Austin Concrete Works, Inc.

National Labor Relations Board - Board Decisions

Jul 17, 1961

132 N.L.R.B. 184 (N.L.R.B. 1961)

184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Intervenor, which has represented the production workers on a
multiemployer basis over a period of years, seeks to represent the
excluded classifications of employees on the same basis as the produc-
tion workers.3 Accordingly, as the unit sought does not constitute an
appropriate unit, we shall dismiss the petition herein.
[The Board dismissed the petition.]
MEMBERS RoDGERS and BROWN took no part in the consideration of
the above Decision and Order.
a Cf. Peninsula Auto Dealera Aasoeiation of the California Aasocsation of Employers,
107 NLRB 56.
Austin Concrete Works, Inc. and United Brotherhood of Car-
penters & Joiners of America, AFL-CIO. Case No. 23-C4-
10.91. July 17, 1961
DECISION AND ORDER
On March 24, 1961, Trial Examiner Arthur E. Reyman issued his
Intermediate Report in the above-entitled proceeding, finding that the-
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings made by'the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the Respondent's exceptions, and entire record in this
case, and hereby adopts the findings, conclusions; and recommenda-
tions of the Trial Examiner, with the following'modifications.
1. The Trial Examiner found that Winans was a supervisor and
that the Respondent was responsible for his conduct in interrogating
and threatening its employees. The record establishes that Winans
was employed by the Respondent on a per diem basis for the purpose
of aiding in its campaign in opposition to the Union. Nowhere in the
record is it demonstrated that Winans was invested with supervisory
status or that he held such a relationship to the Respondent's em-
ployees. Consequently, we do not adopt the Trial Examiner's finding
that Winans-was a supervisor, but we do hold that the Respondent, be-
cause Winans was in fact an agent of the.Respondent and was acting
in that capacity, is responsible for Winans' conduct.
132 NLRB No. 15.
AUSTIN CONCRETE WORKS, INC. 185
2. The Trial Examiner found all the letters sent by the Respondent
to its employees prior to July 18, 1960, to be expressions of views per-
missible under Section 8(c) of the Act. In the absence of exceptions
to this finding it is adopted, pro forma, and we do not place any re-
liance on these letters, as the Trial Examiner did, in finding and con-
cluding that the Respondent violated Section 8 (a) (1) of the Act.
3. We do not agree with the Trial Examiner's finding that the Re-
spondent violated Section 8(a) (1) of the Act in announcing in its
letter dated July 28, 1960, that at the conclusion of the Board-
conducted election the following day it would hold a drawing to give
away a television set. The Trial Examiner found that the drawing
implicitly conveyed a promise of benefit or inducement to vote against
the Union. The letter announced that the sole purpose of the drawing
was to encourage all the employees to vote in the election and the
letter specifically informed the employees that to win the television
set it did not matter whether they voted for or against the Union.
In these circumstances, we do not find that this letter interfered with,
restrained, or coerced the employees in the exercise of their rights
under Section 7 of the Act.'
4. By way of aremedy, the Trial Examiner recommended that the
Respondent cease and desist from discouraging membership in the
Union by discriminating against' its employees in regard to their em-
ployment. This is the kind of remedy normally directed in those
cases wherein there is a finding that Section 8(a) (3) of the Act has
been violated. There is no allegation, nor finding, that the Respondent
engaged in this type of conduct and, consequently, we do not adopt
this recommendation. The Trial Examiner also recommended that
the Respondent cease and desist from unilaterally granting wage in-
creases and other benefits during the time its employees are repre-
sented by the Union. This is the kind of remedy normally directed in
cases wherein there is a finding of a violation under Section 8 (a) (5) 'of
the Act. The Respondent is not alleged to have engaged in this type of
conduct, nor is there such a finding. There is, however, a finding that
the Respondent did grant wage increases and other benefits in a
manner interfering with its employees' right to select the Union. Con-
sequently, we shall order the Respondent to cease and desist from this
and other conduct found violative of the Act.
