Asphalt Paving Co.

National Labor Relations Board - Board Decisions

Apr 15, 1993

310 N.L.R.B. 1109 (N.L.R.B. 1993)

1109
310 NLRB No. 181
ASPHALT PAVING CO.
1 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.
The judge’s findings, coupled with his citation of Limestone Ap-
parel Corp., 255 NLRB 722 (1981), indicate that he discredited the
Respondent’s account of its allegedly lawful motive for Marcum’s
discharge and found that the Respondent’s sole motive was to rid
itself of an employee it suspected of assisting the organizing effort.
This satisfies the requirements of Wright Line, 251 NLRB 1083
(1980). Cecil I. Walker Machinery Co., 305 NLRB 172 (1991). Even
assuming this could be tenably classified as a dual motive case, we
would still find a violation under Wright Line. First, the General
Counsel has made a prima facie showing, in the light of the numer-
ous 8(a)(1) violations and clear union animus, that Marcum was dis-
charged because of his union support. Second, the Respondent has
not met its burden of proving that the discharge would have taken
place even in the absence of the employee’s union activities.
1 All dates refer to the 1991 calendar year unless otherwise indi-
cated.
Asphalt Paving Company and International Union
of Operating Engineers, Local No. 9, AFL–
CIO. Case 27–CA–11811
April 15, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On December 10, 1992, Administrative Law Judge
William L. Schmidt issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed a brief answering the
Respondent’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Asphalt Paving Company,
Golden, Colorado, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
T. Michael Patton, Esq., for the General Counsel.
Thomas A. Siratovich, Esq., Mountain States Employers
Council, of Denver, Colorado, for the Respondent.
J. William McCahill, Esq., of Denver, Colorado, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
WILLIAM L. SCHIMDT, Administrative Law Judge. Inter-
national Union of Operating Engineers, Local No. 9, AFL–
CIO (Union) filed an unfair labor practice charge against As-
phalt Paving Company (Respondent or Company) on July 22,
1991.1
On September 10, the Acting Regional Director for Region
27 of the National Labor Relations Board (NLRB or Board)
issued a complaint alleging Respondent had engaged in un-
fair labor practices within the meaning of Section 8(a)(1) and
(3) of the National Labor Relations Act (Act). The complaint
was amended on February 13, 1992, and again at the hear-
ing.
Respondent answered the complaint on September 17 de-
nying that it engaged in the unfair labor practices alleged.
The case was docketed for a hearing before an NLRB admin-
istrative law judge.
I heard this matter on February 27 and 28, 1992, at Den-
ver, Colorado. After carefully considering the record, the de-
meanor of the witnesses, and the posthearing briefs filed on
behalf of the General Counsel and Respondent, I conclude
that Respondent engaged in certain unfair labor practices al-
leged, but not others, based on the following
FINDINGS OF FACT
I. ALLEGED UNFAIR LABOR PRACTICES
A. The Pleadings
The General Counsel alleges that Jeffery Keller, Respond-
ent’s vice president, violated Section 8(a)(1) by interrogating
employees; soliciting employee reports of union activity;
promising improved wages, benefits, and promotional oppor-
tunities to thwart employee union activity; suggesting that
employees work elsewhere if they wanted union representa-
tion; and threatening to close Respondent’s quarry if employ-
ees selected union representation.
Additionally, the General Counsel alleges that Harlan
Begeman, Respondent’s aggregate production manager, and
Gerald Batt, Respondent’s rock quarry superintendent, vio-
lated Section 8(a)(1). Specifically, the General Counsel
charges that Begeman interrogated an employee, and that
Batt gave instructions to avoid utilizing particular employees
believed to favor the Union and interrogated an employee
concerning other employees’ union activities.
Finally, the General Counsel alleges that Respondent dis-
charged Richard Marcum, one of its quarry employees, in
violation of Section 8(a)(3). All the conduct alleged as un-
lawful occurred between July 3 and 15.
Respondent admits the preliminary complaint allegations,
including the supervisory and agency status of Keller,
Begeman, and Batt, but denies all substantive allegations of
unlawful conduct.
1110 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Respondent’s direct inflow and indirect outflow each annually
exceed the dollar volume established by the Board for exercising its
statutory jurisdiction over nonretail enterprises. Respondent admits
that it is engaged in commerce and in a business affecting commerce
within the meaning of Sec. 2(6) and (7) of the Act. Jurisdiction over
this labor dispute lies with the Board.
3 Marcum readily acknowledged that he prepared the employee list
submitted to the Union, in part, from a roster in Walker’s desk.
Marcum had regular access to Walker’s desk. Marcum resorted to
this source because other employees, including Grasser, had unlisted
telephone numbers.
4 The General Counsel does not allege any unlawful conduct oc-
curred in this exchange between Marcum and Begeman.
B. The Evidence
1. Background
Respondent, a corporation which maintains its office and
primary facilities in Golden, Colorado, is engaged, inter alia,
in the operation of a rock quarry involved in this pro-
ceeding.2 The quarry, also known as the Ralston quarry, is
located about 7 miles from Respondent’s office in Golden.
Bill Keller holds the controlling ownership interest in the
Company. His son, Jeffery Keller, is vice president of oper-
ations. About 17 employees work at the Ralston quarry, in-
cluding Bill Keller’s stepson, Richard Grasser. Following an
unsuccessful economic strike in 1981, the quarry employees
have been unrepresented.
Al Walker, who had served for about 10 years as the quar-
ry superintendent, notified the Company in late May that he
would retire effective July 1. His departure prompted the
Company to create a new position of operations manager.
Begeman, a supervisor at Respondent’s separately located
MAC plant, was selected to fill that position and he, in turn,
participated in the selection of Batt, a MAC plant dozer op-
erator, as Walker’s successor. Batt took over as the Ralston
quarry superintendent on July 1.
Marcum, the employee whose discharge is at issue here,
began working at the Ralston quarry in 1979. He participated
in the 1981 strike but later abandoned the strike and returned
to work. No evidence indicates that Marcum maintained
membership in the Union following the strike if, indeed, he
had been a member prior thereto. Save for a 6-month period
when Marcum worked at another company location, he was
continuously employed at the quarry until his July 15 dis-
charge.
In February 1990, Marcum was promoted to a quarry
leadman position. No claim is made, however, that he pos-
sessed supervisory authority at relevant times. In early June,
Marcum sought a pay raise through Walker who, in turn, rec-
ommended an increase approved by Jeff Keller.
