Crow Gravel Co.

National Labor Relations Board - Board Decisions

Dec 29, 1967

168 N.L.R.B. 1040 (N.L.R.B. 1967)

1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Crow Gravel Co. and Laborers ' International Union discrimination , including interest thereon at 6
of North America , AFL-CIO. Case 23-CA-2553 percent per annum.
December 29,1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On September 14, 1967, Trial Examiner Samuel
Ross issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
brief, and the entire record in the case, and hereby
adopts the findings, conclusions,' and recommenda-
tions of the Trial Examiner, as modified herein. 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, as modified
below, and hereby orders that the Respondent,
Crow Gravel Co., Edinburg, Texas, its officers,
agents, successors, and assigns, shall take the ac-
tion set forth in the Trial Examiner's Recom-
mended Order, as herein modified.
1. Add the following to the end of paragraph 2(a)
of the Recommended Order:
", as modified by the Board's Decision and Order
herein, requiring that Alaniz and Reyna be made
whole for any loss they may have suffered, when
they sold their trucks as a result of said discrimina-
tion, including interest thereon at 6 percent per
annum in accordance with Isis Plumbing and Heat-
ing Co., 138 NLRB 716."
2. Add the following to the end of the third in-
dented paragraph of the Appendix (Notice to All
Employees) attached to the Trial Examiner's Deci-
sion:
... and for any loss they may have suffered,
when they sold their trucks as a result of said
168 NLRB No. 141
I In determining that it would effectuate the policies of the Act to assert
jurisdiction herein, we rely on the Trial Examiner 's findings concerning
the Respondent's sales, and deem it unnecessary to pass on his alternative
basis for asserting jurisdiction. Nor do we adopt the Trial Examiner's
arguendo assumption that the drivers were supervisors when substitutes
were employed , in view of the Respondent 's control over the employment
of substitutes and the sporadic nature of such employment.
2 The Trial Examiner recommended in his Remedy that the Respondent
be required, inter aka , to provide Alaniz and Reyna each with an equity in
a truck comparable to that which they had in the trucks they owned when
they were discriminatorily discharged . The Respondent excepts, contend-
ing, among other things , that there has been no showing that Alaniz and
Reyna received less than a fair market price upon selling their trucks after
they were discharged . We are unable to determine on the record whether
the discriminatees did in fact suffer a loss when they sold their vehicles.
Accordingly , we shall require, at the compliance stage of this proceeding,
that a determination be made as to whether Alaniz and Reyna suffered a
loss on selling their trucks and, if so , in what amount , and, further, that the
Respondent make Alaniz and Reyna whole for whatever loss they may
have sustained , including interest thereon at 6 percent per annum.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
SAMUEL Ross, Trial Examiner: Upon a charge filed on
November 8, 1966, and amended on January 23, 1967,
by Laborers' International Union of North America,
AFL-CIO (herein called the Union), the General Coun-
sel of the National Labor Relations Board issued a com-
plaint on February 10, 1967, alleging that Crow Gravel
Co. (herein called the Respondent or the Company) en-
gaged in unfair labor practices within the meaning of Sec-
tion 8(a)(3), (4), and (1) and Section 2(6) and (7) of the
Act, by discharging Valente Alaniz and Juan Jose Reyna
because of their membership in and activities on behalf of
the Union, and because Alaniz gave testimony under the
Act. The Respondent filed an answer which: (a) denies
that the Company's operations meet the Board's stan-
dards for the assertion of jurisdiction; (b) contends that
Alaniz and Reyna are independent contractors and not
employees entitled to the protection of the Act; and (c)
asserts that their discharge was motivated by economic
considerations, and not by union animus.
Pursuant to due notice, a hearing was held before me at
Edinburg, Texas, on March 30 and April 1, 1967. Upon
the entire record of the case,' and my observation of the
witnesses and their demeanor, and after due considera-
tion of the briefs filed by the General Counsel and the
Respondent, I make the following:
FINDINGS OF FACT
1. COMMERCE
The Respondent, a Texas corporation whose principal
office is located in Edinburg, Texas, is engaged near Mis-
sion, Texas, in the business of mining, processing, and
selling sand and gravel. As noted above, the Respondent
contends that its operations do not meet the Board's stan-
I The record in this case includes, as G. C. Exh. 4, the transcript of the
testimony and the exhibits in the matter of Crow Gravel Co., Case
23-RC-2754, the Board proceeding in which Alaniz testified, and by
means of which the Union seeks certification as the exclusive collective-
bargaining representative of the Respondent 's employees.
CROW GRAVEL CO. 1041
dards for the assertion of jurisdiction. This contention is
regarded as without merit for the following reasons:
(a) On September 15, 1966, the Regional Director is-
sued his Decision and Direction of Election in the com-
panion representation proceeding (see fn. 1, supra) in
which he concluded that the Respondent is engaged in
commerce within the meaning of the Act, and that it
would effectuate the purposes of the Act to assert ju-
risdiction over the Respondent. Thereafter, on Sep-
tember 23, 1966, the Respondent requested the Board to
review the Regional Director's Decision on the ground
that the Director "erred in asserting jurisdiction" over the
Respondent. On October 18, 1966, the Board denied the
Respondent's request to review because it raised "no
substantial issues warranting review," and thereby the
Board affirmed the Director's Decision that the Respond-
ent is engaged in commerce and that the policies of the
Act would be effectuated by asserting jursidiction over
the Respondent.
(b) Even absent the Board's binding determination in
the representation case, the record herein amply supports
the conclusion that the Respondent is engaged in com-
merce and that the assertion of jurisdiction in this case is
warranted, if not also required. Thus, the record discloses
that within the 12 months preceding February 1, 1967, a
representative period, the Respondent's gross sates of
sand and gravel were $489,332.62, of which $380,790.54
were nonretail sales, principally to road construction con-
tractors, ready-mix concrete companies, and State and
county agencies, who used the Respondent's products
mainly to construct and resurface United States and State
highways, county roads, and farm-to-market roads.2 The
record also shows that the Respondent admittedly has
received "some pretty nice" contracts'to furnish materi-
als to be used for the U. S. Highway 83 project which is
estimated for completion in 1970.
Clearly, United States and State highways, county
roads, and even farm-to-market roads constitute essential
links in the channels of interstate commerce, and the
furnishing of materials for the construction and resurfac-
ing of such highways and roads affects commerce within
the meaning of the Act.3 Accordingly, the assertion ofju-
risdiction over the Respondent's operations is warranted
on the basis of its sales of materials used principally for
highways and road construction and resurfacing.4
(c) Finally, even if the Respondent's operations did
not quite meet the Board's self-imposed standards for the
assertion of its legal jurisdiction, where, as here, the sub-
2 Included in these nonretail sales were $62,469.69 to Ballinger Con-
struction Company who used the Respondent's materials in construction
work on various roads including U.S. Highway 77; $49,739.49 to Dodds
& Wedegartner who is engaged in widening U.S. Highway 83 from a two-
lane road to a four-lane divided highway; $30,314.30 to Fordyce & Co.
who used some of Respondent' s materials to resurface U.S. Highway 77;
and $19,369.69 to Rio Paving Company for "highway and county roads."
The Respondent's nonretail sales during this period also included
$95,544.38 to W. L. Liston Company over whom the Board has asserted
jurisdiction (see the Regional Director's Decision and Direction of Elec-
tion dated October 6, 1965, in Case 23-RC-2510, G. C. Exh. 13).
2 Madison County Construction Co.,! 115 NLRB 701; L & S Construc-
tion Company, Inc., 155 NLRB 524; Johnson Concrete Company, 106
NLRB 1255.
4 Cf. N.L.R.B. v. Reliance Fuel Oil Corporation, 371 U.S. 224; com-
pare N L.R.B. v. Benevento Sand & Gravel Company, 297 F.2d 873
(C.A, 1), with N.L.R.B. v, Benevento Sand & Gravel Company, 316 F.2d
224 (C.A. 1).
5 Eugen Pederson v. N.L.R.B., 234 F.2d 417 (C A. 2); Philadelphia
Moving Picture Machine Operators' Union, Local No. 307 (Velio
stantive allegations of the complaint charges discrimina-
tion against an employee because he gave testimony at a
Board hearing, public policy requires that the Board exer-
cise its jurisdicition to its outermost limits, 5
For all the foregoing reasons I find that the Respondent
is engaged in commerce and in operations affecting com-
merce within the meaning of Section 2(6) and (7) of the
Act, and that jurisdiction over the Respondent should be
asserted to effectuate the policies of the Act.