ORDER .'
Upon the entire record in the case and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent Austin Concrete
1 See David Goetz , d/b/a Federal Silk Utills, 107 NLRB 876, 877-878; Bordo Products
Company, 119 NLRB 79, 84, and Hear a vcr Co, Inc, 122 NLRB 208, 218.
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Works, Inc., Austin, Texas, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Threatening employees with loss of employment or other re-
prisals because of membership in or assistance to the United Brother-
hood of Carpenters & Joiners of America, AFL-CIO, or any other
labor organization.
(b) Interrogating employees concerning their membership in, or
activities on behalf of, the Union or any other labor organization in
a manner constituting interference, restraint, or coercion in violation
of8(a).(1) of the Act.
(c) Interfering with the right of employees to select the above-
named labor organization, or any other labor organization, by grant-
ing them wage increases or other benefits.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Post at its place of business and plant in Austin, Texas, copies
of the notice attached hereto marked "Appendix" 2 Copies of said
notice, to be furnished by the Regional Director for the Twenty-third
Region, shall, after being duly signed by Respondent, be posted by
Respondent immediately upon receipt thereof and be maintained by
it for 60 consecutive days thereafter in conspicuous places including
all places where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for the Twenty-third Region,
in writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply therewith.
2In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the Labor Manage-
ment Relations Act, we hereby notify our employees that :
WE WILL NOT threaten our employees with economic reprisals
or loss of employment because of their union affiliation and activi-
ties or assistance to the United Brotherhood of Carpenters &
Joiners of America, AFL-CIO.
WE WILL NOT interrogate our employees concerning their mem-
bership in, or activities on behalf of, the above-designated Union,
or any other labor organization, in a manner constituting inter-
AUSTIN CONCRETE WORKS, INC. 187
ference, restraint, or coercion in violation of Section 8(a) (1) of
the Act.
WE WILL NOT, in order to interfere with the right of our em-
ployees to select the above-named labor organization or any other
labor organization, grant them wage increases or any other
benefits.
AUSTIN CONCRETE WORKS, INC,
Employer.
Dated---------------- By-------------------------------------
(Representative) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding, brought under Section 10(b) of the National Labor Relations
Act, as amended, 61 Stat. 131, 136; 73 Stat. 519 (herein called the Act), is based
upon an original charge filed pursuant to Section 10(b) on September 22, 1960, a
first amended charge filed on October 17, 1960, and a second amended charge filed
and served on or about October 24, 1960. The charge and amended charges were
filed by United Brotherhood of Carpenters & Joiners of America, AFL-CIO, here-
inafter sometimes called the Union or the Charging Party. Thereafter, the General
Counsel of the National Labor Relations Board, on behalf of the Board, by the
Regional Director for the Twenty-third Region, issued a complaint and notice of
hearing on October 31, 1960.
The complaint asserts that since on or about July 7, 1960, and thereafter, the
Respondent Company through certain of its officers and agents has interfered with,
restrained, and coerced, and is interfering with, restraining, and coercing, its em-
ployees in the exercise of rights guaranteed in Section 7 of the Act by interrogation
of employees concerning the Union, by changing the method of informing employees
about "forthcoming overtime," by granting a pay increase, by promising benefits if
employees would deal directly with the Company rather than dealing through the
Union, threatening that if employees joined the Union they could not talk to the
Company directly, threatened to discharge employees because of union activity,
solicited employees to report any union activities of other employees, and in order
to defeat union organization did, on or about June 21, 1960, a grant a vacation
program. The complaint alleges further that from on or about August 14, 1960,
and thereafter, the Employer discriminated against certain employees in regard to
their terms or conditions of employment by providing said employees with less em-
ployment; that the Respondent Company, the Employer, discriminated in regard to
terms or conditions of employment of certain named employees for the reason that
they had joined or assisted the Union, or engaged in other concerted activities for
the purposes of collective bargaining or other mutual aid or protection. The Re-
spondent Company, by counsel, filed timely answer to the allegations of the com-
plaint, which effectively denies substantive violations of the Act as therein set forth.
