Standard Aggregate Corp.

National Labor Relations Board - Board Decisions

Sep 3, 1974

213 N.L.R.B. 154 (N.L.R.B. 1974)

154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Standard Aggregate Corp . and Local 445 , International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America . Case 3-CA-5472
September 3, 1974
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS FANNING AND
PENELLO
On May 28, 1974, Administrative Law Judge James
M. Fitzpatrick issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting 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 brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge, as
modified, and to adopt his recommended Order, as
also modified.
In its exceptions to the Decision of the Administra-
tive Law Judge, Respondent contends that the Ad-
ministrative Law Judge erred in finding that
Mancini's November 1, 1973, statement to the picket-
ing discriminatees was not a valid offer of reinstate-
ment which would toll the award of backpay. We find
no merit in this contention. To constitute a valid offer
of reinstatement which would toll backpay, the com-
munication must be specific, unequivocal, and uncon-
ditional. See e .g., Information Control Corporation, 196
NLRB 504, 509 (1972); Controlled Alloy, Inc. and Har-
lin Precision Sheet Metal Fabrication Co., Inc., 208
NLRB No. 140 (1974). See also The Masonic and East-
ern Star Home of the District of Columbia, 206 NLRB
No. 127 (1973). Whichever statement was made by
Mancini (whether "you could go to work for me if you
stop this crap" or "if you stop this nonsense, we could
be working"), it did not constitute a valid offer of
reinstatement because the statement lacked sufficient
specificity to apprise the employees that Mancini was
offering them unconditional and full reinstatement to
their former or substantially equivalent positions. Al-
though it appears from his recommended Order and
"Appendix" that the Administrative Law Judge con-
strued Mancini's condition for the employees' return-
ing to work as referring only to the employees'
abandoning of their picketing, we find that the state-
ments could refer equally to their underlying protect-
ed concerted and union activities. A fair reading of
both Mancini's statements in the light of all of the
facts, including Mancini's previous -refusal of the
Union's request to reinstate the employees pending
resolution of the underlying wage dispute, indicates
that any reinstatement that might be forthcoming
would only be upon the condition that the employees
cease from engaging in those very protected concerted
and union activities which had resulted in their un-
lawful layoff.
Reading Mancini's statements in this context, we
also find, in agreement with the Administrative Law
Judge, that these statements constituted an interfer-
ence with employee rights protected by Section 7 of
the Act, and hence violated Section 8(a)(1) of the Act.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, Stan-
dard Aggregate Corp., Marlboro and Middle Hope,
New York, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order, as so modified:
1. Delete paragraph 1(b) and substitute the follow-
ing paragraph in lieu thereof:
"(b) Telling employees engaged in unfair labor
practice picketing that they could be working if they
ceased engaging in protected concerted or union ac-
tivities."
2. Substitute the attached notice for that recom-
mended by the Administrative Law Judge.
' The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board 's established policy not to overrule
an Administrative Law Judge 's resolutions with respect to 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 (C.A. 3 1951). We have carefully examined the
record and find no basis for reversing his findings.
2 Chairman Miller agrees that Mancini 's statements were insufficiently
specific to constitute a valid offer of reinstatement , but, by the same token,
would find that they were equally ambiguous and unspecific when consid-
ered in an 8 (a)(1) context. In the absence of any reliable evidence which
might serve to provide a clear indication of their meaning , he attaches no
legal significance to the remarks and would find them to be neither an offer
of reinstatement nor a violation of Sec . 8(a)(1).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all sides had a chance to give
STANDARD AGGREGATE CORP. 155
evidence, the National Labor Relations Board has
found that we violated the National Labor Relations
Act and has ordered us to post this notice.
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through representa-
tives of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all these things.
WE WILL NOT do anything that interferes with,
restrains, or coerces employees with respect to
these rights.
WE WILL NOT tell employees engaged in picket-
ing to protest unfair labor practices that they
could be working if they ceased engaging in pro-
tected concerted or union activities.
