its
officers, agents, successors, and assigns, shall take
the action set forth in the Order.
IT IS FURTHER ORDERED that Case 3-RD-777 be
severed from the proceedings herein, and that the
case be remanded to the Regional Director for
Region 3 for further proceedings.
IT IS FURTHER ORDERED the the Regional Direc-
tor for Region 3 shall, pursuant to the National
Labor Relations Board Rules and Regulations,
within 10 days from the date of this Order, open
and count Richard E. Hubbell's ballot and thereaf-
ter prepare and serve on the parties a revised tally
of ballots, on the basis of which he shall issue the
appropriate certification.
I The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
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 reversing
the findings.
The Respondent further contends that the judge was biased in that he
prejudged the issues before him. We have carefully reviewed the entire
record and the judge's decision in light of the Respondent's contentions
and conclude that the contentions are without merit.
270 NLRB No. 18
DECISION
STATEMENT OF THE CASE
EDWIN H. BENNETT, Administrative Law Judge. This
proceeding was heard in Ithaca, New York, on July 18
and 19, 1983. The charge was filed by Richard E. Hub-
bell on August 4, 1982, and the complaint, which issued
on March 4, 1983, alleges that University Sand &
Gravel, Inc. (herein called Respondent) laid off and has
failed and refused to recall Hubbell because of activities
on behalf of International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers Local Union
No. 65 (herein called the Union), in violation of Section
8(a)(3) and (1) of the Act.
The representation case was consolidated for hearing
with the complaint by an order dated April 4, 1983, be-
cause Hubbell's ballot in a decertification election con-
ducted on March 24, 1983, was challenged by the Board
and it is a determinative vote, one vote having been cast
for, and one against, union representation.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and Respondent,
I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent, incorporated under New York law, main-
tains its principal office and place of business at Lansing,
New York, and a plant and place of business at Brook-
tondale, New York, where it is, and has been at all times
material herein, engaged in the production, sale, and dis-
tribution of sand, gravel, and related products. Respond-
ent annually sells and delivers such goods and materials
valued in excess of $50,000 to several New York State
enterprises which themselves are directly engaged in
interstate commerce. The complaint alleges, Respondent
admits, and I find that it is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act. Further, it is admitted and I find that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
II. THE UNFAIR LABOR PRACTICES
A. Background
In 1971 Louis Ettinger, a principal owner of several
family owned businesses,' asked Glenn Strauf, a vice
president in one of the companies, and in charge of oper-
ations of all the Ettinger enterprises, to find another busi-
ness which Ettinger could purchase. Strauf, who retired
in July 1980, arranged for Ettinger's purchase of Re-
spondent, whose employees then were represented by
the Union, a status which continued thereafter.
The record is not entirely clear as to the extent of the companies
owned by the Ettinger family. It appears that at least Highway Materials.
Cayuga Services, University Sand & Gravel, and Roto Salt are included
in this group.
61
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Until the fall of 1982 Respondent also was engaged in
the production and sale of redi-mix concrete in addition
to its sand and gravel business. That process entailed
transporting raw aggregate from Respondent's quarry
and dumping it over a hopper where it then was fed
along a conveyor belt system through a feeder, a
crusher, and various screens which washed and separat-
ed the final product into five different aggregates, a por-
tion of which was used to make cement for concrete.
Respondent's quarry operation is seasonal, closing in
November and reopening around the first of April. How-
ever, the quarry produced and stored sufficient quantity
of aggregate to maintain the concrete business for the
entire year. Although quarry (or plant) employees were
laid off during the winter shutdown, truckdrivers, who
transported the concrete, were generally laid off only for
a brief period or not at all.
In 1980 Respondent began a gradual elimination of
redi-mix concrete portion of its business. Sometime in
1982, pursuant to a decision made in December 1981 or
January 1982, Respondent finally terminated its produc-
tion of redi-mix concrete although it continued to com-
plete deliveries on preexisting orders into October of that
year. Eventually, the four or five redi-mix trucks were
sold or retired from service and the redi-mix drivers
were terminated.
