Hoover, Inc.

National Labor Relations Board - Board Decisions

Feb 6, 1979

240 N.L.R.B. 593 (N.L.R.B. 1979)

HOOVER. INC. 593
Hoover, Inc. and International nllion of Operating
Engineers, Local 660, AFL-CIO and International
Union of Operating Engineers. Local 369, AFL-
CIO and Drivers, Warehousemen, Maintenance
and Allied Workers of America, Union Local No. 1,
Party in Interest. Cases 10 CA 12887. 10 CA
12959, 10-CA 12960. and 10 CA 13031 (formerly
26 'C A-793)
February 6. 1979
DECISION AND ORDER
By CHAIRMAN FANNING ND MEMBERS JNKINS
AND PF.NFI.I
On October 25, 1978, Administrative Law Judge
Thomas E. Bracken issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions 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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings.' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, Hoo-
ver, Inc., Nashville, Tennessee, its officers, agents.
successors, and assigns, shall take the action set forth
in the said recommended Order, as so modified:
'Respondent has excepted to certain credihilils findings m.lde h the
Administrative Law Judge It is the Board's estahlished pohlic no to o.ser-
rule an Administrative Law Judge's resolul.ons with respect to credibilits
unless the clear preponderance of all of the relevant esidence convinces us
that the resolutions are incorrect. Standard Dri WWalI Pr,kl/,,. 1,, 91
NLRB 544 (1950). enfd. 188 F.2d 362 (3d (r. 1951}. We hae ca.refuil
examined the record and find no basis for reversing his finding,.
-In his ('onclusions of l.aw the Administratie L.aw Judge found (haJ
Respondent slolated Sec. 8a)( I ) of the Act ha unlawfull soliclling eirplo!-
ees to cease engaging in actisities on behalf of the Internail,n;al lnio of
Operating Engineers. I.ocal 660,. A C(( His recommended O(rder. hoys-
ever. does not include language thlat Respondent cea.le and desitl from
engaging in such actiis We shall modifs hi, rcnomm endcd Order ,.o i Ii
include such language In addilion. in a.ciord ls ih the .Admniitr.iitie I .i
Judge's conclusions. we shall add language to the Notice to I-mnploec,
Indicating that Respondent will ntl dilscourage membership in I oca.l 66(, h\
promising henefits to those sho refrain fri.m supporting this Ih.or Iorllll/.i-
tionn
240 NLRB No. 83
1. Add to paragraph I(b:
"and soliciting employees to cease engaging n ac-
tivities on behalf of Local 660."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NoTcl(' To EMI'IOYLI'S
Post :[) By ORI)ER 01 1 L
N,\iONIN. L\BOR RIL.AIIONS BOARD
An Agency of the United States Government
Wi will NoT discharge any of you for support-
ing Local 660 of the International Union of Op-
erating Engineers, AFL CIO, or any other
union.
Wi wilL. NOT coercively question any of you
about union support or union activities.
Wi. WIL. NOT threaten you with any form of
reprisal because of your support or activity on
behalf of any labor organization, or because you
exercise your right to communicate with the Na-
tional Labor Relations Board.
WE WILl. NOT engage in surveillance of your
union activities, or give you the impression that
we are engaging in surveillance of your union
activities.
Wt. WILL NOt discourage you from member-
ship in Local 660 or any other labor organiza-
tion. and WE Wl. NOT encourage you to join
Drivers, Warehousemen, Maintenance and Al-
lied Workers of America. Union Local No. I. or
any other labor organization, by solicitation of
your membership, b authorizing Local I meet-
ings on our grounds, by threatening you with
discharge unless you join Local 1, or by promis-
ing you benefits for refraining from activities on
behalf of Local 660.
Wt WILL NOt assist or contribute support to
Local I by assisting it to organize our employ-
ees. or by recognizing it as the collective-bar-
gaining representative of our eniployees unless
or until it has been certified as such representa-
tive by the National Labor Relations Board.
WtI W.I. NOT in any other manner interfere
with, restrain, or coerce you in the exercise of
your rights guaranteed under Section 7 of the
National Labor Relations Act.
WE. Wll. withdraw recognition of Local I as
the collective-bargaining representative of our
employees, and Wt Wll.t NOT apply the collec-
tive-bargaining agreement between ourselves
and Local I to our employees.
Wt Wil.l. offer full reinstatement to Ray R.
Bailey with backpay plus interest thereon.
HOOVER. INC. 593
594 I)E'ISIONS OF NATIONAL. LABOR RELATIONS BOARD
Wtv ,w I1 pay (;radx lenrx 'lidwell and l.arr
(jolden for overtime due them plus interest
thereon.
DECISION
STAI EMENI OF 1.HE CASE
THOMAS E BRAKFtN. Administrative Law Judge: This
case was heard at Scottsboro, Alabama, on November 29
and December 1, 1977,1 pursuant to charges duly filed and
served. 2 An order consolidating cases, complaint, and no-
tice of hearing issued on September 12. The complaints
present numerous questions as to whether the Company,
the Respondent, violated Section 8(a)( 1), (2). and (3) of the
National Labor Relations Act, as amended, with the pri-
mary issues being whether Respondent (a) unlawfully in-
terrogated, threatened, and engaged in surveillance of em-
ployees during the organizing drive of the International
Union of Operating Engineers, Local 660, AFL-CIO (here-
inafter Local 660 or the Union); (b) discriminatorily dis-
charged union supporter Ray R. Bailey, and discriminato-
rily refused to allow union supporter Grady Henry Tidwell
to work at its Henegar mine; and (c) unlawfully recognized
and assisted Local I.3 In its answer duly filed. Respondent
denies all allegations that it committed any unfair labor
practices. Respondent also denies that it is an employer
engaged in commerce within the meaning of tht Act.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and the Company,
I make the following:
FINDINGS OF FACI
I JURISDICIION
The Company is a Tennessee corporation with its head-
quarters and central shop facility in Nashville, Tennessee.
In addition to this Tennessee operation, it also operates
facilities near three towns in Alabama: sand, gravel. and
stone quarries at Hollywood and Woodville and a strip
coal mine at Henegar. Respondent concedes that during
the calendar year preceding the issuance of the complaint,
a representative period, it sold gravel from its Hollywood
All dates are in 1977. unless otherwise stated
2 The charge in Case I0-CA 12887 was filed on June 28. anld ial mcLendd
charge thereon on August 15. The charge in ('ase 10 ('A 12959 v.a hfiled on
June 28. and an amended charge thereon on August 15 the charge ill ('C.
10- ('A 12960 was filed on July 25. The charge in (Case 10 (A 13031 .ia,
filed on Julv 26 as 26 ('A 6793 and was transferred from Region 26 to
Region 10. ('opies of the charge and amended charge in ('ases 1) (
12887 and 12959. copies of the charge in ('ase 10 ('A 12961i. find coplr, o
Case 10 ('A 13031 were served upon the Respondentl alnd the I'l;i i
Interest. Drivers. Warehousemren Maintenance and Allied Wokes .1
America. Union Local No. I (hereinafter I.ical II Par. 3 of the complaint.
which set forth certain commerce data concerning tile ('ollpall. a.
amended on the record at the outset of the hearing hb the (innerdl ( illlsc
Nio appearance was entered al the hearing on behalf l .. locl 1, lno did
local I In any manner participate in Ihe hearill.
quarry, valued in excess of $250,000, to the Tennessee Val-
ley Authority (TVA) for use in the construction of a nu-
clear plant in Scottsboro, Alabama. Respondent also con-
cedes that the gross business of its Tennessee facility was
about the same as its gross in Hollywood. The Henegar
mine sold coal to United States Steel International. 4 valued
in excess of $50.000 per year for the past 12 years, for use
in Alabama.
Respondent contends that it is a nonretail enterprise and
that General Counsel has failed to show that there was a
direct or indirect outflow of goods from the Company in a
sufficient amount to meet the Board's jurisdictional stan-
dards of $50,000 per year. In Siemons Mailing Service, 122
NLRB 81 (1958), the Board defined indirect outflow as
"the sale of goods or services to users meeting any of the
Board's jurisdictional standards except the indirect outflow
or indirect inflow standard." While Respondent admits
that the TVA was identified as a user of Respondent's
gravel in excess of $250,000, it correctly contends that there
was no evidence produced to support General Counsel's
position that the TVA is an agency of the Federal Govern-
ment. or that the TVA "might possibly come within the
NLRB's jurisdictional standards."
As to the first point, judicial notice is taken of the Ten-
nessee Valley Authority Act by which the United States
Congress created a body corporate by the name of the Ten-
nessee Valley Authority, 48 Stat. 58 (May 18, 1933) and as
amended to and including Public Law 94-412 (September
15, 1976; 16 U.S.C. secs. 831-831c, 831d-831h-1, 831i-
831dd). This corporation, described in the above act "as an
instrumentality and agency of the Government of the
United States" was granted broad powers over certain as-
pects of the "Tennessee River drainage basin," one of
which was for it to distribute and sell the surplus power
generated at Muscle Shoals [Alabama] equitably among
the States within transmission distance.