WE WILL NOT lay off, or otherwise discriminate
against, employees because they act together for
their mutual aid or protection or because they
engage in union activity.
WE WILL offer to William Smith and Ammie
Parker immediate and full reinstatement to their
former jobs or, if those jobs are no longer avail-
able, to substantially equivalent positions, with-
out prejudice to their seniority or other rights and
privileges, and make each whole for any loss of
earnings with interest at 6 percent per annum.
STANDARD AGGREGATE
CORP.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Ninth Floor, Federal Building, 111
West Huron Street, Buffalo, New York 14202, Tele-
phone 716-842-3100.
DECISION
STATEMENT OF THE CASE
JAMES M. FITZPATRICK , Administrative Law Judge : In this
case two employees were laid off . The issues are whether (a)
they were laid off and not reinstated thereafter because of
union or concerted activity, and (b) their employer told
them after their layoff that they would be working if they
were not engaged in union activity . I find the layoffs and
also the later statement were unfair labor practices.
The case arises from charges filed November 2, 1973,1 by
Local 445, International Brotherhood of Teamsters, Chauf-
feurs , Warehousemen and Helpers of America (herein
Union) against Standard Aggregate Corp. (herein Respon-
dent). Based on these charges a complaint on behalf of the
National Labor Relations Board (herein the Board) alleging
that Respondent engaged in unfair labor practices within
the meaning of Section 8(a)(1) and (3) of the National Labor
Relations Act, as amended (the Act). Respondent an-
swered , admitting jurisdictional allegations and the layoff of
the two employees in question, but denying failure to rein-
state them and denying it had committed unfair labor prac-
tices . It claimed that the layoffs resulted from economic set
backs in the business . The issues were tried before me at
Newburgh, New York, on February 5 and 25, 1974.
Upon the entire record , my observation of the witnesses,
and consideration of Respondent's brief , I make the follow-
ing:
FINDINGS OF FACTS
1. THE EMPLOYER INVOLVED
Respondent is a New York corporation engaged at Marl-
boro and Middle Hope, New York, in the extraction, pro-
cessing, and distribution of sand , gravel , and related
products . It annually sells and distributes such products
valued at over $50,000 to other enterprises each of which
annually either ships to or receives from directly outside the
State of New York goods and materials valued at over
$50,000 . Respondent is an employer engaged in commerce.
At Marlboro , Respondent operates a leased gravel pit or
bank from which it extracts and distributes unprocessed
sand and gravel , and also top soil. Some customers for such
materials obtain them from the Marlboro facility with their
own trucks . To other customers Respondent delivers the
materials, using its own trucks. In addition , Respondent's
trucks deliver unprocessed sand and gravel from the Marl-
boro pit to its wash plant in nearby Middle Hope where the
material is washed and processed.
At the Middle Hope facility, which is also leased by Re-
spondent , it stockpiles both unprocessed sand and gravel
for later washing in the plant as well as material already
washed . At Middle Hope Respondent distributes processed
sand and gravel to customers , some of whom pick it up in
their own trucks , and others to whom Respondent delivers.
Water for the Middle Hope washing process is obtained
from a nearby pond . Respondent's water rights , however,
are junior to those of an adjacent cold storage plant operat-
ed by Middle Hope Cold Storage. From time to time during
extended dry spells water requirements of the cold storage
plant have restricted the use of water by the wash plant
resulting in its temporary shutdown.
Respondent is run by general manager John Mancini, its
All dates herein are in 1973 unless otherwise noted.
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agent and a supervisor . The number of employees varies
from 6 to 10 and includes both equipment operators and
truckdrivers.
11. THE LABOR ORGANIZATION INVOLVED
The Union is an organization which admits to member-
ship employees of various employers, including employees
of Respondent , and which represents employees in collec-
tive bargaining.