Before the hearing herein, the General Counsel furnished certain particulars re-
garding names and times of alleged violations by officers or agents of the Respond-
ent, which are regarded as a part of the pleadings herein.
On the issues framed by the pleadings, this case came on to be heard before the
duly designated Trial Examiner at Austin, Texas, on December 5, 1960, and was
closed on December 8. At the hearing, the General Counsel and the Respondent
Company each was represented by counsel, and the Union was represented by an
official representative. Full opportunity was afforded them to be heard, to examine
and cross-examine witnesses, and to introduce evidence pertinent to the issues. Each
party was afforded opportunity to make oral argument on the record, to file proposed
findings of fact and conclusions, or both, and to file briefs. Counsel engaged in
oral argument at the conclusion of the hearing, and briefs filed on behalf of the
General Counsel and the Respondent have been received and carefully considered.
During the course of the hearing counsel for the General Counsel moved the Trial
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Examiner to dismiss the allegations of the complaint in regard to Section 8(a)(3)
violations (discrimination as to times for work) and the motion was granted.
Upon the entire record in the case, from my observation of the witnesses, and
consideration of brief and argument, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF AUSTIN CONCRETE WORKS, INC.
The Respondent, Austin Concrete Works, Inc., in its answer to the complaint
denies that it is engaged in commerce within the meaning of the Act. If I under-
stand the position of counsel for Respondent correctly, this position was abandoned
during the course of this hearing. If not, I think that the basis of jurisdiction of
the Board was so recently established before the hearing herein that there can be
no question but that the Respondent is and has been engaged in commerce within
the meaning of the Act. I find, according to the allegations of the complaint and
as decided in Case No. 23-RC-1536, July 8, 1960 (not published in NLRB vol-
umes), that: Austin Concrete Works, Inc., the Respondent herein, is a Texas cor-
poration engaged in the manufacture and sale of culverts, sewer pipe, telephone
conduit, and other concrete products at its only place of business in Austin, Texas;
during the year immediately preceding July 8, 1960, the sale of its products exceeded
$1,000,000 in value; among its principal customers are Southwestern Bell Tele-
phone Company and Western Electric Company; Respondent during that year sold
from $200,000 to $300,000 worth of telephone conduit to Southwestern Bell Tele-
phone Company and Western Electric Company, multistate firms; and the Board
may exert its jurisdiction. There is no showing, nor do I believe, that the business
of Austin Concrete Works, Inc., changed in the least in the interim between the
date of the Decision and Direction of Election in Case No. 23-RC-1536, and the
time of the issuance of the complaint in the instant case.
The Respondent is, and has been at all times material hereto, engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Brotherhood of Carpenters & Joiners of America, AFL-CIO, is, and has
been at all times material hereto, a labor organization within the meaning of Section
2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
As mentioned above, counsel for the General Counsel, during the course of the
hearing, moved to dismiss those allegations of the complaint going to violations of
Section 8(a)(3).'
Thus, now to be decided is whether or not the Respondent Employer has been and
now is engaged in violations of Section 8(a) (1) of the Act.
Subsequent to the Decision and Direction of Election by the Board in Case No.
