Johnson-Stewart-Johnson Mining Co., Inc.

National Labor Relations Board - Board Decisions

Aug 4, 1982

263 N.L.R.B. 123 (N.L.R.B. 1982)

JOHNSON-STEWART-JOHNSON MINING CO.
Johnson-Stewart-Johnson Mining Co., Inc. and An-
thony Martorana. Case 28-CA-6274
August 4, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND HUNTER
On March 15, 1982, Administrative Law Judge
David G. Heilbrun issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Re-
spondent filed an answering 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,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
The Administrative Law Judge found that Re-
spondent did not violate Section 8(a)(1) of the Act
by discharging Charging Party Anthony Martor-
aha. In so concluding, he rejected the General
Counsel's contention that Respondent discharged
Martorana because he made complaints and
brought grievances to Respondent concerning em-
ployees' conditions of employment. 2 Rather, the
Administrative Law Judge found that the reason
asserted by Respondent for Martorana's discharge
was the true reason; i.e., Martorana's refusal to per-
form assigned duties. Counsel for the General
Counsel excepts, inter alia, to the Administrative
Law Judge's failure to consider, and to find merit
in, her additional alternative contention that, even
assuming that the reason asserted by Respondent
for Martorana's discharge was the true reason, the
discharge violated the Act because Martorana's re-
fusal to perform his assigned duties was protected
concerted activity. Although we agree with the
Administrative Law Judge's dismissal of the com-
plaint, we do so because we additionally find, for
the reasons set forth below, no merit in the Gener-
al Counsel's alternative argument.
i The General Counsel 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 re-
spect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect. Standard Dry
Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing his findings.
I While we agree with the Administrative Law Judge that Respondent
did not violate the Act in this regard, we do not rely on his finding con-
cerning employee Kiemel's interpretation of certain remarks made by
Plant Manager Crosson,
263 NLRB No. 20
The pertinent facts, as credited by the Adminis-
trative Law Judge, are as follows:
Respondent maintains concrete mix and dump
trucks for use in making deliveries of construction
materials. It employed Martorana as a truckdriver
and his driving duties involved regular use of a
modern truck. On occasion, however, when the
modern truck was unavailable due to mechanical
failures, Martorana, like other drivers, would be as-
signed to operate older used trucks which were un-
comfortable and often difficult to operate.
On December 2, 1980,3 after the truck Martor-
ana usually drove had become disabled, he was as-
signed to drive one of the older trucks to make a
delivery. In the process of making the delivery, the
truck experienced such problems as faulty steering,
noisy vibrations, and a broken door. After complet-
ing the deliveries, Martorana returned to the plant
and told Plant Manager Crosson that the truck was
a "disaster." In accordance with company proce-
dure, Martorana submitted a written report to Re-
spondent concerning the truck's problems. After
Martorana had left the plant, Respondent's me-
chanics made the necessary repairs to the truck.
Thus, when Martorana reported to work on De-
cember 4, the problems that he had complained
about with the truck on December 2 no longer ex-
isted.
On December 4, when Respondent's dispatcher
gave Martorana a workcard which indicated that
he was again assigned to drive the same truck that
he had complained about on December 2, Martor-
ana, without comment, returned the card to the
dispatcher and left the plant. The following morn-
ing Martorana was terminated by Crosson for the
stated reason that he had refused to drive his as-
signed truck on December 4. Martorana then pro-
tested that the truck was still unsafe and Crosson
insisted at that time that the truck was not unsafe.
Based on the foregoing facts, counsel for the
General Counsel contends that Martorana reason-
ably believed that the truck he was assigned to
drive on December 4 was unsafe, that Martorana's
refusal to drive the truck was protected concerted
activity, and that Martorana's discharge for refus-
ing to drive the truck is a violation of Section
8(aXl)(1).
Protesting an unsafe working condition can be
protected activity under the Act if the employee so
protesting has a good-faith, reasonable belief that
such a condition exists.
Here, the undisputed evidence is that Respond-
ent had established procedures for drivers with
s All dates are in 1980.
123
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trucks which required repairs. Thus, Martorana tes-
tified that
You'd park the truck on the line which is
where you [would] park [it] during the night
. . .then you make up a repair report. . . and
then the mechanics pick up the [report] and
repair the truck ....
Martorana also testified that, after the repairs are
complete, the mechanics return the truck to "the
line." Moreover, Martorana admitted that it is the
responsibility of the drivers to ascertain whether
their trucks have been repaired and that this was
accomplished by inspecting the line for the truck.