Prior to the events involved in this case the Union and
Respondent had been parties to a 3 -year collective -bargain-
ing agreement expiring in June 1972 at a time when Respon-
dent, for reasons not related to the present matter , was not
actively operating . Thereafter Respondent resumed opera-
tions and on or about October 5 , 1973, entered into another
collective-bargaining agreement with the Union for a period
ending June 30, 1975 . Although this agreement is in evi-
dence , its validity is not directly in issue . The General Coun-
sel agrees with Respondent that it is not engaged primarily
in the building and construction industry so as to legitimize
a prehire agreement between it and the Union . Accordingly,
the General Counsel omitted from the complaint allegations
based on union charges that Respondent violated Section
8(a)(5) of the Act by refusing to adhere to the terms of a
negotiated contract.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Precontract Discussions Between the Union and Respon-
dent
In early summer 1973, following a 12- to 13-month period
of inactivity , Respondent resumed operations . At that time
Tamarack Construction Company commenced a public
utilities job along the highway opposite Respondent 's Marl-
boro facility . Tamarack arranged with Respondent to han-
dle the subcontracting of trucking needed for the project.
Some nonunion drivers were used on the job . Learning of
this, union business agent Raymond Ebert , during a meet-
ing on the job with a representative of Tamarack and
Respondent's general manager Mancini , objected to the
presence of the nonunion drivers . Tamarack then ordered
a union driver through the union hall and signed a collec-
tive-bargaining agreement with the Union . At that time
Respondent did not execute an agreement with the Union.
But during the summer Ebert had a number of discussions
with Mancini in which he inquired as to the progress Manci-
ni was making in getting back into business.
In late September , William Smith , one of the two alleged
discriminatees in this matter , was employed as a truckdriver
by Bilotta Construction Company. In the course of his du-
ties he picked up sand and gravel for his employer at
Respondent 's gravel pit in Marlboro. On one such occasion
Mancini offered to employ him as a truckdriver . Smith re-
sponded that he obtained all of his work through the Union.
Shortly thereafter , during one of his talks with Ebert, Man-
cini stated that he would like to go union and that he wanted
to hire Smith who had been going into his yard in the course
of his work with Bilotta . Mancini asked Ebert whether, if he
signed a union contract, he could have Smith as one of his
drivers . Ebert indicated he (Ebert) would have to talk with
Smith about it because Smith was then employed and mak-
ing more money than he could make working for Respon-
dent under the standard supply yard collective -bargaining
agreement . On the following Friday , October 3 , Ebert spoke
with Smith and obtained his consent to employment with
Respondent provided Reponsdent signed the Union's col-
lective-bargaining agreement . Ebert suggested to Smith that
although the pay would be less, the work would be steady.
The next day Mancini again saw Smith along the highway
and again asked him to work for Respondent . Smith replied,
as he had earlier , that he got all his work through the Union.
B. Hiring of Smith and Execution of Collective- Bargaining
Agreement
On Saturday , October 6 , Ebert again met with Mancini.
In the course of their conversation Ebert agreed to refer
Smith to Respondent , to commence work on the next work-
ing day, Tuesday , October 9 . Smith was to be Respondent's
number one driver and union steward . Mancini signed the
Union's collective -bargaining agreement . I find the agree-
ment to employ Smith and the execution of the collective-
bargaining agreement were conditioned on each other.
Mancini then asked Ebert to refer four additional men for
a job on Tuesday. Ebert agreed.
At no time prior to his employment with Respondent had
Smith discussed with Mancini his rate of pay. But it was
understood between Mancini and Ebert that Smith was to
be the union steward which would entitle him to a higher
rate of , pay. Ebert did in fact appoint Smith as union stew-
ard. The contract provides that the steward shall receive 50
cents per hour more than the highest rate listed in the con-
tract . During his testimony, Ebert admitted that Mancini
may have misunderstood what was called for in the contract
because it was not clarified in their discussions . When Man-
cini learned that Smith was to be the steward , he had asked
whether a steward still received 50 cents more than the rate.
Ebert replied in the affirmative but did not point out that
this was 50 cents higher than the highest rate listed in the
contract, nor did Mancini specifically ask that question. At
a later time Mancini took the position that the steward's rate
was 50 cents more than the rate of pay listed for the vehicle
the steward was operating.
