American Pacific Concrete Pipe Company, Inc.

National Labor Relations Board - Board Decisions

Jul 23, 1982

262 N.L.R.B. 1223 (N.L.R.B. 1982)

AMERICAN PACIFIC CONCRETE PIPE CO.
American Pacific Concrete Pipe Company, Inc. and
General Teamsters, Sales Drivers, Food Proces-
sors, Warehousemen and Helpers Local 871, In-
ternational Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America.
Case 31-CA-10098
July 23, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS JENKINS AND HUNTER
On September 16, 1981, Administrative Law
Judge David G. Heilbrun issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief, and the
General Counsel filed a reply brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,' find-
ings,2 and conclusions of the. Administrative Law
Judge only to the extent consistent herewith.
I Respondent contends that the Administrative Law Judge erred in
granting the General Counsel's motion, made at the hearing, to amend
the complaint to allege that Respondent violated Sec. 8(aX2) of the Act
by suggesting to its employees that they join the Brick and Clay Workers
Union and designate it as their bargaining representative, notwithstanding
the fact that Teamsters Local 871, hereinafter the Union, had already
been designated the exclusive bargaining representative of the unit em-
ployees; and by signing a collective-bargaining agreement with the Brick
and Clay Workers. Contrar) to Respondent, we hold that the Adminis-
trative Law Judge properly granted the motion to amend, although, in so
holding, we do not rely on fn. 6 of his Decision. "It is well settled that
the complaint may allege violations of a different section of the Act than
that alleged in the charge if they are closely related to the violations
named in the charge and occurred within 6 months of the filing of the
charge." Eugene and Veronica McManus, Co-Partners. d/b/a Sunrise
Manor Nursing Home, 199 NLRB 1120, 1121 (1972). In this case, the basis
for the amendment is the close relationship between the 8(aX2) allegation
and the 8(aX5) allegations of the charge and complaint, which are sup-
ported by the same record evidence. Thus, as shall be fully discussed,
infra, although obligated to bargain with the Union, Respondent attempt-
ed to engender support among its employees for the Brick and Clay
Workers Union and, in fact, signed a collective-bargaining agreement
with that union. Accordingly, we hold that the motion to amend was
properly granted.
2 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Producs
Inc., 91 NI.RB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record arid find no basis for reversing his findings.
Respondent, in its exceptions. also asserts that the Administrative Law
Judge was biased and prejudiced against it, and, in support of such asser-
tion, points to portions of the Administrative Law Judge's Decision as
being "couched in uncharacteristically strong language that offers little
factual support" for his conclusions. Respondent concedes, however, and
we agree, that the hearing was conducted in a fair and regular manner.
We also agree with Respondent that the Administrative Law Judge's use
of language in parts of his Decision may not, perhaps, be properly char-
actenrized as judicial Nonetheless, sne have carefully reviewed the record
262 NLRB No. 139
We are in agreement with the Administrative
Law Judge that Respondent violated Section
8(aX5) of the Act by failing and refusing to bargain
with the Union, by withdrawal of recognition from
the Union, by Respondent's refusal to recall its em-
ployees, and by unilaterally changing the condi-
tions of employment of its unit employees; that Re-
spondent violated Section 8(a)(2) of the Act by
suggesting to its employees that they join the Brick
and Clay Workers Union and designate it as their
bargaining representative, and by signing a collec-
tive-bargaining agreement with the Brick and Clay
Workers during the pendency of a bargaining rela-
tionship with the Union; and that Respondent vio-
lated Section 8(a)(3) of the Act by failing and re-
fusing to recall its unit employees upon resumption
of its operations and pursuant to agreement with
the Union. We do not, however, adopt the reason-
ing of the Administrative Law Judge in so finding.
Respondent, also known as Ampac, and owned
by brothers Al and Carlos Bea, is a construction
products supplier with an in-house transportation
capability from plant to jobsite. Its production and
maintenance employees are represented by the
United Brick and Clay Workers of America, Local
No. 820, AFL-CIO, hereinafter Brick and Clay
Workers, while its 10 drivers, the unit at issue
herein, are represented by Teamsters Local 871.3
The record reflects that the Union had main-
tained a bargaining relationship with Respondent
for approximately 15 years, and had entered into
successive collective-bargaining agreements with
Respondent during that period of time, the latest
contract expiring September 30, 1979. During ne-
gotiations for a new contract, Respondent pro-
posed that the existing language with respect to
recall rights4 be deleted, and that construction in-
dustry-type language be substituted, so that, if an
employee were to be on layoff status for more than
30 days, he would automatically be terminated.
The proposed change would also have the effect of
deleting the progressive disciplinary system then in
force, in that Respondent would only have to lay
off an employee for 30 days in order to terminate
him.
Prior to the expiration date of the contract the
Union and Respondent had reached agreement on
all issues except for Respondent's proposed
changes with respect to layoff, which the Union
and the Administrative Law Judge's Decision, and we find nothing there-
in which would support an allegation of bias and prejudice; and, in any
event, we have made our own findings herein and rely on them.
'The appropriate unit herein is: All drivers employed at Respondent's
Upland, California facility; excluding office clerical employees, guards
and supervisors as defined in the Act.
4 All previous contracts had provided for recall rights lasting 12
months.
1223
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strongly opposed. At the October 2, 1979, negotia-
tion session, however, Al Bea informed the Union
that the contract had expired, that he no longer
had any unit employees working at Ampac, and
that the trucks owned by Ampac were to be taken
to Irwindale to be auctioned off.5 At the October 2
meeting, Respondent continued to take a firm posi-
tion that the construction industry-type layoff lan-
guage must be included in any contract, and also
indicated that there was no point in having further
meetings until the unfair labor practice charge was
resolved, but nonetheless scheduled a negotiation
session for October 12. In the interim, however, on
October 4, the Union received Respondent's 7-day
notice to terminate the collective-bargaining agree-
ment.
