Concrete Technology, Inc

National Labor Relations Board - Board Decisions

Jun 16, 1976

224 N.L.R.B. 961 (N.L.R.B. 1976)

CONCRETE TECHNOLOGY INC
Concrete Technology, Inc and International Union,
United Automobile, Aerospace and Agricultural Im-
plement Workers of America, UAW Cases 9-CA-
9637 and 9-CA-9756
June 16, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On March 30, 1976, Administrative Law Judge
Michael 0 Miller issued the attached Decision in
this proceeding Thereafter, General Counsel filed
exceptions and a supporting brief, and Respondent
filed an answering brief
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Concrete Technology,
Inc, Springboro, Ohio, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
said recommended Order
i The Administrative Law Judge found that Oleen s question to Sexton
regarding what the men were unhappy about did not amount to a solicita
tion of grievances creating an inference of a promise to satisfy those griev
ances Although we agree that no violation of Sec 8(a)(1) of the Act was
committed we find that according to Sexton s testimony Oleen did not ask
the aforementioned question but rather Sexton volunteered that he knew
what most of the men were unhappy about
In the absence of exceptions thereto we adopt pro forma the Admmistra
tive Law Judges comments concerning the statement allegedly made by
Oleen when he initially refused to grant Caudill s request for a raise
DECISION
STATEMENT OF THE CASE
MICHAEL 0 MILLER, Administrative Law Judge This
case was heard on January 19, 27, and 28, 1976, in Dayton,
Ohio The charges were filed by International Union, Unit-
ed Automobile, Aerospace and Agricultural Implement
961
Workers of America, UAW (herein the Union), on Sep-
tember 12 and October 23, 1975,1 against Concrete Tech-
nology, Inc (herein Respondent), alleging violations of
Section 8(a)(1) and (3) of the Act The complaints issued
on November 19 and December 10, and Respondent filed
timely answers thereto denying the substantive allegations
Briefs were filed by General Counsel and Respondent
Upon the entire record, including my observation of the
witnesses and their demeanor, I make the following
FINDINGS OF FACT
I RESPONDENT'S BUSINESS AND THE UNION'S LABOR
ORGANIZATION STATUS-CONCLUSIONS OF LAW
Respondent is engaged at Springboro, Ohio, in the man-
ufacture, sale, and installation of precast concrete panels
Jurisdiction is not in issue The complaint alleged and Re-
spondent admitted that Respondent is an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act
The Union is a labor organization within the meaning of
Section 2(5) of the Act
II THE ALLEGED UNFAIR LABOR PRACTICES
A Union Activity and Respondents Reactions
Union activity among Respondent's employees began in
June, spearheaded by employees Lewis Sexton and Frank
Annello The first organizational meeting was held on June
17 and was attended by approximately 15 of Respondent's
employees, including Wesley Caudill and Everett Mc-
Guire, the alleged discriminatees herein Union authoriza-
tion cards were distributed and signed at this meeting
Respondent's vice president in charge of manufacturing,
Richard Oleen,2 learned of the meeting before it was held
from various employees, including his son, Rick, and Amos
Gilbert 3 He candidly admitted that his response, in the
days following this first meeting, was to question a number
of employees He recalled talking to Kenneth Osborne,
Amos Gilbert, Jerry Back, Lewis Sexton, and Walter Hum-
bert Based upon the combined recollections of Oleen and
the employees, I find that Oleen told group leader Osborne
that his employees were organizing a union and asked him
if he knew anything about it He asked Larry Caudill
(brother of alleged discriminatee Wesley Caudill) what he
knew about the Union Larry Caudill professed ignorance
and Oleen told him that the employees were organizing,
that he should not let anyone make up his mind for him
and that he should decide for himself whether or not to
vote for a union Sexton was called into Oleen's office
where Oleen told him, "We feel that you have a little high-
er interest in this than anyone else " Oleen told him
i All dates hereinafter are 1975 unless otherwise specified
2 Oleen is the direct supervisor over plant operations His supervisory
status is admitted
3 Gilbert and Kenneth Osborne are designated as group leaders or fore
man The Regional Director in his Decision and Direction of Election in
Case 9-RC-11093 determined that they were unit employees -lot supervi
sors That finding was not contested herein
224 NLRB No 142
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he did not "like to go by rules and regulations but
if that is the way you guys want it, that is the way it will
be " Sexton further recalled (with the help of leading ques-
tions) that Oleen asked what the men were unhappy about
