Gulf Concrete Co.

National Labor Relations Board - Board Decisions

Jun 19, 1967

165 N.L.R.B. 627 (N.L.R.B. 1967)

GULF CONCRETE CO.
Gulf Concrete Company and General Drivers,
Warehousemen & Helpers Local Union No.
968, affiliated with International Brother-
hood of Teamsters , Chauffeurs , Warehouse-
men & Helpers of America . Cases 23-CA-
2374 and 23-CA-2436.
June 19, 1967
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On March 14, 1967, Trial Examiner Eugene E.
Dixon issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged 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, Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief, and the
General Counsel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
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 the briefs,
and the entire record in the case, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner's findings,' conclusions, and
recommendations.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, Gulf Concrete
Company, Victoria, Texas, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order.
' In adopting the Trial Examiner's finding that Medrano is a
supervisor within the meaning of the Act, we do not agree with his
conclusion that Respondent is responsible for Medrano's conduct
solely because he was used as a conduit for transmission of
information or orders to employees Accordingly, we expressly
disavow that portion of fn 5 of the Trial Examiner's Decision
which so concludes.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
EUGENE E. DIXON, Trial Examiner: This proceeding,
brought under Section 10(b) of the National Labor
Relations Act, as amended (61 Stat. 136), herein called the
627
Act, was heard before Trial Examiner Eugene E. Dixon at
Victoria, Texas, on September 19 and 20, 1966, pursuant
to due notice. The complaint, issued by the representative
of the General Counsel for the National Labor Relations
Board (herein called the General Counsel and the Board)
on August 19, 1966, and based upon charges filed on
April 28, May 5, and July 8, 1966, by General Drivers,
Warehousemen & Helpers Local Union No. 968, affiliated
with International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America (herein called the
Union or the Charging Party), alleged that Gulf Concrete
Company, the Respondent herein, had engaged in unfair
labor practices by (1) various specified acts which
interfered with, restrained, and coerced its employees in
the excerise of their rights guaranteed in Section 7 of the
Act in violation of Section 8(a)(1); (2) reducing the hours of
pay of certain named employees' because of their union
activities or because they engaged in concerted activities
for the purpose of collective bargaining or other mutual aid
or protection, thus discriminating in regard to the hire or
tenure or terms or conditions of employment of its
employees, thereby discouraging membership in a labor
organization, and thus violating Section 8(a)(3) of the Act;
and (3) refusing to bargain collectively in good faith with
the Union as the exclusive collective-bargaining
representative of its employees in an appropriate unit by
(a) reducing the hours and pay of its employees; (b)
refusing to furnish the Union with data relating to the
names, rates, hours, and classification of employees in the
bargaining unit; (c) insisting that all negotations be
conducted in Corpus Christi, Texas; (d) threatenting to
blacklist employees and reduce their hours and pay for
joining the Union; and (e) negotiating in had faith with no
intention of entering into an agreement, all in violation of
Section 8(a)(5) of the Act.
In its duly filed answer, Respondent denied the
commission of any unfair labor practices.
Upon the entire record in the case, and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS
At all times material herein Respondent has been a
corporation duly organized under and existing by virtue of
the laws of the State of Texas, having its principal office
and place of business in Victoria, Texas, and also
maintaining places of business at Bloomington and Corpus
Christi, Texas, where it is engaged in the production and
sale of ready-mixed concrete. During the 12 months
preceding the issuance of the complaint, which is a
representative period, Respondent, in the course and
conduct of its business operations, sold and distributed
products of a value in excess of $50,000 from its. Victoria
and Bloomington, Texas, plants to E. I. DuPont de
Nemours & Company at certain of its Texas localities. E.
1. DuPont de Nemours & Company annually sells and
ships goods and materials valued in excess of $50,000 from
its Texas localities directly to points outside the State of
Texas. During the same period of time Respondent
purchased goods and materials valued in excess of $50,000
from Closner Equipment Company at San Antonio, Texas,
' Samuel Flores, Joe Garcia, Alex Martinez, Antonio Martinez,
Nick Salazar, and Rosendo Vasquez
165 NLRB No. 91
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which goods and materials were received by said Closner
Equipment Company or by Respondent from points
directly outside the State of Texas. Respondent at all
times material herein , has been an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION
General Drivers, Warehousemen & Helpers Local
Union No. 968, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Supervisory Status of Michael, Lowery, and
Medrano
According to Crow's testimony, as of January 1966
Respondent had a ready-mix concrete plant in Victoria,
one in Port Lavaca, and one in Corpus Christi, Texas. At
the Victoria plant Respondent had six transit mix drivers,
two material truck (or dump truck) drivers, a loader
operator, and a space mixer driver. In the latter part of
February, Respondent opened another plant in
Bloomington, Texas, and shortly thereafter sold its Port
Lavaca plant.2 The Port Lavaca employees were given the
opportunity of staying with the new owners at Port Lavaca
or of transferring to Respondent's other operation. Two
stayed at Port Lavaca and the balance transferred. This
occurred about April 1. From January to April1
Respondent's employee compliment remained substantial-
ly constant." Then, in addition to the transfers from Port
Lavaca (so far as the record shows, a total of four
employees transferred-Ralph Medrano, Antonio
Martinez, Dennis Lowery, and Sylvester Martinez),
Respondent hired a new driver, Joe Garcia, and a couple of
weeks later added "some more men," some of whom did
not survive the training or "break in" period.
At all of the plants an essential function is that of
batchman whose primary duty is to see that the trucks
are loaded with the proper amounts and proportions of
sand, gravel, cement, or other ingredients the customers'
orders require. This is accomplished by him through the
operation of the plant machinery which controls the
amounts of ingredients the various batches call for.
At the time the Port Lavaca operation was eliminated,
Dennis Lowery was transferred to the Bloomington plant
as batchman and Antonio Martinez was transferred with
him as his helper to load materials. Except for the
truckdrivers coming and going, Lowery and Martinez were
the only ones working at the Bloomington plant. At the
Victoria plant Fidel Medrano was the batchman, spelled
sometimes by Robert Michael. At the Victoria location,
however, Respondent maintains an office and Michael's
duties were such that he "usually stayed in the office."3 It
was at this location also that Carol Caldwell, the Victoria
plant manager , was stationed.
The testimony of several of the drivers (including
Martinez) shows that they all were subject to orders from
' The Bloomington plant was located much closer to the
DuPont project than the Port Lavaca plant and was opened
primarily to supply the DuPont project needs which "started to
pick up around the first of April "
Lowery, Medrano, and Michael; that depending on which
plant they were at, any one of the three directed them
where to haul, what to do, when to come to work, when to
service the machinery, and when to clean the plant or
trucks. They also assigned the drivers other tasks when
there was no hauling to be done. In addition to this general
description of their relationship with the three in question,
there were some specific undenied and credited examples
given by the General Counsel's witnesses as follows:
1. Nick Salazar testified that a few weeks before his
testimony he had been granted a few hours time off by
Medrano for personal reasons.
