W. C. Babcock Construction Co.

National Labor Relations Board - Board Decisions

Jul 27, 1993

311 N.L.R.B. 1215 (N.L.R.B. 1993)

1215
311 NLRB No. 160
W. C. BABCOCK CONSTRUCTION CO.
1 On February 24, 1993, Administrative Law Judge Marion C.
Ladwig issued the attached decision. The Respondent filed excep-
tions and a brief, the Charging Party filed an answering brief, and
the General Counsel filed limited cross-exceptions.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
3 We find, in agreement with the judge, Tim Kryshak is a super-
visor within the meaning of Sec. 2(11) of the Act and sustain the
challenge to his ballot. We, therefore, find it unnecessary to decide
whether, even assuming Kryshak is not a supervisor, the parties had
agreed to exclude Kryshak from the unit description in the Stipulated
Election Agreement.
W. C. Babcock Construction Company, Inc. and
International Union of Operating Engineers,
Local Union No. 150, AFL–CIO. Cases 25–CA–
22036, 25–CA–22074, and 25–RC–9158
July 27, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The issues are whether the judge properly found that
the Respondent violated Section 8(a)(3) for discharging
employee Todd Stevens and whether the judge prop-
erly sustained the challenge to the ballot of Tim
Kryshak.1
The Board has considered the decision in light of
the exceptions and briefs and has decided to affirm the
judge’s rulings, findings,2 and conclusions3 and to
adopt the recommended Order as modified.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge, as
modified, and orders that the Respondent, W. C. Bab-
cock Construction Company, Inc., Rensselaer, Indiana,
its officers, agents, successors, and assigns, shall take
the action set forth in the Order.
1. Insert the following as paragraph 1(g) and reletter
the subsequent paragraphs.
‘‘(g) Promising unspecified benefits for voting
against the Union.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
IT IS FURTHER ORDERED that Case 25–RC–9158 be
remanded to the Regional Director to open and count
the challenged ballots of William Carter and Todd Ste-
vens and take further appropiate action consistent with
this Decision and Order.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT discharge or otherwise discriminate
against any of you for supporting the International
Union of Operating Engineers, Local No. 150, AFL–
CIO, or any other union.
WE WILL NOT coercively question you about your
union support or activitives.
WE WILL NOT create the impression that your union
activities are being watched.
WE WILL NOT promise you a pay raise or future
wage increases for voting against the Union.
WE WILL NOT threaten to discharge union sup-
porters.
WE WILL NOT threaten to keep you on layoff or
threaten the loss of jobs, layoffs, or reduced working
hours if you vote for a union.
WE WILL NOT promise you unspecified benefits for
voting against the Union.
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.
WE WILL offer Todd Stevens immediate and full re-
instatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privi-
leges previously enjoyed and WE WILL make him
whole for any loss of earnings and other benefits re-
sulting from his discharge, less any net interim earn-
ings, plus interest.
WE WILL notify him that we have removed from our
files any reference to his discharge and that the dis-
charge will not be used against him in any way.
W. C. BABCOCK CONSTRUCTION COM-
PANY, INC.
1216 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1992 unless otherwise indicated.
2 The General Counsel’s unopposed motion to correct the tran-
script, dated January 20, 1993, is granted and received in evidence
as G.C. Exh. 19.
Joanne C. Krause, Esq., for the General Counsel.
Todd M. Nierman, Esq. (Baker & Daniels), of Indianapolis,
Indiana, for the Respondent.
Pasquale A. Fioretto, Esq. (Baum and Sigman), of Chicago,
Illinois, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Administrative Law Judge. These
cases were tried in Rensselaer, Indiana, on December 1–3,
1992.1 The charges were filed by the Union in Case 25–CA–
22036 on July 6 and in Case 25–CA–22074 on July 23
(amended September 14) and a consolidated complaint was
issued September 23 and amended November 24. On No-
vember 4 the Board adopted the recommendations in the
Acting Regional Director’s October 13 Report on Objections,
consolidating the representation case with the complaint
cases.
On May 22, 2 days after 7 of its 10 production and main-
tenance employees signed union cards, the Company dis-
charged a union supporter and engaged in conduct alleged to
be coercive. On May 27, the day after the Union sought rec-
ognition, the Company temporarily locked out the employees
(the subject of an earlier charge). During the election cam-
paign, the Company supplemented its literature and meetings
with one-on-one conversations with employees.
The primary issues in the complaint cases are whether the
Company, the Respondent, (a) discriminatorily discharged
mechanic Todd Stevens and (b) engaged in coercive conduct
at the time of his discharge and in the one-on-one conversa-
tions, violating Section 8(a)(1) and (3) of the National Labor
Relations Act.
In the representation case the petition was filed May 26,
the Stipulated Election Agreement was approved June 16,
and the election was held July 10. The vote was four for and
five against union representation, with three challenged bal-
lots, a sufficient number to affect the outcome of the elec-
tion. The Union filed timely objections.
On the entire record,2 including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel, the Company, and Union, I
make the following
FINDINGS OF FACT
I. JURISDICTION
The Company, a corporation, operates a quarry in
Rensselaer, Indiana, where it annually ships crushed stone
valued over $50,000 to customers, each of whom annually
receives goods valued over $50,000 directly from outside the
State. The Company admits and I find that it is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act and that the Union is a labor organi-
zation within the meaning of Section 2(5).
II. ALLEGED UNFAIR LABOR PRACTICES
A. Overview
The Company uses in its quarry old equipment that re-
quires much maintenance, particularly during the winter shut-
down, when Superintendent Randy Cook and some produc-
tion employees assist in making the repairs (Tr. 13, 54, 56,
377, 410, 598, 677). It operates without any replacement
equipment except a spare payloader, necessitating rapid re-
pairs during breakdowns to limit downtime (Tr. 264, 678–
679).
At some point after Superintendent Cook discharged the
Company’s mechanic in October 1991, the Company decided
to employ two mechanics instead of one for the next season
(which usually begins the first of March). Some repairs on
the heavy equipment require two persons working together.
(Tr. 49–50, 53, 56, 136, 166, 777–778, 796–797.) On Janu-
ary 28 it hired Todd Stevens, a recent auto diesel school
graduate who had no experience working on heavy equip-
ment (Tr. 106–107, 226–227).
For the other mechanic, General Manager Larry Jenkins
was planning to rehire Scott Zickmund, an experienced me-
chanic formerly employed at the quarry. Zickmund was then
employed at a John Deere dealer, where he was ‘‘unhappy’’
with the type of machinery on which he was working and
was wanting to return. But, as Jenkins explained at the trial,
Zickmund ‘‘had some health problems’’ and said ‘‘he wanted
to wait until that got done [presumably while he had insur-
ance coverage] . . . . it drug on’’ and ‘‘he didn’t actually
come to work until [May 2].’’ (Tr. 49–50.) The Company
provided paid health insurance for management, not the pro-
duction and maintenance employees (G.C. Exh. 10; Tr. 468).
After May 2 the two mechanics—one higher paid ($8 an
hour) skilled mechanic and one lower paid ($6.50 an hour)
novice (G.C. Exh. 10)—worked together until May 22, when
Stevens was summarily discharged without warning, 2 days
after he voiced his support for the Union.
The Union’s organizing effort began May 15 (Tr. 183,
303). It is undisputed that on Wednesday morning, May 20,
Zickmund (who was antiunion) worked with Stevens in the
pit on loader operator William Carter’s payloader. Carter
handed Zickmund a union authorization card and Stevens, in
Zickmund’s presence, asked Carter if he had another card.
Carter said he did not have one with him and asked pit
truckdriver Emmet Lovely if he did. Lovely asked Stevens
if he would be interested in the Union and Stevens said yes.
Lovely said he did not have any cards with him, but there
were some in his truck and he would get Stevens a card at
the end of the day. (Tr. 231–232, 350–352, 450–451, 688.)
