Cone Brothers Contracting Co.

National Labor Relations Board - Board Decisions

Jan 10, 1962

135 N.L.R.B. 108 (N.L.R.B. 1962)

108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Respondent has engaged in certain unfair labor practices, I will
recommend that it cease and desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2 (5) of the Act.
2. By promising the employees on March 27, 1961, a wage increase and more holi-
days at a later time or, if possible , other improvements , instead , and by granting a
wage increase to all employees on May 5, 1961, to induce them to reject the Union as
their collective-bargaining representative, the Respondent has interfered with, re-
strained , and coerced its employees in the exercise of rights guaranteed by Section 7
of the Act and thereby has engaged in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
4. The Respondent has not engaged in unfair labor practices by the employment
termination of Fred Naporlee and Alan Daly on May 17, 1961.
[Recommendations omitted from publication.]
Cone Brothers Contracting Company and Local 925, Inter-
national Union of Operating Engineers , AFL-CIO
Tampa Sand & Material Company and Teamsters, Chauffeurs,
Helpers Local Union No. 79, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America
Cone Brothers Contracting Company, Tampa Sand & Material
Company, and Florida Prestressed Concrete Co., Inc. and Local
925, International Union of Operating Engineers , AFL-CIO
Cone Brothers Contracting Company and John P. Siers
Cone Brothers Contracting Company , and/or Tampa Sand &
Material Company, and/or Florida Prestressed Concrete Co.,
Inc. and Robert Alvarez . Cases Nos. 1,0-CA-1493, 10-CA-1477,
12-CA-1492, 12-CA-1674, 12-CA-1687, and 12-CA-1767. Janu-
a2y 10, 1962
DECISION AND ORDER
On May 26, 1961, Trial Examiner George A. Downing issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondentshad engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. The Trial Examiner also found that Respondents
had not engaged in certain other unfair labor practices. Thereafter,
the General Counsel and Respondent Tampa Sand & Material Com-
135 NLRB No. 18.
CONE BROTHERS CONTRACTING COMPANY 109
pany filed exceptions to the Intermediate Report and supporting
briefs.'
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in con-
nection with these cases to a three-member panel [Members Rodgers,
Fanning, and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are affirmed. The Board has considered the Intermediate
Report, the exceptions and briefs, and the entire record in these cases,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner, with the modifications noted below.
The record demonstrates, as found by the Trial Examiner, that
because of their known union sympathies, Respondent Tampa Sand &
Material Company engaged in a scheme of placing employees Mathis,
Wilson, and Davis in the position of either crossing the picket line
established at the premises of the other Respondent Employers, or
being placed in a "quit" status. When Mathis, Wilson, and Davis did
in fact refuse to cross the picket line, they were terminated by being
placed in a "quit" status by Respondent Tampa. We agree with the
Trial Examiner that Respondent Tampa thereby constructively dis-
charged these employees for the purpose of discouraging union mem-
bership in violation of Section 8 (a) (3) and (1) of the Act. More-
over, we find that even in the absence of such scheme the discharge of
these employees for engaging in the protected activity of concertedly
refusing to cross the picket line violated Sections 8 (a) (3) and (1) of
the Act 2
ORDERS
Upon the entire record in these cases , and pursuant to Section 10(c)
of the National Labor Relations Act, as amended , the National Labor
Relations Board hereby orders that:
A. The Respondent , Cone Brothers Contracting Company, its
officers, agents , successors, and assigns , shall :
1 The Respondent's request for oral argument is hereby denied as the record , including
the exceptions and briefs , adequately present the issues and positions of the parties
2 The Trial Examiner found that the subsequent strike against Respondent Tampa Sand
& Material Company was in protest over the discharges of Mathis, Wilson, and Davis, and
was therefore an unfair labor practice strike. However , the Trial Examiner 's recom-
mended order does not provide for the reinstatement of the unfair labor practice strikers.
We agree with the unfair labor practice strike finding , and shall modify the recommended
order to provide for the reinstatement of the strikers , upon application, in accordance
with our usual practice in such cases.
3 Although we will order that the complaint against Prestressed be dismissed , as recom-
mended by the Trial Examiner , in view of his finding , which we adopt , that all the
Respondents herein constitute a single employer , and further, in view of the fact that the
record shows that employees of both Cone Brothers and Tampa Sand have occasion to
come upon the premises of Prestressed , we believe that it will effectuate the policies of the
Act to order that Prestressed post the notices which we will require Cone Brothers and
Tampa Sand to post.
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from :
(a) Interrogating employees concerning their signing of union
cards, their union membership, meetings, and activities, and their
strike intentions; informing employees that strikers' names are being-
taken and that they might as well leave the picket line and leave the
State, that a crew was moved to break up the Union, and that em-
ployees who refused to cross the picket line had forfeited their jobs.
and characterizing others as "quits"; threatening that strikers and,
employees who sign union cards or who refuse to cross the picket line
will be discharged and will be blacklisted or blackballed throughout
the State; threatening that it will not sign a contract with the Union
and will "starve out" the strikers; threatening to discharge and to,
arrest employees because of their organizational activities; threaten-
ing to go out of business rather than "go Union"; and promising bene-
fits to employees for "going along" with the Company and for not
striking.
(b) Using shotguns or other weapons in a threatening manner
toward pickets and threatening to shoot strikers; arming supervisors,
employees, and guards for passage through the picket line; directing
employees to carry, and furnishing, or offering to furnish, them guns
and other miscellaneous weapons, and directing employees to run over
strikers; characterizing as "quits" employees who refuse to carry, or to,
work with employees who carry, weapons; and threatening to handle
strikers "like people shooting at a covey of birds."
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to join
or assist Local 925, International Union of Operating Engineers,
AFL-CIO, or any other labor 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.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post in its offices at Tampa, Florida, copies of the notice at-
tached hereto marked "Appendix A." 4 Copies of said notice, to be
furnished by the Regional Director for the Twelfth Region, shall,
after being signed by Respondent's representative, be posted by Re-
spondent immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
4 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
CONE BROTHERS CONTRACTING COMPANY 11T
(b) Notify the Regional Director for the Twelfth Region, in writ-
ing, within 10 days from the date of this Order, what steps Respond-
ent has taken to comply herewith.
B. The Respondent, Tampa Sand & Material Company, its officers,
agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Interrogating employees concerning their union membership,,
sentiments, and activities; directing employees to canvass the union
sentiments of others; conditioning the recall of laid-off employees on
their promises to vote against the Union; promising benefits if em-
ployees reject the Union; threatening to discharge employees for re-
fusal to work during the strike ; and warning employees not to visit
or to give affidavits to the National Labor Relations Board.
(b) Discouraging membership in Teamsters, Chauffeurs, Helpers
Local Union No. 79, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America, or in any other labor
organization of its employees, by discharging or constructively dis-
charging said employees because of their union membership or other
concerted activities, or discriminating in any other manner in regard
to hire or tenure of employment or any term or condition of em-
ployment to discourage membership in a labor organization.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
join or assist Teamsters, Chauffeurs, Helpers Local Union No. 79,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen
& Helpers of America, or any other labor organization, to bargain col-
lectively 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.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Otho Mathis, Woodrow Wilson, and Wyman Davis
immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other
rights and privileges, and make each of them whole for any loss of
pay he may have suffered by payment to him of a sum of money equal
to that which he normally would have earned from May 26, 1960, to
the date of the offer of reinstatement, less his net earnings during said
period (Crossett Lumber Company, 8 NLRB 440, 497-498), said back-
pay to be computed on a quarterly basis in the manner established by
the Board in F. W. Woolworth Company, 90 NLRB 289.
(b) Upon application, offer immediate and full reinstatement to
their former or substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, to all those employees
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who were on strike on and after May 27, 1960, and who have not
already been reinstated to their former or substantially equivalent
positions, without prejudice to their seniority or other rights and
privileges, dismissing, if necessary, any persons hired by the Respond-
ent on or after May 27,1960, who were not in the Respondent's employ
on that date.
(c) Make whole the employees specified in paragraph numbered
2(b), above, for any loss of pay they may have suffered by reason of
the Respondent's refusal, if any, to reinstate them in the manner pro-
vided in paragraph numbered 2(b), above, by payment to each of the
sum of money equal to that which he normally would have earned as
wages during the period from 5 days after the date on which he ap-
plied for reinstatement to the date of the Respondent's offer of re-
instatement, less his net earnings, if any, during said period.
(d) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amounts of backpay
due under this Order.
(e) Post in its offices at Tampa, Florida, copies of the notice at-
tached hereto marked "Appendix B." 5 Copies of said notice, to be
furnished by the Regional Director for the Twelfth Region, shall,
after being signed by Respondent's representative, be posted by Re-
spondent immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(f) Notify the Regional Director for the Twelfth Region, in writ-
ing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith.
IT IS FURTHER ORDERED that Florida Prestressed Concrete Co., Inc.,
post at its offices at Tampa, Florida, copies of the notices attached
hereto marked "Appendix A" and "Appendix B," respectively. Copies
of said notice, to be furnished by the Regional Director for the Twelfth
Region, shall, after being signed by representatives of Respondent
Cone Brothers Contracting Company and Respondent Tampa Sand &
Material Company, respectively, be posted by Florida Prestressed
Concrete Co., Inc., immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in conspicuous places,
including all places were notices to employees are customarily posted.
Reasonable steps shall be taken by Florida Prestressed Concrete Co.,
Inc., to insure that said notices are not altered, defaced, or covered
by any other material.
6 See footnote 4, supra.
CONE BROTHERS CONTRACTING COMPANY 113.
IT IS FURTHER ORDERED that the complaint be dismissed as to Respond-
ent Prestressed ; that paragraphs numbered 21; 26, and 27 of the com-
plaint be dismissed as to all Respondents ; that paragraphs numbered
19 and 20 be dismissed as• to Respondent Tampa Sand & Material
Company; and that the complaint be further dismissed insofar as it
charged Respondent ' Cone Brothers Contracting Company with an
unfair labor practice by the discharge of Phillip Johnson.
APPENDIX
NOTICE TO ALL EMPLOYEES ,
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor Re-
lations Act, we hereby notify our employees that :
WE WILL NOT interrogate employees concerning their signing of
union cards, their union'membership, meetings, and activities, or
their strike intentions; inform employees that strikers' names are
being taken and that they may as well leave the picket line and'
leave the State, that a crew was moved to break up the Union,
and that employees who refused -to cross the picket line have for-
feited their jobs, nor will we characterize others as quits; threaten
that strikers and employees who sign union cards or who refuse
to cross a picket line will be discharged and will be blacklisted
or blackballed throughout the State; threaten that we will not
sign a contract with the Union and will "starve out" the strikers;
threaten to discharge and to arrest employees because of their
organizational activities; threaten that we will go out of business
rather than go union; nor will we promise benefits to employees
for going-along with the Company and for not striking.
WE WILL NOT use shotguns and other weapons toward pickets in
a threatening manner or, threaten to shoot strikers; nor will we
arm supervisors, employees, and,guards for passage through the
picket•line, direct employees to carry or furnish, or offer to furn-
ish, them guns or, other miscellaneous weapons; direct employees
to run over strikers ; characterize as "quits" employees who re-
fuse -to,carry, or to work with•employees who carry, weapons, or
threaten to handle strikers "like,people shooting at a covey of
birds." ,
WE WILL -NOT ill any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization, to join or assist Local 925, International Union of
Operating Engineers, AFL-CIO, or any other labor organization,
to bargain collectively through representatives of their own choos-
ing, or to engage in other concerted activities for the purpose of
634449-62-vol . 135--9
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities.
All our employees are free to become or to refrain from becoming
members of the above-named Union or any other labor organization.
CONE BROTHERS CONTRACTING COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT interrogate employees concerning their union
membership, sentiments, and activities; direct employees to can-
vass the union sentiments of others; condition of recall of laid-off
employees on their promises to vote against the Union; promise
benefits if the employees reject the Union; threaten to discharge
employees for refusal to work during the strike; or warn employ-
ees not to visit or give affidavits to the National Labor Relations
Board.
WE WILL NOT discourage membership in Teamsters, Chauffeurs,
Helpers Local Union No. 79, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of America, or in any
other labor organization of our employees, by discharging or
constructively discharging them because of their union member-
ship or activities, nor will we discriminate in any other manner
in regard to hire or tenure of employment or any term or condi-
tion of employment to discourage membership in a labor
organization.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization, to join or assist Teamsters, Chauffeurs, Helpers
Local Union No. 79, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, or any other
labor organization, to bargain collectively through representa-
tives of their own choosing, or 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.
CONE BROTHERS CONTRACTING COMPANY 115
WE WILL offer to Otho Mathis, Woodrow Wilson, and Wyman
Davis immediate and full reinstatement to their former or sub-
stantially equivalent positions, without prejudice to their senior-
ity or other rights or privileges, and make them whole for any
loss of pay they may have suffered as a result of our discrimina-
tion against them.
WE WILL, upon application, offer immediate and full reinstate-
ment to their former or substantially equivalent positions, with-
out prejudice to their seniority or other rights and privileges, to
all those employees who were on strike on and after May 27, 1960,
and who have not already been reinstated to their former or sub-
stantially equivalent positions, without prejudice to their senior-
ity or other rights and privileges, dismissing, if necessary, any
persons hired by us on or after May 27, 1960, who were not in our
employ on that date.
WE wiLL make whole the employees specified in the paragraph
immediately above, for any loss of pay they may have suffered
by reason of our refusal, if any, to reinstate them in the manner
provided in the paragraph immediately above, by payment to
each of them the sum of money equal to that which he normally
would have earned as wages during the period from 5 days after
the date on which he applied for reinstatement to the date we
offer reinstatement, less his net earnings, if any, during said
period.
All our employees are free to become or to refrain from becoming
members of the above-named Union or any other labor organization.
TAMPA SAND & MATERIAL COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, brought under Section 10(b) of the National Labor Relations
Act, as amended (61 Stat . 136; 73 Stat . 519), was heard in Tampa, Florida, from
January 4 to February 9, 1961, pursuant to due notice . The case was heard on a
second amended consolidated complaint which issued on December 20, 1960,1 and
which alleged that Respondent Companies , allegedly a single employer, had engaged
in unfair labor practices violative of Section 8(a) (1) and ( 3) of the Act, which
may be briefly summarized as follows:
1 Other amendments were offered during the hearing , some of which were allowed, some
denied . Respondents ' motion for a further continuance was denied at the opening of the
hearing, with permission to renew the motion at the conclusion of the General Counsel's
case in the event they were not prepared to go forward . When the General Counsel rested
on January 18, Respondents ' motion was granted to recess to January 31.
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Each of the three companies, herein called Cone Brothers, Tampa Sand, and
Prestressed, respectively, was charged separately with numerous specified acts of
interference, restraint, and coercion, including interrogations, threats, and promises
of benefits, all in relation to union and strike activity.
(b) Tampa Sand was charged with discriminatorily discharging Otho Mathis,
Woodrow Wilson, and Wyman Davis on May 26, 1960.
(c) Cone Brothers was charged with discriminatorily discharging Phillip Johnson
on June 1, 1960.
(d) Respondent was charged as an entity with a number of specified acts by
which it had in effect threatened employees on the picket line with injury and as-
saults and had otherwise engaged in interference, restraint, and coercion by encourag-
ing, condoning, and ratifying acts and conduct of supervisors and employees in
using various weapons, tools, and vehicles and in carrying and brandishing weapons
at the picket line. A separate allegation concerned an assault and a threat to assault
employees on May 28, by I L. Cone, Jr.
(e) Respondent was charged as an entity with issuing and distributing to other
employers in the area a "blacklist" of the strikers , with instructions and/or requests
that said strikers be denied employment, and with having effected, via that black-
listing, the discriminatory discharge of Robert Alvarez on June 8, 1960, through
the agency of Brinson-Allen Construction Company.2
The complaint also alleged that strikes called by Operating Engineers against Cone
Brothers and Prestressed, and by Teamsters against Tampa Sand, were caused and
prolonged by Respondents' unfair labor practices.
Separate answers were filed by the three corporations, each of which contained
a general denial of all unfair labor practices.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. RESPONDENTS ' BUSINESSES
Cone Brothers, Tampa Sand, and Prestressed are Florida corporations which
maintain their principal offices and places of business in Tampa, Florida. Their busi-
nesses are fully described in section III, B, infra. I find on facts alleged in the com-
plaint and admitted by answer that each of said companies is engaged in interstate
commerce within the meaning of Section 2 (6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Local 925, International Union of Operating Engineers, AFL-CIO, and Teamsters,
Chauffeurs, Helpers Local Union No. 79, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, are labor organizations within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction, background, and issues
Cone Brothers, Tampa Sand, and Prestressed employed, respectively, approxi-
mately 900 , 200, and 150 employees in their closely affiliated businesses . (See section
B, infra.)
Operating Engineers began about February 1960 to organize the employees of
Cone Brothers other than those in the maintenance shop, for whom it had been in
negotiation with Cone Brothers for several months as collective -bargaining repre-
sentative . The campaign was later extended to Prestressed . In late February,
Teamsters began an organizational campaign of Tampa Sand employees .3 Engineers
.2 A separate complaint against Brinson-Allen, consolidated for hearing with the present
proceeding, w,as withdrawn by the General Counsel on January 3, 1961, following approval
by the Regional Director of a settlement agreement of the charge against Brinson-Allen
The, Trial Examiner dismissed as to Respondents the allegations concerning Alvarez at
the end of the General Counsel's case, but on appeal, during the recess, the Board re-
instated the Alvarez allegations.
2 A representation petition was filed by the latter union on March 4 (Case No. 12-RC-862,
not published in NLRB volumes), a Decision and Direction of Election issued May 24, and
an election was held on June 7. Challenged ballots and objections raised issues which
were ultimately considered by the Board in its Supplemental Decision and Order Issued
January 16, 1961 (129 NLRB 1273) The matter is now pending before the Regional
Director pursuant to the Board's order remanding the case.
CONE BROTHERS CONTRACTING COMPANY 117
struck Cone Brothers and Prestressed on May 24, and Teamsters struck Tampa Sand
on May 27.
The alleged unfair labor practices occurred during the course of the organizational
campaigns, and most of them during a period of a few weeks before, and during
the early days of, the strikes.
Charges were filed against the three companies both individually and jointly, and
the General Counsel has proceeded against them by a single complaint on the theory
that they constitute a single employer within the meaning of the Act. Threshold
issues concern that contention and the disputed status of many of the supervisors
of the respective companies by whom the alleged unfair labor practices were com-
mitted. See sections B and C, infra.
As both Cone Brothers and Tampa Sand operated a number of plant factilities
and projects in and around Tampa, and as Cone Brothers' roadbuilding operations
covered a wide section of the State, the evidence herein related to many different and
scattered settings in several different counties and many miles apart?
The issues concerning unfair labor practices, proper, were largely factual, turning
on the credibility of the opposing witnesses. The General Counsel's case as to
encouraging, condoning, and ratifying the intimidatory use of weapons, etc., was
defended on two bases: (a) denial of responsibility and of the instigation and ratifi-
cation, and (b) picket line and other strike misconduct justified the instances where
working employees and supervisors carried or exhibited weapons.
Further issues concerned the cause and character of the strikes, which, though
started separately, were merged under a single direction on May 27.
Respondents also reargue contentions as to alleged denial of due process during
the hearing and as to alleged harassment by the General Counsel in the prosecution
of the case, which should be briefly mentioned. Denial of the motion for a con-
tinuance is mentioned in footnote 1, supra. The formal file showed further that
Respondents had repeatedly sought earlier continuances from the Regional Director,
some of which had been granted. Moreover, the record showed no instance in which
Respondents were handicapped in the full presentment of their case, and their brief
points to none, same in the bare claim that their rights were (shomehow) prejudiced
by denial of their motion for a continuance at the inception of the hearing.
Respondents urge also rulings of the Trial Examiner denying their requests for the
production of alleged prehearing statements given by General Counsel's witnesses,
J. B. Phillips, Zeno Stansberry, Louis Johannsen, Henry Savage, Jr., and Lonnie Lee.
The General Counsel produced affidavits from all except Johannsen (who had given
none), and represented that there were no other written statements which were
identified, adopted, or signed by the witnesses. Bruckner and Romano had reinter-
viewed the witnesses before the hearing and had made notes whose contents were
unknown to the witnesses. What Respondents were seeking was the production of
those notes, which, of course, fell plainly outside the scope of Section 102.118 of
the Board's Rules and Regulations, Series 8.