23-RC-1536, an election was conducted pursuant thereto to determine whether or
3 During a short recess on the afternoon of the session of December 7, it was agreed that
counsel for the General Counsel and counsel for the Respondent would attempt to resolve
or modify any discrepancies in the information so far obtained by the General Counsel
with regard to discrimination against certain named employees. Up until this point,
counsel for the Respondent had refused to produce records showing hours of employment
and other pertinent data until the General Counsel rested his case At the opening of
the session of December 8, counsel for the General Counsel stated, and his statement was
agreed to by counsel for the Respondent, that the parties by counsel had examined all of
the records of the Company at the company offices ; that the records were found to be
accurate ; and that the mistake on the part of General Counsel in regard to Section
8(a) (3) violations was based on partial records furnished by the Respondent. Counsel
for the General Counsel, and I think justifiably so, said that had counsel for the Respond-
ent produced the records at a previous time and had shown theme to him (counsel for
the General Counsel) at the beginning of the proceeding when requested and when
directed by the Trial Examiner, time and expense would have been saved for everyone
concerned Counsel for the General Counsel stated
The records do not reflect the information that General Counsel thought they would
reflect. It is unfortunate that we have wasted 3 days trying an issue that we could
have settled had we seen the records some time before this proceeding. I ask the
Trial Examiner to dismiss that portion of the complaint which alleges the 8(a) (3)
violation. I have spoken to Mr. Leigon [representative of the Union] . . . and he
is in accord with what I have said.
AUSTIN CONCRETE WORKS, INC. 189
not the employees in the appropriate bargaining unit 2 desired to be represented by
the Union. The result of the election- conducted on July 29, 1960, showed that of
50 eligible voters, 26 votes were cast for the Union, 21 votes were cast against it,
and there, were 3 challenged ballots. The Union therefore was selected by the
majority of the employees as the bargaining representative of the employees in the
unit.
On my findings above that the Union is a labor organization within the meaning
of the Act, without regard to the uncontradicted testimony of its representative at
this hearing, it is well known that the Carpenters Union as such is a bona fide labor
organization. The contention of the General Counsel that the agents and officers
named within the complaint are 'supervisors within the meaning of the Act is prac-
tically uncontradicted. Guiton Morgan, is president, Fred Hanna is plant super-
intendent, Roy Winans was an assistant or a special assistant to Morgan, both in
Austin and in other places. Winans came into Austin at the request of Morgan
to assist in the resolution of misunderstandings or problems that might exist in con-
nection with the Union. Clyde Mordica certainly, on the record herein, issued
orders and was a supervisor. There is no contradictory testimony in regard to
each of these men having supervisory authority. As stated by Morgan: "We have
a general manager, Harold Robinson, and we have Mr. Clyde Mordica and Mr.
Fred Hanna who is plant superintendent."
Perry D. Leigon, an organizer for the Union, had his first meetings with em-
ployees of the Respondent in early March 1960; he talked to one employee and it
was decided to conduct a meeting or some meetings in an effort to organize the em-
ployees into the Union.3 On March 8, some eight or nine employees were present
at a meeting and some union authorization cards were signed. Others present were
given blank cards. Another meeting was held on March 12, and subsequent meet-
ings were held on March 19 and 23 (there were two meetings on March 19), and
subsequently, according to Leigon, there were some 18 or 19 meetings from March
through September culminating in some 7 or 8 meetings after September. After
the Board-conducted election held on July 29, the Union was certified as the repre-
sentative of the employees in the above-described unit on November 1.
Thus it is clear that union interest was displayed by employees in early March
1960, and continued after the date of the Board-conducted election in July of that
year. The Union, through signed authorization cards, was convinced it had a ma-
jority, and this conviction was sustained by the result of the Board election. In the
meantime, the Company was apprised of the interest of certain of its employees in
the Union, and exercised its right to state its reasons why it felt its employees were
better off without a union.
The Company began the statement of its position in regard to the inadvisability
of its employees joining a union by a letter from President Morgan to each em-
ployee, under date of June 30, 1960, sent in both English and Spanish, pointing
out the difficulties contained within the operation of construction work and also
the longevity of employment of employees with the Company and their security,
referring particularly to a retirement trust fund set up, a fully paid-for retirement
plan paid for by the Company, and stating that the employees would receive letters
discussing the retirement trust within the next few days. By letters under date of
July 1, 2, 5, and a second letter July 5, employees were advised by the vice presi-
dent and trust officer of the Capital National Bank of their rights under the retire-
ment trust fund set up for them by the Employer and the conditions thereof. Each
one of these letters sent to each employee was either in English or in Spanish-in
other words, the same letter was sent either in Spanish or both to each employee
within the bargaining unit.