It. THE LABOR ORGANIZATION INVOLVED
The pleadings admit and I accordingly find that the
Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Sequence of Events
In June 1966,6 a campaign was initiated among the
Respondent's employees to secure the designation and
certification of the Union as their collective-bargaining
representative. The first union meeting in this campaign
was arranged with Union 'Organizer Joe B. Mendoza by
Alaniz, a pit driver employed by Respondent, and was
held at the home of Alaniz on June 17. Subsequently,
Alaniz an-ranged with the Union's organizer for the hold-
ing of additional union meetings , and notified Respond-
ent's employees of the date , time , and place of the meet-
ings. Reyna, another pit driver employed by Respondent,
was an active participant in the union organizing cam-
paign , and he,made available for three union meetings
his beer tavern and pool hall located one quarter of a mile
from the Respondent's pit operations.
On July 5, the Union filed a petition with the Board
(Case 23-RC-2754) for certification as the collective-
bargaining representative of the Respondent's
"truckdrivers, truck operators, pit men, and maintenance
employees." Thereafter, a hearing on the petition was
scheduled by the Regional Director for July 29. The
Board representation hearing took place as scheduled,
and thereat the Respondent contended, inter alia, that the
unit sought by the Union was inappropriate because it in-
cluded 8 "pit drivers" (including Alaniz and Reyna) and
21 "over-the-road" drivers who all owned their own
trucks and whom the Respondent claimed were independ-
ent contractors and not employees .7 Alaniz testified for
the Union at the hearing in the representation proceeding.
lacobucci), 159 NLRB 1614, fn. 3, enfd. 382 F.2d 598 (C A. 3); Local
138, International Union of Operating Engineers (Charles S Skura),
148 NLRB 679, 681.
I All dates hereinafter refer to 1966, unless otherwise specified.
T The record (both in the representation proceeding and in this case)
discloses that the "over- the-road" drivers are employed , not by the
Respondent , but by an affiliated corporation , South Texas Supply Com-
pany, which owns the land on which the Respondent conducts its mining
and processing operations, raises citrus fruits and cattle on the same
general land area, and acts as the exclusive delivery agent of the Respond-
ent's products. The Respondent' s stock is owned 50 percent by its presi-
dent, V. N. Crow, and the remainder by A. R . Rogers, who is secretary-
treasurer of both the Respondent and South Texas Supply Company. The
stock of the latter corporation is owned "50-50" by the "Rogers children
and the Crow children." Respondent's president , V. N. Crow, although
not the titular president of South Texas Supply (one of his sons is pre-
sident), "runs it-he is the boss .l' A. R. Crow, another son of Respond-
ent's president, is the operations' and production supervisor of both com-
panies.
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On September 15, the Regional Director issued his
Decision and Direction of Election in Case 23-RC-2754,
in which he concluded, inter alia, that both the pit drivers
and the over-the-road drivers were independent contrac-
tors, and not employees within the meaning of the Act,
and excluded them from the unit which he found ap-
propriate and for which he directed an election. The
Respondent admittedly received notice of the Director's
Decision on September 17 or 18. On September 30, less
than 2 weeks later, the Respondent terminated the em-
ployment of Alaniz and Reyna, allegedly because of a
cutback in its operations, at the same time retaining in its
employ other pit drivers with substantially less seniority.
The Respondent requested the Board to review the
Director's Decision insofar as it concluded that the
Respondent's operations affect commerce and that ju-
risdiction over the Respondent was necessary "to effec-
tuate the purposes of the Act." On September 27, the
Union joined in the Respondent's request for review, and
in addition requested the Board to reopen the hearing on
the "basis of newly discovered evidence." Subsequently
the Union explained by letter and telegram to the Board
dated October 7 that it did not desire review of the
Director's Decision, but only the reopening of the hearing
to introduce newly discovered evidence that the pit and
over-the-road drivers were employees, and not independ-
ent contractors. On October 18, the Board by telegram
denied the Respondent's request for review, but its order
specifically provided that the "denial was without preju-
dice to the Petitioner's [Union's] right to move the Re-
gional Director to reopen the record." That same day, the
Regional Director issued an order reopening the hearing
in the representation case "for the purpose of taking
further testimony and evidence as to the status of truck
drivers or `owners-drivers"' and postponed the previ-
ously scheduled election "indefinitely." On November 1,
further testimony in the reopened bearing was adduced
and the R case hearing was closed. No further action has
been taken in the R case, apparently because of the is-
suance and pendency of the complaint in this case.
B. The "Employee" Status of the Pit Drivers
The determination of whether pit drivers Alaniz and
Reyna were employees within the meaning of the Act, or
independent contractors as the Respondent contends,
requires consideration of the manner in which the
Respondent conducts its business, and the nature of the
relationship between them.
1. The nature of Respondent's operations
The raw material which the Respondent mines and
processes is dug from open pits in the ground by dragline
operators who load the material on to a belly-dump trac-
tor-trailers which are then driven by pit drivers (like
Alaniz and Reyna) either to the Respondent's "dry plant"
or its "wash plant" for processing. At the dry plant, the
material is dumped from the trailer into a receiving
hopper, from which the material travels by belts through
screens which sort it according to size, and to a crusher
which breaks larger pieces to smaller sizes. At the
Respondent's wash plant, raw material is also dumped
8 On the relatively few occasions when the trailer is unhitched from the
truck, the process requires jacking up the trailer and consumes about a
half hour
9 There is no evidence that the pit drivers are prohibited from using
into a receiving hopper, sorted by sizing screens, washed
and scrubbed, and then stockpiled for later delivery to
Respondent's customers. The end product completed at
the dry plant is a "very fine sand" which is used in "hot
mix" materials for paving highways. The gravel which
results from the processing in the dry plant is further
transported from the dry to the wash plant for further
processing as described above. Before Alaniz and Reyna
were discharged, the assignment to drive from the dry to
the wash plant was rotated daily among the pit drivers.
2. The relationship between the pit drivers and the
Respondent
(a) Before 1959, both the truck -tractors and the
trailers driven by the pit drivers were owned and
furnished by the Respondent . In February 1959, the
Company notified the pit drivers that they would have to
purchase their own truck-tractors because they ` didn't
take too good care of the company trucks " and because
"it would be more economical ." Since that date, the pit
drivers have purchased and furnished their own truck-
tractors , and have borne the expense of operating, main-
taining, and repairing them. However, at one time or
another, the Respondent admittedly has assisted most of
its pit drivers financially by loans to help them purchase
their trucks or pay for repairs, and /or by guaranteeing
payment (signing a note) for bank made by them. At the
times material herein (before Alaniz and Reyna were ter-
minated), the Respondent employed eight pit drivers,
each of whom owned only the one truck he drove in
Respondent 's pit operations.
(b) The pit drivers operate the tractor-trailers from the
Respondent 's pits from which the raw material is dug, to
the dry or wash plants , and from the dry plant to the wash
plant. Since these plants are located on the same general
land area as the pits , all of the driving done by the pit
drivers is performed on private property owned or leased
by Respondent, and does not require travel on public
highways . Because no highway travel , is involved, the
trucks driven by the pit drivers are not required either to
have State license tags, or to submit to or pass State in-
spection.
(c) Upon the purchase of a new truck by a pit driver,
or when he first begins to work for Respondent, the Com-
pany's shop attaches "a fifth wheel " to his truck with
which to pull its trailer . This marriage of truck to trailer is,
to all intents and purposes , a permanent one, for the truck
is never removed from the Respondent 's property, ex-
cepting only to replace it with a new one, or to take it to
a dealer for repairs.8
(d) There is no written agreement between the
Respondent and its pit drivers regarding the terms and
conditions of their relationship. When an applicant ap-
plies to work for Respondent as a pit driver, he fills out an
application form, the nature of which is not disclosed by
the record, and he is told to bring in his truck to the , Com-
pany's shop for the mounting of a fifth wheel. Thereafter,
as a practical matter, the pit drivers work exclusively for
the Respondent until their relationship is terminated by
one or the other of them .9 In the light of Respondent's
summary termination of Alaniz and Reyna without any
their trucks in concurrent work for other employers, but in view of their
lack of license to use the public highways, and the "permanent" nature of
their hitch to Respondent's trailers, as a practical matter they cannot, and
have not, done so.
CROW GRAVEL CO. 1043
prior notice, the relationship, whatever its legal character,
obviously is for no fixed period and terminable at will.