That afternoon near quitting time, both Carter and Lovely
went to the mechanics shop. Carter asked Zickmund if he
had a chance to fill out the card. Zickmund said he had not,
but promised to fill it out and take it to the union meeting
that night. A short distance away, Lovely gave Stevens a
card and cautioned him not to sign it there. Stevens put the
card in his pocket and signed it on the way home. Stevens
admitted at the trial that he did not know if Zickmund had
seen him take the card. (Tr. 233–235, 299, 353–354, 451–
452). By that evening, 7 of the 10 employees had signed the
authorization cards (G.C. Exh. 17; C.P. Exh. 2; Tr. 319).
Zickmund, instead of signing the union card and going to
the meeting as he promised, reported the union activity to
1217W. C. BABCOCK CONSTRUCTION CO.
Cook that evening. Cook, when asked on cross-examination
if Zickmund told him about other employees’ union con-
versations, gave evasive answers (Tr. 660–662). When spe-
cifically asked about stating in a pretrial affidavit that
Zickmund reported hearing ‘‘they were trying to get a union
in,’’ Cook answered that ‘‘one evening . . . I don’t know
when,’’ Zickmund reported Carter’s saying, ‘‘Hey, I hear
they’re trying to get a union in.’’ Finally, after being shown
his affidavit, Cook admitted that Zickmund told him about
the union activity that evening, Wednesday, May 20. (Tr.
663–664, 674.) Two days later Stevens was discharged.
The following Tuesday, May 26, Union Organizer David
Fagan filed a representation petition (G.C. Exh. 2) and hand-
delivered to Cook a bargaining request (C.P. Exh. 3; Tr.
306). The next morning, May 27, Jenkins—before obtaining
legal advice—locked out the employees, stating that he heard
about the Union trying to come in, that he figured he could
not afford it, and that he felt he had nothing to do but lock
the doors (Tr. 184–185, 324–325, 458).
That same day, May 27, the Union file a charge in Case
25–CA–21977 (C.P. Exh. 5), alleging the discriminatory lay-
off of all 10 bargaining unit employees. (Laborer Anthony
Garcia had been hired in the meantime.) On Thursday, May
28, the Union went on strike. Fagan and Business Agent Ray
Connors then met with Jenkins and proposed voluntary rec-
ognition. Jenkins said he wanted to talk to his partner (half-
owner Roger Ward) and would get back to the Union by the
next day, Friday. The employees returned to work. On Tues-
day, June 2, after Jenkins declined to recognize the Union,
stating that he was contacting an Indianapolis attorney, the
Union resumed the strike. (Tr. 307–311, 329–330, 537, 562;
G.C. Exh. 10M.)
On June 18 the Company and Union signed a settlement
agreement in that case (C.P. Exh. 6). The employees ended
the strike the next day and returned to work the following
Monday, June 22 (Tr. 311, 330, 613–614). The settlement
provided for the payment of backpay for the 2 days of lost
time to nine production and maintenance employees, includ-
ing Garcia and Zickmund, neither of whom had joined the
May 28 strike (Tr. 328), but excluding the 10th employee,
welder Howard Jenkins, General Manager Jenkins’ father.
The employees receiving backpay under the settlement for
the loss ‘‘suffered as a result of their layoff on May 27,
1992’’ were four pit employees (loader operator William
Carter, jaw crusher operator Jerry Luttrell, and pit truck-
drivers Emmet Lovely and Terry McElroy), four plant and
shop employees (loader operator Vurnie Hayes, bin truck-
driver William James, plant operator William McElroy, and
mechanic Scott Zickmund), and newly hired laborer Anthony
Garcia (C.P. Exh. 6; G.C. Exhs. 10; Tr. 254–255, 521).
The June 18 settlement agreement contained a non-
admission clause, but provided:
The parties further stipulate that this Settlement Agree-
ment does not preclude the use of evidence supporting
the allegations settled herein as background evidence in
proceedings on any other charge of unfair labor prac-
tice.
I have considered evidence of General Manager Jenkins’
decision to lock out employees on May 27, before he ob-
tained legal counsel, as background in determining his moti-
vation for deciding to summarily discharge Stevens on May
22, likewise before consulting counsel.
B. Discharge of Todd Stevens
1. Lack of promised training
When the Company hired Todd Stevens on January 28, di-
rectly out of auto diesel school without any experience work-
ing on heavy equipment, it promised to give him on-the-job
training—telling him he was going to work with Super-
intendent Cook until he ‘‘learned the ropes of the heavy
equipment’’ (Tr. 106–107, 226–227). This was about a
month before the usual spring startup at the quarry (Tr. 53).
Cook, who was performing maintenance on the heavy equip-
ment during the winter shutdown, would be available to
work with Stevens during February, and when rehired, expe-
rienced mechanic Zickmund would be available to continue
Stevens’ training (Tr. 52).
These plans went awry. Because of ‘‘extremely nice’’
weather and the low stockpiles, the Company began crushing
stone the first week in February. Cook had been working
with Stevens only 3 or 4 days. As Cook admitted, ‘‘I pretty
much put [Stevens] on his own.’’ (Tr. 54, 126, 126, 227–
228, 265–266). Then, as a result of the delay in rehiring
Zickmund (because of his health problems), the inexperi-
enced Stevens continued working as the sole mechanic until
May 2, with little training.
As could be expected—with a novice mechanic attempting
to perform, usually alone, all the required maintenance with-
out close supervision—the Company experienced short-
comings in the quality and quantity of the maintenance. Yet,
when the Company evaluated him on March 25, they gave
him a satisfactory evaluation and on April 1 gave him the
same 50-cent raise that the it gave most of the other employ-
ees (G.C. Exhs. 7, 10; Tr. 59–63, 230–231, 252–253). It is
undisputed, as bin truckdriver William James credibly testi-
fied, that Cook said Stevens ‘‘was trying to do his job and
had the willingness’’ and that Cook ‘‘thought he would make
a No. 1 mechanic once he got further along in experience’’
(Tr. 194).
On April 1 the Company inaugurated a formal disciplinary
program, with a ‘‘Employee Disciplinary Report’’ form that
could be used for a verbal warning, written warning, suspen-
sion, or discharge for such offenses as ‘‘substandard work,’’
‘‘safety violation,’’ and ‘‘attendance’’ (Tr. 111–114; C.P.
Exh. 1). The Company’s written rules and policy adopted on
that date (G.C. Exh. 4; Tr. 14–15) state: ‘‘If you receive two
warnings in one week your future employment with this
company will be reviewed and dismissal is possible.’’
Also on April 1 the Company instituted a policy of placing
notes of management and employee complaints in employ-
ees’ personnel files (Tr. 118, 774, 795–796). The Company
never gave Steven any oral or written warning. The only
notes in his personnel file were two informal post-it pad
notes. They were dated April 15 and 23, over a month before
his May 22 discharge. (G.C. Exh. 5, 6; Tr. 19, 24, 28–30,
118, 251–252.)
As discussed later, when Zickmund learned that Stevens
was discharged after they had worked together about 3
weeks, Zickmund expressed his general satisfaction with Ste-
vens’ performance by stating that ‘‘it was working out real
well with two mechanics.’’
1218 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2. Fabricated testimony
General Manager Jenkins, when first called as an adverse
witness, clearly gave fabricated testimony to justify his deci-
sion to summarily discharge mechanic Stevens on May 22,
without any prior warning.
a. Air compressor belt not replaced
Jenkins testified on the first day of the trial (Tr. 34–35):
The night before [Stevens] was fired, the loader in
the hole, when they brought [it] up, it had a belt broke
on it.
And it was about in the vicinity of [4:45 or 4:50
p.m.].
And Mr. Cook—
I was there. And Mr. Cook told Mr. Stevens to get
it fixed and that the auto parts [store] did not . . .
close until 5:30, so he had time to run up and get a
belt, get it on, so they could start running first thing in
the morning.
And I left. And then the next morning I would see
him working on the loader.
. . . .
[Stevens] told [Cook] that he did not have time to
get the belt, because auto parts closed.
. . . .
So then it cost us roughly an hour of production in
the morning, because [Stevens] didn’t do that job that
he was specifically told to do.
That was part of the reason that I just was filled up
with that sort of thing at that time. [Emphasis added.]