It is difficult to comprehend the precise basis of the claim of harassment by the
General Counsel. What is specifically complained of appears to be: a delay of
41/2 months in issuing the complaint, plus the fact of five amendments, plus the
claim of "frivolous and trifling allegations," and plus the fact that certain earlier
charges were dismissed by the Regional Office on the basis of insufficient evidence
at the time. The only one of those which, if true, would warrant scrutiny by the
Board (see Section 3(d) of the Act) is that of frivolous and trifling allegations;
and the findings hereinafter made on the entire evidence dispose of that.
A word should also be said concerning the organization of the report, which in
itself presented a considerable problem because of the length of the record, the
myriad incidents, and the separate and joint allegations concerning the three corpo-
rations. The most convenient arrangement (and one which follows generally the
organization of the complaint) is to treat separately the portions of the case which
relate to the companies individually, and then to proceed to those which apply to
them jointly, i.e., the allegations concerning the threatening use of weapons, tools,
etc., and those concerning blacklisting and discharge by blacklisting. The only back-
tracking which will be necessary under that arrangement will be on the evidence
relating to weapons, etc., and Respondents' counterevidence concerning picket line
and other strike misconduct.
* Some of the locations were over 100 miles from Tampa (Orange City, for example).
The Lansing and Nobleton rock mines were well over 50 milea from Tampa ; the haul
from Noble ton to Kissimmee was farther than that; and the drive from Nobleton to
Parrish was around 90 miles.
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The "single employer" issue
Cone Brothers, Tampa Sand, and Prestressed operate businesses which are closely
affiliated in ownership , control , management , and in their actual operations. Cone
Brothers is engaged chiefly in the business of road, bridge, and sewer contracting in
the State. Tampa Sand deals in sand, shell, and crushed stone, and it manufactures
and sells concrete blocks and ready mixed concrete. Prestressed manufactures and
sells prestressed concrete products.
The three companies are "family" corporations; they were organized during the
lifetime of J. L. Cone, Sr., father of the Cone brothers, J. L., Jr., C. W., and Douglas,
to whom control descended upon the death of the senior Cone in July 1957. Just
prior to his death, J. L. Coke, Sr., was negotiating with certain building trades
unions, and J. L., Jr., took over the position as negotiator upon his father's death.
Except for a one-fourth interest which Fred H. Poe (uncle of the Cone brothers)
owned in Tampa Sand,5 the record does not indicate any stock holdings in any of
the three companies by anyone other than the senior Cone during his lifetime and
none since his death save by his sons and members of their families. Thus the
Cone brothers own all the stock in Cone Brothers and they own the controlling
interest (more than 51 percent) in Prestressed and Tampa Sand.
The three brothers are the directors of Cone Brothers and they, plus Charles Poe
(son of Fred Poe) are the directors of Tampa Sand and Prestressed. J. L. Cone, Jr.,
is president of Cone Brothers and Tampa Sand and is vice president of Prestressed.
Douglas Cone is president of Prestressed and vice president of Cone Brothers and
Tampa Sand. C. W. Cone is a vice president of Cone Brothers and is treasurer of
Tampa Sand and Prestressed. William 0. Stubbs is comptroller of all three com-
panies, is secretary-treasurer of Cone Brothers, and is assistant secretary of Tampa
Sand and Prestressed. Fred Poe is secretary of Prestressed and secretary and gen-
eral manager of Tampa Sand. Jack Newsome is assistant vice president of Pre-
stressed and is assistant secretary of Cone Brothers. Paul Gillan is general manager
of Prestressed.
Though the companies' operations take place at numerous locations, the heart of
the entire organization is a single office building at 309 Caesar Street in Tampa,6
which houses the general offices of the three coompanies. Though separate staffs
do there the clerical work for the companies under different supervision, all are
under the overall supervision of Comptroller Stubbs, and there are also one or two
common employees. A single switchboard serves the offices with two operators, one
of whom is carried on Cone Brothers' payroll and one on Tampa Sand's. The
janitor is paid wholly by Cone Brothers. The building itself, formerly owned by
Cone, Senior, is now leased by the three companies from the executors of the estate
(i.e., the Cone brothers, Fred Poe, and a local bank) under separate documents and
rental payments.
Cone Brothers purchases about 25 percent of the total production of Prestressed
and less than 25 percent of the total production of Tampa Sand (other than concrete
blocks, which it does not use). The prices are the same as charged to other cus-
tomers, and Cone buys also from other suppliers whenever their sources of supply
are closer to the jobsites. Cone Brothers in turn sometimes performs hauling,
excavating, and paving work for the other companies, with appropriate billing for
services.
According to Stubbs' affidavit furnished to the Board in connection with a sec-
ondary boycott proceeding, Case No. 12-CC-108 (not published in NLRB volumes) :
Cone Brothers Contracting Company has over a period of at least five years
parked equipment on Tampa Sand property locations and Cone employees have
over the same period at various times, reported to their supervisors on Tampa
Sand & Material property locations. Conversely, Tampa Sand has parked
equipment on Cone Brothers' property and various Tampa Sand employees
have customarily reported to their supervisors on property locations owned by
Cone Brothers Contracting Company, such Cone Brothers and Tampa Sand
locations being used interchangeably. Likewise the Shop location at the corner
of Cumberland and Jefferson Streets is a shop which is jointly utilized for
maintenance of equipment of both Cone Brothers Contracting Company and
5 Poe has since divided a portion of his holding among his sons
9 A number of Cone and Tampa Sand facilities are on adjoining or nearby blocks, e g.,
the maintenance shop, the block plant, storage lots for blocks, and truck and other park-
ing lots.
Prestressed also maintains its main clerical office at its plant on 56th Street, on the
outskirts of Tampa.
CONE BROTHERS CONTRACTING COMPANY 119
Tampa Sand & Material. Said shop is the location where the employees of
Cone Brothers Contracting Company had reported to and from work on the
Brandon Shopping Center paving job. Various employees of Tampa Sand &
Material had also reported for work at said shop location before the strike.
The joint use of Cone Brothers Contracting Company and Tampa Sand &
Material operational property locations as reporting places for work crews of
the two companies was and continues to be a common practice.
Testifying as a witness, Stubbs minimized the extent of the foregoing interchanges,
stating that they generally occurred when the companies were doing work for one
another. There was also testimony by other witnesses that some of the same prac-
tices were followed with other concerns outside the Cone organization on occasions
when contract work was being done at other sites.
There was no evidence of interchange of employees among the three companies.
Stubbs' affidavit also contained the following paragraph:
Tampa Sand & Material stock is owned by the same stockholders who own
the stock of Cone Brothers Contracting Company. Tampa Sand & Material,
like other Cone affiliates has the same labor relations policy set by Cone Brothers
Contracting Company officers, has interlocking directors and utilizes its work-
ing locations at times as part of the same business enterprise. The labor rela-
tions policy for the above two companies is determined by J. L. Cone, Jr.,
Douglas P. Cone, and Fred H. Poe.
Stubbs testified that though he did not prepare the affidavit, it was submitted to
him for signature by someone in his office; and it was stipulated that the affidavit
was submitted by Fisher's firm to the Board in connection with the secondary boy-
cott case, supra, and that the Cone companies were not the Charging Parties therein.
Stubbs, who held a degree in business administration from Emory University, ex-
plained as a witness that:
... [M]y understanding of Labor Relations policy as contained in this state-
ment has pertained to me, the only things that I am concerned with was wage
rates and wage benefits that generally affect the work that I have supervision
over. The Labor Relations policy for the above two Companies as I referred
there are set by Mr. Cone, Jr., Mr. Douglas Cone and Mr. Fred Poe. They
are, either individually or as a group, majority stockholders who elect the Board
of Directors who discharge those responsibilities, and the ultimate responsibility
is in their hands.
J. L. Cone, Jr., denied that the labor relations policy for Tampa Sand and
Cone Brothers is set by himself, Douglas Cone, and Fred Poe, and testified that he
was in charge of labor relations at Cone Brothers, Fred Poe at Tampa Sand, and
Douglas Cone at Prestressed. Cone also denied that there were either any meetings
of directors or officers of the companies concerning a labor relations policy and
denied that he met or consulted with Poe or Douglas Cone or C. W. Cone concerning
such a policy. Admitting general discussions as to overall business conditions, Cone
denied that he had anything to do with the other two companies as to setting wage
rates, working conditions, etc.
Final facts of some relevance are that holiday and vacation benefits vary between
the three companies and that the employees of all three have a single credit union.
Concluding Findings
Though I do not conceive it to be crucial to the General Counsel's case,? I find
from the entire evidence that the three corporations constitute a single employer
within the meaning of the Act. The Cone brothers now share jointly the common
ownership and control of the companies which formerly reposed in their father's
hands. Their's are the top executive positions, and as they constitute the majority
stockholders and majority directors, their control is incontestable. That minor offices
and some of the day-to-day management functions are in the hands of others does
not belie the reality that actual control of the companies is by the brothers Cone.
To justify a finding in an unfair labor practice case that separate legal entities
constitute a single employer it must generally appear that they are not only subject
to common control but also that a controlling ownership interest in the companies
? There is no suggestion from the record that any of the three companies would be
unable to remedy such unfair labor practices as may be found against them.
Consolidation of these cases for hearing was plainly justified , without regard to the
single employer point , because of charges filed against the three companies jointly.
'120 DECISIONS ,OF NATIONAL LABOR RELATIONS ^ BOARD
is held by the same individual or group of individuals. Dearborn Oil and Gas Cor-
poration, et al., 125 NLRB 645,647, citing N.L.R.B. v. Somerset, Classics, Inc., et al.,
193 F. 2d. 613 (C.A. 2), enfd. 90 NLRB 1676; and N.L.R B. v. Federal Engineering
Company Inc., 153 F. 2d 233 (C.A. 6), enfg. as mod: 60 NLRB 592. , The•evidence
here plainly meets that requirement.
Though the operations -of the three companies cannot strictly be termed "inte-
grated," they are closely related. Furthermore, the absence of the factor of integra-
tion does not prevent a finding of a single employer where other factors are sufficient
to support the finding. Technical Tape Corporation, 111 NLRB 845. Neither is
the fact of separate managers conclusive. 'Id. Here we' have in addition to common
ownership and control, centralized office and accounting facilities, interuse of plant
facilities, and joint upkeep and care of equipment. '
Centralized control of labor relations is, of cdiirse, another factor which is'fre-
quently stressed by the Board in finding common control of separate legal entities.
Dearborn Oil and Gas Corporation, supra, and cases there cited at footnote 8. On
that point Stubbs' affidavit, if read literally, would leave no room for question, and
his explanation as a witness did not substantially detract from it Though Cone
testified that he, Fred Poe, and Douglas Cone were in charge of labor relations at
Cone Brothers, Tampa Sand, and Prestressed, respectively, that testimony cannot be
accepted literally either in view of his admission that he took over his father's place
as negotiator for the companies with the building trades unions. Furthermore, as
Stubbs observed and as the facts established, the Cones and Poe are majority stock-
holders and (majority) directors, and the ultimate responsibility is in their hands.
,Neither that nor any other legal responsibility can be evaded by a failure to call
.formal meetings of the directors or officers. In reality, as Stubbs testified, the labor
relations policy was in the hands of J. L. Cone, Jr., Douglas Cone, and Fred Poe.
I conclude and find, on the basis of the entire evidence, that the three companies
constitute a single employer within the meaning of the Act.
C. The supervisors
Litigated at great length in this case were issues concerning the supervisory
status of practically all of the 31-odd persons by whom the alleged unfair labor prac-
tices were committed,8 including, indeed, some as to whom Respondent's counsel
:herein had stipulated supervisory status during representation proceedings (i.e. Robert
Campion and David Bracewell. See Florida Prestressed Concrete Company, Inc.,
Case No. 12-RC-962, Decision and Direction of Election, issued September 23,
1960, not published in NLRB volumes). The issues are substantially narrowed in
Respondent's brief, in which it specifically denies the supervisory status of Ike
Thomas, Richard Trent, John Vaughn, Jimmy Madeloni, Henry Herndon, Lester
Doss, John Fraizer, John Connors, Max Hendry, and Harold White. It is also
necessary to consider the status of Erwin Stevenson (Hadacol) and Gene McCul-
lough, since it is not clear that Respondent has abandoned as to them its contentions
at the hearing. As to all others listed in footnote 8, supra, I find that the evidence
plainly established as to each the possession and the exercise of one or more of the
facets of supervisory authority specified in Section 2(11) of the Act.
We now turn to the 12 whose status is in issue.
Ike Thomas and John Vaughn were shop foremen and Richard Trent a truck fore-
man under John B. Haenel, shop superintendent of Cone Brothers. Charles Bailes,
who was "next in command" to J. L. Cone, Jr., testified that though they did not
have the right to hire or fire, they had the right to and did make effective recommen-
dations to Haenel. By this Bailes explained that though the superintendent would
make his own investigation and decision, the foreman's recommendation would be
"strongly considered." 9 There was also undisputed testimony concerning the actual
8 Cone Brothers: Walter Cooper, J. C Doolittle, Henry Herndon, Otis Williams, Frank
Boyer, Don Smith, Charles Baffles, Erwin Stevenson, A. E. Davis, Lester Doss (Dawson),
Herbert Meeks, John Connor, Ike Thomas, John Frazier, Jimmy Madeloni, John, B. "Fats"
Haenel, Richard Trent, Gene McCullough, Mike McCartney, Hansel Silas, Virgil Lee, and
John Vaughn
Tampa Sand: Charles Poe, Fred H Poe, Max Hendry, Dave Linton, and Joe Ciprich.
Prestressed* William Cooper, Dave Bracewell. Harold White, and Robert Campion
e Though Stubbs gave testimony in which he first equated the payment of a salary with
the according of supervisory status on Respondent's records, he corrected that testimony
later All supervisors were apparently paid on a salary basis, but not all persons so
compensated were supervisors, as demonstrated by the example of dispatchers, Gray,
Sellers, and Dunning.
CONE BROTHERS CONTRACTING COMPANY 121
discharge of an employee by Vaughn. Though Trent denied that he had the authority
to hire or fire or had exercised such authority, there was testimony by three witnesses
concerning actual instances of hiring and firing, and there was also testimony that
Trent called and talked at meetings of the employees as a representative of manage-
ment. Thomas' denials that he was without authority to hire and fire were im-
peached by his affidavit given to the Board.
I conclude and find that Thomas, Vaughn, and Trent were supervisors within the
meaning of the Act.
Bailes testified that Gene McCullough was hired as second in command to Shop
Superintendent Doolittle but remained only a short time; that like Thomas, Vaughn,
and Trent, McCullough could make effective recommendations for hiring and firing.
Henry A. Lynn testified to witnessing an actual discharge by McCullough, who was
not called as a witness. It is therefore concluded and found that McCullough was
a supervisor within the meaning of the Act.
Erwin Stevenson was a laborer in the sewer department under Foreman A. E.
Davis, and sometimes acted as leadman or working foreman when so designated by
Davis. The evidence wholly failed to establish that Stevenson possessed supervisory
status; it showed only that he sometimes gave routine directions to his helper or
helpers, with whom he worked manually full time on an hourly basis.
Jimmy Madeloni was a brickmason who worked under Superintendent Boyer of
the sewer department. Normally two or three employees worked with him (e.g., a
helper and a mortar mixer) and they were paid on an hourly basis. Though
Madeloni himself spent his full time doing manual labor, he was paid on a salary
basis. Holly Maney testified that Madeloni hired him on the spot when he applied
for a lob, and Harold Rickey testified that Madeloni put to work two different men
whom Rickey took to the job. Madeloni testified that though he was without author-
ity to hire or fire, he recommended to Boyer and got Boyer 's permission or approval
before acting. Thus he testified:
Q. In other words, you went to Mr. Boyer and said, "I'd like to hire this
fellow," and Mr. Boyer said, "All right."
A. That's right.
As it is apparent that Madeloni had in any case authority effectively to recommend
the hiring and firing of employees, I find that he was a supervisor within the mean-
ing of the Act.
Henry Herndon was an assistant to Walter Cooper and was foreman of the night
shift at such times as it was operating. During such periods he undoubtedly qualified
as a supervisor, for there was testimony that he "bossed" the night shift in the same
manner as Cooper did the day shift. However, the night shift was terminated on
April 15, before the crew was moved away from Skipper Road. As the findings
herein are being limited to conduct which followed that move (for reasons herein-
after stated), Herndon's status must be considered after the move to Lansing.
The General Counsel did not establish by a preponderance of the evidence that
Herndon had supervisory status after the move. Indeed, the evidence was confined
almost exclusively to the earlier period, including, for example, testimony that Hern-
don discharged Wayne Nelson and James C. Martin, Jr. Furthermore, as to the
latter discharge, James C. Martin, Sr.'s testimony that Herndon had discharged his'
son was impeached by his prior affidavit to the Board that Cooper informed him
that Cooper had ordered the discharge. I credit Cooper's testimony that he himself
effected or ordered both discharges.
The evidence is scanty and confused both as to the identity of Lester Doss (Daw-
son) and as to his commission of alleged illegal conduct. Though Doss was not
paid on a salary basis, as were all other supervisors, Zeno W. Stansberry testified
that the truckdrivers at Parrish took their orders from Doss, who took his orders in
turn from Hansel Silas, job superintendent. Bailes testified that Doss was a me-
chanic, who had no right to hire or fine, but that he made recommendations which
"would be listened to very carefully" by his supervisor.
The only allegation concerning Doss joined him and Herbert Meeks in threatening
employees with automatic replacement in the event they had anything to do with
the Union. The only evidence concerning that appears to be the testimony of
Victor Adams concerning a statement by Meeks on the Orange City job made in
the presence of "Lester," who was described only as a mechanic. There was no
evidence that "Lester" himself said anything on the occasion.
Though the point therefore seems moot, L conclude and find that the preponder-
ance of the evidence does not establish that Doss was a'supervisor. '
John Frazier was a salaried foreman in charge of'a grubbing and clearing crew
of 8 to 10 men' on highway projects of 7 or more miles in length, working imme
diately under ,the job superintendents . James W. Harrison testified that he worked
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
under Frazier some 5 or 6 months, taking all of his orders from Frazier and
applying to Frazier for time off. Tommy Fewox testified to having seen Frazier
hire and fire laborers. Frazier testified that his practice was to notify the job
superintendent both when he needed men and when he did not need them, and that
though the superintendent usually followed his recommendations , he did so only
after checking.
Under the foregoing circumstances and since some 75 or more men were em-
ployed under the job superintendent in various operations along a 7-mile stretch,
it is concluded and found that Frazier, who ranked next to the superintendent
vis-a-vis his crew, was a supervisor within the meaning of the Act.
Cone's asphalt plant operated under the general supervision of Superintendent
Mike McCartney, who testified that his time was equally divided between the plant
and the road operations. When he was not there, John Connor was in charge of the
plant, directing it in the same manner as McCartney did when present. Though
both of them testified that Connor had no authority to hire or fire, they admitted
that Connor customarily interviewed applicants in McCartney's absence and con-
ferred with McCartney concerning the hiring. G. J. Burke (whose duties included
leaning up the plant office) also testified that Connor actually hired and fired
employees in McCartney's absence.
Since it was plain from McCartney's testimony that Connor was the only person
who supervised the plant and its employees in McCartney's absence for half of the
time, I conclude and find that Connor was a supervisor.
The status of Max Hendry, Tampa Sand's "truck foreman," was litigated at great
length. Though Hendry was hired in February 1960, chiefly for the purpose of
seeing that thetrucks were kept clean and in good condition, he did no mechanical
work himself, and his duties included checking on, and making reports to Charles
Poe on, the performance of the drivers, which led directly to the loss of their yard-
age bonuses where they failed to heed Hendry' s warnings to rectify the condition
of their trucks. Though I credit the testimony of Hendry 'and Poe that Hendry's
name or signature did not appear on the posted notices that yardages were being
forfeited, I find that Hendry himself posted the warning notices. And though Poe
himself made the final decisions (to forfeit yardage), it was plain from the entire
evidence that if the decisions were not the results of conferences between them, they
were largely based on Hendry's reports. Furthermore, Poe confirmed his testimony
in the representation case (12-RC-862) that he would give "very' serious considera-
tion" to Hendry's recommendations for discharge.
