Jefferson Ready Mix And Material, Inc.

National Labor Relations Board - Board Decisions

Jul 13, 1987

284 N.L.R.B. 977 (N.L.R.B. 1987)

JEFFERSON READY MIX 977
Jefferson Ready Mix and Material, Inc. and Con-
struction, Building Material, Ice and Coal,
Laundry and Dry Cleaning, Meat and Food
Products Drivers, Helpers, Warehousemen,
Yardmen, Salesmen and Allied Workers Local
Union No. 682, Affiliated with International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America. Cases 14-
CA-18525 and 14-RC-10120
13 July 1987
DECISION, ORDER, AND
CERTIFICATION OF
REPRESENTATIVE
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 11 March 1987 Administrative Law Judge
Marvin Roth issued the attached decision. The
Charging Party Union filed exceptions and a sup-
porting brief.
The National Labor Relations Board has delegat-
ed 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 brief and has
decided to affirm the judge's rulings, findings, and
conclusions as modified,' and to adopt the recom-
mended Order, as modified.2
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
CERTIFICATION OF
REPRESENTATIVE
It is certified that a majority of the valid ballots
have been cast for Congress of Independent Unions
and that it is the exclusive collective-bargaining
representative of the employees in the following
appropriate unit:
In adopting the judge's finding that the Respondent did not, as al-
leged, violate Sec 8(a)(1) of the Act by Supervisor Clifford Jefferson's
questioning of employee Walter King about King's union activities, we
have examined this issue on the ments and, considering King's testimony,
we conclude, based on Sunnyvale Medical Clinic, 277 NLRB 1217 (1985),
and Rossmore House, 269 NLRB 1176 (1984), that no violation occurred
in the circumstances here. Thus, we find it unnecessary to pass on the
judge's comment in fn. 9 of his decision about the Respondent's failure to
call Supervisor Lave11 Eggleston as a corroborating witness or his refer-
ence to O'Dovero Construction, 264 NLRB 751 fn 1 (1982).
2 Regarding the election held m Case 14-RC-10120, the judge recom-
mended in his Order that a "certification of results" be issued. The tally
of ballots from that election shows, however, that the Congress of Inde-
pendent Unions received a majority of the ballots cast Accordingly, we
shall issue a Certification of Representative to the Congress of Independ-
ent Unions in the stipulated unit
All drivers employed by the Employer at its
St. Louis, Missouri facility, EXCLUDING
office clerical and professional employees,
guards and supervisors as defined in the Act,
and all other employees.
Michael T Jamison, Esq., for the General Counsel.
James N. Foster, Jr., Esq., and Timothy .1. Sarsfield, Esq.,
of St. Louis, Missouri, for the Respondent Employer.
R. Richard Davis Esq., of Alton, Illinois, for Intervenor
Congress of Independent Unions.
DECISION
STATEMENT OF THE CASE
MARVIN Rom, Administrative Law Judge. These
consolidated cases were heard at St. Louis, Missouri, on
23 January 1987. The charge was filed on 21 July 1986
by Construction, Building Material, Ice and Coal, Laun-
dry and Dry Cleaning, Meat and Food Products Drivers,
Helpers, Warehousemen, Yardmen, Salesmen and Allied
Workers Local Union No. 682, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehou-
semen and Helpers of America (Teamster).' The com-
plaint, which issued on 3 September and was amended
on 28 November, alleges that Jefferson Ready Mix and
Material, Inc. (Respondent or the Company) violated
Section 8(a)(1) of the National Labor Relations Act. The
gravamen of the complaint is that the Company alleged-
ly engaged in unlawful threats and interrogations. The
Company's answer denies the commission of the alleged
unfair labor practices.
Congress of Independent Unions (CIU) is the incum-
bent collective-bargaining representative of the Compa-
ny's driver employees at its St. Louis, Missouri facility.
Pursuant to a petition filed on 2 July by Teamsters and a
Stipulation for Certification Upon Consent Election ap-
proved by the Regional Director on 29 July, an election
was conducted on 22 August among employees of the
Company in the following appropriate unit:
All drivers employed by the Company at its St.