Oleen asked Fred Smith how he felt about a union and,
when Smith replied that it was acceptable to him, Oleen
stated that with Smith's absentee record he "couldn't make
it there" if a union came in Oleen also asked him if he had
attended the meeting Similarly, Oleen asked Eddie Trent
how he felt about the Union and told Trent that Respon-
dent was too small to have a union To Wesley Caudill,
Oleen stated that he didn t think Caudill should be talking
or trying to encourage other employees about the Union,
that Caudill should let them make their own decisions He
asked both his son and Amos Gilbert who they believed
had attended the meeting He was told that the yard crew,
which included Caudill, had attended as well as others,
including McGuire
Respondent contended that the foregoing incidents, oc-
curring early in the campaign, were mere "inquiries," and
did not rise to the level of Section 8(a)(1) interference 4 I
cannot agree Even if Oleen's questioning was meant only
to satisfy his natural curiosity, piqued by rumors of union
activity, it would constitute a violation warranting remedial
action As the Board recently reiterated
No proof of coercive intent or effect is necessary un-
der Section 8(a)(1) of the Act, the test being "whether
the employer engaged in conduct which, it may rea-
sonably be said, tends to interfere with the free exer-
cise of rights under the Act " 5
Oleen's conduct herein went beyond innocent question ng
No purpose for the questioning was expressed to the em-
ployees, indeed, no legitimate purpose existed No assur
antes of freedom from reprisal were given and, in fact,
thinly veiled threats of layoff or of a tightening-up of rules
and regulations were made to some employees Moreover,
the questioning went further than it would have if it were
only meant to slake Oleen's curiosity A number of em-
ployees, beyond those who had volunteered information on
the activity, were questioned The interrogation called for
admissions as to the employees' union sympathies Accord-
ingly, I find that by its interrogation of and threats to em-
ployees in the days immediately following the first union
meeting, Respondent violated Section 8(a)(1) of the Act
See Struksnes Construction Co, Inc 165 NLRB 1062
(1967), Larand Leisurehes, Inc v N L R B, 523 F 2d 814
(C A 6, 1975), enfg 213 NLRB 197 (1974) 6
4 Respondent also pointed out that the 8(a)(1) allegations were not specif
ically set forth in the charge The short answer thereto is that the charge is
not a pleading Its purpose is merely to set in motion the machinery of an
inquiry N L R B v Fant Milling Co 360 U S 301 307 (1959) Moreover
it is relevant to neither the credibility of evidence concerning such conduct
nor to the necessity for a remedial order that a charging party may have
chosen to rely upon the general boilerplate language of the charge form to
initiate an investigation into alleged 8(a)(1) activity
5 Munro Enterprises Inc 210 NLRB 403 (1974) quoting with approval
Time 0 Matic Inc v N L R B 264 F 2d 96 99 (C A 7 1959)
6 Additionally I note that Respondent believed some of the interrogated
employees to be supervisors With a good faith belief in such supervisory
status and appropriate prefatory remarks concerning both that belief and
the purpose of the interrogation (i e to determine whether supervisory par
I do not find that Oleen s question to Sexton, regarding
what the men were unhappy about, amounted to a solicita-
tion of grievances creating an inference of a promise to
satisfy those grievances See Uarco Incorporated, 216
NLRB 1 (1974), Herbst Supply Co, Inc, 222 NLRB 448
(1976)
Oleen's first official notice of the organizational activity
came on June 20, in a letter from the Union claiming ma-
jority status The Union also filed a petition for representa-
tion upon which a hearing was held on July 16 A Decision
and Direction of Election in Case 9-RC-11093 issued on
August 1I and the election was conducted on September
12 As a result of that election, and following the resolution
of certain challenged ballots and employer filed objections,
the Union was certified as the collective-bargaining repre-
sentative of Respondent's employees on December 4 7
Around the first part of July, Wesley Caudill went to
Oleen to ask why he hadn't received the raise he claimed to
have been promised in April when he took over the opera
tion of the crane He testified that Oleen told him that he
could not give any raises at that time and that Caudill
knew why Caudill asked, "No, why9" and Oleen allegedly
replied, "For the Union " In further discussion, Oleen told
him that he would give Caudill a raise as long as Caudill
would not deem it a bribe Oleen acknowledged a conver-
sation with Caudill about that time, wherein Caudill asked
for a pay raise He stated that he told Caudill that he could