Commencing in 1990, Marcum was absent for an extended
medical leave. During this period, another employee, Charles
Horcher, served as the leadman in Marcum’s absence. For
reasons never explained, Horcher and Marcum have appar-
ently disliked one another for some time. Neither man was
seriously considered as Walker’s successor. Begeman claims
that Walker thought both were unqualified; Keller implied to
Marcum that a quarry outsider was chosen because he felt
either Horcher or Marcum would promptly quit if the other
became superintendent.
2. Union organizational activity
Marcum was deeply disappointed on learning that he had
been passed over for the superintendent’s job. Immediately
thereafter, Marcum began investigating renewed representa-
tion by the Union.
Because the Union’s office was generally closed during
Marcum’s off hours, Marcum’s wife initiated contact with
the Union by telephone. Mrs. Marcum arranged to furnish
Union Organizer Jim Venckus with a list of quarry employ-
ees and their home telephone numbers.3 She did not disclose
either her or her husband’s identity to Venckus.
After receiving the employee list, Venckus telephoned
company employees to discuss the Union and assess the level
of employee interest. Between June 24 and the second week
of July, Venckus said that he spoke with about 15 quarry
employees.
Marcum said that Venckus telephoned him on July 1. In
the next few days, Marcum spoke to four or five other em-
ployees, including Grasser, about the call from Venckus.
Jeffery Keller acknowledged that he talked to Grasser about
the Union’s telephone calls but no specific information was
adduced as to when this occurred or what they discussed.
3. Company knowledge and reaction
Marcum spoke to Begeman privately at the quarry on July
3 in an effort to learn why he had not been promoted to the
superintendent’s job. In the course of their conversation, the
subject of the Union’s telephone calls was broached. Marcum
claims that Begeman asked how many employees had been
contacted by the Union. Begeman claims that Marcum initi-
ated the subject by telling of his telephone call from the
Union.4
Following his conversation with Marcum, Begeman told
Jeffery Keller, who was also at the quarry that day, of the
Union’s contacts. Shortly thereafter, Begeman asked Marcum
to join Keller and himself in Keller’s vehicle. After driving
to a quieter quarry location, Keller, by Marcum’s account,
said, ‘‘I hear that you got contacted by the union.’’ Marcum
acknowledged the Union’s contact. Marcum claims that Kel-
ler then proceeded to ask him who made the contact, what
was discussed, and how the other employees felt about a
union.
Marcum testified that Keller also told him that the com-
pany wages were comparable to the Union’s wage scales and
that the Company was planning a 20-cent-per-hour wage in-
crease. According to Marcum, Keller added that the Com-
pany had been nonunion for 10 years, that he planned to
continue nonunion, that if employees wanted union represen-
tation they could go elsewhere, and that he would ‘‘close the
doors’’ before he let a union on the property. Further, Keller
told Marcum about an attempt in 1990 by the Teamsters to
organize the Company’s trip travelers which was ‘‘thrown
out’’ after the Company had talked to enough employees.
When Marcum asked Keller about being bypassed for the
superintendent’s position, Keller assured Marcum he would
have other opportunities with the Company because he was
a valued employee. Keller concluded the conversation by
asking Marcum to find out how the other employees felt
about the Union and to let him know if the Union attempted
to set up an employee meeting so he could meet with them
first.
1111ASPHALT PAVING CO.
5 Specifically, Keller claimed the Company had to hire a house
cleaner on July 1 because Walker had vacated the quarry residence
without cleaning it as promised. The following day a mine inspector
appeared at the quarry unannounced inquiring about old citations
long since abated. And the next day Keller learned of the Union’s
calls.
Both Keller and Begeman agree that a private conversation
with Marcum took place in Keller’s vehicle on the morning
of July 3. The exchange, Keller said, began in front of the
quarry office after Begeman and Marcum approached him
and Begeman reported that Marcum had been talking about
a matter which would be of interest to Keller.
At first, Keller said, Marcum wanted to know who was
giving out his unlisted phone number and Keller asked him
to explain what he was talking about. Marcum then reported
in a loud voice that he had received a telephone call at home
the previous evening from a union agent. At that point, Kel-
ler invited Begeman and Marcum to join him in his vehicle
because other employees were in the vicinity.
Once at a more private location, Keller said that he told
Marcum that he was sure no one at the Company had given
out his phone number but agreed to check into it. Keller as-
serted that Marcum expressed offense about the phone call
because he did not want to discuss work with others while
at home. Keller asserted that after ‘‘we kind of calmed down
about the union and his phone calls and who was giving his
unlisted number out, and we had talked about some of those
issues for about five minutes’’ he asked Marcum if he had
anything else to discuss and the conversation shifted to the
reasons Marcum had not been promoted to the quarry super-
intendent’s position.
Keller provided no specifics about the exchange between
Marcum and himself during the 5-minute period that he al-
luded to. However, Keller implicitly denied that he ques-
tioned Marcum about the Union; instead, he recalled that
Marcum stated that he had been ‘‘with the Union’’ before
and that he ‘‘didn’t want anything to do with them again.’’
Purportedly, Marcum also told Keller that other employees
had been contacted by the Union and that they were ‘‘anx-
ious’’ about it. Keller denied that he threatened to ‘‘close the
doors.’’
Begeman likewise was not asked to provide specifics
about the exchange between Keller and Marcum. Apart from
saying, without specificity, that the two men discussed the
Union’s telephone call to Marcum’s unlisted number, the su-
perintendent’s job, production, and Marcum’s future pro-
motion potential, Begeman merely denied that Keller threat-
ened to close the quarry, or promised any pay raises.
According to Marcum, Keller approached him again at the
quarry on July 8 and asked if the Union had gotten in touch
with him again or if he had heard anyone talking about the
Union. Marcum told Keller that he had not ‘‘heard a word.’’
Keller provided no testimony about this exchange.
James Hayes, a current employee of Respondent, said that
Keller approached him at the quarry on July 8 or 9 and
‘‘asked . . . what was going on with the Union deal.’’ Hayes
told Keller that he had been contacted by Venckus. Keller
then went on to inquire of Hayes about the level of interest
in organizing. Hayes expressed some ambivalence by saying
that there were ‘‘pros and cons’’ about the Union. Although
Hayes said that he could not state how others felt, he told
Keller that his own wages were the same as 10 years ago.
Hayes recalled that Keller said wages would be evaluated
when Batt ‘‘got his feet on the ground.’’ Keller also told
Hayes that some employees had received calls from the
union agent at their unlisted phone numbers which suggested
to Keller that there was a ‘‘nigger in the woodpile.’’