Martorana further indicated that it was not Re-
spondent's policy to inform drivers when repairs
were completed on their trucks.
Counsel for the General Counsel argues that,
since the truck had been in Respondent's repair
shop, it was more reasonable for Respondent to
inform Martorana when the repairs were complet-
ed than for Martorana to make inquiries concern-
ing the status of the repairs. We find no merit in
this argument since Martorana himself testified that
it was not Respondent's policy to inform drivers
when truck repairs were completed. We are also
not persuaded by counsel for the General Counsel's
argument that a finding that Martorana had a
good-faith belief that the truck was unsafe on De-
cember 4 is supported by Martorana's undisputed
testimony that subsequent to his discharge he re-
ported the truck to the Arizona OSHA. His con-
duct in so doing is not evidence that Martorana
reasonably believed that the truck was unsafe when
he refused to operate it on December 4.
It is undisputed that Martorana refused to oper-
ate his assigned truck on December 4 without
making any effort to locate it on "the line" or to
inquire if the requested repairs were complete. It is
further undisputed that Martorana refused to oper-
ate the truck without giving any reason to Re-
spondent for that refusal and we note that Martor-
ana, even at the hearing, could not give any reason
for having been so cavalier. Under these circum-
stances, we find that Martorana's refusal to operate
his assigned truck on December 4 was not based on
a reasonable belief that the truck was unsafe and
that the refusal was therefore not protected under
the Act. Accordingly, we conclude that Respond-
ent's discharge of Martorana for refusing to operate
the truck was not a violation of Section 8(a)(1). 4
4 Since Martorana's refusal to drive his assigned truck on December 4
was not protected conduct under the Act, we find it unnecessary to
reach the issue of whether the refusal constituted concerted activity.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN, Administrative Law Judge: This
case was heard in Phoenix, Arizona, on October 15,
1981, based on a complaint alleging that Johnson-Stew-
art-Johnson Mining Co., Inc., called Respondent, violat-
ed Section 8(a)(l) of the National Labor Relations Act,
as amended, herein called the Act, by discharging An-
thony Martorana because of his activities as spokesman
for other employees regarding matters pertaining to
wages, hours, and other terms and conditions of employ-
ment, and because he made complaints and brought
grievances to Respondent concerning wages, hours, and
other terms and conditions of employment of Respond-
ent's employees, including complaints regarding safety
which were a matter of common employee concern.
Upon the entire record,' including my observation of
witnesses and consideration both of oral summation
made by counsel at the conclusion of hearing and their
post-hearing briefs, I make the following:
FINDINGS OF FACT AND RESULTANT CONCLUSION
OF LAW
Until his discharge on December 4, 1980, Martorana
had been a driver at Respondent's north plant, a satellite
location from which concrete mix and dump trucks oper-
ated in the delivery of construction materials to jobsites.2
I I grant the General Counsel's motion to correct record in 22 of the
requested 23 particulars.
Through apparent inadvertence of handling and assembly, the official
group of Respondent's exhibits fails to contain its Exh. 1, but instead in-
cludes its Exh. 2 twice. The content of Respondent's actual Exh. 1, as
received into evidence, may be reconstructed from transcript pp. 77
through 85 as a written employee reprimand of 1978 issued to Martorana
for lateness in arriving at a safety meeting and with his acknowledging
signature appearing thereon. In view of this remoteness in time, and the
peripheral significance of tardiness to essential issues of this case, I be-
lieve the record is sufficient to have this substitute description of the doc-
ument.
, Respondent maintains its principal office and place of business in
Mesa, Arizona, and is engaged in the preparation, sale, and distribution of
ready-mix concrete, gravel, sand, and related products to persons en-
gaged in the building and construction industry and to the general public.
During calendar year 1980 Respondent sold goods having a value in
excess of $50,000 to M. M. Sundt Construction Company located within
Arizona, which in turn furnished goods and services valued in excess of
$50,000 and necessary to slip form construction on a joint venture per-
formed in Colorado. During 1980 Respondent purchased approximately
$172,400 worth of concrete and admixtures from Master Builders, Divi-
sion of Martin-Marietta Chemical Corp. Master Builders is headquartered
in Ohio and shipped the goods sold to Respondent from a facility in Cali-
fornia. On this basis I find that Respondent meets the Board's indirect
outflow and direct inflow jurisdictional tests for nonretail establishments,
and is thus an employer engaged in commerce within the meaning of Sec.
Continued
124
JOHNSON-STEWART-JOHNSON MINING CO.