For several reasons, I find that this testimony was fab-
ricated. First, Jenkins’ claim that ‘‘I was there’’ that Thurs-
day afternoon (May 21) is false. On the third day of the trial
Jenkins admitted (and office secretary Peggy Anslover
credibly corroborated the fact) that Jenkins and Anslover
were out of town that week, attending a church assembly in
Ohio. Jenkins did not return to town until Thursday evening
and did not return to the quarry until Friday morning, May
22. (Tr. 616–619, 630, 724–725; R. Exhs. 2, 4, 5.)
Second, Superintendent Cook did not tell Stevens ‘‘to get
it fixed and that the auto parts [store] did not . . . close until
5:30, so he had time to run up and get the belt.’’ To the con-
trary, Cook did not know that the belt was broken when he
left work ‘‘shortly after five o’clock.’’ Cook revealed (Tr.
146) that
it would be [May] 21st, that evening. [Loader operator]
Carter brought the loader up out of the hole, out of the
pit.
And he had a belt—it happened to be an air com-
pressor belt swollen. And his air compressor wasn’t
acting right.
So we took it to the shop. We told [Stevens] to tight-
en the belt. . . .
. . . .
[The next morning, May 22] I asked [Stevens] why
wasn’t the loader ready. And he said that the belt
broke. [Emphasis added.]
When recalled as a defense witness on the third day of the
trial, Jenkins made no effort to explain his false claim that
‘‘I was there’’ when the loader was brought to the shop or
his claim that Cook ‘‘specifically told’’ Stevens to get a re-
placement belt. He testified on direct examination (Tr. 733–
734):
Q. Was there anything that was the straw that broke
the camel’s back, so to speak?
A. Yeah. Well, when I got back on [May] 22nd,
[Cook] was mad, because he came in, expecting the
loader to be fixed . . . .
. . . .
I don’t know why [Stevens] didn’t fix it that night. He
had a lot of excuses. [Emphasis added.]
The Company ignores in its brief, and makes no effort to
explain or justify, Jenkins’ obviously false testimony.
Stevens (who impressed me by his demeanor on the stand
as a sincere, truthful witness) testified that he did not fix the
broken belt that night because ‘‘we didn’t have the belt in
the shop and I didn’t have a way to town because the com-
pany truck was already gone.’’ The only other persons re-
maining on the job that afternoon were loader operator
Carter and pit truckdriver Lovely, who was giving Stevens
a ride home. It is undisputed, as confirmed by mechanic
Zickmund, that the Company has a rule against employees
using their personal vehicles to get supplies. (Tr. 237–239,
279–280, 682.)
b. Idle for 45 minutes
Jenkins unequivocally—and falsely—claimed that the pur-
ported 45-minute incident occurred on May 22, the day Ste-
vens was discharged. When called first as an adverse wit-
ness, Jenkins testified (Tr. 26, 28):
The day that we fired [Stevens], he was told, and I
was standing right by [Cook]. We had bought another
truck. It was an older truck. And we brought it in and
it needed some work done to it so that we could get
it to the hole.
And [Stevens] was told to drain all the fluids and re-
fill the fluids and do some exhaust work on it.
And also, [Cook] said that [Howard] Jenkins would
be up in the bed [of the truck], doing some welding,
and [Stevens] may have to hold some pieces for
him. . . . So [Howard Jenkins will] holler when you
need to go up.
So I watched. And I thought it was strange that [Ste-
vens] never come out of that—he was in the bed of the
truck with [Howard] Jenkins.
. . . So I watched him for 45 minutes, stand there and
watch [Howard] Jenkins cut. And he didn’t do any-
thing. [Howard] Jenkins didn’t ask him to help. He
wasn’t ready for him yet because he was cutting things
out before he needed to put them back.
And so it was just kind of the straw that broke the
camel’s back. . . . .
Q. But this particular problem, did you discuss it
with Mr. Stevens?
1219W. C. BABCOCK CONSTRUCTION CO.
A. No, I just told [Cook] to fire him or I would.
[Emphasis added.]
Jenkins emphasized that this incident occurred when the
truck was delivered (Tr. 40, 42):
A. Well, he was specifically told to . . . drain the
oil. Because we had just gotten this truck in.
. . . .
A. . . . that was the morning he was fired, [May
22].
. . . .
We had just gotten this truck in. It had just been deliv-
ered to us. We had bought it in Kentucky. [Emphasis
added.]
. . . .
A. I told [Cook] to fire him, or I would. [Cook] dis-
cussed it with him. He told him why he was being
fired.
In fact, the incident occurred weeks earlier—not on May
22, the day Stevens was discharged.
Cook confirmed that the incident occurred ‘‘shortly after
this truck was purchased . . . when [Jenkins] wanted to put
it into production.’’ Cook estimated it was sometime in
‘‘early May.’’ (Tr. 143–144.) He testified that ‘‘No, it wasn’t
the day of [Stevens’ termination]’’ because then ‘‘The truck
was already in production’’ and Stevens ‘‘was not working
on the truck. He was working on a loader that day . . . get-
ting parts off of a spare loader that we have.’’ (Tr. 168–169.)
When later recalled as a defense witness, Jenkins admitted
that the older truck had not been delivered at the time of Ste-
vens’ May 22 discharge, but a month earlier on April 20 (Tr.
734). He attempted to reconcile his testimony with Cook’s
(as well as Stevens’, discussed below) by claiming that there
were two incidents when he watched Stevens standing idle
in the back of the truck (Tr. 734–737, 769–773). He claimed
(Tr. 734–735):
I think the confusion lies because there are, basically,
two different times that same situation happened. . . .
[My dad, Howard Jenkins] was still working on the
same project that he was working on then because he
didn’t have time to finish it, basically. Howard Jenkins
did not testify.
I deem it most unlikely that if the purported incident had
happened twice, Jenkins would have emphasized at first, as
he did, that on the morning of Stevens’ discharge, ‘‘We had
just gotten this truck in. It had just been delivered to us.’’
There was in fact a purported 45-minute incident that oc-
curred weeks earlier. I deem it unbelievable that there were
two incidents, both lasting 45 minutes.
The Company argues in its brief (at 17 fn. 4) that ‘‘The
confusion in the record on this point should in no way reflect
on Jenkins’ credibility.’’ I disagree and discredit as a further
fabrication Jenkins’ claim that the incident occurred twice.
(When giving much of his testimony, Jenkins appeared by
his demeanor on the stand to be willing to fabricate whatever
testimony might help the Company’s cause.)
Stevens credibly testified that on May 22, after replacing
the broken air compressor belt that morning, he started about
9 o’clock removing brakes from the junk loader (Tr. 240,
281–282, 289). As found above, Cook agreed that Stevens
was working on a loader that day, ‘‘getting parts off of a
spare loader’’ (Tr. 169).
Stevens positively testified that it was not on the morning
of his termination that Howard Jenkins was welding in the
back of the truck (Tr. 289). He recalled that the purported
45-minute incident occurred ‘‘probably late April, early May
maybe,’’ after he had changed the oil on the truck and
checked the fluids. Then, ‘‘I was holding the metal while
[Howard Jenkins] was getting it ready to weld and if he’d
cut something off I’d hold it so it didn’t fall. And if he
wasn’t cutting metal or something I was scooping out the
bed.’’ (Tr. 248–250.)
Stevens admitted that on that occasion, weeks earlier, Jen-
kins called him down and told him that Jenkins had been
standing there 45 minutes and had not seen him doing any-
thing. In response, as Stevens credibly testified, he protested
that Jenkins was not there 45 minutes and that ‘‘I was help-
ing [Howard Jenkins]. I was doing what [Howard Jenkins]
told me to do.’’ (Tr. 249, 289.)
Jenkins admitted that although the Company began on
April 1 issuing employee disciplinary reports and placing
notes of management and employee complaints in employ-
ees’ personnel files, he did not give Stevens a written warn-
ing at that time or place a note in his file (Tr. 118). (As
found, Stevens had explained that he was doing what Jen-
kins’ father had told him to do.)