It was also plain from the entire evidence that both Poe and the drivers looked
upon Hendry as a representative of management. Hendry had taken over a part
of the job which Poe himself had formerly done, and the drivers viewed Hendry
as being directly responsible for the loss of their bonus payments. Poe, who had
not formally conferred on Hendry the power to hire and fire, did so immediately
after the strike began. Furthermore, on the day before the strike, when faced with
the problem of offering reinstatement to D. L. Greene and Lester Cumbest, it was,
significantly, with Hendry that Poe conferred about finding work for them to do,
a matter which was entirely foreign to his ostensible duties.
I therefore find on the basis of the entire evidence that Hendry was a supervisor
and an agent of Respondent.
Harold White was the truck dispatcher and shipping and receiving clerk (salaried)
of Prestressed. He testified that he spent the bulk of his time (divided roughly 70
percent in the office and 30 percent in the yard) in work which was of a routine
clerical nature, that there were no employees under his supervision , and that he had
no authority to hire or fire, or to make recommendations, or .to interview applicants
for employment. Against that was the testimony of Forrest Walker that as a truck-
driver he worked under White, and that White had once hired an employee in his
presence; that White assigned jobs and also sometimes assigned overtime work.
In the representation proceeding involving Prestressed (12-RC-926, not published
in NLRB volumes), its general manager , Paul Gillan, testified that White "recom-
mends on his drivers." The Board, however, rejected the Union's contention that the
dispatcher was a supervisor , holding that:
The truck dispatcher assembles trucks for a particular delivery, sees that they
are loaded properly, coordinates dispatching of trucks , and also receives ma-
terials. He has no supervisory authority. . . . We find that the individuals in
these disputed categories are not supervisors within the meaning of the Act... .
I conclude and find on the basis of the entire evidence that White was not a
supervisor , and that to the extent that he exercised authority of a certain type, such
exercise was of a merely routine nature , not requiring the use of independent
judgment.
ti
CONE BROTHERS CONTRACTING COMPANY 123
D. Cone Brothers
The evidence concerning Cone Brothers proper included ( 1) various alleged
8(a)(1) statements made by Walter Cooper to members of his rock haul crew,
first at the Skipper Road batch bin ( of Tampa Sand ), and later while operating
in the Nobleton-Lansing ( Brooksville ) area ; (2) miscellaneous 8(a)(1) statements
by other supervisors at the maintenance shop and at other points in and around
Tampa, plus the alleged discriminatory discharge of Phillip Johnson ; and (3) other
similar conduct by supervisors on road and bridge projects in the vicinity of Polk
City and Orange City and at Parrish . The evidence will be summarized in the
order indicated , reserving for consideration under the joint allegations ( section G,
1, infra ) all evidence relating to guns, weapons , etc., and to picket line and other
misconduct.
1. Walter Cooper and the rock haul crew
Cooper supervised a crew of some 40 rock haulers , which was based until April 25
at the Skipper Road batch bin on the northern outskirts of Tampa. The crew
was divided between day and night shifts until about April 15 when the night shift
was cut off ; and shortly thereafter the crew was moved first to Lansing and then
to Nobleton , several miles north and northeast of Brooksville , respectively. The
elimination of the night shift and the transfer of several other drivers to Parrish
before the strike reduced Cooper 's crew to around a dozen drivers.
Numerous witnesses for the General Counsel testified to a variety of coercive
statements which Cooper made, both to individuals and to groups , during an overall
period from March until after the strike began , including a number which were
made at Skipper Road . I begin this section of the case by reconsidering Respondent's
motion to exclude all evidence relating,to Cooper 's conduct at the Skipper Road
location on the ground that the General Counsel had already litigated it in a prior
case, No. 12-CA-1406 , 132 NLRB 472 , which was read on July 6 and 7, 1960,
before Trial Examiner John C . Fischer , whose report is now before the Board.
Inasmuch as charges filed subsequent to those involved in the earlier case were
broad enough to cover the Skipper Road incidents , the General Counsel was permitted
to proceed at the hearing on a basis which excluded all evidence which went into
the former record . Thus no witnesses were called who testified before except James
C. Martin , Sr., and his testimony was confined to matters not involved in the prior
hearing.
After the General Counsel had rested , the Board decided on January 18, 1961,
Peyton Packing Company Inc., 129 NLRB 1358 , which makes it necessary to give
further consideration to the ruling at the hearing, since a comparison of the present
record with the former one shows that the same subject matter was involved in the
incidents and statements at Skipper Road, and to that extent the General Counsel
is relitigating violations of the same section of the Act, i .e., Section 8(a)(1).
In Peyton Packing the Board held as follows:
The foregoing factual recital presents an issue as the propriety of twice
litigating the withholding of the December 1958 bonus as a violation of different
sections of the Act, and of twice litigating the cause of the March 3, 1959,
strike. We hold that the General Counsel proceeded improperly.
Generally speaking, sound administrative practice , as well as fairness to
respondents , requires the consolidation of all pending charges into one com-
plaint. The same considerations dictate that, wherever practicable , there be but
a single hearing on all outstanding violations of the Act involving the same
respondent . To act otherwise results in the unnecessary harassment of re-
spondents.
We would note here that the Board does not grant Respondents second hear-
ings to relitigate allegations made against them because they may have mis-
handled their defense in the original presentation of the case . Only in the
exceptional instance , such as where evidence is newly discovered , or where a
hearing has been conducted in a prejudicial manner , does the Board grant
respondents further hearings . The General Counsel 's status before the Board
in these adversary proceedings is no greater than that of any respondent. In
short, the General Counsel is not a favored litigant , and he is not entitled to
any privileges not accorded to any other litigant appearing before the Board.
[All citations omitted.]
Though the situation in Peyton arose under different circumstances , the present
case is a stronger one in the respect that here the General Counsel is twice litigating
the same subject matter as a violation of the same section of the Act . In any event
the principle there stated by the Board appears to be applicable . The General
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel should not be permitted to bring in a new crop of witnesses (all members
of Cooper's rock haul crew) because the Trial Examiner did not credit those whom
he called before.
Though the record in the earlier case indicated that the General Counsel may
have placed some reliance on the Trial Examiner's observation that the evidence
had reached the cumulative stage and that there was no necessity for calling numerous
witnesses on the same matter, there were proper courses by which the General
Counsel could have protected his position both during and after that hearing. Thus
he could have announced at the time the extent of the cumulative evidence (including
the names of witnesses) which he would refrain from offering in view of the
Trial Examiner's observation. At the end of Respondent's case, if dissatisfied with
the preponderance of the evidence, he could have called his additional witnesses to
refute the testimony of Respondent. If additional evidence was discovered after
the hearing closed,10 he could have moved to reopen the record on the ground of
newly discovered evidence. After the issuance of the report he could have moved
the Board to reopen the record if misled to his prejudice by the Trial Examiner's
discouragement of further cumulative evidence, which, if received, might well have
tipped the scales on the Trial Examiner's ultimate resolution of the credibility issues.
But to give the General Counsel a new bite at the apple merely because he
suffered defeat through misjudging the strength of his prior showing would accord
him that favored status as a litigant which the Board has condemned. Certainly
it is plain that if the prior findings had been in the General Counsel's favor, there
would be no justification for giving him another whack at Respondent with the same
stick; indeed, a remedial order in that case would render surplusage any order in the
present case covering the same conduct.
Though I shall, for the foregoing reasons, omit findings concerning alleged
illegal conduct which was involved in the earlier case, there still remains a difficult
problem of making proper excisions. Comparison of the testimony in the present
case with that given by the witnesses before convinces me that Cooper's statements
to groups of employees at Skipper Road were plainly litigated in the prior case.
By-and-large also the subject matter of his statements to individual employees at
Skipper Road was substantially identical in the two cases. Evidence was offered
in the present case of statements which Cooper made away from the Skipper Road
batch bin, and these I find were plainly outside the scope of the prior litigation of
Cooper's conduct.il Thus I conclude that the line can safely be drawn to exclude
all conversations and statements at Skipper Road and to include all which occurred
away from there, i.e., at Lansing, Nobleton, Brooksville, and Kissimmee.
Eleven members of Cooper's crew testified to a succession of interrogations by
Cooper concerning the signing of union cards, threats that Cone would not sign
a contract with the Union, and that strikers would be blacklisted or "blackballed."
There was also testimony that Cooper stated that he had moved to Lansing (or
Brooksville) to get rid of the night shift, and to "bust up" the Union, because all
the "instigation" of the Union was done on the night shift; that Cooper knew all the
drivers who joined the Union; and that those who did not join and who were for
the Company, or who "stayed with Cone," or who worked, would be taken care
of, or would "get the gravy." There was also testimony that Cooper stated that
truckdrivers had "quit" or "forfeited" their jobs by refusing to cross the picket line.
Against the foregoing Respondent offered Cooper's testimony and limited cor-
roboration by Robert C. Bradley.12 With few exceptions Cooper denied so much of
the foregoing testimony as attributed to him, statements of a coercive type. Cooper
admitted at one point that he asked a Mr. Dixon and Emory McClellan, and may
have asked J. C. Phillips, about signing cards or about union activities, but on cross-
examination Cooper not only denied questioning Dixon and McClellan, but could not
remember having testified that he did so. Cooper also denied at one point that he
"Since all the additional witnesses were members of Cooper's crew, it is difficult to
see how they could have been overlooked in the investigation of the earlier charges ; but
regardless of the adequacy of that investigation, the mere fact that there were on file
later charges which were broad enough to cover the same subject matter should not
advance the General Counsel's position
11 One exception to this statement was the testimony of Mike Capriglioni that Cooper
questioned him and James R Blackstock concerning the signing of union cards. On the
General Counsel's concession that Blackstock was present and that P.lackstock had testified
to the interrogation in the earlier case, I granted Respondent's motion to strike that part
of Capriglioni's testimony.
11 Conspicuously absent was any testimony by Henry Herndon, Cooper's assistant, who
was present on many of the occasions which the General Counsel's witnesses testified to.
CONE BROTHERS CONTRACTING COMPANY 125
told any of his drivers that they would be blackballed or blacklisted, explaining that
he did not use that terminology, but at another point he freely admitted, however,
that he.had related to his drivers "many times" a personal experience of his own
where he felt he had been blacklisted. -
Cooper's testimony thus left with little weight Bradley's testimony that he never
heard Cooper say anything about being blacklisted or blackballed. Bradley's cor-
roboration of Cooper was otherwise limited to testimony that (a) Cooper told the
crew the transfer to Nobleton was to haul rock to Interstate 4 (Kissimmee); (b) there
was picketing at Nobleton on May 24; and (c) Cooper explained the reason for
holding up paychecks on May 27 as the necessity for checking on debts due to the
credit union. As to (a), there was no indication that Bradley was present on the
occasions which the General Counsel's witnesses testified to concerning the move to
Nobleton. As to (b), there was no formal picketing at Nobleton until May 27, though
there was evidence that Martin, Sr., and an unidentified man talked with Cooper on
the 24th. As to (c), I credit Cooper's and Bradley's testimony on this point, with
which some of the testimony on the General Counsel's side was in accord.
In view of the cumulative testimony against Cooper, the failure to call Herndon,
and the limited corroboration, I credit generally the testimony of the General Coun-
sel's witnesses, though I do not do so literally or without qualification. In some
respects, for example, testimony by some of the witnesses went beyond their affidavits
to the Board 13 and also beyond the testimony of other witnesses for the General
Counsel. The two chief illustrations were testimony by some of the General Coun-
sel's witnesses that Cooper conditioned delivery of paychecks to certain drivers on
May 27 on their working behind the picket line, and testimony as to statements by
Cooper that drivers who refused to cross the picket line would be automatically dis-
charged and replaced.
On the first point, testimony by some of the General Counsel's witnesses was in
substantial accord with Cooper's and Bradley's, which I credit. On the second point,
I am convinced from the entire evidence in the case that to the extent that Cooper
confined his remarks to the effect of a refusal to cross the picket line, he was only
repeating the content of a notice which Cone Brothers had issued to the employees on
or about May 18, and which contained a noncoercive statement concerning both em-
ployer and employee rights in a strike situation (i e., the employees were free to strike
or not; the Company intended to operate, to hire immediate replacements for strikers
who, when replaced, would no longer have a job with Cone Brothers).
It was just as plain, however, that (1) on a number of occasions Cooper did not
confine his statements either to the letter or to the sense of the notice, and (2) on other
occasions he misapplied or misinterpreted the statement in connection with refusals by
certain drivers to cross the picket line.
As to (1), Cooper told D. M. Mathis that the notice of May 18 applied to anyone
who signed a union card, even though the signers did not participate in the strike. He
told James J. Quinn that anyone who signed union cards and went on strike "would
be out." He told John Siers that those who did not work (during the strike) would be
put on a blacklist, which would be distributed to employers throughout the State, and
that those whose names were on it would not get a job. He interrogated Eugene
Williams at Kissimmee about signing a union card and told him that all drivers who
signed would be replaced and fired, and he told Benjamin Boykin, similarly, that he
had orders to check on those who signed cards and that those who did and who refused
to cross the picket line would be replaced and fired. Finally, there was testimony by
James Dewey Hayes, Cooper's brother- in-law (who lived in a house trailer at Lansing
mine for some 6 weeks with Cooper), that though Cooper stated on numerous occa-
sions that strikers would be replaced and that the replacements would have the jobs,
he sometimes became angry and added other statements, such as that J. L. Cone would
never sign a union contract, and that those who went out on strike would be starved
out before Cone would sign.14
(2) Cooper's handling of actual refusals to cross the picket line demonstrated
further his misconception of the notice. At Kissimmee on May 24, Quinn refused to
drive his truck across the picket line and Cooper himself drove it through. When
18 Since It was apparent from the record that Bruckner and Romano had reinterviewed
the witnesses before the hearing and had explored and developed facets of testimony be-
yond those covered by the original Investigator who took the affidavits, -it Is difficult to
determine the extent, If any, to which prior affidavits constituted Impeachment.
14 Testimony by Joseph Lariez that Cooper Informed him that If he stayed home during
the strike he would be fired for walking off the job and that Cooper also referred to the
probability of "blackballing" are not credited in view of Lariez' prior affidavit to the
Board.
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Siers asked Cooper what he was going to do about Quinn, Cooper replied, "Quinn
quit his job when he got out of the truck." Quinn testified that when he refused
Cooper's order to pull across the picket line and got out of the truck, Cooper told him,
"You just forfeited your job." Quinn hitchhiked with Cooper back to Nobleton after
that incident, and, although Cooper directed Quinn to take the pickup truck back to
the mine, he told Quinn that he had no job and directed him to go back and ring out.15
Siers also testified that when he refused to drive his truck through the picket line at
Nobleton on May 27, Cooper said, "Hit the clock and pick up your time and go.
You've quit your job, haven't you?" Zeno Stansberry testified similarly that Cooper
told him that so far as Eugene was concerned, Stansberry had quit (by not crossing
the picket line). Eugene Williams testified that when he refused to cross the picket
line, Cooper stated that Williams should "hit the clock" and go home, and that, "You
boys will be blacklisted if you all go through with this." Cooper ordered Mike Ca-
priglioni (whom he knew to be on strike at Parrish) back to work at Brooksville and
told him that if he did not report there would be no more work for him ever.
Based on the entire evidence concerning Cooper's conduct, I find that Cooper:
(1) Interrogated employees concerning the signing of union cards; (2) informed
employees the crew was moved to Lansing to break up the Union; (3) threatened
that employees who signed union cards or who went on strike or refused to cross
the picket line would be discharged; (4) threatened that strikers or employees who
refused to cross the picket line would be blacklisted or blackballed throughout the
State; (5) threatened that Cone would not sign a contract with the Union and would
"starve out" the strikers; (6) characterized employees who refused to cross the
picket line as "quits" and informed others that they had "forfeited" their jobs and
(7) promised benefits to employees who did not strike, but who stuck with Cone.
By all of such conduct, Cone Brothers engaged in interference, restraint, and coercion
within the meaning of Section 8 (a) (1) of the Act.
2. The discharge of Phillip Johnson; other events in Tampa
We begin this section of the case with conduct attributed to certain supervisors
in the sewer department (i.e., Superintendent Frank Boyer; Foremen A. E. Davis
and Jimmy Madeloni, and Erwin Stevenson), including the alleged discriminatory
discharge of Phillip Johnson.
Section 8(a) (1) allegations concerning Erwin Stevenson's conduct must fall, of
course, on the finding previously made that Stevenson did not have supervisory
status. However, the evidence concerning statements which were attributed to him
by Alonzo Brown and Phillip Johnson must be considered because of their bearing
on Johnson's discharge.
Brown testified that during the time when union cards were being distributed on
the job, Stevenson told some of the employees that if he caught anyone signing a
card, he would have Davis "run him off." Johnson, who worked with Stevenson
for 21/a days, testified that Stevenson asked him if he had signed a union card. When
Johnson replied that he had, Stevenson told him that the "company rule" was that
no one could work on the job who signed a union card. Stevenson then went over
and spoke to Davis, and shortly afterward, upon the timekeeper's arrival, Davis gave
Johnson a blue discharge slip, dated June 15, and assigning as the cause, "Unsuited
for this type work." At another point Johnson testified that Davis also questioned
him about signing a card and told him of the "company rule" before the timekeeper
arrived.
Stevenson denied flatly the testimony of Brown and Johnson and testified that
he was himself "raised" in the Union and was a member at the time. He testified
that Johnson was unable to perform his job properly, but that he himself had nothing
to do with Johnson's discharge. On Johnson's third day on the job, Stevenson missed
Johnson and on inquiry learned that he had been discharged.
Davis confirmed Stevenson's testimony as to Johnson's incompetence, and testified
to learning on the timekeeper's arrival that Stevenson had in fact been previously dis-
charged by the Company on three other jobs because of unsatisfactory work. Davis
denied Johnson's testimony concerning union cards and the company rule, denied
discussing Johnson with Stevenson, and testified that he discharged Johnson after
observing his work because Johnson was unable to make a joint and wasted a lot of
cement.
The determinative factor on the credibility issues was Stevenson's own (and
undenied) long-standing union membership. Discrediting the Brown4ohnson testi-
15Though Quinn's affidavit to the Board Included Cooper's "job forfeiting" statement
with those made during the ride back to Nobleton, it is immaterial whether the statement
was made on the latter occasion since Cooper had not hired anyone to replace Quinn.
CONE BROTHERS CONTRACTING COMPANY 127
mony, and accepting the testimony of Davis and Stevenson concerning the circum-
stances of Johnson's discharge, I conclude and find that Johnson was discharged for
the cause assigned.
James C. Martin, Sr., and Joseph Lariez testified to an incident when Davis' crew
was cutting a sewer line across 13th Street in Tampa and when Davis allegedly
directed one of the crew, who was operating an airhammer, to let the hammer slip
(so as to hit the pickets) if the pickets got too close and to make it seem like an
accident. Stevenson and Davis denied the incident, testifying that Davis was
from 150 to more than 200 feet away at the time. Stevenson, who was operating
the hammer, testified that he and his helpers left the scene when the crowd of pickets
came up and did not return until the police arrived. Davis, who viewed the incident
from a distance, corroborated that testimony.
As I credit the testimony of Stevenson and Davis that Davis was not present, I
conclude and find that even if the statement was made which Martin and Lariez
testified to, they were mistaken in identifying Davis as the person who made it. The
evidence does not, therefore, establish that the remark, if made, was made by anyone
of supervisory rank for whose actions Cone Brothers was responsible.
Harold Rickey testified that though he worked under Jimmy Madeloni, he had a
"run-in" with Davis on Meridian Street about union cards. Davis asked whether
Rickey had signed a card and told him that all who signed would be sorry because
they would be out of work and would be discharged. Rickey also testified that he
signed a card later that day and also signed one for Holly Maner at Maner's request;
and he and Maner both testified that Madeloni inquired whether they had signed
cards. Rickey testified further that he and Madeloni later began arguing about
unions and Madeloni stated that unions would ruin a lot of jobs and that he did not
think that the employees would ever get a union in. On direct examination Rickey
attributed that statement to both Davis and Madeloni, but on cross-examination he
attributed it to Madeloni on the subsequent occasion next mentioned. Thus Rickey
testified that around May 27 or 28, Madeloni came to his home and requested him to
return to work. When Rickey refused until the strike was settled, Madeloni stated
there would be no union in there and no job for Rickey.
Davis denied that he knew Rickey and denied making the statements which Rickey
attributed to him. Madeloni denied discussing union cards with either Rickey or
Maner. He admitted asking Rickey about coming back to work and testified that
Rickey stated he had joined the Union and would not come in across the picket line.