Supposedly, Keller also briefly reminisced with Hayes
about the 1981 quarry strike. He recalled that Hayes had par-
ticipated in the strike and told Hayes that he wanted the
Company to remain an ‘‘open shop.’’ Keller told Hayes
about the recent Teamsters organizing effort, including his
belief that some employees lost their jobs because they ‘‘got
so preoccupied with this organization that they had acci-
dents.’’
Keller claimed that the Union came up only tangentially
in his discussion with Hayes on this occasion. By Keller’s
account, he approached Hayes at that time to discuss a job
transfer because Hayes was a capable loader operator. Keller
implied that Hayes expressed conditional interest; he told
Keller he would consider the move provided a wage increase
came with it. Keller told Hayes that the Company was in the
middle of a wage review but he could not promise anything.
Keller denied that he initiated the subject of the Union
with Hayes. Instead, Hayes purportedly told Keller that he
was ‘‘nervous’’ about the ‘‘phone calls to employees and
stuff.’’ Keller said that he cautioned Hayes against getting
preoccupied with it and that if Hayes or anyone had any
questions, the company agents would be happy to answer
them or try to find out answers to their questions.
Keller acknowledged that he had made the ‘‘nigger in the
woodpile’’ statement but never specified to whom or in what
context. His use of that phrase, Keller explained, followed a
rash of problems the Company experienced immediately after
Walker’s departure which caused him to suspect that Walker
was responsible for the recent problems ‘‘at that time.’’5
Marcum claimed that Begeman asked if he (Marcum) had
heard anything more about the Union on July 9. Purportedly,
Marcum responded that he had not. Although Begeman said
that he could not recall Marcum ever saying anything further
to him about the Union after July 3, he did not specifically
deny making the July 9 inquiry which Marcum attributed to
him.
On Thursday, July 11, several conversations involving
Marcum, Begeman, and Batt occurred in connection with the
anticipated repair of a shaker device on one of the quarry’s
rock crushers. In the course of one exchange, Marcum claims
that either Begeman or Batt told him that he could use any-
one on the work other than Hayes or Kelly Higgins, employ-
ees Marcum had indicated he planned to utilize to assist him
on that project. The reason for this directive, Marcum said,
was not explained at that time.
Later in the day, however, Marcum asked Batt in
Horcher’s presence why he could not use Hayes or Higgins.
Batt replied that there was ‘‘a nigger in the woodpile’’ and
said nothing further. Marcum later confronted Batt again
about the instruction at quitting time. At this time, Batt told
Marcum that Higgins might be discharged for damaging one
of the Company’s dozers, and that Hayes was active in the
Union and ‘‘we [want him] to stay home . . . and think
about it.’’
1112 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Batt was called as a General Counsel witness before Marcum tes-
tified. He was not recalled by Respondent during its case. Horcher,
called as a witness by Respondent, was not questioned about this ex-
change between Batt and Marcum.
7 Marcum’s separation notice reflects that he was terminated for
dishonesty or misconduct.
Neither Batt nor Horcher testified about any of the July 11
conversations described by Marcum.6 Begeman said, in ef-
fect, that he overruled Marcum’s plan to use Hayes and Hig-
gins as helpers on the shaker repair job. Begeman explained
that he vetoed Marcum’s selections because Hayes and Hig-
gins were essentially equipment operators and the Company
had experienced mechanics available for repair work.
4. Marcum’s discharge
Marcum was discharged on Monday, July 15. Respondent
claims that Marcum’s discharge resulted from Marcum’s
‘‘fouled-up’’ repair of the shaker on July 13. General Coun-
sel claims Respondent’s defense to Marcum’s discharge is a
pretext designed to mask Marcum’s discharge over the
Union’s renewed interest in the quarry employees.
As for the discharge itself, Batt said that he entered the
room where Marcum was changing his shoes in preparation
for starting work on the morning of July 15 accompanied by
Begeman. Batt said that he handed Marcum an ‘‘Employ-
ment Separation Notice’’ and told him that he was being dis-
charged for dishonesty.7
Batt explained that he told Marcum that the action was
being taken because of Marcum’s untruthful July 13 rep-
resentations that the new shaker bearings were covered as
Batt had instructed and that the shaker would be ready for
operation within a couple of hours on Monday morning. Ac-
cording to Batt, when he checked on the shaker repair job
after work hours that Saturday, he found that Marcum had
not covered the bearings as instructed, that dust had already
blown into the bearings, and that the shaker could not be
operational as claimed by Marcum.
Marcum, on the other hand, said that after Batt and
Begeman entered the room, Batt charged that Marcum had
lied to him. When Marcum asked Batt to explain, Batt ac-
cused Marcum of bending the shafts to the shaker machine
while installing them and claimed that it would take much
longer than Marcum’s Saturday estimate of 3 hours to have
the machine operational. Marcum said that Batt told him that
he was being fired for dishonesty. Marcum claims that Batt
said nothing about dust in the shaker bearings and provided
no evidence that the Union was discussed at that time.
Asked twice on direct examination to describe what oc-
curred at the time of Marcum’s discharge, Begeman first said
only that Batt ‘‘explained why he was discharging [Marcum]
and that he couldn’t work that way anymore.’’ Asked to be
more specific, Begeman testified ‘‘[t]here wasn’t a lot of
sense being made in the conversation and then [Batt] asked
him to sign [the termination notice] and that’s why he was
discharging him and [Marcum] did not sign it and left the
room.’’
Enroute to his vehicle following his discharge, Marcum
stopped to speak with Hayes. Marcum told Hayes that he had
been let go and warned Hayes to ‘‘watch [his] back because
they thought [he] was pro-union . . . and that was the reason
[he] hadn’t worked the Friday before [on the shaker job].’’
Marcum then drove to the company office at Golden to
speak with Jeff Keller. Keller provided Marcum with no ex-
planation for his summary dismissal apart from telling him
that the Company had spent a lot of money on the shaker
repair.
In the meantime, Hayes went directly to the quarry office
and confronted Batt and Begeman as to whether he had not
been given work because of ‘‘this union deal.’’ They assured
Hayes the Union was not the reason he was not assigned to
the shaker repair; they asserted to Hayes that the Company’s
best mechanics were assigned to the job. Hayes responded
that he had already lost a couple of jobs through union
strikes, that he was ‘‘tired of this shit,’’ and that he wanted
to get it on the table. Batt assured Hayes that he understood
Hayes’ feeling as he, too, had been in the Union. Hayes said
that ended the matter.
