Capitol Aggregates, Inc.

National Labor Relations Board - Board Decisions

Jun 22, 1971

191 N.L.R.B. 419 (N.L.R.B. 1971)

CAPITOL CEMENT DIV. OF CAPITOL AGGREGATES 419
Capitol Cement Division of Capitol Aggregates, Inc.
and United Cement , Lime & Gypsum Workers In-
ternational Union , AFL-CIO. Case 23-CA-3778
June 22, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND KENNEDY
On March 17, 1971, Trial Examiner William F.
Scharnikow issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
certain unfair labor practices, and recommending that
it cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Trial Examiner's
Decision. The Trial Examiner further found that Re-
spondent had not engaged in another unfair labor prac-
tice alleged in the complaint. Thereafter, the General
Counsel filed limited exceptions to the Trial Examiner's
Decision and a supporting brief, and Respondent filed
a brief in support of the Decision.
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 powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and briefs, and the
entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial'Examiner and hereby orders that Respondent,
Capitol Cement Division of Capitol Aggregates, Inc.,
San Antonio, Texas, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial Ex-
aminer's recommended Order.
activities for the purpose of collective bargaining or other
mutual aid or protection.
Pursuant to notice, a hearing was held in San Antonio,
Texas, on January 5 and 6, 1971, before me, the Trial Exam-
iner. The General Counsel and the Respondent appeared by
counsel, and the Union by its representative, and were
afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence upon the issues.
Since the hearing, counsel for the General Counsel and for
the Respondent have submitted briefs which have been duly
considered.
Upon the entire record in the case, and from my observa-
tion of the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent, Capitol Cement Division of Capitol Aggre-
gates, Inc., a Texas corporation, maintains its principal office
and place of business at San Antonio, Texas, where it is
engaged in the manufacture and sale of bulk cement, sand and
gravel, and ready-mix concrete, and in the oil import busi-
ness. During the last 12 months, the Respondent in the course
and conduct of its business has purchased goods and materi-
als of a value in excess of $50,000 from firms each of whom
have procured goods and materials of a value in excess of
$50,000 (including the goods and materials sold to the Re-
spondent), from points outside the State of Texas. The Re-
spondent concedes that it is engaged in a business affecting
commerce within the meaning of the Act and is subject to the
Board's jurisdiction.
II. THE LABOR ORGANIZATION INVOLVED
United Cement, Lime & Gypsum Workers, International
Union, AFL-CIO (herein called the Union), is a labor orga-
nization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Interference, Restraint, and Coercion Within the
Meaning of Section 8(a)(1) of the Act
On July 28, 1970,' the Union held an organizational meet-
ing which was attended by 4 of the Respondent's 80 hourly
employees. A second meeting was held on August 11. That
the Respondent was generally aware that the Union was
attempting to organize is shown by the fact that in a meeting
with the Respondent's supervisors sometime in August, the
Respondent's president, H. B. Zachry, cautioned the super-
visors against making any remarks to employees that might
be construed as violative of the National Labor Relations
Act. However, uncontradicted evidence in the case shows two
situations in which the Respondent did interfere with its
employees' exercise of their organizational rights during the
Union's campaign.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WILLIAM F. SCHARNIKOW, Trial Examiner: The com-
plaint alleges but the answer of the Respondent denies, that
the Respondent, Capitol Cement Division of Capitol Aggre-
gates, Inc., has engaged', in unfair labor practices affecting
commerce within the meaning of Sections 8(a)(1) and (3) and
2(6) and (7) of the National Labor Relations Act as amended,
29 USC Section 151, et, seq., by certain acts, including its
discharge of employee Jerry Reed on or about October 10,
1970, because he joined or assisted United Cement, Lime &
Gypsum Workers International Union, AFL-CIO (herein
called the Union), or because he engaged in other concerted
191 NLRB No. 92
1. Superintendent Laskowski and employee
Don Abel's lunchbox
Production Superintendent F, A. Laskowski, after telling
Plant Manager Wesley Bonifay what he intended to do,
opened the lunchbox of employee Don Abel, took three
signed union bargaining authorizations from the box, and
gave them to Bonifay. I find that, by these acts of Laskowski
and Bonifay, the Respondent interfered with, restrained, and
coerced its employees in the exercise of their organizational
All material events occurred in 1970
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rights and committed an unfair labor practice within the
meaning of Section 8(a)(1) of the Act.