In summary, on the first day of the trial, Jenkins gave fab-
ricated testimony to support the Company’s contention (in its
brief at 16) that two incidents, ‘‘straws that broke the cam-
el’s back,’’ precipitated Stevens’ discharge. Concerning the
first incident (Stevens’ failure to replace the belt), credited
evidence shows that Stevens was not at fault. Jenkins’ later
admission clearly reveals that he falsified the claim that he
was present when the assignment was made. Concerning the
second incident (Stevens accused of standing idle for 45
minutes), Jenkins gave false testimony that the incident oc-
curred on the day of the discharge, rather than weeks earlier.
I therefore find that these two so-called ‘‘straws that broke
the camel’s back’’ are pretexts for Jenkins’ decision to dis-
charge Stevens.
3. The summary discharge
General Manager Jenkins and Superintendent Cook gave
conflicting testimony about the decision to discharge Stevens,
although both claimed that the decision was made on the
morning of May 22.
According to Jenkins, as found above, that morning he
watched Stevens standing idle for 45 minutes and told Cook
‘‘to fire him or I would’’; then Cook discussed it with Ste-
vens and told him ‘‘why he was being fired.’’
According to Cook, however, the decision to discharge
Stevens was not made on the spur of the moment. Cook tes-
tified that he and Jenkins discussed the discharge back and
forth and that he had an input in the decision. Cook revealed
that they discussed Stevens’ ‘‘work record . . . his attend-
ance record, his performance.’’ Cook listed a number of pre-
vious incidents that were in his mind when he discussed the
termination with Jenkins, including Stevens’ attendance: ‘‘He
was late quite a few times. . . . frequently. . . . Several
times . . . I didn’t keep track of it. It’s on the . . . time-
cards.’’ (Tr. 127–150.)
1220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Cook testified he knew that ‘‘when we was discussing
there that morning, on May the 22nd, [we discussed Ste-
vens’] attendance, his attitude and his work’’ (emphasis
added). After being shown Stevens’ timecards, however,
Cook admitted that no, he did not recall Stevens being late
anytime between April 1 and the time he was terminated on
May 22. (Tr. 155–156.)
Contrary to both versions, Cook’s statements to Stevens
later that day reveal that the decision to discharge him was
not reached until that afternoon and that Jenkins’ claim that
he told Cook that morning ‘‘to fire him or I would’’ is yet
another fabrication.
It is undisputed, as Stevens credibly testified (Tr. 240–
241), that around 1 or 2 p.m.,
[Cook] told me . . . that my work performance was not
up to their standards and that they was either going to
have to get me some sort of training or . . . someone
in there that would help train me.
Q. Did you say anything to Mr. Cook?
A. I told him that I was doing the best I could since
I had never been trained on the heavy equipment like
that.
Q. Did Mr. Cook give you any indication . . . about
what he was going to do about getting you trained, or
having someone else?
A. He just said he would have to talk to [Jenkins].
Later that afternoon, around 3 or 3:30 (Tr. 241–242),
[Cook] walked up to me and said, well . . . I talked
it over with [Jenkins] and he said . . . to just go ahead
and let you go today, to punch out at 5:30 and today
would be your last day.
Q. Did he tell you any specifics about your work
performance?
A. Not at that time.
Q. Did you ask him anything?
A. No. I was upset and disgusted and I just went
back and worked on the loader again.
Stevens finished the day working on the loader and
Zickmund gave him a ride home. Stevens credibly testified,
and it is not specifically disputed, that when Stevens told
Zickmund that he had been fired, Zickmund appeared ‘‘kind
of upset, saying that it was working out real well with two
mechanics [emphasis added] because he could be working on
something and I could be working on something, and then
if we needed help we could help each other out.’’ (Tr. 242,
683–684.)
When recalled as a defense witness, Jenkins changed his
testimony about when the discharge occurred. He testified on
direct examination (Tr. 773–774):
Q. Okay. And you don’t know what time Randy
Cook told Todd Stevens he was terminated, correct?
A. No. Not for sure. I figured it was in the area of
ten o’clock [that morning]. . . .
Q. But you don’t know what time he told him?
A. No, I don’t know exactly what time that was that
[Cook] actually told him, other than what he [Stevens
?] said here [at the trial].
Q. And you instructed Cook to let Stevens work
through the end of the day?
A. Yes.
. . . .
A. That’s probably why [Cook] didn’t tell him before
that, I suppose. [Emphasis added.]
Having found that Jenkins made the discharge decision that
afternoon, I conclude that his ‘‘I suppose’’ answer is another
fabrication.
4. Knowledge of union activity; coercive conduct
As found, General Manager Jenkins falsely testified that
he instructed Superintendent Cook on the morning of May
22 ‘‘to fire [Stevens] or I would,’’ whereas in fact, the dis-
charge decision was made that afternoon.
I infer that by giving this false testimony and by claiming
(as discussed below) that he was first aware of union activity
about 4 p.m. that day, Jenkins was attempting to conceal his
knowledge of mechanic Zickmund’s May 20 report to Cook
about Stevens’ union support.
After much evasion, as found, Cook finally admitted that
on Wednesday evening, May 20, Zickmund reported to him
Carter’s statement (according to Cook) that ‘‘Hey, I hear
they’re trying to get a union in.’’ It is undisputed that earlier
that day, in Zickmund’s presence, Stevens had asked Carter
for a union authorization card and had told Lovely he would
be interested in the Union, whereupon Lovely said he would
get Stevens a card at the end of the day. Later, near quitting
time, Lovely went to the shop where Stevens and Zickmund
worked and gave Stevens a card—although Zickmund may
not have seen the actual passing of the card from Lovely to
Stevens.
Instead of signing one of the cards and going to the union
meeting, as Zickmund promised Carter he would do,
Zickmund reported the union activity to Cook that evening.
In view of Zickmund’s acknowledged opposition to the
Union (Tr. 688) and the admitted reports that he made to
Cook on upcoming union meetings (Tr. 660), I deem it most
unlikely that he would merely have told Cook (as Cook
claimed) that ‘‘Hey, I hear they’re trying to get a union in.’’
Contrary to Cook’s and Zickmund’s discredited denials (Tr.
672, 676), I infer that Zickmund reported to Cook that Ste-
vens (Zickmund’s junior mechanic) had indicated his support
for the Union, by stating his interest in the Union that morn-
ing and asking for a union card to sign.
Jenkins was not present at the quarry that Wednesday or
the next day. He returned there Friday morning, May 22.
Without stating when he did so, Cook admitted telling Jen-
kins what Zickmund had said about employees trying to get
a union in there, but claimed ‘‘I don’t know if I mentioned
any names’’ (Tr. 664–665). I infer that Cook relayed
Zickmund’s report about Stevens’ union support upon Jen-
kins’ return to the quarry that Friday morning—if not the
evening before when Jenkins arrived back in town.
Moreover, employees Carter and Lovely credibly testified
that in Jenkins’ conversations with them, he made statements
that I find confirm this inference that Cook had relayed
Zickmund’s report to Jenkins about Stevens’ union support.
Regarding the date of these conversations, I agree with
Jenkins that they occurred about 4 p.m., May 22, even
though Carter (indicating some doubt about the date) testi-
1221W. C. BABCOCK CONSTRUCTION CO.
fied, ‘‘I’m pretty sure, relatively sure [emphasis added]’’ that
this occurred on Thursday, May 21 (Tr. 411) and even
though Lovely (also indicating some doubt) testified, ‘‘I
think [emphasis added] it was on the 21st’’ (Tr. 453), but
later testifying, ‘‘No,’’ it could not have been on Friday, ‘‘it
was on the 21st’’ (Tr. 489).
Lovely (who impressed me as a truthful witness) recalled
that Jenkins drove up to where they were hauling stone, mo-
tioned him to come over, and discussed another matter with
him. Then Jenkins (Tr. 455–456)
asked me if I knew anything about a union coming in
there, I said no.
Q. Did you say anything else?
A. . . . He says, Todd Stevens [and] I think, I know
some of the rest that’s mixed up in it. . . . Bill Carter
came up. . . . I left. [Emphasis added.]
Carter (who also impressed me by his demeanor on the
stand as a truthful witness) credibly testified (Tr. 355):
I went around the front of [Lovely’s] truck . . . . I just
heard something about a union and [Lovely] said that
he didn’t know anything about a union coming in.