2. When Alex Martinez, Jr., applied to Respondent for
employment, he talked to Michael who had Marinez fill out
an application blank. While Michael was going over the
application, Respondent's president, Crow, came in.
Michael told Crow that he was thinking of hiring Martinez
as a dump truck driver. Crow said, "Okay" and made
some suggestion about notifying Martinez' previous
(current?) employer. About this matter Martinez credibly
testified further as follows:
And so in the conversation he told me, when I got
through filling that application, he said "I know you
get more an hour," because I was getting $1.40 where
I was working, on 40 hours guarantee.
And he said, "I am going to start you at $1.25," he
said, "but I guarantee you, I can't guarantee you 40
hours, but I do guarantee you will work more than 40
hours because on a dump truck you will work about 60
or more hours a week because that is a regular job. It
don't make no difference if it rains, you can haul to
the stock pile, anyway."
He said, "In about 4, 5 months," he said, "if I am
satisfied with your work," he said, "you are doing
fine," he said, "I am going to give you a raise."
Respondent denies that the three employees in question
are supervisors. Besides testifying that none of them have
ever been granted any of the authority or attributes of a
supervisor as defined in the Act, Respondent maintains
that any directions they may have occasion to give the
truckdrivers or other employees are not a manifestation of
supervisory responsibility, but are merely the ministerial
carrying out of directions formulated and transmitted to
them by their supervisors.
Notwithstanding that there may be somewhat less
occasion in Respondent's operations for the manifestation
of strong indicia of supervisory attributes by these three
alleged foreman than may be demonstrated in other types
of operations, I am convinced and find that the evidence
establishes that Lowery, Medrano, and Michael are
supervisors within the meaning of the Act. In addition to
the foregoing, it appears that all three are on a salary basis
as distinguished from the rest of the employees who are on
an hourly basis. It also appears that Respondent issued on
its letterhead, dated April 19, 1966, the following typed
notice:
TO: All Supervisory and Clerical Employees &
Batchmen4
SUBJECT: Union Matters in our Company at Victoria
and Bloomington
I This is according to the undemed and credited testimony of
Charles Eugene Johnson.
'The words "& Batchman " were added in writing.
GULF CONCRETE CO.
During the next few weeks you may be talking and
working with employees who may be in a bargaining
unit as a result of certain union activities now going
on.
To prevent any grounds for an unfair labor practice
charge it is extremely important that the following
statements be rigidly enforced.
When talking with employees other than in a
supervisory or clerical capacity DO NOT
A. Make any threats
B. Make any promises
C. Coerce employees in any fashion
D. Question employees about membership in a
union nor about attendance at union meetings.
629
employees, office clerical employees, watchmen, guards,
and supervisors as defined in the Act.
On April 6, the Union also filed an RC petition (Case
23-RC-2678) with the Regional Office in connection with
its effort to organize Respondent's employees. On this
same date the Regional Office wrote Respondent notifying
it of the Union' s petition . On or about June 15 a Board
election was held and on June 23 the Union was certified
as the collective- bargaining representative of the
employees in the described unit. The vote, apparently, had
been 9 to 2 in favor of union representation.
On June 24 Business Representative Whittle wrote
Respondent President Bruce L. Crow requesting the
following information.
/s/ Bruce L. Crow 1. Names of employees in the bargaining units.
Bruce Crow, President 2. Classification of the employees in the unit.
Gulf Concrete Company 3. Rates of pay of the employees in the bargaining
unit.
This notice was signed by Bruce L. Crow at the place for
his signature. In the lower left hand corner of the notice, it
was also signed again by Bruce L. Crow as well as five
additional employees-George Bihner (the Corpus Christi
plant manager), Carol Caldwell, the Victoria plant
manager, Robert L. Michael, Dennis Lowery, and another
signature which is not distinguishable on the exhibit but
was identified by the General Counsel on the record
without objection as a Jean Porter. On the foregoing
evidence I conclude and find that Michael, Lowery, and
Medrano, in addition to being batchmen are also
supervisors within the meaning of the Act.5 This does not
necessarily mean that batchmen as such are supervisors
and should thus be excluded from the unit.6
B. The Refusal to Bargain
The Union began to organize Respondent's employees
in the Victoria area about the middle of March 1966. To
this end employee Sammie Flores was contacted by Union
Business Representative E. F. Whittle who prevailed upon
Flores to promote the Union among the other employees.
This Flores did getting authorization cards signed by them
and, in the process, being elected their leader. None of this
activity, however, was conducted on Respondent's
premises.
By letter to Respondent dated April 6, the Union
claimed to represent a majority of Respondent's
employees in an appropriate bargaining unit and
demanded recognition. The bargaining unit, as described
in the letter , as alleged in the complaint , and as admitted
in the answer to be appropriate, was comprised of all
production and maintenance employees employed by
Respondent at its Victoria and Bloomington area
operations, including truckdrivers, deliverymen, transit
mix drivers, and batch plant operators, excluding all other
4. Time and one-half after-hours weekly, etc.
5. Vacation policies.
6. Insurance provided and who paid for by and cost of
same; also, a copy of policy, if one exists.
7. Number of paid holidays per year and hours paid
for such holidays.
On June 28 Whittle wired Crow as follows:
Pursuant to NLRB certification of this Union as
representative of certain of your employees as
stipulated in NLRB Case Number 23-RC-2678 this
Union wishes to meet with you at your earliest
possible convenience for the purpose of negotiating a
contract covering wages, hours and conditions of
employment of those of your employees represented
by this Union.
Please contact the undersigned agent at 626 East 4-
1/2 Street or UN-94826 Houston, Texas in the very
near future regarding setting up a time and place for
this negotiation.
In a telephone conversation with Crow on June 30 the
latter, according to Whitter's testimony, indicated that he
did not intend to supply the requested information-that
"he didn't believe he had to."7 The following day Whittle
wrote Crow as follows:
This letter will confirm our telephone conversation
of June 30, 1966, wherein you stated that you would
not supply this Union with the information concerning
present wages, hours and conditions of employment
of your employees which we requested of you in our
letter of June 24, 1966.
We consider the information that we requested of
you to be of considerable importance to all parties
concerned, however, if we do not receive the
requested information within the next few days, we
will consider that your refusal is final and be governed
accordingly.
s That Medrano 's signature does not appear on Respondent's
April 19 memorandum of instructions does not in my opinion
detract from this finding The record shows that some of the
drivers had marginal ability in the use of English For this reason,
Respondent states that Medrano was "frequently used . as a
conduit for the transmission of information and/or orders to the
other employees " On this basis alone I would find Medrano to
have been held out to the employees as a supervisor or an agent of
Respondent and that Respondent is thus chargeable with and
responsible for Medrano 's conduct in the course of his
employment
° For example, one of the rank-and-file employees, Faustino
Rodriguez, substitued as batchman for Medrano for 2 weeks while
Medrano was' in the hospital This did not automatically make
Rodriguez a supervisor
Crow testified about this conversation as tollows
He wanted to know if I was going to give him this
information, and I told him no, that I was not at that time,
that I would have to refer to my attorney and see what
information I would give him . '
299-352 0-70-41
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On July 1 Crow wrote Whittle in reply to the letter's
telegram of June 28 as follows:
In answer to your wire of the 28th. I will be
available to meet with you in Corpus Christi anytime
Wednesday, July 6th. I suggest we meet at Head and
James office, 702 Wilson Tower. Please advise time.
