Lone Star Industries, Inc.

National Labor Relations Board - Board Decisions

Feb 10, 1972

195 N.L.R.B. 351 (N.L.R.B. 1972)

LONE STAR INDUSTRIES, INC. 351
Lone Star Industries , Inc. and United Cement, Lime &
Gypsum Workers International Union , AFL-CIO.
Case 16-CA-4351
February 10, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
On November 22, 1971, Trial Examiner Jerry B.
Stone issued the attached Decision in this proceeding.
Thereafter, the General Counsel filed exceptions and a
supporting brief and the Respondent 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 Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his
recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner and hereby orders that the com-
plaint herein be, and it hereby is, dismissed in its en-
tirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JERRY B. STONE, Trial Examiner: This proceeding, under
Section 10(b) of the National Labor Relations Act, as
amended, was tned pursuant to due notice on August 5, 1971,
at Dallas, Texas.
The charge was filed on May 11, 1971. The complaint in
this matter was issued on June 14, 1971. The issue in this case
is whether or not Respondent discriminatorily discharged
James O. Bailey on May 10, 1971, in violation of Section
8(a)(3) and (1) of the Act.
All parties were afforded full opportunity to participate in
the proceeding, and the General Counsel and Respondent
filed briefs which have been considered.
Upon the entire record in the case and from my observa-
tion of witnesses, I hereby make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE EMPLOYER'
Lone Star Industries, Inc., the Respondent, is now, and has
been at all times material herein, a corporation duly organ-
ized under and existing by virtue of the laws of the State of
Maine, and is engaged in the production and distribution of
ready-mix concrete at its Dallas , Texas , plant . During the
preceding 12 months , which period is representative of all
times material herein , Respondent , in the course and conduct
of its business operations , sold and distributed products
valued in excess of $500 ,000. During the same period of time,
Respondent received goods and raw materials valued in ex-
cess of $50 ,000 directly from States of the United States other
than the State of Texas.
Based upon the foregoing , and as conceded by the Re-
spondent , it is concluded and found that the Respondent is
now, and has been at all times material herein , an employer
engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
II THE LABOR ORGANIZATION INVOLVED'
United Cement, Lime & Gypsum Workers International
Union, AFL-CIO, the Union , is, and has been at all times
material herein, a labor organization within the meaning of
Section 2(5) of the Act. It is so concluded and found.
III THE UNFAIR LABOR PRACTICES
A. Preliminary Issues'
Supervisory Status
At all times material herein, the following named individu-
als occupied the positions set forth opposite their respective
names , and have been, and are now, agents of Respondent,
acting on its behalf, and are supervisors within the meaning
of Section 2(11) of the Act.
Russell Cashion Production Superintendent
John Routh Production Manager
B. Alleged Threat of Loss of Employment
The General Counsel alleges in his complaint, and the
Respondent denies (1) that David Collins is a supervisor
within the meaning of the Act, and (2) that David Collins did
threaten employees with loss of employment because of their
union activity on or about May 3, 1971.
The General Counsel presented testimony through witness
Walker as to the alleged threat. Assuming Collins to be a
supervisor, such testimony (by Walker) does not reveal facts
that constitute a threat within the meaning of Section 8(a)(1)
of the Act. I therefore find it unnecessary to resolve the
question as to whether Collins is a supervisor within the
meaning of the Act.
Walker testified to the alleged incident concerning remarks
by Collins as is revealed by the following excerpts from his
credited testimony.
A. He said, "Well, John," says, "I guess you're about
ready for a long vacation," because at the time, they had
another guy up there to take my place.
Q. What did he say in regard to the union?
A. He told me, he talked to me about the union, too.
He said, "Boy, you better wake up. You think that un-
ion's going to pay for the siding on your house? You
think it's going to pay for your new car you bought? You
think it's going to put that food in them kids' stomachs?"
He said, "They ain't going to do that for you."
And my answer to him was, "Well, I don't know."