not give him a raise at that particular time because he was
giving raises to some of the lower paid employees first
Caudill, however, persuaded Oleen to give him a raise
Caudill further testified that around the end of July or
the beginning of August, Oleen came up to him, in the
break room, and stated that, "anybody that he could find
out for sure was involved in the Union would be perma-
nently dismissed " Oleen denied uttering the foregoing
threat
Everett McGuire testified that sometime in August, be-
fore the second union meeting, Oleen called him into the
office, told him "that the company was too small for that
big of a Union and said if I would vote `No' for the
Union, he would give me a quarter raise and he said he
couldn't give everybody a raise at the same time, but he
would give 5 or 6 or 7 of them a week, until he got all of
them raises and he said if the Union did go in there
would be heads that were going to be rolling' Mc
Guire further testified that Oleen told him that there would
be a layoff if it went through and, if there was, McGuire
would be the first to go because of his seniority He
claimed that Oleen concluded, "Oh, Dick is going to get
you for this' Oleen denied all these statements
Assuming that Wesley Caudill accurately described his
conversation with Oleen regarding the wage increase, I
would find neither a promise of benefit nor a threat to
withhold benefits because of the union activity Having less
ticipation has tainted the Unions campaign) such interrogation may not
warrant an 8(a)(1) finding Pillows of California 207 NLRB 369 (1973) No
such prefatory remarks attenuating the effects of the interrogation were
given herein Moreover Respondents good faith belief in their supervisory
status is questionable in view of its position at the representation case hear
ing in July that they were unit employees
The foregoing while out of chronological order places the events to be
described hereafter in their proper context
CONCRETE TECHNOLOGY INC
than a fixed wage progression program, Respondent could
be legitimately concerned about the appearance and legal
effect of granting wage increases in the midst of the
Union's campaign See, for example, Rupp Industries, Inc,
217 NLRB 385 (1975), wherein the Board stated "The
mere grant of benefits during the pendency of an election
petition raises a presumption of impropriety unless satis-
factorily explained by the employer " 8
Regarding the alleged threat to Caudill, I credit Oleen's
denial In addition to the comparative demeanors of the
two witnesses, I consider it unlikely that Oleen would have
interjected such a threat, completely out of context, into
the conversation in which it was alleged to have occurred
I note further that the expression "permanently dismissed,"
which Caudill attribured to Oleen as a regular part of
Oleen's vocabulary, was an awkward phrase which Oleen
denied using and which no one else recalled hearing from
Oleen in any context Moreover, this threat was allegedly
made while Caudill was engaged in conversation with an-
other employee No other employee corroborated Caudill's
testimony
Similarly, I credit Oleen's denial of the promises and
threats attributed to him by McGuire As between the two,
I was more favorably impressed by Oleen's candor than
with McGuire's hostile testimonial demeanor McGuire's
imprecision, his exaggeration in his affidavit regarding
being the only employee in the plant to wear union insig
nia, his patently incredible assertion that one employee had
threatened to kill him if he supported the Union and a
second had lied because he had been bribed, and his atti
tude toward the lock tampering conduct which led to his
discharge all constrain me to accord the greater weight to
Oleen's denials
A second union meeting was held in August, attended by
about 20 employees The Union gave out bumper stickers
and union buttons Caudill placed three of the bumper
stickers on his van, McGuire wore one on his hat Other
employees also displayed the bumper stickers on their vehi-
cles and wore union buttons Besides displaying the bump-
er stickers, Caudill's union activity was limited to attending
the meetings and suggesting to 10 or 12 employees that
they vote for the Union McGuire's activity was similar
The evidence indicates that McGuire and Caudill were
among the more active union proponents, although they
were not the campaign's leaders Their support for the
Union was known to Oleen
B The Discharges
I Wesley Caudill
Respondent contended that Wesley Caudill was dis-
charged because he had an accident while driving the
crane, in the context of having, to management's under-
standing, consumed an excess quantity of beer General
Counsel contends that drinking beer on the job was an
8
The question of whether raises granted by Respondent during the cam