Pursuant to Respondent's suggestion Whittle met with
Respondent on July 6 at the office of Respondent's
counsel in Corpus Christi. There, according to Whittle's
undenied and credited testimony, he presented the
Company, from notes, with a verbal contract proposal in
places lacking, specifics because he did not have the
information from Respondent that he had asked for. The
Company's only comment was that the Union's offer would
be taken "under advisement."
At the end of the meeting the company representatives
(Crow and Attorney James) indicated that "They had
urgent business that was going to tie them up for the next
couple of weeks" and wanted to schedule the next meeting
for July 21. Whittle objected to this as being "too long a
time between meetings" but was unable to prevail in his
contention. A dispute also arose as to where negotiations
should take place. Respondent's representatives insisted
at this time that the next meeting be held in Corpus
Christi,8 while Whittle insisted on Victoria which was
where the bargaining unit was located. Whittle also
pointed out (as another reason for holding negotiations in
Victoria) that Sammie Flores had been elected to
participate in the negotiations and "requested that they
arrange to have time off for him." The Company's
response was that "they could see no reason for Sammie
Flores sitting in on the negotiations, that they could
negotiate a contract with [Whittle]."
No definite date for the next meeting was agreed upon at
this time. Accordingly, on July 15, Whittle wrote
Respondent as follows:
This is to request another meeting for the purpose of
attempting to negotiate a contract covering terms and
conditions of employment of your employees in the
appropriate collective bargaining unit. We request
that such a meeting be held in Victoria, Texas, on any
date during the week of July 18, 1966. If you do not
wish to use the Company's offices in Victoria for this
meeting, the Union will make arrangements to
provide some other meeting place in Victoria which is
mutually agreeable.
Please advise me at your earliest opportunity as to
when you will be available for such a meeting next
week. Unless you contact me next week, we will
assume that you are refusing to meet with the Union
on this subject.
On July 20 Attorney James replied to Whittle's July 15
letter as follows:
Mr. Bruce Crow of Gulf Concrete Company has asked
that we reply to your letter of July 15, 1966. At the
conclusion of our initial meeting on July 6, it was
agreed that our next meeting would take place during
the week of July 25. Mr. Crow is still prepared to meet
with you at this agreed time.
A representative of the National Labor Relations
Board has requested that Mr. Crow make himself
available on the 27th, 28th and 29th of July for
purposes of investigating impeding unfair labor
practice charges filed by the union against the
company. We are now trying to arrange to limit the
meeting with the N.L.R.B. representative through the
afternoon of the 27th and the full day of the 28th, in
which event both Mr. Crow and I will be available to
meet with you on the morning of the 29th. If a meeting
at this time is satisfactory to you, please advise, and
we will confirm it as soon as our arrangements with
the N.L.R.B. are final.
However, at our meeting on the 6th you agreed to
furnish the company a written outline and summary of
the various points which the union desires to
negotiate. We have not received this information, and
we consider its receipt and a reasonable period of
time to study the same an essential prerequisite to our
second meeting.
It will be necessary that this next meeting be in
Corpus Christi. Mr. Crow is not willing to pay
expenses for any employee to travel from Victoria to
Corpus to attend this meeting.
In conclusion, I would say that it seems quite
presumptuous for you to assume the authority to write
a letter dated Friday of one week demanding that the
Company contact you the next week, in the absence
of which you "will assume that you are refusing to
meet with the Union on the subject." We would prefer
that any declarations or findings in these matters be
made by the duly constituted authorities as to the
conduct of both the union and the company, rather
than the officials or representatives of either the
company or the union.
To this letter Whittle replied, on July 22, as follows:
I have received your letter of July 20, 1966, and must
say I am unable to understand fully your intentions
with regard to further meeting with the Union.
First of all, I do not recall any agreement at our prior
meeting that the next meeting would take place
during the week of July 25th. Nevertheless, in the
interest of meeting at the earliest possible time, we
are agreeable to meeting with you on July 29th as you
propose.
Secondly, I do not agree that any further meeting
would be conducted on the advanced submission of a
written summary of the Union's proposals. I did say I
thought the negotiations would benefit from each
party submitting their various proposals in writing
and that I would attempt to reduce the Union's
proposals which were made at our first meeting to
writing and present them at our next meeting. Since
you have requested the proposal, however, and as a
matter of expedience, I have reduced our proposal to
writing, and am enclosing same herewith. It should be
8 Corpus Christi is about 100 miles from Victoria
GULF CONCRETE CO.
noted that these proposals are not in final form and
are subject to revision in certain areas. I also request
that you submit any proposals you have so that we
may give them careful consideration in advance of our
next meeting.
Thirdly, as I advised you at our initial meeting, we
believe the negotiations should be conducted in
Victoria where most of the employees work and live.
The only reason you have given for refusing to meet in
Victoria is that by meeting in Corpus Christi the
Company can save the expense of you and Mr. Crow
traveling to Victoria. We do not accept this argument
since it is no more inconvenient for you and Mr. Crow
to come to Victoria than it is for the employees on the
bargaining unit to come to Corpus Christi.
Since you are refusing to meet in Victoria, however,
and again in the interest of making some progress
toward the negotiations on a contract, we are agreeing
to meet with you in Corpus Christi on July 29, 1966,
and suggest that the meeting be scheduled for 10 a.m.
I emphasize that we are not in any way waving what
we believe is our right to conduct the negotiations in
Victoria.
I am sure you realize that little or no progress was
made at our first meeting. As to the numerous
proposals the Union made, you indicated you would
want to take all of them under consideration. I assume
you have now carefully considered all of our proposals
and you will be prepared to enter into meaningful
discussion of those proposals at our next meeting and
present proposals of your own as you desire to do so.
Please advise me as soon as possible as to whether we
will be able to meet on the 29th as proposed.
In this connection, we hereby request that if such a
meeting is agreeable that arrangements be made for
Sammie Flores, the employee representative on the
negotiating committee, to be off work on that date so
he may attend the meeting.