Siemons expressly states (122 NLRB at 85, fn. 12) that
users" shall include an enterprise or organization which is
itself exempted from the Board's jurisdiction, if its opera-
tions are of the magnitude which would justify assertion of
jurisdiction were it nonexempt. Clearly TVA operations
are of such magnitude. In the TVA Power Annual Report
for the fiscal year ending September 30, 1977, of which I
take judicial notice, it is disclosed that the Agency had
sales of electric energy for 1977 in the amount of
$1.919,565.000. These sales were made in seven States con-
stituting the "TVA Power System": Kentucky, Tennessee,
Mississippi, Alabama, Georgia, North Carolina, and Vir-
ginia.
Accordingly, I find that Respondent's operations satisfy
the applicable jurisdictional standards, and that it is an
employer engaged in commerce within the meaning of the
Act, and that it will effectuate the policies of the Act for
the Board to assert jurisdiction herein. St. Francis Pie Shop,
htc., 172 NLRB 89 (1968).
' Rcpillldcii it' sc picsidcint, Jllhn 1. Jeikin'. .originall.l identified thlls
onip1ti'\ i i i llled Slilc Slcl. iand Ill respol nse io a leading questilon front
hiis .llliic\ cI.ligIed I to lI itcd Staltes Steel Inllerilional.al c onpanr
hlch l i, I lotI tIilher deliflrlcd
HOOVER. INC. 595
II LABOR ORGANIZATIONS
International Union of Operating Engineers. Local 660.
AFL-CIO, and International Union of Operating Engi-
neers, Local 369, AFL-CIO, and Drivers. Warehousemen.
Maintenance and Allied Workers of America, Union Local
No. I, are each labor organizations within the meaning of
Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRAC(TICES
A. Background
At the beginning of 1977. Respondent was operating two
quarries and a strip coal mine in northern Alabama. The
Hollywood quarry was in the center. with the Woodville
quarry located about 15 miles to the west thereof, and the
Henegar mine about 10 miles to the east of the Hollywood
quarry. At both Hollywood and Woodville, surface soil.
referred to as overburden, was stripped from the earth by
large front-end loaders operated by various employees. Al-
though Hollywood was basically a hard rock quarry, sand.
gravel, and crushed stone were also hauled from it in
trucks owned by Red Sharp for delivery to TVA projects.
Red Sharp owned the land at the Hollywood plant. From
Woodville, stripped sand and gravel were shipped chiefly
to highway building contractors working in the area. In the
winter months of 1977. Bobby Lee Lamb and Clifton Mal-
colm McCulloch were Respondent's superintendents at
Hollywood, with McCulloch in charge of stripping and
Bobby Lee Lamb in charge of the rock crushing operation,
and generally in charge. Albert Bryant was the superinten-
dent at Henegar, and remained there at all times relevant
hereto.
Although each plant had its own basic work force, there
was some interchange among the employees at Hollywood
and Woodville, depending upon business requirements.
Grady Henry Tidwell. the company mechanic, and his
helper Larry Golden were the exceptions. They were not
assigned to any one plant, but worked at whichever of the
three facilities they were dispatched to. They repaired and
maintained mine and construction machinery of all types:
bulldozers, front-end loaders, cranes. crushers, pumps. and
trucks.
I. Commencement of union interest
In January or February the two mechanics began dis-
cussing their need of a union. Tidwell graphically de-
scribed their working conditions as follows:
Larry and myself would have to go to lenegar.
work through the daytime. come to Bobb? Lamb's
[Hollywood] job every night, have to stay there until
ten, 11:00 o'clock working on equipment that he had
had broke down. and then probably stay there that
night to work water pumps. We had to keep the water
pumps going.
In one extreme cold spell when the plant employees were
allowed to go home. Lamb required Tidwell and Golden to
work under a bulldozer on frozen ground. cleaning out the
belly pans. It was at this point that Tidwell decided that the
employees should get a union in the plant to represent
them. In March. Tidwell and Golden discussed various
unions with several other employees. Howard Stapleton,
Gene Wheeler, J. D. King, and Ray R. Bailey. Bailey had
formerly been a member of Teamsters Local Union 515
based in Chattanooga. Tennessee, and he proposed to Tid-
well that they seek the aid of the Teamsters. Tidwell. who
formerly had been a member of the Operating Engineers.
prevailed upon the other employees, including Bailey, to
"go for the Operating Engineers."
In the middle of March. Tidwell telephoned the office of
Local 660 in Florence. Alabama, and talked to the office
secretary. as he was not able to reach a union official. Be-
cause of the long hours he was working, Tidwell was un-
able to call again. Finally, in early April he turned over to
Howard Smith. a loader operator at Hollywood, the office
and home telephone numbers of the Florence 5 union offi-
cial whom he had tried to contact.
Smith telephoned the union official. Ezell, at his home
on the evening of April 12, and discussed with him the
employees' desire to have the Operating Engineers repre-
sent them. Respondent's Exhibit 2, a South Central Bell
Telephone Company record of long distance telephone
calls made by Smith from April 10 to May 9. lists this call
to Florence as being made at 8:04 p.m. on April 12.
B. The Discharge of Ra' R. Bailey
I. Bailey's employment
Bailey had been hired by Lamb in the spring of 1974 as
a loader operator. 6 In 1975 and 1976 he worked chiefly as
a loader, operating a Caterpillar 988 front-end loader. by
which he loaded trucks in the yard at Hollywood with stan-
dard size crushed stone that came out of a stockpile. Lamb
was his supervisor in this operation. and was also supervis-
or of the four other loader operators working at Holly-
wood. In late January or early February. while still at Hol-
Iywood. Bailey was transferred from the quarry site to a
stripping area on the hill. Here, he and five other employ-
ees were under the supervision of McCulloch, with Bailey
being the sole loader operator.
During the middle of March. Bailey testified that he had
a conversation with one of Respondent's yard truckdrivers,
James Mack Wheeler, at the stripping site water keg. about
unions. As Wheeler credibly testified, "[Hie was just asking
me if I ever heard of a union or ever worked on a union job
and telling me the good points of a union." '
Bailey testified that the only time McCulloch "got on
me" at Hollywood was at the end of one day, when Mc-
Culloch asked him if he thought he had given "Hoover a
day's work today?" Bailey replied that he had and that if
i 1I101cnt is approxlmllelk 91 11Ide~, from ttll\vood.
' Pro I 'orkin fr Repondenril. Ba.ile had Aorked fr Red Sh.iarp a
tIl lkdricl Btilc, Ietlied IL.i hc * ., fired h, Red Sharlp fol refuling Io
,.ro- F .R kl htn at the 1iillii..lIIon iie of lie .innie I ihe Scoltiihoro
,o1lielio c S iharp dt .I l it l anlif. nidd 1Is tc relil~ilx II I e Hll , ." .a LITln-
WlT l .l d ,wlllj l i 1 L. L..lCl II
IhC nipl,x ,1 I,c Rcpolo dcilli. . fcl vlli furtiler uppor t, s i, redlhlhhl
HOOVER. INC.
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McCulloch did not think so. he could cut his pay accord-
ingly. McCulloch testified to the same incident, but claims
that he told Bailey to go home and sleep on the question
and that the following day. Bailey came back and admitted
that he had not.
On April 13 Lamb transferred Bailey to Woodville, al-
though the record is silent as to the superintendent's rea-
son. M cCullough also came to Woodville, where he was
the sole superintendent on the job. At Woodville, Bailey
continued to operate a 988 loader, only here he was not
stripping overburden but was loading rock "out of the
hole" into trucks that would transport the rock to the
crusher. He was also the only loader at Woodville.
Bailey testified that on the Woodville job he received a
warning from McCulloch for getting a drink of water from
a water keg that the truckdrivers used, and that this was the
first time he had ever received such a warning. Bailey de-
nied that he was holding up any trucks by getting a drink.
According to McCullough, the incident happened at Hol-
lywood. He testified that Bailey "would stop and get a
drink of water about every hour. No, lesser than that. He
wouldn't just stop and get a drink, he'd stand there at the
barrel for 10 or 15 minutes." McCulloch also testified that
he saw Bailey at the water barrel when there were trucks
waiting to be loaded. I credit Bailey's version that the inci-
dent occurred at Woodville, not Hollywood, as Bailey testi-
fied that at Hollywood he had no need to get off his loader
to walk to the water barrel, as he had "Lamb's water barrel
in my loader." This was not denied by Lamb or anyone
else. McCulloch also testified that when Bailey wanted to.
he could keep up in operating his loader, but implied that
he loafed on the job. However. McCulloch admitted, "You
couldn't beat him when he wanted to work."
Tidwell, who had operated heavy equipment for 8 years
prior to doing mechanic's work, testified that he had ob-
served loader operators load at all three of Respondent's
yards, and that Bailey was a good operator. He rated him
second best of the Company's five loaders, with Howard
Stapleton being the best and Howard Smith being the third
best. Smith conceded that Bailey was a better operator
than he was.
2. The events of May 13
Bailey testified that on Friday, May 13. he arrived at
work 5 minutes late. The operation commenced at 6 a.m. 9
McCulloch was already there and told Bailey that he did
not need him any more. Bailey protested that his pickup
truck had a tire that was going flat, which McCulloch
could see, but McCulloch responded that Bailey "was sup-
posed to have your damn ass in the hole at 6 a.m." Mc-
Culloch then told Bailey, "My boy is going to beat you
loading anyway." ' When Bailey asked if he was being
Ba.ile, te'stfied that I.amb never gt {i hion for not loa;dinu the tuck
properl Ilo;erer. he readily admitted that he hald hectilktt "right slIrI
the first ear on the ob. for which lamb somlletiles got ) ilIl 1in I lie ul
time Baidle could reca ll Ihat .amb "gotl ,n te" il the performlllle ( i hl
duties was one time when his oader's brakes were locking. ciusiig thc
loader to throw the rear end up in the aur
Ba;iles also admitted that he was 15 rilnutcs late ol a Sluidall. IhCe lisi
ior sectnd week he worked ait Wo.d ille
fired. McCulloch replied "I'm not firing you, I know what
you're going to do. You're going to get the Labor Board up
here on us." Bailey then asked if he was being laid off, and
was vehemently told with much profanity that he was not
being laid off.' McCulloch then challenged Bailey several
times to "tangle" with him.