paign independently violated Sec 8(a)(1) of the Act was the subject of a
separate charge pending under investigation at the time of this hearing
Litigation of that issue was not undertaken before me The record does not
disclose the disposition of that charge
963
accepted fact at the plant, Caudill's consumption on that
night was not excessive, that the accident was caused by
faulty equipment and that Respondent's assigned reason
for the discharge was a pretext to cover a discharge for
union activity
Certain facts are clear Prior to Caudill's accident on
Wednesday, August 27, Respondent tolerated limited beer
drinking at its plant The beer drinking was a fairly regular,
but not daily, event, generally occurring in warm weather,
at the end of a shift or during overtime hours, did not go
beyond one or two cans of beer per employee and was
participated in by the group leaders and, on at least one
occasion, by Oleen Similarly clear is the fact that
Respondent's straddle cranes were maintained in less than
optimum operating condition, particularly with regard to
the brakes Management was aware that the brakes re-
quired frequent infusions of brake fluid and that air or
other impurities in the brake lines and cylinders impaired
the functioning of the brakes Respondent tolerated these
deficiencies in its cranes
On August 27, Caudill, Doug Adams, and Frank Annel-
lo were sent home from work in midday because of me-
chanical failure on the yard crane, normally operated by
Caudill They were to come back at 3 30 p in in order to
perform their work with the other crane, normally used
inside the plant They went to Annello's apartment where,
with a fourth person, they consumed approximately three
cans of beer apiece between noon and 3 30 9 Adams and
Caudill then returned to the plant, Caudill carrying an
open can of beer They were told to come back in another
hour, when the plant crane would be free There was no
evidence that they continued to drink in the intervening
hour When they returned, Oleen twice questioned them as
to their fitness to work because he noticed they had been
drinking However, he permitted them to go to work
Shortly thereafter, both Caudill and Amos Gilbert, who
was working on the repair of the yard crane, sent Oleen's
son, Rick, out to purchase beer Rick brought Caudill a
six-pack As Caudill was taking the six-pack from Rick's
car, Oleen drove out of the plant Caudill dropped the beer
and stated that he did not want Oleen to see him with it 10
Caudill gave away three of the cans and took the remain-
der into the cab with him 11
During the course of the evening, Gilbert noticed that
Caudill was driving the crane too fast and suggested to
Osborne that someone else drive it Osborne told Caudill
that he was being taken off the crane because he was driv-
ing too fast and reckless 12 Caudill protested, somewhat
9 In view of the conflicts between Caudill s testimony and his affidavit
which was less specific about the amount of beer each bad and Doug
Adams testimony concerning the source of the beer and the amount that
was consumed I cannot accept completely Caudill s testimony that they
each had precisely three beers He may have had more he may have had
less
10 Caudill denied this incident However I have accepted the contrary
testimony of Kenneth Osborne who impressed me as a most candid and
straightforward witness
1 I do not credit Caudill s uncorroborated assertion that he gave two of
the remaining beers to Dan McMurchy The timecards reflect that Mc
Murchy had punched out at 4 55 p in Caudill and Adams did not punch in
until 5 33
12
All things includirg speed are relative The top speed of the crane was
Continued
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
more loudly than was normal for him, that his driving was
all right He was told that he could contml.e to drive if he
would slow down and drive safely Caudill continued to
drive, in a safe manner , until the accident , which occurred
about half an hour later
At or around 8 p in, while backing the crane in the yard,
which was more congested than usual, Caudill saw a truck
parked some 10 to 15 feet behind him He claims to have
hit the brakes, which failed, before he hit the truck Little
damage was done to the truck but, notwithstanding the
very slow speed at the moment of the accident, a motor
was broken off the crane, partially disabling it
Following the accident, Caudill told Gilbert that the
brakes had failed 13 He also asked Gilbert, "What are you
going to do, tell Oleen that I was drunk"? 14 Caudill and
Adams punched out shortly after the accident
Caudill did not report for work on the following day
Oleen was informed of the accident when he came to work
and directed Gilbert to repair the crane He did not ques-
tion Gilbert about the accident and Gilbert did not volun-
teer any information Oleen did speak with Osborne, who