I The facts are based upon the pleadings and admissions therein.
195 NLRB. No. 69
The facts are based upon the pleadings and admissions therein
The facts are based upon the pleadings and admissions therein
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. It was before I went on vacation . I went on vaca-
tion the second and third week in June . It was before I
went on vacation.
Considering the foregoing , I conclude and find that the
facts do not reveal that the reference to a "long vacation" is
with respect to such being caused by Respondent on account
of the Union . Rather , it appears that Walker was about to go
on vacation , the employee to work in his place during such
time was available , and the reference to vacation was in such
context . The other comments about the Union do not reveal
a threat of company action but a statement of contention as
to what the "Union " would do for the employee . The tes-
timony in total context does not reveal a threat of reprisal,
even assuming that Collins is a supervisor . Accordingly, it is
recommended that the allegation of violative conduct in such
regard be dismissed.
C. The Alleged Discriminatory Discharge
The General Counsel contends that the Respondent dis-
criminatorily discharged James O. Bailey on May 10, 1971,
because of his union activities and desires . The Respondent
denies that it discriminatorily discharged Bailey, contends
that the evidence is insufficient to so establish , and contends
that Bailey was discharged for cause.
James 0. Bailey was initially employed by the Respondent
on March 19, 1969. Bailey worked thereafter until November
4, 1969 , when he voluntarily terminated his employment in
order to take a better job.
In early 1969 the Stoneworkers engaged in an organizing
campaign among Respondent 's employees . Bailey signed a
union card and attended some union meetings . Bailey did not
solicit others to sign union cards but made no attempt to hide
the fact that he supported the Union. There is no evidence,
however, to show that the Respondent knew of Bailey 's union
activities or desires . However , at the time of the National
Labor Relations Board election in connection with such un-
ion campaign , a union official mentioned Bailey as a person
who could serve as an observer for it . Thus the facts would
reveal that there existed a basis for Respondent to believe that
Bailey was for the Union at the time of the Stoneworkers
campaign.'
Bailey applied for work again with the Respondent on
March 13 , 1970, and reported to work on March 16, 1970.
Bailey's wage rate was higher on returning to work because
a general wage increase had been granted in the meantime.
Bailey returned to work under his old supervisor, Mr. Cash-
ion
The facts reveal that union activity commenced at Re-
spondent around the middle of February 1971. The overall
facts reveal that Bailey participated in initiating a desire to
contact the Union and secure representation cards, in solicit-
ing employees to sign cards, and in turning the cards over to
the Union; he acted as a union observer at the NLRB repre-
sentation election and as a union committeeman . Bailey did
not attempt to keep his activities a secret.
Thus around the middle of February 1971, four or five
employees (including Bailey) discussed the desire to have a
union . Shortly thereafter , representation cards were secured
from the Union by Bailey and the others . Thereafter Bailey,
or Bailey and other employees , passed out approximately 30
° The fact that a union designates a person as an observer does not
establish such person to be a union supporter However, it would appear
reasonable to believe that the union would select someone for such position
whose views were sympathetic to the union
cards to drivers in the drivers' room at plant 12.5 The
majority of these drivers signed the union cards. Later Bailey,
or Bailey and others, passed out union cards to other drivers.
In all, cards were passed out to approximately 43 drivers.
During the aforesaid union activity there was no attempt at
secrecy on the part of Bailey.
Later Bailey turned the union representation cards over to
the Union. A representation petition was filed by the Union
in Case 16-RC-56646 on February 23, 1971. A stipulated
consent agreement for an NLRB election was executed on
March 12, 1971. Thereafter the NLRB representation elec-
tion was held on April 16, 1971. Following the NLRB elec-
tion, the National Labor Relations Board's certification of the
Union as collective-bargaining representative was issued on
April 26, 1971.
After Bailey turned the representation cards over to the
Union, there were union meetings for the employees. These
meetings occurred approximately once a week until the April
16, 1971, NLRB election.