(e) Before the changeover from Company to in-
dividual ownership of the pit trucks (but not the trailers),
the Respondent paid its pit drivers by the hour. Since
1959, the pit drivers generally have been paid a specified
rate for each load they haul, the amount of which depends
on the distance from the particular pit to the Respond-
ent's processing plants.1° These rates are established
and changed by the Respondent unilaterally and without
negotiation with the pit drivers, -either individually or
collectively." 1 However, the Respondent frequently as-
signs its pit drivers to perform work other than driving
from the pits to its processing plants, and when it does,
they are paid an hourly rate for their services and the use
of their truck.12 At the time of the discharge of Alaniz and
Reyna, the hourly rate was $3.50. Instances of when the
pit drivers are assigned work other than hauling from the
pits to the plants, and for which they received payment on
an hourly basis, included, but were not limited to, the
hauling of "caliche," a cheap roadbase gravel, from the
pits to the site of new access roads which the Respondent
builds whenever it "opens" a new pit; and hauling to and
loading Respondent's products onto railroad freight cars.
The Respondent alone determines when, and for how
long, the pit drivers are to work by the hour, and by the
load.
(f) The pit drivers are required to report for work each
day at the time specified by Respondent, to work regular
hours13 and a regular workweek of 5, sometimes 5-1/2
days. All the Respondent's employees, including the pit
drivers and those who are admittedly employees within
the meaning of the Act, have a regular lunch period of
one-half hour, all at the same time.14 The times when the
pit drivers are required to report for work, eat their lunch,
and quit work, are all fixed and/or changed by the
Respondent alone.'S In addition, although, as noted
above, the pit drivers generally are paid by the load, and
not by the hour, they are required by Respondent to keep
a daily timecard record of the hours which they worked.16
(g) The Respondent requires all its pit drivers to carry
liability insurance and workmen's compensation
coverage for themselves, but not for their substitute
drivers. 17 Without consulting with the pit drivers as to
whether they desire such insurance, the Respondent ap-
plies to its insurance carrier for such coverage on their be-
half, pays the premiums therefor, deducts the amount of
the premiums from the earnings of the pit drivers, 'and
16 The minimum rate of $1 per load is paid for a distance of 1-1/4 miles.
The maximum rate of $2.25 a load is paid for a 4-mile trip.
11 The Respondent has, on occasion, increased a rate after a driver
complained that it was too low. When this occurs, the new rate is paid to
all the pit drivers.
12 See G. C. Exhs 5, 6, and 11.
13 In the summer, the hours are from 7 a in. to 4 p.m., and in the winter,
from 7:30 a.m. to 4.30 p.m.
14 The pit drivers receive no paid vacations or holidays, but this is also
true as to Respondent's admitted employees
11 On one occasion Alaniz was reprimanded for reporting late to work.
16 As explicated by Respondent's secretary-treasurer, Rogers, the
reason for the requirement that timecards be maintained by the pit drivers
is to determine the amount of premium which the Respondent will be
obligated to pay for their workmen's compensation coverage (see infra),
so that it can deduct the amount of such premiums from their earrungs
Rogers also testified that for the purpose of such workmen's compensa-
tion coverage, the Respondent carries the pit drivers on its payroll on the
basis of the number of hours they work at the minimum hourly wage rate
permitted by the Fair Labor Standards Act.
retains possession of the policies thus purchased.
Although the pit drivers pay for insurance, they do not, as
Alaniz credibly testified, even know the name of the com-
pany which insures their trucks.18
(h) The Respondent does not withhold Federal in-
come taxes from the gross earnings of its pit drivers, and
it makes no deductions from such earnings for social
security taxes or unemployment insurance.19
(i) On occasion, the Respondent's pit drivers employ
substitutes to drive for them when they are ill or when, for
other personal reasons, they cannot drive themselves.
When substitutes are thus employed, the Respondent
pays the pit drivers for the work performed by the substi-
tutes,20 and the pit drivers pay the substitutes for such
work. The Respondent requires its pit drivers to notify its
supervisor, Arthur R. Crow, in advance when they wish
to employ a substitute, to name the particular substitute
whom they would like to use, and to secure Crow's per-
mission for his employment. As Alaniz credibly testified,
Crow "didn't have to have a reason [for refusing permis-
sion to employ a particular substitute]. If he [Crow]
didn't want a [substitute] driver, that is all he has [sic] to
say." After giving such permission, Crow could withdraw
it, and on a number of occasions, he admittedly refused to
permit substitutes already working for pit drivers to con-
tinue doing so.21 In June or July 1966, Crow told Santos
Alaniz, Jr., a brother of the alleged discriminatee Alaniz,
that the pit drivers could no longer employ substitutes,
and instructed him to notify Reyna "to drive his own
truck or unhook ... his [the Respondent's] trailer."22
(j) The Respondent, through Supervisor Arthur R.
Crow, directs all the details of the work of the pit drivers.
Thus, he tells them what time to report for work and
when to quit, from which pit to haul and to what plant, ad-
monishes them when they do not haul a "full" load,
changes their assignments from pit hauling to road build-
ing work, and/or railroad car loading work, and cautions
them against excessive speed while driving on the cattle
guards of Respondent's affiliate, South Texas Supply
Company. As Crow put it, "whatever work we had to do,
they [the pit drivers] would do it."
(k) Without consulting with its pit drivers, the
Respondent has deducted from their earnings the cost of
damages caused by them or their substitutes. Thus, when
Moncios, a substitute for Reyna, damaged a tire on one of
Respondent's trailers, the Respondent deducted $90,
the cost of the tire, from Reyna's check without his prior
17 The co casing 1 use of substitutes by the pit drivers will be described
and considered, tnfra
18 Upon request by pit drivers; the Respondent also secures collision in-
surance for them, advances the funds to pay the premiums , and deducts
the amount of such premiums from their earnings.
19 The earnings of the pit drivers are reported by Respondent to the In-
ternal Revenue Service on Information Form 1099.
20 The Respondent keeps no records of any kind which show what sub-
stitute performed what work for what pit driver.
21 Reyna testified that Crow fired several of his substitutes. Arthur
Crow denied that he fired them, and testified that he merely notified
Reyna that he would no longer permit them to drive in Respondent's pits.
Although for reasons explicated infra, I regard Crow's testimony as
generally unreliable, I deem it unnecessary to resolve this conflict.
22 Crow admitted that he "probably" told Santos Alaniz, Jr., that there
would be no more substitute pit drivers. He testified that he did not intend
thereby to establish a new "rule or regulation," but merely to discourage
the pit drivers from using substitutes, and that his instruction had its in-
tended effect, and "slowed down" the employment of substitutes "quite
a bit."
336-845 O - 70 - 67
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
consent to such deduction, and without consulting with
him before making it.
3. Concluding findings regarding the employee status of
the pit drivers
In connection with its contention that Alaniz and
Reyna were independent contractors and not employees
entitled to the protection of the Act, the Respondent
moved at the hearing, and again urges in its brief, that the
complaint in this case must be dismissed because of the
earlier Decision of the Regional Director which con-
cluded inter alia, that the Respondent's pit drivers were
independent contractors. The argument in support of the
motion runs briefly as follows: No request was made by
the Union to the Board to review the Director's Deci-
sion; accordingly, under Section 102.67(f) of the Board's
Rules and Regulations, Series 8, as amended, the General
Counsel is "stopped" from relitigating that issue in this
case, which assertedly is "a related subsequent unfair
labor practice proceeding" within the meaning of said
rule: ergo, the Regional Director's Decision regarding the
status of the pit drivers is binding on the Trial Examiner
and the Board.
Whether or not this case, involving alleged violations
of Section 8(a)(3), (4), and (1) of the Act, is a related sub-
sequent unfair labor practice proceeding within the mean-
ing of Section 102.67(f) of the Board's Rules and Regula-
tions,23 I regard the Respondent's motion and its argu-
ments in support thereof as devoid of merit, and I deny it
for the following reasons:
Although the Union did not file a request to the Board
to review the Regional Director's Decision, it did request
the Board to reopen the hearing on which that Decision
was based to introduce newly discovered evidence that
the pit and other drivers were employees, and not inde-
pendent contractors. Thereafter, the Regional Director
did reopen the hearing, and further testimony was ad-
duced before a Hearing Officer on November 1, 1966.