In any event, as of early February 1982, Respondent
had only three unit employees, Hubbell, who was active-
ly at work and was the most senior employee, and two
employees on seasonal layoff: James Shaw (the Petitioner
in the decertification case) and Walter Parker. Hubbell
had worked for Respondent since 1964 as a concrete
truckdriver and had been union steward since 1975. Prior
to the alleged discriminatory layoff on February 5, 1982,
he only had been laid off briefly during Christmas in
1980 and 1981. During his period of employment he had
been assigned maintenance and cleaning work in the
plant whenever there had been insufficient driving work,
which generally occurred during the winter months.
Shaw worked the upper end of the loader, and did weld-
ing, mechanical, and repair work. He had been laid off
every winter, usually in November, and recalled in Feb-
ruary or March. Parker, a 17-year employee, had begun
employment as a driver. In 1980 he became primarily a
plant employee who performed essentially unskilled
labor loading the hopper with stone and gravel while
continuing to drive a truck on occasion.
The management team in 1982 consisted of Susan
Oakes, president, and John Rodgers, plant manager.
Oakes is a daughter of the elder Ettinger and she as-
sumed the role of president in April 1980 succeeding a
brother who had held that position since 1977 following
the death of their father.
B. The Alleged Violation
1. The plan of action
About the time Oakes became president she had a dis-
cussion with Strauf concerning the possibility of getting
rid of the Union. Strauf credibly testified that Oakes
asked him how he had eliminated the union at another of
the family's concerns, a reference to a unionized oper-
ation where, Strauf explained, he eliminated union sup-
porters and so reduced the work force that the union
abandoned its interest rather than face a decertification
election. He proceeded to tell Oakes that it would be
necessary to terminate the "strong [union] men" in Re-
spondent and obtain 30 percent in favor of a decertifica-
tion vote. Oakes inquired if Hubbell, the union steward,
was considered a strong union man as reported by her
brother. Strauf answered affirmatively and Oakes there-
upon instructed him to terminate Hubbell's employment
at the first opportunity.
Strauf further testified that 3 or 4 weeks later Oakes
again mentioned firing Hubbell. This conversation oc-
curred as a result of an anonymous complaint to a gov-
ernment agency concerning the removal of fresh drink-
ing water from the quarry and plant areas. Oakes cor-
rectly suspected that this complaint had been filed by
Hubbell and informed Strauf that if he did not have suffi-
cient reason to terminate Hubbell then she would. Ap-
proximately I month later Oakes again complained about
Hubbell's continued employment with Respondent. On
this occasion Strauf was requested by Oakes to perform
bargaining unit work during an unusually busy day.
Strauf consented, but when Hubbell protested that an
employee should be recalled from layoff, Strauf relented
and adopted Hubbell's demand. When Oakes was in-
formed of this incident she told Strauf, "I thought you
were going to get rid of him (Hubbell] and then we can
run this thing ourself instead of the Union."
In crediting Strauf's testimony I am mindful that since
his retirement he has been embroiled in several contro-
versies and legal actions with Respondent and his mo-
tives for appearing as a witness might be less than pris-
tine. Nevertheless, his high management position certain-
ly placed him in a position of confidence to Oakes who,
as the new chief executive, reasonably might have been
expected to seek the advice, in any number of areas,
from an "old trusted hand" who had served her father
well. More importantly, Oakes did not deny Strauf's ac-
count of the various conversations, testifying only that
she did not recall them. From my observation of Oakes I
believe she was not disposed to deny outright that which
she knew to be true, particularly such specific events as
testified to by Strauf. Finally, the subsequent treatment
of Hubbell, as discussed more fully below, notably the
insubstantial justification profferred for refusing to
employ him, lends credence to these earlier conversa-
tions.
2. The opportunity to act
On February 5, 1982, Hubbell observed a noncompany
truck being loaded with concrete and complained of this
to John Rodgers, the plant manager. In Rodgers' pres-
ence he called the Union's business agent to inform him
of the situation. At the end of the workday, and without
any prior notice, Rodgers told Hubbell he was laid off
and that the concrete operations were closing. He never
was recalled although, as noted, he was the most senior
employee with 18 years on the job who had performed
maintenance and plant work during periods when there
was a reduced need for driving work. Oakes' reaction to
62
UNIVERSITY SAND & GRAVEL
Hubbell's complaint was to file her own complaint with
the Union, charging that Hubbell, by complaining to the
Union, had violated the collective-bargaining agreement.