During this time the Respondent opposed the Union by
mailing literature to employees, by posting literature on its
bulletin boards, and by expressions of its views at company
employee meetings. The facts are clear that the Respondent
-opposed the Union by lawful means and expression.
Bailey served as a union observer at the NLRB representa-
tion election on April 16, 1971. Sometime after the election,
Bailey was elected as a committeeman. His duties were to
assist the Union in the negotiations for a contract with Re-
spondent. He, in fact, engaged in such duties during the
ensuing contract negotiations.
I find it proper to comment at this point with respect to
General Counsel's contention at the trial as to evidence relat-
ing to "following" or "harassment" of employees after the
election as having bearing on Respondent's animus. First,
with respect to such evidence as was offered as regards "fol-
lowing" or "harassment," the evidence only would reveal a
possibility of "speculation" as to whether an employee had
been followed, or would reveal a basis for legitimate company
interest in checking on the employees at work.
As to some of the testimony, allegedly relating to "follow-
ing" or "harassment," I sustained an objection thereto at the
trial on this matter. There was no contention that such evi-
dence, purportedly offered as "background," would reveal in
and of itself Respondent's union animus. Rather, the conten-
tion was that an inference should be drawn that the "follow-
ing" or "harassment" would be shown to be because of the
employees' union activities since such "following" or
"harassment" occurred after the NLRB election. The Gen-
eral Counsel conceded at one point that if this were so, the
conduct would be violative of Section 8(a)(1). At another
point, the General Counsel appeared to concede that such
evidence was not strong enough to support an 8(a)(1) finding.
The matter was not alleged as conduct violative of Section
8(a)(1). It is noted that the General Counsel has the right to
exercise discretion in the issuance of complaints or matter
alleged. However, if issues are litigated, the Board has the
authority to determine whether a remedy should be imposed
where violative conduct has occurred. The General Counsel
may waive such remedy if permitted to do so. The litigation
of such an issue without formal complaint amendment would
in effect allow the General Counsel to do indirectly what he,
in his discretion, has not done directly. It is sound discretion,
under such circumstances, to require formal amendment of
complaints as to allege conduct allegedly violative of Section
8(a)(1) so as to insure full due process and notice. Consider-
Respondent has approximately 50 drivers
The petition concerned Respondent's employees involved herein
LONE STAR INDUSTRIES , INC. 353
ing the contentions and description of proposed evidence, it
is hard to believe that such evidence (if not strong enough to
warrant an 8(a)(1) finding) would be of value in determining
the motivation in this case.
Nevertheless, on reconsideration of such ruling sustaining
objection to such evidence without formal amendment of the
complaint to allege such conduct as violative of Section
8(a)(1), I decided, to insure a full record with respect to all
contentions, to reopen the hearing to allow receipt of further
evidence as to the "following" and "harassment" contention
of the General Counsel. I issued an order on September 16,
1971, to such effect. Respondent appealed such order and the
Board on October 14, 1971, reversed my order of September
16, 1971. In effect the Board affirmed the ruling at the trial
sustaining the objection to receipt of such evidence because
the contended conduct was not alleged as being violative of
Section 8(a)(1). Essentially, the question of receipt of such
evidence is one of discretion.
Further, considering the evidence submitted with respect
to the "following" and "harassment" issue and the evidence
of legitimate company concern set forth by General Counsel's
own witness, it is hard to believe that further evidence of
"following" and "harassment" would warrant an inference of
improper conduct merely because it followed the event of the
election. It is noted that this is essentially the contention for
the finding of such inference.
Considering the foregoing, I conclude and find that the
evidence relating to "following" or "harassment" does not
reveal improper union animus on the part of the Respondent.
The Events of May 10, 1971'
The salient facts concerning the events of May 10, 1971,
may be summarized as follows:
1. Bailey delivered a truck load of concrete to a jobsite at
the Texas Stadium on May 10, 1971, shortly after 8:15 a.m.