After that hearing, and more precisely on February 10,
1967, the same Regional Director, who earlier had con-
cluded that the pit drivers were independent contractors,
issued the complaint in this case in which he alleges that
pit drivers Alaniz and Reyna are employees within the
meaning of the Act. It is thus fairly obvious that although
the Regional Director has issued no further decision in
the representation proceeding since the hearing therein
was reopened; he must now regard the pit drivers as em-
ployees, for otherwise he would not have issued the com-
plaint herein in which he so alleges.24 Whatever his past
or present opinion, under the circumstances I do not re-
gard the Regional Director's earlier decision in the
representation proceeding, either as a final determination
of the status of the pit drivers by which I am bound, or as
precluding my independent consideration of the issue of
whether Alaniz and Reyna were employees or independ-
ent contractors.
23 But cf. Leonard Niederriter Company, Inc., 130 NLRB 113 , 115, fn.
2; N.L.R.B. v Amalgamated Clothing Workers ofAmerica [Sagamore
Shirt Co.], 365 F.2d 898,904 (C.A.D.C., 1966).
24 See U.S. v . Chemical Foundation , Inc , 272 U.S. 1, 14-15, where the
Supreme Court said:
The presumption of regularity supports the official acts of public of-
ficers and, in the absence of clear evidence to the contrary , courts
presume that they have properly discharged their official duties.
See also N .L.R.B. v. Greensboro Coca Cola Bottling Company, 180 F.2d
840, 844-845 (C.A. 4).
The problem of differentiating between an employee
and an independent contractor has long been recognized
as a difficult one.25 Since the 1947 amendments to the
Act which specifically excluded "independent contrac-
tors" from the definition of "employees" in Section 2(3)
of the Act, the Board, in conformity with Congressional
intent, has followed the usual tests of the law of agency
and has applied the common law "right of control" test.26
That test, as explicated by the Board in the Deaton case,
is as follows:
. an employer-employee relationship exists where
the person for whom the services are performed
reserves the right to control not only the end to be
achieved, but also the means to be used in achieving
such end.
Both the General Counsel and the Respondent agree that
the foregoing is the proper test for determining the "em-
ployee" or "independent contractor" status of Respond-
ent's pit drivers, including Alaniz and Reyna.27 As usual
in cases which present this issue , not all of the aspects of
the relationship fall in one category or the other. How-
ever, bearing in mind that social legislation like the Act
should be construed "in the light of the mischief to be cor-
rected and the end to be attained,"28 I am persuaded on
balance that the degree of control exercised by the
Respondent over these Mexican-American pit drivers
requires the conclusion, both in law and as a matter of
"economic reality," that they are employees within the
meaning of the Act. I base this conclusion on the follow-
ing considerations:
The pit drivers work exclusively for the Respondent
and only on the property owned or leased by it. Each
owns only one truck for which he bears the cost of
purchase, operation, maintenance , and repairs, but the
Respondent, through loans and guarantees, assists him
financially in exercising such ownership. The trucks do
not have State licenses, have not passed State inspection,
and to all intents and purposes are permanently hitched
to Respondent's trailers, and therefore the pit drivers can-
not, as a practical matter, use them in work for other em-
ployers. There is no written agreement or lease between
the pit drivers and the Respondent, and the relationship
between them is terminable at will. The pit drivers, like
the Respondent's admitted employees, work regular
hours and a regular workweek, and the starting, quitting,
and lunch times are specified and changed by the Re-
spondent alone. They, like employees generally, perform
whatever work the Respondent assigns to them, under su-
pervision by the Respondent's supervisor, and so far as
the record shows, without any right to elect not to per-
form the work to which they are assigned . This supervi-
sion includes regulation of the speed at which the trucks
may be operated. Although the pit drivers generally are
paid a specified rate for each load they haul, the rates are
fixed and changed by the Respondent alone, without
negotiation . The pit drivers are required to maintain a
daily timecard showing the number of hours which they
21 See United States v Silk, d/b/a Albert Silk Coal Co., 331 U.S 704,
713.
26 Deaton Truck Lines, Inc., 143 NLRB 1372, 1377, Cement Trans-
port, Inc., 162 NLRB 1261; Indiana Refrigerator Lines, Inc, 157 NLRB
539
21 There is no contention by either of the parties that the status of
Alaniz and Reyna differs in any material aspect from that of the Respond-
ent's other pit drivers
26 United States v Silk, supra at p. 713.
CROW GRAVEL CO. 1045
work.29 On frequent occasions, the Respondent assigns
work to the pit drivers for which it compensates them on
an hourly basis. The Respondent alone determines the
hourly rate of pay, and when and for how long the pit
drivers will be required to work by the hour or by the
load. Since the hours of employment, the type of work
they perform, and the compensation therefor all are regu-
lated by the Respondent, no great opportunity exists
whereby through diligence and efficiency the pit drivers
can appreciably increase their earnings.30 Respondent
carries workmen's compensation insurance for the pit
drivers, a type of coverage required only for "employees"
under Texas law and not for "independent contractors. "3t
The Respondent also requires its pit drivers to carry
liability insurance on their trucks (although the trucks are
driven only on its property and not on public highways),
and it applies for such insurance without consulting the
pit drivers as to whether they desire such coverage,
deducts the premiums therefor from the pit drivers' pay,
and retains possession of the policies thus purchased.32
Although sound business judgment suggests that the pit
drivers should carry such liability insurance, and that the
Respondent, for its protection, reasonably could require
that they do so, the procedure followed by the Respond-
ent in this regard hardly comports with any "independ-
ent" status of the pit drivers. The same considerations
apply equally to the Respondent's deduction from
Reyna's earnings (without consultation or negotiation
with Reyna) for the cost of a new tire to replace one that
was damaged by Reyna's substitute driver.
All of the foregoing fully persuades me that the
Respondent controlled and reserved to its control, not
only the end to be achieved through the services of the pit
drivers, but also the means by which they achieved that
end, and that, therefore Alaniz, Reyna, and the other pit
drivers were employees of the Respondent within the
meaning of the Act.33
In reaching this conclusion, I have considered the other
aspects of the relationship between the Respondent and
its pit drivers which tend to indicate an independent con-
tractor relationship, including; the fact they own their
own trucks; that the Respondent does not withhold
Federal income or social security taxes from their
earnings; that it reports their compensation on Internal
Revenue Information Form 1099; that the Respondent
permits them to, hire substitutes when, for illness or other
personal reasons, they cannot drive themselves; and that
the pit drivers, and not the Respondent, pay the sub-
stitutes for the work they perform. In this latter regard, it
is significant however, that the Respondent requires its
pit drivers to secure prior approval for the substitutes
they desire to use, reserves to itself the right, which occa-
sionally was exercised, to withdraw such approval, and to
limit and/or prohibit the use of substitutes, and thereby
retained veto control over their employment. Not-
withstanding these factors, I am convinced that those in-
dicative of an employer-employee relationship are suffi-
ciently countervailing to outweigh the aspects which tend
to indicate an independent contractor relationship.
Accordingly, I conclude that at the time material
herein, the pit drivers, including Alaniz and Reyna, were
employees within the meaning of the Act.34
4. The Respondent's contention that Alaniz and Reyna
are supervisors
The Respondent, citing Deaton Truck Lines, supra, as
support, also contends that even assuming, as I have
found, that Alaniz and Reyna were employees and not in-
dependent contractors, then they were supervisors
because they occasionally hired substitutes to work for
them. The short answer to this contention is that at the
time of their discharge, and for at least 2 months prior
thereto, neither Alaniz nor Reyna used a substitute and
therefore, even assuming arguendo that they were super-
visors when such substitutes were employed, they were
not supervisors at the time when they were terminated by
Respondent. I therefore regard this contention as without
merit and reject it.
C. The Discriminatory Termination ofAlaniz and
Reyna
1. The prima facie evidence of discrimination
Before their termination, Alaniz had worked as a pit
driver for Respondent for over 10 years, and Reyna had
worked in the same capacity since January 1966. Both
Alaniz and Reyna were active in the Union's organizing
campaign which commenced in June 1966. The first
union meeting was held on June 17 in Alaniz' home, and
he and others who attended signed union authorization
cards. Subsequent union meetings were arranged by
Alaniz, and he notified the Respondent's employees of
29 See fn 16, supra, for Respondent's asserted reason for this require-
ment.
30 At most, by coming before starting time and being first in line to
receive a load, the pit drivers can make an extra trip or two.