Respondent asserts that Hubbell's layoff was incident
to its phasing out the redi-mix concrete operation.
Indeed, and as noted above, the record fully supports
Respondent's position that since about 1980 it had sub-
stantially reduced that portion of its business with a con-
comitant reduction in the number of drivers employed.
Oakes and Rodgers testified that the decision to finally
terminate the redi-mix business was reached in January
1982, although Rodgers also placed conversations with
Oakes in this respect as having occurred in December
1981. Their testimony on this issue was vague and uncer-
tain but clearly that decision was not made even remote-
ly close to Hubbell's layoff on February 5, 1982. But, it
also is clear that no new concrete business was entered
into in 1982 and that during that year Respondent's redi-
mix operation was limited to completing deliveries on
preexisting orders. Nor does the General Counsel allege
that Respondent violated the Act by eliminating the con-
crete portion of its business which was realized with cer-
tainty by October 1982.
On February 8, 1982, Shaw was recalled, followed by
Parker's recall several weeks later. Shaw, without doubt,
had mechanical skills Hubbell did not possess. Shaw
could weld, repair equipment, and do skilled mechanical
work, and on his recall he set about preparing the plant
for spring production. I find the work Shaw performed
on his recall required skills and abilities not possessed by
Hubbell and that Hubbell was not capable of doing that
work. In prior years, Shaw (a witness called by Re-
spondent) had been recalled in March to do this work,
but, as he explained, he required additional time in 1982
because of the absence of drivers to lend a hand.
Respondent defended its recall of Parker, rather than
Hubbell, on the assertion that the former was a more
skilled plant worker. Parker's uncontradicted and credi-
ble testimony establishes that until 1980 he had been a
driver and since that time a quarry worker. On his recall
he did assist Shaw in readying the plant equipment but
he also drove the cement truck until the fall on occasion.
Having been a coworker of Hubbell's for 17 years, he
categorically denied having any greater or special me-
chanical skills than that possessed by Hubbell. Further,
he testified that repair work was not his primary func-
tion. Both Parker and Hubbell testified credibly, and
without substantial refutation, that over the years Hub-
bell had performed mechanical and repair work on
equipment similar to that which Parker was required to
do as a plant worker.
Significantly, Rodgers, a relatively new and inexperi-
enced plant manager without mechanical skills himself,
conceded that he made no effort to ascertain the level of
Hubbell's mechanical abilities prior to recalling Parker. If
more need be said on the subject, we need only look to
Parker's replacement upon his retirement in May 1983.
One Joseph Clair was hired and given 1 day of training
by Respondent. There is no evidence that Clair has any
special mechanical ability or that Respondent was con-
cerned if he had such skills. In the 3 months Clair has
been on the job he has not been assigned any mechanical
work. Respondent has not explained why it did not
recall Hubbell instead of hiring Clair.
111. ANALYSIS
A. The Complaint Case
The initial inquiry under the Board's Wright Lines test
for determining an 8(aX3) violation, such as is involved
here, is whether or not the General Counsel has made a
prima facie showing to support an inference that Hub-
bell's protected conduct was a motivating factor in his
layoff or his discharge. In my opinion, a preponderance
of the evidence unmistakably establishes that Respondent
was unlawfully motivated when it laid off, hereinafter
termed discharged, Hubbell and thereafter failed to recall
him.
Hubbell had been a vocal and active union steward at
Respondent for approximately 7 years. Since April 1980
when Oakes assumed the presidency of Respondent,
Hubbell had complained about Respondent's activities to
government agencies, the Union's business agent, and
Respondent's plant manager. It is undisputed that Oakes
was aware of these activities and visibly irritated by
them, going so far as to file a protest with the Union
about Hubbell at the time of his discharge. On a number
of occasions, Hubbell's actions had forced Respondent to
alter its operations, further annoying Oakes who ex-
pressed the desire to fire him in order to rid Respondent
of the Union entirely. Indeed, Oakes had sought to elimi-
nate the Union from the inception of her presidency and
instructed Respondent's vice president, Strauf, on three
separate occasions, to find an excuse to fire Hubbell.