Beginning on July 14, President Morgan addressed a series of letters to each em-
ployee, either in Spanish or English or both, followed by letters on July 15, 16, 18,
19, 20, 21, 22, 23, 25, 26, 27, and 28.
In substance this series of letters, without quoting each one, carries the plain in-
tent of the employer to indicate its opposition to the Union, with mention of exist-
ing benefits from the Company to employees without recourse by employees to
"outside representation." Reference is made therein to the retirement trust fund,
and the individual benefits obtained through long service by each employee is care-
fully called to the employee's attention. Although close to the line, I have decided
and find that the letters, up until the one I am about to mention, were those of the
2All production and maintenance employees at the Employer's Austin, Texas, plant,
including janitors, truckdrivers, storeroom clerks, shipping and receiving clerks, but ex-
cluding office clerical employees, guards, watchmen, and supervisors as defined in the Act.
3 Unless noted all dates hereafter are for the year 1960
190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
kind contemplated in Section 8(c) of the Act , allowing an employer the right to
express his views as to why he does not favor his employees to be represented by a
union.
By letter dated July 18 , a copy of which was sent to each employee within the
bargaining unit, President Morgan wrote:
You can talk to me at any time about your problems. Let's keep it that
way instead of putting a union business agent between you and me.
Do you know what collective bargaining means? It means that a union
business agent who does not work here would try to make a contract with the
Company setting your wages , hours, and working conditions . Does he know
more about what you want than you do ? Do you want to accept whatever this
outsider says you should take-and not be able to change it for as many years
as the contract provides?
Do you think your Company 's management would give as much to you
when a union business agent asks for it as when you speak for yourself? I pre-
fer to deal with you and other people I know and like, and work with every day.
This letter of July 18 would , I think , be permissible under Section 8(c) except
for the last paragraph . The innuendo indicates that the employees would not obtain
as much from management as they might if not represented by the Union.
I feel, too, that the Employer overstepped the line in its final letter to employees,
on the eve of the election, dated July 28, signed by President Morgan, which reads
as follows:
Jui,Y 28, 1960.
Your Company wants every employee to exercise his right as a free American
to vote in the union election.
If there is any reason why you cannot vote between 4:30 and 5:30 on the
afternoon of Friday, July 29, let me know so we can arrange for you to vote
separately according to N.L.R.B. procedure.
To encourage every employee to vote in the election, Austin Concrete Works
will give a free television set by lottery to the lucky voter. To win, you must
vote in the election; but it does not make any difference whether you vote for
or against the Union.
After you have voted you should pick up your timecard and drop it in the
T-V-Lottery box. After the election one card will be drawn out of the box
and that employee will win the T-V.
Brought to the attention of each employee on the eve of the election was the fol-
lowing notice by the Respondent:
On July 29 (tomorrow) an election will be held at the plant under N.L R.B.
supervision from 4:30 to 5:30. Immediately after the election a drawing will
be held to see which lucky voter wins a television set. So please ask your wives
or the people you ride with to come for you about 6 o'clock as these matters
will not be over until that time.
The record discloses that there was fairly good attendance at the union meetings
held beginning in March and continuing through the date of election in July, and at
the same time the Company was careful to supply copies of the letters sent out in
July to each of the employees in the bargaining unit. Thus, the employees were well
aware of what was going on during these times in connection with union organization
efforts. Employee Ralph Arevelo testified to a speech made by President Morgan at
a meeting of employees on or about June 14, at 4:15 p.m., at which Robinson,
Mordica, and Hanna also were present. At that meeting Morgan anounced that he
was going to give the employees a 10-cent hourly increase in wages and a 1-week
paid-for vacation, something new which the employees had not previously enjoyed.