33 Traders and General Insurance Co. v. Frozen Food Express, 255
S.W.2d 378, 387-388. The Respondent's brief (p. 15), contrary to the
testimony of its secretary-treasurer, Rogers, now admits that Texas law
does not require workmen's compensation coverage for independent con-
tractors. Nevertheless, it still maintains that rule 8(d) of the Texas Com-
pensation Manual promulgated by the Board of Insurance Commissioners
requires it to obtain such insurance for the pit drivers, despite its conten-
tion that they are independent contractors. However, the above-cited case
holds that this rule "applies only if the chauffeurs and helpers are em-
ployees "
32 Secretary-Treasurer Rogers testified that Texas law required such in-
surance whether or not the pit drivers' vehicles operated on public
highways However, the provision of the Texas statutes which the
Respondent's brief (p 16) cites to support this testimony (Vernon's An-
notated Texas Civil Statutes, Article 6701 h) does not require or compel
liability insurance coverage as a prerequisite for operating a motor vehi-
cle, but merely proof of financial responsibility in the event of an accident.
33 See cases cited in fn. 26, supra
34 After the hearing closed, on the motion of Respondent, I received in
evidence as Resp. Exh. 6 two identical decisions of the Texas Employ-
ment Commission which rejected the claims of Alaniz and Reyna for
unemployment benefits on the ground that "the evidence does not support
a finding that the claimant was an employee of the employer," and that it
regarded them "as small independent businessmen." The Commission's
decisions obviously do not preclude my contrary conclusion based on the
record in this case. As the Court of Appeals for the Eighth Circuit aptly
stated in N.L R.B v Pacific Intermountain Express Company, etc., 228
F.2d 170, 176, enfg. the Board's order in 110 NLRB 96, cert denied
351 U.S 952:
Each fact-finding agency is entitled to make its own decision upon the
evidence before it, and the fact that another tribunal has reached a dif-
ferent conclusion upon the same issue arising out of the same transac-
tion does not invalidate any decision which has proper evidentiary
support
See also, United Brick & Clay Workers of America v Deena Artware,
Inc., 198 F 2d 637, 642 (C.A. 6), Riggs Distler & Co., Inc., 141 NLRB
721, 730, fn. 26
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the time and place where they would take place. Alaniz
also signed up 10 of Respondent's employees to union
authorization cards, and on June 29, he testified for the
Union at the Board hearing in the representation proceed-
ing, in which the Union sought certification as the collec-
tive-bargaining representative of Respondent's em-
ployees. A number of the union meetings were held in
Reyna's beer tavern and pool hall located close to the
Respondent's pit operations. Reyna also signed and
secured the signature of one other employee to a union
authorization card, passed out four or five more, and kept
a supply of them available for employees at his "beer
joint." At one union meeting held in a public park in the
nearby town of La Jolla, Texas, Reyna was "elected" as
a substitute to testify for the Union at the Board hearing,
if Alaniz "couldn't go."
The Respondent admittedly was opposed to the union
organization of its employees, and the employees ap-
parently knew of this animus, for when Supervisor Arthur
Crow, the son of Respondent's president, stopped his car
near them, the union authorization cards which Crow saw
them holding disappeared into their pockets, "and
everything got quiet." Crow also knew that Alaniz had
testified for the Union, and that union meetings had been
held in Reyna's beer tavern and pool parlor.
On September 30, about 2 weeks after the Regional
Director issued a decision in the representation proceed-
ing which held, inter alia, that the pit drivers were inde-
pendent contractors, and with admitted knowledge of that
decision, Arthur Crow notified Alaniz that he and Reyna
were being laid off, When Alaniz asked Crow, "How
come me?" and protested that he had worked for
Respondent longer than any of the Respondent's seven
other pit drivers, Crow merely replied, "Well, it is just
one of those deals." 35 Alaniz then notified Reyna, and he,
after consulting with Crow and verifying that he had been
laid off, unhitched his truck from the Respondent's trailer.
At the same time that Respondent laid off Alaniz and
Reyna, it retained in its employ other pit drivers with far
less seniority than Alaniz, and even less seniority than
Reyna.' The layoff'of these two leading advocates of the
Union,, the timing of the layoff 2 weeks after the Regional
Director's holding that they were independent contractors
unprotected by the Act, and the retention by Respondent
of other pit' drivers with substantially less seniority,
viewed' in the light of Respondent's admitted union
animus, establishes at least prima facie (even assuming
the economic necessity for the layoff), that the selection
of Alaniz and Reyna for termination was motivated by
their leading roles in the Union's organizing campaign.
35 Crow testified that be offered Alaniz, but not Reyna, an opportunity
to transfer to ove,r-the-road hauling, delivering Respondent's products to
its customers, and that Alaniz declined the offer because it would cost "a
lot of money to convert [his truck]" for that use. Alaniz denied that any
such offer was made to him In the light of Alaniz's uncontroverted and
credited testimony that in October, shortly after his discharge, the
Union's effortsto secure his reinstatement were rejected by Respondent,
and because, unlike Crow, I was favorably impressed with the frankness
and sincerity of Alaniz's testimony and his demeanor, I credit his denial
and do not credit the contrary testimony of Crow
36 Of these eight, Alaniz had worked for Respondent since 1954 Three
others (Alejandro Trevino, Reynaldo Valdez, and A N. Barrera) had
been employed since before January 1, 1966, but the record does not dis-
close when their employment began. The other four, all of whom became
pit drivers after January 1, 1966, were, in order of seniority, as follows:
Juan Jose Reyna, since January; Maximo Garza, since February, Hum-
berto Villareal, since June, and Apolinar Garza, since July.
31 Crow also testified that in these discussions, he and his father also de-
cided to offer the affected pit drivers the job of delivering Respondent's
products over the' road to its customers, a type of work which Respondent
concededly had available
2. The alleged economic necessity for the termination of
Alaniz and Reyna
We come then to a consideration of the evidence ad-
duced by the Respondent in support of its defense that a
layoff, not only of Alaniz and Reyna, but of four pit
drivers, was required by a change in the type of products
which its customers were purchasing.
Arthur R. Crow testified in this regard that before the
layoff, Respondent employed eight pit drivers,36
approximately half of whom drove from the pits to the dry
plant, and the other half from the pits to the wash plant. In
addition, each of the eight, on a rotation basis, also hauled
materials from the dry plant to the wash plant. Crow
further testified that in September, "the gravel part, the
wash part" of Respondent's business "wasn't good"; that
the Company had "very large stockpiles, particularly on
sand"; that there were large orders for the latter
"dry" material, that Respondent was being "pushed" for
the latter material by its customers; and that it therefore
ceased hauling raw materials directly from the pits to the
wash plant, and used the pit drivers exclusively for haul-
ing to the dry plant, with the single exception that one pit
driver continued to drive from the dry plant to the wash
plant. This, according to Crow, cut down the volume of
material to be hauled from the pits to "practically half,"
and with eight drivers hauling what four had done previ-
ously, there were twice as many pit drivers than were
needed, which in turn resulted in a reduction in their
earnings to the point where they would not "be able to
support themselves." Accordingly, Crow and his father
(the Respondent's president) discussed this problem for
several weeks before Alaniz and Reyna were terminated,
decided that they would "have to [cut the work force]
because we had too many trailers running [in the pit],"
but never did or could decide "definitely" when to do so,
or whose trailers to eliminate.37 Crow finally testified that
he decided "by chance" that it was "time to start laying
off" when Alaniz, on September 30, unhitched Respond-
ent's trailer from his truck for the purpose of having the
transmission repaired, and that he then and there notified
Alaniz that he and Reyna were being terminated.
Other than Crow's, the only testimony adduced by
Respondent regarding the alleged necessity for the layoff
was that given by Secretary-Treasurer Rogers, who
testified from the Respondent's records regarding its
monthly sales and mining production '311 and the monthly
gross earnings of the eight pit drivers whom Respondent
employed before terminating Alaniz and Reyna.
For the reasons stated hereinafter, I conclude that the
38 Rogers also testified on cross-examination that the Respondent
"now" has two dragline operators, and at one time, the date of which he
"couldn't say," it had three However, after Respondent's counsel inter-
rupted the cross-examination and gratuitously suggested "I thought he
[Rogers] said he had one now," Rogers testified that only "one [ draghne
was] running now," that Respondent still had two operators, but only one
machine was running in the pit, and that the other operators was doing
other work Contrary to Rogers' testimony, Alaniz testified that Respon-
dent did not "cut off any operations in the pit" while he was employed,
that he had never seen more than two draglines working in the pit while he
worked for Respondent, and that two draglines were so operating when he
was terminated. Obviously, Alaniz' knowledge of what transpired at the
pits was better than Rogers', whose office is located in Edinburg, 30 miles
from the pits, and who made only occasional visits to the pits . Signifi-
cantly, Crow who supervised production, did not justify that there was
any reduction in the number of draglines which the Respondent operated
Accordingly, in the light of Rogers' self-contradictory testimony regarding
the number of dragline operators, and because I regard Alamz' testimony
as reliable, I do not credit Rogers' testimony, given at the suggestion of his
counsel, that only one dragline was operating in the pit at the time of
Alaniz' discharge.