told him that anytime an individual operated a crane in
that manner again , he was going to walk off the job Oleen
asked what he meant and Osborne told Oleen that Caudill
had been drinking Oleen asked how much and he told
Oleen that Caudill had at least three cans of beer after he
returned to work He also told Oleen about the request
from Gilbert that Caudill stop driving the crane, before the
accident Oleen then went to Adams and asked what had
happened Adams told him that Caudill had been operat-
ing the crane fast and acting funny In response to Oleen's
questions, Adams admitted that three beers sounded like
an accurate estimate of what Caudill drank He also admit-
ted that he may have told Oleen that Caudill had three
beers after coming back to work Oleen also received a re-
port from another employee that Caudill had been operat-
ing the crane at unsafe speeds No mention was made to
Oleen about brake failure
Oleen reviewed the incident with corporate President
Welch He recommended discharge , he testified, because
of the drinking , the irresponsible manner in which Caudill
had operated the crane , and his failure to accede to
Gilbert's recommendation that he stop driving Oleen stat-
ed that he "did not want to set a precedent for the future
where [he] would be governed by what [he] did in this par-
ticular case " Welch approved his recommendation
On the following morning, when Caudill came to work,
Oleen discharged him giving him, the reasons as stated
above According to Oleen, Caudill offered no denials or
explanations, but threatened that they would hear from his
lawyer Caudill testified that Oleen refused to listen to his
only 3 to 4 miles per hour However in the confines of a crowded yard with
narrow aisles and limited visibility the crane s top speed might be too
fast
13 In this regard I credit Caudill s testimony as corroborated by Osborne
and Adams
14 Gilbert recalled that Caudill had said You re going to squeal on me to
Dick I am drunk and I run into it and tore the crane up I am inclined to
credit Caudill because I deem it improbable that he would have volunteered
that he was inebriated immediately after being involved in an accident It is
undisputed however that Caudill brought up the question of his drinking
explanation, said they had enough evidence against him
and told him to leave without talking to his fellow employ-
ees 15
The damaged crane saw limited service on Thursday and
until its repair on Friday Repair of the crane cost $186
plus $240 in labor (done by Respondent and valued at
$1475 per hour) Respondent also estimated a loss of ap
proximately $2,400 in lost production 16
2 Everett McGuire
Respondent contends that McGuire was discharged be-
cause of his having tampered with the lock on another
employee's locker Also considered , according to Respon-
dent was McGuire's record of absenteeism General Coun-
sel asserts that these reasons were pretexts to cover a dis
charge for union activity
As noted, McGuire favored the Union and showed his
support by affixing a union bumper sticker to his hat,
which he wore in the plant He was one of the more active
union supporters , but not a leader in the campaign He
voted in the September 12 election
Sometime in September , after the election, according to
McGuire's testimony, Oleen called him into the office and
threatened to discharge him "because of his religion " He
accused McGuire of asking for favors other employees did
not seek On the following day, he was again called into the
office and , he testified, Oleen `said he had been getting
reports that I was threatening people, threatening to mash
people's heads in, over going on strike " "if people
went out on a wildcat strike McGuire told Oleen that if
they went out on strike, it wouldn't be a wildcat, it would
be legal On cross-examination, McGuire stated that Oleen
told him, "Don't go around threatening nobody, because if
I find it out, I will have you prosecuted and you can lose
your fob "
On Thursday evening, October 9, McGuire was in the
locker room with several other employees According to
McGuire, Dave McCarty challenged him to open one of
the combination locks McGuire accepted, merely twirled
the dial on Lowell Young's lock and it opened 17 McGuire
denied handling the lock on any other lockers However,
employee Rearick testified that he walked into the locker
room and observed McGuire working the combination on
his lock He walked up to McGuire and asked him what he
was doing McGuire `looked shocked" and replied that he
had opened Young's lock and was seeing if he could open
Rearick s Rearick told McGuire to stay away from his
locker Rearick s testimony, which was essentially corrobo-
rated by Eddie Trent, was credibly offered and was not
subjected to cross-examination On the other hand, I have
15 While I am inclined to credit Oleen I do not believe that a substantial