Q. Did you hear anything else?
A. Then [Jenkins] . . . looked at me and said, well,
I know Todd Stevens is involved and I’ve got a pretty
good idea of the others that are and they’re not going
to be around here long. We’re going to get this stuff
straightened out. [Emphasis added.]
Although Cook admits telling Jenkins about Zickmund’s
May 20 report on union activity, Jenkins has never admitted
that Cook did so. He claimed that he had no knowledge of
any union activity until about 4 p.m. that Friday, after Ste-
vens’ discharge, when Cook casually referred to union talk.
He testified that he went to the office and Cook was com-
plaining about the two pit truckdrivers stopping in the road,
halting production. ‘‘So on the way out the door, [Cook] said
[Zickmund] said they was probably talking about union. So
I went out [and] got in my car.’’ (Tr. 723–724.) He further
claimed (Tr. 729–730) that
when I drove back that way, Frank Lovely acted like
he wanted to talk to me. . . . I told them with Mr.
Carter standing there . . . I don’t want you guys talk-
ing about union or anything else on my time, I need
production. And then Mr. Carter said how about Ste-
vens and I said he’s gone. Because we’d just fired him
that morning. . . .
Q. Did you make any statement in that conversation
or any other time that you knew Stevens was involved
with the union?
A. Absolutely not, because I didn’t know it. [Empha-
sis added.]
I discredit, as further fabrications, this version of what
happened when Jenkins talked to Carter and Lovely. Stevens
had not been fired that morning. He had been discharged that
afternoon shortly before this, and he remained at work in the
shop. Carter was not aware of the discharge (Tr. 413) and
he had no reason to ask ‘‘how about Stevens.’’
On cross-examination, Carter credibly denied having asked
about Stevens in that afternoon conversation and further tes-
tified (Tr. 413):
Q. Okay. How would Mr. Jenkins have known Todd
Stevens was involved in the Union, any idea?
A. Yeah, I’ve got an idea. I believe that it was from
Scott Zickmund . . . the one that told [Jenkins] about
it.
Carter explained why he had that belief (Tr. 413–414):
Because Scott Zickmund was totally against the Union.
I gave him the card Wednesday morning to sign and
. . . I tried to get it back off of him later that afternoon
and he said that he would bring it to the [union] meet-
ing . . . that night.
And he didn’t show up . . . and then the next day
he didn’t want to hear any talk about the Union . . . .
. . . .
Zickmund remained working . . . when we was on
strike.
The Company argues in its brief (at 19) that ‘‘There is ab-
solutely no evidence in the record’’ that the Company knew
that Stevens had ‘‘signed a union card or had engaged in any
union activity, apart from Jenkins’ alleged statement’’ to em-
ployees Carter and Lovely that he knew Stevens ‘‘was in-
volved in union activity, that he had a pretty good idea of
the other employees that were involved, and they were not
going to be around very long.’’
The Company disputes any conclusion that ‘‘the termi-
nation of Stevens was motivated by the fact he signed a
union card.’’ It relies on Jenkins’ denials that he made these
statements and makes the unpersuasive argument that Lovely
and Carter cannot be credited because they falsely ‘‘alleged,
with absolute certainty, that they spoke to Jenkins’’ on May
21, the day before Stevens was discharged and when Jenkins
was out of town.
To the contrary, I have credited the testimony by Carter
and Lovely about what Jenkins told them, despite their faulty
recollection of the correct date. Moreover, I find that even
if Jenkins’ statements to them are disregarded, the evidence
supports the inference that Cook had relayed Zickmund’s re-
port to Jenkins about Stevens’ union support.
Knowledge of Union Activity. I discredit Jenkins’ denials
and find that he was aware of Stevens’ union support when
he decided to discharge him.
Coercive Conduct. Having credited the testimony by em-
ployees Carter and Lovely, I also find that on May 22, short-
ly after Stevens’ discharge, Jenkins (a) coercively interro-
gated Lovely about the union activity, (b) unlawfully created
the impression that the employees’ union activities were
under surveillance by telling Lovely and Carter that he knew
Stevens was involved in the union activity and that he had
a good idea which other employees were involved, and (c)
threatened the discharge of employees by stating that the
other union supporters were ‘‘not going to be around here
long.’’ I find that particularly in the context of the discharge
of Stevens that day, this conduct was clearly coercive and
violated Section 8(a)(1) of the Act.
1222 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5. Concluding findings regarding discharge
General Manager Jenkins gave fabricated testimony about
two incidents, ‘‘straws that broke the camel’s back,’’ to jus-
tify his decision on Friday, May 22, to summarily discharge
Stevens without any prior warning. In fact, Stevens was not
at fault in the first incident, and the second incident did not
occur on the date of the discharge. It occurred weeks earlier.
As found, these two so-called ‘‘straws that broke the camel’s
back’’ are pretexts for discharging Stevens.
By that Friday morning, as inferred, Jenkins had been in-
formed by Superintendent Cook of mechanic Zickmund’s
Wednesday evening report that Stevens was supporting the
Union. Thus, contrary to Jenkins’ denials, he was aware of
Stevens’ union support at the time of the discharge. Further-
more, shortly after Stevens’ discharge, Jenkins told two em-
ployees that he knew Stevens was involved in the Union and
stated that the other union supporters were ‘‘not going to be
around here long.’’
In view of these findings, it is clear that the General
Counsel has made a strong prima facie showing that Stevens’
union support was a motivating factor in the Company’s de-
cision to discharge him. Therefore, as held in Wright Line,
251 NLRB 1083 (1980), the burden shifts to the Company
to demonstrate that it would have discharged Stevens even
in the absence of his union support.
To justify the discharge, Jenkins and Cook related various
instances of Stevens’ shortcomings (Tr. 28–39, 43–47, 55–
57, 129–145; G.C. Exh. 5, 6), almost all of which referred
to the period before May 2. These earlier incidents, even if
accurately related, occurred when the Company was awaiting
the delayed arrival of its experienced former mechanic,
Zickmund, who was taking care of his health problems be-
fore returning. The Company knew that Stevens was inexpe-
rienced, yet it assigned him to work largely ‘‘on his own’’
as the sole mechanic, without the promised on-the-job train-
ing.
Concerning Stevens’ performance after Zickmund was re-
hired, Jenkins claimed when testifying as an adverse witness
that Zickmund came to him ‘‘Probably three or four times’’
and complained about Stevens’ performance (Tr. 109). When
recalled as a defense witness, Jenkins went further and
claimed that Zickmund ‘‘was complaining all the time [em-
phasis added] . . . about having to redo things and, basi-
cally, [Stevens] not doing what he was told’’ (Tr. 731). Jen-
kins added that when he had a complaint from Cook or
Zickmund about Stevens, he would mention it to Stevens
(Tr. 740)—whereas Zickmund testified that he never saw or
heard Jenkins or Cook talk to Stevens (Tr. 680). (As indi-
cated, Jenkins appeared by his demeanor on the stand to be
willing to fabricate whatever testimony might help the Com-
pany’s cause.)
Zickmund (who, as found, falsely denied telling Cook that
Stevens was involved in union activity) first claimed that he
spoke to Jenkins or Cook probably ‘‘a dozen’’ times about
Stevens’ ‘‘taking too long or not doing the things it was ex-
plained to him’’ and later claimed that he complained to
them ‘‘Once or twice’’ about Stevens’ ‘‘Not getting stuff
done that I asked him to do’’ (Tr. 679–680).
I find that this testimony by Jenkins and Zickmund is at
least exaggerated. The statement made by Zickmund upon
hearing about Stevens’ discharge (that ‘‘it was working out
real well with two mechanics’’) indicates that Zickmund was
generally satisfied at the time with Stevens’ performance.
Undoubtedly if Stevens—who worked as a junior me-
chanic under Zickmund from May 2 to 22—had performed
as poorly as Jenkins and Zickmund claimed at the trial,
something would have been placed in his file, reinforcing the
two notes Jenkins placed there on April 15 and 23 when Ste-
vens was the sole mechanic in the shop. Yet, no oral or writ-
ten warning was ever given Stevens, and not a single note
was placed in his file during this period of nearly 3 weeks
(Tr. 19, 118, 251–252, 796).