CROW GRAVEL CO.
record fails to establish that any layoff by Respondent of
pit drivers was required.
a. As noted above, the Respondent ' s pit drivers
generally were paid a piece rate for each load they hauled
and, on occasion , by the number of hours which they
worked . Thus, even assuming that the nature of Respond-
ent's operations had changed as Crow testified , the only
result would be that each pit driver would haul fewer
loads, or work fewer hours. In either case, the cost to the
Respondent would be the same whether eight or only four
pit drivers performed all the work which Respondent
required . There was, thus, no economic necessity for the
Respondent to lay off any of its pit drivers . Moreover,
since there is no evidence that any pit driver had com-
plained before the layoff about any reduction in his in-
dividual earnings and , as will appear infra, there had been
in fact no such reduction , the layoff obviously was not
required to placate any of the pit drivers.39
b. Although, according to Crow, the change in the
Respondent 's method of operation required the elimina-
tion of half of its eight pit drivers , only Alaniz and Reyna
were totally and permanently terminated . No other
changes were made by the Respondent in the personnel
or work of its remaining pit drivers until substantially
later, and even when made, none of these changes
resulted in the termination of any pit drivers. The changes
were merely as follows.
Instead of all the pit drivers rotating in hauling materi-
als from the dry to wash plant, this assignment was of-
fered to and accepted by Alejandro Trevino, one of the
pit drivers , on a regular , full-time basis; and Maximo Gar-
za, an over-the-road driver for Respondent who became
a pit driver in February 1966 only because his insurance
to do highway driving was cancelled , succeeded in late
October in obtaining renewed insurance coverage, and
then resumed his regular job of over -the-road driver. Both
Trevino and Garza admittedly operated as regular pit
drivers for Respondent during the entire or most of the
month of October before they changed their work assign-
ments.40 Indeed , according to Reyna who was cor-
roborated by Secretary -Treasurer Rogers' testimony re-
garding the earnings of its pit drivers, starting with
November 1966 , Trevino had two trucks (one apparently
driven by a substitute) hauling materials from the dry to
the wash plant . 41 Moreover, unlike Alaniz and Reyna,
who were told only that they were being laid off, and to
whom no other type of employment was offered not-
withstanding Respondent's conceded need for over-the-
39 I view with skepticism Crow 's professed solicitude that the pit
drivers would not "be able to support themselves ." No such solicitude
was accorded to Alaniz and Reyna , who as a result of their termination
lost not only their jobs, but also their equity in the new trucks which they
had purchased not long before specifically for work in the Respondent's
pits. Likewise , no such solicitude was indicated when Alaniz asked Crow
why he had been selected for layoff despite his long employment by
Respondent , and Crow callously replied , "Well, it is just one of those
deals "
40 This delay was caused , according to Crow, because Garza's in-
surance to drive over the road was not obtained before then, and
Trevino's new assignment , which included stockpiling material at the
wash plant's ramp, required the use of the hydraulic trailer to which Gar-
za's truck was hitched
41 Rogers ' testimony disclosed that in November , Trevino received
$852 for the work done by truck #50, and $659 for that performed by
truck #53 Thereafter , according to Crow's evasive testimony and even-
tual but reluctant admission , Trevino, although continuing to perform the
same work with two trucks , was transferred to the payroll of Respond-
ent's affiliate , South Texas Supply Company . Crow's testimony in this
1047
road drivers '42 Crow never told Trevino or Maximo
Garza that they were being, or would be, laid off, but
merely "asked them if they wanted to change ... and
they agreed to it . There was no or else about it."
Obviously the change in Trevino' s assignment did not
reduce the Respondent's complement of pit drivers, since
the work he undertook was that formerly performed by all
the pit drivers on a rotation basis. It is also quite apparent
that the transfer of M. Garza to over-the-road driving was
not pursuant to any overall plan of the Respondent to
further reduce the number of its pit drivers, but rather
was merely the voluntary return of an over-the-road
driver to his former regular job as soon as his disability to
perform it was removed.43
c. According to Crow's testimony, the alleged cessa-
tion of hauling from the pits directly to the wash plant
resulted from a change in the type of products purchased
by Respondent's customers , from both sand and gravel,
to principally sand . The Respondent offered no documen-
tary or other evidence to support Crow's testimony re-
garding this alleged change in the nature of its sales. Obvi-
ously, such documentary evidence was available to
Respondent through its invoices to customers, and an
analysis of such invoices would have made possible a
more reliable determination of the veracity of Crow's
conclusionary testimony in this regard, The failure to
offer such evidence, especially when viewed in the light
of the unreliability of Crow's testimony, permits the in-
ference, which is made, that the Respondent's invoices
would not have supported his testimony that the type of
products sold by Respondent changed.44
d. Crow's testimony as to when Respondent ceased
hauling raw materials from the pit to the wash plant was
at best imprecise. On direct examination, he testified that
this change in operations occurred "in September '66."
On cross-examination, when Crow was asked whether
the change occurred before the end of September, he
testified, "It was right at some time in September when
we changed.... I think we hauled a few days off and on
during October, I guess." Crow further testified that he
was certain that as a consequence of the change, the pit
drivers had to line up and wait substantial periods of time
for a load and that their earnings were therefore lower in
September than what they had been before the change.
However, contrary to Crow's testimony, the September
earnings of the pit drivers were greater for five of
Respondent's pit drivers (including Alaniz and Reyna)
than they had been in August, and only slightly less for
two of the other three.45 Moreover, the total earnings of
regard further reveals its unreliability (See transcript p. 252, 1 18 to p.
253,1 16)
42 See fn. 37, supra
43 Thus, Crow admitted that Garza "was in the process of checking to
see if he could be re-insured to pull over the highway, for the reason that
he was an over the highway driver . "
44 See 2 Wigmore, Evidence § 285 (3d ed); Whiten Machine Works, 100
NLRB 279, 285, Hilma H Erickson, and Erik E. Erikson dlb(a Detroit
Plastic Products Company, 121 NLRB 448, 499.
45 According to Rogers' testimony, the August and September earnings
of Respondent's pit drivers were as follows.
August September
Alaniz $569.00 $571.25
Reyna 51'3.75 557.50
Valdez 356.75 568.25
A. Garza 515.50 540.24
Barrera 441.75 565.50
Trevino 619.25 570.50
M. Garza 576.00 568.00
Villareal 552.50 354.25
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all the pit drivers were slightly greater in September than
they were in August before the alleged change in opera-
tions occurred 46
In view of all the foregoing, including, but not limited
to, the absence of any evidence that the earnings of the pit
drivers decreased before the layoff, or that any of them
complained about reduced earnings, the lack of any addi-
tional cost to the Respondent if it continued to employ all
of its pit drivers, the continued operation by the Respond-
ent of the same number of draglines, and the failure of
the Respondent to produce any documentary evidence,
obviously available to it, of any change in the nature of its
sales, 1 conclude that the Respondent has failed to
establish that any change occurred in its operations, or
that there was any economic necessity for the layoff of pit
drivers.47
3. The discriminatory selection of Alaniz and Reyna for
termination
I am further persuaded by the record that even assum-
ing, contrary to my conclusion above, that a layoff of
some pit drivers by Respondent was required, the selec-
tion of Alaniz and Reyna for termination was motivated
by antiunion considerations. My reasons for this conclu-
sion are as follows:
Alaniz was one of the oldest in terms of service of the
Respondent's pit drivers. So far as the record shows, the
Respondent was completely satisfied with his services.
He was, however, a leading proponent of union organiza-
tion at the Respondent's pits, he had testified for the
Union in the Board's representation proceeding, and the
Respondent knew this and was strongly opposed to the
representation of its employees by the Union.48
According to Crow, he and his father started to discuss
the layoff of pit drivers about 2 weeks before Alaniz was
discharged. It is, thus, significant that the commencement
of these layoff discussions coincided with the Respond-
ent's acquisition of knowledge that the pit drivers had
been held by the Regional Director to be independent
contractors, unprotected by the Act, who could be
discharged with impunity.