The next meeting was held in Corpus Christi on July 28.
rather than July 29. This time Flores accompanied
Whittle. The meeting started at 10 o'clock. Having
previously received the Union's written proposal, the
negotiatiors "got right into the discussion of some of the
clauses of contract." The first clause the Company wanted
to discuss was on union dues checkoff. The Company did
not want any part of a checkoff. They said it would cost the
Company and it was not the responsibility of the Company
to collect dues for the Union. There is a right-to-work law
in Texas and the Union had proposed a "pre-negotiated"
clause or offered as an alternative a reopening of the
contract if the law was changed. The Company's attitude
on this was the same as on the checkoff. The Company
would not agree to the grievance procedure the Union
proposed. Nor did the Company want the Union's
recognition clause.
The Company wanted a clause specifying that it
recognized that the Board had certified the Union as the
bargaining representative but did not, apparently, want
wording that would bind the Company at anytime that it
determined that the Union had lost its majority standing.
There were no counterproposals made by the Company.
631
The meeting ended at noon and the Company wanted a 2-
week interim before the next meeting. This was because
Crow had to go to Minnesota on business; and he could not
continue negotiating that afternoon because he had to rush
to Victoria on business.
Whittle proposed that meetings be held close together
or even continuously and the company position was,
"absolutely no." The Company contended that its time
had been taken up on unfair labor practice charges or that
otherwise it might have had more time for negotiations. In
addition to this, the Company was hardly gracious about
Flores' presence at the negotiations claiming that
"equipment was probably tied up in Victoria," because of
the absence of Flores. Apparently it was agreed at this
time to have the next meeting on August 10 at Corpus
Christi. This was over Whittle's objection that the proper
place for the meetings was in Victoria. On August 4,
Whittle wrote Respondent concerning this meeting as
follows:
This letter will confirm our verbal agreement at our
last meeting to meet again for contract negotiations on
Wednesday, August 10, 1966, at 9 a.m . in the offices
of Head & James in Corpus Christi.
I sincerely hope that this coming meeting will be
more meaningful than our other two meetings were,
and that future meetings may be of longer duration,
more frequent scheduling, and in a location more
convenient to the employees involved than has been
the past practice. This is in line with objections that I
made at our last meeting to the pattern which the
Company has insisted on following in these
negotiations.
We also request that arrangements be made for
Sammie Flores to be off from work on the day of this
coming meeting so that he may participate in said
meeting. He is the employee representative on the
negotiating committee.
Apparently some progress was made at the August 10
meeting. They achieved "some degree of understanding"
on the grievance procedure. The Company "wanted
limitations between the various steps and rather than use
the mediation service list to select an arbitrator, they
wanted to use a list formulated by ... a local judge ...."
Before adjourning it was agreed that the next meeting
would be held on August 16, again in Corpus Christi.
About this meeting Whittle wrote Respondent on
August 12 in part as follows:
As previously stipulated, I am agreeing to these
meetings in Corpus Christi under protest and will
continue to insist that the proper place for the
meetings is in Victoria, Texas, for reasons with which
you are acquainted.
At the August 16 meeting Whittle asked the Company if
there was any clause that they could agree on. The
Company's reply was that they could agree on the no-
strike, no-lockout clause. So this clause was marked
"agreed." However, according to Whittle's further
testimony, at a future date Respondent repudiated this
agreement. At this meeting Whittle also proposed to a
hiring hall clause which he claimed was "legal again in
Texas." Crow was concerned about it and Attorney James
told him, "Bruce, this hiring hall clause, we have to
discuss it now. It is a majority subject of bargaining, but
it's like the rest of this contract, we just have to talk about
it, we don't have to agree on it."
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The next meeting was held on August 19 at Corpus
Christi where the Union agreed to meet again under
protest. At this meeting, Attorney James indicated that the
Union's request of June 24 for information had been
discussed and that the Company would "probably"
supply it. In a letter to the Union dated the same day, the
Company stated:
In confirmation of the advice given you at our meeting
this morning, please be advised that the information
requested in your letter dated June 24, 1966 is being
mailed to your office.
On the following day the Company again wrote the
Union supplying substantially the information requested
on June 24 by the Union. t" Thereafter two bargaining
sessions were held in Victoria. Their dates are not
revealed in the record but it would appear that they were
held after service of the complaint on Respondent. In
these sessions agreement was apparently reached on some
contractual provisions.
Conclusions on Refusal To Bargain
On the foregoing evidence, I agree with the allegations
of the complaint that by insisting on meeting in Corpus
Christi rather than in Victoria, from July 6 through
August 19, and by failing from June 30 to August 20 to
produce the payroll data requested by the Union,
Respondent refused to bargain within the meaning of
Section 8(a)(5) of the Act. Whether or not in their
telephone conversation of June 30 Crow told Whittle that
he was going to discuss the Union's request with counsel
(which in effect would be a denial of Whittle's testimony
that he had bluntly indicated that he would not furnish the
information sought by the Union) in my opinion is
immaterial and thus unnecessary to decide. The fact is
that although Respondent met with the Union several
times during this month-and-a-half period after the request
had been made, it did not produce the information sought
and at no time made any attempt to explain its failure to do
so. It is clear that the Union was entitled to this
information as a matter of law and without showing any
specific need for it. N.L.R.B. v. Truitt Mfg. Co., 351 U.S.
149; Curtiss-Wright Corp., Wright Aeronautical Division v.
N.L.R.B., 347 F.2d 61 (C.A. 3). That the Union made only
one request and did not repeat it is hardly justification for
Respondent's failure to comply with its obligation under
the Act.
I also find, as alleged in the complaint (and as shown
below), that by its threats of reprisals against the
employees for supporting the Union or selecting it as their
bargaining agent and by discriminatorily reducing their
hours of work and thus their pay, Respondent engaged in
conduct which further violated Section 8(a)(5) of the Act.
Moreover, on this evidence and considering the record as a
whole, I further find that at no time in its negotiations with
the Union did Respondent bargain in good faith and with
the intention of entering into a collective-bargaining
agreement.
0 Whittle's word
10 In his testimony Whittle claimed that he did not get all the
information he had requested
" Flores and several other witnesses called by the General
Counsel testified about various comments made to them by both
C. Interference, Restraint, and Coercion
On Good Friday, April 8, 1966, Flores had a
conversation with Plant Manager Caldwell at the Victoria
plant about which he testified as follows:
He came and asked me if I knew anything about the
Union, and I told him I didn't, and then he says,
"Well, you are the person that ought to know because
you had a phone call came here to the office and Miss
Porter, the secretary, took it," and I said Yes, sir, that
I had an application at the DuPont plant, and I put the
Company's phone number, which I didn't have none
at the house, and they called me there to see about a
job, but that it was at DuPont, I told him exactly, it
was a union, labor organization.
... he said that the Union requested, that they had 30
percent of the men, and he would like to know which
the 30 percent were, and he wanted to see who they
were because by law he couldn't fire any people that
were on union activities, and he said, "this is a free
country. You all boys can join any organization you all
wish, but I would think twice before I would join the
Union."