At a prior meeting about the middle of March, President Morgan had spoken to the
employees and indicated his knowledge that they were interested in the efforts of the
Union to organize the employees. Morgan indicated that he was opposed to a
union. Also, during the times prior to the election in July, there was considerable
discussion among individual employees concerning the Union . I think it is clear that
the Company by Morgan, Hanna, Mordica, and Winans had knowledge of union or-
ganizational efforts at all times between March and the date of the Board election
in July.
Section 8(c) contemplates the expressing of any views , argument, or opinion, or
the dissemination thereof if such expression contains no "threat of reprisal" or
"promise of benefit."
It seems to me, and I find, that the method adopted by the Company for adver-
tising the raffle of a television set at a Board -conducted election implicitly conveyed
AUSTIN CONCRETE WORKS, INC. 191
a promise of benefit, and constituted inducement, rather than mere encouragement
for eligible employees to vote. It is wrong, I believe, to try to convert a formal Board
election into a lottery, or make it an adjunct thereof; I can conceive that some em-
ployees might reward the generosity of the employer by a vote in favor of its an-
nounced opposition to the Union. The principle would be the same were the prize
offered a pink Thunderbird or a gold-plated Cadillac, or one silver dollar. It has
been said that the relationship of cause and effect can exist even when an inducing
communication is in terms courteous or even precatory. N.L.R.B. v. Jarka Corpo-
ration, 198 F. 2d 618, 621 (C.A. 3).
The intent of the Employer to induce employees to vote against the Union (rather
than merely to encourage them to vote) is disclosed by substantive evidence on the
whole record, including the timing of all of the letters or communications sent to the
employees. Here, therefore, as in any other situation presented under the Act,
"appraisal of the effect of these statements in their setting," as well as the inferences
reasonably to be drawn, as to the impression the Company intended to convey, is the
question to be resolved. Mavis Lane v. N.L.R.B., 186 F. 2d 671 (C.A. 10); N.L.R.B.
v. Beatric Foods Company, 183 F. 2d 726, 728 (C.A. 10); N.L.R.B. v. Local Union
No. 55, and Carpenters' District Council etc., 218 F. 2d 226, 231 (C.A. 10).
Interrogation, Promised Benefits, and Granted Benefits
Going now to the testimony of the several witnesses called by the General Counsel,
I find generally each of them to be a credible witness. In resolving questions of
credibility, I have taken into account that the witnesses called by the General Counsel,
so far as I could determine, were not familiar with formal procedures. Therefore,
I give evidential weight to each of the witnesses called by the General Counsel in
regard to the circumstances under which they were led or discouraged regarding
union membership.
Morgan testified that the duties of Winans in this particular assignment included
talking to the men to discover their problems, and to report back to Morgan.
Chenco Flores, an employee of the Respondent for about 8 years, testified that
he had had a conversation with Supervisor Mordica about 2 weeks before the Board
election and that Mordica had asked him if he had made up his mind as to what he
was going to do when the election came up-that he told Mordica he had not because
he did not have enough information about the Union and did not know what it could
do for him. Flores said further that Mordica told him that if he had anything he
wanted, why did he not go to Morgan, or somebody, to see if he could settle the
difference; he said that Mordica remarked that he was not telling him what to do or
ordering him what to do and that it was mainly up to him (Flores) to decide. Flores
further said that about a week or two before June 14 Mordica had asked him it he had
signed for the Union.
Further, this witness testified that about 4 weeks before the election Winans talked
to him in the presence of Eulalio Rodriguez; he told Flores that he had already talked
to employees Frank Flores and Pete Alba, and asked him if he knew what he was
getting into by joining the Union, to which Flores said he did not, that he had never
belonged to a union before, whereupon, he said, Winans told him that "there was not
a law in Texas that could make the Union come through with all it promises," that
the main thing the Union wanted was the fee and that the employees could all get
together and go to Mr. Morgan and he could probably settle the differences by giving
the employees a raise or something like that. In response to a question put by
General Counsel, "Did Mr. Winans tell you what he was doing at the plant?" Flores
said:
He told me Mr. Morgan had sent for him; he -paid for his ticket to fly, and he
told me, "I am here because he asked me to talk to you because, since I have been
working for this Company and know most of you and can speak Spanish" he
said he could talk to most of the men.