During these layoff discussions, Crow and his father
were unable to and never did decide which pit drivers to
terminate. According to Crow, Alaniz was selected only
"by chance" when he reported to Respondent's pits after
a rain for the purpose of taking his truck into a garage for
transmission repairs. Moreover, although Alaniz admit-
tedly asked Crow why he, one of Respondent's oldest pit
drivers in terms of service, was being terminated, he
46 The total earnings of all the pit drivers were $4,144.50 in August, and
$4,295 49 in September.
49 In reaching this conclusion , I have given due consideration to
Rogers' testimony which disclosed that Respondent 's six remaining pit
drivers earned less in October (an average of $471.50 each, and not
$359 33 as stated in Respondent's brief, p. 19) than in August and Sep-
tember (before Alaniz and Reyna were discharged), and that Respond-
ent's mining production dropped to 14,000 cubic yards in August, to
9,000 in September, and to 8,800 in October before rising again to 12,700
in November (The average mining production in 1966 was 13,900 cubic
yards per month) However, notwithstanding that mining production
dropped almost 36 percent in September from its August pace, and
although the same number of pit drivers (eight) were employed in both
months to haul away this production , the total earnings of the pit drivers,
as noted above, were higher in September than in August. Moreover,
although mining production in September and October was substantially
the same , the average earnings of the six remaining pit drivers were less in
received no explanation, and the only answer he got was,
"Well, it is just one of those deals."
At the hearing, Crow made no effort, other than as
noted above, to explain why Alaniz, rather than pit
drivers who had been employed only a few months,49 was
selected for layoff.
Finally, although the Respondent concededly needed
over-the-road drivers to deliver its products, no offer of
such employment was made to Alaniz, and efforts, made
shortly thereafter to secure his reinstatement, were re-
jected by the Respondent.
In the light of the alleged surplusage of pit drivers, the
need for repairs to Alaniz' truck, even if it prevented him
from operating it for a few days,50 obviously could not
have been the motivation for his selection for permanent
termination. I therefore regard the assignment of this
reason for Alaniz' selection as the barest and flimsiest of
pretexts intended to conceal other motivations for the
Respondent's action towards this long term and satisfac-
tory employee. I likewise so regard the explanation, if in-
deed it can be called such, that Alaniz was selected for
termination because he just happened to be present when
Crow decided it was "time to start laying off."
The Court of Appeals has said in a comparatively
recent decision: 51
Actual motive, a state of mind, being the question,
it is seldom that direct evidence will be available that
is not also self-serving. In such cases, the self-serving
declaration is not conclusive; the trier of fact may
infer motive from the total circumstances proved.
Otherwise no person accused of unlawful motive
who took the stand and testified to a lawful motive
could be brought to book. Nor is the trier of fact -
here the trial examiner- required to be any more naif
than is a judge. If he finds that the stated motive for
a discharge is false, he certainly can infer that there
is another motive. More than that, he can infer that
the motive is one that the employer desires to con-
ceal-an unlawful motive-at least where, as in this
case, the surrounding facts tend to reinforce that in-
ference. [Emphasis supplied.]
In the light of that decision and the circumstances in
this case, and especially the complete failure of the
Respondent to furnish any plausible explanation why
Alaniz, rather than newly employed pit drivers, was
selected for termination, I regard it quite apparent and
find that he was discharged, and refused reinstatement or
other employment, because of his leading role in the
Union's organizing campaign, his testimony on behalf of
the Union in the representation proceeding, and the
October than in September when eight worked The conclusion which I
draw from these seeming paradoxes , is that other considerations, such as,
for example, rainy weather , equipment breakdowns , and absenteeism, can
affect both mining production and the earnings of the pit drivers, and that
there is no necessarily determinative correlation between the two.
48 In addition to admitting that he knew before the layoff that Alaniz
had testified for the Union at the Board hearing , Crow also admitted that
he knows most of Respondent's employees , that if anything happens
someone tells him about it, and that there is not much that goes on at the
Respondent 's pits of which he is not aware.
41 See fn 36 , supra , for the relative seniority of Respondent's pit
drivers.
so There is no evidence regarding the length of time which was, or
would be, required to repair the transmission on Alanz' truck.
51 Shattuck Denn Mining Corporation v N.L R.B , 362 F.2d 466,470
(C. A. 9).
CROW GRAVEL CO. 1049
Respondent's hostility thereto. Accordingly I conclude
that thereby the Respondent discriminated against Alaniz
and engaged in unfair labor practices within the meaning
of Section 8(a)(3), (4), and (1) of the Act.
Reyna, although employed as a pit driver by Respond-
ent in January 1966 , was senior in length of such service
to at least Humberto Villareal and Apolinar Garza, who
were hired in June and July 1966, respectively. Like
Alaniz, Reyna was one of the leading proponents of the
Union, and the Respondent knew that his beer tavern and
pool hall had been the site of a number of the Union's
meetings.
When Crow carried out his layoff decision, he told
Alaniz that not only he, but also Reyna, were being
terminated.52 Reyna was not then present and therefore
Crow could hardly, as he did in the case of Alaniz, ascribe
Reyna's selection for termination to the fortuitous cir-
cumstance of his presence when he decided it was "time
to start laying off." Crow testified that the reason he
notified Alaniz of Reyna's termination was because he
had hired Reyna (sight unseen) on Alaniz' recommenda-
tion. However, contrary thereto and according to the
credited testimony of Alaniz and Reyna, the latter's em-
ployment was negotiated directly between Reyna and
Crow without any knowledge thereof by Alaniz. I con-
clude from the foregoing that Crow's notice to Alaniz of
Reyna's termination, persuasively suggests that Crow re-
garded them both as in the same category.
Arthur Crow testified that he "chose" Reyna for ter-
mination, because "we had trouble on a couple of different
occasions with Reyna, on two different matters that I re-
member well." As particularized by Crow, the two items
of "trouble" consisted of the following:
(a) In the early part of the 'summer of 1966, Reyna,
while driving in the Respondent's pits, blew his horn at
cattle which were being herded by Respondent's pre-
sident , V. N. 'Crow, across a road in the pit, as a result of
which they "`stampeded." Reyna later attempted to
apologize, but was told'by Crow, Senior, to get back to
work and leave him alone because he was busy. Accord-
ing to Reyna's uncontroverted and credited testimony,
Crow, Senior, also told him on this occasion that he "was
just a troublemaker," that Reyna knew "what kind of a
troublemaker" he was, ' and that Reyna would be fired
"the first chaa)ce" he had.
(b) Reyna was "continually" using substitute drivers,
and one of them, "through pure negligence ," ruined a tire
on one of Respondent's trailers.
I regard Crow's testimony that Reyna was selected for
termination for the reasons stated above as unworthy of
belief.
The cattle incident occurred in the "early part of the
summer," 3 to 3-1/2 months before Reyna's termination
on September 30, and never was repeated . Reyna was
not fired or otherwise disciplined when the incident oc-
curred. Other than on this one occasion, there is no
testimony, that Reyna's driving habits were other than
satisfactory. On the contrary, "2 or 3 months" before
Reyna was terminated (and thus, after the cattle incident),
Arthur Crow, by his own testimony, told Reyna that "he
was a good man and everything," and that therefore he
should drive himself and not use substitutes . 53 In view of
the above, and especially Arthur Crow's later statement
to Reyna that he "was a good man ," I do not believe that
he was selected for termination because of the earlier cat-
tle incident, and I regard the resurrection thereof as a fee-
ble attempt by the Respondent to justify the discharge of
an employee who was terminated for other reasons.
In respect to Reyna's "continual " use of substitutes,
even according to Arthur Crow's shifting and self-con-
tradictory testimony, Reyna had not used a substitute for
a considerable period of time before his termination.54
Moreover Crow's testimony clearly discloses that the
Respondent had no real objection to the use by its pit
drivers of substitutes, provided they were competent. In
view of all the foregoing, I do not believe that the former
use of substitutes by Reyna, which already had been
discontinued for some time , was a reason for his selection
for termination, and I regard the assignment thereof as
another pretextual device upon which the Respondent
has seized to conceal the real reason.