In addition to the shaker repair job, Batt said his conclu-
sion to discharge Marcum was based on two other incidents
where Marcum had countermanded orders he had given to
machine operators. Batt acknowledged that he had never spo-
ken with Marcum about either of these incidents and
Marcum denied that they ever occurred.
After reaching his decision to terminate Marcum, Batt pre-
pared a memorandum to Marcum’s file listing several
derelictions in Marcum’s performance. Entirely apart from
the disputes about the veracity of several items listed in that
document, Batt acknowledged that he had never spoken to
Marcum about any of those matters either and, apart from
the two countermanded orders, he did not rely on those mat-
ters in reaching his decision to discharge Marcum. On the
contrary, when Marcum asked Batt on July 12 how Batt
thought he was doing, Batt told Marcum that he was pleased
with his work.
5. The shaker repair project
The shaker device evidently had been a source of dif-
ficulty at the quarry. During the first week of July, Richard
Walker, one of the quarry’s maintenance employees, had per-
formed some unspecified repairs but by the following week
a decision was made to perform further repairs on this de-
vice.
According to Marcum, the shafts on the shaker would oc-
casionally snap from the excessive torque which would occur
when the machine was shut off and it would stop suddenly.
The repairs scheduled for the second week in July were de-
signed to get the shaker in running order and to install an
electrical device which would cause the shaker to slow down
gradually when it was shut off.
Marcum testified that Begeman and Batt informed him on
Thursday, July 11, that they had received authorization from
Keller to shut the main quarry down for maintenance on the
following Monday and Tuesday and he was assigned to do
the repairs on the shaker. Horcher was assigned to order the
electrical device which, it was hoped, would arrive and be
installed so the shaker could be in operation by the following
Wednesday. Marcum ordered the shaker parts on Thursday
but they did not arrive until Saturday.
After the new shaker parts arrived at about 10 a.m. on July
13, the shaker repair work commenced. Although he had des-
ignated Richard Ferguson and Horcher as helpers, Horcher
soon went about other work because there was not enough
1113ASPHALT PAVING CO.
8 Horcher estimated the cost of the housing and the bearing itself
at about $800 each. He said that the parts were essentially unusable
junk.
room in the confined area where the work was being per-
formed for three workers.
Somewhere between 2 and 2:30 p.m., Batt visited the re-
pair project and spoke briefly with Marcum. Marcum told
Batt that about 2 or 3 hours of work would remain on the
device by the end of the workday. Batt cautioned Marcum
to cover the new bearings so they would be protected from
the dust and other elements over the weekend.
By the end of the day, Marcum had removed and replaced
the four bearings on the two shafts. He said that Ferguson
and Horcher assisted in replacing the gear end of the shaker
with its regular cover. Because the other cover was being
used as a receptacle for the remaining loose parts and as the
shiv end was about 30 feet in the air because the device had
been tilted on edge, the other end was covered with rags to
protect those bearings from the elements. Marcum claims
that both Horcher and Ferguson helped put the rags over the
uncovered bearings.
At the end of the July 13 workday, Marcum waited for
Batt by the quarry shop before leaving the quarry. When Batt
arrived, Marcum reported that he still had to install the tim-
ing gears, time the device, install the covers, add oil, and in-
stall the shiv (the pulley device for the belt-driven shaker).
Marcum estimated that the shaker would be ‘‘ready and run-
ning’’ with about 3 additional hours of work.
Batt said that he visited the repair project yet later on July
13, accompanied by Horcher. At this time, Batt claims that
he found the bearings uncovered and already covered with
dust. In addition, he said that both of the eccentric shafts
(which cause the device to shake while in operation) were
frozen, i.e., would not turn on the newly installed bearings
as he claimed they should. Batt said that he also observed
that some of the bearings, oil slingers (seals), and bearing
housing holes had been damaged. In sum, Batt sought to por-
tray a badly botched repair job.
Batt testified that he decided to discharge Marcum after he
got home that evening, and, sometime over the weekend,
Batt said he notified Begeman by telephone of the action he
planned to take Monday morning.
Horcher provided an account of his afterhours visit to the
shaker repair job with Batt. He remembered that the gear
side bearings were covered with the oil pan which normally
encloses them but the drive-side bearings were uncovered
and exposed to the atmosphere. Horcher provided this gen-
eral summary of the situation at that time:
Q. On Saturday, July 13, what was your evaluation
of how long it would take to fix this job, if you made
an evalua tion at that time?
A. Jerry Batt explained to me that he was told by
Rick Marcum that he had approximately two hours and
all he had left to do was to put on the side covers on
and put oil in it and it would be up and running in
about two hours.
Q. And what was your evaluation of that informa-
tion?
A. I observed that with bolts missing from the hous-
ing, the one shaft, the driven shaft, bound tight, and the
timing gears not being in place, I told him that there
was no way the thing could be up and running in two
hours or even close to that.
Horcher made no reference to having observed damaged
parts when he examined the shaker on July 13. No inquiry
was made of Horcher concerning Marcum’s claim that
Horcher had assisted in covering the shiv-side bearings near
the end of the workday.
Keller said that he learned from Batt following the dis-
assembly of the shaker on July 15 that some of ‘‘the brand
new parts had been ruined’’ so he instructed Batt to save
them for training purposes.
Respondent attempted to establish that Marcum damaged
some of the new shaker parts while installing them on July
13. Horcher identified four bearing components at the hear-
ing which, purportedly, were removed from the drive side of
the shaker on July 15 by himself and Richard Walker in the
course of redoing Marcum’s July 13 repair job. With respect
to those particular parts, Horcher testified: (1) that the bear-
ing housing showed signs of an impact with a hammer, in-
cluding severe damage to one retaining bolt hole; (2) that a
retaining ring which fits on the bearing housing showed
signs of having been hit with a hammer and cracked; (3) that
a two-piece labyrinth seal (slinger) reflected wear and break-
age; and (4) that the spherical roller bearing itself had chips
on the outer race suggesting that it had been struck with a
metallic object. These four components, Horcher claimed,
were shown to Begeman on their removal from the shaker.8
Begeman claims to have received a telephone call from
Batt during the afternoon of July 13 in which Batt reported
that the bearings were being driven onto the shaft with ‘‘steel
drift pins.’’ Begeman said that Batt asked if he ‘‘should go
to the shop and get the right tools.’’ Begeman told Batt,
‘‘[N]o, we’ll get it.’’ No evidence indicates that either Batt
or Begeman furnished any tools to Marcum on July 13 or
admonished him in anyway about the manner in which he
was repairing the shaker. Likewise, Begeman was never
asked about Horcher’s claim that the damaged parts were
shown to him after they were removed on July 15.