Louis, Missouri, facility, EXCLUDING office, cler-
ical and professional employees, guards and supervi-
sors as defmed in the Act, and all other employees.
The tally of ballots showed that, of approximately 19 eli-
gible voters, 4 voted for Teamsters, 11 for CIU, and 3
against both unions. One challenged ballot was insuffi-
cient in number to affect the results of the election.
Teamsters filed timely objections to the election, num-
bered 1 through 7, but subsequently withdraw Objection
6. On 9 September the Regional Director issued his
Report and Recommendation on Objections, overruling
Objection 7, but finding that Objections 1 through 5, to-
gether with evidence of such conduct that is also alleged
in the complaint, raised substantial and material questions
1 All dates herein are in 1986 unless otherwise indicated.
284 NLRB No. 107
978 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of fact that could best be resolved by a hearing. 2 The
Regional Director ordered that the unfair labor practice
and representation cases be consolidated for the purposes
of hearing, ruling, and decision by an administrative law
judge and that, after decision by a judge, the representa-
tion case be transferred to and continued before the
Board.
All parties were afforded full opportunity to partici-
pate, to present relevant evidence, to argue orally, and to
file briefs. On the entire record in this case, 3 and from
my observation of the demeanor of the witnesses, and
having considered the briefs submitted by the General
Counsel and the Company, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The Company, a corporation with an office and place
of business in St. Louis, Missouri, is engaged in the non-
retail truck transportation and sale of ready mix concrete
and dry materials. In the operation of its business, the
Company annually purchases products and materials
valued in excess of $50,000 directly from points outside
of Missouri. I fmd, as the Company admits, that it is an
employer engaged in commerce with the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Teamsters and CIU are each labor organizations
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES AND
THE OBJECTIONS TO THE ELECTION
A. The Facts
Ed Jefferson, the Company's sole owner, is a Black,
self-made businessman who is proud of his accomplish-
ments. In July 1986, the Company had about 25 employ-
ees, of whom about 20 were Black, including some mem-
bers of Jefferson's family. Jefferson had an informal rela-
tionship with his employees. He frequently joined them
in afterwork drinking and conversation sessions, in
which he sometimes discussed his own business prob-
lems. As Jefferson testified: "I might talk too much to
my men." Jefferson paid his drivers $1 per hour above
the prevailing Teamsters wage scale. However, at least
some of the employees were dissatisfied with the Compa-
ny's health insurance plan, and this dissatisfaction gener-
ated some support for a Teamsters organizational cam-
paign. On the evening of 16 July, when the election was
pending, Teamsters held a meeting at the home of
2 Subsequently, the Regional Director declined to proceed on par. 5A
of the complaint, which covered the same subject matter as Objection 3,
and amended out the allegation Therefore, I overruled Objection 3 at
the hearing See Times Square Store Corp., 79 NLRB 361, 365 (1948),
Martinohuh Ship Repair Go, 111 NLRB 761, 762 (1955). Teamsters was
not present at the hearing, and consequently there was no offer of proof
in support of Objection 3.
3 Certain errors in the transcnpt are noted and corrected.
former driver Dwayne Rogers. 4 The meeting was no
secret; indeed, driver Walter King, who was presented as
a General Counsel witness, testified that that afternoon,
shortly after leaving work, a group of drivers talked
about the meeting in a conversation that included Jeffer-
son's son, Supervisor Clifford Jefferson. King told Clif-
ford Jefferson that he was going to the meeting. 3 King
and driver Clifford Driscoll went together to the meet-
ing. They returned to the area of the plant about 10 p.m.,
in order for King to pick up his car. They saw Jefferson
talking and drinking with two employees across the
street from the company plant and went over to join
them. Jefferson was obviously not sober. 6 Jefferson
asked King and Driscoll how the meeting went. 7 They
then talked about the meeting and the Teamsters. King
said that Teamsters had its good points and bad points.