Bailey then proceeded to Hollywood and informed
Lamb that McCulloch had put his boy, Hippie, on Bailey's
loader, and that he would not tell Bailey why he (Bailey)
was fired. Lamb stated, "I know why he done it because I
told him to do it." 12 When Lamb would give Bailey no
reason for his discharge, Bailey left.
On the following Monday morning, Bailey went to
Woodville to try to talk to McCulloch. McCulloch in-
formed him that he might as well leave, as he did not need
him any more. When Bailey asked if he was being fired,
McCulloch responded. "I'm not firing you. If I fire you,
you can't draw your unemployment." Bailey then asked for
a layoff slip. and upon McCulloch's refusal to give him
one. he left.
3. Respondent's knowledge of Bailey's union background
In the latter part of March. mechanic Tidwell went into
the office at the Hollywood quarry, as he did several times
a day. this time to order some parts. While on the tele-
phone, sitting about 10 feet from Lamb and Red Sharp, he
heard them talking about Bailey. Tidwell testified that after
completing his call, he heard "Red Sharp tell Bobby that
Raymond Bailey drove a truck under the Teamsters when
they were working in a certain job, and that he ought to
watch him, that he would start a union." Lamb replied that
he would not have Bailey "starting no union" there.
Golden was also present, as was Bill Brannon, a scale oper-
ator. Brannon did not testify. Tidwell testified that Sharp.
the owner of the land at Hollywood, was discussing Re-
spondent's request for him to buy 100 feet more of adja-
cent land, so that its quarry could be extended to the hard
rock therein, as Respondent's quarry was down to 110 feet
in depth, and its rock was getting soft.
Tidwell further testified that about a week before Bailey
was transferred to Woodville,.3 a severe storm came up at
Hollywood, with lightening striking a tree. Tidwell came
into the grease house to get out of the storm, and Massey,
Golden, and Lamb were present. Massey', a dragline opera-
tor, remarked that he had been operating a loader because
"Wormy" 14 was off. At this time Lamb spoke up and said
"that Bailey and Howard Smith were the two main ones
that got this union started," that Wormy was gone, and
that he would get rid of Bailey. Golden corroborated
Tidwell's testimony as to both incidents. Although Golden
Superitllieldeit \Ic( ullochl , was referred t at all tilnes b the witnesses
a i "11 as." .i nickli llae whlCh II is powerful physique ampl hiore out. Hils
s,-1 A;is referred tou as Hippie Nlc(ulloch. he record is nt clear as Io , hat
lippic ', Ie ulair duties ere, bhu his faither testified that Hippie could per-
ilte .uai cquiplimenlt used hb the (n Olllpan thlpple did not testifs.
1 hlee ' ,i ine issuc ltha all 11 ulnelsc agreed onl. and thlat was that
l( tlllu chl "cuased" all hlie tilll. ad cursed ecr,,bods Bailey testified that
M.t( lhtich cursed hllll more than he cursed other eniploNees.
hi[ IttCIeieltl t Awta deied h a allib
[Boile' wus tri'tisfetired April 131 .i set forth ahoe.
H I l.ild SiIth ;ts referred to h ll witnesses a.s "Worm "
HOOVER. INC. 597
first said that the two incidents occurred around the first of
May, he fixed Red Sharp's warning about Bailey starting a
union as occurring a couple of weeks before Bailey was
fired. He also fixed the date of Lamb's threat, made in the
grease house. to get rid of Bailey. as happening 3 or 4 days
before Bailey was transferred to Woodville, which places
both incidents in early April or late March.
Lamb testified that he could not recall any conversations
between himself and Red Sharp concerning Bailey and an)
union activities, or any conversations with Sharp about
Bailey.
McCulloch initially testified that the first time he heard
anything about a union was in July. He then testified that
an employee, Pappy Young, told him that some of the em-
ployees were trying to get a union in the company "before
I went to Woodville." When asked when he went to Wood-
ville, he guessed that it was in Julyv.5 Later, when shown
his signed statement given to a Board agent on July 19,
McCulloch admitted that he had heard some employees at
Hollywood talking about "trying to get a union." in "about
March." He did not identify the employees. but testified
that they were on the hill when he overheard their conver-
sations, and did further admit that Bailey was one of the
six employees working for him on the hill at that time.
4. Credibility
Bailey's. Tidwell's, and Golden's testimony conflicted at
numerous points with McCulloch's and Lamb's testimony.
I have credited Bailey, Tidwell. and Golden over McCul-
loch and Lamb. and have credited the two superintendents'
testimony only as far as it is corroborated elsewhere in the
record. McCulloch was so vague, contradictory, and eva-
sive in answering questions put to him that I am convinced
he was trying to tailor his testimony to fit Respondent's
case. An example of this is found in his relating the date on
which he found out about union activity. He first stated
that it was in July. and that he went to work at Woodville
in July. Later, he testified that his conversation with em-
ployee Pappy Young about employees' union activity was
in the last of April or first of June. When shown his pre-
hearing statements, very near to the end of his testimony,
he finally admitted that he heard employees talking about
union activity in March. The first dates given by McCul-
loch were obviously intended to preclude his having knowl-
edge of union activity prior to the transfer of Bailey to
Woodville in the middle of April.
Bobby Lee Lamb. who was called by General Counsel to
testify under Rule 611(c). testified reluctantly and without
conviction, often in an evasive and implausible manner.
An example is his testimony on the kind of worker Bailey
was. Lamb concedes that Bailey was a good loader, but
implies that he was a loafer when not watched. Lamb testi-
fied that when Bailey was under his supervision, he worked
him down on the field loading dump trucks because it was
where "I could see him." as, "If he got hid from me he'd
stop everything." Lamb never described where Bailey
could hide, much less where he could hide his Caterpillar
I Ihc record i, e..lar that hc vCle lt wll pild- l v)Cn Bhi V.\ .t nciI
over
988 loader, which was 16 feet long, 14 feet high and 9 feet
wide, powered by a diesel engine, with a bucket on its front
end. 8 by 8 by 12 feet, that held 9 to 10 tons of rock. Both
L.amb and McCulloch testified that when Lamb was super-
vising the crusher area, McCulloch was supervising the em-
ployees in the stripping area, and certainly no employee
was hiding when McCulloch was supervising. The record
does not disclose that Lamb or any other company official
ever warned Bailey about hiding out. These two completely
dedicated company officials. Lamb and McCulloch, work-
ing their customary 10 to 12 hour days. 6 days a week,
constantly pushing their employees for increased produc-
tion to keep up with TVA's insatiable demand for crushed
stone, were simply not going to allow Bailey or any other
employee to hide from them and stop working.
Another example of the inherent implausibility of
Lamb's testimony was his testimony concerning Bailey's
not arriving at work on time.
Q. (Mr. Hollabaugh) Did you ever have occasions
when Ray Bailey would not be at work on time?
A. That's right, plenty of times.
Q. Did you ever mention this to him?
A. That's right.
Q. Describe how it could arise?
A. Well, I told him I was going to lay him off. He'd
straighten up for a week or two, and then late again
everT morning.
Certainly, Lamb was not going to retain an employee who
was late every morning, yet the record is clear that Lamb
did retain Bailey at Hollywood for several years, and that
then he worked at Hollywood for McCulloch, stripping for
several months.
Bailey, like all of the testifying employees who worked at
the quarries, whether rank-and-file or supervisors. was not
well educated or sophisticated. But he was sincere, direct.
and forthright. and I credit his testimony.
Tidwell, the mechanic, was a particularly impressive wit-
ness, and I have credited his testimony. Powerful of build.
as were McCulloch and Lamb. he testified rapidly and
convincingly without equivocation or evasion. His helper
Golden was not the strong figure that Tidwell was, but he
was a sincere, responsive witness. Also, both mechanics
testified against Respondent while still in its employ, fur-
ther supporting their credibility. I have also credited the
balance of the witnesses who testified for the General
Counsel over McCulloch and Lamb, most of whom were
still in the employ of the Respondent.
5. Respondent's basis for discharging Bailey
On May 13, the day Bailey was discharged, he was not
given any kind of written notice stating the reason for the
di -'harge. nor was he given any clear reason for why he
was being discharged. When McCulloch was asked on di-
rect examination what happened on that day. he replied:
The day he left. Hie come in that morning, it was
about. I'd say it was close to fifteen minutes late. That
was after we started working. Now, I'd been forty-five
minutes he said he had a flat tire. I had just told him.
HOOVER. INC.
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
well, the day before that he sent us a big rock.'6 And
we had done shot and shot, and I just told him I didn't
need him no more. I just as soon run the loader my-
self.
McCulloch further testified that Bailey then "tried to
start a confusion, said I fired him." whereas the superinten-
dent maintained that he had not fired him, "I just told him
I didn't need him, I done got fed up with his work. and I
just didn't need him."