Thus, the evidence of hostility and animus is conclusive
and overwhelming.
The timing of the discharge is further compelling evi-
dence in concluding that Hubbell's protected activity
motivated his discharge. Hubbell was fired on the very
day that he complained to Respondent's plant manager
and the Union's business agent about an alleged contract-
ing out of bargaining unit work at a time when Respond-
ent was in the process of eliminating a portion of its busi-
ness. Oakes of course learned of this incident and Hub-
bell was fired that same day, without any advance
notice.
Without more the foregoing, i.e., Hubbell's union ac-
tivities, Respondent's animus towards the Union and
Hubbell personally, the suspicious timing of the dis-
charge, and the expressed directives by Oakes to fire
Hubbell because of his union activity present a prima
facie case of an 8(aX3) and (1) violation. Accordingly,
the Wright Line test shifts the burden to Respondent to
establish by a preponderance of the evidence that it
would have fired Hubbell and not recalled him for legiti-
mate business reasons even absent his union activities.
Respondent's defenses fail this test.
Respondent contends that Hubbell's discharge resulted
from the economically motivated closing of the redi-mix
concrete business. Both Oakes and Rodgers testified that
the decision to terminate the concrete business and the
Wright Line, 251 NLRB 1083 (1980).
63
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
implementation thereof was a gradual one. In light of
this, it is incumbent on Respondent to link its phaseout
of the redi-mix business to Hubbell's discharge on Febru-
ary 5, 1982. This it has not even attempted to do, for the
record discloses no significant change in its methods of
doing business throughout the entire year of 1982, or at
least until October. Although Hubbell was the last re-
maining driver employed by Respondent the only event
of any consequence occurring at the time of his dis-
charge which might logically explain that action was
Hubbell's complaint to the Union that day, and Oakes'
demonstrated annoyance by it.
Further diminishing the force of its "business justifica-
tion" is the fact that Respondent continued to make redi-
mix deliveries until October 1982. While these may have
been sporadic, it was Hubbell's work and if Respondent
had followed past business practices Hubbell would have
been assigned other work when not driving. Indeed,
throughout January 1982, Hubbell was utilized precisely
that way. Respondent's argument that Parker and there-
after Clair were more versatile and therefore more useful
than Hubbell not only is unsupported by the evidence,
but directly contradicted by it. Parker and Clair essen-
tially were unskilled laborers and, to the extent Parker
assisted in certain mechanical or repair work, it was
work that Hubbell equally was capable of performing,
and had performed.
It is unimportant that Parker was not recalled until
several weeks after Hubbell's discharge. Initially, I have
concluded the discharge was unlawfully motivated. Sec-
ondly, Hubbell's prior work experience would have
made him quite suitable to assist Shaw, when not driv-
ing, on Shaw's recall immediately following the dis-
charge. Finally, the recall of Parker in place of Hubbell,
under the circumstances described above, serves only to
strengthen the case for a discriminatory discharge rather
than to invalidate it.
Accordingly, I conclude that Respondent violated
Section 8(aX3) and (1) of the Act by firing Hubbell on
February 5, 1982, and thereafter by failing to recall him.
In view of this conclusion it follows that even if Re-
spondent had sustained its burden with respect to the dis-
charge of Hubbell on February 5, 1982, its failure to
recall him when it recalled Parker, at the very latest,
would have constituted a separate violation because I
consider that action pretextual.
B. The Challenged Ballot
As stated above, the Board agent challenged the ballot
of Hubbell because the validity of his vote as an employ-
ee is dependent on the disposition of the complaint.
Having found that Respondent violated Section 8(a)(3)
and (1) of the Act by discharging Hubbell, his status as
an employee of Respondent at the time of the election is
established, and thus he was eligible to vote in the elec-
tion. Accordingly, I recommend that his ballot be
opened and counted.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Teamsters, Chauffeurs, Warehousemen and Helpers,
Local Union No. 65, is a labor organization within the
meaning of the Act.