He said that the Company's wages were good, but that
the Company's insurer was slow in paying medical and
hospital bills. Jefferson disagreed, arguing that the insur-
er paid for his wife's hospitalization. Jefferson then com-
mented that he could not understand why the Black em-
ployees went against him, referring to them as "niggers"
who were trying to stab him in the back. (King and
Driscoll are white.) 3 At this point King left the conver-
sation for about 5 minutes. He testified that when he re-
turned, Driscoll was telling Jefferson that Teamsters said
there was no way that Jefferson could close down legal-
ly. King testified that Jefferson answered Driscoll as fol-
lows: Jefferson said that he did not have to close down,
that all he had to do was stop paying his vendors and
they would shut him down. Jefferson said that he did not
need "all this hassle" and that he was well off enough to
retire. He said that he would sign with Teamsters, "that
was no problem," but that the problem was with the
Teamsters "health and welfare," that "once they get
ahold of a Company they own them and he could not
close down because once they got ahold of it, he would
be paying them for the rest of his life." Jefferson referred
4 The Union's charge alleged in part that on 10 July the Company dm-
crimmatonly discharged Rogers. The Regional Director declined to pro-.
ceed on this allegation
5 Unless otherwise indicated, "Jefferson" refers to owner Ed Jefferson.
Jefferson testified that he learned about the pending meeting, evidently
on the previous evening, when driver Leonard Roberts called him at his
home to say that Rogers told him he had better come to the meeting,
becuase the Teamsters were going to shut down the Company However
Roberts, who was also presented as a company witness, testified that he
told Jefferson that Rogers said he would lose his job if he did attend the
meeting Roberts testified that he asked Jefferson what he should do,
whereupon Jefferson answered, "Well why don't you just go ahead
down to the meeting, cause all the other guys are going to be there." I
credit Roberts Both Roberts and Jefferson testified that the meeting was
a matter of common knowledge
6 King initially testified that they were drinking, but subsequently testi-
fied that he did not see any drinking. However Driscoll, who was also
presented as a General Counsel witness, testified that Jefferson and one
of the employees were drinking and that Jefferson was obviously intoxi-
cated. Jefferson also testified that he was drinking.
7 King and Driscoll testified that Jefferson specifically referred to the
meeting Jefferson testified that he may have asked how did "it" go.
Even if Jefferson did not use the word "meeting," it is evident from their
ensuing conversation that all present understood that Jefferson was refer-
ring to the Teamsters meeting.
8 The General Counsel does not contend that this remark was unlaw-
ful
JEFFERSON READY MIX 979
to other firms that allegedly could not close down, de-
spite being in debt, for this reason. He went on to elabo-
rate, but King did not understand everything he said.
Driscoll testified that he did not tell Jefferson that Team-
sters said the Company could never shut down. Howev-
er, he did testify that Jefferson said the Teamsters would
not be able to close him down, that if he was to close
down it would be his creditors' that would close him
down, and that all he would have to do would be to not
pay his bills. Driscoll did not explain how the subject
came up. Jefferson, the only other witness concerning
the conversation, denied that he threatened to close the
plant if Teamsters were elected. Jefferson testified that
he told the employees that he did not know how he
could survive more expense, and that the Teamsters Cen-
tral States health and welfare and pension funds would
increase his expenses. He argued, by way of illustration,
that if an employee worked only 4 hours in 1 week, he
would still have to contribute $61 to the funds for that
employee. Jefferson reminded the employees that he
could not receive concrete from his suppliers if he did
not pay his bills within 90 days, that this happened on
occasions in the past, and that if his suppliers shut him
off he would be out of business. Jefferson testified that
on several occasions in the past he has said, "I do not
have to go through this," and that he may have made
such a remark in the 16 July conversation. On examina-
tion of the testimony of the witness it is evident that
there is no real conflict or inconsistency between the
versions of King and Jefferson (Driscoll's description
was too sparse to have significant probative value). I
credit the testimony of King, and I also credit Jefferson's
testimony concerning his additional remarks.