At the already scheduled October 12 meeting,
after being assured by Respondent that it was
indeed going to sell its trucks and conclude its
transportation activities, as had been indicated at
the October 2 negotiation session, the Union and
Respondent entered into the following agreement:
It is hereby agreed in the event AMPAC
should replace the use of the common carrier,
by utilizing their own company owned equip-
ment within the next year from this date, the
company will recognize Teamsters Union
Local 871 and will bargain with said Union on
behalf of any truck drivers employed to oper-
ate such equipment.
In the event AMPAC purchases new equip-
ment within the one year period, they will
offer reemployment to those employees dis-
placed on October 1, 1979 and will recognize
their prior seniority for such reemployment.
As part of the overall agreement reached that day,
Respondent agreed to pay the laid-off employees
11 days' pay, and the Union agreed to withdraw
the unfair labor practice charge it had filed with
the Board on October 2, 1979.
The record reflects, however, that Respondent
was unsuccessful in its attempt to auction its
trucks, 6 and soon thereafter arrived at an oral
agreement with Citizens Trucking, whereby
Ampac trucks were leased to Citizens, which could
then use the Ampac-owned trucks at its discretion.
The relationship with Citizens, however, was not
5 On Septembel 29, 1979, Respondent had informed its drivers that
there was no further work, and instructed them to telephone the office
for more information. On being informed by Respondent's employees
what Respondent had done, the Union filed a grievance, as well as an
unfair labor practice charge with the Board.
I The auction was held on October 17, 1979. Al Bea surmised, at the
hearing, that the lack of success at the auction was due to the fact that
the trucks were fashioned for the hauling of pipe, and could not readily
be used for transporting other materials.
to Al Bea's liking 7 and, on April 1, 1980, Bea en-
tered into a lease agreement with J. D. Dean
Trucking, whose principal owner was J. D. Dean,
a Riverside, California, plastic surgeon who also
possessed a P.U.C. license.
Ampac's trucks, which had been at Citizens'
yard, were then returned to Ampac's premises,
where three former Ampac drivers,8 as well as
some new hires, began delivering Ampac pipe with
Ampac trucks-now leased to Dean,9 and which
now carried Dean decals. The lease, which on its
face had a duration of 12 months, was decidedly
favorable to Ampac. Thus, the lease specified that
the trucks could not be used to transport hazardous
materials, nor could they be used for towing, push-
ing, or any other purpose than that for which they
were designed; i.e., the hauling of pipe. In addition,
the lease specified that the vehicles could only be
used within a 300-mile radius of Upland. The lease
also specifically stated that each vehicle could only
be driven by a safe, competent, and duly licensed
driver, hired and paid by Dean; but also provided
that, upon complaint by Ampac specifying reckless,
careless, or abusive handling, Dean was required to
remove that driver and replace him with a compe-
tent substitute. With respect to maintenance, the
lease specified that Dean would pay costs, but that
Ampac would perform servicing. The lease further
provided that, if Dean took a truck to an author-
ized service station, and if the cost was more than
$50, Dean was to consult Ampac, which would
provide written instructions. Ampac would insure
the trucks, which would be available at all times
for inspection by Ampac. Finally, Dean was re-
quired to pay a $1,000 security deposit to Ampac
which would be repaid to Dean if all the "terms,
covenants, and conditions are fully complied with."
The lease, however, did not totally reflect the re-
lationship between Ampac and Dean-which was,
in fact, almost completely dominated by Ampac.
At this juncture of our analysis, some discussion of
the role of Chris Adzovich is in order. Adzovich,
whom Al Bea described as "a legend in his time,"
and as having written "the book on pipe," had, as
7 Citizens had been using Ampac trucks to haul materials other than
pipe, and relegating delivery of Ampac pipe to independent drivers who
knew little or nothing about hauling pipe-resulting in a sharp increase in
pipe breakage.
8 Bill Martin, Bob Bourneman, and Charles Reese.
e The record reflects that the operations being carried out during the
lease period were identical to those carried out while Ampac was in full
control of the trucks. Thus, Ampac pirpe and related construction materi-
als continued to be delivered to Ampac customers; and there is no record
evidence that Dean used the trucks for any purpose other than that dic-
tated by Ampac. In addition, for a period of time after the lease became
effective, Bob Miller, an Ampac engineer, carried out dispatch duties.
Charles Reese was thereafter made dispatcher when Al Bea determined
that Miller had too much other work to do to enable him to carry on the
dispatch work as well.
1224
AMERICAN PACIFIC CONCRETE PIPE CO.
the result of illness, fallen on hard times. Bea, as a
favor, had initially hired Adzovich as a dispatcher,
but Adzovich's expertise in the field of pipe con-
struction was such that he soon became Al Bea's
"exec"; and after Adzovich officially retired on
December 31, 1979, he acted as a consultant for
both Bea and Dean.1 0 As shall be seen, infra, both
Bea and Adzovich played pivotal roles in the oper-
ations of Ampac and Dean.
The record reflects that Bea introduced Dean to
Adzovich, and suggested that Adzovich could help
Dean run the operation. As noted in footnote 10,
supra, it is not clear whether Dean formally hired
Adzovich, although Adzovich maintained an office
at Ampac's facility, and individuals seeking work
with Dean applied for the jobs through Adzovich.
Soon after the lease was signed with Dean, in
April 1980, the drivers then employed found au-
thorization cards for the Brick and Clay Workers
attached to their timecards. Although the record is
not entirely clear as to what was said, the evidence
is plain that Adzovich raised, with the drivers, the
subject of joining that union, that the drivers never
saw a representative of that union, and that at least
some of the drivers signed cards and joined the
Brick and Clay Workers that day.
Thereafter, on May 1, 1980, a collective-bargain-
ing agreement was entered into between the Brick
and Clay Workers and Dean, although, as will be
seen, Al Bea and Chris Adzovich were the leading
actors in this scenario. Antonio Sanchez, the Inter-
national representative for the Brick and Clay
Workers," testified concerning how he came to
represent the drivers. He stated that "I was at the
plant and these trucks were coming in there and
they were nonunion and I wanted to represent
them." Sanchez, who has never met Dr. Dean,'2
negotiated the contract for the drivers in Bea's
office, with Bea and Adzovich. Sanchez also testi-
fied that the only issue with which Bea was con-
cerned was "to retain jurisdiction over the drivers
because they couldn't watch them once they went
on the road . . . he wanted to be able to discipline
them if they needed discipline without a recourse
to any warning notices or what have you. I gave
him that." Sanchez also agreed to a deletion of the
'1 Although Bea paid Adzovich for his consulting duties, Bea had no
knowledge of whether Dean paid Adzovich for any services rendered,
and the record reflects that Elizabeth Cox, an office employee for Ampac
who also acted as Dean's bookkeeper, never saw any checks made out to
Adzovich. Finally, Bea testified that all the employees knew that Adzo-
vich was Bea's right-hand man,
" As noted above, the Brick and Clay Workers had represented
Ampac's production and maintenance employees since the early 1970's.