In 1979 management sponsored the formation of an em-
ployee grievance committee comprised of about 10 rank-
and-file members plus several representing ownership in-
terests. Martorana was picked by his fellow employees
from among the 35 or so working out of the north plant,
and he later attended one formal committee meeting of
about 2-1/2 hours' length which was held in Mesa. Mar-
torana testified that he spoke for about an hour on this
occasion, bringing up safety problems at the north plant
and examples of the often exasperating appearance there
by a relative of the owner. While the committee never
met again in such structured fashion Martorana contin-
ued to function as spokesman for employees concerning
conditions of employment. He (along with other employ-
ees) would voice matters at the regular safety meetings
held throughout 1980 by Plant Manager Morgan Cros-
son, and in addition he would carry an estimated 80 per-
cent of all rank-and-file complaints brought up with him
to Crosson. Subjects included use of seniority for termi-
nations, needed patience with a new employee and with
one plagued by illness, balancing hours of work, equity
in wage rates paid comparable employees, truck mainte-
nance, and safety. On one occasion around late 1979 to
early 1980 an unattended buildup of problems caused
Martorana to prevail on Crosson for a special meeting
which took place when the overall manager of oper-
ations, David Tobey, traveled from Mesa for discussion
of operational and paycheck delivery matters.
In the course of things Martorana's driving duties in-
volved regular use of a modern truck numbered 75-575.
On the occasions that it was unavailable due to break-
down he, as with other drivers, would be assigned older
highly used trucks that were uncomfortable and often
difficult to operate.3 This became the situation on or
about December I after Martorana's usually assigned
truck had blown its engine.4 He was directed to older,
nonboosterized truck number 75-300 and used this in
making a nearby delivery of concrete. In the process he
experienced the truck door flying open, steering that
veered sharply to the right, and mechanical clashing
from the innards. He returned from the delivery, color-
fully told Crosson that the truck was "disaster," wrote
up a report on the problems, parked it, and went home.
On the following day Mark Button, morning dispatcher,
telephoned him with the option of working or not work-
ing and Martorana elected to stay home. He did appear
on December 4 at an ordinary starting time, testifying
that Button handed him a work card while tauntingly
saying, "ha ha . . . you're driving [75] 300 [again]."
Upon this Martorana returned the card and went home.
When he called that afternoon to check on his work as-
2(6) and (7) of the Act. Respondent's contention that it is not subject to
the Board's jurisdiction by reason of being a "purely local" enterprise
cannot be sustained. See Siemon Maoiling Service, 122 NLRB 81 (1958).
3 All dates and named months hereafter are in 1980, unless shown oth-
erwise.
I By one sequence of testimony the events leading to Martorana's dis-
charge occurred December 2-4. By another sequence, including Resp.
Exh. 3 showing a report of truck condition and repairs taken thereon plus
the testimony of Shop Foreman Kenneth Kimble, the sequence would
have been December 1-3. The distinction is insignificant and I adopt
Martorana's recollection of the dates involved, noting that the "safety in-
spection" report may have been simply misdated in the first instance.
signment for the next day, Martorana was told to see
Crosson in the morning. He did so and was terminated
for the stated reason of refusing to drive the truck. Mar-
torana protested that 75-300 was still unsafe and Crosson
insisted at the time that it was not.
Robert Kiemel, another north plant driver, testified
that immediately after Martorana's discharge he was in
the dispatcher's office with Morgan Crosson present.
The conversation turned to the subject and he attributed
comments to Morgan Crosson about how Martorana had
refused to drive a truck and after thinking about it over-
night he decided to fire him as an example for other
drivers. Kiemel testified to Crosson adding at the time
that Martorana had not made any friends with manage-
ment and complained about a lot of things that were
wrong. Crosson did not traverse this episode in his own
testimony.