Richard Walker, a former maintenance employee with the
Company who was called as a General Counsel witness, tes-
tified that he was assigned along with Horcher to repair the
shaker anew on July 15. According to Walker, he was in-
structed to take the entire mechanism apart because one of
the shafts would not turn ‘‘to make sure everything was all
right, which it was and [then] put it all back together.’’
Walker’s testimony is at complete odds with Horcher’s. At
the outset, Walker claimed that Horcher only assisted for
about 2 hours over the course of the 3 days that he worked
on the shaker. In addition, both Marcum and Walker testified
that Marcum had installed a new shaft, four new bearings,
four new slingers, and three new bearing housings. These
parts, Walker claimed, were in good condition when he re-
moved them on July 15 and all were reinstalled on the shak-
er when he put it back together. Walker said that the fourth
bearing housing and two bearing retainer rings were replaced
when he put the shaker back together but, in Walker’s judg-
ment, even the bearing housing and retainer rings were still
1114 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Walker claimed that he had caused the impact marks on that par-
ticular housing and one of the retainer rings during the course of an
earlier repair he performed in the first week of July. No evidence
indicates that Marcum was involved in this earlier repair. Horcher
was on vacation at that time.
usable.9 Walker said that Batt and Begeman made the judg-
ment to replace the fourth housing.
Marcum denied that he ever hit any of the new bearings
with a steel drift pin as claimed. Moreover, Marcum said that
it is normal for the shaft to be frozen until it is pulled prop-
erly into position during the timing process. Walker said that
the frozen shaft problem occurred again as he was putting
the shaker back together. According to Walker, when the
second bearing is installed on a shaft, the shaft itself is
‘‘pinched’’ against the other bearing and will not rotate until
the timing gear is installed and tightened down.
No parts invoices or shipping documents related to the dis-
puted shaker project which would serve to identify the dates
of purchase or delivery of parts for this job were introduced
in evidence, nor were their unavailability explained.
C. Further Findings and Conclusions
1. Credibility resolutions
Several critical questions here rest on the ultimate deter-
mination of which witnesses merit belief. However, those
few issues not disputed between the witness called by the
General Counsel and Respondent serve as an aid in making
other credibility resolutions.
Marcum made two significant assertions which were never
contradicted by the company officials who testified. The first
was his assertion that Keller, during their initial conversation
about the Union on July 3, solicited his cooperation in sur-
veying employees about their union sympathies and advising
him of any union attempts to meet with employees. The sec-
ond was his claim that Batt, on July 11, explained
Begeman’s prohibition against using Hayes on the shaker re-
pair job by initially alluding to the oft-used ‘‘nigger in the
woodpile’’ phrase and then stating outright that ‘‘we’’ want-
ed Hayes to think about being ‘‘active in the union.’’
Read together, these uncontradicted disclosures reflect a
scenario more consistent with the entirety of the events as
described by both Marcum and Hayes rather than as de-
scribed by Keller. As is evident, Keller emphasized
Marcum’s purported concern about how the Union obtained
his unlisted phone number and only vaguely alluded to dis-
cussing the ‘‘some of those issues’’ for about 5 minutes.
Keller was equally vague in describing the discussion which
occurred after Hayes purportedly raised the union subject in
their conversation.
By contrast, the more detailed portrait depicted by
Marcum and Hayes concerning the nature of Keller’s interest
and reaction to the Union is somewhat similar even though
they testified about different conversations with Keller. This
similarity takes on even greater significance because of
Hayes’ obvious reluctance while testifying, a fact likely ex-
plained by his continued employment with the Company.
Resolution of the conflicts in the testimony of Horcher and
Walker is also critical. In a nutshell, Horcher, Respondent’s
key witness concerning the quality of Marcum’s July 13
shaker repairs, claimed that several parts installed by
Marcum had been damaged. Walker on the other hand as-
serted that he reinstalled all the parts which he removed from
the shaker on July 15 with the exception of a bearing hous-
ing and two retainer rings. I have concluded that significant
reasons exist to credit Walker’s version of the events.
First, Walker was no longer employed by Respondent at
the time of the hearing and no showing was made that Walk-
er harbored any significant affinity for either Marcum or the
Union. On the contrary, Respondent sought to demonstrate
that Walker was one of the few employees who had not been
contacted by the Union and, Walker’s denial notwith-
standing, that he once started to walk off the job in a dispute
with Marcum shortly before Marcum’s discharge. Second,
Walker’s assertion that Begeman ordered the replacement of
only one bearing housing was never disputed by Begeman.
Third, no attempt was made to refresh Walker’s recollection
or to suggest that he may have been mistaken about his
claim that all the bearings removed on July 15 were re-
installed on the shaker. Fourth, no documentation such as
purchase orders or shipping invoices were ever proffered to
undermine Walker’s claims about what parts were removed
and reinstalled. Fifth, Walker’s uncontradicted assertion that
the frozen shaft problem was replicated and overcome in the
course of his July 15–17 work is consistent with the implica-
tion of his testimony that this temporary condition was not
caused by any damaged parts. And sixth, nothing in Walk-
er’s stoic demeanor while testifying caused me to question
his veracity.
By contrast, Horcher openly acknowledged that he did not
get along with Marcum. Second, Horcher was still employed
at the quarry when he testified. Third, although Horcher re-
peatedly used the plural pronoun ‘‘we’’ in discussing the
work done on the shaker between July 15 and 17, he never
directly contradicted Walker’s claim that he spent very little
time on the project in that period. And fourth, neither the
part number nor the manufacturer’s stamp on the damaged
bearing Horcher identified at the hearing conformed to the
part Marcum claimed, without contradiction, that he ordered
for the shaker repair project.
For the foregoing reasons, I credit the testimony of both
Marcum and Hayes to the extent that it conflicts with Keller
on the important questions pertaining to the Company’s reac-
tion to the news that the Union had begun efforts to interest
employees in representation. Furthermore, I have concluded
that Walker’s testimony concerning the condition of the
shaker on July 15 is reliable. Accordingly, for the following
findings and conclusions I have relied primarily on the testi-
mony of these three witnesses.
2. The 8(a)(1) allegations
Employer interference, restraint, or coercion of employees
exercising the statutory right, inter alia, to ‘‘form, join, or as-
sist labor organizations’’ is an unfair labor practice under
Section 8(a)(1) of the Act. However, Section 8(c) provides
that the expression of ‘‘any views, argument, or opinion . . .
shall not constitute or be evidence of an unfair labor practice
. . . if such expression contains no threat of reprisal or force
or promise of benefit.’’