Whereas McCulloch claimed that Bailey loaded the big
rock on the day before his discharge, which would be May
12, Bailey's testimony placed the big rock incident prior to
April 13. and at Hollywood, as Bailey testified that the
crusher was shut down when he loaded at Hollywood. He
clearly recalled the flat rock incident as happening about
10 minutes prior to quitting time, aid readily admitted that
it jammed the crusher and shut the plant down. However,
the next morning when he reported for work the crusher
was clear.
I credit Bailey's testimony that the incident happened at
Hollywood and therefore could not have happened at
Woodville on the day before he was terminated, May 12.
McCulloch testified that "after Bailey got off the load-
er," the plant went "a day or two before we had a big
rock." The loader on this incident was Ronnie Pendergras.
McCulloch also admitted that his son Hippie had loaded a
big rock that had jammed the crusher. Tidwell testified
vividly as to the big rock Hippie loaded that jammed the
crusher, fixing the date at about 3 days after Bailey was
terminated. Tidwell was present when employees dynamit-
ed Hippie's rock 10 times over a 2-1/2-hour period before
they succeeded in getting it out. The repeated blasting blew
bolts out of the crusher and Tidwell had to replace them.
Hippie was not discharged for sending the big rock to the
crusher, and the record does not indicate that Pendergras
was.
6. Conclusion
It is well established that an employer may terminate an
employee for any reason, good, bad, or indifferent, without
running afoul of the Act, provided he is not motivated by
unlawful considerations. The existence of justifiable
grounds for dismissal is no defense if the motivation for the
discharge was in part because of the employee's participa-
tion in protected activities. With these established princi-
ples in mind, and recognizing that the burden of proof to
show the illegality of the discharge rests with the General
Counsel, we now analyze Bailey's discharge.
In support of the General Counsel's case, we have a
long-service, competent loader operator, transferred from a
very busy quarry to a far less busy operation, and then
' When a loader strippilg overhurdet. it' hucket pick, up ol. l.rcl
stones. and rocks and llad,, thelml into a dump tuck. I lie ock hi.', pIc\ I1)tl
Ix been dinamlted I he dump truck takes its lo ol-l all het .li d 1I lillilp II
If too large a rock i dumped into the crulsher. it dil lain the cruishctl id
cause the o>pera;tion to he lhui dovun ullllil [he hg rock is hlastcd oit lhIt
loader operator is expected to in ate lmltt hit rocks : il lmulh Li, p, lhcl
tlherc ui, s ample tesiioli thlt all operators it ries, li( hi icks 1t (lie
crusher. as the' did neot se themll under lie iicillcn icotks tdl l1ill hrlikels
picked up.
fired, several weeks after Respondent learned that he was
formerly a member of the Teamsters Union, and also
learned that a union was trying to organize its employees.
The record is clear that Bailey was a good loader operator,
the second best of the five loaders, and none of the other
loader operators was discharged by Respondent.
Respondent in its brief states that "neither Lamb nor
McCulloch was, at any time prior to the time at which
Bailey left the Company's employment aware of any orga-
nizing activities by Local 660." It is possible that McCul-
loch did not know that the specific union that was being
sought by the employees was Local 660, but McCulloch
admitted, however reluctantly, that in March he overheard
employees talking about getting a union in the plant. Also,
an employee, Pappy Young, had informed him that some
employees were trying to secure a union to represent them.
It is well established that the employer need not know the
name of the exact union trying to organize its employees in
order for the employer to have union knowledge.
Respondent also states in its brief that Bailey was not a
particularly active or vocal adherent. It is true that Tidwell
and Smith were more active than Bailey, but the record
makes it clear that Bailey was the initial target of Respon-
dent and was looked upon as the Union's Trojan horse,
who must be removed. When Lamb was informed in
March by Red Sharp that Bailey had been a member of the
Teamsters Union when he drove a truck for Sharp, and
heard Sharp predict that Bailey would start a union at Re-
spondent's plant, Lamb's response was strong and to the
point that he would not have Bailey "starting no Union" at
Hollywood. Several days later, Lamb stated categorically
in the grease trailer that he would get rid of Bailey. Re-
spondent therefore had ample knowledge that Bailey was a
union supporter and was a potential threat to the Com-
pany's nonunion status.
Without any reason being furnished by Respondent,
Bailey was transferred to Woodville, along with the bully-
ing McCulloch. Several weeks thereafter, upon arriving 5
to 15 minutes after 6 a.m. with an obviously flat tire, he
was told by McCulloch that he did not need him anymore.
McCulloch gave no reason why he was being discharged;
in fact, McCulloch denied vehemently that he was firing
him and refused to give him a layoff slip.
Respondent denies that the discharge was an unfair la-
bor practice and argues that the discharge was attributable
to the fact that Bailey had been for some time "a rather
undependable employee, and circumstances had developed
to the point where the Company was being forced, on a
daily basis to make personnel adjustments at its Woodville
project in order to accommodate Bailey's problems."
The record does not show at all that the Company had
to make personnel adjustments at Woodville because of, or
to accommodate. Bailey. Bailey was a few minutes late one
Saturday. and on the day he was discharged. It must be
borne in mind that Respondent did not operate a precise
8-hour-a-day factory. Ten- and 12-hour days were the av-
erage, worked in the open air, amidst the dust and dirt of
the quarry and the din of dynamiting, crushing machinery.
and heavy construction equipment. Lamb had not dis-
charged Bailey in his first ear of employment when he was
admittedly late a number of times. McCulloch himself tes-
10OOVER, INC. 599
tified that Bailey would "never he right what you call late."
Although McCulloch mistakenly contended that the wa-
ter keg incident happened at Hollywood, whereas it hap-
pened at Woodville. his testimony shows the weakness of
Respondent's position. McCulloch obviously was looking
for occasions at Woodville to chastise Bailey so as to justi-
fy firing him, so. finding him one day at the water keg, he
warned him about getting a drink of water, something he
had not done before. Then. in trying to justify his firing
Bailey. he testified that Bailey sent him a big rock on the
day before he was discharged. whereas actually this inci-
dent occurred prior to April 13 at Hollywood. The evi-
dence is clear that it was part of the operation of quarries
for loaders to frequently load a big rock that later stopped
the crusher. McCulloch's son. Hippie. loaded a big rock 3
days after Bailey was discharged, buit Hippie was not disci-
plined or discharged.
McCulloch was unable to furnish Bailey with any reason
why he was being discharged on May 13. and Respondent
has advanced no credible reason. Yet. suddenly and with-
out warning, the known union activist is fired. Hence it is
clear that Respondent's real motive in discharging Bailey
was to utilize the discharge to stamp out employee affec-
tion for the Union. The fact that the Employer chose not to
discipline Bailey for any of his alleged misdeeds for the
previous 3 years is a guidepost that the Employer did not
consider his lateness, or his getting a drink of water, or
sending a big rock to the crusher. as calling for any disci-
pline, much less discharge.
Based on all the evidence of record, including the an-
tiunion animus of the Respondent, which is set forth in
much greater detail infra, I find that Ray Bailey's discharge
on May 13 was not motivated in substantial measure for
discriminatory reasons because of his union activities, and
that the reasons asserted by Respondent for the discharge
were pretextual. Consequently, his termination was unlaw-
ful, and by this action Respondent violated Section 8(a)(3)
and () of the Act. Lloyd Wood Coal Co., Inc., 230 NLRB
234 (1977); N.L.R.B. v. Lexington Chair Companyr. 361 F.2d
283 (4th Cir. 1966).
C. The Alleged 8(a)(2) and (I) Violations
1. Status of company relative to Section 8(f)
General Counsel alleges in the complaint that the Re-
spondent unlawfully recognized Local I and executed a
collective-bargaining agreement with it. at a time when Lo-
cal I had not been designated by a majority of its employ-
ees as their collective-bargaining agent, and also did so
with knowledge of an organizing campaign being conduct-
ed by Local 660 among its employees.
Respondent argues in its brief that its contract with Lo-
cal I is completely valid, and that its validity can be sus-
tained under either Section 8(f) or Section 9 of the Act.
Respondent argues that it is "connected" with the con-
struction industry, allowing it to enter into prehire agree-
ments under Section 8(f). Respondent further argues that
General Counsel has failed to prove that it is not engaged
in the construction industry.
Section 8(f). added to the Act in 1959. provides that an
employer "engaged primarily in the building and construc-
tion industry" may make an agreement with a union cover-
ing employees who will be engaged in that industry, even
though the majority status of the union has not been estab-
lished in accordance with Section 9.
I find that the evidence is clear that Respondent is not
engaged in the construction industry at Henegar. Wood-
ville. Hollywood or Nashville. and that the General Coun-
sel has so proven. Henegar is a strip coal mine, and obvi-
ously not in the construction industry. Woodville and
Hollywood are sand, gravel, and stone quarries that pro-
duce derivative mineral products which ultimately go into
highway construction, performed by outside contractors at
the jobsite with their own employees. Red Sharp's trucks
haul the sand, gravel, and crushed stone from the Holly-
wood and Woodville quarries, with the trucks being driven
by Red Sharp's employees. None of Respondent's employ-
ees worked at the jobsites where the material was dumped
by Sharp's truckdrivers.