King testified that the following day (17 July), as he
was reporting in to work, Supervisor Clifford Jefferson
(Ed's son) asked him, "how did it go last night?" King
answered that it was a normal sales pitch, that they give
you the good points and try to sell you the Union. Clif-
ford Jefferson asked him what he thought about it, and
King answered that it had its good points and its bad
points. According to King, Supervisor Lave11 Eggleston
then remarked to Jefferson, "I told you they wouldn't
tell you anything." Clifford Jefferson testified that he did
not question King or any other employee about the
meeting, or discuss the meeting with King, or question
King about any union activities. Jefferson testified that
he was aware of the pending meeting, that the employees
talked about the meeting the previous day in his pres-
ence, but that he did not ask any questions and walked
away from the conversation because he did not wish to
become involved. No other witnesses were presented
concerning this matter. King quit his job in September
and was not employed by the Company at the time of
the present hearing. I am not persuaded that King's testi-
mony concerning this incident is more credible than Clif-
ford Jefferson'S denia1. 9 Therefore, I find that the Gener-
9 No adverse inference may be drawn from the Company's failure to
call Supervisor Eggleston as a witness O'Dovero Construction, Inc., 264
NLRB 751 fn. 1(1982)
al Counsel has not met its burden of proof on this matter,
and that the corresponding Teamsters Objection 2 (alleg-
ing interrogation by Clifford Jefferson) should be over-
ruled.
Driver Driscoll testified that on the morning of 17
July he and three other drivers, including Leonard Rob-
erts, were standing outside the plant, waiting to report
for work, when Ed Jefferson came over to them. Dris-
coll testified that Jefferson asked them whether, if he de-
cided to go Teamsters, they would take a cut in pay to
$8.50 per hour, as was paid under Teamsters contracts at
other plants that he named. Driscoll was then making
$13.91 per hour. Driscoll testified that one of the em-
ployees, Kevin Porter, asked about showup time, but
that he did not recall any other response by the employ-
ees. Jefferson replied that the employees had it better
than at other places. Jefferson testified that he came over
to the employees and asked Porter (who had previously
left the Company and then returned) why he came back
if he was doing so well. Jefferson testified that he re-
ferred to a contract recently negotiated by Teamsters
under which the employees were paid $8.50 per hour
and asked "If I could negotiate a contract like that with
the Teamsters, would you fellows be willing to take a
out?" Jefferson testified that he did not say that he
would cut their pay. Driscoll and Jefferson were the
only witnesses presented concerning this conversation.
Roberts, although called as a company witness, was not
questioned about the matter. There is no significant in-
consistency between the testimony of Driscoll and Jeffer-
son. I find that their testimony together reflects the sub-
gance of the conversation.
B. Analysis and Concluding Findings
The General Counsel contends that on 16 July Ed Jef-
ferson "threatened employees with plant closure should
the employees select [Teamsters] to represent them," and
on 17 July "threatened employees with lower wages if
the employees selected [Teamsters] to represent them." I
do not agree. Driscoll did not, in his provocative remark
to Jefferson, expressly or impliedly indicate under what
conditions or for what reason or reasons, if any, Jeffer-
son could not shut down legally; and Jefferson in his re-
sponse likewise did not indicate under what conditions
or for what reasons he might fail to pay his bills. Dris-
coll simply made an erroneous statement, namely, that
there was no legal way that Jefferson could go out of
business, and Jefferson corrected him. Therefore Jeffer-
son's response, standing alone, does not furnish a basis
for finding that Jefferson threatened to close the plant if
the employees voted for Teamsters. Fox Vacumm & Par-
affin Service, 171 NLRB 421 (1968). The context of Jef-
ferson's remark, including the overall course of the con-
versation, also fails to demonstrate such a threat. Jeffer-
son never said or implied that he would close rather than
recognize the Teamsters. Indeed he expressly stated that
he would sign with the Teamsters and "that was no
problem." However, Jefferson stated and explained, in
objective terms and on the basis of objective factors, that
he did not think he could afford the cost of the Team-
sters health and welfare program. Even if Jefferson had
980 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
said that he would go out of business rather than incur
the cost of that program (which he did not), such a state-
ment would not be unlawful. It is not unlawful for an
employer to explain in objective terms that he cannot
afford certain union terms and conditions and that he
might have to go out of business, lay off employees, or
take other economic action rather than accept such terms
and conditions, so long as the employer does not express-
ly or impliedly equate such drastic action with unioniza-
tion itself. See NLRB v. Gissel Packing Co., 395 U.S. 575,
618 (1969); B.F. Goodrich Footware Co., 201 NLRB 353,
354 (1973); Ohio New & Rebuilt Parts, Inc., 267 NLRB
420, 421 (1983), affd. 760 F.2d 1443 (6th Cir. 1985).