2. The architect of the stadium employed an independent
testing company to inspect cement of the Respondent deliv-
ered at such jobsite
3. On May 10, 1971, Ronald A. Ellerbee, an employee of
Texas Testing Laboratories, was working and did the inspec-
tion of the cement delivered by Bailey.
4. It was ascertained that the cement delivered by Bailey,
circa 8:15 a.m. on May 10, 1971, was too dry.
5. Bailey was asked by Ellerbee to add more water to the
cement mix and did so from the truck
6 Bailey suggested that Ellerbee call Respondent's hatch-
ing plant (located a near distance to the jobsite) and have
water added at the batching site so as to save time.
7. Ellerbee asked Bailey to call Pete Dozzi at the batching
plant and have water added to the mixture.'
8. Bailey unsuccessfully attempted to make radio contact
with Dozzi and then related the same to Ellerbee. Bailey told
Ellerbee that he would try to contact Dozzi by radio when
he left the inside of the stadium.
9. Ellerbee became angry and stated "Well, that's the way
with you union blisters."9
' The facts are based upon a composite of the credited aspects of the
testimony of Bailey, Ashmore, Ellerbee, Dozzi, Cashion, Collins, and
Routh
' I discredit Ellerbee's testimony to the effect that Bailey refused to do
so and used profane and derogatory remarks about Dozzi Total testimony
of Dozzi, Ashmore, and Bailey was to the effect that there was no ill feeling
between Bailey and Dozzi Further, Ashmore's and Bailey's testimony had
more of a ring of truth in their versions of what occurred at this point than
did Ellerbee's I credit Bailey's and Ashmore's testimony over Ellerbee's on
this point
I credit Bailey's testimony to such effect I discredit Ellerbee's dental
10. Bailey attempted to call the batching plant (plant 17)
from his truck after he left the inside of the stadium. " He was
unable to transmit the message requested and finally trans-
mitted it to plant 12 for referral to plant 17.
11. Ellerbee left the jobsite and drove to the hatching plant
(plant 17) and made the request to Dozzi that additional
water be added to the mixture at the batching plant.
12. Ellerbee asked Dozzi if he had been having trouble with
Bailey, told Dozzi that he had tried to get Bailey to transmit
his request by radio, and told Dozzi that Bailey had said that
he was not going to talk to Dozzi and that Bailey had in effect
described Dozzi as that "scabby --- ---.""
13. Dozzi, from the batching plant (plant 17), telephoned
Plant Superintendent Cashion and related Ellerbee 's request
that more water be added to the cement mixture, related that
Bailey had been requested by Ellerbee to radio such request
to Dozzi, and related that Bailey had refused to make such
call and commented "Why don't you get that scabby --- ---
at the plant to add the water?"
14. After the above-referred to telephone call, Dozzi, Eller-
bee, and Cashion heard a radio call made by Bailey to plant
12.12
15. Cashion reported Dozzi's report to Production
Manager Routh. Routh told Cashion to go to see Ellerbee and
see what had happened. Routh also told Cashion to get a
statement from Ellerbee as to what had happened.
16. Cashion went to see Ellerbee and was told by Ellerbee
that Bailey had refused to transmit a requested radio message
to the batching plant that more water be added to the mixture
and that Bailey had referred to Dozzi as that "scabby --- ......
17. Cashion reported his findings and information as to his
conversation with Ellerbee.
18. Routh told Cashion to get in touch with Bailey, to bring
him into the plant , and to terminate Bailey.
19. Cashion called Bailey into his office around 11:30 a.m.
Cashion told Bailey in effect that he was discharging him
because of failure to comply with Ellerbee's request to radio
in for more water to be added and because Bailey had used
the language, previously described herein, about Dozzi.
Cashion told Bailey that this degraded and derated the Com-
pany before other companies.