Respondent's claim that it is "connected" with the con-
struction industry was also asserted by a respondent com-
pany that manufactured precast concrete building prod-
ucts at one of its plants. Forest Cit)v/Dillon-Tecon Pacific,
209 NLRB 867 (19 74 ).'7 The Administrative Law Judge,
affirmed by the Board, in finding that the manufacturer of
the precast building products was not engaged in the con-
struction industry because of its connection with the con-
struction industry stated: "This is also true of the many
operations necessary to building and construction, includ-
ing manufacturers of pipe and plumbing. electrical equip-
ment. steel, lumber, etc., and even quarries, timber and
forest operations, etc." I take judicial notice that in the
construction of highways and bridges. timber is used in
large amounts for forms. If Respondent's argument is to
hold weight, then the timber companies that cut down the
trees back in the forest and the sawmill operators who con-
vert the trees into boards would also be engaged primarily
in the construction industry', and this clearly is not so. Re-
spondent cites Zidell Explorations, Inc., 175 NLRB 887
(1969). in support of its argument. However, this case is
inapposite. In Zidell, although the respondent company's
primary field of activity was shipbuilding. the Board found
that in the facts of that case, Zidell employees were in an
entirely different operation, the dismantling of a ballistic
missile complex. which was itself construction work. I
therefore find that Respondent was not engaged in the
construction industry, in the sense used in Section 8(f). at
its operations in Henegar. Hollywood. Woodville. and
Nashville and that Section 8(f) is not applicable herein.
N.L.R.B. v. W. L. Rives Company, 328 F.2d 464 (5th Cir.
1964).
2. Recognition and execution of the collective-bargaining
agreement under Section 9
General Counsel sets forth in the complaint various alle-
gations that Respondent violated Section 8(a)(2) and (I) of
'At ,Ilhcr Iocat,,l of Il, s ctiplob, r. it .ia, dead.rk cn a.icd i the ,l-
xIrtml.lnil .f hblld no, , ad .it Ihoc ite' .1~I adnittedlx p ar.irk cna.lcd
11i .1Hx[IH .ll}I ,t ,11d t dl ,1,I1i'1 totli effcturi', 8(ft itrc rllctll,
FIOOVER. INC.
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Act.'8 Testimony given by Jenkins, Respondent's man-
ager of labor relations as well as its vice president, states
that on May 12 he executed a 13-page collective-bargain-
ing agreement on behalf of Respondent. and that James R.
Craighead i9 executed it on behalf of Local 1. (G.C. Exh.
3.)
When asked by Respondent's counsel over what period
of time he had been "discussing the contract" with Craig-
head, Jenkins replied "about a year and a half, two years."
The vice president admitted that Local I did not represent
the employees of Respondent prior to the negotiations, but
that after the Company signed the agreement, it agreed to
recognize Local I as the exclusive collective-bargaining
representative of its employees. 20 Jenkins accepted
Craighead's word that Local I had "the majority of the
people" signed up on authorization cards, but did not re-
quire Craighead to prove this in any manner. Nor does the
record indicate that he asked Craighead the names of the
specific plant locations of Respondent's operations for
which he claimed to have signed authorization cards.
Jenkins testified that he justified this recognition of Lo-
cal I because he did not doubt Craighead's word, as Re-
spondent had had a contract with Local I in the past. Fur-
ther testimony by the vice president showed that
Respondent, or one of the companies owned by Respon-
dent's president, Hot Mix Inc., had at some vague prior
time, he thought in 1972, had a contract with Local I on a
job in Kentucky. However, that Kentucky job had been
completed in about 1975, and Hot Mix Inc. had been sold
in the fall of 1976. Jenkins testified that when he negotiated
the contract with Local I he had no knowledge that any
other union was "involved" with Respondent's employ-
ees. 2 1
Although the duration clause of the collective-bargain-
ing agreement reads. "This agreement shall be in full force
and effect from May 12, 1977," Jenkins testified that it was
not implemented on May 12, as he had asked Craighead
for a 30-day delay, and that it actually became effective
June 12. When Jenkins was asked why he needed this 30-
day delay, he replied, "We have regular job classifications
and rates and stuff like that which needed to be straight-
ened out." 22 On June 12 the pay raises were put into effect.
and various job titles were changed. Wheeler, who had
been working at Hollywood as a switch house operator
prior to June 12, testified that he discovered from his first
check stub after that date that his classification was now
IR Sec. 8(a)12) sets forth in relevant part that it is an unfair labor prallice
for an employer "to dominate or interfere with the formaltion or Iadn inislra-
lion of any labor organization or contribute financial or other suppore o it
1, Craighead did not testify or appear at the he;ring.
2The agreement read that it covered Responident's enlphiccx "in I el-
nessee. Kentucky. Alabama. (ieorgia. and or :an other of the fortl-clihl
(48) contiguous states in the I:niled States of Amcrica:." and ljob clah,,fia-
tions contained therein cofvered essentiall, equipment operators. niecliillc.
and truckdrivers.
21 I do not credit Jenkins' claim of lno kno ledge. Lrs Supc rililiend l M1t-
Culloch admitted that he learned of unioun acilSit in March. .11id 11
Culloch's knowledge is imputable to Vice President anid lanazlger of Il.h
Relations Jenkins.
22 Art. XIV, Wages. of (i.(. xh 3. plainls sol forth thaei lhcTe. ioulld h.
a 30-day delay in the effectuation of the sag[e cliaue. a1 it read litit I flee-
tive for pay period beginning June 12. 1977." he oih cl.illlc.lilll ild
rates would go into efect.
that of a plant operator, and that his wage rate had gone
from $3.15 an hour to $3.68 an hour.23 His duties were the
same as before. Although Respondent denied in its answer
to the complaint that it granted pay raises effective June
12, Jenkins admitted that the Company had placed the pay
scale set forth in the agreement in effect as set forth
therein.
3. Other acts of assistance
(a) Paragraph 16 of the complaint alleges that Respon-
dent. by its Superintendent McCulloch, on or about June
16, at Woodville, solicited its employees to sign authoriza-
tion cards on behalf of Local I.
McCulloch, on being cross-examined, provided the testi-
mony to prove this allegation. The superintendent admit-
ted that he had received "about a dozen" union cards from
Craighead. and that he was to see that these cards were
given to the men. He also admitted that he talked to Glenn
Willis and Ronnie Pendergras, a loader operator, about
signing cards for Local 1. McCulloch also admitted that he
made the statement that if there was going to be any union
at Woodville, it was going to be Local . In fact, McCul-
loch bet Joe Rector $10 that the union coming in would be
Local 1.
(b) The authorization of Local I meetings at Henegar
and Nashville: Vice President Jenkins admitted that at
some unspecified time following his execution of the Local
I agreement, Craighead asked Jenkins if he could meet
with Respondent's employees at the Henegar mine, as he
wanted to familiarize the employees with the contract. Jen-
kins authorized Craighead to meet with the employees at
Henegar on June 20 and also authorized him to meet with
Respondent's Nashville employees at its Nashville shop.
Craighead did thereafter meet with some of Respon-
dent's employees at Henegar. Tidwell testified that he and
his helper Golden were called from one job to go to Hene-
gar. When they arrived at the mine at about 1:30 p.m., he
asked Superintendent Bryant what piece of equipment they
were to work on and Bryant pointed it out. Tidwell saw a
"wad" of men, something like 8 or 10. standing around a
strange man "dressed in a suit." When Tidwell and Golden
approached the group, the stranger was reading a contract
to the assembled workers. Jenkins and Bryant were stand-
ing together on a washer about 30 feet off the ground, and
about 75 feet from the assembled employees.
The stranger was reading a document to the men, and
when Tidwell interrupted to ask what it was, Craighead
introduced himself as a representative of Local I and told
Tidwell not to interrupt, as when he completed the reading,
he would read it all over again. When Craighead had fin-
ished reading the document, he handed out Local I "Ap-
plication for Membership" forms, giving one to Tidwell, as
well as a copy of the contract. Upon Craighead's request-
ing Tidwell to sign a card, Tidwell refused. Craighead re-
plied that it made no difference, as he was already in the
Union. as Craighead and Jenkins had already gotten to-
gether and signed the contract. Tidwell advised Craighead
I e Alc rite for .i plantl operator in ( ( . [sh 3 proiided that plant
,pcral.i i i (;riide 2 ver 1e t reelie $3.68 an hour. and those in G;rade I.
$3 15 11'' lout
HOOVER. IN(. 601
that he had better not take dues out of his check eciause
he would he violating idwell's "constitutional rights."' 24
Tidwell then informed him that the employees wanted to
be represented by the Operating Engineers in Florence.
Golden estimated that the meeting lasted 30 to 40 minutes
and corroborated Tidwell's testimony, except that he esti-
mated Jenkins was 200 feet away from the assembled em-
ployees. The employees were paid for the time spent at the
meeting.
Craighead also held a similar meeting at the Nashville
shop, which is actually located in Donelson. a suburb of
Nashville. Frank Patten. a welder employed by Respon-
dent since 1966, credibly testified as to the meeting. Patten
was working in the shop when the employees were ushered
upstairs to a small shop office. About 12 to 15 mechanics.
helpers, and truckdrivers were present. Craighead conduct-
ed the meeting, advised the assembled emploxees that he
represented Local I, and then proceeded to read the con-
tract. Patten asked Craighead, "How was it that we had
never heard of it before then and walk in on a Monday
morning, and you say we're in a union." Toward the end of
the meeting, half of the men present got up and left. The
meeting lasted 20 to 30 minutes, during working hours, and
the employees were paid for the time. Patten did not know
of any union at Nashville since he started in 1966. and had
never heard of Local I.