Employees Tom Cavazos said that Winans has asked him about the Union and
what was going on and said that Morgan wanted to find out what was wrong; Eulalio
Rodriguez testified that about 3 or 4 weeks before the election Winans told him he
would like to know what the trouble was "that was going on in the plant" and that
Mr. Morgan had sent for him, Winans, because he spoke Spanish and was a friend
and had asked Winans to find out why the employees wanted to bring the Union in,
further interrogated him as to whether he had read anything concerning the Union,
and said that perhaps it was the new workers that wanted to "bring in the Union";
that he responded to Winans by saying that "I think that is all right because you don't
do nothing for us."
192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel submits the testimony of Flores, Cavazos, and Rodriguez proves
a violation of the Act on the overall consideration of the time and place and general
atmosphere in which the questions were asked because, he says, the facts disclose that
the Employer was antiunion and that at the time the union organizational campaign
was at its height. The only conclusion to be drawn under such circumstances, he
contends, is that the interrogation "reasonably" tended to restrain and interfere
with the rights guaranteed employees by the Act. In this respect he relies upon
Blue Flash Express, Inc., 109 NLRB 591.
Alleged Change of Method of Informing Employees Concerning
Overtime To Be Worked
I have examined quite closely the documentary evidence in the record concerning
overtime hours worked and cannot infer from such records that the change, as alleged
by General Counsel, in the method of informing employees had anything whatsoever
to do with the actual assignment of overtime on a discriminatory basis as between
those employees who had indicated their interest in the Union and those who were
opposed to it. See below.
Benefits Granted Without Negotiation With the Union
The Company granted an across-the-board pay raise and a 1-week vacation plan
on or about June 20. It is clear from the record that at this time the company repre-
sentatives were aware of union activity. However, even though the Union at that
time had no representative rights the Company, it seems to me, was not free at that
time to grant what the General Counsel calls a unilateral increase in benefits. There
had been no history, at this time of negotiation or demand by the Union for wage
increases or vacation grants or any other benefits which could arise through the
process of collective bargaining. However, the Union had filed a petition for repre-
sentation on April 13, and the Company had notice thereof. The General Counsel
correctly says that the Board has long held that benefits granted for the purpose of
defeating the Union are in violation of the Act. I quite agree.
There is uncontradicted evidence through witnesses Flores and Rodriguez that
they were told by responsible representatives of the Company that they did not have
to have a union but to just get together and talk to Mr. Morgan about pay or
vacations and settle it without the Union. The same witnesses, together with Gomez,
were told that if they joined the Union they could not go into the office and talk
to Mr. Morgan.
There is no question but that Winans was brought in as a special assistant to the
president of the Company and that Winans remarked that he had found out that
someone desired a union, but if the Union came into the Company the employees
could not talk directly to President Morgan. There is no question, either, that
Gomez said that Winans told him that he should be careful as to how he voted
"because I had a good job now." I must infer that the remarks of Winans to
Gomez constituted a threat of possible discharge if he joined the Union.
Concluding Findings
Violations of Section 8(a) (1), in derogation of the rights guaranteed to employees
by Section 7 of the Act, are not derivative solely from those alleged violations of
Section 8(a)(3) which have been dismissed on motion of the General Counsel.
I believe that the General Counsel has sustained the burden of proof in regard to
violations of Section 8(a) (1) of the Act, except on the overtime question. In mak-
ing this finding, I have considered the letters from the Company to its employees,
the letters from the trustee of the employees' fund to the employees of the Company,
and the proven acts of interrogation and veiled threats as reflected by the testimony
of credible witnesses.4 Further than that, I cannot disregard the unilateral granting
of benefits at a time when the Employer knew that some of its employees, at least,
were engaged in union organization activities.