Madeloni denied that he himself made any reference to the Union.
Because of Rickey's shifting testimony concerning the occasion when certain
statements were made and concerning who made them, I am unable to credit his
testimony over denials except where it is corroborated. I thus find only that
Madeloni asked Rickey and Maner whether they signed union cards. Though such
an inquiry by a minor supervisor (working foreman) would not, if it stood alone,
warrant a finding of interference, restraint, or coercion, it is to be viewed here in
the light of the contemporaneous conduct of other Cone supervisors as herein found.
On that basis it constitutes a cumulative item on the allegation of interrogation.
Rickey also testified that on the first day of the strike (May 24) he went to the
sewer yard 16 to get his truck, found a picket line, and did not enter. Boyer
approached, spoke to the group of several employees (which included Charlie
Jones), and endeavored to give them work assignments. When they refused, Boyer
stated they would be discharged and replaced. Jones, as spokesman, expressed
fear of what would happen to their homes, their familites, and their automobiles.
Boyer admitted speaking to the group, testifying that he told them the choice was
theirs as to whether they worked or not, but if they did not, the operations would
be kept going and he would replace them with other men when available.
What is decisive on credibility here is that the General Counsel, though calling
Jones as a rebuttal witness, did not seek to corroborate Rickey. I credit Boyer's
testimony.
Louis Johannsen, Henry P. Savage, Jr., W. G. Etheredge, and Victor Adams testi-
fied to attending meetings of some hundred or more employees at the maintenance
shop or on the parking lot in Tampa, at which Bailes and/or Haenel spoke. Savage
testified that Bailes stated that those who "participated in any union" would be
discharged and replaced,17 and that Haenel made substantially the same statement
18 Boyer, superintendent of sewer and plant construction, maintained his office at the
east end of Osborn Avenue (in northeast Tampa) adjacent to the asphalt plant.
'T Charles F. Taylor testified to a version of Haenel 's talk which was substantially the
same as Savage 's, but he admitted that 'he was talking with Trent at the time and did
not hear Haenel perfectly.
12,8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in another meeting 2 weeks later. Adams testified similarly (on direct examination)
that Bailes and Haenel stated that anyone who signed union cards would be fired.
On cross-examination however Adams agreed that what they said was that Cone
would replace those who did not work and they would be "automatically" flied or out
of a job. That version corresponds closely with Etheredge's testimony at one point
that Bailes stated that those who went on strike would be replaced and with Johann-
sen's testimony that Bailes stated that the Company was going to operate and that
those who went on strike would be automatically replaced.
Bailes and Haenel testified that Baffles explained employee and company rights in
the event of a strike and jnfoimed the employees that the Company would operate
and would have not any alternative but to replace those who struck. Haenel testified
that in a subsequent meeting around mid-May he read the employees the Company's
bulletin (referred to in section 1, supra) without adding comment of his own.
As is seen, Johannsen's testimony, as well as Adams' and Etheredge's as modified,
did not vary widely from that of Bailes and Haenel. I credit the testimony of the
latter.
James Via testified that in late June when he was a picket captain at 50th Street,
Bailes drove up, called him to his car, and suggested that Via "leave this bunch" and
go back on his crane, stating that "You'll make more money than you made before."
Bailes testified that Via approached him on the occasion and launched into a discus-
sion of Haenel and an explanation of his reasons for striking; that Via was usually
talkative and appeared to have had a drink or two. Bailes denied asking Via to come
back to work or telling him he would make money.
Though I find both of these witnesses, generally, to be credible witnesses, I believe
that Bailes' testimony as to Via's apparent condition at the time to be the key to their
conflicting versions, and I therefore credit Bailes' testimony.
Via also testified that a month and a half before the strike John Vaughn, Haenel's
assistant, told him there was no use for the drivers to think about joining the Union
because they could not work for anyone but Cone and that, "When they leave here,
if they go out on strike or anything like that, they automatically quit"
Via testified further to a conversation with Robert Trent a month before the
strike during which Trent asked him if he had been going to the union meetings,
told him it would not do any good because the two organizers who were getting the
cards signed could be fired, and that he did not have to file them for union activity
but could fire them for leaving their trucks. Via pointed to his oiler and asked
Trent if he meant he could fire the oiler for signing a card, and Trent replied he
could fire him for being off the truck. In another conversation in the week before
the strike, Trent asked Via which of the truckdrivers had signed union cards and
when the men were going out on strike.
Vaughn did not testify, and Via's testimony as to him is undisputed. Trent denied
having any conversations with Via about the Union and testified that he did not see
Via at any time in the week prior to the strike As between Via and Trent I find
from all the evidence, including their demeanor and manner of testimony, that Via
was the more credible witness.
Henry A. Lynn testified that some 3 or 4 months after he joined the Union on
November 6, 1959, Shop Superintendent Doolittle asked him if he had joined the
Union and that some 3 or 4 weeks before the strike Doolittle told him, "I guess
you know I can fire you about this here union activities and I won't have to give
that reason. I can give some other reason." Doolittle also said that he knew who
belonged to the Union and who did not, and that if Harry Fox (an employee in
the shop) did not cut out his union activities, Doolittle was going to "run him off."
Lynn also testified that Gene McCullough asked him on May 23 whether he was
going to walk out if a strike occurred, and when Lynn evaded the question,
McCullough continued that if Lynn did go out on strike, he would be replaced
and automatically fired.
Lonnie M Lee testified that Doolittle told him about a month before the strike
that if Mark Watkins did not stop going for Coca-Colas and "quit talking union
talk," Doolittle would "run him off "
Jackson T Haywood testified that he complained to Doolittle in 1959 that though
he was working in the field, he was not getting the higher wages due a field mechanic,
and Doolittle told him he could not give Haywood a raise as long as the "union
business" was going on About 3 weeks before the strike, he and Doolittle and
Bailes had a conversation at the shop during which Bailes directed him not to drive
the truck back to Tampa anymore After Bailes walked away, Doolittle told
Haywood that if he would "go along with us on this union and strike, I'll get you
field mechanics wages and a new pickup."
CONE BROTHERS COWTRACTING COMPANY 129
Neither McCullough nor Doolittle was called to testify. (McCullough had left
the Company, a doctor's certificate was furnished as to Doolittle ) Bailes testified
that Doolittle was some 20 teet away when he and Haywood talked; that Haywood
was in his presence the entire time; and that Doolittle did not talk to Haywood in
his presence. Bailes also testified that Haywood's boss was the field foreman,
Sid Menges, and that Doolittle had no authority over Haywood at the time.
Resolution of this issue turns largely on the question whether there was oppor-
tunity for Haywood and Doolittle to talk outside of Bailes' hearing Both in his
testimony and in his affidavit to the Board (introduced by Respondent), Haywood
stated that Doolittle made the statement after Bailes walked away. Bailes iecog-
nized one exception to his statement that he was with Haywood at all times, i.e , at
one point Haywood was getting a supply of parts from the caterpillar department.
Under all the circumstances, I conclude and find that Doolittle did speak to Hay-
wood out of Bailes' presence, as Haywood testified. The circumstance that Doolittle
may have had no jurisdiction over Haywood as a field mechanic requires no different
conclusion in view of Doolittle's relatively high ranking supervisory position and in,
view of the earlier (undemed) conversation between them concerning the same sub-
ject matter, i e , Haywood's wages as a field mechanic.
Lee testified further that a month before the strike, Shop Foreman Ike Thomas repri-
manded Harry Folks in his presence about talking about the Union and told Folks
that he (Thomas) had put enough pressure on Ed Barber to force him to quit and
that unless Folks watched his step he would be next. Thomas had also warned Lee,
Folks, and Barber on an earlier occasion that unless they stopped their "union talk,"
he would "run off" the three of them. James B. Phillips testified to a conversation
with Thomas at Lansing mine around May 15 or 18: that Thomas inquued when
the drivers were going to strike and told Phillips that they would all lose their jobs
(if they struck), and that Cone was "too big a man" and would starve them out.18
Thomas made no denial of Lee's testimony, and though he denied making the
statements which Phillips attributed to him, he admitted that Phillips discussed the
Union with him. Since Thomas made no denial of other coercive statements made
to Lee, I am unable to credit his testimony that his discussion of the Union with
Phillips was on a purely innocuous basis Furthermore, Thomas' testimony was
elsewhere substantially impeached by a prior affidavit concerning his supervisory
authority.
G. J. Burke worked at the asphalt plant as a truckdriver and also spent con-
siderable time in the office, where, he testified, he had a number of conversations
with John Connor about the Union. Connor inquired before the strike about union
meetings and stated he understood some of the employees were going to the meet-
ings and signing union cards. Connor also stated several times that J L. Cone said
he would go out of business before he would ever "go union," and that Cone could
get rid of those who signed union cards by firing them for something other than
union activity 19
Connor admitted only that Burke had once attempted to discuss the strike with,
him, but testified that he was busy and did not question Burke He denied making
the statements which Burke attributed to him.
Burke impressed me as an honest and truthful witness, though one of limited edu-
cation. However, the simple subject matter of Connor's statements was well within,
his understanding Those statements were plainly of a pattern with those which other
Cone supervisors had made on other occasions, as found herein I credit Burke's
testimony over Connor's denials.
Burke also testified that on the first day of the strike Superintendent McCartney
came out to the picket line and urged the employees to come in to work, telling them
that if they did not come in they would not have a job. McCartney testified that
what he told the employees was that if they did not come in to work, he would find
other employees to work there and eventually would hire replacements. Connor
corroborated McCartney's testimony.
I am convinced, and find here, that Burke was testifying to what he understood
McCartney's remarks to mean, rather than to the literal language which McCartney
used. In the absence of corroboration I cannot accept Burke's testimony literally, -
I credit instead McCartney's testimony as to his phrasing of his statements.
19 Though both Lee and Phillips had given, during the Board's investigation, affidavits
which did not cover some of the matters which they testified to, both had been reinter-
viewed by trial counsel, who took notes but prepared no further written statements
'9 This was another case where pretrial Interviews developed additional evidence which
was not covered in the affidavit taken during the Board's Investigation See footnote 18,
supra
634449-62-vol 135-10
i
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Concluding this section, I find that by the interrogation of employees by Madeloni,
Trent, Doolittle, McCullough, Thomas, and Connor concerning their union member-
ship, union meetings and activities, and strike intentions; by threats to fire employees
by Trent, Thomas, Doolittle, and Connor for getting union cards signed or talking
union or going on strike; by Vaughn's statement equating the participation in a
strike as a "quit"; by Connor's threat that Cone would go out of business before
he would "go union"; and by Doolittle's promise of benefits for "going along" with
the Company concerning the Union and the strike, Respondent Cone Brothers en-
gaged in interference, restraint, and coercion within the meaning of Section 8(a) (1).
3. Outlying jobs
a. Parrish
When the picket line was put up at Parrish on the morning of May 24, a group of
employees refused to cross it, despite requests that they do so, first by Hansel Silas
and later by Bailes. Victor Adams testified on direct examination that when he re-
fused those requests, Silas and Bailes told him separately that unless he came in
he would be "automatically fired." On cross-examination Adams testified that their
statements were that if he did not run his truck, Cone would get someone who
would, and that Adams would be automatically fired or out of a job.
Silas and Bailes denied Adams' testimony. Silas testified he told the men that
the trucks were going to run and unless the drivers worked, the Company would get
other drivers if it could. Bailes testified similarly that he told the men that if they
would not drive the trucks the Company would "attempt to hire some men who
would." Cecil Green corroborated their testimony. In the absence of corrobora-
tion of Adams' testimony, I credit the testimony of Silas and Bailes.
b. Orange City
Adams also testified that shortly before the strike, when he was hauling asphalt
on the Orange City job, he had a conversation with Herbert Meeks, the job super-
intendent , who told him that anyone who had anything to do with signing union
cards would be automatically fired and would not have a job. Adams testified that
employees named Black and Lester ( a mechanic ) were present, as well as others.
At other points , Adams testified that the incident occurred 1 or 2 months before
the strike , that Meeks was talking to Lester, and that Meeks said that if the em-
ployees did not want to work they would be replaced.
Meeks denied Adams' testimony . Consulting records, Meeks testified that though
the Orange City job was under construction up to May 31 , Adams left that job the
week ending February 20 and never came back. In this situation I credit Meeks'
testimony over Adams ' uncorroborated testimony.
c. The Polk City area
The evidence concerning alleged Section 8(a)(1) statements in this area related
mainly to Don Smith, job superintendent of a 7-mile road project, with lesser parts
being played by two of his foremen, Virgil Lee and John Frazier 2u We begin with
the foremen.
James W. Harrison testified that while he was working under Lee in the week
prior to the picket line, he and Lee talked about the Union in a pickup truck. Lee
asked Harrison what he was going to do, and Harrison replied that if a picket line
were set up, he would not cross it. Lee said, "You know if you don't cross the picket
line that you won't have a job, don't you?" and continued, "Well, if they don't go
union you never will work for Cone no more, and if they do go union you still prob-
ably won't work for him."
Lee denied being in a pickup truck with Harrison and denied the alleged conversa-
tion about the Union. He testified to having lunchtime conversations with employees
about the Union, but to nothing of a coercive nature. Warner Thorpe corroborated
Lee's testimony concerning the lunchtime conversations and testified that Harrison
was among those present.
The attempted corroboration of Lee failed, of course, for Thorpe was not present
on the occasion which Harrison testified to. In resolving the conflict between Harri-
son and Lee, what is determinative is that the record reflects a number of other in-
20 Evidence as to Otis Williams' conduct on a bridge project which adjoined Smtth's
project concerned only the threatening use of weapons and is reserved for consideration
under section G, 1, infra, as are also certain parts of Smith's conduct.
CONE BROTHERS CONTRACTING COMPANY 131
stances where other supervisors made similar or equivalent statements , including some
made on Lee 's own project by Lee's own superior , Don Smith , as hereinafter found.
I therefore credit Harrison 's testimony.
Tommy Fewox, George Pelfrey, and Clarence Thomas were part of a crew who
worked under John Frazier. Fewox testified that some 2 weeks before the strike
Thomas brought some union authorization cards onto the job , showed them to
Frazier, and said , "We're going union ." Frazier asked where Thomas got the cards
and asked to see them , and Thomas handed one to Frazier and others to members
of the crew . Fewox's testimony as to alleged coercive statements which Frazier made
then and which Smith and/or Frazier made later in the day need not be summarized
as it was denied by Frazier and Smith and cannot be credited . No corroboration
was offered of Fewox's testimony concerning Frazier 's statements to the crew;
Pelfrey was called in rebuttal only to verify the fact that it was not he , but Thomas,
who showed the cards to Frazier , and he specifically disclaimed hearing the con-
versation which ensued . There was also no corroboration of Fewox 's testimony as
to the conversation with Smith and Frazier together . which varied so widely on
direct , cross, and redirect examination that it is entitled to no credit over the mutually
corroborative testimony of Frazier and Smith.
Fewox, Jimmy Judah , and James Harrison testified to statements which Smith
made at the picket line at various times during the first week of the strike. Fewox
testified that on one occasion Smith told the pickets that they might as well lay down
their picket signs and hunt a job elsewhere , that "In fact you may as well leave the
State because you will not get another job operating for no other Cone Construction
Company here in this State . . Mr. Cone will see to that ." When Fewox replied
that he had other work available , Smith stated , "You may be able to have yourself
a job . but these other boys are going to find it a hard time getting a job."
Harrison testified that Smith told the pickets that Cone had sent a man around to
all the picket lines , taking the names of the people on the lines , and that they would
never work for Cone Brothers again and might as well leave Florida , because Cone
would see to it that they would never get a job with any other contractor. Judah
testified that Smith told the pickets they might as well leave the picket line and
also leave the State , because, "Cone had us blackballed because we lost the strike."
Smith denied making any of the foregoing statesment and, testifying that he had
only one conversation at which Harrison, Fewox, and Judah were present , claimed
that it related to an occasion when he complained about the pickets "molesting" his
men and the pickets in turn complained about the workers racing their cars through
the picket line. As it was apparent from Smith 's testimony that he made frequent
visits to the picket line (twice a day ) and that he participated in a number of con-
versations there, I credit the mutually corroborative testimony of Fewox, Judah, and
Harrison over his uncorroborated testimony.
James Harrison testified that in the week following the strike while he was riding
along the right-of-way with two other strikers ( Bob Forcel and Sammy Brown) and
Don Smith , both Forcel and Brown stated their intention of going back to work and
suggested that Harrison join them . When Harrison replied that he had heard that
he did not have a job, Smith stated that he had nothing for Harrison to do and would
not have anything . Smith denied making that statement and testified that he told
Harrison on that occasion that Harrison 's machine was still broken down and that
he (Smith ) was unable to get it repaired at the time. As Harrison admitted on cross-
examination that his machine had broken down and that it was not running on the
day that he was on the right-of-way, Smith 's testimony is credited over Harrison's
uncorroborated testimony.
Strikers Howard Collier and William D. Hutchins went to the trailer office on
the project a week after the strike to pick up their paychecks . Collier testified that
the bridge foreman ( identified in Smith 's testimony as Bob Humphrey ) asked whether
they were coming back for their jobs. When he replied that they had come for their
checks, Smith stated , You know you don 't have no job with Cone Contracting
Brothers , and in the State," and directed the timekeeper to give them their checks.
Hutchins testified similarly that Smith said they did not have a job and that, "none
of you [strikers] have a job."
Smith denied that testimony , testifying that he was not sure that he knew Collier
and that he did not remember talking to Hutchins . As neither the timekeeper or the
bridge foreman was called, I credit the mutually corroborative testimony of Collier
and Hutchins over Smith's uncorroborated testimony.
Hutchins testified further that some 3 or 4 weeks later he went back and discussed
with Smith a proposal that Smith advanced to set him up in the welding business,
following which Smith inquired the whereabouts of some of the strikers and whether
they were working. When Hutchins told him they were not, Smith replied that they
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
might as well leave the State because they would not get anything around there.
Smith admitted the fact of these discussions with Hutchins but denied the final re-
mark which was attributed to him. As I have found above that Smith had made
similar statements on other occasions , as testified to by Fewox, Harrison , Judah, and
Collier, I credit Hutchins ' testimony over Smith 's denials.
Judah also testified that shortly after the picketing ceased at Polk City, he was
standing on the interstate highway ( project) talking with some employees of some
other contracting outfit when Smith came up, broke in , and asked the employees if
Judah was annoying them . When they answered that he was not, Smith stated that,
"If he is I'll have him put away because that 's what I want to do anyway " Judah
retorted that he would talk to whomever he pleased , but Smith told him, "Not around
here you won 't." Smith's testimony contained no denial of the foregoing.
I conclude and find that Respondent engaged in interference , restraint, and co-
ercion within the meaning of Section 8(a) (1) by. the following conduct : ( a) Lee's
interrogation of Harrison concerning his strike intentions , followed by his statement
that Harrison would lose his job if he did not cross the picket line ; and (b ) Smith's
statements that strikers ' names were being taken and that they might as well leave
the picket line and leave the State, that Cone had them "blackballed ," and that they
would not get jobs with other contractors , and his implied threat to have Judah
arrested while conversing with nonstriking employees.
E. Prestressed
Other than evidence concerning weapons, violence , etc. (see section G, 1, infra),
there was little evidence of Section 8(a)(1) conduct at Prestressed , and what was
submitted failed, I find, to establish a violation of the Act.
Three witnesses testified to alleged threats to discharge strikers made by David
Bracewell , William Cooper , and Bob Campion during the reading of bulletins to
the employees of the prestressed and precast divisions, respectively . The text of the
notices , produced by Respondent , showed them to be uncoercive statements concern-
ing company and employee rights in event of a strike ( copied after the statement
issued by Cone Brothers on May 18); and I credit the testimony of Bracewell and
Campion, who read the notices (Cooper was not present ), that they confined their
remarks to the text of the bulletins
One of the witnesses ( Harold Tompkins ) also testified that Bracewell questioned
him about a union pamphlet which someone had put on the bulletin board and
told him that if he had any union activities on the yard "before working hours or
after working hours ," he would be discharged . On cross-examination , Tompkins
added that Bracewell also included "working hours" to his statement . Bracewell
denied the conversation entirely. I credit his denial, particularly since Tompkins'
testimony was unclear , and as it was susceptible of the interpretation that at worst
he was testifying only to a warning against engaging in union activities during
working hours.