12 Indeed, Dean remains a shadow figure throughout. The record re-
flects that he visited the Ampac facility perhaps once or twice a month,
and that his only other contact was through Elizabeth Cox, who served
in the dual role of Ampac office employee and Dean's bookkeeper.
"just cause" phraseology for discharge. The con-
tract was to be effective through December 1980.
Bea also testified about these negotiations, stating
that, with respect to the construction language pro-
vision,
I gave them [Adzovich and Sanchez] the
master labor agreement which sits on my desk.
Q: Did You urge him [Adzovich] to try to
get that kind of language in the agreement?
A: Sure. I thought that was equitable lan-
guage.
Later in his testimony, Bea was asked:
Q: Would you recommend to other people
in the pipe business . . . that they'd have [con-
struction] language such as was inserted in this
agreement?
A: No. Each company does it own labor ne-
gotiations. You know, they have labor negotia-
tors and divisions and all that kind of good
things. I don't have any of that. I'm a mom-
and-pop store. What I wanted I wanted for Al
Bea .. ."13
The May 1980 agreement continued until No-
vember 25, 1980, when Bea wrote to the Brick and
Clay Workers that Ampac had been operating
some rolling stock as of October 13 of that year.
Thereafter, in January 1981, Bea negotiated a new
collective-bargaining agreement for his production
and maintenance employees, in which the drivers
were included. The new contract, however, re-
tained the construction industry language, which
applied only to the drivers.
Finally, although the lease with Dean was to
have lasted for 12 months, the record does not re-
flect any formal termination of the lease when, in
October 1980, Ampac openly began to operate its
own trucks. It is thus apparent that Dean Trucking
materialized, and then faded away, at Ampac's
convenience. Indeed, the Brick and Clay Workers,
signatory to the May 1980 contract with Dean, was
notified 5 weeks after the fact by Al Bea that
Ampac was, once again, operating rolling stock.
No notice with respect to Dean's status was com-
municated to that union by either Dean or Bea.
The record thus supports the conclusion that
Ampac had an obligation to bargain with the
Union as of April 1, 1980, when it terminated its
verbal lease agreement with Citizens, and entered
13 As is evident from the record, Bea was concerned about retaining
control over "his" drivers, including the ability to discharge them at his
pleasure--even though the drivers were ostensibly employees of Dean.
Indeed, Bea's entire reason for insisting on the construction industry-type
language was that "I had an unblemished record of never being able to
have a warning letter stick or get a favorable ruling in a grievance. I
always lost."
1225
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
into what we find to be an alter ego arrangement
with Dean Trucking. As in most alter ego situa-
tions, Ampac and Dean had substantially identical
business purpose, operations, equipment, and cus-
tomers.14 They did not, however, share common
ownership; nor, did they, on paper, share common
management or supervision. In point of fact, how-
ever, Ampac exercised a degree of control over
Dean so as to obliterate any separation between
them. Thus, as reflected in the record and dis-
cussed above, the lease document itself gave
Ampac significant control over the equipment by
placing limitations on its use, as well as over
Dean's personnel.' 5
With respect to supervision, the record reflects
that Bill Miller, Ampac's engineer-dispatcher, hired
Charles Reese as a driver for Dean; and, as noted
above, individuals filed job applications for Dean
with Adzovich. In addition, Miller scheduled all
deliveries.' 6 There came a time, 7 however, when
Al Bea decided that Miller could no longer per-
form two jobs, and Reese was informed by Bea
that Reese would be the new dispatcher, ostensibly
for Dean Trucking.
Finally, with respect to the issue of control, the
record is clear that Adzovich, and especially Bea,
retained absolute control over Dean's labor rela-
tions. Thus, as discussed above, it was Adzovich
who first spoke to the employees about the Brick
and Clay Workers, Adzovich and Bea who hired
Dean's employees, and Bea who dictated the terms
of the collective-bargaining agreement between
Dean and that union for Bea's sole benefit. In
short, Bea controlled and orchestrated Dean's busi-
ness, both from an operational and labor relations
standpoint.
Accordingly, based on all of the above, and the
record as a whole, we find that Dean Trucking
was the alter ego of Ampac. In so finding, we rely
on the substantially identical business purpose,
equipment, type of customer, Bea's and Adzovich's
role in the actual day-to-day operations and labor
relations of Dean Trucking, the lease agreement fa-
vorable to Ampac, and the transient nature of
Ampac's and Dean's relationship. s1 See, generally,
14 As set out above, Ampac qua Dean continued to deliver pipe in the
same manner as always, using the same trucks. Since Ampac supplies
construction contractors, the customers are not always the same-the
type of customer, however, did not vary when Ampac entered into the
arrangement with Dean.
's As noted above, upon complaint by Ampac specifying reckless,
careless, or abusive driving, Dean was required to remove any driver so
accused. There was no provision for any investigation by Dean.
is The record reflects that Ampac also leased trucks itself, and Miller
scheduled these trucks as well.
,I September 1980 and while the lease agreement with Dean was still
in effect.
'8 This transience was based upon Bea's ultimate purpose: to avoid a
bargaining relationship with the Union, wherein he would be tied to a
Denzil S. Alkire, a sole proprietorship; Upshur Enter-
prises, Inc.; and Mountaineer Hauling & Rigging,
Inc., 259 NLRB 1323 (1982).