2. The Respondent's application of the
no-solicitation and
no-distribution rules
The second situation in which the Respondent committed
an unfair labor practice involves its construction and applica-
tion of a no-solicitation and a no-distribution rule which have
been set forth in pamphlets distributed by the Respondent
among its employees since 1968. These rules provide that:
... [I]mproper conduct noted below is considered seri-
ous and may result in suspension or discharge for the
first offense:
*
(1) Verbal solicitation for any cause or purpose during
working hours.
(m) Any distribution of circulars or other printed matter
in working areas.
On their face, these rules, limited by their language to
"working hours" and "working areas," might appear to be
permissible.' But, as Manager Bonifay testified, the Respond-
ent has actually applied and enforced them, and still applies
and enforces them, as a prohibition against union solicitation
even during the employees' lunch periods because the em-
ployees are paid by the Respondent for these periods of non-
working time as part of their 8-hour day. In agreement with
the General Counsel, I find and conclude that by thus con-
struing, maintaining, and applying rules (1) and (m) as a
continuing prohibition of union solicitation during their non-
working, albeit compensated, time the Respondent has inter-
fered with, restrained, and coerced its employees in the exer-
cise of the organizational rights guaranteed by Section 7 of
the Act and thereby has committed an unfair labor practice
within the meaning of Section 8(a)(l).'
B. Other Alleged Interference, Restraint, and Coercion
1. Grant of merit wage increases
Paragraph 7(b) of the complaint alleges that the Respond-
ent committed an unfair,labor practice in that, "since on or
about August 1, 1970, Respondent granted wage increases to
its employees, contrary to its past practice and policy regard-
ing periodic wage increases, for the purpose of thwarting the
union activities of its employees." To support this allegation,
the General Counsel argues in his brief that the Respondent's
grant of 19 merit wage increases in August 1970, followed by
an additional 13 in September and 2 in October, was "trig-
gered" by a statement in a letter from President Zachry to
Manager Bonifay on August 4, 1970 that "You will continue
our policy of reviewing his productivity with each employee
on his birthday and give merit wage increases where de-
served." On this basis, the General Counsel contends that
"The Respondent altered its wage practice in response to the
Union's organizational activity in violation of Section 8(a)(1)
of the Act."
2 See Peyton Packing Company, 49 NLRB 828, 843, 844, quoted with
approval by the Supreme Court in Republic Aviation Corp. v N.L.R.B., 324
U.S. 793, 803.
' N.L.R.B. v. Monarch Machine Tool Co., 210 F 2d 183, 187 (C.A. 6),
cert. den 347 U S 967; N.L.R.B. v. Essex Wire Corp, 245 F 2d 589, 593
(C.A. 9); Ohn Industries v. N.LR B., 191 F 2d 613, 616-617 (C.A 5), cert.
den. 343 U.S. 919
The evidence does not support the General Counsel's con-
tention. The August-October 1970 merit wage increases do
not indicate any change in the Respondent's practice in grant-
ing such merit increases. In the corresponding months of
1969, the Respondent had granted 27 merit increases in Au-
gust, 8 in September, and 1 in October. Furthermore,
Manager Bonifay testified, and I credit his testimony, that it
has been the Respondent's purpose to give consideration to
a possible merit increase for each employee at least once a
year; that, for this purpose, it has been the Respondent's
practice to have his immediate supervisor "review" the em-
ployee's performance within a month of his birthday each
year; that the supervisor may recommend a merit raise sub-
ject to the approval of the departmental superintendent; but
that inadvertent delays in this procedure (in 1969 as well as
in 1970) have resulted in lags in the effective dates of the merit
raises approved. On this evidence, I find no indication that
the number of the 1970 wage increases shows any change in
the Respondent's practice nor therefore that the 1970 in-
creases were given in response to the Union's activity. Ac-
cordingly, the allegations of the complaint based upon the
1970 wage increases are dismissed.
2. Superintendent Hackfield's conversation
with employee Jerry Reed
Paragraph 7(c) of the complaint alleges that the Respond-
ent committed an unfair labor practice in that, "On or about
August 15, 1970, Respondent, by and through its Mainte-
nance Superintendent, J. K. Hackfield, coerced employees by
telling them they should abandon their union activities and
report their employment problems directly to Respondent, in
groups."
Sometime in August 1970, Maintenance Superintendent J.
K. Hackfield had a conversation with employee Reed, an
operator in the control room in which Hackfield asked Reed
either "what was going on" or "how is it going?" At the time,
Hackfield, Production Superintendent Laskowski (who was
Reed's superior), and a number of the foremen had been
speaking among themselves about the current union activity
and although no names of employees were mentioned in these
conversations, Hackfield admitted in his testimony that he
thought there was a possibility that Reed was involved. Reed
testified that in their August conversation, Hackfield asked
him "what was going on" and "why didn't we go as a group
to [President] Zachry instead of going to these union meet-
ings, and tell [Zachry] our problems out there," and that
Hackfield also told Reed that, when a union attempted to
organize during his previous employment elsewhere with
Zachry, Zachry had "told him he wasn't going to have it
because he had one barrel of money for himself, one for the
Company and one for fighting the union."
Hackfield testified, however, that in his normal morning
visit to the control room "to kind of see what is going on, [to]
see how the plant is functioning," he asked Reed who was
then on duty, "Well, how is it going?" that Reed said, "he
didn't think it was going too good"; that after an interruption
of the conversation, Reed told Hackfield "he felt like ... he
wasn't particularly being treated fair," and "that it wasn't a
matter of wages"; and that Hackfield then suggested that, in
view of the Company's "open-door policy," Reed should take
his dissatisfaction beyond his immediate supervisor "on down
the line" as far as President Zachry, as had other employees
who had "usually [gotten] a fair, honorable and equitable
answer." Hackfield denied having told Reed anything "about
3 barrels of money" that Zachry had, or that in his previous
employment with Zachry he had ever, talked with Hackfield
about a union.
CAPITOL CEMENT DIV. OF CAPITOL AGGREGATES 421
Upon a consideration of this evidence, I generally credit
Reed's version of the conversation . I find specifically that
Hackfield was speaking to Reed about the Union, that he did
suggest to Reed that, instead of going to the union meetings,
the Respondent 's employees should consider bringing their
problems to President Zachry who would treat them fairly,
and that he did tell Reed that Zachry was opposed to unions
and would fight the Union. But, in the framework of my
findings in the present case, I cannot conclude as the General
Counsel urges , that Hackfield 's statements were "coercive"
or an interference with , or restraint upon the employees'
exercise of their Section 7 rights. For, as will appear , I do not
believe the evidence supports any conclusion that the Re-
spondent discriminated against any of its employees includ-
ing Reed, or committed any unfair labor practice except the
two already found. And the Board has held that in the ab-
sence of any promise or threat by an employer, or evidence
of such a pattern of unfair labor practices as would lend a
coercive color, an employer's suggestion to his employees
that they rely upon him rather than a union for fair dealing
with respect to their grievances or problems , is not an unfair
labor practice.' Accordingly, I dismiss the allegations of para-
graph 7(c) of the complaint to the effect that the Respondent
committed an unfair labor practice within the meaning of
Section 8(a)(1) of the Act, through Superintendent Hack-
field's remarks to employee Jerry Reed.
C. Jerry Reed's Discharge
Jerry Reed was employed by the Respondent as a control
room operator from August 1964 until he was discharged on
October 10, 1970, following an incident in which Reed
watched a TV program while at work in the control room on
Sunday, October 4. He attended the second union meeting in
the beginning of August 1970, signed a union card, and tele-
phoned 15 or 20 of the employees urging them to join the
Union. Maintenance Superintendent Hackfield (who was not
Reed's supervisor) admitted that he suspected that Reed was
involved in the Union 's organization. But Manager Bonifay
who made the decision to discharge Reed after questioning
supervisors and other employees as well as Reed, denied that
he knew either that Reed had joined the Union or was in-
volved in the Union 's organizational campaign . Production
Superintendent Laskowski, who had taken union cards from
employee Abel's lunchbox , who was Reed 's superior, who
took part in the investigation of the TV incident involving
Reed and who was himself discharged by Bonifay following
the TV incident, did not testify. Nor did any of the other
supervisors or employees who were questioned by, or made
reports to, Bonifay concerning the TV incident and its back-
ground . Of these persons, Control Room Foreman Bill Mas-
sey (Reed's immediate superior) and Don Abel (a laboratory
employee) who were apparently also involved in the TV inci-
dent had also been discharged because of it . Nor did any of
the parties in the present case produce, or explain the nonpro-
duction of, testimony from control operator Joe DiLao or
from laboratory employee Felux who, in one way or another,
were involved in the TV incident or made reports to Bonifay
about it . As a result, the only witnesses to testify about Reed's
discharge and its background were Reed and Manager Boni-
fay. Necessarily , therefore, the findings made and the conclu-
sion hereinafter reached , are based upon a consideration of
the testimony of these two men.
The control room, in which Reed worked under Foreman
Bill Massey and Production Superintendent Laskowski when
they were in the plant , contained the various instruments and
gauges which reflected the operations of the production
equipment throughout the plant and thus determined
whether the equipment was efficiently and safely operating.
Whoever was in charge of the control room , therefore, was
in effective charge of the entire plant , excluding the labora-
tory. At times, in the absence of both Superintendent Las-
kowski and Foreman Massey , Reed served as acting foreman
and thus occupied this important and responsible position.
Obviously , it was essential that the control room foreman or
acting foreman , and also the operators , be free of distraction.
Although there were magazines and technical journals in
the control room which the men apparently read, only once
did Manager Bonifay give exceptional and specific permission
for the men in the plant, including the control operators, to
view a TV program and that was on the occasion of the
history-making "first moon landing" in July 1969 . Since then,
Bonifay has refused to permit TV viewing in the plant as have
Supervisors Tom Vick and Marbach in the laboratory.
On Saturday, October 3, however, Jerry Reed asked and
received permission from control room Foreman Massey to
bring in a TV set the next day to watch a Dallas Cowboy
football game , not realizing that Massey would be absent that
Sunday as would also Superintendent Laskowski , and that
Reed would be acting foreman in charge of the control room
and the general operation of the equipment in the plant.
Before Reed came to work at 8 a .m., that Sunday (October
4), control operator Joe DiLao brought in a portable TV set
and left it in the laboratory . At about noon , when the game
began , the set was brought into the control room where Reed
plugged it in and watched the game. At 3:25 p.m., shortly
before the end of the game , Reed took the set back into the
laboratory where, without plugging it in , he left it on a filing
cabinet . Reed returned to the control room and did not again
come into the laboratory nor watch any program on the set
the rest of the day. As Reed was leaving the TV set in the
laboratory, he saw Superintendent Laskowski come into the
plant gate. Shortly thereafter, he also saw Laskowski in the
control room where Laskowski spoke briefly with him and
control operators DiLao and Bostic but said nothing about
the TV set.
On the following Tuesday, October 6 , Superintendent Las-
kowski informed Manager Bonifay that laboratory employees
John Felux and Joe DiLao had told him there had been a TV
set in the plant on Sunday and that DiLao had said Foreman
Massey had given them permission . On Wednesday or Thurs-
day, October 7 or 8 , Bonifay questioned both Reed and Fore-
man Massey . Reed admitted having watched the TV program
in the control room but not in the laboratory and, with Fore-
man Massey 's corroboration , said that he had received Mas-
sey's permission . Massey was discharged , apparently later the
same day , for having granted this permission to bring the TV
into the control room . According to Reed , however, Bonifay
told him that he could do nothing at this point to Reed
because Reed had had Massey 's permission.
But in the meantime, Bonifay had begun and continued his
investigation of the matter by questioning other employees
and several of the supervisors . The plant guard told Bonifay
that DiLao had brought the TV into the laboratory. Labora-
tory employees Don Abel and John Felux also told Bonifay
that Reed had in fact turned on and watched the TV in the
laboratory with Abel. And Laboratory Supervisors Tom Vick
and Marbach told Bonifay that only a week before this, Abel
4 Engineered Building Products, Inc., 162 NLRB 649, 650 (fn. 1), 651, had been refused permission to bring a TV set into the labora-
654-655; American Building Maintenance Co., 166 NLRB 142, 143-146; tory. On their recommendation, Abel was discharged on Fri-
Georgia Highway Express, Inc., 170 NLRB 162. day, October 9.
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Reed worked the shift beginning at midnight that same
night and at 7 o'clock in the morning of Saturday, October
10, was taken into Bonifay's office by Superintendent Las-
kowski and again questioned by Bonifay who started out by
telling Reed he thought Foreman Massey had not actually
given Reed permission to bring the TV set into the control
room but was merely taking the blame for him. Bonifay asked
Reed again if he had watched the TV in the laboratory and
when Reed denied it, told Reed that Abel said he had. Boni-
fay also told Reed that the guard had said Reed carried the
TV set out to the car and Reed denied this. Finally, Bonifay
asked Reed way he did not leave the TV in the control room
and not bring it into the laboratory, and Reed said he did not
want the set in the control room after the ball game. Bonifay
then told Reed to go,home because he wanted to speak to
some of the other operators:-
When Reed reported for work again just before midnight
on Saturday, October 10, -Superintendent Laskowski handed
him a notice that he had been "discharged with cause" signed
by both Laskowski and Manager Bonifay and giving as the
reason for the discharge: "Did not tell the truth while being
questioned about a television in the plant on 10/4/70. Ques-
tioned by Bonifay and Laskowski." When he handed this
notice to Reed, Laskowski said, "I have something to do. I
don't like it. It's not my idea. And I might be next, but we
had to let you go."
Laskowski's fear for his own job was fulfilled. Shortly
thereafter, Laskowski was asked by Bonifay to resign and did
resign because, as Bonifay credibly testified, Laskowski "had
let his whole organization get out of hand" by letting his
foreman, Bill Massey, "make such. a decision" as to permit
a TV to be brought into the plant. Thus, as an aftermath of
the TV incident of October 4, Bonifay discharged not only
Reed but also Foreman Massey, Superintendent Laskowski,
and laboratory employee Don Abel. -
From Bonifay's testimony, it appears and I find that, al-
though he consulted Superintendent Laskowski and labora-
tory supervisors Vick and Marbach, it was Bonifay who made
the decisions to discharge Reed, Foreman Massey, and Abel
after questioning them and various other employees about, the
TV incident. In brief, Bonifay testified that, upon Abel's ad-
mission following an initial denial, Bonifay decided to dis
charge Abel for watching at least part of a TV program in the
laboratory although he had been refused permission to do so
only a week earlier by the laboratory supervisors; that Boni-
fay decided to discharge Foreman Massey for having admit-
tedly given Reed permission to watch the Sunday TV pro-
gram in the control room; and finally that he decided to
discharge Reed. because of Reed's special responsibility , for
the plant as acting foreman and what Bonifay regarded as his
unsatisfactory replies to Bonifay's questions concerning ^ his
conduct in the light of information supplied by other em-
ployees.
Thus, according to Bonifay, there were two grounds for
Reed's discharge. As to the first, Bonifay explained that at the
time of the TV incident Reed was himself acting as foreman
in virtual charge of production operations and that, regard-
less of whether he had received permission from Foreman
Massey, it "showed poor judgment on his part ... even to ask
to bring a [television set into the control room] ... for the
simple reason that it does distract the employee that is there,
and we do not want him distracted. We want him to concen-
trate on his business so that we can have the machinery
operated properly." As to the second, related reason ,for
Reed's discharge, Bonifay testified that he decided to dis-
charge Reed also because, after questioning Reed, Massey,
Abel, and the other employees already mentioned, he be-
lieved (as broadly stated in Reed's termination notice) that
"Reed did not tell the truth while being questioned about
[the] television in the plant on 10/4/70." In this connection,
Bonifay testified specifically that he was impressed by state-
ments made to him by employees Felux and Abel that Reed
not only watched the TV program in.the control room but,
contrary to Reed's denial, also turned the set on and watched
it along with Abel in the laboratory, the one area of-the plant-
which was not under Reed's or Massey's jurisdiction. Insist-
ing that these were the reasons for his discharge of Reed,
Bomfay denied that-he knew of, or discharged Reed because
of, Reed's having joined the Union or his participation in the
Union's organizational activity.
The General Counsel attacks the explanation thus given by
Bonifay for Reed's discharge. In part, he relies upon Superin-
tendent Hackfield's admission that Hackfield and other
supervisors suspected Reed was organizing for the Union,
and his argument is that Bonifay must have at least shared
in such a suspicion and was therefore motivated by it in
discharging Reed. But the main thrust of the General Coun-
sel's attack upon Bonifay's explanation of Reed's discharge is
presented by a combination of arguments relating to Abel. As
the General Counsel pointed out during the hearing and now
does also in his brief, the Union's unfair labor practice charge
giving rise to the present case alleges that the Respondent
discriminatorily discharged Abel, as well as Reed, because of
their union activities. But, after investigation, the Regional
Director issued the complaint now before the Board, alleging
only that Reed was discriminatorily discharged. At the hear-
ing, the General Counsel explained that, during investigation
of the charges, Abel had given the General Counsel two
successive affidavits, in the first of which he had stated that
he had riot watched the TV in the laboratory but in the second
of which he admitted that he had done so. According to the
General Counsel, the Regional Director omitted Abel's dis-
charge from the complaint because of his original "untruthful
affidavit" and the Regional Director's unwillingness to pro-
vide a Board remedy for an untruthful complainant.5 In this
unusual setting, the General Counsel makes what are in sub-
stance three related arguments. The first is that,'since the TV
was brought into the plant with Foreman Massey's express
permission, it is incredible that the discharge of either Reed
or Abel was in fact based upon his having watched the TV
in the plant. The General Counsel's second argument is that
in view of this and since Bonifay as well as Superintendent
Hackfield must have suspected Reed's involvement in the
Union's organizational activity, and since Abel's union' ac-
tivity was obviously known to Bonifay because' Superinten-
dent Laskowski had given him the union cards taken from
Abel's lunchbox, it follows that Bonifay's discharges of both
Reed and Abel (although Abel ' was not mentioned in the
complaint) were actually motivated by their known or sus-
pected union activity. The General Counsel's third argument
is that Bonifay could not reasonably rely, 'and it therefore
would appear that he did not actually rely, upon Abel's state-
ment implicating Reed in turning on and watching the TV
with Abel in the laboratory since Abel, in making this state-
ment to Bonifay, contradicted an earlier statement to the
contrary and should have appeared as untrustworthy to Boni-
fay as he had to the Regional Director.
5 There is no indication in the record that the Respondent knew of these
affidavits or their inconsistency, nor therefore that at the time of discharging
Reed in partial reliance upon Abel's statements concerning Reed, Bomfay
had any reason to doubt these statements. The affidavits were admitted in
evidence after my expressing doubt as to their relevance and only after
Respondent's counsel withdrew his original objection to them and, at the
General Counsel's urging, stipulated to their admission
CAPITOL CEMENT DIV. OF CAPITOL AGGREGATES
Upon my view of the evidence, these attacks by the General
Counsel upon Bonifay's explanation of Reed's discharge are
not persuasive. Not only do I credit Bonifay's testimony that
he did not know of Reed's connection with the Union's orga-
nizational activity, but I would find that even if Bonifay
suspected it, Reed's turning on and watching the television
set in the plant while he was acting as foreman would still
furnish strong and credible grounds for Bonifay's discharging
him. As for the General Counsel's argument attempting to
link Reed's discharge with Abel's discharge on the assump-
tion that Abel's discharge has been shown by the evidence to
have been discriminatory, the short answer is that, in view of
Abel's apparent disregard of his recent warning against
watching TV in the laboratory, the evidence would not sup-
port a finding that Abel was discriminatorily discharged. But
in any event the complaint does not allege a discriminatory
discharge of Abel, the Respondent was not called upon to
defend itself against any such accusation of unfair labor prac-
tice, and such a possible issue was not in fact litigated. Fi-
nally, as to the General Counsel's argument that the evidence
shows Bonifay could not reasonably have relied upon, and
therefore did not actually rely upon, Abel's implication of
Reed in the laboratory, the General Counsel ignores the fact
that, according to Bonifay's testimony (which I credit), Boni-
fay relied not only upon Abel's statement but also upon em-
ployee Felux's statement to the same effect.
Upon the foregoing consideration of the evidence and of
the arguments of counsel, I find and conclude, in agreement
with Manager Bonifay's testimony, that the Respondent dis-
charged employee Jerry Reed on October 10, 1970, because
Reed as acting foreman had himself watched, and permitted
other employees to watch, a television program in the plant
during working time on October 4, 1970, and because Boni-
fay, after questioning Reed and other employees, believed
that Reed "did not tell the truth while being questioned"
about the incident. I further find and conclude that, in dis-
charging Reed, the Respondent did not discriminate against
him because he had joined and assisted the Union or engaged
in other protected concerted activities, or because it suspected
that he had done so. I shall therefore dismiss the allegations
of the complaint that the Respondent, in discharging Reed,
committed an unfair labor practice within the meaning of
Section 8(a)(1) or (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the business operations
of the Respondent described in section 1, above, have close,
intimate, and substantial relation to trade, traffic, and com-
merce between the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act, I will recommend that it cease and desist therefrom and
take certain affirmative action designed to effectuate the poli-
cies of the Act.
Upon the basis of the foregoing findings of fact, and upon
the entire record in the case, I make the following:
423
CONCLUSIONS OF LAW
1. Respondent, Capitol Cement Division of Capitol Aggre-
gates, Inc., a Texas corporation, is an employer engaged in a
business affecting commerce within the meaning of the Act.
2. United Cement, Lime & Gypsum Workers, Interna-
tional Union, AFL-CIO (herein called the Union), is a labor
organization within the meaning of the Act.
3. By taking union bargaining authorizations from the
possession of an employee and by construing, maintaining,,,
and applying plant rules as a prohibition against employees'
engaging in union solicitation in its plant during the em-
ployees' nonworking time, the Respondent interfered with,
restrained, and coerced its employees in the exercise of their
organizational rights and committed unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
5. The Respondent did not commit the other unfair labor
practices alleged in the complaint.
Upon the foregoing findings of fact, conclusions of law, and
the entire record, and pursuant to Section 10(c) of the Act,
I hereby issue the following:
ORDER6
The Respondent, Capitol Cement Division of Capitol Ag-
gregates, Inc., a Texas corporation, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Taking union bargaining authorizations from the
possession of any employee.
(b) Construing, maintaining, or applying existing or future
plant rules as a prohibition against its employees' engaging in
union solicitation in its plant during the employees' nonwork-
ing time.
(c) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of their rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which it is found
will effectuate the policies of the Act:
(a) Post at its plant in San Antonio, Texas, copies of the
notice attached hereto and marked "Appendix."' Copies of
said notice on forms provided by the Regional Director for
Region 23, shall, after being signed by a representative of the
Respondent, be posted by it immediately upon receipt thereof
and maintained for a period of 60 consecutive days thereafter
in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by Respondent to ensure that said notices are not al-
tered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 23, in writing,
within 20 days from the receipt of the Trial Examiner's Deci-
sion in this case, what steps the Respondent has taken to
comply herewith.'
6 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.
' 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 "
8 In the event that this recommended Order is adopted by the Board after
exceptions have been filed, this provision shall be modified to read. "Notif
(Cont.
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER ORDERED that , except for the unfair labor
practices specifically found in the Trial Examiner 's Decision,
the complaint, be, and the same is hereby, dismissed.
the Regional Director for Region 23, in writing , within 20 days from the date
of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify our employees that:
WE WILL NOT take union bargaining authorizations
from the possession of any of our employees.
WE WILL NOT construe , maintain , or apply our exist-
ing or future plant rules as a prohibition against em-
ployees' engaging in union solicitation in our plant dur-
ing the employees' nonworking time.
WE WILL NOT, in any like or related manner , interfere
with, restrain, or coerce any of our employees in the
exercise of their self-organizational rights guaranteed in
Section 7 of the Act.
All of our employees are free to become , remain, or to
refrain from becoming or remaining members of any labor
organization.
Dated By
CAPITOL CEMENT
DIVISION OF
CAPITOL AGGREGATES,
INC.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by any-
one.
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 compliance with
its provisions may be directed to the Board 's Office, Dallas-
Brazos Building , Fourth Floor, 1125 Brazos St., Houston,
Texas 77002, Telephone 713-226-4722.