Although the foregoing were the only two items of
"trouble" for which Crow, according to his direct ex-
amination , selected Reyna for termination , on cross-ex-
amination Crow added a third reason, that Reyna en-
gaged in "ribbing and joking, horse playing around, and
stuff like that [and] sometimes it caused ill' feelings
between some of the men." This, according to Crow, dis-
closed a "disrespect" by Reyna for his job. When asked
to be more specific and not indulge in generalities, Crow
testified, "Like I say, they were all minor incidents. I
can't remember that far back to give you any incidents.
They weren't that important." Crow also admitted that he
had never called any of these alleged "incidents" to
Reyna's attention. I am persuaded by the foregoing cir-
cumstances that this asserted reason for Reyna's termina-
tion is quite apparently an afterthought and another pre-
text.
The real reason for Reyna's termination is readily ap-
parent from the record. In June, the Union was engaged
in organizing the Respondent 's employees. The Respond-
ent was opposed to the union representation of its em-
ployees. Reyna was one of the Union's leading
proponents . In the Respondent's view , and as its pre-
sident said and threatened at the time of the cattle in-
cident, Reyna was a "troublemaker,"55 who would be
fired at the first available opportunity. Notwithstanding
Reyna's alleged deficiencies, the cattle incident, his earli-
er employment of substitutes, and even his purported
"horsing around," the Respondent retained Reyna in its
employment until the Regional Director 's Decision is-
sued which disclosed that pit drivers were independent
contractors, and thus could be discharged without liabili-
ty under the Act. With that decision, the "first chance"
had arrived. Then the Respondent not only had no work
for Reyna as a pit driver (although it retained at least two
53 According to Crow, Alaniz replied, "Well, it isyust as well We are all
roke anyway." Alaniz denied making that statement , and I credit his
denial for the reason that unlike Crow, I regard him as a reliable witness,
and because the record discloses no reduction in Alamz' earnings before
his layoff.
53 At the time of this conversation , Reyna was using a substitute
because he was suffering from a back injury.
5' On the different occasions when Crow was asked this same question,
he answered that he did not know, that he was "sure" it was 2 or 3 months
before Reyna's discharge, that he had no idea, that it was "approximately
a month or two" and that it was "two months before he [Reyna was] ter-
minated."
55 In Board cases , the term "troublemaker" is a not infrequent appella-
tion used by employers hostile to union organization to describe active
union proponents See, e.g., Makela Welding, Inc., 159 NLRB 964,
Mayfair Midwest, Inc., 148 N LRB 1602, 1603
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other pit drivers with substantially less seniority), but it
also admittedly did not offer him one of the available jobs
of delivering the Respondent's products over the road,
and in addition, it rejected his request for reinstatement.
I conclude from all of the foregoing, including the tim-
ing of Reyna's termination, his selection therefor out of
seniority, the failure to offer him other available employ-
ment, the association of his selection with that of the
other leading union advocate, Alaniz, and the pretextual
nature of the reasons asserted for Reyna's selection for
termination, that the real reason for Reyna's discharge
was his advocacy of the Union and the Respondent's op-
position thereto. Accordingly, I conclude that by ter-
minating Reyna because of antiunion motivation, the
Respondent engaged in unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with the operations of
the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic,
and commerce among the several States and tend to lead
to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I will recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having further found that the Respondent dis-
criminated against Valente Alaniz and Juan Jose Reyna
by terminating their employment and thereafter refusing
to reinstate them because they engaged in union and con-
certed activities protected by the Act, and in the case of
Alaniz, because he also gave testimony under the Act, I
will recommend that the Respondent be ordered to offer
them immediate reinstatement to their former or substan-
tially equivalent positions, without prejudice to their
seniority or other rights and privileges, and make them
whole for any loss of earnings they may have suffered by
reason of the discrimination by the payment to each of
them of a sum of money equal to the amount he normally
would have earned as net wages (after deducting the cost
of operating his truck) from the date of his termination to
the date of his reinstatement less his net earnings during
said period, with backpay computed on a quarterly basis
in the manner established by the Board.56
As noted above (see fn. 39, supra), as a result of the
Respondent's discrmination against Alaniz and Reyna,
they lost, not only their jobs, but also their equity in the
new (1966) trucks which they had purchased specifically
for use in the Respondent's pits. To achieve reinstate-
ment to their former or substantially equivalent positions
under the Respondent's method of operation, it is neces-
sary for both Alaniz and Reyna to own a truck, which
they do not now possess only because of the Respond-
ent's unlawful conduct against them. Thus, the usual
remedy of requiring Respondent to offer them reinstate-
ment would be meaningless in this case unless some
provision is made whereby it can be accepted by these
discriminatees. I will therefore recommend that in con-
nection with the reinstatement offer, the Respondent also
be required to provide them with an equity in a truck
comparable to that which each had in the truck he owned
at the time of the discrimination, the amount of which can
be determined in the compliance proceeding.
I will also recommend that the Respondent 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 and determine the amount of backpay due under
the terms of this recommended remedy.
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. Crow Gravel Co., is an employer engaged in com-
merce and in operations affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Laborers' International Union of North America,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. Valente Alaniz and Juan Jose Reyna are employees
within the meaning of Section 2(3) of the Act.
4. By discriminating against Valente Alaniz and Juan
Jose Reyna by terminating their employment and refusing
to reinstate them because they engaged in union and con-
certed activities protected by the Act, and in the case of
Alaniz, because he also gave testimony under the Act, the
Respondent has engaged and is engaging in unfair labor
practices within the meaning of Section 8(a)(3), (4), and
(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this
case, I recommend that the Respondent , Crow Gravel
Co., its officers, agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in and activities on be-
half of Laborers ' International Union of North America,
AFL-CIO , or any other labor organization of its em-
ployees, by discharging or refusing to reinstate any em-
ployees, or in any other manner discriminating in regard
to hire or tenure of employment , or any term or condition
of employment.
(b) In any like or related manner interfering with,
restraining , or coercing employees in the exercise of their
right to self-organization, to form labor organizations, to
join or assist Laborers ' International Union of North
America, 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 engaging in such activil
ties.
" F. W. Woolworth Company, 90 NLRB 289: backpay shall include
the payment of interest at the rate of 6 percent per annum to be computed
in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716.
CROW GRAVEL CO. 1051
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Offer Valente Alaniz and Juan Jose Reyna im-
mediate and full reinstatement to their former or substan-
tially equivalent positions, without prejudice to their
seniority or other rights and privileges previously en-
joyed, and' make them whole for any loss of pay they may
have suffered as a result of the discrimination against
them, all in the manner provided in the section of this
Decision entitled "The Remedy."
(b) 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 and determine the amount
of backpay due under the terms of this Recommended
Order.
(c) Notify Valente Alaniz and Juan Jose Reyna if
presently serving in the Armed Forces of the United
States of their right to full reinstatement upon application
in accordance with the Selective Service Act and the
Military Training and Service Act, as amended, after
discharge from the Armed Forces.
(d) Post at the site of its mining operations and at its
plants near Mission, Texas, copies of the attached notice
marked "Appendix."57 Copies of said notice, on forms
provided by the Regional Director for Region 23, after
being duly signed by Respondent, shall be posted by it for
a period of 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 23, in
writing, within 20 days from the date of the receipt of this
Decision and Recommended Order, what steps it has
taken to comply herewith.58
51 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
prals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
58 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify said Regional Director,
in writing , within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL NOT discourage membership in or activi-
ties on behalf of Laborers' International Union of
North America, AFL-CIO, or any other labor or-
ganization , by discharging or refusing to, reinstate
any of our employees, or in any other manner dis-
criminating against our employees in regard to their
hire or tenure of employment or any term or condi-
tion of employment.
WE WILL NOT in any like or related manner inter-
fere with, restrain, or coerce our employees in the ex-
ercise of their right to self-organization, to form labor
organizations, to join or assist Laborers' Interna-
tional Union of North America, 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 pur-
pose of collective bargaining or other mutual aid or
protection, and to refrain from any or all such activi-
ty.
WE WILL offer Valente Alaniz and Juan Jose
Reyna immediate and full reinstatement to their
former or substantially equivalent positions without
prejudice to any seniority or other rights and
privileges previously enjoyed, and make them whole
for any loss of pay suffered as a result of the dis-
crimination against them.
WE WILL notify Valente Alaniz and Juan Jose
Reyna if presently serving in the Armed Forces of
the United States of their right to full reinstatement
upon application in accordance with the Selective
Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the
Armed Forces.
Dated By
CROW GRAVEL CO.
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board 's Regional Office, 6617 Federal
Office Building , 515 Rusk Avenue , Houston, Texas
77002, Telephone 228-0611.