Wayne Blanton, a mechanic in the same shop. corrobo-
rated Patten's uncontradicted testimony. The shop superin-
tendent, Buddy Jackson. had telephoned him at his home
on Saturday and told him the "union man" would be at the
shop on Monday. When Blanton arrived, Jackson and Vice
President Jenkins were talking and Jackson instructed
Blanton to go upstairs. Blanton was the first employee to
get up and leave, as he saw Craighead "was reading a
bunch of bull." He also testified without contradiction that
none of the employees he talked to that morning had ever
heard of Local I before that meeting, that they were upset
and "said it was pretty dirty to pull on them."
(c) Assistance in Local l's securing a steward: Superin-
tendent Lamb testified that he recalled Craighead coming
onto the Hollywood jobsite in the middle or late June. He
knew that he was an official of Local 1. Craighead in-
formed Lamb that he wanted somebody to serve as the
union steward, and asked Lamb for his suggestion. Lamb
admitted that he suggested Joe Masse). as he was "the
oldest man I had," was honest, and "He don't ever miss
none." Lamb then went and got Massey and brought him
to the office, where Craighead and Massey talked about
Local I. Massey agreed to serve as the steward and signed
a Local I card in Lamb's presence.
Tidwell testified, without contradiction, that Massey
then came back to the pit. where he and Massey had been
working on Massey's dragline when Lamb had come for
him. Massey then gave a Local I card to Tidwell. but Tid-
well refused to sign it and returned it to Masses.
(d) Paragraph 19 of the complaint alleges that Superin-
24 the atreenient did ,.ir.lam a chckoff of dlc cliuc ut ,Ii ol il mlc
of the hearing. the Rcplident hid ni chcSkcd oft ii.ti duct It did il
cont lln an Ictl,¢ unll n-clrlt 11allCe th.tl required cllc \ 1 h,)llC
menihers if the lll
tendent Brsant on or about June 28 telephonically encour-
aged membership in Local I by telling its employees that
l.ocal I was the collective-bargaining representative of its
employees and the labor organization that Respondent
wanted to deal with. Bryant did not testify, and I am un-
able to find any such testimony to support this allegation
in the record. Tidwell did testify at length about a tele-
phone call he received toward the last of June from Bry ant.
but he did not allege. nor can I reasonably infer, that
Bryant told Tidwell that l.ocal I was the bargaining repre-
sentative or the labor organization Respondent desired to
deal with.
Tidwell stated that on about June 20 he had to go to
Henegar. so he took with him union cards for the Operat-
ing Engineers. Upon arriving at the mine. he left the crds
on the seat of his truck. When employees asked him about
the cards. he informed them that the cards were on his
truck seat. Approximately 1i employees proceeded to sign
the cards. Tidwell's truck was equipped with a two-wa,
radio, and he then received a call thereon from Lamb. in-
structing him to come to Hollywood to repair a loader.
fidwell and his helper Golden proceeded to Hollywood.
While working on the loader. Tidwell was called to the
office to talk to Bryant. the Henegar superintendent. on the
telephone. Tidwell related his conversation with Bryant as
follows:
Albert said, "Henry. weren't you just out here a few
minutes ago passing cards out?" I said, "Passing out
cards, what are you talking about?" He said. "That
union card, your union cards." He said, "Weren't ou
just passing them out?" I said, "Well, I guess you
could call it that. Albert. Yes, I was." He said. "You
shouldn't have done that." I said, "Why, you give that
company time enough to give their statement on com-
pany time." I said. "The least you could do is let me
get my cards signed." He said. "You should have
asked me first." I said. "If I had asked you first. Al-
bert. what would you have said?" He said. "Well, I
wouldn't have cared, but the thing about it is you
didn't. And I don't want to ever catch you back on my
place again." I said, "Your place? What are you talk-
ing about? Are ou talking about Henegar?" He said.
"That's right. I don't want you back at Henegar on
this property ever again." I said, "Well, if that's the
way you feel about it. Albert. that's the way it will be."
So I hung the phone up.
I credit Tidwell's uncontradicted testimony. but I am
unable to find therein that Bryant told Tidwell that Local I
was the employees' bargaining representative or the labor
organization Respondent desired to deal with.25 Accord-
ingly. I will recommend that this allegation of the com-
plaint be dismissed.
(e) Paragraph 18 alleges that on or about June 29. at
\Woodville, McCulloch threatened Respondent's employees
with discharge for not signing Local I authorization cards.
Glenn Willis testified in support of this allegation. al-
though he did state that the incident occurred in llollv-
wood. Willis drove a truck at both Woodville and Holls-
I1111 ti11s1" 11. '1. 1 ll bc 1i lj dC, l, .Ir i 11, .1 , h1 I 1 1 1'.
ill. U' .111 111'.l" 6I I ,al 2{ I ktl [ q (-tl1ll],1,1 1
HOOVER. IN.
602 DECISIONS OF NA] IONAL L.ABOR RELATIONS BOAR)
wood, and Mc('ulloch also worked at both plants. Willis
testified that he had a conversation with McC(ulloch about
the "warehouseman" union as follows:
And he asked mnc was I going to sign one of them
cards with them, and I said No. Ile said that Joe Mas-
sey would come up about quitting time and show me
one of the cards. About 4:40, ahout 20 minutes before
quitting time, he come up there on the hill where we
was hauling from, and he called me off the truck. I got
off the truck and went down there, and he [Masseyl
showed me a card. And he says was you going to sign
one and I said no. I got back on the truck and he
walked over to Heavy McCulloch. and I started to
pull out and Heavy stopped me. He called me a lying
m f r and he said, "You told me that you was going
to sign one" and I said. "I would hear Joe Masses,"
and he called me a lying son-of-a-bitch. Then he start-
ed to walk away and then he come back and he said.
"You will sign one." Then the next day he told me the
ones who didn't sign the card was going to get fired.
On direct examination McCulloch denied that he ever
said to Willis or anyone else that any employee would be
fired if he did not sign a Local I card. I found Glenn Willis
to he a credible witness and I credit his testimony that
McCulloch threatened that those employees who did not
sign Local I cards would be fired. McCulloch had already
admitted, as set forth in section IlI.C,3,a, above, that he
had talked to Willis about signing a card. As set forth in
the record, McCulloch was a pusher and a cusser, and he
could not abide any employee questioning his orders.
When Willis refused to sign the card, I find that McCul-
loch berated him, told him heatedly that he would sign the
card, and the next day, still seething from Willis' refusal to
sign, told Willis that the employees who would not sign
cards would be fired.
4. Conclusions on majority issue
The law is clear that employer recognition of a union
which is not the choice of a majority of the unit employees
constitutes unlawful assistance and support within the
meaning of Section 8(a)(2) and ( I) of the Act. The granting
of exclusive recognition to a union which has failed to ob-
tain a majority at the time of recognition is unlawful
whether its opponent is a competing union or "no union."
International Ladies' Garment Workers' Union, AFL ('10
[Bernard-Altmann Texas Corp.] v. N.L.R.B.. 366 U.S. 731
(1961). The law is also equally clear that the burden of
proof is upon the General Counsel to establish that the
union accorded exclusive recognition was not the majority
representative. Progressive Construction Corp.. 218 NLRB
1368 (1975); Walker's Midstream Fuel & Service Co.. 208
NLRB 150(1974); American Beef Packers. Inc.. 187 NI.RB
996 (1971), affd. sub nom. Arthur L. lMorgan Union. ocal
No. 3 v. N.L.R.B., 463 F.2d 818 (D.C. Cir. 1972). Based on
the entire record, I find that General Counsel has met that
burden in this case.
In finding that Local I did not represent a majority of
Respondent's employees on May 12, I rely upon the fol-
lowing evidentiary facts:
(a) he record does not show that any organizational
activity on the part of Local I took place among Respon-
dent's employees at any time whatsoever prior to the sign-
ing of the bargaining agreement, or that any employee in
any manner designated L.ocal I as his bargaining represen-
tatlve.
(b) he employees at the three Alabama sites and at
Nashville had never heard of Local I until late June when
C'raighead arrived on the jobsites.
(c) The fact that Jenkins did not recognize Local I be-
fore he signed the agreement, and only recognized it after
the agreement was signed, demonstrates that Local I did
not represent Respondent's employees. In the real world of
industrial relations, recognition comes before the execution
of an agreement, not after. It would be an exercise in futili-
t,. and a waste of both an employer's time and a union's
time, for an unrecognized union to negotiate with an em-
ployer for an agreement, and then, after weeks or months
(or about I-1,'2 to 2 years, as Jenkins claimed) be told by
that employer that it would not recognize the union. and
therefore no agreement would be entered into.
(d) Although Jenkins testified that he had been engaged
in negotiations with l.ocal I for a period of 1-1/2 to 2
years, the record does not show that any employee was
aware of such negotiations or ever participated in them.
(e) The evidence establishes that there never was an ap-
propriate unit that Local I claimed to represent. It is fun-
damental to the Act that the union representing the em-
ployees of an employer must represent "an appropriate
unit, although it does not have to be the most appropriate
for bargaining." A. S. Beck Shoe Corporation, 92 NLRB
1457 (1951). The agreement entered into by Respondent
does not specify any appropriate unit, nor does it specify
which of Respondent's plants were covered by it, not even
mentioning the operations at Hollywood, Woodville,
Henegar or Nashville. In fact, it purported to cover all of
Respondent's employees in the 48 States of the continental
United States. Under such all-encompassing 48-state cov-
erage. employees subsequently hired in any new operation
would have to accept Local I as their bargaining agent,
without having any say' about the matter. This would be a
denial of their basic rights under the Act to have a bargain-
ing representative of their own choosing.