C. Respondent's Employment of Union Drivers
On the morning of Tuesday, October 9, Smith and four
extra drivers referred by the Union reported to work for
Respondent. In his capacity as union steward , Smith dis-
cussed with Mancini the applicable rates of pay for the
drivers . There was no problem concerning the rates to be
paid the four extra drivers . When Smith explained that his
own rate was 50 cents per hour over the highest rate in the
contract , Mancini stated that that was not the way he under-
stood it. Mancini asserted that Smith's rate was 50 cents
over the contract rate for the vehicle to be operated by
Smith. He said he would call Ebert and straighten it out. At
the end of the day Mancini laid off the four extra drivers.
On Friday, October 12, Smith received his first paycheck.
The amount was less than called for in the collective-bar-
STANDARD AGGREGATE CORP. 157
gaining agreement . Also no overtime pay was included. On
Monday , October 15, Smith pointed out these discrepancies
to Mancini whose reaction was that he had been unable to
reach Ebert in order to straighten out their misunderstand-
ing of the pay rate. He did, however, agree to pay Smith the
omitted overtime . In addition Smith claimed holiday pay
for October 8, the day before he reported for work. Mancini
categorically refused to pay him for the holiday.
In the meantime , pursuant to a request by Mancini on
October 12, the Union referred another driver, Ammie Par-
ker, who reported for work on the morning of October 15.
On October 19, the Friday of that week, the paychecks of
both Smith and Parker were both short in that they were
computed at a rate of pay slightly less than set out in the
contract . They jointly protested to Mancini who again said
he would clear it up with Ebert who, according to him, he
had been unable to reach . Parker told Mancini that his rate
was wrong . Mancini asked him what it was supposed to be
and Parker said $6.46 per hour. In fact his check had been
figured on the basis of $6.43 per hour. Mancini explained
that he had gotten the rate out of the book , meaning the
printed form of the contract. Smith then asked him to show
them the rate in the book . Mancini did not do so. Instead
he said not to worry, that he would take care of it. He thus
seemed to accede to their claim that Parker be paid $6.46
per hour. I find that Smith and Parker acted concertedly in
discussing the matter with Mancini.
Smith and Parker both worked through the following
Wednesday, October 24. During the period of their re-
spective employment they each worked full time. About
half of their work was hauling from the pit in Marlboro to
the wash plant in Middle Hope and the other half hauling
to customers . Even though they worked full time the wash
plant did not operate continuously. In his testimony Smith
pointed out that the presence of stockpiled material at the
wash plant made continuous operation unnecessary.
D. The Layoff of Smith and Parker
1. The reasons stated at the time of layoff
Normal quitting time for Respondent's drivers was 3:30
in the afternoon . On October 24 as Smith and Parker drove
their trucks into the wash plant to dump gravel from the pit
in Marlboro , Mancini came out of the office with their
paychecks . Shortly before he had remarked to James Cu-
trone , the landlord from whom Respondent rents the gravel
pit, that there was a water shortage and he was going to have
to lay some employees off.
When Mancini emerged from the office he went to Smith,
who was first in the yard , and handing him his check , stated
that he was laying him off. Smith asked what was the matter.
Mancini replied to the effect that he could no longer work
union or that he could not afford to work union . About then
Parker drove in to dump his load . Mancini and Smith
walked over to Parker 's truck where Mancini gave Parker
his check. Parker asked what was going on. Mancini told
him the same thing he had told Smith ; according to the
testimony of Parker, "He said , I'm going to have to lay you
off. We can't afford to work unions . We've got a few things
we've got to straighten up." Parker asked him about the
additional money that was owed him as he had claimed the
week before. Mancini reached in his pocket and paid the
difference immediately thereby settling that difference be-
tween them . Mancini gave no indication of the duration of
layoff. He said nothing about a shortage of water or about
any other business reason requiring a layoff.
Smith then asked Mancini if he had discussed the matter
with the Union . Mancini said no. Smith then said , "Well, I
better go call the hall ." Mancini refused him the use of the
office phone saying he did not do business with the hall.