The test under Section 8(a)(1) does not ‘‘turn on the em-
ployer’s motive or whether the coercion succeeded or failed
[but instead on] whether the employer engaged in conduct
which, it may reasonably be said, tends to interfere with the
1115ASPHALT PAVING CO.
10 American Freightways Co., 124 NLRB 146, 147 (1959). (Em-
phasis added in the quoted text.)
11 Atlas Microfilming, 267 NLRB 682 fn. 2 (1983)—threat to close
business operations; M.K. Morse Co., 302 NLRB 924 (1991)—prom-
ise of potential pay increase in Henceroth-Smyth conversation.
12 See, e.g., Sunnyvale Medical Clinic, 277 NLRB 1217 (1985),
where the Board reiterated its case by case in determining whether,
under all the circumstances, employee interrogation contains ele-
ments of coercion. And see Dependable Lists, 237 NLRB 1304,
1305 (1979)—coercive interrogation of employee Gross unlawful; C.
J. Rogers Transfer, 300 NLRB 1095, 1101 (1990)—soliciting em-
ployee to ascertain and report other employees’ union sympathies
unlawful; Rolligon Corp., 254 NLRB 22 (1981)—inviting union sup-
porters to seek employment elsewhere unlawful. See also
McLane/Western, Inc. v. NLRB, 723 F.2d 1454 (10th Cir. 1983), and
the cases cited therein at 1456.
13 McLane/Western, Inc. v. NLRB, supra at 1458 fn. 12.
14 251 NLRB 1083 (1980). In Wright Line, the Board held that
once the General Counsel makes a prima facie showing that pro-
tected conduct was a motivating factor in an employer’s action
against an employee, the burden shifts to the employer to dem-
onstrate that it would have taken the same action even in the absence
of the protected conduct.
15 See Limestone Apparel Corp., 255 NLRB 722 (1981).
free exercise of employee rights under the Act.’’10 In addi-
tion to the variety of direct threats and promises of benefit
excluded as protected speech under Section 8(c),11 less ex-
plicit threats or promises are also prohibited by Section
8(a)(1).12
Concluding as I have that Marcum provided the more reli-
able version of the exchange which took place between Kel-
ler and himself on July 3 in Keller’s vehicle, I find that Kel-
ler primarily sought to convey the message that he intended
to oppose unionization by a variety of actions in order to as-
sure the Company’s quarry operations remained unorganized.
Consistent with this overall objective, Keller uttered a collec-
tion of statements and posed a series of questions which,
when considered in their entirety, were clearly coercive. Spe-
cifically, Keller: (1) interrogated Marcum in detail to learn
the nature and extent of the initial union activities; (2) threat-
ened to close the quarry should the employees chose to be
represented; (3) suggested that employees desirous of union
representation were unwelcome; (4) suggested that a general
wage increase was planned by the Company in the context
of comparing union wage scales with the Company’s pay
rates; and (5) solicited Marcum to report to him about em-
ployees’ sympathies for the Union and further union activi-
ties. Because of the general coercive character of this con-
versation, I find that each of the enumerated statements vio-
lated Section 8(a)(1) as alleged.
The inquiries made of Marcum by both Keller and
Begeman on July 8 and 9, respectively, represent only a con-
tinuation of the unlawful interference began on July 3.
Hence, I find that both Keller and Begeman violated Section
8(a)(1) by unlawfully interrogating Marcum on those two oc-
casions.
I further find that Keller, in the course of his July 8 or
9 conversation with Hayes, unlawfully interrogated Hayes
about employee sympathies for the Union and made a vague,
but unlawful, suggestion the a potential wage increase could
be expected after learning that Hayes was dissatisfied with
his own level of pay. I also find that Keller’s ‘‘nigger in the
woodpile’’ remark at the conclusion of their conversation
violated Section 8(a)(1) of the Act. In the context used, that
pejorative phrase could reasonably convey the notion that
Keller was seeking to identify and punish the individual who
provided the Union with the information (unlisted telephone
numbers) necessary to initiate contact the quarry employees.
In addition, I find that Batt’s July 11 repetition of the
‘‘nigger in the woodpile’’ phrase and his later statement that
Marcum could not use Hayes to assist in the shaker repair
because he was suspected of supporting the Union both vio-
late Section 8(a)(1) as alleged. Batt’s two statements were
made on separate occasions that day to essentially the same
question posed by Marcum, i.e., why had Begeman in-
structed him not to use Hayes and Higgins on the shaker re-
pair? Linked as they are by Marcum’s common question, I
find the former is unlawful because the latter—clearly an un-
lawful statement—explains in clear terms the meaning of
Batt’s earlier ‘‘nigger in the woodpile’’ response.
The General Counsel’s complaint alleges, in essence, that
Marcum was also promised a promotion in his July 3 con-
versation with Keller and that Batt unlawfully interrogated
Marcum on July 11. No evidence at all exists to support the
latter allegation. Accordingly, the recommended Order pro-
vides for the dismissal of that allegation.
Although a discussion of a promotion arose in the Keller-
Marcum conversation on July 3, I am not satisfied that sub-
ject was adequately linked to the recent emergence of the
union activity. Rather, Marcum’s potential for promotion
arose in the course of their discussion about the Company’s
failure to promote Marcum to the quarry superintendent’s po-
sition and appears to have been made by Keller as a form
of reassurance to Marcum that he would be legitimately con-
sidered for future promotional opportunities. For this reason,
that allegation will also be dismissed.
3. The 8(a)(3) allegation
An employer violates Section 8(a)(3) by discharging an
employee for engaging in statutorily protected union activi-
ties.13 Here, the General Counsel claims that Respondent’s
July 15 discharge of Marcum was unlawfully motivated by
that employee’s union activity.
Respondent argues that Marcum only engaged in minimal
union activity, that Respondent never became aware of any
union activity by Marcum, and that Marcum was discharged
for cause, i.e., ‘‘a fouled-up maintenance job.’’ Although Re-
spondent does not dispute that it knew about the union activ-
ity in general, it vigorously argues that the evidence is insuf-
ficient to establish that it was aware of Marcum’s involve-
ment with the Union prior to his termination.
The General Counsel concedes, in essence, the lack of di-
rect evidence that the Company knew about Marcum’s union
activity but argues that the plethora of circumstantial evi-
dence compels the inference that Respondent became aware
of Marcum’s union sympathies and discharged him for that
reason.