Bailey engaged in dialogue as to his version of events con-
cerning the failure to radio for water to be added, and denied
that he had talked to Dozzi or made the remarks about
Dozzi." Bailey asked Cashion why Cashion hadn't come to
him to find out what had occurred. Cashion told Bailey that
he did not really think that Bailey had done what he was
accused of, that he (Cashion) had a job to do, that he didn't
know what action to take, that he had checked with Plant
thereof Ashmore's testimony revealed that he either did not hear this aspect
of the incident, perhaps because of noise, or did not notice the same It
suffices to say that Bailey's testimonial demeanor and the logical consistency
of all of the facts persuade me that he should be believed over Ellerbee as
to this incident.
1o The radios on the trucks had trouble transmitting from the inside of
the stadium on this day
" The words are not set forth in this decision although explicitly testified
to For such need as may be they are incorporated by reference herein as
being the same words set forth in the transcript of this proceeding at p. 149,
1 15 It suffices to say herein that they are vulgar in nature
" Cashion in his timing of events so places the hearing of Bailey's radio
message Dozzi placed the timing of hearing Bailey's radio message to plant
12 at an earlier time I am convinced that Dozzi was confused in his tes-
timony to this point I find Cashion's testimony more reliable, so credit, and
so find
" Bailey's testimony does not have specific reference to having told Cash-
ion that he had not made the derogatory remarks about Dozzi A composite
of the testimony of Bailey and Cashion and a logical inference therefrom
does so reveal that such denial was made
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Manager John Routh and with Bobby Brown as to what to
do, that they had told him to discharge Bailey , and that this
was what he was doing.
20. Plant Manager Routh credibly testified to receiving a
call from Cashion about the Ellerbee-Bailey incident, to in-
structing Cashion to talk to Ellerbee to confirm the facts, to
receiving a further report from Cashion confirming that Ell-
erbee stated that Bailey had refused to make a requested radio
call to have water added to the cement at the batching plant
and that Bailey had used derogatory reference to Dozzi.
Routh credibly testified to reaching a conclusion that Bailey
should be terminated and to instructing Cashion to such
effect.
Routh credibly testified to a company policy of insisting on
courteous and cooperative drivers in their relationship to
customers and that abusive language by a driver would not
be tolerated insofar as it related to customers and contacts
with customers.
Considering all of the foregoing , I am persuaded that the
evidence is not sufficient to establish that the Respondent
discriminatorily discharged Bailey on May 10 , 1971, in viola-
tion of Section 8(a)(1) and (3) of the Act . The General Coun-
sel's case essentially reveals that Bailey was a known union
adherent and that a suspicion of discrimination exists because
the investigation of the circumstances of discharge was not
extensive or full.
It is conceded in effect that Respondent did not desire to
have its employees represented by a union . On the other
hand , there is no evidence to reveal Respondent's propensity
to engage in illegal conduct to further its desires.
Whether Bailey in fact made derogatory remarks concern-
ing Dozzi is not the issue in this case . The question is whether
Respondent was discriminatorily motivated in its discharge
of Bailey. I am persuaded that Respondent believed that
Bailey had made the alleged derogatory remarks . The failure
to engage in a full and due process type investigation by
Respondent is a factor to consider in determining Respond-
ent's motivation . Failure , to do so when the information be-
ing furnished is from a customer , however, is not sufficient
enough to reveal discriminatory motivation in and of itself.
In sum , the totality of the evidence is not sufficient to reveal
that Respondent discriminatorily discharged Bailey on May
10, 1971, in violation of Section 8(a)(1) and (3) of the Act.
I so conclude and find.
CONCLUSIONS OF LAW
1. Lone Star Industries , Inc., the Respondent , is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. United Cement , Lime & Gypsum Workers International
Union , AFL-CIO , the Union , is a labor organization within
the meaning of Section 2(5) of the Act.
3. Respondent has not engaged in conduct , as alleged,
violative of Section 8(a)(3) and ( 1) of the Act.
Upon the foregoing findings of fact , Conclusions of Law,
and the entire record, I hereby issue the following recom-
mended:"
ORDER
That the complaint in this matter be dismissed in its en-
tirety.
" In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
Section 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.