Smith and Parker went down the road to a public phone
booth where Smith called Ebert and reported the layoff.
According to Ebert he asked Smith, "Why did he tell you
he laid you off?" And Smith replied that Mancini said he
laid them off because he could not afford to work union.
In testifying Mancini denied that he told Smith and Par-
ker that he could not work with the Union or with union
men. According to him he intended the layoff to be of short
duration, until the next Monday or Tuesday. He admitted
that he had never told Ebert of any economic reasons for
the layoff. But he testified that at the time that he laid Smith
and Parker off he told them that Respondent was having a
problem with water for the wash plant, that the Tamarack
job, which was a significant source of work, had closed
down the day before, and that he had no need for trucks.
He also testified he told them they would be off a few days,
a week or 10 days at the most. I do not credit Mancini's
testimony that he gave Smith and Parker these reasons for
layoff. His testimony is not clear . The testimonies of Smith
and Parker corroborate each other and are further corrobo-
rated by that of Ebert to the effect that immediately follow-
ing the layoff they reported to him that the reason Mancini
gave for layoff was that he could not afford to work union.
2. The economic defenses
Respondent argues that the reasons for the layoff were
economic. Putting aside for the moment what was said to
Smith and Parker at the time , certain other evidence bears
on the question of whether economic reasons existed. Man-
cini testified that the reason that he laid them off was that
there was no work . According to him two important income
producing jobs, the Tamarack construction job and the
Central Hudson Pike job, closed down the day before. Spe-
cific evidence relating to the importance of these jobs to
Respondent's business does not appear in the record. In
addition Mancini testified that the wash plant at Middle
Hope shut down at the time of the layoff because of lack
of water and that it remained out of operation until Novem-
ber 27.
The owner-lessor of the wash plant, Joseph Peller, testi-
fied that shortage of water had been a continuing problem
throughout the summer and autumn and that the plant had
shut down whenever the water got low. According to him
it was shut down for that reason for a period of 2 to 3 weeks
prior to Thanksgiving.
I find there was a continuing problem with the water
supply needed to run the wash plant. It was not, however,
necessary for the wash plant to operate continuously in
order that Respondent remain in business or be able to use
truckdrivers. As noted earlier, Respondent's materials and
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
products were stockpiled and as a matter of practice over
an extended period of time the wash plant had operated
only intermittently . This was the situation when both Smith
and Parker were hired.
The testimony of Peller indicates , and I find , that the
water shortage became more serious in the autumn and
resulted in an extended shut down for a 2 to 3 weeks period
prior to Thanksgiving. The testimony of Mancini indicates
that this extended shut down was in effect as early as Octo-
ber 24 when he laid Smith and Parker off . But I do not
consider him a reliable witness and no other probative evi-
dence was offered to substantiate his contention that the
extended shut down began that early. In fact Peller 's testi-
mony is inconsistent with Mancini in that at the earliest it
began 3 weeks prior to Thanksgiving which would have
placed it 2 weeks after the layoffs in question.
Moreover , at the time of the layoffs the shut down of the
wash plant , even if already in existence , did not bulk as an
important factor . By his own admission Mancini intended
the layoffs to be of short duration, until the following Tues-
day or Wednesday. According to the credited testimony of
Smith and Parker , he did not even mention the shut down
of the wash plant as a reason for the layoff. And as pointed
out later herein , Respondent continued to operate and em-
ployed other drivers to operate the same equipment that
Smith and Parker had operated.
In sum, I find that a preponderance of the evidence does
not establish that Mancini was motivated solely by econom-
ic considerations in his layoff of Smith and Parker. On the
contrary, I find that the statements he made to them at the
time indicate more accurately his true motivation ; namely,
that he had determined that it was too costly to operate in
accordance with the condition insisted on by the Union and
by Smith and Parker.
E. The First Picketing Following the Layoff
When Smith and Parker called Ebert after the layoff on
October 24 he directed them to appear at Respondent's
entrance the following morning to advise incoming truck-
drivers what had happened . They did so beginning about
7:45 a.m. Although no picket signs were used , they patrolled
and discussed the problem with other employees and driv-
ers. In effect they established a picket line.