Having found Dean Trucking to be the alter ego
of Ampac, we hold that, as of April 1, 1980, the
date on which Dean and Ampac entered into their
alter ego relationship, Respondent Ampac was re-
quired to bargain in good faith with the Union, and
that, by failing and refusing to do so, Respondent
violated Section 8(a)(5) of the Act. Thus, Respond-
ent's October 12, 1979, agreement with the Union
required Respondent in the event that Respondent
utilized its own equipment-or purchased new
equipment-to recognize and bargain with the
Union and recall its employees on a seniority basis.
Having failed to do so, we additionally find that
Respondent violated Section 8(a)(5) of the Act by
its withdrawal of recognition from the Union, its
refusal to recall its employees as of April 1, 1980,
and its unilateral change in the conditions of em-
ployment of its employees. 9
Having found that Respondent was required to
bargain with the Union as of April 1, 1980, we also
find that Respondent violated Section 8(a)(2) of the
Act by encouraging its employees to support the
Brick and Clay Workers by signing that union's
dues-checkoff or authorization cards, and that Re-
spondent also violated Section 8(a)(2) of the Act
when, on May 1, 1980, it signed a collective-bar-
gaining agreement with the Brick and Clay Work-
ers.2 0
Finally, we find that Respondent violated Sec-
tion 8(a)(3) of the Act by its refusal to recall its
employees as of April 1, 1980, when Respondent,
in the guise of its alter ego, Dean, reinstituted its
trucking operations. 2
progressive system of discipline, as well as to a grievance and arbitration
procedure. Thus, on the face of the October 12, 1979, agreement, Ampac
remained tied to the Union for a period of I year; and, as noted intrm,
Bea wasted no time in openly operating his own trucks-such operation
commencing on October 13, 1980.
"I That the purpose behind Ampac's relationship with Dean was to
avoid the October 12, 1979, agreement is not open to question. Thus, as
noted above, on October 13, 1980, Bea perfunctorily, and without appar-
ent notice to any of the concerned parties, began operating his own roll-
ing stock.
'o That Bea's purpose in this whole affair was to avoid a bargaining
relationship with the Union, which, he knew, would not capitulate to his
demand for the construction industry-type language, the effect of which
would give Bea the ability to discharge his drivers at will, is further
strengthened by Bea's apparent eagerness to enter into a collective-bar-
gaining agreement with the Brick and Clay Workers which granted Bea's
wish.
si In so finding, we rely on Respondent's abrogation of its October I,
1979, agreement with the Union, and disavow the Administrative Law
Judge's analysis at par. 7 of his Decision, wherein he appears to find that
the drivers were not recalled by virtue of their union activity. The
record does not so reflect. Contrary to the Administrative Law Judge,
the crux of the 8(aX3) violation herein is not that certain drivers were
singled out because they individually engaged in union activity and were
not recalled therefor; but rather that Respondent was obligated by its
Continued
1226
AMERICAN PACIFIC CONCRETE PIPE CO.
CONCLUSIONS OF LAW
1. American Pacific Concrete Pipe Company,
Inc., hereinafter referred to as Respondent, and its
alter ego, J. D. Dean Trucking, are an employer en-
gaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. General Teamsters, Sales Drivers, Food Pro-
cessors, Warehousemen and Helpers Local 871, In-
ternational Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein-
after referred to as the Union, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. United Brick and Clay Workers of America,
Local No. 820, AFL-CIO, hereinafter referred to
as Brick and Clay Workers, is a labor organization
within the meaning of Section 2(5) of the Act.
4. The appropriate unit for purposes of collective
bargaining within the meaning of Section 9(b) of
the Act is:
All drivers employed at Respondent's Upland,
California facility; excluding office clerical em-
ployees, guards and supervisors as defined in
the Act.
5. At all times material herein, and continuing to
date, the Union has been and is now the exclusive
representative for purposes of collective bargaining
of the employees in the above appropriate unit.
6. At all times material herein, and continuing to
date, Respondent and the Union have been, and
continue to be, bound by the conditions of an
agreement entered into by them on October 12,
1979, the terms of which are fully set out above.
7. On or about April 1, 1980, and continuing to
date, Respondent unilaterally withdrew recognition
from the Union, failed and refused to bargain with
the Union, unilaterally changed the conditions of
employment of its employees, and failed and re-
fused to recall its employees in accordance with
the October 12, 1979, agreement between it and the
Union, thereby violating Section 8(aX)(5) of the Act.
8. On or about May 1, 1980, and continuing to
date, Respondent gave assistance to and entered
into a collective-bargaining agreement with the
Brick and Clay Workers with respect to the em-
ployees in the unit set out in Conclusion of Law 4,
above, thereby violating Section 8(a)(2) and (1) of
the Act.
signed agreement with the Union to bargain with the Union, and to recall
the employees if Respondent resumed operations within I year; that Re-
spondent entered into an alter ego relationship to avoid its obligation to
bargain with the Union; and that the drivers were not recalled by virtue
of Respondent's attempt to avoid its obligation to bargain. Thus, to the
extent that Respondent's refusal to bargain with the Union indicates un-
lawful motivation with respect to its refusal to recall its drivers, Re-
spondent violated Sec. 8(a(3) of the Act.
9. By unlawfully failing and refusing to recall its
employees since on or about April 1, 1980, Re-
spondent has thereby violated Section 8(a)(3) and
(1) of the Act.
10. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
THE REMEDY
Having found that Respondent engaged in the
unfair labor practices enumerated above, we shall
order that it cease and desist therefrom and take
certain affirmative action designed to effectuate the
policies of the Act as follows:
1. Respondent shall retroactively comply with
the terms and conditions of the October 12, 1979,
agreement entered into with the Union.
2. Respondent shall cease giving assistance and
support to, and shall withdraw and withhold rec-
ognition from, the United Brick and Clay Workers
of America, Local No. 820, AFL-CIO, in the unit
set out in paragraph 4 of our Conclusions of Law,
unless and until it is certified by the Board; shall
recognize and, on request, bargain with the Union;
shall implement and adhere to the October 12,
1979, agreement entered into by Respondent and
the Union; and shall recall its employees in accord-
ance with the provisions of that agreement.