(f) I.ocal 1 did not disclose to the employees at the three
Alabama jobsites that they were represented by Local I
and that Local I had negotiated a contract on their behalf
until 37 days after the claimed execution. No union, signa-
tory to a bona fide collective-bargaining agreement. is
going to wait such a long period of time before it commu-
nicates to employees it has never seen before that it is now
their bargaining representative and concurrently show
them the contract they will be working under for the next 3
years.
(g) Craighead's handing out of Local I authorization
cards at his first meeting with Respondent's employees, at
both the Alabama sites and at Nashville, shows that he did
not have any authorization from these employees designat-
ing Local I as their exclusive bargaining representative.
When the men rebuffed him by refusing to sign, he showed
his contempt by telling them that it did not make any dif-
ference anyway, because they were already in the Union.
HOOVER. IN(' 603
as he and Jenkins had previously signed the contract.
(h) McCulloch and Lamh made heavyhanded attempts
to secure signed authorization cards for Local I from the
employees under their supervision. If these supervisors he-
lieved that Local I legallk represented the emplosees. the)
would have felt no need to pressure employees into signing
Local I cards.
(i) Finally, we have McCulloch's admitted statement
that he told employees at Woodville in June that if there
was ever going to be a union down there. it was going to be
Local I. To emphasize his certainty of this conclusion, the
superintendent bet an employee that the union that was
coming in would be Local 1. Thus. Superintendent \Mc-
Culloch affirmed Superintendent Lamb's eark prophec to
the employees. that the Company would get them a union.
I find that the Gieneral Counsel met its prmla itcic bur-
den of establishing ocal I's lack of majorit,. and that
Respondent introduced no countervailing proof. I find. ac-
cordingl. that Respondent violated Section 8(a)(2) and (1)
by recognizing Local I as the exclusive bargaining repre-
sentative of the emplo)ees. and bh executing a contract
with Local 1. The Ilarl I Mountain (orporation, 228 N RB
492 (1977).
5. Conclusions on contributing support
Respondent contributed support to Local I by the fol-
lowing acts and statements: Superintendent Mc('ulloch's
solicitation of Willis and Pendergras to sign ocal I cards:
Vice President Jenkins' authorization of Craighea to meet
with Respondent's employees at lenegar and Nashville to
conduct an organizational meeting with its emplosees dur-
ing paid working time: Superintendent Lamb's assistance
to Craighead in securing Massey's signature on a Local I
authorization card, and in selecting Massey to serve as the
Local I shop steward; McCulloch's threatening Willis and
others with discharge if they did not sign cards for Local I:
and Respondent's granting pay raises effective June 12.
The record is clear that by engaging in the acts and con-
duct set forth above, Respondent was engaging in conduct
which under Section 8(a)(2) and ( I) of the Act is proscribed
as illegal acts of assistance. Accordingly. under the facts in
this case, I find that Respondent violated Section 8(a)(2)
and (I) of the Act. Iernitron Electrical Components. Inc..
221 NLRB 464 (1975).
D. T7he .4 lleged 8(a)(lI) ioltons
Following Bailey's discharge on May 13 there is no evi-
dence of union activities on the part of Respondent's em-
ployees until MaN 31. In the evening of that da!. Smith
telephoned Oscar G. Wisdom. business manager of l.ocal
660, at his home in Florence. On the next da. bv a letter
dated June I. Wisdom forwarded to Smith a nunmber of
blank union authorization cards with instructions on how
they were to he filled out. On about June 2. a flurry of
union activity took place among Respondent's emplosees.
Smith distributed cards to Iidwell and plant operators
James Mack Wheeler and Willie ('lat (Cullins. Iidaell in
turn gave cards to Golden and to Glennil Willis, a truckdri -
er at Woodville. Ihese emploe ces sitned the union authori-
zation cards and returned them to Smith or fi'dwell.
1. Interrogations
Ihe General Counsel alleges that Respondent engaged
in numerous acts of unlawful interrogation of employees
about their and other employees' union activities smpa-
thies. and desires. It was alleged that such conduct was
engaged in b Respondent's agents Lamb and McCulloch
during various dates in June. July. and August. Respon-
dent's answer denied any such unlawful conduct.
(a) Smith. who signed a Local 660 authorization card on
about June 2. testified that a day later. Lamb approached
him at the crusher and said. "''I want to know what about
this union. Have ou heard anything about this union?"
When Smith denied hearing about it, .amb responded.
"We'll just get to work 4(0 hours and go home." At that
time the employees were working II t I I - 1 2 hours a day.
5 to 6 dass a week.
L.amb denied that he stated that if the Union ca;lme i
the'n would only work 40 hours a week. lie did admit that
he heard of the Operating Engineers Union about June I.
claiming that was the first time he had heard of it on the
job. Hc also testified that he then informed Vice President
Jenkins about Local 660.
(h) Wheeler, a plant operator at Hollywood, testified
credibhl that he received about 12 blank cards from Smith
earls in June. He then secured six signed cards from other
employees. and returned five unsigned cards to Smith.
leaving one such card in his lunch box in the grease house
over the weekend. On the following Monday morning,
June 6. .amb approached Wheeler and asked him where
he had secured the union cards that were in his lunch box.
Wheeler told him that he had gotten them from the union
man. Later in the day,. his fellow plant operator. Willie
Cullins. went to the grease house, picked up Wheeler's
lunch box. and brought it to him. Upon opening his lunch-
box Wheeler found a Local 660 card that carried across its
face amb's signature. Wheeler tore the card into pieces
and threw the pieces into a barrel. Tidwell later removed
the pieces from the barrel. (G.('. Exh. 7.)
Lamb admitted that he had signed the card. accidently.
and then put it back in Wheeler's lunchbox. and that he
had asked Wheeler where he got the card.
(c) On about June 10. mechanic Tidwell and his helper
Giolden were uorking together at Hollywood. Tidwell and
Golden testified that Lamb came up to them and asked
which one of them was passing out union cards. When
Tidwell equivocated and asked if Lamb had seen him pass-
ing out union cards, l.amb replied that he had not, but that
he knew that idwell was doing so. As amb left. he stated
that it the employees wantied a union. Jenkins had said that
he would take care of that. Lamb denied generall\ asking
questions about the inion.
(d) Wheeler testified that in the following week. Lamb
came up to him and (ullins when the plant was broken
doNwn and conersed A .ith them about the Union. Larnmbh
informed them that. ith a union. on das when the plant
was broken dow n. the employees would be sent home. (ul-
Jilns testified ltha l.ahmb said. "()n mornings like this. hen
this plant is broken down. uhern ou get our tinion, we et
HOOVER. INC.
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to go home." Two days later IJune 13], Lamb again camne
up to Wheeler and Cullins and inquired about the Union.
adding that he wanted to sign up with the Union so that he
could work 40 hours and go fishing.
(e) Cullins testified that on June 14 he was working by
himself back on a creek, starting a pump, when Lamb
started to question him by asking, "Willie. have you got
one of those union cards yet?" I said. "No. but I would like
to have one." He said, "If you get one tear it up and that
way I will take care of you." When Lamb was questioned
about any discussions with Cullins about a union, at all. he
replied, "I ain't never mentioned it to him."
(f) Cullins testified credibly that one day while he was
working on the sand plant, McCulloch asked him if he was
going to a union meeting, and that he told his superinten-
dent yes. There was no further conversation. The record
shows that Cullins, on the evening of July 6. went to the
Holiday Inn in Scottsboro, met with an agent of the Board.
and gave an affidavit.
(g) Smith testified that on the morning following the in-
terview of some of Respondent's employees by Labor
Board agents on August 4. at the Holiday Inn, McCulloch
came up to him. The superintendent then asked, "What's
that damn Bailey doing at that union meeting?" Smith then
told him that it was not a union meeting, but a Labor
Board meeting. to which McCulloch replied that he had
not known that.
Considering the total testimony of the witnesses as re-
gards the evidence of alleged unlawful interrogation set
forth above, and in considering the demeanor of the wit-
nesses, I have credited the testimony of General Counsel's
witnesses over Lamb and McCulloch.
Based upon such credited testimony, I find that the facts
reveal that Respondent. by Lamb. unlawfully questioned
employee Smith on June 3, Wheeler on June 6. Tidwell on
June 10. and Cullins on June 13 and 14: and that Respon-
dent, by McCulloch, unlawfully questioned employees
Cullins on July 6 and Smith on August 5. thereby violating
Section 8(a)(1).
2. Threats
(a) The General Counsel alleges and Respondent denies
that Respondent, by Lamb. on or about June 14 and Au-
gust 5 threatened its employees with reprisals for engaging
in activities on behalf of Local 660.
Cullins testified that one morning in the middle of June
the plant was broken down, and he had a brief conversa-
tion with Lamb, who stated: "On mornings like this, when
this plant is broken down, when you get your union, we get
to go home." Previous to this incident, when the plant
broke down the employees were not sent home, but were
kept at work to help repair the plant.
Lamb testified that he could not recall any statement to
C'ullins, or anybody else at the sand plant, that if the plant
broke down, if the Union were in, the employees would go
home.