At or about 8:30 a .m. Mancini telephoned Ebert and
arranged a meeting with him for later in the day. He asked
that the pickets be removed and Ebert agreed . Shortly after
calling Ebert, Mancini approached Smith and Parker on the
picket line, and asked why they were still there , asserting
that they were supposed to leave . He told Smith to call
Ebert. Smith did about 10 a.m. and received instructions to
leave pending the results of the meeting between Ebert and
Mancini.
F. The Meeting at Falanga Construction
Ebert and Mancini did not meet as planned on the af-
ternoon of October 25. They did, however, meet on the
afternoon of Monday, October 29 in the office of Falanga
Construction Company . Mancini complained to Ebert that
the shop steward , Smith , was giving him a hard time about
the wage rates . This of course , was one of the items that
Smith and Parker had concertedly protested about to him
10 days earlier . He also complained to Ebert that Smith and
Parker were not going fast enough . On the witness stand,
however , he testified that they were the best drivers he had
had. He did not mention to Ebert any water shortage prob-
lem or assert that or other economic considerations as a
reason for the layoff . He stated to Ebert his view that Smith
was only entitled to 50 cents per hour over the rate for the
truck which he was operating . Ebert explained to him that
the steward 's rate was 50 cents over the highest rate in the
agreement . Mancini asserted that he had understood the
terms differently and he asked Ebert to modify them. Ebert
refused . Instead he proposed that Smith and Parker be re-
turned to work pending a resolution of the dispute . Mancini
rejected this , saying that he had put the matter in the hands
of his lawyer.
Shortly after the meeting broke up and Mancini had left,
Ebert contacted him by phone to advise that pickets would
be at Respondent's premises the next morning.
G. The Later Picketing
The next morning, Tuesday, October 30, Smith and Par-
ker assisted by other members of the Union, resumed their
picketing of Respondent's premises , this time with picket
signs . The signs protested unfair labor practices by Respon-
dent against the Union . This picketing continued through
December 14.
Based on the credited testimony of Smith and Parker I
find that during this period of picketing Respondent em-
ployed truckdrivers for trucking work, including supplying
its wash plant with material from the gravel pit. According
to Mancini's own testimony, his diary shows that he em-
ployed two replacement drivers beginning Friday, Novem-
ber 2. Payroll records for the week ending November 7,
which includes the week following the resumption of the
picketing, one of the replacements worked 40 hours and the
other 52 hours . The next week the same drivers worked 35
hours and 44 hours, respectively. The record shows that at
various times during the picketing Respondent employed at
least two and sometimes more replacement drivers. Al-
though some of the work performed by these replacements
appears to have been mechanical work , substantial amounts
was driving work which Smith and Parker clearly could
have performed had they been reinstated . The record is
silent as to whether Smith and Parker could have performed
mechanical work . During part of this period Respondent's
records show that even when its wash plant was not operat-
ing Respondent was performing some trucking work for
which Smith and Parker qualified.
After the picketing ceased on December 14 the same
situation continued , that is, some driving work for which
Smith and Parker were qualified was performed by other
drivers hired by Respondent.
STANDARD AGGREGATE CORP. 159
H. Mancini 's November 1 Statement
The complaint alleges, and the answer denies, that on
November 1 Mancini told Respondent's employees they
would still be working if they had not engaged in union or
protected activities.
On November 1, Smith and Parker were picketing in
front of Respondent's premises. According to Mancini's
own testimony he came out and, "I told them they could go
to work for me if they stop this crap." He testified that by
this he meant if they would stop the strike. At another point
he testified, "Well, I told Smitty and I told Parker, both, if
they would stop this nonsense we could be working. Those
were my words." According to him, "They said that they
had their Union and their obligations and that was it."
I. Discussion
As already found, when Mancini laid off Smith and Par-
ker on October 24, the only motive he indicated was that he
considered union conditions too expensive. Apart from any
other business considerations which existed at the time,
Mancini must be taken at his word in this. A layoff for such
a reason is discriminatory, discourages membership in the
Union and violates Section 8(a)(3) of the Act.