The evidence shows no indication that the Company had
any intention of discharging Stevens before May 20 when,
as found, Zickmund reported Stevens’ union support to
Cook.
I find that the Company has failed to sustain its burden
of proof that it would have discharged Stevens in the absence
of his union support. Accordingly I find that by discharging
Todd Stevens on May 22, the Company discriminated against
him in violation of Section 8(a)(3) and (1) of the Act.
C. Alleged Preelection Coercion
1. Background
Before the July 10 election, General Manager Jenkins de-
livered three prepared speeches against unionization in group
meetings of employees, showed two antiunion video tapes,
mailed two letters to employees’ homes, and posted and
handed out other literature (R. Exhs. 6–13; G.C. Exh. 13, 18;
Tr. 747–750). The final letter home (R. Exh. 13), mailed July
7, stated (in 2 the second paragraph): ‘‘Think about whether
you can afford to pay over $1,300 to [the Union] just to keep
your job.’’ (The complaint does not allege any of this mate-
rial to be coercive.)
In addition, Jenkins and his co-owner, Roger Ward, en-
gaged in one-on-one conversations with employees. Some of
these conversations are alleged to be coercive.
2. Conduct of Larry Jenkins
One of these conversations occurred about July 8 toward
the end of the second group meeting after Jenkins stated in
his prepared speech that he had been told (incorrectly) that
loader operator William Carter ‘‘was being paid by [the
Union] to organize you.’’ Carter told Jenkins, as the meeting
was breaking up, ‘‘that was flat out a lie and me and him
both knew it.’’ The two of them got into a heated argument.
Jenkins said several of Carter’s relatives had told him this.
Carter said that was a lie, too, and suggested that Jenkins
have ‘‘one of the other guys call these relatives.’’ (Tr. 358;
R. Exh. 8 p. 3.)
At that point, as Carter credibly testified (Tr. 358), Jenkins
said that
he didn’t have to do anything like that. . . . it
wouldn’t matter anyway, even if the Union did get in
he could just keep me laid off and sent up to the
[union] hall and I told him that I’d just keep filing
grievances and keep [drawing] backpay. [Emphasis
added.]
Jenkins admitted having the one-on-one argument as the
employees were leaving the meeting, but denied saying that
1223W. C. BABCOCK CONSTRUCTION CO.
if the Union got in, he could keep Carter on layoff up at the
hiring hall (Tr. 757–758, 780–781). I discredit Jenkins’ de-
nial and find that the threat to keep Carter on layoff was co-
ercive and violated Section 8(a)(1).
Another one-on-one conversation occurred Friday, July 10,
shortly before the election was held. Jenkins talked to pit
truckdriver Terry McElroy while Superintendent Cook was
driving McElroy’s truck. Jenkins handed McElroy a wage
survey showing average wages in the county for a number
of jobs. As Jenkins was saying that ‘‘he talked to several of
the other guys earlier that day and they had all changed their
minds about the Union,’’ McElroy was looking over the list
of wage rates and commented that he did not ‘‘fit in on noth-
ing on the paper.’’ (Tr. 507–510.)
At that point, as credibly testified by McElroy (who ap-
peared to be an honest witness), Jenkins stated (Tr. 510)
‘‘that if everything would go right’’ (referring to a negative
vote in the election), ‘‘[McElroy] could be making’’ between
$5.65 and $6.59 an hour (emphasis added). He was then
being paid $5.50 an hour (G.C. Exh. 10). The survey showed
that $5.65 was the average rate for ‘‘Janitor/Laborer’’ and
$6.59 was the average rate for ‘‘Machine Tool Operator.’’
Jenkins then continued (Tr. 512–513):
He said that [if] the Union come in, that we would all
be sitting up at the union hall because they would bring
the people down that had four years and more experi-
ence in the Union.
. . . .
[He] said if the voting goes right . . . . we would be
earning more money in the future years.
Jenkins denied telling McElroy anything about making be-
tween $5.65 and $6.59 an hour. Ignoring the listed $5.65 and
$6.59 rates on the wage survey, he claimed it does not make
sense, ‘‘We don’t give raise in pennies.’’ (Tr. 760, 763.) He
also denied telling McElroy that if the voting goes right, the
employees would be making more money in the future (Tr.
763).
Jenkins further denied McElroy’s testimony about bringing
in union people with 4 years’ experience. He claimed instead
that McElroy asked about going to the hall and ‘‘about the
four year and under thing.’’ He claimed that he told McElroy
that the Union had told him that if someone did get sent
back to the hall, ‘‘when they call for work out of the hall,
they go by the number of years of experience’’ and ‘‘if
they’re four years and under, then they, probably, would be
in the school or something to that effect.’’ (Tr. 760–763,
781.)
I discredit Jenkins’ denials. (He again appeared willing to
fabricate whatever testimony might help the Company’s
cause.)
As alleged in the complaint, I find that Jenkins promised
that if the Union was rejected by the employees, there would
be a pay raise (for McElroy) and that employees’ wages
would be increased in the future, but threatened that if the
employees selected the Union, employees’ jobs would be
lost. I find that these promises and threat were coercive and
violated Section 8(a)(1).
3. Conduct of Roger Ward
McElroy credibly testified (Tr. 504–505, 527–528) that on
the morning of July 7, when he went to the office to get a
soda pop, Co-Owner Roger Ward spoke to him and said that
if the Union came in,
he was going to watch the clock and cut us back to 40
hours a week and some of us would be laid off.
Ward denied that he even spoke to McElroy about the
Union (Tr. 577). I discredit the denial (Ward not impressing
me as a candid witness) and find that the threats to cut hours
of work and to lay off some of the employees were coercive
and violated Section 8(a)(1).
At quitting time the following day, July 8, Ward made
similar threats to bin truckdriver William James and referred
to employees’ union activities. As James credibly testified
(Tr. 188–190, 209–213):
[Ward] said that they didn’t want a union in [the Com-
pany]. And they didn’t need a union [in the Company]
either.
And I told him that I wasn’t the only one he should
talk to. I wasn’t the only employee.
And he said that the only one he was interested in
talking to was myself, [Emmet] Lovely and [William]
McElroy.
He said if the Union got in, we could expect a lot
less working hours and large layoffs.
. . . .
A. And he said . . . he knows one, if not all three
of us, that did like what we was told not to. [Emphasis
added.]
Ward denied saying that if the Union won the election, he
could expect there would be layoffs and claimed that he did
‘‘Not specifically’’ tell James he could expect less hours. He
did not deny saying that he knew one, or all three of the em-
ployees (whom he had hired) had done ‘‘like what we was
told not to’’ (referring to their support of the Union). (Tr.
569–575.)
Having credited James’ testimony, I find as alleged that he
threatened layoffs and reduced working hours and that he
created the impression that employees’ union activities were
under surveillance, violating Section 8(a)(1).
On July 10, about 5 minutes before the election, Ward told
pit truckdriver Emmet Lovely ‘‘I want to talk to you,’’ and
Lovely responded, ‘‘we’re not supposed to talk about the
Union.’’ Then, as Lovely credibly testified, Ward said that
he could talk about it and promised that if ‘‘your vote goes
the right way . . . you’ll be well taken care of.’’ (Tr. 460.)
I discredit Ward’s claim that he merely said to ‘‘help me out,
buddy’’ (Tr. 575–576) and find that his promise violated
Section 8(a)(1).
I note that the payroll records (G.C. Exh. 10) do not sup-
port the allegation in the complaint that in June, the Com-
pany granted employees a pay raise to discourage union sup-
port. The only pay raise granted was to the new employee,
laborer Anthony Garcia, when he was promoted to pit truck-
driver.
I also note that the evidence (Tr. 361) does not support
the allegation that the Company ‘‘threatened its employees
1224 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that it would call the police to interrupt a union meeting’’
(that had already been held).
III. REPRESENTATION PROCEEDING
A. The Issues
In Case 25–RC–9158 the petition was filed by the Union
on May 26, a Stipulated Election Agreement was approved
on June 16, and the election was conducted on July 10. The
vote was four for and five against union representation, with
three challenged ballots, a sufficient number to affect the
outcome of the election. The Union filed timely objections
on July 17. (G.C. Exhs. 1Q, 2, 3.)