3. By discriminatorily discharging and refusing to rein-
state its employee Richard Hubbell because of his activi-
ties on behalf of the Union, Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(1) and (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
5. The challenge to the ballot of Richard E. Hubbell
cast by him in the election conducted on March 24,
1983, in Case 3-RD-777, shall be overruled and his
ballot shall be opened and counted.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom and take certain af-
firmative action designed to effectuate the purposes of
the Act. Having found that Respondent discharged and
failed to recall Richard E. Hubbell in violation of Sec-
tion 8(a)(1) and (3) of the Act, I shall recommend that
Respondent be ordered to offer Hubbell immediate and
full reinstatement to his former position of employment
or, if that position is not available, to a substantially
equivalent position, without prejudice to his seniority or
other rights and privileges previously enjoyed.
I shall also recommend that Respondent be ordered to
make Hubbell whole for any loss of earnings he may
have suffered from the date of his discharge, February 5,
1982, to the date he is offered reinstatement. His loss of
earnings shall be computed in the manner prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), and shall in-
clude interest as set forth in Isis Plumbing Co., 138
NLRB 716 (1962), and Florida Steel Corp., 231 NLRB
651 (1977).
I shall also recommend that Respondent expunge from
its files any reference to the discharge of Hubbell and
notify him in writing that it has done so, and that evi-
dence of this discharge will not be used as a basis for
future personnel action against him. Sterling Sugars, 261
NLRB 472 (1982).
Having found that Hubbell retained his status as an
employee because his discharge violated the Act, it fur-
ther is recommended that his ballot cast and challenged
in the election conducted in Case 3-RD-777 on March
24, 1983, be opened and counted and that a revised tally
of ballots be issued.
On the foregoing findings of fact and conclusions of
law and on the entire record, I issue the following rec-
ommended3
s 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.
64
UNIVERSITY SAND & GRAVEL
ORDER
The Respondent, University Sand & Gravel, Inc.,
Brooktondale, New York, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Discharging, laying off, or otherwise discriminating
against employees in regard to hire or tenure of employ-
ment, or any term or condition of employment because
of their activities on behalf of International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers,
Local Union No. 65, or any other union.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the 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) Offer to Richard E. Hubbell immediate and full re-
instatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without prej-
udice to his seniority or other rights and privileges, in
the manner set forth in the section of this decision enti-
tled "The Remedy."
(b) Make whole Richard E. Hubbell who was dis-
charged on February 5, 1982, for any loss of pay he may
have suffered by reason of Respondent's unlawful activi-
ty in accordance with the section of this decision entitled
"The Remedy."
(c) Expunge from its files any reference to the dis-
charge of Richard E. Hubbell on February 5, 1982, and
notify him in writing that this has been done, and that
evidence of this unlawful discharge will not be used as a
basis for future personnel action against him.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(e) Post at its places of business in Lansing, New York,
and Brooktondale, New York, copies of the attached
notice marked "Appendix."4 Copies of the notice, on
forms provided by the Regional Director for Region 3,
after being duly signed by Respondent's representative,
shall be posted by it, in conspicuous places, including all
4 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-
tionsl Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order, what steps Respondent
has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the Board overrule
the challenge to the ballot cast by Richard E. Hubbell in
the election conducted in Case 3-RD-777 on March 24,
1983, and order his challenged ballot be opened and
counted, and that a revised tally of ballots be issued.
Further, that this case be severed and remanded to the
Regional Director of Region 3 for such proceedings to
be conducted as soon as feasible under the circumstances
present herein.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions, it has been
found that we have violated the National Labor Rela-
tions Board and we have been ordered to post this
notice.
WE WILL NOT discharge, or otherwise discriminate,
against our employees because of their activities, on
behalf of Teamsters, Chauffeurs, Warehousemen and
Helpers, Local Union No. 65, or any other union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
rights guaranteed them by Section 7 of the Act.
WE WILL offer Richard E. Hubbell immediate and full
reinstatement to his former position or, if that job no
longer exists, to a substantially equivalent position with-
out prejudice to his seniority or any other rights and
privileges, and make him whole, with interest, for any
loss of earnings he may have suffered because of our dis-
criminatory conduct against him.
WE WILL expunge from our files any reference to the
termination of Richard E. Hubbell, and we will notify
him that this has been done and that evidence of this un-
lawful termination will not be used as a basis for future
personal actions against him.
UNIVERSITY SAND & GRAVEL, INC.
65