The General Counsel's second allegation fares no
better. Jefferson posed a question; he did not make a
threat. In light of the ensuing discussion, it is evident, as
the Company points out in its brief (p. 14) that Jefferson
was simply posing a rhetorical question, preliminary to
his argument, based on objective comparison with other
firms, that his employees enjoyed more favorable wages
than empioyees under Teamsters contracts, and that the
employees so understood. It is not unlawful for an em-
ployer, even in this fashion, to compare his wages and
working conditions with those at unionized plants or (as
in the present case) with conditions at plants represented
by the Union presently seeking recognition. Commodores
Point Corp., 258 NLRB 1081, 1093 (1981), affd. 705 F.2d
1537 (11th Cir. 1983); John W. Galbreath & Co., 266
NLRB 96 (1983).
This leaves the General Counsel's remaining allegation
that Jefferson unlawfully interrogated employees when
he asked King and Driscoll how the meeting went.
Under the standards set forth in Rossmore House, 269
NLRB 1176 (1984), affd. sub nom. Hotel & Employees v.
NLRB, 760 F.2d 1006 (9th Cir. 1985), Sunnyvale Medical
Clinic, 277 NLRB 1217 (1985), and Bourne Co. v. NLRB,
332 F.2d 47 (2d Cir. 1964), cited with approval in Ross-
more House at fn. 20, Jefferson did not engage in unlaw-
ful interrogation. In the context of Jefferson's conversa-
tions with his employees, it is evident that Jefferson's
question was simply one remark in an ongoing dialogue
between management and employees concerning the pros
and cons of Teamsters unionization. The employees had
freely and openly discussed their interest in Teamsters in
the presence of Clifford Jefferson and King told him that
he was going to the Teamsters' meeting that night. After
the meeting King and Driscoll went over to Jefferson
and joined in conversation with him, although they had
no obligation to do so. Their action was virtually an in-
vitation to discuss Teamsters, as the meeting was obvi-
ously foremost in everyone's mind, and the employees
were accustomed to free and open discussion with Jeffer-
son. Jefferson's generalized question was obviously what
it turned out to be, namely an opening to a discussion of
the pros and cons of Teamsters representation. Jefferson
knew that King and Driscoll had come from the meeting
and plainly was not seeking information on which to
base taking action against individual employees. King
and Driscoll were not only truthful in their replies, but
they obviously recognized the question for what it was,
i.e., an invitation to a free and open discussion of the
merits of Teamsters representation. Jefferson obviously
did not want Teamsters representation, as demonstrated
by his remark about the Black employees. However, for
the reasons discussed, Jefferson did not make any threat
of reprisal of promises of benefits. Rather he confined his
remarks to lawful argument. Jefferson was of course at
the top of the management hierarchy in that he was the
company owner. However, the alleged interrogation oc-
curred in a highly informal atmosphere, specifically, an
afterwork session of drinking and conversation, outside
the plant premises, in which the employees voluntarily
participated. Moreover, the employees were accustomed
to such informal conversations with Jefferson. In sum,
the circumstances and the fact of Jefferson's question
weigh against finding a violation. Therefore, I find that
Jefferson did not unlawfully interrogate his employees.
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Teamsters is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Company has not engaged in the unfair labor
practices alleged in the complaint.
4. The Union's objections to the election on 22 August
1986 are without merit.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed10
ORDER
It is recommended that the complaint be dismissed,
that the Union's objections to the election be overruled,
and that a certification of results of election issue.
10 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102 48 of die Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses