Commerce Concrete Co., Inc.

National Labor Relations Board - Board Decisions

Jun 16, 1972

197 N.L.R.B. 658 (N.L.R.B. 1972)

658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Commerce Concrete Company, Inc. and General
Drivers and Helpers, Local No. 823 , affiliated with
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America.
Case 16-CA-45061
June 16, 1972
DECISION 'AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On May 8, 1972, Trial Examiner George Turitz
issued the attached Decision in this proceeding.
Thereafter, the Respondent filed exceptions and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
brief and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his
recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders
that Respondent, Commerce Concrete Company,
Inc., Miami, Oklahoma, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Trial Examiner's recommended Order.
I The instant case was consolidated by the Regional Director with Case
16-RC-5800 in which an election was conducted pursuant to an agreement
for consent election , for the purpose of heanng , ruling, and decision by the
Trial Examiner Case 16-RC-5800 has been severed by the Trial Examiner's
Order from Case 16-CA-4506 and transferred to the Regional Director for
Region 16 for further processing
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE TuRITZ, Trial Examiner: Pursuant to an
agreement for consent election executed by Commerce
Concrete Company, Inc. (herein called Respondent or the
Company), and General Drivers and Helpers, Local No.
823, affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America
(herein called the Union), and approved by the Regional
Director for Region 16 of the National Labor Relations
Board (the Board) the Regional Director conducted an
1 The revised tally of ballots reflected the count after two of the five
originally challenged ballots had been opened and counted pursuant to a
report on challenged ballots issued by the Regional Director on December
election on October 22, 1971. A revised tally of ballots
disclosed' that, of 18 valid votes counted, 9 were cast for
and 9 against the Union and there were 3 undetermined
challenged ballots.
On September 24 and November 3, 1971, in Case
16-CA-4506, the Union filed charges against Respondent,
which were duly served on Respondent on those respective
dates; on November 26, 1971, the General Counsel of the
Board, through the Regional Director, issued a complaint
and notice of hearing in said case. Respondent filed its
answer to the complaint, denying all allegations of unfair
labor practices.
On January 4, 1972, the Regional Director issued a
supplemental report on challenged ballots, order consoli-
dating cases and notice of hearing, in which he made no
ruling on the merits of the three remaining challenges but
directed that Case 16-RC-5800 be consolidated with Case
16-CA-4506 for the purpose of hearing, ruling, and
decision by a Trial Examiner. The consolidated hearing
was held before me at Miami, Oklahoma, on January 26
and 27, 1972. The General Counsel, the Union, and
Respondent were represented at the hearing by counsel
and they have filed briefs.
Upon the entire record and from my observation of the
witnesses I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT-EMPLOYER
Respondent is an Oklahoma corporation having a place
of business at Commerce, Oklahoma, where it is engaged
in the processing, sale, and hauling of sand, gravel, mine
tailings, and asphalt. In the course of its operations
Respondent annually sells and transports goods valued at
in excess of $50,000 from its place of business directly to
customers located in States of the United States other than
Oklahoma. I find that Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the National Labor Relations Act, as amended (the
Act).
II. THE LABOR ORGANIZATION INVOLVED
General Drivers and Helpers, Local No. 823, affiliated
with International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The principal issues litigated at the hearing were whether
Flaherty and Heatherly were supervisors eligible to vote in
the election and whether Respondent prevented its
employee, Smith, who was a lease-operator, from driving
his tractor2 and, if so, whether such action constituted a
constructive discriminatory discharge.
The representation case involving Respondent's employ-
ees came on for formal hearing on September 21, 1971, to
resolve an issue raised by Respondent, i.e., whether the
15, 1971.
2 The vehicle was also referred to as a truck
197 NLRB No. 125
COMMERCE CONCRETE COMPANY, INC. 659
lease-operators hauling for Respondent were employees or
independent contractors. Smith, Noe, and Warren, three
lease-operators, were subpoenaed on behalf of the Union
to attend and testify, and they sat at counsel table with
Leary, the Union's attorney. Respondent finally conceded
at that heanng that the lease-operators were employees and
entered into the agreement for consent election. Accord-
ingly, the three men did not testify. However Sharpenstem,
president of Respondent, was present in the heanng room
and saw them with the Union's counsel, and I infer that he
concluded that they favored the Union. I also infer that he
suspected that they had given information to the Union
and to Board agents which would have been helpful to the
Union's position in the representation case and adverse to
that of Respondent.
Sharpenstein proceeded from the hearing to Respon-
dent's plant office, where he arrived about 2:30 or 3:30
p.m. Smith's truck was then in the garage for certain
repairs, which had been completed that day. Sharpenstein
testified that he had on his desk an invoice charging Smith
with all labor and parts furnished through the preceding
day, and that in the normal course the charge tickets for
that day's labor would have come to his desk automatically
at 5 p.m. that day. However, he telephoned the garage to
ascertain the additional amount for that day; he said that
he also called the office to find out how much Respondent
owed Smith for his services, and he went over to the garage
and picked up the day's charge tickets. He explained that
the reason was that the bill was running too high and
Smith, with his truck in the shop so much, was not earning
enough to pay.
Smith, who by that time had also arrived from the
heanng, was summoned to the office. When he came in,
Sharpenstein angrily told him that the bill for repairs was
$1,400 and that he wanted the money immediately. Smith
replied that Sharpenstein knew he did not have that much
money, and he pointed out that he had always paid
Respondent out of earnings and had never been required
to be up to date. Sharpenstein conceded what Respon-
dent's past practice had been, but he said he was tired of
cuddling the drivers by financing them only to have them
turn around and knife him in the back. He told Smith: "I
have known facts that you were the ringleader in this union
thing . . . . I am putting a stop to all this right now... .
[F]rom now on it is cash on delivery and if you can't pay,
why, you can't move that truck." Smith protested that
Sharpenstein had the wrong information because he had
had nothing to do with instigating or starting the Union.
He also said that he had a right under their contract to
operate the truck without interference, that he had always
paid his bills in the past, and Sharpenstein knew that if he
could not drive he could not get the money to pay this bill.
Sharpenstein replied that Smith could not move the truck
3 My findings as to this conversation are based on Smith's testimony,
which I have credited over Sharpenstem's The latter denied telling Smith
that he could not take the truck out without first paying but added. "But I
did tell him, it could be construed that I didn't want the truck to go back out
on the road until the bill or some part of it was paid." Respondent's answer
includes the following with reference to the September 21 incident ".. .
Respondent requested that satisfactory arrangements be made for payment
of said debt before said vehicle was removed from Respondent's premises,
which action was consistent with past practices of Respondent and the
rights of said Respondent under Oklahoma's Possessory Lien Statute"
until he paid the bill, and he pointed out that if the repairs
had been made in a public garage Smith would have had to
pay cash or not get the truck, and that was the way
Sharpenstein was now operating. He advised Smith, if he
did not have the money, to consult a lawyer, and he
commented that if any lawyer or court would say that
Smith did not have to pay, he would give him the truck free
and clear.3
Smith left the premises. A day or two later he filed suit
for damages against Sharpenstein and on September 24 the
Union filed the original charge in this case alleging Smith's
constructive discharge. On November 19, 1971, pursuant to
the advice of its counsel, Respondent offered Smith
reinstatement. Smith spoke to Sharpenstein, who offered
him the alternative of driving his own truck under the
original arrangement or driving a company truck. Smith
chose the latter. After 1 week he quit for personal reasons.4
Sharpenstein testified that no other employee had run up
as large an unpaid bill as Smith's. He stated that the reason
he demanded payment on September 21 was that Smith's
earnings were limited, since his tractor was out of service
so much, and he feared that if Smith took it out he might
cause more damage and run his bill up to $2,500 or more.
He said that the usual amount owed by the lease-operators
was $200 or $300, or less, and that in the past operators
who ran too deeply into debt became discouraged and left
his employ. He stated that he had no rule as to when he
considered a bill excessive and testified: "In the past we
have had a few forced collections. Not many, but, a few."
IV. CONCLUDING FINDINGS AS TO THE
UNFAIR LABOR PRACTICES
A. Creating the Impression of Surveillance
By telling Smith that he had information that Smith was
one of the "instigators of this union thing" Sharpenstein
created the impression that he was secretly probing into the
employees' union activities. This would tend to make
Smith apprehensive that any "instigating" he might choose
to engage in would be found out by Sharpenstein. The fact
that such past probing had apparently resulted in his
receiving inaccurate information did not lessen the
tendency of Sharpenstein's remark to chill any desire
Smith might have to become a leader, or even engage, in
union activities. I find that by the above remark Respon-
dent violated Section 8(a)(1) of the Act. See Plasticoid
Company, 168 NLRB 135, fn. 3.
B. Smith's Discharge
Respondent contends that it did not prohibit Smith from
removing his tractor from the garage, but I have found that
Sharpenstein did order Smith not to move it without first
Sharpenstem also denied indicating in the conversation that Smith's
association with the Union had anything to do with his calling him in, but
he testified that he remembered nothing specific about the conversation so
far as the discussion of the Union was concerned . He also said - "Yes, we
talked about it, naturally we had just been over here [ the Hearing Room]
and there was some conversation about it I am sure we talked some
about the Union and I might have asked him what his part was in it "
4 The General Counsel conceded that Smith had been offered full
reinstatement and that any order issued should not include a provision for
his reinstatement.
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
paying his bill. Smith was not required to put Respondent
to the test and risk prosecution for larceny by taking the
tractor from Respondent's possession against its express
assertion of a lien for labor.5 It is plain that Respondent
prevented Smith from moving the tractor and thus
prevented him from continuing to perform the services
called for under his employment. Since Sharpenstein knew
that the only realistic way for Smith to pay the bill was to
perform those services, it is plain that by preventing him
from moving the tractor Respondent was terminating the
employment relationship and discharging him.
Respondent rarely resorted to "forced collections" of
repair bills. Nevertheless, it suddenly decided that its
former policy constituted "cuddling" and, with no prior
warning, put a stop to it and confronted Smith with a new
condition of employment-payment by him of a $1,400
repair bill-which it knew he could not meet. It may well
be that at some point Respondent, purely on the basis of
economics, would have concluded that the limit had been
reached and that it was necessary to prevent Smith from
using the tractor without first satisfying the repair bills.
Respondent, however, had not explained the coincidence,
truly remarkable, that the bills for the repairs in progress at
Respondent's garage reached that particular point on
September 21, indeed, virtually at the same moment that
Sharpenstein saw Smith sitting at the counsel table with the
union attorney. I am convinced by the foregoing alone that
Sharpenstein took the action he did in retaliation against
Smith for aiding and favoring the Union. This conclusion
is strengthened by Sharpenstein's anger, his accusation that
Smith was the "instigator of this union thing" and that
Sharpenstein was being knifed in the back, and for this
reason he was changing Respondent's policy with respect
to repair bills. I find that Respondent's termination of
Smith's employment on September 21 was discriminatory
and that Respondent thereby violated Section 8(a)(1) and
(3) of the Act.
Respondent contends that in any event no violation of
Section 8(a)(4) of the Act can be found in this case because
Smith did not actually testify or otherwise adversely affect
Respondent. However, just as Section 8(a)(4) protects
employees "in the important developmental stages that fall
between" the filing of charges and the giving of formal
testimony, cf. N. L. R. B. v. Scrivener, d/b/a AA Electric Co.,
404 U.S. 821, it protects them against discrimination for
giving information informally in connection with a
representation proceeding. While the record does not show
what Smith actually did in connection with the representa-
tion proceeding beyond appearing in response to a
subpoena and sitting with counsel, I have found that
Sharpenstein suspected that he gave the Union or the
Board information helpful to the Union's position and
adverse to Respondent's, and that that was the reason
Respondent discriminated against Smith on September 21.
5 1 make no attempt in this Decision to determine the parties' rights of
ownership or possession of Smith's tractor under Oklahoma law . Prelimi-
nary to Smith's employment he and Sharpenstein executed three documents
relating to the tractor . ( I) a 24-month lease by S & S Materials Company to
Smith for a rental of $10,200, the tractor to be used solely in hauling for
Respondent , and title to remain in S & S, (2) an option agreement whereby
S & S gave Smith the privilege of purchasing the tractor prior to expiration
of the lease for the same sum of $10 ,200, all rentals paid being applied to
Accordingly, I find that by its actions on September 21
Respondent also violated Section 8(a)(4) of the Act. Cf.
N.L.R.B. v. Ritchie Manufacturing Company, 354 F.2d 90,
98, enfg . as mod . 147 NLRB 1257.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
I find that the activities of Respondent set forth in
section III, occurring in connection with its operations
described in section I, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdemng and obstructing commerce and the free flow of
commerce.
VI. THE REMEDY
As I have found that Respondent has engaged in certain
unfair labor practices, I recommend that the Board issue
the recommended Order set forth below requiring Respon-
dent to cease and desist from said unfair labor practices
and to take certain affirmative action which will effectuate
the policies of the Act.
As Respondent offered Smith full reinstatement to his
former job, which he declined, at the same time accepting
reinstatement to another job, which he has resigned
through no fault of Respondent, it is unnecessary that
Respondent make any further offer of reinstatement.
However, I recommend that Smith be made whole for any
loss of earnings suffered by reason of the discrimination
against him during the period from September 21, 1971, to
the date of his reinstatement by Respondent. The amount
of backpay shall be a sum of money equal to what he
would have earned during that period, with interest
thereon at 6 percent per annum, less his net earnings
during said period, computed in accordance with the
Board's usual practice. See F. W. Woolworth Company, 90
NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB
716.
VII. THE CHALLENGES
A. Introduction
Respondent's operations are carried on from three
points: a scale and dispatch office, an automotive repair
shop located 100 yards from the office, and a screening, or
separating, plant, located on a hill 1 /4 of a mile away.
Near the screening plant is an asphalt plant owned and
operated by Arrowhead Asphalt Company, a corporation
owned 61 percent by the two Sharpensteins and the rest by
one Starks. Sharpenstein, Sr., is in general charge of
Respondent's operations; his principal assistant is Van
Sandt, the dispatcher. Arrowhead is run by the younger
Sharpenstein and Starks.
such purchase price, and (3) a lease of the tractor by Smith to Respondent,
which was to use the tractor exclusively for Respondent's business, the
consideration to Smith to be 75 percent of Respondent's gross receipts from
use of the tractor . The two Sharpenstetns owned 75 percent or more of the
stock in Respondent , Van Sandi, the dispatcher, owned the rest , and those
three were the officers and directors S & S was a partnership of the two
Sharpensteins , who were father and son.
COMMERCE CONCRETE COMPANY, INC. 661
B. Heatherly
Heatherly, who works principally at the screening plant,
was challenged by the Union as a supervisor.
Respondent takes tailings left from ore-mine operations,
sorts them by screening into approximately five grades or
sizes, washes them, and transports them to customers. The
material is called chat. The mine tailings are first dumped
into a large hopper which feeds them onto a series of
electrically powered conveyor belts carrying the tailings
though various sized shake screens to piles of graded chat
ready for shipment.6 On the way the screened material is
washed to remove sand, grit, dust, and small pieces. The
principal human labor involved is the operation of two
front-end loaders, which are, basically, mobile power
shovels. These take tailings from the pile left by the mine
operator and dump them into the hopper which feeds the
conveyor belts. The front-end loaders also load delivery
trucks with graded chat taken from the several piles at the
end of the screening process and, from time to time, move
graded chat from one pile to another-for example, for
stockpiling.
Heatherly is the person on whom Respondent depends to
keep the screening plant in proper condition and operating
as near 100 percent of the time as possible. He is classified
by Respondent as a front-end-loader operator. In addition
to him one other individual, also classified as a front-end-
loader operator, works there, and in busy periods a third
man is employed, usually, but not always, on a night shift.
At times Sharpenstein comes up to the screening plant, but
most of the time Heatherly is in complete charge. Pursuant
to general instructions from Sharpenstein Heatherly tells
the front-end-loader operator how many tons of a
particular grade of chat to sort, or to increase or decrease
the amount of a particular grade, whether for immediate
delivery or for stockpiling. On occasion he instructs him to
shift the sorting from one grade to another. Sometimes, if a
dispatch order calls for delivery of a grade not then on
hand, Heatherly directs the front-end-loader operator to
furnish another grade which is close enough in size to serve
the customer's purpose.
Heatherly sees to it that the belts are properly placed and
adjusted on the rollers and in good condition, making the
adjustments himself or telling the operator what to do.
From time to time he leaves the plant, sometimes to obtain
replacement parts, sometimes to work at the asphalt plant.
When he is away, the front-end-loader operator is required
to see to it that the plant is kept in constant operation. If
on his return Heatherly finds the plant not in operation, he
reprimands the operator. Sometimes , pursuant to instruc-
tions from Sharpenstein, Heatherly sends one of Respon-
dent's front-end loaders to the asphalt plant, with the
operator, to work there; it is Heatherly who orders the
operator back to the screening plant.
Heatherly hired Bingham, a front-end-loader operator.
He sent Bingham to see Sharpenstein about filling out the
necessary papers for his tax forms, but Heatherly told
Bingham beforehand that he had the job. On one occasion
he told Knight, a truckdnver, that he, Heatherly, was in
6 The record is not clear as to whether the normal operation consists of
sorting out all standard sizes simultaneously In many, if not all, instances
complete charge of the screening plant and did not need
Sharpenstein's permission to hire a man. Heatherly did not
testify.
Concluding findings as to Heatherly
Even though Sharpenstein gives Heatherly general
instructions as to the amounts of chat of each grade to
have on hand, he is not there to see to it that his
instructions are carried out. Nor is he available to see to it
that the conveyor belts are properly adjusted and that the
plant is kept in continuous operation. He depends on
Heatherly to see to it that the front-end-loader operator
performs these functions properly or that he performs them
himself. Heatherly is also the one who is responsible for the
repair of the plant, whether by himself or by the front-end-
loader operator. It is apparent that Heatherly has to use
judgment and discretion in directing the front-end-loader
operator in these matters, and I find that he responsibly
directs employees in their work. I also find that Heatherly
has authority, on behalf of Respondent, to hire employees.
I find that Heatherly is a supervisor ineligible to vote in the
election.
C. Flaherty
Flaherty, who worked in the garage or repair shop, was
challenged by the Union as a supervisor. Flaherty is a
diesel mechanic with 30 years' experience. At one time he
bought a repair shop from Sharpenstein and operated it for
a period of 1 to 2 years as a public shop on his own
account. More recently he worked for Respondent for an
hourly wage. He was seriously injured on June 1, 1971, and
has not worked for Respondent or received wages since
that date. In August or September he appeared occasional-
ly at the shop and gave advice on jobs, and he was seen by
Smith on the day the hearing opened. Sharpenstein
testified that he did not expect Flaherty ever to return to
work for Respondent but that on October 22, 1971, the
date of the election, and on September 21, when the
consent election agreement was entered into, he fully
expected him to return.
In addition to Flaherty four, sometimes five, employees
worked in the garage. Respondent's procedure required
that the truckdrivers make out reports indicating necessary
repairs. Sharpenstein had an office at the garage and he
testified that he was there "practically all of the time" and
was garage foreman. According to him the various drivers
placed their repair reports on a clipboard outside his office,
and the garage employees, Flaherty included, as they
completed a job, would go to the clipboard and take the
repair report next in order and work on it.
The employees testified differently. Smith stated that
when he was hired, Sharpenstein told him that Flaherty
was in charge of the repair shop and that if Smith needed
work on his truck, he should see Flaherty, who would take
care of it and tell him whether and when a job could be
done. He testified that he always had to see Flaherty to ask
him if the garage could get round to doing work on his
truck, and that Flaherty, without consulting anyone else,
the plant is operated so that only a single graders made up at a particular
time While grades generally refer to sizes , some are a mixture of sizes
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
told him when work could or could not be done, and he
said that Flaherty also told him when he would have to get
certain parts fixed elsewhere before Respondent could
install them on the truck. He also testified that he heard
Sharpenstein tell Flaherty to "get busy and get these trucks
out of here and get them operating"; Knight testified that
whereas Sharpenstein used to summon Flaherty to the
office to speak to him, he spoke to the other men out on the
floor. Smith and North testified that they gave their repair
reports directly to Flaherty. North, Knight, and Bingham
testified that Van Sandt, the dispatcher, instructed them to
deliver their reports to Flaherty. As for the clipboard, a
number of the employees testified that they sometimes
placed repair reports on it, but that often it could not be
found and they handed the reports to Flaherty. One
employee, Noe, testified that he never filled out such a
report, and that he merely told Flaherty orally what his
trouble was. North, Smith, and Knight testified that
Flaherty told garage employees specifically what to check,
what to do, and how to do it. Smith testified that more
recently Sharpenstein has spent more time in the garage
office, and Knight stated that Sharpenstefn spent no time
in the office until recently and that he has been running the
garage only since Flaherty was injured. The employees
agreed that Sharpenstein and Van Sandt both frequently
looked over trucks to be repaired, discussed work with
Flaherty, instructed men how to do work, and told the men
whether to get new parts or repair old ones. Sharpenstein
did the necessary computing of charges for parts and other
work performed in the garage; Flaherty was not sufficient-
ly literate to perform that function.
Flaherty was paid $3.00 per hour. Two of the other
garage employees received $2.50 per hour and two received
$2.00 per hour. Neither Flaherty nor any other garage
employee testified. Two of the garage employees were sons
of Flaherty.
Concluding findings as to Flaherty
I do not credit Sharpenstein's testimony that jobs were
assigned to the garage employees on a mechanical basis,
i.e., that an employee who finished one job took the repair
report next in order on the clipboard. While this may have
been true for the lower paid men doing simple jobs, such as
tire work and lubrication, I find, on the basis of the
testimony of the employees who testified, that Flaherty
assigned repair jobs to the employees. I also find that in
assigning jobs he had to take into consideration the needs
of the trucks and Respondent's business, and the experi-
ence and abilities of the garage employees, and that he had
to exercise judgment and discretion. While Sharpenstein
and Van Sandt may also have exercised some supervisory
functions in the garage, it was Flaherty who was responsi-
ble for the distribution of work among the employees and
Sharpenstein looked to him to "get these trucks out .. .
and . . . operating." I find that Flaherty responsibly
directed the employees and was a supervisor within the
meaning of the Act, ineligible to vote in the election.
7 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
D. Recommendations as to the Challenges
As I have found that Smith was discriminatorily
discharged on September 21, 1971, in violation of Section
8(a)(3) of the Act, I find that he was eligible to vote in the
election and recommend that the challenge to his ballot be
overruled and his vote counted.
As I have found that Heatherly and Flaherty were
supervisors, ineligible to vote in the election, I recommend
that the challenges to their ballots be sustained and their
votes not counted.
Upon the basis of the foregoing findings of fact and on
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent, Commerce Concrete Company, Inc., is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Respondent is, and at all times material has been, an
employer within the meamng of Section 2(2) of the Act.
3. General Drivers and Helpers, Local No. 823,
affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, is a
labor organization within the meamng of Section 2(5) of
the Act.
4. By discriminatorily terminating the employment of
Melvin E. Smith, Respondent has engaged in unfair labor
practices within the meamng of Section 8(a)(1), (3), and (4)
of the Act.
5. By interfering with, restraining, and coercing em-
ployees in the exercise of rights guaranteed in Section 7 of
the Act, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
6. The unfair labor practices described above are unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 102.25 and
102.33(d) of the Rules and Regulations of the National
Labor Relations Board, I hereby issue the following
recommended:
ORDER SEVERING AND TRANSFERRING
CASE
It is hereby recommended that Case 16-RC-5800 be
severed from Case 16-CA-4506 and transferred to the
Regional Director for Region 16 for further processing.
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 recommended: 7
ORDER
Respondent, Commerce Concrete Company, Inc., its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging employees, requiring employees to pay
repair bills as a condition of using equipment, or otherwise
Section 102 48 of the Rules and Regulations , automatically become the
findings , conclusions, decision and Order of the Board, and all objections
thereto shall be deemed waived for all purposes.
COMMERCE CONCRETE COMPANY, INC.
discriminating against employees because they give infor-
mation or evidence under the Act, or appear to give formal
testimony under the Act, or because they join or assist
Local 823, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, or any
other labor organization, or because they engage in other
concerted activities for the purpose of collective bargaining
or other mutual aid or protection.
(b) Creating the impression among employees that the
Company has, or is, engaged in surveillance of their union
or other concerted activities.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Make Melvin E. Smith whole for any loss of earnings
suffered as a result of the discrimination against him in the
manner described in section V of this Decision entitled
"The Remedy."
(b) Preserve and, upon request, make available to the
Board and its agents for examination and copying all
payroll records, hauling records, work records, production
records, time records, repair records, and all other data
necessary to analyze and compute the backpay required by
this Order.
(c) Post at its office and place of business in Miami,
Oklahoma, copies of the attached notice marked "Appen-
dix."8 Copies of the notice, on forms provided by the
Regional Director for Region 16, shall, after being signed
by a representative of Respondent, be posted immediately
upon receipt thereof and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken to ensure that said
notices are not altered, defaced, or covered by any other
material.
(d) Notify said Regional Director, in writing, within 20
days from the date of the receipt of this Decision, what
steps Respondent has taken to comply herewith.9
8 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 "
9 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read
"Notify said Regional Director , in wasting , within 20 days from the date of
this Order, what steps 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
663
WE WILL pay Melvin E. Smith for any loss of
earnings suffered as a result of the discrimination
which the Board has found we practiced against him.
WE WILL NOT discharge employees, or require them
to pay repair bills before being allowed to use their
equipment, or discriminate against them in any other
manner because they testify before or give information
to, the National Labor Relations Board, or because
theyjoin or assist Local 823, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, or any other labor organization.
WE WILL NOT create the impression among our
employees that we have engaged in surveillance of their
union or other concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their rights to self-organization, to bargain collectively
through representatives of their own choosing, and to
engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities, except
insofar as these rights might be affected by a contract
with the labor organization, if validly made in
conformity with Section 8(a)(3) of the National Labor
Relations Act, as amended.
COMMERCE CONCRETE
COMPANY INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, Federal Office Building,
Room 8-A-24, 819 Taylor Street, Fort Worth, Texas 76102,
Telephone 817-334-2921.