3. All employees who may have suffered any
loss of pay and benefits beginning on April 1, 1980,
shall receive backpay, with interest and benefits, in
the manner set forth in F. W. Woolworth Company,
90 NLRB 289 (1950), and Florida Steel Corporation,
231 NLRB 651 (1977).22 Because the record is not
clear with respect to the particular employees who
were recalled or rehired, or when they were re-
called or rehired, we will defer such a determina-
tion to the compliance stage of the proceeding.
4. All employees who may have been required to
pay dues, fees, and other moneys pursuant to the
collective-bargaining agreement with United Brick
and Clay Workers, Local No. 820, shall be reim-
bursed, with interest, by Respondent.
5. Since Respondent has engaged in unfair labor
practices of a sufficiently egregious nature as to
demonstrate a disregard for its employees' funda-
mental statutory rights, we shall include in our
Order a provision requiring Respondent to cease
and desist from in any other manner infringing
upon the rights guaranteed to its employees by
Section 7 of the Act. See Hickmott Foods, Inc., 242
NLRB 1357 (1979).
'2 See, generally, Isis Plumbing a Heating Co.. 138 NLRB 716 (1962).
In accordance with his dissent in Olympic Medical Corporation, 250
NLRB 146 (1980), Member Jenkins would award interest on the backpay
due based on the formula set forth therein.
1227
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
American Pacific Concrete Pipe Company, Inc.,
Upland, California, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Failing and refusing to recognize and bargain
collectively with General Teamsters, Sales Drivers,
Food Processors, Warehousemen and Helpers
Local 871, International Brotherhood of Teamsters,
Chauffeurs, Warehousmen and Helpers of America,
hereinafter Teamsters Local 871, as the exclusive
bargaining representative of a unit of the following
employees:
All drivers employed at Respondent's Upland,
California facility; excluding office clerical em-
ployees, guards and supervisors as defined in
the Act.
(b) Failing and refusing to implement and adhere
to the October 12, 1979, agreement entered into be-
tween Respondent and Teamsters Local 871, and
thereby unlawfully refusing to recall the unit em-
ployees as provided by that agreement and unlaw-
fully and unilaterally changing the conditions of
employment of the unit employees.
(c) Recognizing or contracting with United
Brick and Clay Workers, Local No. 820, as the
bargaining representative of any of its employees in
the unit set out in paragraph (a) above, for pur-
poses of collective bargaining, unless and until said
labor organization has been certified by the Nation-
al Labor Relations Board as the exclusive bargain-
ing representative of such employees.
(d) Giving effect to any dues-checkoff or author-
ization card executed by any employee in the unit
described in paragraph (a), above, which, on its
face, is in favor of United Brick and Clay Workers,
Local No. 820; or giving effect to the collective-
bargaining agreement with Local No. 820 executed
on or about May 1, 1980, or to any extension, re-
newal, or modification thereof; provided, however,
that nothing in this Order shall be construed as re-
quiring Respondent to take any action unfavorable
to any individual employee regarding wages, hours,
and other substantive terms or conditions of em-
ployment; provided further that nothing in the first
proviso shall limit the rights of Teamsters Local
871 with respect to action which Respondent has
taken unilaterally so far as Teamsters Local 871 is
concerned.
(e) Unlawfully failing and refusing to recall its
employees as provided in the October 12, 1979,
agreement, and thereby discriminating in regard to
their hire and tenure of employment or any term or
condition of their employment in order to discour-
age membership in Teamsters Local 871.
(f) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of the
rights guaranteed them under Section 7 of the Act.
2. Take the following affirmative action which
will effectuate the policies of the Act:
(a) On request, recognize and bargain collective-
ly with Teamsters Local 871 as the exclusive repre-
sentative of all employees in the aforesaid appropri-
ate unit with respect to rates of pay, wages, hours,
and other terms and conditions of employment,
and, if an understanding is reached, embody such
understanding in a signed agreement.
(b) Implement and adhere to the October 12,
1979, agreement between Respondent and Team-
sters Local 871.
(c) Withdraw and withhold all recognition from
Brick and Clay Workers Local No. 820 as the ex-
clusive bargaining representative of its employees
in the unit set out above in paragraph l(a), for the
purpose Of collective bargaining, unless and until
said labor organization shall have been certified by
the Board as the exclusive representative of such
employees.
(d) In accordance with the October 12, 1979,
agreement, offer its employees immediate and full
reinstatement to their former positions or, if those
jobs no longer exist, to substantially equivalent po-
sitions, without prejudice to their seniority or other
rights and privileges previously enjoyed, and make
them whole for any losses they may have suffered
by reason of Respondent's failure to adhere to and
implement said agreement, in the manner set forth
in the section of this Decision and Order entitled
"The Remedy."
(e) Reimburse its present and former drivers in
the bargaining unit described above for all fees,
dues, and other moneys they have been required to
pay as a condition of employment by reason of en-
forcing any current or past collective-bargaining
agreement with Brick and Clay Workers Local No.
820, together with interest in the manner set forth
in the section of this Decision and Order entitled
"The Remedy."
(f) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, 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.
(g) Post at its Upland, California, place of busi-
ness copies of the attached notice marked "Appen-
1228
AMERICAN PACIFIC CONCRETE PIPE CO.
dix." 23 Copies of said notice, on forms provided by
the Regional Director for Region 31, after being
duly signed by Respondent's authorized representa-
tive, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to ensure that said notices are not
altered, defaced, or covered by any other material.
(h) Notify the Regional Director for Region 31,
in writing, within 20 days from the date of this
Order. what steps the Respondent has taken to
comply herewith.
MEMBER JENKINS, concurring:
I concur in the result.
23 In the event that 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NAIIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT refuse to recognize and bar-
gain with General Teamsters, Sales Drivers,
Food Processors, Warehousemen and Helpers
Local 871, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, hereinafter Teamsters
Local 871, as the exclusive bargaining repre-
sentative of our employees in the appropriate
unit set forth below:
All drivers employed at our Upland, Cali-
fornia facility; excluding office clerical em-
ployees, guards and supervisors as defined in
the Act.
WE WILL NOT refuse to implement and
adhere to our October 12, 1979, agreement
with Teamsters Local 871, and WE WILL NOT
thereby refuse to recall our employees in the
unit set out above, as provided by that agree-
ment.