difference exists inasmuch as Oleen had determined to discharge Caudill
before Caudill came in that morning Caudill s explanation would have car
reed little weight against the evidence Oleen had accumulated
16 Both the hourly rate and the value of lost production seem inflated The
highest hourly rate is no more than $6 and even with overhead and fringe
benefits would not reach $ 14 75 I further find it difficult to accept that the
production was lost rather than merely delayed
17 According to employees Trent and Smith McCarty was present but
they did not hear any such challenge made It is undisputed that Young s
lock was faulty which could explain why it opened so easily
CONCRETE TECHNOLOGY, INC
generally discredited the testimony of McGuire, for the
reasons previously set forth
Rearick was angry over the incident and reported it to
his foreman, Steven Hoefler Hoefler immediately reported
it to Oleen Rearick told Oleen that McGuire had opened
Young's locker He checked his own locker and found
nothing missing Oleen then brought Young in to the lock-
er room, determined that the lock had been closed when
Young left it, and had Young check his locker to determine
if anything was missing
McGuire was called into Oleen's office on the following
day According to Oleen's testimony, which I credit, he
told McGuire that Rearick had reported his tampering
with the lock on his locker McGuire admitted both that
incident and the opening of Young s locker In response to
Oleen's question whether such conduct was proper, Mc-
Guire stated that he was just fooling around Oleen told
McGuire that he was a mature employee and that such
conduct could lead to problems He discharged McGuire,
giving him a check previously made out 18
Oleen contended that McGuire's absenteeism record,
only 9 complete weeks out of 57, contributed to the deci-
sion to discharge him He testified that they were close to
discharging McGuire, for that reason, some 3 or 4 weeks
earlier but had delayed taking action because of a report,
through Gilbert, that McGuire was considering quitting
McGuire denied telling Gilbert that he intended to quit,
Gilbert did not testify in regard to that subject Absentee-
ism was not mentioned to McGuire in the discharge inter-
view
3 Analysis and conclusions as to the alleged
discriminatory discharges
The issue before me is one of motive, whether the fore-
going evidence establishes that Respondent discharge Cau-
dill and McGuire, or both of them because of their union
activity I am satisfied that it did not
The discharge of Wesley Caudill is not without indica-
tions of unlawful motive Caudill was a union supporter
The discharge occurred near the culmination of the
Union's campaign, the Respondent had given some indica
tion of union animus during the opening days of the cam-
paign and there is some question as to whether Caudill was
really at fault in the accident which led to his discharge
Respondent's permissive attitude toward beer drinking at
work and the lack of maintenance of the cranes were also
contributing factors However, I note that Caudill's union
activity was not exceptional, Respondent's unlawful inter-
ference ceased within a few days, apparently upon the ac-
quisition of counsel and Respondent's campaign thereafter
was lawful and moderate in tone Most importantly, the
information which came to Respondent's attention follow-
18 McGuire s version to the effect that Oleen asked him whether he was
going to give up his religion and told him that he had been advised that he
Oleen could not fire McGuire because of his religion but had another ex
cuse his stealing money from a locker is not credited Moreover were I to
credit this statement I would as contended by Respondent be constrained
to conclude that McGuire was not discharged for his union activities but for
another possibly illegal reason not within the purview of the National La
bor Relations Boara s remedial authority
965
ing the accident, from Caudill's friends and fellow employ-
ees, established to Respondent's reasonable satisfaction
that Caudill had abused the beer drinking privilege and
thereby caused the accident A discharge under such cir-
cumstances would not be unreasonable and, I conclude,
the incident was the sole cause of Caudill's discharge In so
concluding, I am not unmindful of the fact that Caudill
received a wage increase shortly before his discharge As-
suming the lawfulness of that wage increase (a question I
do not reach), the record reflects that a number of other
employees were similarly raised Morever, as Caudill was
discharged for a single significant incident rather than for
an evaluation of his overall work performances as unsatis-
factory, the fact that he received an increase for satisfacto-
ry or meritorious work performance, or because he had
assumed additional or new responsibilities (of which there