F. Tampa Sand
1. Introduction
The evidence concerning unfair labor practices at Tampa Sand related mainly to
conduct by Charles Poe, Max Hendry, and Dave Linton, with single acts being
charged to Fred Poe and to Joe Ciprich . Though Tampa Sand operated other
facilities , those which were directly and substantially involved in the proceedings
were the main batch bin and office on 13th Street , other batch bins at Skipper Road
and Anderson Road ( on the northern and northwestern outskirts of Tampa, respec-
tively ) and at the intersection of Highways 301 and 60 (on the eastern outskirts of
Tampa), and a block plant and storage lots near the central offices of the Cone
organization . By far the great bulk of the evidence , including that which sur-
rounded the discharges , related to Charles Poe himself and to his direction and
handling of the ready-mix concrete business and of the employees engaged in it.
Max Hendry , truck foreman , also played a significant part in the events at 13th
Street. A lesser, and relatively minor, part of the alleged violations occurred at the
block plant , where Dave Linton was superintendent and Joe Ciprich was foreman.
The entire ready-mix business was controlled from the 13th Street office, on the
yard with the bin itself, and communications were maintained from there by tele-
phone and radio with customers , with other Tampa Sand and Cone facilities, and
with the drivers of the ready -mix trucks , which were equipped with radios. Orders
and communications were normally channeled through and handled by the shipping
and receiving clerks, Howard Gray and Hoyle Sellers ( also called dispatchers
herein ), who were "spelled" by Ed Dunning, dispatcher , during periods of absence.
CONE BROTHERS CONTRACTING COMPANY 133
Other background evidence concerning their duties and the operation of the office
are summarized under section 3, infra, concerning the discharges.
2. Conduct at the batch bins
Joseph Swoboda, a long-time employee of Tampa Sand, was a driver at Skipper
Road. Swoboda testified that on May 13, Charles Poe called him into Poe's car
at the Skipper Road batch bin and began talking about the Labor Board and the
Union, as follows:
Joe, you have worked with the company a long time, I feel like I can talk to
you without you running to the Labor Board. . It seems like every time I
open my mouth and try to do something, the Labor Board gets on my ass... .
If you do go to the Labor Board I will tell them you are a damned liar . . .
There is a rumor going around that the company wants to give you fellows a
10 cents raise. Have you heard anything about it? . Well, that's the rumor
that is going around, but with all these union activities there is nothing the
company can do about it. . There are some fellows here I want you to
talk to . I want to know how they feel about the union, and how they feel
about this 10 cent raise . . . I will call off the guys. You write them
down....
Poe thereupon tore a slip of paper from his notebook, handed it and his pen to
Swoboda, and called off five names (Mathis, Morrow, Pitts, Wilson, and Lyle, all
old mixer drivers at Skipper Road), which Swoboda wrote down on a list which
he produced at the hearing. Poe stated he would be back later on, in a week or so,
to see what Swoboda had found out. Swoboda did not see Poe again until 2 days
before the strike, and although Poe spoke to him then, he did not ask Swoboda any-
thing more.
Guy T. Wells, another old-time employee at Skipper Road, testified to a similar
conversation with Poe in Poe's car about 2 weeks before the strike. Poe called off
a list of names of Skipper Road drivers whom he asked Wells to check on to see
how they felt about the Union, and Wells wrote them down but later threw the list
away. There were about five names on the list, of whom Wells remembered only
Swoboda, Mathis, and Wilson. Approximately a week later Poe asked whether
Wells had found out anything, and Wells answered negatively.
C. F. Pitts, also an old-time driver at Skipper Road who had known Poe for some
15 years, testified that on March 5, Poe drove past him as he was standing on a
corner, turned back, and talked with him, saying, "Pitts, I suppose all you boys are
signed up with the union out at Skipper Road." When Pitts acknowledged that he
had, Poe commented that Pitts had been there a long time and that he would see
him later.
Walter Watson, a driver at 13th Street, testified that around the middle of April
Charles Poe questioned him on the yard about whether he was going to attend union
meetings. George Henry, Jr., also at 13th Street, testified that on February 27,
Charles Poe asked him if he had heard anything about the Union, and that on May
26, Fred Poe told him there was going to be a strike the next day, that he wanted
Henry to work, and that, "If you don't work you are fired . . . I am going to get
rid of all the old men and get new ones anyway."
Archie Holly, Joseph C. Wright, David L. Greene, and Louis Coppola testified
to conversations with Max Hendry at 13th Street in late February when Hendry
questioned them separately about the signing of union cards, how many had signed,
how the Union was coming along, etc. Wyman Davis testified that on February 26
Hendry asked him for a card to sign and on another occasion in March Hendry
asked him how many of the drivers had joined the union. Lester Cumbest testified
that Hendry asked him in April to spread the news that if the employees would not
go union, they would get more money. Hendry warned Cumbest that he was talking
off the record and his word was as good as Cumbest's.21
On April 7, Tampa Sand laid off about 15 mixer-drivers 22 most of whom were
offered reinstatement in May. Four of the mixer-drivers at 13th Street (Robert J.
n Gilbert Davis testified to an occasion when Hendry asked his son Wyman if he was
shop steward, but that inquiry plainly resulted from Davis' own jocular reference to his
son as the shop steward
22 A charge was filed by Teamsters claiming discrimination as to eight of them, i e.,
Archie Holly, Albert (Robert) Landgren, Robert Beck, Lester Cumbest, Frank Howard,
D L Greene, Wyman Davis, and Robert Krause, but the entire charge was dismissed on
May 13. Cumbest, Greene, and Davis were the three most active employees at Tampa
Sand in the organizational activities
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Landgren, Milton C. Woodard, Robert Krause, and Eugene McGinn) testified that
Poe exacted promises that they vote against the Union as a condition to reinstatement.
Landgren testified that after making daily applications to Poe, he was finally
asked, around May 11 or 19, to wait outside the office (at 13th Street) where Poe
spoke to him by himself, asking whether, if he put Landgren back to work, Land-
gren would bemome a "company" man, or whether he was "in this nonsense in the
union," and whether he would vote for the Company. Landgren promised, and
Poe warned him not to go to the Labor Board office, stating that he had ways of
finding out if Landgren went there. Some 2 weeks later, Poe inquired whether
Landgren had spoken to anyone about their conversation.
Woodward, who was rehired on May 7, testified that Poe called him to one side
and, in connection with offering him his job back, asked whether he was a company
man or a union man, and whether if he were put back to work he would vote for the
Company or the Union. Woodward promised to vote for the Company, and Poe
cautioned Woodward to secrecy, stating that if Woodward "let this go any further,"
Poe would know about it.
Krause was hired on May 2, laid off on May 7, and rehired on May 12. He testified
that when he was first hired, Poe asked him what he thought about the Union and he
replied he had never had anything to do with one. Before Krause was rehired on
May 12, Poe told him he could come back on one condition, that he have nothing to
do with the Union -and that he vote "No" in the election. Krause promised. Poe
also stated he knew that Krause had made out some affidavits to the Labor Board,
that Krause was not to make any more, and that he wanted the conversation to remain
just between the two of them.
McGinn was hired in February, laid off in April, and was rehired to report on
May 16. McGinn testified that Poe spoke to him at or near the 301-60 location,
asking him to come back to work with the understanding he would vote against the
Union. McGinn promised 23
On its side, Respondent called Charles Poe and Max Hendry and furnished a doc-
tor's certificate as to Fred Poe. Hendry admitted that the drivers discussed the
Union with him on numerous occasions but denied the interrogations which were
attributed to him, though he conceded he may have asked Davis, who "poked" a card
at him, how Davis was making out. Hendry also admitted that several of the em-
ployees spoke to him about getting raises, but he denied Cumbest's testimony that he
asked Cumbest to spread the word that the drivers would get a raise if they did not
go union.
Charles Poe denied outright the testimony of Watson and Henry. He also denied
the testimony of Swoboda and Wells concerning a list of names and his alleged request
that they check on the employees. Though admitting a' discussion with Swoboda
concerning a rumor of a 10-cent raise, Poe testified that Swoboda approached him
concerning it and that he replied that he could not say anything because of the pending
"labor litigation." Poe admitted having a discussion with Pitts on the road, but
testified that he was "kidding around" with Pitts, an old employee, and may have
made some remark about whether Pitts belonged to the Union.
Poe also denied the testimony of Landgren, Woodard, Krause, and McGinn that
he conditioned their reinstatement on promises to vote against the Union, and he
denied the testimony of the three former that he warned them not to go to the Labor
Board Poe testified that Landgren, and possibly two or three others, had volun-
teered that they were not for the Union and only wanted their jobs back. He ad-
mitted that he discussed with Woodard, Landgren, and possibly with Krause, reports
that union supporters were attempting to have Woodward make statements to the
Labor Board, but he testified that those discussions were after the rehiring and that
what he told them was that they were free to go or not go, and that the Union could
not force them to.
As is apparent from the foregoing, the testimony against Charles Poe and Hendry,
respectively, reached the stage where, because of the number and similarity of the
incidents involved, it became cumulative and in effect mutually corroborative. Poe's
acts at Skipper Road, recounted by three witnesses, showed that Poe, feeling that he
might rely on the loyalties of the old employees, endeavored to check through them
on the union sentiments of the drivers. His warning to Swoboda concerning the
Labor Board was of a piece with his similar contemporaneous warnings to three other
23McGinn testified that he had been "previously schooled" by Poe about the Union
when he was originally hired in February, but his affidavit to the Board contained no
reference to that occasion, and McGinn's further testimony about it contained details
which indicated he had confused it with the May rehiring Concerning the rehiring,
McGinn's affidavit read in part, "[Poe] didn't mention anything to me about the union
but asked me to vote against it."
CONE BROTHERS CONTRACTING COMPANY 135
drivers at the 13th Street bin. The cumulative weight was even heavier concerning
Poe's conduct at the latter location in exacting promises from four drivers to vote
against the Union as a condition to reinstatement.
But Respondent urges on the latter point that Poe is to be credited over the oppos-
ing witnesses because the Board had under investigation at the time, to Poe's knowl-
edge, a charge that the Company had discriminatorily laid off eight drivers (including
Landgren and Krause, but not including Woodard and McGinn). Certainly that
circumstance is of weight in resolving credibility, and if the evidence were otherwise
in balance, it could tip the scales. Here, there is an addition to the weight of the
cumulative evidence against Poe-the offsetting circumstance that there was also
pending before the Board the Union's petition for an election (on which an election
was ordered on May 24) and the fact that Poe was contemporaneously engaged else-
where (as at Skipper Road) in a coercive campaign to canvass the extent of union
sentiment. Furthermore, Poe may well have considered his repeated warnings against
going to the Labor Board as adequate insurance against exposure to further charges.
In any case as the weight of the evidence is overwhelmingly against the uncor-
roborated testimony of Poe and Hendry, respectively, I do not credit the testimony of
the latter. There being no denial of George Hendry's testimony concerning Fred
Poe, I credit it also.
I therefore conclude and find on the basis of the entire evidence, that Tampa Sand
engaged in interference, restraint, and coercion within the meaning of Section 8 (a) (1)
of the Act by the following conduct: the interrogation of employees by Charles Poe
and Max Hendry concerning union membership, sentiments, and activities; Charles
Poe's direction of employees to canvass the union sentiments of others; Charles Poe's
conditioning of the recall of laid-off employees on their promises to vote against the
Union; Charles Poe's warnings to employees not to visit or to give affidavits to the
Labor Board; Hendry's promise of increased compensation if the employees rejected
the Union; and Fred Poe's threat to discharge an employee if he refused to work
during the strike.
3. The discharges
The complaint charges that Tampa Sand discharged Wyman Davis, Otho Mathis,
and Woodrow Wilson on May 26, because they assisted the Unions in their picketing
and/or engaged in other union and concerted activity. The General Counsel's theory
as stated in his brief is that Tampa Sand, through Charles Poe, "designedly and with
discriminatory motive, utilized an existing picket line at an affiliated company it con-
trolled, knowing that known union adherents wouldn't cross it, with the obvious
purpose of `legally' putting them in quit status, thus enabling the Employer to suc-
cessfully challenge their ballots [in the election] as non-employees and forevermore
being rid of their disturbing influence ." The picket line which the three drivers re-
fused to cross was one established by Operating Engineers at Prestressed on May 24,
which was also the date of issuance of the Board's Decision and Direction of Election,
on the Teamsters' petition, among Tampa Sand's employees.
Prestressed itself operated as a part of its facilities a batch bin of its own and it
also had three ready-mix trucks (with drivers). The setting for the "discharge"
incidents was laid in the late afternoon of May 25, when William Cooper, superinten-
dent of Prestressed, called Poe to request that he send two mixer trucks to work at
Prestressed the next morning.
Although the General Counsel urges that a contrary inference is to be drawn, the
evidence does not establish that Cooper' s request originated in bad faith. Though
normally such requests were made by calling the dispatchers at 13th Street, it was not
unusual for Cooper to "coordinate" with Poe concerning Prestressed's requirements.
Furthermore, the strike had created a situation at Prestessed which afforded some
support for Cooper's explanations of his request. Thus, of a normal complement of
120 employees, only some 15 reported for work on the morning of the 26th, or barely
enough to make a pour. Cooper testified that none of them customarily drove a
ready-mix truck, and that , in any case , he did not have enough men to do the pouring
and drive the truck too. Louis Coppola, the Tampa Sand driver who worked at Pre-
stressed that day, testified in accord that, "I believe on that occasion they didn't
have the right crew, the right men to pour. They just got a bunch of fellows together
and just poured." Though Cooper could not know on the 25th what work force
would be available the next morning, his request for help was reasonable under exist-
ing strike conditions.
By the same token, however, the size of the crew which reported on the 26th raised
questions ( later adverted to) concerning whether more than a single driver could
possibly be used. Furthermore , a finding that Cooper's initial request was genuine is
the beginning, not the end , of the inquiry whether Poe, acting with discriminatory in-
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tent, used the request as a means for exposing union adherents and for putting them in
a "quit" status with an eye to disqualifying them as voters in the impending election.
That inquiry entails the necessity for reviewing Poe's conduct not only in relation to
Mathis, Wilson, and Davis, but also concerning Dwight Stringfellow, Louis Coppola,
David L. Greene, Lester Cumbest, and David M. Gay, since all were involved in Poe's
attempts to fill Cooper's order. Before turning to the mass of evidence concerning
those eight cases, I make preliminarily the following findings:
First, the scheduling of all orders was done from the 13th Street office by Gray
and Sellers, who set up the delivery schedule 24 hours ahead so that the customers'
requirements would be met on time. The amount of business was thus normally
known in advance. Furthermore, Sellers informed Poe early on the morning of the
26th that there were only a few orders to go out.
Second, it was a normal procedure for mixer drivers to be assigned to work on
occasion at Prestressed.
Third, though trucks of the type which Stringfellow drove (front wheel drive,
with power takeoff) had sometimes encountered difficulties in operating at Pre-
stressed, the evidence showed that such trucks had worked there on a number of
occasions and that Coppola had no trouble with the same type of truck on the 26th.
Indeed, as Coppola's truck, No. 26, was a newer model (1959) than Stringfellow's
No. 36 (1958), it seemed better qualified for selection under Poe's explanation that
he chose Stringfellow because a new truck with good blades was needed to mix and
pour the drymix concrete which was to be run at Prestressed. Moreover, Re-
spondent had some dozen other trucks which were newer (1959 and 1960 models)
than Stringfellow's.
We turn now directly to the events surrounding Poe's assignment of drivers to
Prestressed.
On the late afternoon of the 25th, Dunning took a call from Poe and passed a
message to Sellers that Poe wanted Stringfellow sent to Prestressed the next morn-
ing. When Stringfellow was told of his assignment, he informed Sellers and Gray
that he would not cross the picket line, and they sympathetically faked a message
calling Stringfellow home.24 As that left Poe's order unfilled, Gray called Comer
Baldree, dispatcher at Skipper Road, who stated he had heard of "the little deal"
and had already sent Otho Mathis. Understanding that Baldree had a separate order
from Poe to send a truck from Skipper Road, Gray and Sellers then designated
Louis Coppola, whose truck was of the same type as Stringfellow's and who they
assumed (correctly) would cross the picket line.
When Baldree directed Mathis to go to Prestressed, Mathis stated he would not
cross the picket line, but Baldree ordered him to go anyway and to report back if
he found one. Mathis called back, reported he would not cross the picket line, and
Baldree told him to stand by. However, Mathis returned to Skipper Road around
9:30 a.m., after someone pulled his truck into the Prestressed yard. When Mathis
told Baldree that he assumed he was fired for not crossing the picket line, Baldree
replied that he could not say as to that but that Poe had ordered him to stop Mathis'
time as of the time he called in from the truck. Mathis' card was clocked out at
8 am
In the meantime Baldree reported to Poe, who ordered Baldree to send another
truck to Prestressed. Baldree assigned Wilson, who testified that Baldree told him
that Poe wanted him to go to Prestressed 25 Wilson also told Baldree that he would
not cross the picket line, but as in Mathis' case, Baldree ordered him to go anyway
and to report back. When Wilson duly repeated his refusal from the picket line,
Baldree in turn reported that refusal to Poe, who had gone to Prestressed, where he
saw Coppola at work and saw Mathis' truck on the yard. (Poe also admitted seeing
Cooper at Prestressed, as well as his attorney, Fisher.)
Poe went out to 56th Street with C. W. Cone and Coppola, where he spoke to
Wilson about crossing the picket line. When Wilson refused to cross because of
24 Gray and Sellers , who admitted their prounion sympathies and who joined the Union
on the evening of the 213th, assumed from the start that Poe was simply laying a basis to
discharge Stringfellow, who was known to Poe to be a union adherent.
25 Baldree did not specifically deny that testimony, nor did he deny the comment to
Gray about having heard of "the little deal " Also bearing on the question whether
Wilson was deliberately selected was evidence, supplied by the Skipper Road time records
that though Mathis' time was stopped at 8 a.in, the assignment of Wilson could not
have been made until after 0 01 a in , upon his calling in to report the completion of a
delivery on which he was engaged
CONE BROTHERS CONTRACTING COMPANY' 137
fear of "bodily harm to ,me and my family," Poe said he considered Wilson as
quit.26 Wilson's card was clocked out at 9:57 a.m.
In the meantime, Poe called Sellers around 9:30 to inquire why Stringfellow had
not gone to Prestressed, and Sellers explained that Stringfellow had gotten a call to
go home. Poe asked whether Stringfellow got the call before or after the assign-
ment to Prestressed, and Sellers told him it was before.
Poe's actions now took a new turn. Between 9:30 and 10 a m., he telephoned
13th Street and requested Gray to give him the names, addresses, and telephone
numbers of the employees who were on layoff, and Gray gave him the names of six
employees, including Wyman Davis, Lester Cumbest, and D. L. Greene, all of whom
had been included in the Union's charge.27 Davis testified that Poe called him that
morning and asked if he were ready to go back to work. When Davis suggested
reporting on Monday, Poe informed Davis he needed drivers at once. When Davis
asked if there were a picket line at 13th Street, Poe replied there was none when he
left, and Davis agreed to come down at noon. However, Davis first came in around
10 or 10.30 and talked to Howard Gray, who told him he was to be sent to Pre-
stressed. Davis went out to Prestressed, saw the picket line, went through and talked
to some of the employees at work, and then went back to 13th Street.
Poe came into the office around 12.10 p m., and talked with Davis in the pres-
ence of Gray, Sellers, and G. W. Stevens, Jr. (a Tampa Sand employee who dealt
only with customers). According to Davis, Gray, and Sellers, Poe told Davis he
was to work at Prestressed, and when Davis refused,28 Poe stated that that was where
he wanted Davis to go and that Davis had refused to work or had refused the job.
Sellers and Gray testified further that when Davis left, Poe turned to them and
Stevens, stating that they had heard him offer Davis his job and had heard Davis
refuse it.
The testimony of Poe and Stevens was not in substantial conflict except on the
point whether it was Davis or Poe who first mentioned going to Prestressed. In any
case it was apparent from all the evidence that Poe told Davis that he was needed at
Prestressed.29
David L. Greene and Lester Cumbest were among the laid-off drivers whose names
Gray supplied to Poe. Though both of them had obtained temporary employment
at Lakeland after the layoff, they came to Tampa on May 26 pursuant to a message
from Woodrow Hughes, business manager of Teamsters, and met Hughes and
Wyman Davis around 1:15 p.m. Sometime after 2 p.m., they all went to the 13th
Street batch bin where Greene and Cumbest began distributing union handbills on
the yard and in the office (in Poe's presence) concerning a union meeting being
called by Hughes for that evening.