It is essentially these facts on which General Counsel
contends that a retaliatory, pretextual discharge in viola-
tion of Section 8(a)(1) has occurred. Without the testimo-
ny of Kiemel there would be scant grounds on which to
base such a conclusion. As developed by Respondent the
basic theme of its relationship with Martorana was
equanimously tolerant over a long period of time. There
was no significant increase in his presentation of griev-
ances during late 1980, and in fact his activity in that
regard had concentrated long before. On the General
Counsel's alternate theory of the case, Martorana had
particularly agitated about safety problems which Re-
spondent itself actively addressed through regular em-
ployees safety meetings and general reminders. While the
safe operating condition of 75-300 was certainly a point
in dispute, it is nevertheless true that the beast was used
essentially for emergency backup and short runs. I
accept the detailed testimony of Kimble to the effect
that, after Martorana's hectic delivery on December 2,
the truck door was temporarily repaired, front-end parts
were placed to alleviate the steering problem, and noisy
drive train vibrations were found to be nonexistent. 5
On broader grounds this record discloses that by prin-
ciples of comparative or disparate treatment a standoff
I Concerning what he did testify to, I find Morgan Crosson to be a
highly credible witness on demeanor grounds. He developed the interest-
ing point that Martorana had often complained of his truck radio not
working, and when this was checked the radio repair person could not
find a problem. Marlorana did not deny any of this line of information,
and the implication remaining is that Manorana was fudging away his
time out of contact with Respondent's operations center at the north
plant. I am persuaded from Martorana's mien that he would be tempted
toward such convenient disappearance from his Employer's superintend-
ing control, and I believe it is significant that this ties in with an evasive
nature and manipulative motivations as shown during Martorana's un-
worthily evasive rebuttal testimony on the matter of whether he should
reasonably have understood that truck 75-300 was again ready to oper-
ate, albeit balkily, when he arrived for work on December 4. The testi-
mony at transcnpt pp. 175-177, inclusive, is a highly illuminating se-
quence showing that Martorana exhibited practically reckless disregard
for his obligations as a relied upon driver for the day. In essence he made
no effort to locate the truck, and could not even give the General Coun-
sel any semblance of a reason why he had been so cavalier. On a related
point I credit the denial of Button that he taunted Martorana on Decem-
ber 4, and that, as Button credibly testified, any discourtesies In the es-
change emanated from Martorana Notably, too, Button credibly cor-
roborates Morgan Crosson on the point of Martorana's mysterious truck
radio problems
125
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
results. Respecting two former members of the grievance
committee, Ed Civer and Joe Garner, only one even
may have been involuntarily terminated, and as to acqui-
escence in being burdened with truck 75-300 it was
driven uneventfully by Richard Putnam on December 4
after Martorana's refusal. While driver Dyess once ex-
pressed that he did not want to drive this vehicle, such
an outlook was not coupled with overt refusal. A thread
of obstreperousness is present in Martorana's behavior,
and Crosson credibly and without contradiction testified
that upon returning on December 2 from the delivery
Martorana had bulled up to the dispatch window saying
in the presence of a female customer that he was "not
driving that fucking truck anymore, it's a piece of shit."6
An oddity of note is also present here inasmuch as
Button had for some time been telephoning Martorana at
his home each morning to ascertain that he was awake,
up, about, and on his way into work. This rather cloying
consideration was stopped upon Crosson learning of it;
however, the implication is that Martorana was being
generally favored by at least one person functioning
closely with management.
The General Counsel succeeds in establishing the con-
certedness of Martorana's role in policing his workplace,
but does not surmount the vagaries of employment with
a substantial body of convincing proof. Given both that
any system of progressive discipline was not symmetri-
cally applied in this instance, and that Respondent en-
gaged in overreaching by raising at the hearing stale
matters of tardiness and failure to wear a hard hat, the
total fact situation fails to persuade that a discriminatory,
retaliatory, or unlawful purpose played any part in Cros-
son's decision. I recognize that the record also stands
with Kiemel's undisputed description of intriguing re-
* Dispatcher Penny Ellis credibly corroborates Crosson with respect to
this utterance.
marks by Crosson shortly after the event; however, this
is diluted by Kiemel's clarification that largely personal
musings were what he really heard. Further, the mere
fact that a thought is verbalized does not necessarily
mean it truly formed a basis for action. Finally, Kiemel's
testimony is intrinsically less than perfect in attributing a
statement of overnight deliberation to Crosson, for the
reasonable inference to attach to Martorana having been
told on the afternoon of December 4 to see Crosson the
following morning was that it was to hear of his dis-
charge as Crosson credibly testified he had decided upon
without consultation within the management.
The Board has recently addressed the matter of in-
volved "personalities," which with associated "unseemly
squabbles" resulted in adversity not based on any pro-
tected activity by the employees. United States Postal
Service, 260 NLRB No. 9 (1982). The cited case is an apt
analogy. I am satisfied that Martorana was not as of
early December a particularly valued driver, and his
direct refusal to extend a normal cooperativeness to lo-
cating, inspecting, and presumably operating the clunker
truck was his own undoing. Accordingly, I render a con-
clusion of law that Respondent has not violated the Act
as alleged, and issue the following recommended:
ORDER 7
The complaint is dismissed in its entirety.
I In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations BIoard, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
126