was some indication), would have little impact on
Respondent's motive for the discharge Neither am I un-
mindful of the fact that there had been other accidents at
Respondent's plant which did not result in discharge
Those accidents, however, did not involve drinking
Like Caudill, McGuire was active on behalf of the
Union, but not exceptionally so This fact, alone, would
not insulate his discharge from the reaches of the Act as
there is no particular level of activity required before the
Act's protections may be invoked It is, however, a factor
which, with others, may be assessed to determine motive
In concluding that McGuire's discharge did not violate
Section 8(a)(3), I note that the discharge followed the elec-
tion which had been won by the Union and I note that
during the preelection period, except for the initial stages,
Respondent had conducted a lawful and temperate cam-
paign Finally, and most significantly, I find that Mc-
Guire's conduct, which at least gave the appearance of dis-
honesty and provoked a fellow employee to file a
complaint against him, provided Respondent with a basis
for discharge which would have resulted in the same action
being taken whether or not McGuire was involved in union
activities P P Berland Paint City, Inc, 199 NLRB 927
(1972)
Accordingly, I recommend that the 8(a)(3) allegations of
the complaints herein be dismissed
CONCLUSIONS OF LAW
1 By interrogating employees concerning their union
activities and threatening them with discharge, layoff, and
other reprisals, Respondent has interfered with, restrained,
and coerced employees in the exercise of rights guaranteed
in Section 7 of the Act, in violation of Section 8(a)(1) of the
Act
2 The unfair labor practices described above effect
commerce within the meaning of Section 2(6) and (7) of
the Act
3 Respondent has not engaged in any other unfair labor
practices alleged in the complaints herein
THE REMEDY
It having been found that Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1) of the
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act, it will be recommended that Respondent cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act
On the basis of the entire record, the findings of fact and
conclusions of law, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended
ORDER 19
The Respondent, Concrete Technology, Inc, Spring-
boro, Ohio, its officers, agents, successors, and assigns,
shall
1 Cease and desist from
(a) Coercively interrogating employees concerning their
union activities or threatening them with discharge, layoff,
or other reprisals because of their union activities
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of their
rights to self-organization, to form, loin, or assist Interna-
tional Union, United Automobile, Aerospace and Agricul-
tural Implement Workers of America, UAW, or any other
labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concert-
ed activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any and
all such activities, except to the extent that such rights may
be affected by an agreement requiring membership in a
labor organization as a condition of employment as au-
thorized in Section 8(a)(3) of the Act
2 Take the following affirmative action which it is
found will effectuate the policies of the Act
(a) Post at its premises in Springboro, Ohio, copies of
the attached notice marked "Appendix " 20 Copies of said
19 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
20 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 read Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board
notice, on forms provided by the Regional Director for
Region 9, after being duly signed by Respondent's author-
ized representative, shall be posted by Respondent imme-
diately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places at its
Springboro, Ohio, plant, including all places where notices
to employees are customarily posted Reasonable 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 Region 9, in writ-
ing, 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
After a hearing in which all sides had a chance to give
evidence, the National Labor Relations Board has found
that we violated the National Labor Relations Act and has
ordered us to post this notice
The Act gives all employees these rights
To engage in self-organization
To form, join, or help unions
To bargain collectively through representatives of
their own choosing
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all these things
WE WILL NOT do anything that interfers with, re-
strains, or coerces employees with respect to these
rights
WE WILL NOT coercively interrogate our employees
concerning their union activities
WE WILL NOT threaten you with discharge, layoff, or
other reprisals because of your union activities
CONCRETE TECHNOLOGY, INC