WE WILL NOT unlawfully and unilaterally
change the conditions of employment of our
employees in the unit set out above.
WE WILL NOT recognize or contract with
United Brick and Clay Workers of America,
Local No. 820, AFL-CIO, hereinafter Local
820, as the bargaining representative of any of
our employees in the unit set out above, for
the purposes of collective bargaining, unless
and until that labor organization has been cer-
tified by the National Labor Relations Board
as the exclusive bargaining representative of
such employees.
WE WILL NOT give effect to any dues-
checkoff or authorization cards executed by
any employee in the unit set out above, which,
on its face, is in favor of Local 820, and WE
WILL NOT give effect to the collective-bargain-
ing agreement with Local 820, executed on or
about May 1, 1980, or to any extension, renew-
al, or modification thereof; but we are not re-
quired to take any action unfavorable to any
individual employee regarding wages, hours,
and other substantive conditions of employ-
ment; nor will anything in the first proviso
limit the rights of Teamsters Local 871 with
respect to action which we have taken unilat-
erally with respect to Teamsters Local 871.
WE WILL NOT refuse to recall our employ-
ees in the unit described above as provided for
in our October 12, 1979, agreement with
Teamsters Local 871, in order to discourage
membership in Teamsters Local 871.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of
your rights under the Act.
WE WILL recognize and bargain collectively
with Teamsters Local 871 as the exclusive rep-
resentative of all our employees in the afore-
said appropriate unit with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment, and, if an understanding
is reached, embody such understanding in a
signed agreement.
WE WILL implement and adhere to the Oc-
tober 12, 1979, agreement between us and
Teamsters Local 871.
WE WILL withdraw and withhold all recog-
nition from Brick and Clay Workers Local 820
as the exclusive bargaining representative of
our employees in the unit set out above, for
the purposes of collective bargaining, unless
and until Local 820 shall have been certified
by the Board as the exclusive representative of
such employees.
1229
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL, in accordance with the October
12, 1979, agreement, offer to our employees
immediate and full reinstatement to their
former positions or, if those jobs no longer
exist, to substantially equivalent positions,
without prejudice to their seniority or other
rights and privileges previously enjoyed, and
make them whole, with interest, for any losses
they may have suffered by reason of our fail-
ure to adhere to and implement said agree-
ment.
WE WILL reimburse our present and former
drivers, in the bargaining unit described above,
for all fees, dues, and other moneys they have
been required to pay as a condition of employ-
ment by reason of enforcing any current or
past collective-bargaining agreement with
Brick and Clay Workers Local 820, together
with interest.
AMERICAN PACIFIC CONCRETE PIPE
COMPANY, INC.
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN, Administrative Law Judge: This
case was heard in San Bernardino, California, on June 2
and 3, 1981, based on a complaint alleging, as amended
at the hearing, that American Pacific Concrete Pipe
Company, Inc., herein called Respondent, violated Sec-
tion 8(a)(1), (2), (3), and (5) of the Act on or about April
1, 1980, by discriminating against certain employees in
the context of reemploying other employees through an
asserted alter ego, and by refusing at that time to bargain
collectively with General Teamsters, Sales Drivers,
Food Processors, Warehousemen and Helpers Local 871,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein called
the Union, while contemporaneously extending unlawful
assistance and support to another labor organization.
Upon the entire record,' my observation of witnesses,
and consideration of post-hearing briefs, I make the fol-
lowing:
FINDINGS OF FACT AND RESULTANT CONCLUSION
OF LAW
Respondent was founded in 1966 and during interven-
ing years evolved to a construction products supplier
owned by two brothers with in-house transportation ca-
pacity from plant to jobsite. Its production and mainte-
nance employees were represented by United Brick and
Clay Workers of America, Local No. 820, AFL-CIO,
I The index of exhibits cannot be reconciled with the manner in which
Resp. Exh. 6 was received into evidence. This is because a previously
marked Resp. Exh. 6 was withdrawn, and the eventual Reap. Exh. 6, a
letter dated July 31, 1979, was erroneously associated by the reporter to
witness Cox. In fact, this later exhibit was identified and received into
evidence, and all matters inconsistent therewith should be disregarded.
This constitutes a correction of the official record.
while its drivers were represented by the Union.
2 The
last collective-bargaining agreement with the Union had
a term of 3 years expiring September 30, 1979. Alvaro
(Al) Bea, Respondent's chief executive officer, testified
that by early to mid-1979 he had experienced increasing
difficulty with employee attitude as among Teamster-rep-
resented drivers, and an exorbitant amount of pipe break-
age if not actual sabotage. In consultation with his broth-
er Carlos Bea, Respondent's co-owner and a practicing
attorney in San Francisco, it was decided to seek con-
struction industry-type language in any contract renewal,
with particular reference to strengthening employer
rights of discipline and narrowing traditional protection
of "just cause" principles concerning discharge. After
the parties exchanged notification of intent to modify the
contract, bargaining ensued during August and Septem-
ber 1979. Al Bea and consultant Paul Whaley primarily
represented Respondent, while Norman Holman and Bob
Molina, both officials of the Union at the time, represent-
ed it in these talks. An impasse existed for the final days
before contract expiration, with particular reference to
Respondent's proposals of tightened, construction indus-
try-type language as to control of employee job behav-
ior.
At this point in time, Respondent employed about 10
drivers to operate its pipe delivery trucks. On September
29, 1979, the drivers were abruptly notified of no further
work, with instructions to telephone in for more infor-
mation. Five days later, Respondent furnished the Union
its written notice of contract termination, to be effective
October 12, 1979, pursuant to article 36 thereof, and con-
temporaneously leased its vehicles for pipe hauling pur-
poses to Citizens Trucking, an established contract carri-
er, after an unsuccessful attempt to sell them at auction.