On October 13 the Acting Regional Director issued his
Report on Objections to conduct affecting results of the elec-
tion, recommendations to the Board, order directing hearing,
order consolidating cases, and notice of hearing (G.C. Exh.
1Q). He directed a hearing on the three challenged ballots
and on the Union’s Objections 1a, 1b, 2, and additional al-
leged objectionable Conduct. He approved the withdrawal of
Objection 1c, recommended that Objection 3 be overruled,
and consolidated the complaint and representation cases.
On November 4 the Board adopted the recommendations
in the report, ordered that Objection 3 be overruled, and ap-
proved the order consolidating cases and notice of hearing
(G.C. Exh. 1S).
B. Challenged Ballots
1. William Carter
I overrule the challenge to the ballot cast by loader oper-
ator William Carter. After lengthy litigation of its contention
that Carter was a paid union organizer with no reasonable
expectancy of continued employment, the Company concedes
in its brief (at 3–4 fn. 2) ‘‘that the record evidence will not
support its challenge to Carter’s ballot.’’
2. Todd Stevens
I overrule the challenge to the ballot cast by mechanic
Todd Stevens. As found, he was discriminatorily discharged
on May 22. He remained a member of the bargaining unit
and was entitled to vote.
3. Tim Kryshak
I sustain the challenge to the ballot cast by Tim Kryshak
for the following reasons.
a. Exclusion from bargaining unit
As late as June 16 when the Stipulated Election Agree-
ment was approved, the Company and the Union agreed in
effect that Kryshak was not a member of the bargaining unit,
but was a member of management, along with Super-
intendent Cook, General Manager Jenkins, and Co-Owner
Ward.
Earlier in 1992, in preparation for the inauguration of its
new personnel policies to become effective April 1, the
Company adopted job descriptions for the personnel, includ-
ing the superintendent, drill operator, and safety and quality
controller (G.C. Exh. 9). Kryshak, Jenkins’ son-in-law (Tr.
696), performed a combination of functions. As described by
Jenkins, ‘‘He’s drill operator, blaster, health and safety man,
and he also is quality control man’’ (Tr. 693). As the blaster
(or shooter), he had the responsibility of setting and igniting
the dynamite in holes drilled in the rock (Tr. 374–375, 466–
467). He was known as the safety supervisor, who enforced
safety rules, orally warning employees and signing and
issuing employee disciplinary reports for safety violations
(Tr. 204, 255, 288, 381–382, 445; C.P. Exh. 8).
Kryshak attended management meetings with Jenkins and
Cook (Tr. 470, 707). He participated in employee evaluations
in late March, along with Cook and Jenkins (Tr. 230, 270–
275, 469–470), contrary to Jenkins’ discredited denials (Tr.
119, 721–722). The emergency alarm system rings first at
Kryshak’s home, then at Cook’s, and last at Jenkins’ (Tr.
702). Kryshak used the company pickup, drove it home at
night and, with other members of management, was per-
mitted to use gasoline from the Company’s gas tank for his
personal use (Tr. 255–256, 388–389, 467–468). He and Cook
were given at company expense a CPR (first-aid) class,
which the Company refused to give loader operator Carter
because ‘‘it was for management only’’ (Tr. 390).
Like other members of management, he was provided paid
health insurance, which was not provided any member of the
bargaining unit (Tr. 256–257, 388, 468–469, 698). When
called as a defense witness, Jenkins testified that mechanic
Zickmund also receives paid insurance benefits (Tr. 698,
785)—without pointing out that this did not begin until July,
after years of employment (G.C. Exh. 10K; Tr. 50). (I note
that on July 6, the Union filed the charge in Case 25–CA–
22036, alleging the discriminatory termination of mechanic
Stevens, and that Zickmund could then be regarded as an im-
portant witness to support Jenkins’ claim that he had no
knowledge of Stevens’ union support. I have discredited
Zickmund’s denial that he told the Company that Stevens
was involved in union activity.)
The job description for the safety and quality controller
position that Kryshak held (G.C. Exh. 9i) lists various mana-
gerial responsibilities:
1. Keep all aspects of operations in compliance with
MSHA [the Mine Safety and Health Administration of
the Bureau of Mines] standards.
2. Along with the superintendent he shall write warn-
ing slips to any person in violation of MSHA standards
and keep records of such.
. . . .
4. EPA standards being adhered to throughout the
operation.
. . . .
6. Cost control, getting prices for purchases and
issuing purchase orders, which will also be approved by
the superintendent and general manager.
. . . .
8. Will do the initial orientation of each new em-
ployee, such as going over employee handbook, piece
of equipment that person will be operating, and any
necessary paperwork.
The bargaining unit, stipulated to be appropriate in the
Stipulated Election Agreement, does not include anyone per-
forming Kryshak’s functions. The unit was defined as includ-
ing seven classifications of production and maintenance em-
ployees:
1225W. C. BABCOCK CONSTRUCTION CO.
All full-time and regular part-time production and
maintenance employees including loader operators, me-
chanics, welders, truckdrivers, jaw operators, plant op-
erators, and laborers employed by the Employer at its
facility located in Rensselaer, Indiana; BUT EXCLUD-
ING all office clerical employees, scale house employ-
ees, weighers, dispatchers, managers, and supervisors
as defined in the Act. [Emphasis added.]
None of Kryshak’s functions (driller operator,
blaster/shooter, or safety and quality controller) was listed. It
is clear that the parties agreed to exclude Kryshak as a man-
ager or supervisor, or both.
Meanwhile, between the April 1 adoption of the new per-
sonnel policies and the June 18 settlement of the earlier
charge in Case 25–CA–21977 (involving the May 27 lockout
of the employees), the Company, Union, and employees
demonstrated that Kryshak was not understood to be a mem-
ber of the bargaining unit.
The Union filed the charge (C.P. Exh. 5) on May 28, al-
leging the discriminatory layoff of 10 employees. At the
time, there were 10 production and maintenance employees,
working in the 7 classifications later including in the stipu-
lated bargaining unit. Among these employees there were
three truckdrivers (two pit and one bin driver) and two loader
operators (one each in the pit and ‘‘on top,’’ where the plant
operator and bin truckdriver work).
When that earlier case was settled on June 18, the parties
again demonstrated that Kryshak was not understood to be
in the bargaining unit. The settlement provided for the pay-
ment of backpay to nine employees for the 2 days of lost
time ‘‘suffered as a result of their layoff on May 27.’’ This
was backpay for all the production and maintenance employ-
ees except welder Howard Jenkins, who was General Man-
ager Jenkins’ father. No backpay was provided for Cook and
Kryshak, despite the shutdown of the quarry those 2 days.
I find that the parties to the Stipulated Election Agreement
intended to, and did, exclude Kryshak’s position from the
bargaining unit, making him ineligible to vote.
b. Supervisory status
Despite the small size of the operation, for years the Com-
pany has followed the practice of employing two supervisors.
Since September 1991, when he replaced Co-Owner Ward as
the general manager, Jenkins has spent much of his daytime
hours away from the operation, at his real estate office and
on the road visiting customers. He usually goes to the quarry
in the early morning, just before noon, and late afternoon.
(Tr. 33, 466, 691–692.)
Jenkins assigned Cook and Kryshak to replace the two
former supervisors, Jeff Cook (who was the ‘‘overall super-
visor’’ or superintendent) and Danny Johns (who supervised
the work in the pit). At the time, as Jenkins explained, Cook
‘‘felt that I was going to run’’ Kryshak (Jenkins’ son-in-law)
‘‘in and take [Cook’s] responsibility away,’’ but Jenkins as-
sured Cook that he would be the superintendent with respon-
sibility both ‘‘over the top [the surface plant and shop] and
the bottom [the pit].’’ (Tr. 198–199, 693–697.) Thus, Cook
continued to be the overall supervisor, as Jeff Cook had been
under Ward.