No formalistic Wright Line14 analysis is necessary as, for
reasons outlined below, I have concluded Respondent’s de-
fense to this allegation is a pretext.15 Nevertheless, the Gen-
eral Counsel always bears the burden of proving in 8(a)(3)
cases ‘‘with acceptable substantial evidence’’ that a dis-
charge ‘‘comes from the forbidden motive of interference in
1116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 NLRB v. Wilhow Corp., 666 F.2d 1294, 1301 (10th Cir. 1981).
17 Id. at 1301, 1302, citing NLRB v. Link-Belt Co., 311 U.S. 584,
602 (1941).
the employee’s statutory rights.’’16 However, direct evidence
that an employer knew of the discharged employee’s union
activity is not essential; circumstantial evidence of employer
knowledge and unlawful motive is sufficient.17
The General Counsel filled this record with indicators that
Marcum was a valued, long-term employee. Apart from the
actual length of his service, those indicators include his
leadman status, his recent pay increase, and Respondent’s ex-
penditures for his outside schooling related to the equipment
he was assigned to repair on July 13. Although disappointed
that he was not selected for promotion to the quarry super-
intendent’s job, he was reassured of his future promotion po-
tential by Keller as recent as 2 weeks before his summary
discharge. Furthermore, Batt never admonished Marcum for
any alleged deficiencies; instead, he assured Marcum as re-
cently as July 12 that his work was quite satisfactory.
No serious dispute exists about the fact that Marcum was
responsible for contacting the Union and supplying it with
the names and phone numbers of the quarry employees. Ap-
parently, Marcum was also the first to call management’s at-
tention to the early union contacts with the quarry workers.
In the period preceding Marcum’s discharge, no other em-
ployee had provided the Union with any other known form
of assistance apart from, perhaps, encouraging the Union’s
organizer in the course of a private telephone contact.
The General Counsel also established a strong case reflect-
ing Respondent’s union animus and potentially unlawful mo-
tive through the series of events which transpired over the
2-week period preceding Marcum’s discharge. Those events
included independent violations of Section 8(a)(1) as found
in the previous subsection, including particularly that evi-
dence showing that Respondent was interested in the identity
of the person or persons who might be furnishing the Union
with information necessary to mount an organizing campaign
among its relatively isolated quarry employees.
A summary of the more salient aspects the General Coun-
sel’s evidence concerning both knowledge and motive shows
that Respondent was: (1) aware of the Union’s initial efforts
at organizing the quarry employees as evidenced by
Marcum’s July 3 disclosures to Begeman and Keller; (2)
strongly opposed to union representation as evidenced by
Keller’s July 3 remarks to Marcum, including particularly the
threat to close the quarry; (3) employing unlawful means to
thwart employee representation including the aforementioned
threat and vague references to increasing wages; (4) search-
ing for, or at a minimum curious about, the identity of any-
one aiding the Union’s early efforts—the ‘‘nigger in the
woodpile’’—by means of coercive employee interrogation;
(5) engaging in speculation about potential union supporters
as evidenced by Batt’s July 11 remarks to Marcum con-
cerning Hayes; (6) apparently privy to employee scuttlebutt
through Grasser, the Keller relative employed among the
rank-and-file employees at the quarry and an individual with
whom Marcum had discussed the Union’s calls; and (7) at
least obliquely rebuffed on July 8 and 9 by Marcum’s failure
to provide any further information concerning employee
union sympathies or activities as Keller had requested.
Full responsibility for the decision to discharge Marcum
was attributed solely to Batt. Although Batt asserted that he
observed damaged parts installed by Marcum during his last
inspection of the project on July 13, his account of the dis-
charge conversation reflects no discussion about damaged
parts; instead, he accused his leadman only of providing a
dishonest account about the repair project’s status at the end
of the July 13 workday. This unusual circumstance coupled
with Batt’s lengthy postdischarge file memo about Marcum’s
numerous purported deficiencies—none of which Batt ever
called to Marcum’s attention and some of which appear far
more serious than the so-called dishonesty that supposedly
lead to Marcum’s discharge—suggests either that the asserted
reason for Marcum’s discharge is a pretext or that Quarry
Superintendent Batt, as portrayed by witness Batt, is a super-
visor who lets substandard performances accumulate without
correction before discharging valued, long-term employees
without warning. The inherent improbabilities in Batt’s ac-
count leaves me with considerable suspicion concerning his
veracity.
In my judgment, the evidence at the conclusion of the the
General Counsel’s case established a strong basis for infer-
ring that Marcum’s termination resulted from Respondent’s
knowledge or suspicion of his union sympathies. This infer-
ence became even more compelling after Respondent’s wit-
nesses failed to provide a convincing explanation for
Marcum’s termination. On the contrary, the thrust of the de-
fense was so shrouded with fatal inconsistencies, improbabil-
ities, and the lack of significant corroboration as to lead me
to the conclusion that Marcum’s discharge was unlawfully
motivated.
Of greatest significance to my conclusion about Respond-
ent’s defense, of course, is the prior finding that Walker’s ac-
count of the postdischarge repairs is credible. That being so,
Respondent’s protracted effort to ascribe Marcum’s discharge
to a bungled repair job characterized by the destruction of
expensive shaker parts is rejected. But Walker’s account
aside, that claim is also rejected because even Batt, the su-
pervisor who purportedly made the decision to discharge
Marcum, failed to make a straightforward assertion that he
fired Marcum because he damaged the new parts in the
course of installing them.
Furthermore, Begeman became inexplicably vague in at-
tempting to describe the discharge conference and, in the
end, was entirely unhelpful in resolving which of the two re-
markably divergent versions of this event, that of Batt or
Marcum, provided the more accurate account. Likewise,
Marcum’s extremely significant assertion—at least from
viewpoint of the claims made by Batt—that both Horcher
and Ferguson assisted in covering the exposed bearings at the
end of the July 13 workday was never contradicted by Re-
spondent’s witness Horcher and Ferguson was never called
as a witness at all, nor was his absence explained.
Equally inexplicable is Keller’s failure to rebut Marcum’s
assertion that he received a curt brushoff in their
postdischarge conference, a remarkable happenstance espe-
cially in view of Marcum’s long tenure and Keller’s recent
assurances to Marcum about his future with the Company.
Finally Keller’s acknowledgment on cross-examination by
the General Counsel that he had discussed the union matter
with Grasser and the subsequent failure to elicit any expla-
nation of the scope and nature of their discussion—or at the
1117ASPHALT PAVING CO.