Respondent argues that a showing of animus toward con-
certed activity or the Union is necessary to a finding of an
unlawful discharge. There is no evidence of animus in this
record. But the presence or absence of animus is merely one
factor in evaluating motive and evidence of its presence is
not essential if other evidence establishes Respondent's mo-
tive. Crandall-Hicks of Wellesley, Inc., 185 NLRB 55, 59.
Here Mancini's motive is indicated by other evidence.
The sequence of events, including Mancini's complaint to
Ebert on October 29 about being given a hard time by the
job steward, show that Smith and Parker's concerted activi-
ty in protesting what they considered their pay shortages
played a significant part in his decision to lay them off. This
finding is supported by the evidence that he refused Ebert's
offer that they return to work pending settlement of the pay
question and by the employment of replacements. Layoff
for such a reason violates Section 8(a)(1) of the Act. See
N.L.R.B. v. Interboro Contractors, Inc., 388 F.2d 495, 498-
500 (C.A. 2, 1967).
I make no finding as to the validity of the current collec-
tive-bargaining agreement because that question is not ma-
terial to a disposition of the case. Assuming, arguendo, that
the contract could not be a proper predicate for finding a
refusal-to-bargain unfair labor practice under Section
8(a)(5) of the Act, the law does not preclude employees from
concertedly protesting pay shortages or asserting the validi-
ty of contract provisions. Error on their part as to the validi-
ty of the agreement does not license employer
discrimination against them for taking that position.
Whether in protesting to Mancini they were engaged in
either concerted activity or in union activity, he was not at
liberty to punish them for such conduct. Dakota Electric
Association, 201 NLRB 302.
A preponderance of the evidence does not support
Respondent's contention that it had an economic basis for
the layoff. In the first place, as already found, such reasons
were not given at the time of layoff. Further, at no time
thereafter did Respondent inform either the employees who
were laid off or their union representative that business
considerations motivated the layoff. Specifically, no men-
tion was made of a water shortage, which was asserted at
the hearing as a reason requiring the layoff, nor was any
mention made of the loss of outside business. Respondent
has, therefore, failed to establish that other considerations
were behind the layoff. In any case, even if certain condi-
tions existed which might have justified a reduction in force,
such as reduced operation of the wash plant resulting from
a water shortage, or a reduction in the amount of outside
business, the evidence shows that after the layoff Respon-
dent had a continuing need for truckdrivers as show by
evidence that it employed replacements. It is immaterial
that at times the replacements may not have worked full
time as drivers. To the extent that driving work was avail-
able, it clearly could have been performed by Smith and
Parker.
Mancini testified that he intended their layoff to be of
short duration but that they continued with their picketing.
However, when he met with Ebert on October 29, they had
stopped picketing. Ebert proposed that they return to work
pending resolution of the disagreement and Mancini flatly
refused. Thus, it is clear that he did not want them to return
to work. In any case, the initial question is why he laid them
off. They did not commence their protest by striking or
picketing. Their picketing on October 25 was a reaction to,
and in protest of, their layoff. Picketing on October 25
lasted only about 2 hours, when it ceased by mutual agree-
ment of the employer and the Union. The next Monday,
October 29, Mancini refused their offer, made through
Ebert, to return to work pending resolution of the dispute.
He thus reaffirmed the continuation of their layoff status.
In these circumstances they cannot be blamed for resuming
picketing in protest of their layoff.
It can be argued that one purpose of the picketing was to
force continued employer adherence to the contract. I make
no finding in this regard because it is clear that the employer
was the aggressor in the controversy by precipitating the
layoff which in turn triggered the picketing.
On November 1 Mancini made an effort to put the shoe
on the other foot by, in effect, offering them reinstatement.
But in the circumstances it was an offer which contemplated
abandonment of their protest of his unfair labor practice.