William Carter, the loader operator in the pit, credibly tes-
tified that both Cook and Kryshak were his supervisors, that
Kryshak helped Cook supervise the operation, and that
Kryshak was also the ‘‘safety supervisor’’ (Tr. 374, 379). It
is undenied, as Carter recalled, Jenkins had told him ‘‘be-
cause of the insurance and the [MSHA regulations] that [Jen-
kins] was . . . making [Kryshak] the safety supervisor in
charge of safety violations’’ (Tr. 385). Jenkins claimed, ‘‘I
usually call him safety man,’’ although he admitted having
heard employees refer to him as ‘‘safety supervisor’’ (Tr.
693).
When there was a problem, as Carter further testified, he
contacted one of the two supervisors, Cook or Kryshak,
about the problem or contacted Jenkins himself (Tr. 387). It
is undisputed that a few weeks before the election, Kryshak
assigned mechanic Zickmund to operate the payloader in the
pit. This happened when Carter told Kryshak that he was
sick and needed to go home, and Kryshak ‘‘sent Scott
Zickmund down to run my loader for me and I left’’ (Tr.
391–392). Like the employees, both Cook and Kryshak
punched timecards (Tr. 387–388).
Another witness working under Kryshak, pit truckdriver
Emmet Lovely, credibly testified that he considered both
Cook and Kryshak to be his supervisors and that Kryshak
‘‘told us all [in the pit] what to do’’ (Tr. 464). He recalled
that on a Friday in early July, Kryshak was the person he
informed that he would be absent the following Monday be-
cause of a doctor’s appointment (Tr. 471). In Lovely’s opin-
ion, Jenkins or Ward makes ‘‘the important decisions’’ (Tr.
470), and if Kryshak ever told him anything of any import,
he would say Kryshak was relaying Jenkins’ (not Cook’s) di-
rection (Tr. 488).
The job description for the safety and quality controller
(relating part of Kryshak’s responsibilities) confirms his dis-
cretion in issuing disciplinary warnings on safety violations
and in assisting Superintendent Cook in supervising the oper-
ation. It provides in part (G.C. Exh. 9i):
2. Along with the superintendent he shall write warn-
ing slips to any person in violation of MSHA standards
and keep records of such.
3. Regularly sample stone being produced and work
closely with the superintendent to produce quality prod-
ucts. [Emphasis added.]
I find that this evidence shows that Kryshak possessed and
exercised the authority responsibly to direct and assign work
in the pit, to grant pit employees time off from work, to use
independent judgment with Superintendent Cook in dis-
ciplining employees for safety violations, and to assist Cook
in supervising the operation.
In its defense the Company did not call Kryshak to give
first-hand knowledge of his position, but relied largely on the
testimony of Jenkins who, as found, fabricated much of his
testimony in attempting to justify his decision to discharge
mechanic Stevens.
Jenkins claimed that Kryshak had no authority ‘‘on his
own’’ to direct employees, although he could get somebody
to help him drill and shoot if both Cook and Jenkins were
gone (Tr. 711–712). He claimed that Kryshak had no author-
ity to tell people to stop work, unless previously told by
Cook. But if a drill broke down, he could go get mechanic
Zickmund to fix it. (Tr. 713–714.) When asked if employees
would take a complaint or problem to Kryshak, Jenkins
1226 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 If no exceptions are filed as provided by Sec. l02.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. l02.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
claimed that it would not be ‘‘any different than talking to
another employee’’ (Tr. 716). He also claimed that if an em-
ployee was sick and could not do his job, he would probably
tell ‘‘about anybody’’ that he was going home (Tr. 717).
Jenkins disregarded the written job description, quoted
above, that the safety and quality controller has the responsi-
bility, ‘‘Along with the superintendent,’’ of writing warning
slips on safety violations. He claimed that only he himself
and Cook had that authority (Tr. 717–718).
When asked what Kryshak was supposed to do if he saw
someone without a hardhat, safety shoes, or seatbelt, Jenkins
claimed that Kryshak ‘‘would come and tell either [Cook] or
myself,’’ but would have no authority to deal with the situa-
tion (Tr. 719–720)—despite the credited evidence that
Kryshak orally reprimanded employees for safety violations.
(As when he was testifying about his decision to discharge
Stevens, Jenkins appeared by his demeanor on the stand to
be willing to fabricate whatever testimony might help the
Company’s cause.) I discredit these claims as further fabrica-
tions.
I reject the Company’s contention that Kryshak had no su-
pervisory authority and that he was merely ‘‘a conduit be-
tween Larry Jenkins and Randy Cook and other employees.’’
To the contrary, I find that Kryshak was a supervisor within
the meaning of Section 2(11) of the Act.
Moreover, having found that the parties intended to, and
did, exclude Kryshak’s position from the stipulated bar-
gaining unit, I find that he was ineligible to vote, even if he
were not a statutory supervisor.
C. Objections
As found, shortly before the election the Company made
coercive promises and threats to employees, violating Section
8(a)(1). I find it clear that this conduct, alleged also in the
Union’s Objections 1a and 2, interfered with the employees’
free choice of representation.
I overrule Objection 1b, having found no merit to the alle-
gation that the Company threatened to call the police to in-
terrupt a union meeting. I also overrule the additional alleged
objectionable conduct, having found no merit to the allega-
tion that the Company granted employees a pay raise to dis-
courage union support.
Accordingly I sustain Objections 1a and 2 and find that
the election must be set aside and a new election held, unless
it is found after the ballots of William Carter and Todd Ste-
vens are opened and counted, that the Union has received a
majority of the valid votes cast.
CONCLUSIONS OF LAW
1. By discriminatorily discharging Todd Stevens on May
22, 1992, the Company has engaged in unfair labor practices
affecting commerce within the meaning of Section 8(a)(3)
and (1) and Section 2(6) and (7) of the Act.
2. By (a) coercively interrogating an employee, (b) unlaw-
fully creating the impression that the employees’ union ac-
tivities are under surveillance, (c) promising a pay raise and
future wage increases if the employees reject the Union, (d)
promises unspecified benefits for voting against the Union,
(e) threatening to discharge union supporters, (f) threatening
to keep an employee on layoff and threatening loss of jobs,
layoffs, and reduced working hours if the employees vote for
the Union, the Company violated Section 8(a)(1).
3. The Company did not threaten to call the police to in-
terrupt a union meeting.
4. The Company did not grant employees a pay raise to
discourage union support.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily discharged an em-
ployee, it must offer him reinstatement and make him whole
for any loss of earnings and other benefits, computed on a
quarterly basis from date of discharge to date of proper offer
of reinstatement, less any net interim earnings, as prescribed
in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest
as computed in New Horizons for the Retarded, 283 NLRB
1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The Respondent, W. C. Babcock Construction Company,
Inc., Rensselaer, Indiana, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against any
employee for supporting International Union of Operating
Engineers, Local Union No. 150, AFL–CIO or any other
union.
(b) Coercively interrogating any employee about union
support or union activities.
(c) Creating the impression that the employees’ union ac-
tivities are under surveillance.
(d) Promising a pay raise or future wages increases if the
employees reject a union.
(e) Threatening to discharge union supporters.
(f) Threatening to keep an employee on layoff or threat-
ening loss of jobs, layoffs, or reduced working hours if em-
ployees vote for a union.
(g) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Todd Stevens immediate and full reinstatement
to his former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his seniority
or any other rights or privileges previously enjoyed, and
make him whole for any loss of earnings and other benefits
suffered as a result of the discrimination against him, in the
manner set forth in the remedy section of the decision.
(b) Remove from its files any reference to the unlawful
discharge and notify the employee in writing that this has
been done and that the discharge will not be used against
him in any way.
1227W. C. BABCOCK CONSTRUCTION CO.
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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its facility in Rensselaer, Indiana, copies of the
attached notice marked ‘‘Appendix.’’4 Copies of the notice,
on forms provided by the Regional Director for Region 25,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS ALSO ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
IT IS FURTHER ORDERED that Case 25–RC–9158 is re-
manded to the Regional Director to open and count the bal-
lots of William Carter and Todd Stevens and to issue a re-
vised tally of ballots and a certification of representation if
International Union of Operating Engineers, Local Union No.
150, AFL–CIO has received a majority of the valid votes
cast. If the Union has not received a majority, the election
conducted July 10, 1992, shall be set aside and a new elec-
tion conducted whenever the Regional Director deems appro-
priate.