The testimony here shows that the Respondent changed the method it employed
to inform employees concerning overtime work assignments. Prior to the July 29
election, overtime assignments for the following day usually were posted with the
schedules of work for individual employees for the following day, such posting
being on the plant bulletin board. After the election the testimony shows that
Superintendent Hanna and the foremen advised each man individually when he
would be needed to come in early (for overtime work) on'the following morning.
4 The Respondent called no witness, but rested at the end of the General Counsel's case.
AUSTIN CONCRETE WORKS, INC. 193
The facts as described by Ralph Arevelo are uncontradioted and admitted. The
General Counsel contends that the Respondent initiated the change in method of
advising of overtime work in retaliation for the employees choosing the Union as
their representative. He says further-that this unilateral act on the part of the
Company occurred after the employees had demonstrated their desire to be repre-
sented by the Union and therefore amounted to a violation of the Act, that is, a
Section 8 ( a) (1) violation.
I consider the matter in question to be a grievance rather than a bargainable
issue ; the employees ' complaint in this respect was expressed by witness Arevelo:
"They don't make much and your overtime give to the other men, sure it makes a
difference." I will not make a finding of a Section 8(a)(1) violation in this instance,
particularly since the allegations of violations of Section 8(a) (3), based on the
same situation , have been dismissed on motion of the General Counsel.
By the preponderance of evidence and the findings made thereon , I find that the
Respondent interfered with the rights of its employees guaranteed by Section 8(a) (1)
of the Act through written communications conveying antipathy toward the Union,
by interrogation, by promise of benefits, a threat of loss of a job if an employee
voted for the Union. and the unilateral granting of benefits for the purpose of dis-
couraging membership in the Union. Such activities constituted and do constitute
violations of Section 8 (a) (1) of the Act .5
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES , UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with the operations of the Respondent set forth in section I, above, have a
close , intimate , and substantial relation to trade , traffic, and commerce among the
several States and tend to lead to labor disputes threatening and obstructing com-
merce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices affecting
commerce , it will be recommended that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act. Specifically, I have
found that Respondent , in violation of Section 8(a) (1) of the Act, interfered with
the rights of its employees by communicating in writing to them its antiunion
position , by interrogating employees , by promising and granting benefits to em-
ployees, and by threatening an employee with loss of employment if he joined or
supported the Union . I shall , therefore , recommend that the Respondent be ordered
to cease and desist from engaging in such conduct , and further , that the Respondent
be ordered to cease and desist from discouraging membership in United Brotherhood
of Carpenters & Joiners of America , AFL-CIO, or any other labor organization, by
in any manner discriminating against them by such conduct.6
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent, Austin Concrete Works, Inc., is engaged in commerce, and
United Brotherhood of Carpenters & Joiners of America, AFL-CIO, is a labor
organization, all within the rheaning of the Act.
2. By interfering with, restraining , and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
5 N L.R B v. J. C Hamilton et al, 220 F. 2d 492, 494 (C A. 10) ("veiled threats") ;
N L R B. v Beatrice Foods Company, 183 F. 2d 720, 728 (C.A. 10) (benefits "less likely
to materialize") ; N.L R B. v. International Longshoremen 's & Warehousemen 's Union,
at al, 210 F. 2d 581, 584 (C A 9) ("implied threat") ; Lloyd A. Fry Roofing Company v.
N.L.RB., 222 F. 2d 938, 941 (C.A. 1) (employees "might be sorry") ; Armstiong Cork
Company v. NLRB , 211 F. 2d 843 (C.A. 5).
An order is justified here even though it may be true, as pointed out in the Respond-
ent's brief, that the president "lost, and be has accepted the defeat and. cheerfully
entered upon collective bargaining . . " Were no order entered, there would be no re-
straint against the engaging by the Employer in the future in the practices herein found
to be illegal.