A few hours later, according to Flores' undenied and
credited testimony, he had a conversation with Fidel
Medrano in the shop." Medrano "was pretty disgusted
about" his having tried to get Medrano's brother, Ralph, to
sign a union card and told Flores that "if he wasn't on
company grounds, he would fight" Flores. Medrano also
said "that even his little boy that was only 2 years old knew
better than to have anything to do with the [Union]."
Medrano further told him that after the Company got
notice of the R petition "that he was looking for three
witnesses so that he could talk to the boss, Mr. Crow, and
have me fired, since I was the one that had started all this
union activity. After he couldn't find the three witnesses,
he said he was sorry, he didn't mean no harm, just forget
it."
About the end of April, Flores had another conversation
with Caldwell about the Union. According to his testimony
this occurred in the office where he had been called to be
given some information about his income tax deduction.
After Caldwell finished the business at hand, he asked
Flores if he knew anything about the 30 percent of the men
who were involved in union activities and also asked
Flores if he had signed a union card. Flores said that he
had not. Caldwell went on to tell Flores that if the Union
won the election, the hours would be cut from 56 to 60 they
were currently working to 30 or 35 a week.
About this same time according to Flores' undenied and
credited testimony, Medrano asked him to talk to the
employees and try to "get their minds off the Union, that
he would ask Crow to give ... a 25 cent raise and that
nobody would be hurt. And that nobody would no who
started it or anything like that."
In April (or on a week after he had only put in 27 hours),
according to his undenied and credited testimony, Flores
went to Robert Michael and asked him what had happened
Fidel Medrano and Robert Michael Since neither of these two
were called as witnesses and were not shown to have been
unavailable , the General Counsel's testimony stands undenied in
the record and is credited
GULF CONCRETE CO.
to his 40-hour guarantee.12 Michael said, "Ever since you
all started with this b-s-with the Union, Mr. Crow told
me to cut you off to just the hours you worked, that is all
you get paid for."
According to Flores' further testimony (substantially
corroborated by the testimony of Faustino Rodriguez and
Nick Salazar), in late June a couple of weeks after the
election and on a day that Business Representative
Whittle had been in to talk to Caldwell, the latter came
into the shop and addressed himself to Flores and several
of the other employees. He told Flores disgustedly that he
had "no seniority whatsoever." He also said to them, "You
boys brought this up among yourselves. We didn't bring it
up to you all ... there will be a lot of you boys losing your
homes, your automobiles . ." He told them that there
would be no work in town for them and that they would
have to move out of town to get work-that he would "see
to that." He also said that he was going to their homes and
talk to their wives to "see what they thought about this
deal that's going on."13
In his testimony Caldwell admitted the interrogation of
Flores on Good Friday about the Union as well as his
similar interrogation of Flores in late April. But in the
latter conversation he denied making any threats
regarding a decrease in the hours. As for the remarks
attributed to him in late June to the employees, there was
no specific denial of the General Counsel' s witnesses and
there were enough admissions in his own version of what
he said on that occasion to warrant my crediting (which I
do) the foregoing testimony of the General Counsel's
witnesses including that about Caldwell's threat of lower
hours if the Union won the election.
Faustino Rodriguez testified that right after receiving
the representation petition, Caldwell (in the office) asked
him if any of the union men had been in contact with him.
In view of Caldwell's admitted interrogation of other
employees, I credit Rodriguez.
About a week later (in the office again), according to
Rodriguez' undenied and credited testimony, Fidel
Medrano asked Rodriguez if he knew "who was the one
started the union deal." Later on Medrano again asked
who the union instigator was and Rodriguez maintained
that he did not know. Medrano said, "Well, I know you
know," and added, ". . . I can make it hard on you."
"When all that stuff about the Union started," according
to Rosendo Vasquez' undenied and credited testimony,
Fidel Medrano asked him if he "had signed one of those
cards"-if he knew anything about the Union. Vasquez
told him "no."
Nick Salazar also testified without denial that on
Monday following Easter Sunday, Medrano asked him if
he knew anything about the Union. When he protested
that he knew nothing about it Medrano said, "Yes, I know
you know, but you just don't want to tell me." Salazar
again denied any knowledge of the Union and said that
maybe the other employees might be able to tell him
something.
About mid-April, according to Charles Eugene
Johnson's undenied and credited testimony, just after he
had dumped a load at the DuPont plant, Michael came up
and got on the truck to talk about something. Then
Michael asked Johnson if he had "heard any of the drivers
2 When he had been hired , according to Flores' further
undenied and credited testimony , Michael had told him that he
was a lucky man-that the Company guaranteed 40 hours a week
saying "We never work under 40 hours a week "
633
say anything about joining the Union or bringing it in...
Johnson answered in the negative.
About a week or so later in the office late one afternoon
punching in for some extra work, Johnson encountered
Caldwell and Michael talking together. They asked what
he was back on the job for and he explained that Medrano
had called him to haul a few extra loads. The remarks then
turned to the Union. They proceeded to "discuss the
Union in general, initiation fees, how much it cost you ...
your dues and strikes, and how much time you lose fiom
work...." Caldwell was doing most of the talking but
periodically Michael would " butt in" with comments such
as, "Well, if the Union does come in we are going to cut
your vacations out, cut your uniforms out, going to put two
men on a truck, cut ... down to 20-5 hours a week...."
About this conversation, Caldwell testified as follows:
Robert and I were just discussing instances of
unions of a different nature that had recently been
brought out in local newspapers about what was being
asked and what had been accomplished. This was a
conversation between Robert and I. And I made the
comment to him, "I wonder what happened with
reference to vacations or pay and all of these things
that I mentioned in items in the paper." Johnson, to
the best of my knowledge, was only there for a short
while, came in to punch out his card, and I don't recall
that Johnson personally joined in the conversation,
himself. I think he was listening more than anything.
Johnson was not a talking man.
I credit Johnson here.
Alex Martinez, Jr., testified as to certain incidents
credibly and without denial as follows:
1. Soon after he had signed a union card in late March,
Fidel Medrano asked him if he had heard anything about
the Union. Martinez said he did not know anything about
it. Medrano said, "Well, the Company got a letter notifying
them about 30 percent or more, that they were trying to get
the Union in. I would like to find out who it was. I've got a
pretty good idea, but I can't be sure until ... if I could get
two or three witnesses, maybe I could do something about
it, but just me ... I can't do nothing about it."
2. About 2 weeks before the election, Michael asked to
ride with Martinez to the scale house at the Bloomington
plant, telling him he wanted to talk about the Union. About
this conversation, Martinez testified further as follows:
He said, "we know for sure that you are for the
Union."
I said, "You do? How come?"
"Well," he said, "The reason we know is because
the manager of All Star Lumber Company called Mr.
Caldwell and told him about it, that you were in favor
of the Union."
I said, "Is that right?"
He said, "Yeah, Mr. Caldwell," he said, "and Mr.
Crow," he said, "were pretty upset about it." He said
they had had my truck in the shop fixing it up and
they had painted it and everything he said, "Do you
remember that?"