In the flurry following about this time, an unfair labor
practice charge of the Union was resolved by written
agreement reached October 12, 1979. This agreement,
signed for Respondent by auxiliary consultant Jack
Wyatt, read:
It is hereby agreed in the event AMPAC should re-
place the use of the common carrier, by utilizing
their own company owned equipment within the
next year from this date, the company will recog-
nize Teamsters Union Local 871 and will bargain
Respondent maintains its office and principal place of business in
Upland, California, where it is engaged in the manufacture of concrete
pipe, annually selling goods or services valued in excess of $50,000 to
customers or business enterprises within California which themselves
meet a jurisdictional standard of the National Labor Relations Board
other than that of indirect inflow or indirect outflow. On these admitted
facts, I find that Respondent is an employer engaged in commerce within
the meaning of Sec. 2(6) and (7) of the Act. The Union is now extinct
following merger in December 1980 with Teamsters Local 467, which
survives as the viable entity. I find that at all material times the Union
was a labor organization within the meaning of Sec. 2(5) of the Act, and
that Local 467 is also now a labor organization as statutorily defined. By
virtue of its established collective-bargaining relationship with Respond-
ent, which includes the reaching and administration of successive collec-
tive-bargaining agreements covering production and maintenance em-
ployees, I further find that United Brick and Clay Workers of America,
Local No. 820, AFL-CIO, is also a labor organization within the mean-
ing of Sec. 2(5).
1230
AMERICAN PACIFIC CONCRETE PIPE CO.
with said Union on behalf of any truck drivers em-
ployed to operate such equipment.
In the event AMPAC purchases new equipment
within the one year period, they will offer reem-
ployment to those employees displaced on October
1, 1979 and will recognize their prior seniority for
such reemployment.
This general arrangement continued for 6 months, at
which point the function was retransferred to J. D. Dean
Trucking, based on a formal lease document of April 1,
1980, providing the basis by which Dean would both pay
for leased equipment and charge Respondent for the
hauling performed.s This entity was dominated by James
D. Dean, a plastic surgeon of the vicinity by occupation
but also holder of a PUC license for "radial highway"
transportation. Effective April 1, 1980, pipe delivery
from Respondent's plant was ostensibly performed by
Dean Trucking, with its operational needs tended by
Chris Adzovich, a semiretired construction authority
functioning at the time as "Al Bea's right-hand man,"
and its payroll, billing, banking, and quarterly tax report-
ing handled on a side, freelance basis by Elizabeth Cox,
Respondent's office manager-bookkeeper and assistant
corporate secretary. As this transpired, the several driv-
ers hired by Adzovich, and subject to daily assignment
by Respondent's dispatcher Bill Miller, came, in the
words of long-service driver Charles Reese, to know
"we was going to" join Brick and Clay Workers Local
820, both because management had "some kind of hold
on it" and because early after the April 1, 1980, change-
over they had found Local 820 authorization cards
conveniently pinned to their timecards. In consequence
of this, Local 820's financial secretary-treasurer, Antonio
Sanchez, conversed with Adzovich, in the presence of
Al Bea, and a document reading as follows was pro-
duced:
This Agreement has been made by and between
I. D. Dean Company, Inc., of 1574 Heather Lane,
Riverside, California, hereinafter referred to as the
"Company" and the United Brick and Clay Work-
ers of America, District Council No. 11, and affili-
ated Local 820, affiliated with the American Feder-
ation of Labor and Congress of Industrial Organiza-
tions, hereinafter referred to as the "Union" execut-
ed this 1st day of May, 1980
Witnesseth:
· In prelude to the lease, Crlos a had written confirmatively to
Dean Trucking on March 28, 190. He said:
This letter is to memorialize our agreement that you will act as
Highway Contract Carrier for carriage of AMPAC concrete pipe to
jobsites under the terms of our lease agreement, and that we will
pay you for carriage, pursuant to P.U.C. Minimum Rate Tariff No.
15, Item No. 600.
Payment to you will be made upon presentation of freight bills in
the form attached.
Your billings should be submitted monthly, using the said "Freight
Bill for Transportation of Property at Vehicle Unit Rates."
If you are in agreement with this arrangement, please sign and
date the enclosed copy of this letter and return it to our office in
Upland; P0. Box 1409. Upland, California 91786.
Section I-Recognition
(a) The Company recognizes the Union as the
sole collective bargaining representative of all driv-
ers and maintenance employees in the collective
bargaining unit defined in paragraph (b) below for
purposes of collective bargaining in respect to rates
of pay, wages, hours, and other conditions of em-
ployment.
(b) This Agreement shall be binding upon Com-
pany's successors, assigns, purchasers, lessees, or
transferees, whether such succession, assignment, or
transfer be effected voluntarily or by operation of
law; and, in the event of Company's merger or con-
solidation with another company or companies, this
Agreement shall be binding upon the merged or
consolidated company.
(c) Subject to the new Agreement which is being
drawn up, all provisions of the Agreement between
the Union and AMPAC, dated January Ist, 1978,
shall apply.
(d) With the following addition and exception:
A workman shall cease to be an employee of the
Company if any such workman is laid off or termi-
nated.
For an approximate 6-month period following April 1,
1980, this arrangement continued. At that point in time,
Al Bea determined that he would reacquire his truck
fleet and resume transporting as done up to a year
before. In doing so he continued the employment of
those who had driven under the Dean banner, a group
including several of the drivers formerly represented by
the Union. Ultimately, Al Bea wrote to Sanchez as fol-
lows, attaching a copy of the October 12, 1979, agree-
ment to this letter of October 25, 1980:
This will serve to notify you that, as per enclosure,
this concern decided to operate some rolling stock
as of October 13, 1980.
Cox testified that during the April-October' 1980 period
she fulfilled all services as described above by a program
of minimal distraction from her regular duties with Re-
spondent, actual performance of various clerical func-
tions at her home, and maintaining direct contact with
Dean by occasional telephone calls to him or speaking in
person when he would randomly appear at plant prem-
ises, augmented by two brief visits to his home.