Greene, Gray, and Sellers testified that when Greene was in the office Poe asked
if Greene was ready to go to work, that Greene replied that he was, and asked where
he was to go. When Poe stated that Greene was to go to Prestressed, Greene re-
plied that Poe might as well save the gas because he was not going to cross the picket
26 Though Mathis claimed to have been present during that conversation, as well as
during the earlier one between Baldree and Wilson, Wilson did not corroborate that testi-
mony. Poe denied that Mathis was present when he talked to Wilson and denied having
any conversation with Mathis that day. I credit those denials.
T That call was apparently made from Prestressed (where Poe admitted seeing his
attorney, Fisher), for the time coincided with that fixed by the evidence for Poe's visit
Wilson's card, for example, was clocked out at 9 57 a in
28 Davis testified he made some reference to "endangering his life," and explained by
stating that there had already been three or four different incidents of violence on the
picket line
29 Attorney Muller's letter of July 12 to the Board, regarding the charges, stated in part
that Davis was advised that because of two "quits" that morning, he would have to work
at Prestressed Muller's letter explained further that it was necessary to the Compay's
operations that Davis work at Prestressed, and that such "need" resulted from the re-
fusal to work by Mathis and Wilson, which took the Company by surprise and "just as
obviously caught [it] shorthanded "
As to Mathis and Wilson, Muller's firm took the position in the representation pro-
ceedings (Case No 12-RC-862, supra ) that they voluntarily quit their employment by
refusing to cross a picket line not at their employer's premises and not sponsored by their
Union, and that the circumstances of the later strike at Tampa Sand "cannot be seized
upon to make eligible to vote employees who had quit prior to either the strike or the vote."
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
line. After some further discussion , however, Greene and Max Hendry left to select
a truck to be assigned to Greene.
Poe testified that it was Greene who asked for a job and raised the question of
an assignment to Prestressed, that he informed Greene that Greene could be "put
on" because Poe had some "vacancies" (admittedly referring to Mathis and Wilson),
but that he did not know where Greene would be sent. Max Hendry's testimony
was in substantial accord. I do not credit their testimony that Poe did not tell
Greene he would be sent to Prestressed, for the evidence showed that Poe continued
to send drivers there until sometime after Greene and Cumbest appeared at the
office. Furthermore, evidence in the Company's records (later referred to) showed
that Poe needed no drivers except to fill the alleged need at Prestressed . See also
footnote 29, supra.
Cumbest then came into the office and asked if Poe wanted him to start work and
Poe stated that he did and that he would be given a timecard. Cumbest was also
directed to get his truck in readiness.
After Greene and Cumbest were clocked in, respectively, at 2:49 and 2:51 p.m.,
Poe left the office, after directing Sellers to "hold up these fellows until I get back."
Poe testified that he had become suspicious because Greene and Cumbest were in-
cluded in the charge filed with the Board and because they had come onto the lot
with a union representative, and that his main concern was to put them back to
work because of the charge. 30 Poe then went across the yard to the "contract"
office , called his attorney, Fisher, voiced his suspicions, and was advised to check
with Cooper at Prestressed to see whether he needed more men. When Cooper
reported he needed none, Poe called Max Hendry and gave him orders to have
Greene and Cumbest put to work.
After talking with Poe, Hendry directed Sellers to "hold up D. L. Greene from
going to the Prestressed yard," and inquired whether there were any orders on the
books which might be assigned to Greene and Cumbest. Sellers had only a single
order, which Hendry directed him to assign to Greene and stated they would have
to have another order for Cumbest. When Sellers reported there was a single "will
call" order at Anderson Road, but that there were two trucks standing by there to
deliver it, Hendry directed him to have a part of that delivery made by Cumbest.
Greene and Cumbest were checked out on their respective deliveries at 3:38 and
3:58 p.m.
In the meantime , drivers were still showing up at Prestressed. William Cooper
testified that though he discovered around 2 p.m. that he would be unable to use a
second truck (because of crossed cables in the bed on which the second truck would
be used), two mixers arrived after that time and were sent back, including one
which arrived around 3 p.m. The last truck was apparently the one driven by
David Gay, a mixer-driver at Anderson Road, who testified that Selly Anderson
sent him to Prestressed around 3:30 p.m., and that when he arrived there, Lumpkin,
the batch bin operator, said he had nothing for Gay to do and that he had already
sent Coppola back 31 Charles Poe was at Anderson Road when Gay got back there,
and he told Gay he had changed his mind and had nothing for Gay to do at
Prestressed.
Other evidence concerning the amount of business on hand for the 26th and the
availability of drivers became particularly significant because of conflicting testimony
on those points and because the delivery schedules were set up a day in advance.
Sellers and Gray testified that the day was a light one, particularly in the afternoon,
and that drivers were being "clocked out" because there were so few deliveries to
be made.32 Though Poe took issue with that testimony, denying that drivers were
being clocked out because of lack of orders and denying that other drivers were
available at the time for dispatch to Prestressed, Respondent's records, when pro-
duced, confirmed completely the testimony of the General Counsel's witnesses.
That the day was a light one is shown by the following summary of deliveries
made from the various batch bins on May 24, 25, and 26:
30 That charge, which also included Wyman Davis, had been dismissed by the Board
on May 13 Poe's denial of knowledge of that fact is not persuasive, particularly since
he conferred with his attorney immediately about Greene and Cumbest.
81 ^Coppola's timecard was clocked out at 13th Street at 3:09 p m. Normal driving time
from Prestressed, depending upon traffic conditions, would probably vary from 20 to
30 minutes.
32 Clocking out was a normal practice under such circumstances though the drivers
sometimes waited around for other assignments.
CONE BROTHERS CONTRACTING COMPANY 139
Date 13th St. Skipper Anderson 301-60 Total
Rd. Rd.
May 24____________________________________ 53 34 16 7 110
May 25____________________________________ 41 34 31 5 111
May 26____________________________________ 37 24 23 2 86
The situation as to the number of drivers available, the completion of their de-
liveries, Sand their time of clocking out is shown by the following analysis,of Re-
spondent's time and delivery records:
There were a total of 18 drivers available at 13th Street on the afternoon of the
26th (excluded Coppola, Davis, Cumbest, and Greene); there were 10 drivers at
Skipper Road (excluding Mathis and Wilson); and there were 6 at Anderson Road.
Of the 37 deliveries made from 13th Street on the 26th, only 14 were made after
noon and only 7 after 2 p.m., including the 2 last ones by Greene and Cumbest.
Even more significant, concerning the availability of drivers, were the following
facts (starting with 13th Street): Robert Krause, who made no deliveries, clocked
in at 6:43 a.m., and was clocked out at 2:54-p.m.; N. Greene made one delivery,
completed at 11:45 a.m.,33 and was clocked out at 12:42 p.m.; Edgar Hall made one
delivery, completed at 10:40 a.m., and was clocked out at 12:35 p.m.; Sam Sollazzo
made two deliveries, completed at 10:30 a.m., and was clocked out at 12:39 p.m.;
G. W. Davis made two deliveries, completed at 12:10 p.m., and was clocked out at
12:36 p.m.; J. L. Vaughn made one delivery, completed at 7:45 a.m., and was clocked
out at 5:49 p.m.; and Leroy Smith made three deliveries, completed at 1:35 p.m.,
and was clocked out at 5:49 p.m.
Vaughn and Sollazzo were also shown as completing single deliveries from
301-60 at 8:37 and 8:50 a.m., respectively.
Skipper Road's 12 drivers were shown as reporting in and clocking out at normal
times (except Mathis, out at 8 a.m.; Wilson, out at 9:57 a.m.; and Eugene McGinn,
whose time was not shown). Except for John Morrow, who made five deliveries,
completed at 5:10 p.m., all other drivers finished early, but stayed on the clock.
G. T. Wells for example, who made no deliveries, checked in at 6:29 a.m. and out
at 4:59 p.m. Eugene McGinn made no deliveries, though Poe testified he checked
in in the morning and checked out in the afternoon. The other drivers were shown
with one, two, or three deliveries each, completed as follows: C. Davis at 9:30 a m.;
James Scarborough at 11:25 a.m.; T. R. Gardiner at 12:25 p.m.; C. F. Pitts at
1:16 pm.; J. W. Lumpkin at 1:30 p.m.; Joe Swoboda at 2:33 p.m.; and Robert
Glausier at 2:45 p.m. Bearing further on the availability of other drivers at the
time of Wilson's assignment (after 9.01 a.m.), the time records showed (in addi-
tion to Wells and McGinn, who made no deliveries) that C. F. Pitts finished a
delivery at 8:49 a.m., J. W. Lumpkin at 8:57 a.m., and Robert Glausier at 8:21 a.m.
Pitts' truck was the same age as Wilson's, and Glausier's and Lumpkin's were, re-
spectively, I and 2 years newer.
Although Anderson Road's six drivers also clocked in and out at normal times,34
three of them completed their deliveries early, as follows: Walter Schneider at 11:10
a.m.; D. Ware at 1:30 p.m.; and David Gay at 1:45 p.m Indeed, Sally Anderson,
the dispatcher, testified that he had "knocked off" five of the drivers by 2 or 2:30
p.m., because there was no work for them at the time.
To summarize, there were three drivers (Krause, Wells, and McGinn) who did
not make a single load all day. Eight others completed their deliveries for the day,
respectively, at 8:37, 9:30, 10:30, 10:40, 11:10, 11:25, 11:45 a.m., and 12:10 p.m.
Thus there were a total of 11 drivers available for dispatching at the time Poe
talked with Davis around 12:10 p.m., i.e., 6 at 13th Street, 4 at Skipper Road, and
1 at Anderson Road.
Concluding Findings
In determining whether the foregoing evidence establishes, as the General Counsel
contends, that Poe had proceeded by a deliberate plan aimed at changing the status
33 The drivers reported (and Respondent recorded) the time the drivers left the customer's
lobsite At that time they became available for, and sometimes received, assignments
before returning or while en route back to the batch bin (as, according to Baldree, Wilson's
assignment to Prestressed was made)
31 C F. Pitts, of Skipper Road, was also listed as completing a delivery from Anderson
at 11.30 am, and A T. Crosby, of 13th Street, was listed with five deliveries, com-
pleted at 4.20 p in
•140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of working and laid-off union adherents to a status of quits and /or strikers, the
following facts are of the most significance:
Poe had for some time been actively engaged in a campaign of canvassing union
sentiment among the employees and had gone so far as to condition the recall
of laid-off employees on their promises to vote against the Union.
The Board's direction of election issued on May 24.
Mathis and Wilson were drivers at Skipper Road on whose union sentiments Poe
had directed Swoboda and Wells to check. Stringfellow was known to Poe to be a
union supporter . Davis, Cumbest , and Greene were among the most active em-
ployees in the organizational campaign at 13th Street.
There were a number of trucks which could have performed satisfactorily at
Prestressed, but Poe (preempting a normal function of the dispatchers) chose String-
fellow, a driver whose adherence to the Union was known to him. Significant also,
in view of his handling of Mathis and Wilson, was Poe's later inquiry of Sellers
whether Stringfellow was called home before or after he was assigned to Prestressed.
There were five drivers available for assignment at Skipper Road after Mathis was
clocked out at 8 a in., and before Wilson became available at 9:01 a in. There were
11 drivers available for assignment at 12:10 p.m, when Poe ordered Davis to
Prestressed
Baldree did not deny his revealing comment to Gray that he had heard of "the
little deal," and he made no specific denial that he told Wilson that Poe had
chosen him. Indeed, the unexplained gap of over an hour between Mathis' refusal
and Wilson's assignment , in the face of the availability of five other drivers at
Skipper Road, strongly suggests in itself that the choice of Wilson was a deliberate
one. Furthermore Baldree, though able to communicate instantly with Prestressed
and Poe, ordered both Mathis and Wilson to go to Prestressed and to report from
there, despite the protestations of the two drivers that they would not cross the picket
line.
Though eager to put Mathis and Wilson in a "quit" status (without checking on
the possibility of other jobs for them), Poe immediately set about the recalling of
laid-off employees, representing to Davis that he needed drivers at once.
By the time of Poe's visit to Prestressed, it should have been plainly apparent
to him and to Cooper that there was certainly no need for another truck. The
small (and apparently makeshift) crew was unable to keep Coppola fully occupied,
since he had above normal waits of three-quarters of an hour to an hour between
three pours. Though Cooper testified he did not discover until around 2 p in. that
crossed cables would prevent the pouring in another bed (for which the second
truck was allegedly needed), he admittedly held Coppola's truck to make that pour
but released Coppola when he found he could not clear up the "mess." Thus, not
only was Coppola's truck adequate for all the work which could be readied by the
crew, but no credible explanation was offered or suggested as to what a second
truck could possibly have done prior to 2 p in.
Despite that lack of need Poe continued to send drivers to Prestressed until after
3 p in. (Indeed Gay did not arrive until after Coppola was released at 3:09 p.m.)
He recalled Davis and offered him work only at Prestressed , and he put Greene
and Cumbest "on the clock" with the understanding that they would probably also
be assigned there.35
Finally, Poe's claims as to his need for drivers and his denials of the testimony
of the dispatchers were wholly demolished by Respondent's own time and delivery
records, as shown by the analysis above.
The foregoing evidence plainly supports the General Counsel 's contention that
Poe acted throughout with discriminatory intent to utilize the shibboleth of Pre-
stressed 's picket line , not only to expose union adherents , but to disqualify them
as quits from voting in the coming election . See footnote 29, supra. That conduct
was plainly of a piece with , and a continuation of, Poe's earlier actions in checking
on union sentiment among the drivers and his conditioning of reinstatement on
promises to vote against the Union.
The entire circumstances plainly preclude the crediting of testimony by Poe and
Baldree that Poe did not designate either Mathis or Wilson to go to Prestressed
and of the testimony of Poe and Cooper as to the alleged need of a second truck at
Prestressed But in any event , the exact outlines of Poe's scheme became fully
revealed by his conduct following the Mathis -Wilson refusals to cross the picket line.
35 It was reasonable that Poe's suspicions should have been aroused by the circum-
stances of Green's and Cumbest 's arrival . Because of their premature "splash," It is
possible only to speculate as to how much further Poe would have carried his plan to
assign laid off drivers to Prestressed.
CONE BROTHERS CONTRACTING COMPANY 141
Assuming, as I do, that Cooper's request for two trucks was genuine when made
on the 25th, the need for a second truck evaporated the next morning when only
15 of 120 employees reported. Coppola's arrival plainly fulfilled all of Cooper's
foreseeable needs. Yet in the face of that untoward circumstance which threatened
to abort his plan, Poe nevertheless proceeded with his gambit. Having succeeded
to his satisfaction in placing Mathis and Wilson in a quit status, Poe shifted his
emphasis to the recalling of active union supporters in whose behalf the Union had
formerly filed the (dismissed) charge.36 Poe could plainly assume that such indi-
viduals would follow the example of other union adherents and refuse to cross
the picket line, thereby insuring, without cost, the progressive success of his gambit.
Indeed, but for the arousing of his suspicions by Greene and Cumbest, it is plain
that Poe intended to continue with his plan indefinitely, as demonstrated by Gay's
arrival on assignment at Prestressed after Coppola had been released.
I therefore conclude and find on the entire evidence that by discriminatorily
changing the employment status of Mathis, Wilson, and Davis to that of "quits,"
in the manner and with the intent found above, Tampa Sand constructively discharged
said employees to discourage membership in Teamsters, thereby engaging in unfair
labor practices proscribed by Section 8(a)(3) and (1).
4. Conduct at the block plant
John D. Owens and William Korne testified that on the night a union meeting
was scheduled (May 18), the employees were required to work late to manufacture
some lightweight blocks, which they claimed were not needed at the time. It is
unnecessary to explore their testimony in detail, since Linton's testimony and
records which he produced established that the blocks in question were produced
on May 19.
Aside from that the time records for the 18th also showed that only 6 of some 30
employees had worked abnormally long hours on that date and that some 24
employees could have attended the union meeting, which was scheduled at 7:30 p.m.
There was no basis in the record (save the speculation by some of the employees,
which Owens referred to) for a finding that late work was scheduled on the 18th
simply to interfere with attendance at the union meeting.
Owens also testified that some time in May, Linton asked him how he felt about
the Union, whether he had heard other employees talking about it, and told Owens
to report to him if he did. Owens testified further that on May 26 Linton called
a meeting of the employees at which he stated that if they refused to report to work
they would lose their vacation and hospitalization. He did not remember that
Linton referred to a strike.
Korne, though apparently testifying to the same meeting, gave an entirely different
version. He fixed the date as between May 24 and June 7, and testified that some
30 employees were present . Linton stated among other things that he had no use
for Hoffa in particular and the Teamsters in general , and that- if the employees
wanted a union they could have one which was more acceptable to the Company.
Linton also stated that the strikers would lose their vacation pay; that if there
was any trouble with the strikers, they were not to worry, because the Company
would take care of them; and, referring to some complaints by drivers of mud
beneath their fenders, Linton said, "We have quite a bit of pipe laying around
here that would be fine for knocking off the mud." There was laughter about that,
and one of the employees said he did not care about having a piece of pipe, but
he was going to bring his gun the following day, and one of the colored drivers
said he already had his gun in his car.
Korne also testified to an occasion when he was handed a handbill concerning
a meeting and that Linton and Ciprich saw him get it. Ciprich came over and asked
what it was, and Korne told him. Ciprich told Korne, "You stay the hell away
from there."
Ciprich did not testify. Linton testified that he made his talk to some 8 or 10
employees (including Korne and Owens) on Saturday, May 28, because of fears
which some of the employees had expressed concerning their safety; that he told them
the plant would give them all the police protection it could and suggested the men
ride in groups in their cars. He denied referring to pipe for knocking mud off the
trucks, denied that any of the employees said he would bring a gun , and denied
the other statements which Owens and Korne attributed to him. Linton also denied
Evidence concerning Poe's offer of reinstatement to Frank Howard (also named in
the charge) on May 27 does not advance the General Counsel's position, for on that date,
with a strike at Tampa Sand, Poe could justify a search for drivers
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Ciprich told Korne to stay away from a union meeting , and denied the conver-
sation which Owens testified to.
Frances Bush and Otis West corroborated Linton's testimony concerning Linton's
talk at the meeting. Bush also corroborated Linton's testimony that he was one
who complained to Linton about being afraid to come in to work through the strikers.
Owens, called in rebuttal, denied Linton's testimony that he had made similar
complaints to Bush's. However, Linton's testimony and Bush's corroboration estab-
lished the fact that complaints were made and that Linton called the meeting as a
result. I also credit Linton's testimony, as corroborated by Bush and West, as to
the content of the speeches, particularly since the versions of Korne and Owens
varied so widely from each other, and I credit also Linton's denial of a conversation
with Owens.
I therefore conclude and find on the basis of the entire evidence that Tampa Sand
did not engage in unfair labor practices through the conduct of Linton and Ciprich
at the block plant.
G. The joint allegations
1. Guns and weapons; threats and assaults
The evidence here summarized relates to paragraphs numbered 19, 20, and 21 of
the complaint, which charged Respondent as an entity with assaults and threats of
assault , with instigating, encouraging, and condoning conduct of employees and
supervisors in carrying and using tools, vehicles, and weapons, and with the threaten-
ing use of such instruments vis-a-vis the strikers and the picket line. As the evidence
was developed in much the same order as that which is summarized under the pre-
ceding sections of this report, I shall proceed here in the same order, beginning
thus with Walter Cooper's conduct in the Nobleton-Lansing area, moving thence to
other outlying areas, and concluding with the incidents in and near Tampa.
a. Lansing-Nobleton; the drive to Parrish
Several witnesses for the General Counsel testified to Cooper's conduct concerning
guns and weapons in relation both to the Lansing-Nobleton operations and in relation
to a drive to Parrish on the night of May 26. Here, as in the case of Cooper's other
conduct, Respondent offered only limited corroboration of Cooper's testimony with
Herndon again being conspicuously absent. See section D, 1, and footnote 12, supra.
I accordingly credit here, as there, the cumulative and mutually corroborative testi-
mony of the General Counsel' s witnesses.
Briefly summarized the evidence as it concerned Lansing-Nobleton, proper,37
showed that Cooper:
1. A day or so before the strike directed J. B. Phillips (who was hauling to
Kissimmee ) to run over anyone who tried to stop him on the road.