I said, "Yeah." "Well," he said, "Mr. Crow wanted
to sell your truck when we had it over there in Port
Lavaca having it painted and everything like that
but," he said, "we finally convinced him not to sell it
11 According to the testimony of Rodriguez , Caldwell also said
that Crow could make a living in Corpus Christi and could close
the Victoria plant
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because we needed you to haul the material," he said,
"but in case the Union get in here, well, Mr. Crow is
going to sell, is going to have to sell the truck because
it will be costing too much money to run it," he said.
He said, "In other words," he said, "if the Union get
in here," he said, "Well, I guess Mr. Crow is going to
have to sell the truck and you will probably be out of a
job," he said.
And on the conversation, when we got to the plant, I
parked the truck and he stood there with me and told
me, he said, "Before everything, all this union talk,
got in here," he said, "About this union," he said, "we
were supposed to have got a raise," he said, "but
since you all brought up all this union, well, Mr. Crow
decided not to give you all a raise," he said. "But I am
pretty sure," he said, "if you all voted not for the
Union, he said, "I am pretty sure Mr. Crow is going to
give you all a raise. I ain't promising you anything, but
I am pretty sure he will give you a raise." '
So I told him I appreciated him giving me all this,
telling me all this, and I said, "When the election
come, well, I make my decision, what I am going to
do."
He said, "Well, I guess for the best thing for you to
do, Alex, is just vote for the Company." I said, "Well,
I will think about it and when the election day come
up I will see what I will do about it."
In late April, according to the undenied and credited
testimony of Antonio Martinez, Fidel Medrano asked him,
"Tony, if that Union would come into this company ...
which side are you going to be on?" Martinez replied that
he could not tell at that time.
On the basis of the foregoing evidence I find that
Respondent violated Section 8(a)(1) of the Act by (1)
coercively interrogating its employees; to (2) threatening its
employees with reprisals if they joined or voted for the
Union or the Union won the election;", and (3) promising
them benefits to reject the Union. 16
D. Discrimination
The complaint alleges that "on or about April 7, 1966,
and thereafter" Respondent discriminatorily reduced the
hours and pay of Samuel Flores, Joe Garcia, Alex
Martinez, Antonio Martinez, Nick Salazar, and Rosendo
Vasquez. There is no evidence to support a finding that
beginning as of April? the hours of the employees in
question were reduced in comparison to the hours they
had been working before that date." The evidence does
show, however, that for the 11 weeks following the election
on June 15 the named employees averaged considerably
less hours per week than they had been averaging prior to
the election. Thus, for the period covering payrolls ending
January 8 to August 27, 1966, the figures show the
following average hours worked per week by these
employees before the election and after the election:
Before
Election
After
Election
Flores 47.5 24.72
Vasquez 59.5 40.
Salazar 54. 39.5
Garcia 50. 33.
A. Martinez 58. 39.
Antonio
Martinez 48. 30.
From the first part of January (the earliest date that
payroll data was produced) to the end of March 1966
Respondent's employment rolls remained constant
showing the same nine employees working all during this
period. None of these employees during this period of time
worked less than 40 hours in any week. The lowest average
number of hours worked for any 1 week during this period
was 44 and the highest average hours worked for any week
was 63-with the average for all weeks worked during this
period being 55.5.
As indicated, by the first part of April Respondent
began adding transferees from the Port Lavaca plant to
the Victoria payroll. Besides these transferees,
Respondent also added several new hires to the payroll so
that by early July it showed 13 employees on the roster
which compliment remained fairly constant through
August, beyond which no data was produced.
From the first part of April (when Respondent began to
increase its employment compliment) to the date of the
union election (June 15) the average number of hours
worked per man per week for the entire work force as
compared to the period before that time remained
relatively unchanged, dropping from an average of 55.5 to
52 per week. After the election and up to the end of
August, however, the average number of hours per man
per week for the entire work force dropped to 38.
Turning to data on the number of yards of concrete
delivered (or poured) by Respondent from the first part of
March to the week ending August 20 (the only data put in
evidence) we find that for the period of March 5 through
26 (when the number of employees was at its original
figure of nine) the weekly average number of yards
of concrete poured was 732. For the period of June 25 (the
payroll period immediately following the one in which the
election occurred) through August 20 (during the most part
of which the compliment of employees was 13) the average
number of yards poured was 916. Thus we see that after
the election Respondent was employing approximately 45
percent more help than it was employing up to the end of
March but was only pouring about 25 percent more
concrete with the bigger crew.
These figures are particularly interesting in view of
Crow's testimony that with the opening of the Bloomington
plant in February to service the DuPont project the haul to
DuPont was reduced "from a 10 or 12 mile haul, through
11 Caldwell's interrogation of Flores on April 8 and at the end of
April, of Rodriguez right after receipt of the R petition, of Johnson
in mid-April, and Medrano's numerous interrogations
15 Caldwell to Flores at the end of April of a cut in hours if the
Union won the election, to Flores and other employees in late
June of a loss of homes and cars with the statement that "You
brought this on yourselves" (See Standard Electric Co , Inc , 162
NLRB 1045), and his threat to blacklist the employees, Caldwell
and Michael to Johnson in late April that if the Union came in
there would he a cut in vacations, uniforms, and hours, and
Michael to Alex Martinez 2 weeks before the election of loss of his
job if the Union won the election
16 Michael to Alex Martinez 2 weeks before the election of a
wage increase if the employees voted against the Union, and
Medrano to Flores of a raise if he could get the employees' minds
off the Union.
17 Indeed, Joe Garcia was not hired until the first part of April
and Ralph Medrano and Antonio Martinez (who transfered from
the Port Lavaca plant) appear on the payroll for the first time in
the first part of April
GULF CONCRETE CO.
traffic ... to a quarter of a mile haul, with no traffic ..."
which on an ordinary day might cut Respondent's need for
six to eight trucks down to two trucks. This, explained
Crow, would reduce the number of hours worked even
though there was no corresponding reduction in the
amount of concrete hauled. Very true. But it does not
explain the need, then, to have increased the number of
men on the payroll by almost 50 percent.' e
On the foregoing evidence and particularly considering
that Respondent's promises (before the appearance of the
Union) of 40 hours of work or more a week had proven true
and that its subsequent threats to cut the hours and take-
home pay if the employees chose the Union as their
collective-bargaining agent had also come to pass, it is
clear that a strong prime facie case has been made for a
finding that immediately following the election
Respondent embarked on a program of discriminatorily
reducing the hours and pay of those named as
discriminatees. Furthermore, a comparison of the hours
worked after the election by the discriminatees with the
hours worked by several of the newly hired employees
strengthens this prima facie case. Thus, for the period
starting immediately after the election and running
through August 27, we find Flores averaging 26 hours a
week, Antonio Martinez averaging 30, Garcia averaging 32,
and Salazar, Vasquez, and Alex Martinez averaging 38.