18 The General Counsel’s brief provides an interesting historical
footnote about the origins of the well-known phrase ‘‘nigger in the
woodpile.’’ Citing Picturesque Expressions: Thematic Dictionary, 2d
ed. (Gale Research Co., 1985), the General Counsel points out that
the phrase first appeared in print in 1852 and referred to the under-
ground railroad practice of hiding runaway slaves in woodpiles. As
used in this case, however, I have construed the phrase to mean an
individual, without regard to race, engaged in an anonymous, unap-
proved activity.
19 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes. All pending motions inconsistent with this
Order are denied.
very least a denial that this exchange did not include
Marcum’s discussions with Grasser about the Union’s calls—
provides some significant basis for inferring that Keller suc-
ceeded in locating the ‘‘nigger in the woodpile.’’18
Having concluded that Respondent’s witnesses failed to
provide a truthful account establishing that Marcum was dis-
charged for cause, I find, based on the extant circumstance
of the Union’s renewed interest in the quarry employees and
Respondent’s hostile and inquisitive reaction, that Marcum’s
discharge resulted from Respondent’s knowledge or sus-
picion that he was sympathetic to union organization and as-
sisting that cause. Accordingly, I conclude that Marcum’s
discharge violated Section 8(a)(3) as alleged.
II. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent set forth above, occurring
in connection with Respondent’s business operations, have a
close, intimate, and substantial relationship to trade, traffic,
and commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and the
free flow of commerce.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By coercively interrogating employees about their union
activities and sympathies, threatening to close its quarry if
employees chose to be represented by a union, making vague
promises of future wage increases, soliciting employees to
report employee union activity and sympathies, suggesting
that employees who wanted union representation should seek
employment elsewhere, implicitly suggesting to employees
that it was attempting to identify the instigator of the union
organizational activity, and advising an employee that an-
other employee would not be permitted to work because of
his suspected union activity or sympathy, Respondent en-
gaged in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
4. By discharging Richard Marcum on July 15, Respond-
ent engaged in an unfair labor practice within the meaning
of Section 8(a)(1) and (3) of the Act.
5. The unfair labor practices of Respondent affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, the recommended Order requires Re-
spondent to cease and desist therefrom and to take the fol-
lowing affirmative action designed to effectuate the policies
of the Act.
To remedy Marcum’s unlawful discharge, Respondent
must immediately offer in writing to reinstate Marcum to his
former position or, if that position no longer exists, to a sub-
stantially equivalent position without prejudice to his senior-
ity or other benefits. Respondent must also make Marcum
whole for the loss of pay and benefits suffered by reason of
the discrimination against him. Backpay, if any, shall be
computed on a quarterly basis as prescribed in F. W. Wool-
worth Co., 90 NLRB 289 (1950), plus interest as provided
in New Horizons for the Retarded, 283 NLRB 1173 (1987).
Contributions due to any trust fund account on Marcum’s be-
half shall be determined in accord with Merryweather Opti-
cal Co., 240 NLRB 1213 (1979).
Respondent must further expunge from any of its records
any reference to Marcum’s July 15 discharge and notify
Marcum in writing that such action has been taken and that
any evidence related to that discharge will not be considered
in any future personnel action affecting him. Sterling Sugars,
261 NLRB 472 (1982).
Finally, Respondent must post the attached notice to in-
form employees of their rights and the outcome of this mat-
ter.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended19
ORDER
The Respondent, Asphalt Paving Company, Golden, Colo-
rado, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging employees in order to discourage member-
ship in a labor organization.
(b) Coercively interrogating employees concerning their
union activities and sympathies.
(c) Promising employees wage increases in order to dis-
courage union activities.
(d) Threatening to close its quarry because of employee
union activity.
(e) Informing any employee that another employee would
not be permitted to work because of suspected activity or
sympathy for the Union.
(f) Soliciting any employee to report the union activities
or sympathies of any other employee.
(g) Suggesting to any employee that the identity of the
employee responsible for instigating union activities among
employees is being sought.
(h) Suggesting to employees that they should seek employ-
ment elsewhere if they desired union representation.
(i) In any like or related manner interfering with, restrain-
ing, coercing, or discriminating against employees because
they exercise rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
1118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20 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.’’
(a) Immediately offer to reinstate Richard Marcum and
make him whole for all losses incurred as a result of his July
15, 1991 discharge in the manner specified in the remedy
section of the administrative law judge’s decision in this mat-
ter.
(b) Expunge from its records any reference to Richard
Marcum’s July 15, 1991 discharge and notify Marcum in
writing that such action has been taken and that this dis-
charge will not be used in any future personnel action in-
volving him.
(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 determine the
propriety of any offers of reinstatement, backpay, and trust
fund reimbursements required by the terms of this Order.
(d) Post at its Ralston quarry near Golden, Colorado, cop-
ies of the attached notice marked ‘‘Appendix.’’20 Copies of
the notice, on forms provided by the Regional Director for
Region 27, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt 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, defaced, 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 FURTHER ORDERED that all complaint allegations not
sustained by the administrative law judge’s decision in this
case are dismissed.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
The National Labor Relations Act provides employees
with the right to engage in union or other concerted activities
for mutual aid and protection on the job, or to refrain from
any such activities.
WE WILL NOT discharge or discriminate against employees
in order to discourage membership in International Union of
Operating Engineers, Local No. 9, AFL–CIO or any other
labor organization.
WE WILL NOT coercively interrogate employees about their
union activities and sympathies.
WE WILL NOT promise employees wage increases in order
to discourage their union activities.
WE WILL NOT threaten to close our quarry because of your
union activities.
WE WILL NOT inform any employee that another employee
will not be permitted to work because of suspected activity
or sympathy for the Union.
WE WILL NOT solicit any employee to report about the
union activities or sympathies of any other employee.
WE WILL NOT suggest to any employee that the identity
of the employee responsible for instigating union activities
among employees is being sought.
WE WILL NOT suggest that employees should seek employ-
ment elsewhere if they desire union representation.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees because they exercise their
rights guaranteed by the National Labor Relations Act.
WE WILL immediately offer to reinstate Richard Marcum
to his former position, and pay him for wages and benefits
he lost as a result of his discharge on July 15, 1991, with
interest as provided by law.
WE WILL notify Richard Marcum in writing that we have
expunged any reference to his July 15, 1991 discharge from
our records and that we will not rely on that discharge in any
future personnel actions involving him.
ASPHALT PAVING COMPANY