2. Informed Joseph Lariez (and other drivers) after the strike that they should
get a jackhammer, a piece of pipe, or a lugwrench in their trucks and if anyone tried
to stop them, to run them off the road.
3. Assured Phillips on May 29 ( in soliciting him to work through the picket line)
that he would carry Phillips in a pickup truck, with guns for protection, and if the
strikers had guns, they could be handled "like people shooting at a covey of birds."
4. Carried three guns on the floorboards and a pistol in the glove compartment of
a truck as he rode with Herndon and Lariez on a mission to obtain replacements for
strikers.
5. Obtained appointments for himself and Herndon as deputy sheriffs and carried
guns as he accompanied the trucks as they were driven in convoy to Kissimmee in
June. An armed guard also accompanied the convoy, and about half of the drivers
had guns.
There was also evidence that Hayes refused to work on a job on which he had
"to tote a gun and drive a truck too." When D. M. Mathis similarly refused to carry
firearms on the job "for protection," Cooper informed Mathis that he was regarded
as "quitting."
The evidence established that there was no carrying of guns or weapons by pickets
either at the Nobleton mine, out of which Cooper's crew was hauling, or along the
road to Kissimmee. However, during the first or second week in June Mike Capri-
glioni was involved in incidents near the Lansing mine and at the Nobleton picket
line which will be adverted to later.
The trip to Parrish on the night of May 26 was for the purpose of driving back a
number of Cone trucks which had been immobilized there by the strike on the 24th.
37 The Parrish trip , though earlier in point of time , is summarized later as the events
concerning it lead logically into the general situation at Parrish.
CONE BROTHERS CONTRACTING COMPANY 143
The evidence established that in rounding up a crew to make the trip Cooper directed
and suggested that the men bring guns if they had any, and that Cooper and Herndon
and some of the men took along either guns, rifles, or pistols.
The trip was made without incident of any kind though they were met en route
by C. W. Cone and at Parrish they were met at the truck lot by a deputy sheriff.
Some time was spent in servicing the trucks for the return trip including the fixing
of flat tires and the repairing of wiring for the headlights. (The trucks had not
previously been used for night hauling.) The preponderance of the evidence did not
establish sabotage, though there was testimony concerning an incident of alleged
shooting on the highway, later adverted to.
The return trip was also uneventful though Cooper and Cone ordered the drivers
to stay in convoy and to run over, or to run off the road, anyone who tried to stop
them.
In justification of Cooper's conduct, Respondent relied on certain incidents involv-
ing Mike Capriglioni, including an alleged shooting at Parrish, and a statement made
to Cooper by an unidentified man on May 24 that he wished Cooper would not
continue to run his trucks, "because somebody is liable to get hurt."
Concerning the Parrish incident, Ernest Rhoden, a Cone truckdriver, testified that
on May 26, as he neared Parrish ahead of two other Cone trucks, he heard some-
thing hit the side of the truck. Rhoden saw no one , heard no rifle shot or shotgun
blast, and heard no sound other than that of the impact of an object. On stopping to
check, he discovered a small dent in the body just back of the cab. Within a minute
or so the other two trucks stopped, and upon examination he saw that one had
been struck just back of the seat, that is, he saw a hole through which something
had gone. The third truck had a hole in the corner of the window glass the size
of "the end of your little finger," as if somehting had hit it and glanced off. The
deputy sheriff later questioned a striker by the name of Parker, who had been seen
along the road, but Rhoden did not know whether any charge was preferred, and
Respondent offered no evidence that there was any.
Foreman Hansel Silas, who also examined the trucks when they arrived at Parrish,
described the damage as "a dent in the body, a dent in the cab, and a dent in the
rod in the rear view mirror." He testified that there were no holes and that the dents
were "maybe one-eighth of an inch deep."
Bailes, who also went to Parrish that day, talked with Silas, who informed him
the trucks were shot at, and Bailes also examined one of them. Bailes testified he
later reported to Mr. Cone (face to face) that three of the trucks were shot at on
the Parrish job; that he also talked with Doolittle at the shop by radio; and that he
"believed" he talked with Cooper. Although Bailes testified that he directed Cooper
to pick up some of the Parrish trucks, he could not recall whether that was during
the same conversation concerning the condition of the trucks or whether it was in
a separate conversation. Bailes was positive, however, that he did not direct Cooper
to arm the drivers and that Cooper did not state his intention to arm them.
The only other evidence of relevance at Parrish was testimony by Silas that
Capriglioni told him the first day of the strike that he had experience with unions
and "how trucks could get messed up." Rhoden, however, had identified the striker
who was picked up by the deputy sheriff as a man named Parker. Respondent of-
fered no evidence which connected Capriglioni with the alleged truck shooting or
with any of the other events at Parrish.
Other evidence concerning Capriglioni's acts at Nobleton related to a time sub-
stantially after Cooper's conduct occurred. Sidney Menges, a supervisor who was
working out of Lansing, testified to an incident around the first week in June when
he was stopped on the road by a group of men near Lansing and when Capriglioni
appeared with a rifle. Capriglioni stated he was going to take the ice (which Menges
had in his truck) and asked for a paper cup, which Capriglioni used for target prac-
tice across the county road.
Capriglioni and Boykin fixed the time as in the second or third week in June, and
their mutually corroborative testimony put the incident in an entirely innocuous
light. Boykin testified that Menges stopped of his own accord, that no one waved
him down, and that there was a friendly conversation with Menges, who asked them
if they intended to go back to work. Capriglioni's testimony was in accord. Though
they admitted that Capriglioni engaged in target practice, both denied that Capri-
glioni made any threatening use of the gun or that he took or threatened to take the
ice away from Menges38
38 Capriglioni admitted that he was later arrested on charges of shooting a rifle across
the right-of-way of a road and for failing to have a permit for an automatic weapon.
Though he testified that he was fined $100, be apparently was referring to a forfeiture of
his bond, since there was no trial of the charges and no evidence of a conviction.
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
David Brown also testified to an incident in the first or second week of June
when Capriglioni waved a sawed-off shotgun at the picket line at Nobleton and
shouted, "Look what I have for you." Brown testified that three other employees
were in the car with him, that Capriglioni followed his car all the way through
Brooksville to Tampa (57 miles), and that during the course of that ride there were
two cars of strikers, including Capriglioni's, who kept pulling along side of his
car and cursing the occupants. Brown admitted on cross-examination that though he
passed by the county courthouse in Brooksville he did not report to police or county
authorities either there or in Tampa.
Capriglioni, Hayes, and Boykin testified on rebuttal that Capriglioni did not have
and did not brandish a shotgun. Though Capriglioni admitted that he pulled into
a caravan which was leaving the mine and which included two cars of workers
and a car driven by J. L. Cone, he testified he turned off on the Tangerine Trail,
north of Brooksville, and was not again behind the workers' cars. Though he found
himself behind Cone's car for a few miles south of Brooksville, he soon met John
Siers on the road and turned back to talk to him. Hayes and Boykin gave corrobora-
tive testimony.
As Respondent did not call either J. L. Cone or any of the occupants of Brown's
car, to testify to this incident, the mutually corroborative testimony of Capriglioni,
Hayes, and Boykin is credited.
b. The Polk City area
Mutually corroborative and undenied testimony was given by Robert Britt and
Lonnie M. Lee concerning the menacing use of a shotgun by Otis Williams, super-
intendent of a bridge crew on a project east of Don Smith's.39 They had gone to the
project some 10 days after the strike to talk to the employees, and Williams came
up and ordered them off the job. They went back up on the highway, got their
picket signs, and began to walk a picket line, in the meantime trying to shout to
employees who were within hearing distance. Williams called his men together,
talked with them, and then sent them back to work, except for one who left in a truck
and who came back with a shotgun and a box of shells. Williams loaded the gun and
moved it in a circle toward the pickets. Lee commented to Britt he believed Williams
"would shoot you with that gun," and Williams replied, "By God, if you don't think
I will shoot you, just come across that damn road."
The picketing continued, and at lunchtime, Williams sat in the midst of the em-
ployees with the shotgun. Britt testified that some half-hour later, while he was
endeavoring to had some literature to two of the workers on the right-of-way,
Williams drove a tractor past him on the edge of the highway and swung it around
so as to make Britt jump back to avoid being hit.
Lee also testified to an occasion at the maintenance shop in Tampa when he saw
a policeman take a gun from Williams, though he handed it back after taking the
shells out.
The only allegation concerning 'Don Smith's conduct in connection with the
present phase of the case was that he instructed nonstriking employees to run over
the pickets who were in their path, promising them "protection." The only evidence
offered to support that allegation was the testimony of James Judah that Smith told
the workers at lunchtime on one occasion that if the pickets got in their way to
run over them and come on in, but that testimony was not corroborated and was
disputed by Smith, Virgil Lee, and Warner Thorp, whose testimony I credit. The
nearest approach to such a statement by Smith occurred after the picketing began,
during a discussion between the pickets and Smith concerning their mutual com-
plaints: Smith's because the pickets were interfering with and "molesting" the
workers as they came through the line, and the pickets because some of the workers
were driving too fast and were attempting to run down the pickets. Smith testified
that he may have told the pickets they should "keep the hell out,of the way," but
that he promised to speak to the men about the complaint. '1 credit that testimony,
which was substantially confirmed by Tommy Fewox, over the conflicting versions
of other witnesses for the General Counsel.
There was also evidence that Smith carried a gun in his car after the strike (as
he had done before) and that, to his knowledge, other employees brought weapons
31 Though Williams was no longer with Cone Brothers, Bailes testified that he lived at
Sebring, Florida, which is some 90 to 100 miles from Tampa, or closer than some of
Cone's road projects. There was no other representation that Williams was not available
to testify.
CONE BROTHERS CONTRACTING COMPANY 145
onto the job I find no allegation in the complaint which charges Respondent with
an unfair labor practice because of that conduct (as there was in the case of Walter
Cooper and Otis Williams), and I find in the record no offer of an amendment to
include it, though a number of other amendments were offered. Neither does it
appear that the brief assigns that conduct as constituting an unfair labor practice.
Under the circumstances I shall make no finding on it, though 'I observe that even
were the evidence adequate to support a finding of an unfair labor practice,40 it
would be cumulative to findings which are based on the conduct of Cooper and
Williams and would thus require no further or different order.
c. Tampa and its environs
About as much as can be made of the incidents in and around Tampa is that there
was evidence of off-setting conduct,41 indeed even of Doff-setting incidents, e.g., a
fake fall by Stringtellow after pretending to be struck by a truck at Tampa Sand's
block plant, against a fake fall by a worker near the shop, who returned conveniently
to the exact spot of a prior incident where he reenacted his fall and awaited the
arrival of television cameras. Though there was testimony that city police found
and removed weapons from a few workers, the weapons were concealed, and there
was no evidence attributed to Respondent responsibility for the workers' actions
(including the case of Willie Curry, later to be adverted to). Indeed, a number of
the General Counsel's own witnesses supported the claimed justification for the
carrying of weapons by the workers, by testimony of their own fears of harm to
result from the crossing of the picket line, particularly at Prestressed.
There was also evidence as to several incidents when workers so operated trucks
or vehicles as to force pickets to jump to avoid being hit. But though I find that the
incidents occurred, I do not find that any picket was struck (except James Griffin, at
the 301-60 batch bin), or that the evidence established Respondent's responsibility
for the conduct 42 In the latter connection 'I find specifically that Stringfellow was
not hit by a truck being moved at the block plant at Superintendent Linton's direc-
tion, but that 'Stringfellow so placed himself as to impede the movement of the truck
and to give the impression he had been struck. Concerning a mobile crane incident
near the shop when the boom was so maneuvered in turning a corner as to strike a
telephone pole under which pickets were standing, the evidence as a whole showed,
and I find, that the incident was either an accident or that the operator was engaging
in a practical joke of a type commonly found on the opposite side of the picket line.
I find also that J. L. Cone, Jr., did not intentionally drive his car in such a manner
as to narrowly miss a picket near the main office. The evidence showed that Cone's
progress, as well as his view, were blocked by another picket's car standing in the
street just short of the point where Cone normally parked his car. The picket, who
was narrowly missed as Cone swung around the other car, was walking between the
picket's car and the parking apron or shoulder onto which Cone turned.
There was also testimony that Supervisor Trent sometimes paraded with workers
(sometimes also accompanied by one or the other of the Cones) in provocative
fashion before the pickets, but that was denied by Respondent's witnesses, who testi-
fied that Trent simply accompanied groups of employees through or past large num-
bers of pickets between the shop and the parking lots. I find on all the evidence
that the conduct in question did not constitute coercion or intimidation of strikers
in their right to engage in concerted activities.
Concerning the asphalt plant, specifically, there was testimony that some 2 or 3
weeks after the strike a group of workers stopped their cars at the picket line at
quitting time; that some of them had a hammer and an iron pipe or hose; and that
they made threats directed particularly at one picket. There was also evidence that a
night watchman had exposed a gun during an altercation with a picket who had called
him names. There was no evidence that any company supervisor was present on
40 In justification of Smith's stated purpose of affording his men secruity or protection,
Respondent offered the testimony of Garfield Jackson concerning two incidents involving
threats made by strikers away from the picket line. Though Fewox, on rebuttal, denied
his part in one of those incidents, I credit Jackson's testimony
43 On July 6, the circuit court at Tampa entered injunctions, on complaint of the Cone
companies and on answer and counterclaim by the Unions herein, against the parties on
both sides of the case. Significantly, the order contained a number of parallel provisions
enjoining various forms of Intimidatory conduct by both the plaintiffs and the defendants.
42 The evidence did not establish any orders or directions by Respondent's supervisors
at Tampa similar to those given by Walter Cooper.
634449-62-vol. 13 5-i 1
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
either occasion . Against this was off-setting testimony that the pickets at the asphalt
plant engaged in cursing and name calling directed not only at the workers, but also
at the wives of some of the workers who sometimes drove their husbands to work.
There was also evidence that rocks, bottles, and other objects were sometimes hurled
from the picket line at the trucks and that two of the trucks were damaged when
struck by such missiles.
There was also an incident at Prestressed, which occurred in two sections a few
days after the strike began and which resulted from attempts by Foremen David
Bracewell and Carl Wells to pull a railroad car into the plant from a spur track 43
Frank Reeves and James Griffin first approached the crossing from the picket line,
and after they left Robert Wasdon and James English came up. Reeves testified
for the General Counsel concerning the first part of the incident and Robert Wasdon
to the second part. Their testimony was sharply disputed by Bracewell and Wells,
whose testimony was mutually corroborative. Since no corroboration was offered of
Reeves and Wasdon (English was not called; Griffin testified only concerning other
matters), I credit the testimony of Wells and Bracewell, who denied making the
threats which were attributed to them, denied the threatening use of tools, and testi-
fied to threats which Wasdon made to them.
James Griffin testified to an incident at 56th Street when Douglas Cone drove
out from the plant and allegedly waved a pistol at Griffin, who was sitting in his car
across from the entrance. Cone testified that as he drove out Griffin cursed at him
and that he shook his first at Griffin, that he had no pistol at the time, and never
owned one. As Griffin's description of Cone's 'action was an improbable one (driv-
ing with his left hand, Cone turned left into the street, waved the pistol in his right
fist, with a passenger on his right), I credit Cone's testimony.
James Griffin and Robert Wilson testified to an incident when J. L. Cone, Jr., drove
out of the Prestressed plant into 56th Street, narrowly missing Wilson, and when they
followed Cone down to a railroad crossing where Cone was stopped by a train. Ac-
cording to their testimony, Cone threatened them both with a. shotgun and by verbal
threats. Not only was their testimony in conflict as to many details of the entire
incident, but Respondent proved that the incident involved not J. L., Jr., but his
twin brother, C. W. Cone.
C. W. Cone testified that he spent most of the time managing the farm operations
conducted by the brothers and that he normally carried a shotgun in his car. He
had no awareness of any "incident" at the picket line until two men pulled up beside
him as he was stopped by a train. One of the men cursed Cone for trying to run
him down at the yard, and Cone denied it. Though the shotgun was in the car,
braced against the front seat, with the barrel down, butt up, Cone did not handle it
or mention it.
In view of the inconsistencies in the testimony of Griffin and Wilson, including their
patently erroneous identification of J. L. Cone, Jr., I do not credit their testimony.
There was also an incident at the entrance to the 56th Street plant when a Pre-
stressed truckdriver swerved his truck over 6 feet off the pavement on the right side
toward a group of pickets before turning to the left into the plant. No one was hit,
although J. H. Lowe had to jump to get out of the way.
The only incident involving an actual striking of a picket involved James Griffin,
who testified to an occasion near the entrance to the 301-60 batch bin when he and
another striker waved down a Cone driver and endeavored to talk to him about the
strike. After stopping the truck, the driver gunned his motor and turned the truck
sharply toward Griffin, who was struck by the bumper on his right leg.
There was no evidence that any Cone supervisor was, present on either of the
foregoing occasions or that the Company directed or was responsible for either act.
The remaining incidents concerning the Prestressed plant and its personnel all
grew out of the car-following propensities of striker William D. Coats, who admitted
having criminal information pending against him for following cars. An incident
involving Harold White can be eliminated in view of the finding (section C, supra)
that White was not a supervisor.
The General Counsel offered evidence of another incident connected with the
following of Carl Wells, but the evidence showed that that incident resulted entirely
from the actions of Coats and his companions . I credit the opposing testimony of
Wells and Ray English, who accompanied him, as to the circumstances. Though
English produced a gun after an attack was threatened by Coats' companion, there
was no evidence that Respondent knew of or was in any way responsible for English's
carrying of a weapon (concealed) through the picket, line. Indeed, the testimony of
41 The incident occurred south of the plant where the spur crossed a dirt road some
200 feet east of 56th Street, where the pickets normally patrolled.
CONE BROTHERS CONTRACTING COMPANY 147
a number of the General Counsel' s witnesses (including Wyman Davis and Wood-
row Wilson) tended to justify the fears of the workers concerning the crossing of the
picket line at Prestressed.
Coats and his companions also participated in an incident which resulted from
following the car of J. L. Cone, Jr., and which ended, after several miles, in the new
Progress Village subdivision when Coats' car was boxed in between the cars of
J. L. Cone, Jr., and C. W. Cone. I do not credit Coats' explanations of his visit to the
subdivision nor his denial that he was intentionally following Cone's car on the
occasion. The entire circumstances of the ride, the mutually corroborative testimony
of the Cones, and the fact that the testimony of Forrest Walker failed to bear out
Coats' explanations , persuade me, and I find, that Coats had deliberately followed
Cone's car for several miles. Whatever the intent was, the evidence (Coats' explana-
tions being discredited) failed to establish any legitimate connection with the picket
line or with any other form of protected concerted activities.
When we get to the content of the statements which the Cones made after blocking
Coats' car, I believe, however, the mutually corroborative testimony of Coats and
Walker, for it was plain from the testimony of the Cones that they were enraged at the
time. As C. W. Cone candidly admitted, they said and did everything they could
think of in order to induce the strikers to get out of their car and fight, and J. L.
Cone, Jr., for his part, admitted he could not recall all that he said.
According to Coats and Walker, the Cones cursed and swore at them, accused them
of following J. L. Cone's car (which they denied ), and insisted that they get out and
fight. J. L. Cone, Jr., also jerked open the door on the right side of the car and struck
Walker with his right forearm. The Cones recognized Coats and some of the other
occupants as employees at Prestressed and C. W. Cone said that if anything happened
to him or his brother or any of his employees he would kill someone and that, "I am
just the man that can do it." J. L. Cone, Jr., also referred to Coats' personal appear-
ance in connection with the Union, stated that his father had run the business 40 years
without the Union, and that he did not need them now. J. L. Cone, Jr., also called
to a worker who was operating an asphalt roller on the adjoining strip and directed
him to, "Run over this car." The incident ended with J. L. Cone, Jr., calling the
police from his car, and after the arrival of the police, Cone moved his car and
allowed Coats to drive away.
A final incident around June 14 involved Willie Curry, a block plant truckdriver,
who produced a (concealed) pistol when his exit from the 13th Street batch bin was
blocked by a group of pickets. Though Curry's actions were plainly not justified on
the occasion,44 the evidence does not establish that Respondent either had knowledge
of his gun-carrying or was responsible for his actions. Though Max Hendry came
out after the gun-waving and ordered the pickets to move and ordered Curry to pull
the truck out, Curry had laid the pistol back down on the seat . I do not credit the
testimony of Woodrow Wilson and Sam Sallazzo, denied by Hendry and Curry, that
Hendry ordered Curry to run over the pickets if they did not get out of the way.