For the same period we find newly hired employees
McNary, McCradius, and Cisneros averaging 49, 46, and
43 hours, respectively.
Or, to focus on the picture in a more revealing manner,
for the three payroll periods immediately following the
election we find that Flores worked approximately 12
hours a week, Alex Martinez 29, Vasquez 31, Salazar 32,
Antonio Martinez 25, and Garcia 19. For the same 3-week
period McNary worked an average of approximately 47
hours per week, McCradius 41, and Cisneros 39.
It would take well documented, plausible, and
convincing evidence to override the General Counsel's
prima facie case. In my opinion, Respondent has failed to
produce such evidence.'" As for the discrepancy in the
hours worked by the new employees as compared to the
older employees Respondent's only explanation was "that
it was company policy to get a new man oriented to the use
of all the mechanical features of his truck as quickly as
possible and ... the Company knew of no other way of
doing it than an on-the-job training process."
More specifically, Respondent would defend its actions
as follows: With respect to Flores, in addition to
attempting to hide behind the several days Flores lost
because of Respondent's illegal refusal to meet in Victoria,
Respondent claims that Flores' reduced hours, right after
the election, was caused by the inability of Respondent
"for the better part of three weeks" to get an alternator to
replace a faulty one on Flores' truck. In this era of
automotive economics this claim is almost incredible on its
face. In his testimony Flores claimed that the alternator
was working properly the night he put his truck up prior to
being told the following morning that the alternator was
bad. He also testified that Respondent had taken his
properly functioning alternator and installed it on truck 62
driven by new employee George Cisneros. According to
" As indicated, Respondent gave the Port Lavaca employees
the privilege of transferring to the Victoria operation and this
would explain their being added to the payroll But the addition of
635
Caldwell's admission Business Representative Whittle
had offered to get Respondent a replacement alternator for
Flores' truck within an hour but his offer was not
accepted. Whatever the truth here, I am unable to accept
Caldwell's uncorroborated and unsupported testimony
that the alternator was the real reason for the small
number of hours worked by Flores during this 3-week
period.
With respect to Alex Martinez, Crow testified that
Respondent originally had two trucks to haul materials to
its Port Lavaca and Victoria plants. When they sold the
Port Lavaca plant they found that they had too much
equipment for their material needs (Crow made no
mention of the addition of the Bloomington plant) in
Victoria. Also, apparently simultaneously, it was
discovered that they needed additional material-hauling
capacity in the Corpus Christi plant. Accordingly,
Respondent transferred the larger of its two material
trucks to Corpus Christi and began the practice of
bringing it back to Victoria for a day or two at a time as
needed there.
As indicated, at the time he was hired Michael had told
Alex Martinez that he would be working "about 60 or more
hours a week" because even if it rained he could "haul to
the stockpile, anyway." According to Martinez's further
credited and undenied tesitmony about June 25 his brakes
on his truck locked and the mechanic Juan Pena found
that a bolt holding the springs to the brakeshoe had
broken. So at 2 p.m. Martinez was told to go home. When
he came back to work the next working day he asked Pena
if the truck had been fixed. Pena told him that it had not
because they had been unable to get the part for it.
Martinez suggested that they didn't need the part that all
they had to do was weld the part. For 2 more days
Martinez' truck was laid up. Finally by the end of the week
it was ready and he found that all that had been done was
to weld the part as he had suggested. When he saw this he
told Pena, "Man, it took you all about a week to fix that
thing?" Pena said, "Well, each time I was going to start
working on your truck Robert [Michael] would come and
take me off and take me to do something else...."
According to Martinez' further undenied and credited
testimony, somewhere around July 9, he had been cut off
for the day around 11:30 in the morning because it had
started raining. The rain stopped shortly thereafter and
when Martinez went back at 2 p.m. to get his check he saw
new employee Charles Taylor driving his truck. At this
time Michael told him to report for work the following
morning at 8 o'clock. The next day, when he reported as
directed, Michael told him that because of the rain the day
before they had no concrete to pour and he should come in
the following day. Martinez protested, "Oh, come on,
Robert.... I can haul today. I can haul to the stockpile
today.... I can haul down there today, tomorrow and all
this week." Michael replied, "No, we will leave it to
tomorrow." So Martinez went home and it was the same
thing the following day. He finally worked all day the
following Friday. But then, because Respondent did not
have enough material stockpiled it had to hire a contract
hauler to assist in meeting the day's demands for material.
According to Martinez' further undenied and credited
testimony, it is the Respondent's practice to keep a
others to the payroll is hard to understand in the light of Crow's
testimony
" Crow's promise of documentary support of some of his oral
testimony was not fulfilled
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stockpile of sand and gravel available. On days they are
pouring he dumps material in the ramp going into the
hopper and when they are not pouring he dumps it on the
stockpile. They need the stockpile because, among other
reasons, sometimes they pour so fast that he cannot supply
their needs directly from his truck and thus in between his
loads they are supplied from the stockpile by a front-end
loader.
Other than Crow's testimony as shown above, the only
explanation of Martinez' hours was given by Caldwell as
follows:
Alex was hired in the capacity to haul material, and
when our material is up to what we feel is par, we
can't just continue to haul material and pile it on the
ground, so-called stockpile it, if the stockpiles were
full.
As for the rest of the discriminatees' hours, Caldwell
attributed much lost time of Antonio Martinez and Joe
Garcia to personal and family problems, of Salazar to an
injury and subsequent medical attention,20 and in general
to Respondent's policy of rotating the hours of work among
the employees as much as possible. While these
explanations may be valid enough as far as they go they do
not, in my opinion overcome the basic contrast between
the picture of Respondent's operations before the election
and after it. I am convinced and find that beginning with
the payroll period after the election, Respondent, in
accordance with its previous threats, began to cut down on
the hours of the named discriminatees in retaliation for the
employees having selected the Union as their bargaining
agent.
That Respondent was well aware of Flores' union
support long prior to the election is apparent
notwithstanding Caldwell's attempt to claim he had no
knowledge of the union sympathy of any of the employees
prior to August. And it would also appear from Michael's
comments to Alex Martinez that Respondent was likewise
aware of his union adherence. Whether Respondent had
any idea about the attitudes of the other named
discriminatees21 or indeed whether they in fact were in
sympathy with the Union is immaterial since the
discrimination here (as pointed out by Respondent) was
directed against the employees as a group for having voted
to be represented by the Union.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations
described in section 1, above, have a close, intimate, and
substantial relationship 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 Respondent has engaged in unfair
labor practices, I shall recommed that it cease and desist
-" Although not testifying when it took place, he claimed that
Salazar took off the day of the injury and (on basis of a leading
question) the following day plus a half day on four or five
occasions Later, testifying on his own he reduced the half day
absences to three or four occasions
therefrom and take certain affirmative steps to effectuate
the policies of the Act.