Respondent's defense here is sham, frivolous, and
worthy of only the most cursory comment. 4 The case is
Where actual operational controls are never relinquished and "eco.
nomic realities" of a purported business change re not boan fide, an aber
at situation presents the same consequence of the involved entities being
"a single employer within the meaning of Section 2(2) of the Act." ]g
ear Supwtartre s, 239 NLRB 179 (1971). This is but a reflection of the
Board's quarter-century-old message, written in context of minor reloca
tion within a metropolitan area. The reference is to Ca4fionia Fooear
Campeny, 114 NLRB 765 (1955), in which the following passage b
found:
Under these circumstances the fact that there was an economic
reason for removal of the plant ceases to be controlling. We can see
no real difference between the case of an employer who decides to
Ceeofai d
1231
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
actually decidable on the concluding testimony of Al
Bea in which he admitted that he had not resumed truck-
ing at an earlier time because "the October 12th letter
. . . says I'm out of business for a year." This astonishing
inartfulness plainly means that he was specifically moti-
vated to give only the appearance of not meeting the
condition that would have triggered resumed representa-
tion rights by the Union. Beyond this, the alter ego char-
acteristics of Dean Trucking are blatantly present. As an
entity it extended no visible direction to the delivery op-
erations it was ostensibly performing, and labor relations
policies, to their primitive extent, were exclusively con-
trolled by Adzovich and Miller, both of whom were
fully aligned with Respondent. I discredit Al Bea's self-
serving testimony relative to non-concern about the
Union, and supposed amicability of his relationships with
union functionaries, finding instead that the total circum-
stances disclose just the opposite and that he schemed to
an unlawful result with more optimism than cleverness. I
discredit Cox whose testimony was a mass of evasion,
hesitation, and incredulous nonsense concerning the
manner of performing business services for Dean Truck-
ing. I find that in fact the various bookkeeping, banking,
and payroll services were totally dependent on Respond-
ent's consent, done openly on its premises, and could not
have proceeded to completion but for Respondent's pa-
ternalistic interest in attempting to buttress her startling
claims. I recognize that she received $150 in monthly
compensation from the Dean Trucking bank account,
however, this trivial attempt to counteract other realities
is without significance. 5 Finally, I also discredit Sanchez,
who has never met Dean and whose pathetic attempt to
show that a bona fide collective-bargaining relationship
arose with respect to representation of drivers on or
about April 1980 is as unsuccessful as all other facets of
this sordid unlawfulness. No more need be noted than
that Sanchez could not even account for incoherence of
his own supposed recognition agreement, a document so
shameful that I trust for his sake it is not further memori-
alized in labor-management annals. 6 The result of a strip-
move his plant to run away from his union rather than for economic
reasons, and an employer, who, as here, moves his plant for econom-
ic reasons but decides to utilize the move as an opportunity to get
rid of the union, resorting to deceit and subterfuges including the set-
ting up of a false front in an effort to conceal the fact that he re-
mains the employer while he pretends to the union and his employ-
ees that he has ceased production and has nothing to do with em-
ployment at the new location.
5 Respondent's several exhibits have been considered and found essen-
tially immaterial, the barest exception being documentation as to worker's
compensation coverage purchased by, and effective for, Dean Trucking
during the period March 28-October 24, 1980. There is no reason to
attach particular weight to this transaction beyond noting it as routine
protection from liability arising randomly out of artifically entangled fi-
nances between Respondent and Dean Trucking.
I By letter dated June 1, 1981, Sanchez voluntarily subordinated the
standing of his Brick and Clay Workers to disposition of this proceeding.
In so doing he provided a necessary due-process foundation to the
ping away from these several fanciful versions is to
reveal the unlawful refusal to meet and negotiate with
the exclusive collective-bargaining representative of af-
fected employees, and to coextensively establish alternate
theories going to unlawful withdrawal of recognition,
unlawfully unjustifiable repudiation of an agreement, and
the unlawful setting of terms and conditions of employ-
ment in derogation of the Union's entitled role. The fact
situation also warrants the 8(a) 3) finding which is
sought, for Respondent willfully avoided the employ-
ment of certain drivers from and after early April 1980
because they were viewed as likely to seek or benefit
from representation by the Union respecting their work
performance and application of typical contract provi-
sions to their employment. This overt discrimination has
the consequence of discouraging their membership in a
labor organization and warrants an express remedy. The
exact scope of reinstatement and backpay rights cannot
be ascertained on the present record,7 and is thus left to
fulfillment by compliance undertakings. Cf. J. M. Tanaka
Construction, Inc., 249 NLRB 238 (1980). Suffice it that
Respondent, having caused the abrupt and unlawful ces-
sation of an established, ongoing department in October
1979, is therefore obliged to bear all consequences and
enjoy no beneficial presumptions of what would have oc-
curred absent this conduct. A reconstruction of transpor-
tation services from and after April 1980, including close
scrutiny of instances in which carriers other than Dean
Trucking performed, should yield a reasonable formula
for how the several individuals are to be made whole.
Accordingly, I render conclusions of law that Re-
spondent, by giving assistance and support to United
Brick and Clay Workers of America, Local No. 820,
AFL-CIO, by discrimination against employees in
regard to layoff, and by refusing to bargain collectively
with the Union, 8 has violated Section 8(aXl), (2), (3),
and (5) of the Act as alleged.
[Recommended Order omitted from publication.]
amended characteristic of the complaint, by which the General Counsel
sought to establish an 8(aX2) violation. This latter stated:
In regards to case name, American Pacific Concrete Pipe Co., Inc.
(AMPAC), and case No. 31-CA-10098. If the National Labor Rela-
tions Board rules that the Employer (AMPAC) must bargain with
the Teamsters on wages and fringe benefits for the truck drivers,
then the Brick and Clay Workers, local #820 disclaim all interest in
the truck drivers.
Implicitly, the chief discriminatees are Billy Martin, Robert Craig,
Don Rolland, and Chuck Boothesby.
s I do not see good reason to allude further to the General Counsel's
three alternative theories of 8(aX5) violation as set forth in par. 12 of the
amended complaint, because this finding on the merits and the associated
remedy embrace all that would result from formally adopting such alter-
natives in their conceptual sense. However, I view this case as one in
which unfair labor practices egregiously strike at the very heart of the
Act in demonstration of a disregard for employees' fundamental statutory
rights. On this basis I include broad remedial language in the Order about
to be recommended. N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532 (4th
Cir. 1941); Emco Steel. Inc., 227 NLRB 989 (1977); Hickmott Foods Inc..
242 NLRB 1357 (1979); Tanaka. supra.
1232