When Curry reported the incident to his superintendent, Linton, at the block plant,
Linton immediately ordered Curryto stop carrying the gun.
d. Concluding Findings
As is apparent from the foregoing summary, conduct of the most flagrant type,
concerning the threatening use of guns, weapons, vehicles, etc., was engaged in by
Supervisors Walter Cooper and Otis Williams. The record showed no justification
whatever for Williams' conduct; his threats and the menacing use of his shotgun
constituted naked intimidation of striking employees in the exercise of their rights
to engage in concerted activities.
In Cooper's case, though Respondent endeavored to justify his actions, its show-
ing was wholly inadequate. Thus the evidence negatived the existence of threatening
conduct by strikers on the picket line at Nobleton, at Kissimmee, or on the roads
between. Respondent's attempts to make a scapegoat of Capriglioni failed on two
scores: First the incident at Lansing and the car following from Nobleton occurred
well after the time of Cooper' s arming of himself and of employees; and second, both
incidents were devoid of threatening conduct by Capriglioni. As to Lansing-
Nobleton then, the evidence established, and I find, that Cooper's conduct was moti-
vated not by any desire to provide protection against the strikers, but to furnish means
of intimidating and coercing employees in the exercise of their right to engage in con-
certed activities. Anchor Rome Mills, Inc., 86 NLRB 1120, 1121.
44 His testimony is not credited, over denials, that one of the strikers had a knife and
another a gun Curry was later arrested , convicted , and fined $100.
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nor did Cooper's arming of employees for the convoy to and from Parrish stand
on any different footing. Respondent's attempt again to implicate Capriglioni in the
alleged Parrish shooting failed completely when Rhoden (the sole witness to the
incident) not only failed to establish that there was in fact a shooting, but identified a
different person as the one who was questioned by the deputy sheriff. That slim
foundation furnished wholly inadequate support for Cooper's arming of his convoy
to Parrish, particularly when it developed that the 'trucks were apparently under guard
there by a deputy sheriff.45
There was similarly no justification for Cooper's and C. W. Cone's direction to the
drivers on the return trip to run down anyone who tried to stop them. Those orders,
as well as Cooper's arming of the employees, were plainly intimidatory of employee
rights to engage in concerted activities; indeed some of Cooper's drivers had evaded
the Parrish trip because of their unwillingness to carry arms or to accompany those
who did.
As to the remaining incidents in and around Tampa, there were two respects in
which the General Counsel's case failed. First, the evidence tended to justify the fears
expressed by some of the employees concerning the crossing of the picket line; and
second, there was no evidence that any supervisor or Cone official directed, en-
couraged, or acquiesced in, or was even aware of, the instances shown by the record
when workers carried concealed weapons through the picket line. - See e.g., Roxanna
of Texas, Inc., 98 NLRB 1151, 1161, where the workers' conduct toward the strikers
emanated from within the plant itself.
As to the Progress Village incident involving the Cone brothers themselves, the
threats were not directed at any legitimate or protected activity, but were motivated
by Coats' action in following J. L. Cone's car for an extended distance and by the
apprehensions of danger voiced by C. W. Cone.
Recapitulation of the foregoing conclusions discloses that the only instances of un-
lawful conduct which I have found were engaged in by two supervisors of Respondent
Cone Brothers, at points distant from Tampa, and otherwise wholly unconnected with
either the management, the supervision, or the employees of Respondents Tampa Sand
and Prestressed.
I therefore conclude and find that Respondent Cone Brothers engaged in inter-
ference, restraint, and coercion within the meaning of Section 8(a)(1) of the Act
by the following conduct:
1. The loading and menacing use of a shotgun by Otis Williams and his threat
to shoot the strikers.
2. The directions and instructions by Walter Cooper to employees to carry, and
furnishing them, and offering to furnish them, guns and other miscellaneous weapons,
including wrenches, hammers, etc.
3. Cooper's conduct in arming himself, Herndon, and other employees and
guards and in accompanying the convoy, so armed, through the picket line at
Nobleton.
4. The directions and instructions by Walter Cooper to employees in the Nobleton-
Lansing land Kissimmee areas to run over strikers who tried to stop them, and similar
directions by Cooper and C. W. Cone to the drivers in the return convoy from Parrish.
5. Walter Cooper's threat to handle strikers "like people shooting at a covey of
birds."
6. Walter Cooper's statement that an employee was regarded as quitting because
he refused to carry, or to work with employees who carried, weapons while at work.
Actions by employers such as the above, by which nonstriking employees are
turned into armed camps, plainly frustrate the policy of the Act, to encourage the
settlement of labor disputes by peaceful means, for the deliberate creation of in-
cendiary conditions renders exceedingly difficult, if not impossible, the attainment
of the Act's objective. As the Board observed of an employer's conduct in stock-
piling weapons in Kohler Co., 128 NLRB 1062 (quoting with approval from findings
of WERB), "There is no possible justification for an employer today to resort to the
use of such means in any strike."
2. The alleged blacklisting; the Alvarez discharge
Robert Alvarez, a striking employee of Cone Brothers, was hired by W. M. Com-
mander, shop superintendent of Brinson-Allen Construction Company, on June 8 and
45 As Bailes specifically denied authorizing Cooper's action and denied knowledge that
Cooper intended to arm the convoy, it must be assumed that Cooper acted on his own
initiative ; and the incident may therefore be regarded as a further indication that
Cooper was "gun happy."
CONE BROTHERS CONTRACTING COMPANY 149'
was discharged by Commander after a few hours on the job. Commander gave
Alvarez at the time the following statement as to the reasons for his discharge:
To Whom It May Concern:
I wish to state that Robert Alvarez was employed by me in our company
shop for a portion of a day on June 8, 1960. I was forced to discharge this man
because of a company policy that had agreed not to hire anyone that had walked
off from Cone Bros. shop or jobs during the recent trouble they had had with
the union. I sincerely believe this man to be worthy of any consideration that
might be given him.
That statement not only plainly established a discriminatory discharge by Brinson-
Allen (see footnote 2, supra), but also indicated that Cone Brothers was, or may
have been, responsible for causing the discharge. To establish that responsibility
the General Counsel relied mainly on the testimony of Commander himself. Com-
mander testified that 2 or 3 hours after hiring Alvarez he happended to notice a list
of names lying on a table in the office with a heading something to the effect that
"This is a list of men from Cone Brothers Contracting Company that walked out on
them at the time of need." Commander handed to J. W. Allen, vice president of
the firm, the papers concerning Alvarez' employment and Allen inquired whether
Alvarez' name was on "Cone Brothers list" and commented that he understood that
those men had been "mixed up in some kind of confusion, disturbance or something."
Commander checked the list, found Alvarez' name, and Allen suggested that Com-
mander let the man go.
On cross-examination, Commander testified that he had no idea where the list
came from, that he never contacted Cone Brothers concerning it, that Allen did
not tell him of any company policy not to hire strikers, and that he was not present
when there was discussion of any agreement not to hire. Commander explained
that his statement given to Alvarez did not pertain only to Cone Brothers but to
any local contractors; that there was a mutual feeling, "a kind of unwritten law,"
that local concerns did not want to incur "hard feelings" by hiring employees who
had been discharged by other employers.
Despite strenuous efforts, the General Counsel made no further headway with
witnesses Eugene Holland and J. W. Allen, bookkeeper and vice president, respec-
tively, of Brinson-Allen, and he conceded that Brinson , since deceased, had no knowl-
edge of the matter. Holland testified only that he saw a list of names in the office
but nothing which connected it with Cone Brothers, though he recalled seeing the
word "Prestress" somewhere on the list. He testified that he had had no conversations
with Brinson or Allen concerning the list before he was interviewed by the General
Counsel's representative, and though he had discussed it with them after that inter-
view, and they wondered who those employees worked for, they did not know. Hol-
land testified that finally after the list had lain around "gathering dust," he destroyed
it without conferring with anyone about it.
Allen testified similarly that although he had seen the list in the office some 2 or 3
weeks before the Alvarez hiring, there was no name or classification to identify it
with any company except possibly the name on one sheet, Florida Prestress Company
or Prestress Yard Allen testified he looked at the list with Commander purely out
of curiosity, but that it did not mean anything to him, and that he did not call any
of the Cone people or any of the Poes about it. Allen also testified that he did not
know where the list came from and that neither Brinson or Holland told him what
its origin was. Allen admitted that he assumed it a Cone Brothers list, but that that
was purely an assumption.
Other than the foregoing evidence, which related directly to the Alvarez discharge,
the General Counsel offered only the testimony of Lonnie O. Wallace, formerly an
executive of Bay Concrete Industries, Inc., a Tampa Sand competitor, who testified
that between May 24 and August 1960, he attended a series of meetings which were
called by Fred Poe of concrete suppliers in Tampa and Pinellas County. Stubbs
cnaired the first meeting, which was attended by Fred and Charles Poe (among
others) and by Attorney Fisher or a member of his firm. Stubbs outlined the prob-
lems and the cost of the strike and urged that all of the suppliers stick together,
since what was happening to one of them would probably happen to all. The discus-
sions covered suggestions that the suppliers could "break the back of the strikers" by
working together; a specific proposal was made that the other suppliers cooperate
by staying off Cone organization jobs, and to that end a list of Tampa Sand cus-
tomers would be furnished, and in case of confusion the other suppliers should call
Charles Poe. Wallace identified the Poes, J. L. Cone, Jr., and Douglas Cone as
among those who joined in making the foregoing suggestions , and identified a list of
customers which he testified was similar to one which was furnished to him.
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wallace testified further that in one of the meetings both Fred Poe and Charles
Poe suggested that if the other suppliers wanted a list of the employees who had
struck they would furnish information by telephone so that the suppliers would not
hire the strikers and would avoid having union people in their organization . In that
connection either Charles Poe or Fred Poe observed that getting a union man in a
plant was like getting a rotten apple and would lead to the same problem as faced
the Cone companies . Either Fred Poe or Charles Poe also suggested that the other
Suppliers could test out their employees by running them through the picket line to
see who would go through and who would not.
Although the meetings were attended by representatives of many of Tampa Sand
competitors (and some of Cone Brothers ), the General Counsel was unable, despite
repeated efforts, to offer corroboration of Wallace's testimony . On the other hand
Respondent offered the testimony of Charles Poe, J . L. Cone, Jr., and Claybourne
Wilder (of Joyner Concrete Company ), who denied all of Wallace 's testimony con-
cerning the alleged blacklisting of strikers and much of his other testimony concern-
ing "cooperation" as to customers and the running of trucks through the picket line.
Admitting that the strike was discussed , their testimony was that the discussion con-
cerned the problems the strike was causing in the industry through the picketing of
some of Tampa Sand customers and the boycott being conducted by the building
trades. J. L. Cone , Jr., also denied that any list of strikers was furnished to any
employer, and testified that the only list he knew about was a list supplied to the
unemployment compensation division , at its request , of the names of employees who
were not at work
What is determinative of the credibility issue here is that the General Counsel was
unable to support Wallace 's testimony by any of the numerous persons who attended
the meetings which Poe called . Even assuming , arguendo , that some weight could
be given to the General Counsel 's representations as to the difficulties which he faced
in that area, that cannot strengthen the showing he made on the evidence which he
produced . The failure to corroborate Wallace under the circumstances has the same
effect as in any other case where available witnesses are not called and where cor-
roborative and cumulative evidence has been offered to refute uncorroborated testi-
money. of a single witness.
The circumstances of the Alvarez firing by Brinson -Allen added nothing substan-
tial to the General Counsel 's case. No Brinson-Allen representative attended the
meeting and none of the General Counsel's witnesses,(who included all with any
knowledge of the circumstances ) attributed the list to the Cone companies or was
even aware of the origin of the list . Indeed, the General Counsel failed to establish
that Respondent Companies ever supplied a list of strikers to anyone . Though the
entire evidence surrounding the Alvarez ' discharge raises a strong suspicion of a
"gentleman 's agreement," or of an "unwritten law" as Commander expressed it,
what was lacking in the General Counsel 's case was evidence that Respondent had
some hand in promulgating that "law" or was responsible for Brinson -Allen's appli-
cation of it.
I therefore conclude and find that the General Counsel failed to establish by a
preponderance of the evidence either that Respondent promulgated a blacklist as
alleged in the complaint or that it effected the discharge of Alvarez by Brinson-Allen
via a blacklisting.
H. The strikes and their causes
The strike among the employees of Cone Brothers and Prestressed , which was
called by Local 925, Operating Engineers , began on May 24. There being no evi-
dence that the employees struck in protest of unfair labor practices , that strike is
found to be an economic strike in its inception.
The strike among Tampa Sand employees began on May 27, following a meeting
called by Teamsters Local No. 79 for the evening of May 26 by a notice which
stated in material part:
A strike vote will be taken because the Company is now firing our people be-
cause of their belief in not crossing a picket line . Therefore , we must stand
together and not be picked off one at a time.
The issue as stated in the notice was presented to and discussed by the employees,
with specific reference to the discharges earlier that day of Wyman Davis , Woodrow
Wilson , and Otho Mathis. A strike was thereupon voted by 44 or 45 votes to 1.
CONE BROTHERS CONTRACTING COMPANY 151
I therefore conclude and find that the strike by Tampa Sand 's employees was
from its inception an unfair labor practice strike, caused by the discriminatory dis-
charge of Davis, Wilson, and Mathis as herein found 46
On the evening of May 28 a joint meeting was called by Teamsters and Operating
Engineers of the employees of Tampa Sand , Cone Brothers , and Prestressed, and
it was then decided to make the strike a joint venture . Thenceforth all strike
activities were coordinated under the charge of a single director (J. W. Hughes,
business manager of Teamsters ), with a switching of pickets , picket captains, etc.,
without reference to their respective employers . Equal strike benefits were paid to
all strikers , regardless of their union membership , from Teamsters ' funds and from
donations from other unions.
There was no further evidence regarding the nature of the strike at Cone Brothers
and Prestressed save testimony and photographs offered by Respondents, which
established that the legends on the picket signs directed at those two companies
(over the name of Operating Engineers ) continued to indicate economic and recog-
nition objectives.
What the foregoing evidence shows at the most is that the two unions merged their
strike efforts . There was no showing that there was presented , or that Cone's and
Prestressed 's employees considered or voted upon , the question whether their strike
was to be continued until rectification of the discrimination by Tampa Sand against
Tampa Sand employees . Indeed,. the picket signs indicated that they continued to
picket, as before , for purely economic objects.
The result is unaffected, of course , even with the "single employer " concept applied
here . For the mere occurrence of unfair labor practices by the same employer
during an economic strike does not automatically convert it into an unfair labor
practice strike ; a conversion can only be found if there is proof of a causal relationship
between the employer 's unfair labor practice and the prolongation of the strike.
N.L.R.B . v. Scott & Scott, 245 F. 2d 926, 929 (C.A. 9); N.L.R.B. v . James Thompson
& Co., Inc., 208 F . 2d 743, 749 (C.A. 2); N.L.R.B. v. Jackson Press, Inc., 201 F. 2d
541, 546 (C.A. 7); N.L.R.B. v. Crosby Chemicals , Inc., 188 F . 2d 91 , 95 (C.A. 5).
The mere pooling of strike efforts by the two unions involved was insufficient , without
more, or prove a causal relationship , and nothing more was shown.
I therefore conclude and find that the General Counsel failed to establish by a
preponderance of the evidence that the strike by employees of Cone Brothers and
Prestressed was converted into an unfair labor practice strike.
N. THE REMEDY
Having found that Respondents Cone Brothers and Tampa Sand have engaged in
certain unfair labor practices, I shall recommend that they cease and desist there-
from and that they take certain affirmative action of the type conventionally ordered
in such cases, which I find necessary to remedy, and to remove the effects of the
unfair labor practices and to effectuate the policies of the Act.
The flagrant nature and the widespread scope of the unfair labor practices which
Respondents engaged in, coupled with the past record of Respondent Cone Brothers
as a violator of the Act,47 demonstrate convincingly that the present violations are
potentially related to other unfair labor practices proscribed by the Act, and that
the danger of their commission in the future is to be anticipated from the Respond-
ents ' conduct in the past. The preventive purpose of the Act will be thwarted unless
the Board's order is coextensive with the threat. Accordingly, in order to make
effective the interdependent guarantees of Section 7, and thus effectuate the policies
of the Act, I deem it necessary to recommend an order requiring Respondents to
cease and desist from in any manner infringing upon the rights of employees guar-
anteed in the Act.
Though I have found (section III, B, supra) that the Respondents may be regarded
as constituting a single employer within the meaning of the Act, I have also found
"Though Respondent offered a single photograph of a picket sign whose legend had
once read that the strike was for "unfair labor practices and recognition," the two latter
words had been stricken
44 See 114 NLRB 303, enfd. 235 F. 2d 37 (C.A. 5), cert. denied 352 U.S. 916; Case
No 12-CA-121, I.R. No. 362, closed on compliance November 28, 1958; 125 NLRB 843,
enfd July 13, 1960 (C.A 5).
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no instance in which they jointly, or as an entity, engaged in unfair labor practices.
I have also found that Respondent Prestressed engaged in no unfair labor practices.
As there is no suggestion from the record that Respondents Cone Brothers and
Tampa Sand will be unable, financially or otherwise, individually to remedy com-
pletely all unfair labor practices which they are found, respectively, to have engaged
in, I shall recommend separate orders for each.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Charging Unions are labor organizations within the meaning of Section
2(5) of the Act.
2. By the interrogation of employees concerning their signing of union cards,
.union membership, meetings, and activities, and their strike intentions; by informing
employees that the strikers' names were being taken and that they might as well
leave the picket line and leave the State, that a crew was moved to break up the
union, and that employees who refused to cross the picket line had forfeited their
jobs and by characterizing others as "quits"; by threatening that strikers and employ-
ees who signed union cards or who refused to cross the picket line would be dis-
charged and would be blacklisted or blackballed throughout the State; threatening
that Cone would not sign a contract with the Union and would "starve out" the
strikers; threatening to discharge and to arrest employees because of their organiza-
tional activities; threatening that Cone would go out of business rather than "go
union"; and by promising benefits to employees for "going along" with the Com-
pany and for not striking, Respondent Cone Brothers interfered with, restrained, and
coerced employees in the exercise of rights guaranteed by Section 7 of the Act, and
thereby engaged in unfair labor practices within the meaning of Section 8(a)(1).
3. By the menacing use of shotguns and threats to shoot strikers; by arming super-
visors, employees, and guards for passage through the picket line; by directing
employees to carry, and by furnishing, and offering to furnish them, guns and other
miscellaneous weapons, and by directing employees to run over strikers; by charac-
terizing as "quit" an employee who refused to carry, or to work with employees who
carried, weapons; and by threatening to handle strikers "like people shooting at a
covey of birds." Respondent Cone Brothers intimidated and coerced employees in
the exercise of their right to engage in concerted activities as guaranteed by Section
7 of the Act, and thereby engaged in unfair labor practices within the meaning of
Section 8(a)(1).
4. By interrogating employees concerning their union membership, sentiments,
and activities; by directing employees to canvass the union sentiments of others;
by conditioning the recall of laid-off employees on their promises to vote against the
Union; by promising benefits if the employees rejected the Union; by threatening
to discharge an employee for refusal to work during the strike; and by warning
employees not to visit or give affidavits to the National Labor Relations Board,
Respondent Tampa Sand interfered with, restrained, and coerced employees in the
exercise of rights guaranteed by Section 7 of the Act, and thereby engaged in unfair
labor practices within the meaning of Section 8(a) (1).
5. By discriminatorily changing the employment status of Otho Mathis, Woodrow
Wilson, and Wyman Davis to that of "quits," Respondent Tampa Sand construc-
tively discharged said employees to discourage membership in a labor organization,
thereby engaging in unfair labor practices proscribed by Section 8(a)(3) and (1) of
the Act.
6. Respondent Prestressed did not engage in unfair labor practices.
7. Respondent Cone Brothers did not engage in unfair labor practices by dis-
charging Phillip Johnson on June,15.
8. Respondents did not engage in unfair labor practices through the alleged
blacklisting of employees nor through the discharge of Robert Alvarez by Brinson-
Allen Construction Company on June 8.
9. The unfair labor practices as above found, having occurred in connection with
the operation of the businesses of Cone Brothers and Tampa Sand as set forth in
section I and III, B, supra, have a close, intimate, and substantial relation to trade,
traffic, and commerce among the several States, and substantially affect commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]