Having found that Respondent unlawfully reduced the
hours and pay of its employees in violation of Section
8(a)(3) and (1) of the Act, I shall recommend that the
Respondent make such employees whole for any loss of
earnings they may have suffered by reason of the unlawful
discrimination against them by payment to each of them of
a sum of money equal to the amount which the employee
would normally have earned as wages from the date of the
discrimination against them, less the employee' s earnings
during said period. Backpay shall be computed in the
manner provided in F. W. Woolworth Company, 90 NLRB
289, with interest as directed by the Board in Isis
Plumbing & Heating Co., 138 NLRB 716.
Having found that Respondent refused to bargain in
violation of the Act, it will be recommended that, upon
request, Respondent bargain collectively with the Union
and if an understanding is reached, such understanding be
embodied in a signed agreement.
As the conduct in discriminatorily reducing the
employees' hours of work and pay goes "to the very heart
of the act," I shall also recommend that Respondent cease
and desist from infringing in any manner upon the rights
guaranteed in Section 7 of the Act. N.L.R.B. v. Entwistle
Mfg. Co., 120 F.2d 532, 536 (C.A. 4).
Upon the basis of the foregoing findings of fact and upon
the entire record, I make the following:
CONCLUSIONS OF LAW
1. Gulf Concrete Company is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. General Drivers, Warehousemen & Helpers Local
Union No. 968, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America, is a labor organization as defined in Section 2(5)
of the Act.
3. All production and maintenance employees
employed by Respondent at its Victoria and Bloomington
area operations, including truckdrivers, deliverymen,
transit mix drivers and batch plant operators, excluding all
other employees, office clerical employees, watchmen,
guards, and supervisors as defined in the Act, constitute
an appropriate unit for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
4. The Union at all material times herein has been, and
now is, the exclusive representative of all employees in the
aforesaid appropriate unit for the purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
5. By failing and refusing to bargain collectively with
the Union as the exclusive representative of the employees
in the aforesaid appropriate unit, the Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(5) of the Act.
6. By discriminatorily reducing the working hours and
pay of its employees, Respondent has engaged in unfair
labor practices in violation of Section 8(a)(3) of the Act.
7. By interfering with, restraining, and coercing its
d1 As will be noted, the six discnmmatees were the only ones,
but for the employee Ralph Medrano , who were on the payroll in
the early stages of the union campaign The failure to have
included Medrano in the reduced hours program of Respondent
could be explained on the basis of nepotism-since it appears that
Medrano was related to Supervisor Fidel Medrano
GULF CONCRETE CO.
employees in the exercise of rights guaranteed in the Act,
Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and pursuant to Section 10(c) of the
Act, I recommend that Gulf Concrete Company, Victoria,
Texas, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning wages,
rates of pay, hours of employment, and other conditions of
employment with General Drivers, Warehousemen &
Helpers Local Union No. 968, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, as the exclusive representative of all
its employees in the following appropriate unit: All
production and maintenance employees employed by
Respondent at its Victoria and Bloomington area
operations, including truckdrivers, deliverymen, transit
mix drivers, and batch plant operators, excluding all other
employees, office clerical employees, watchmen, guards,
and supervisors as defined in the Act.
(b) Discouraging membership in and activity on behalf
of the above-named Union, or any other labor organization
of its employees, by reducing the hours of work and pay of
the employees named in the Appendix, or otherwise
discriminating against them or any of their employees in
regard to their hire or tenure of employment or any term or
condition of employment.
(c) Interrogating employees about their union
membership, activities, or sympathies in a manner
constituting interference, restraint, or coercion within the
meaning of Section 8(a)(1) of the Act.
(d) Threatening employees with blacklisting, loss of
employment, or reduction in hours and pay, or any other
reprisals, if General Drivers, Warehousemen & Helpers
Local Union No. 968, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, or any other labor organization,
should become their collective-bargaining agent.
(e) Promising a wage increase or any other benefits for
rejecting or voting against General Drivers,
Warehousemen & Helpers Local Union No. 968, affiliated
with International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, or any other labor
organization.
(f) In any other manner interfering with, restraining, or
coercing its employees in the excerise of the rights
guaranteed to them in Section 7 of the Act.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Upon request, bargain collectively concerning
wages, rates of pay, hours of employment, and other
conditions of employment with General Drivers,
Warehousemen & Helpers Local Union No. 968, affiliated
with International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, as the exclusive
representative of all employees in the above-described
unit and, if an understanding is reached, embody such
understanding in a signed agreement.
(b) Make Samuel Flores, Joe Garcia, Alex Martinez, Jr.,
637
Antonio Martinez, Nick Salazar, and Rosendo Vasquez
whole for any loss of pay they may have suffered by reason
of Respondent's discrimination against them, together
with interest at the rate of 6 percent per annum, in the
manner set forth in the section of this Decision entitled
"The Remedy."
(c) 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 amount of backpay due
under the terms of this Recommended Order.
(d) Post at its plants at Victoria and Bloomington, Texas,
copies of the attached notice marked "Appendix."22
Copies of said notice, to be furnished by the Regional
Director for Region 23, after being duly signed by the
Respondent's representative, shall be posted by the
Respondent 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 the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(e) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have
been taken to comply herewith.23
IT IS FURTHER RECOMMENDED that unless on or before
20 days from the date of the receipt of this Trial
Examiner's Decision, the Respondent notifies the said
Regional Director in writing, that it will comply with the
above Recommended Order, the National Labor Relations
Board issue an Order requiring it to take such action.
2-1 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 Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
LS 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
Examiner 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
employees that:
WE WILL, upon request, bargain with General
Drivers, Warehousemen & Helpers Local Union
No. 968, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America, as the exclusive representative of all the
employees in the bargaining unit described below
with respect to wages, rates of pay, hours of
employment and other conditions of employment,
and, if an understanding is reached, embody such
understanding in a signed agreement. The bargaining
unit is:
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All production and maintenance employees
employed by Respondent at its Victoria and
Bloomington area operations , including
truckdrivers , deliverymen , transit mix drivers,
and batch plant operators , excluding all other
employees , office clerical employees , watchmen,
guards, and supervisors as defined in the Act.
WE WILL make the employees named below whole
for any loss of pay they may have suffered as a result
of our discrimination against them : Samuel Flores,
Joe Garcia , Alex Martinez , Jr., Antonio Martinez,
Nick Salazar , and Rosendo Vasquez.
WE WILL NOT discourage membership in the above-
named Union , or any other labor organization, by
reducing hours and pay or otherwise discriminating
against our employees in regard to their hire or tenure
of employment or any term or condition of
employment.
WE WILL NOT interrogate our employees about
their union membership , activities , or sympathies in a
manner constituting interference , restraint, or
coercion within the meaning of Section 8 (a)(1) of the
Act.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the excerise of
the rights guaranteed to them in Section 7 of the Act.
All our employees are free to become and remain or to
refrain from becoming or remaining members of the
above-named Union or any other union.
GULF CONCRETE COMPANY
(Employer)
Dated By
(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 713-228-0611.