He made no effort to assure them that the violation of their
Section 7 rights would be remedied or that their rights
would be protected in the future. His message was that they
could have their jobs back if they gave up their statutory
rights to do what they were doing. Such an offer not only
was not a bona fide offer of reinstatement, but was an
interference with the exercise of their Section 7 rights con-
trary to Section 8(a)(1).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations de-
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
scribed in section I, above, have a close, intimate, and sub-
stantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of com-
merce.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Sec-
tion 2(2), engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Respondent's general manager, John Mancini, is an
agent of Respondent and a supervisor within the meaning
of Section 2(11) of the Act.
3. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
4. By laying off William Smith and Ammie Parker on
October 24, and not thereafter reinstating them, because
they engaged in protected concerted activity and union ac-
tivity, Respondent engaged in, and is engaging in, unfair
labor practices within the meaning of Section 8(a)(1) and (3)
of the Act.
5. By on November 1 telling William Smith and Ammie
Parker that they could be working if they abandoned their
picketing, which they were then engaged in to protest unfair
labor practices, Respondent committed a further unfair la-
bor practice within the meaning of Section 8(a)(1) of the
Act.
6. The unfair labor practices found above affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices, I recommend that it cease and desist therefrom
and take certain affirmative action to effectuate the policies
of the Act. I recommend Respondent be ordered to offer
William Smith and Ammie Parker immediate and full rein-
statement to their former jobs, or, if those jobs are not
available, to substantially equivalent positions, and that
each be made whole for loss of earnings suffered by reason
of his layoff by paying him a sum of money equal to that
which he would have earned in wages from October 24,
1973, the date of layoff, to the date Respondent offers him
reinstatement, less his net earnings during such period, to be
computed in the manner set forth in F. W. Woolworth Com-
pany, 90 NLRB 289 (1950), with interest thereon at 6 percent
calculated according to the formula set forth in Isis Plumb-
ing & Heating Co., 138 NLRB 716 (1963). I also recommend
that Respondent preserve and make available to Board
agents, upon request, all pertinent records and data neces-
sary in analyzing and determining whatever backpay may
be due. I further recommend that Respondent post appro-
priate notices at its premises at both Marlboro and Middle
Hope, New York.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommended:
ORDERI
Respondent, its officers, agents, succesors, and as-
signs, shall:
1. Cease and desist from:
(a) Laying off, or otherwise discriminating against,
employees because they engaged in protected con-
certed activity or in union activity.
(b) Telling employees engaged in unfair labor
practice picketing that they could be working if they
abandon their protest of the unfair labor practices
committed against them.
(c) In any like or related manner restraining or
coercing employees in the exercise of their right to
self-organization, to form labor organizations, to join
or assist Local 445, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, or any other labor organization, to bar-
gain collectively through representatives of their own
choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mu-
tual aid or protection as guaranteed in Section 7 of the
Act, or to refrain from any and all such activities.
2. Take the following affirmative action to effectu-
ate the policies of the Act:
(a) Offer to William Smith and Ammie Parker im-
mediate and full reinstatement to their former jobs, or
if those jobs are no longer available, to substantially
equivalent positions, without prejudice to their senior-
ity or other rights and privileges, and make each
whole for any loss of earnings in the manner set forth
in the section herein entitled "The Remedy."
(b) Preserve and, upon request, make available to
the Board or its agents all records necessary to ana-
lyze the amount of backpay due William Smith and
Ammie Parker under the terms hereof.
(c) Post at its premises in both Marlboro and Mid-
dle Hope, New York, copies of the attached notice
marked "Appendix." 3 Copies of said notices, on
forms provided by the Regional Director for Region
3, after being duly signed by Respondent's authorized
representative, shall be posted by Respondent imme-
diately upon receipt thereof and be maintained by it
for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be
2 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
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.
3 In the event that the Board's 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 be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
STANDARD AGGREGATE CORP. 161
taken by Respondent to insure that said notices are writing, within 20 days from the date of the receipt of
not altered, defaced, or covered by any other material. this Order, what steps Respondent has taken to com-
(d) Notify the Regional Director for Region 3, in ply herewith.