I have credited Cullins' testimony and find that Lamb's
statement was a thinly veiled threat to cut down on the
hours of work of Respondent's employees and thereby cut
their wages, and that it thereby 'violates Section 8(a)(l).
(b) On the evening of August 4. Tidwell left the jobsite,
drove to Hollywood. and parked his assigned company
truck on the parking lot of a grocery store, Jitney Jr.
Bailey picked Tidwell up and drove him to the Holiday
Inn, where both were scheduled to give statements to
Board agents concerning the instant case. Tidwell testified
that he left the Holiday Inn at about 10 p.m., got into his
truck, and was home by 10:30 p.m. On the next morning,
Lamb told Tidwell that he was getting tired of being called
out in the night to pick up Tidwell's truck. Tidwell replied
"that this is the first time you've ever been called about the
truck being out anywhere." Tidwell stated that at this time
a supervisor from Nashville walked up "so we just ended
the discussion right then."
Lamb's testimony about the use of the Company truck
was ambiguous:
Q. Now, did you ever tell either the mechanic or the
mechanic's helper that they couldn't use that truck for
their own personal business or anyway they wanted
to?
A. No, sir.
Q. Does the company have a policy about the use
of these company trucks?
A. Well, strictly for company work, yes.
I do not credit Lamb's testimony that the mechanic's
truck was to be used strictly for company work. He did not
deny Tidwell's statement that he took it home every eve-
ning. and drove it to work every morning, and stopped at
various places between the quarries and his home.
However. I am unable to find that Lamb's statement to
Tidwell on August 5 was either a threat of reprisal or dis-
charge. Lamb's words, as stated by Tidwell, that he was
tired of being called out in the middle of the night to pick
up the truck, are ambiguous and inconclusive, and I would
dismiss this allegation of the complaint.
(c) The General Counsel alleges and Respondent denies
that Respondent, by Lamb, on or about March 31, June 6.
and August 5 threatened its employees with discharge for
engaging in activities on behalf of Local 660.27
As set forth in section Il,B,3, above, Tidwell credibly
testified that he, Golden, Massey, and Lamb were in the
grease house during an electrical storm in the latter part of
March, when Massey remarked that he was operating a
loader because Smith was off. At this point, Lamb stated
that Bailey and Smith had started the Union, and that he
would get rid of Bailey. This was a plain threat to discharge
because of an employee's union activity, and violated Sec-
tion 8(a)( I) of the Act.
1' Id lcl had ued the truck Io g' hack and forth t work and to perform
per.ioll eiiiind, hile lgoinlg and coniing to ork. ever ince he had been
hircd h Re,ronldcnlt Oin June 6I lie had parked It oin the lot of he ohllcia
1ill 1 t . 1 11id i I local ¢10( Uionil ll meeting. ;lmh had questloned him the
ie,. -11n 1 1/ a hotll IIt, UC on tIll.t e i IIlng. id U hen I dvell told hm he
urIti 1t , .1 111o lll ie llt itl I it. I.imh told hlinl It Wa not a union truck and
lie ., n I 1 1it lake It do,an there .1a1i , lloire
I hie cIioilililiI ailleged nine separ;ae tsl oI f threats bh l.amb and Mc-
(i lloch 1 11(ol he record hefoec l tlle. I a.s unabic Io match the alleged
llca1 ts 1 I .,ilih ,11 June 6 aniid \uIgUt 5 tll sxufflilcent e deltnce. and I have
I1 1 Iic.led iic. ll ,er fIlill, e nd IIIc a ll e i large illa))rit of ;il-
1c'cd IhIlals,.. 1II IC clll j I}l l I I ciCTl fter et forthl i rlii.fected in
.l II1110t-i b ,t. Itill 1
HOOVERR INC. 605
(d) General Counsel alleges and Respondent denies that
Respondent. by Lamb, on or about August 5. threatened
its employees with reprisals if they exercised their rights to
communicate with the Labor Board.
Smith testified that on the afternoon of that date. Lamb
got out of Jenkins' car. got into his truck, and drove
straight to Smith. who was sitting on his loader. Lamb then
told him. "I want you to run that loader in third gear. I
want you to stay away from that damn Labor Board. If
they' want to know anything. let them come up here. We
are running this damn job. not them."
Although it was not alleged in the complaint. Tidwell
testified to a similar incident with Lamb, which occurred
on July 6 and which I treat as background. On that af-
ternoon. Tidwell was working at Hollywood when Lamb
came to him and told him he had to go do some work at
Henegar. Tidwell told Lamb that he had to give a state-
ment to the Labor Board at 6 p.m. that evening. Lamb
replied, "You stay away from that Labor Board. If they
want to know anything. you tell them to come and see me.
I run this job here." Lamb added that he was not intending
to have the Union on the job because he was the boss man.
and that he had previously worked on a union job and was
not going to have a union on this job.
It is fundamental to the Act that employees have the
right to use the Board's processes in exercising their rights
guaranteed under Section 7, and I find that Lamb's threat
on August 5 violated Section 8(a)(1) of the Act.
(e) The General Counsel alleges and Respondent denies
that Respondent. by McCulloch, on or about August 4
threatened its employees with reprisals for engaging in ac-
tivities on behalf of Local 660.
Smith testified that while he was operating his loader on
that date, McCulloch came up to him and the following
conversation took place: (McCulloch): "'Why don't you
put that loader in a higher gear?' I said. 'Now Heavy. I've
got it in second gear.' 8 He says, 'Well, boy, you'd better
be getting that union in here. If you don't. I'm going to put
a bomb under your butt, boy.'"
McCulloch was not questioned on this specific incident.
but he testified in a generalized way that he never threat-
ened any employee about anything relating to union activi-
ties.
I credit Smith's testimony and find that McCulloch
threatened Smith that if Local 660 was unsuccessful in its
attempt to represent Respondent's employees. McCulloch
would oppress Smith continually thereafter in the perfor-
mance of his duties. I find this to be a violation of 8(a)( I).
(f) General Counsel alleges and Respondent denies that
on August 5 Respondent, by McCulloch, solicited its em-
ployees to cease engaging in activities on behalf of Local
660.
Smith testified that at about 10 a.m. on August 5. Mc-
Culloch came up to him on thejobsite and told him that he
wanted to talk to him. McCulloch then took him back to
his loader, where Smith testified that the following conver-
sation took place: (McCulloch): "'Smitt. where are you
2, S nith contended thi II i.ts nl st .ie to opcrite the Woatl, il ; I . li I 1
third gear. a it u dngerotu.s .Indl clmild ilrl ill lcl I cl .1i [ 1 l h l ,111 i
,orrect gear for the loader hi. tIp'c f AIrok I.J .eCI d Lcaor
from?' I said 'I'm from here.' He said. 'Smittv why don't
you call this off?' I said, ' I can't.' And he said. 'If you
don't. you won't be able to live in this State any more if
this goes on.'"
McCulloch did not testify as to this incident and I credit
Smith's uncontradicted testimony. McCulloch's statement
clearly interferes with Smith's Section 7 rights and violates
Section 8(a)(I).
3. Surveillance
The General Counsel alleges and Respondent denies
that Respondent, by McCulloch, on or about August 4 and
5. in the vicinity of the Holiday Inn in Scottsboro, engaged
in the surveillance of its employees' union activities on be-
half of Local 660.
The evidence shows that on the evening of August 4.
representatives of Region 10 of the Board were interview-
ing employees of Respondent relative to the charges that
had been filed herein. The interviews were being conducted
in rooms in the Holiday Inn, which is situated on the main
street in Scottsboro, on U.S. Highway 72. The Inn also has
a restaurant in the same building. Behind the motel, on its
rear parking lot, was a house trailer owned by' the Inn. An
employee and foreman of Respondent, Shorty Lewis. was
living in this trailer. That evening, another employee.
A. D. Crow, was also at the trailer.
Howard Smith and the two mechanics Golden and Tid-
well testified as to this incident and their testimony was
substantially the same. These three employees. as well as
two others. Bailey' and Smart, arrived for their appoint-
ment with the Board agents between 6 and 6:30 p.m..
congregating outside. at the rear of the motel. The emplos-
ees saw McCulloch leave the trailer, and go to his pickup
truck. parked in the motel's parking lot, and get some beer,
When McCulloch saw the employees. he waved and said.
"Hey." and returned to the trailer. A short while later. Mc-
Culloch left the trailer and walked to the rear door of the
motel, passing about 10 feet from the assembled employ-
ees, and as he walked by, smiled. A short time thereafter.
McCulloch came out of the motel with a plate containing
his supper and went to the trailer. He stood here for awhile
with Lewis and Crow, talking and drinking, at a distance at
which neither party could hear what the other was saying.
He then went into the trailer.
About 9 or 9:30 p.m.. McCulloch came out of the trailer.
got into his pickup truck, and drove away from the back lot
"squealing tires." As he drove by, he hollered in a very
loud voice "Hey." Tidwell, who at that time was inside the
motel giving his statement, also heard McCulloch holler as
he went by and called his presence to the attention of the
Board agent.
McCulloch testified that he lived in a motel about four
or five blocks from the Holiday Inn, and was just visiting
Lewis in his trailer. They ordered supper from the Holiday
Inn restaurant. apparently using the trailer telephone, and
upon being told that the busboN was sick that night, Mc-
Culloch went over to the Inn and picked up the supper.
McCulloch denied that he knew what the employees were
at the Inn for on that evening.
In Advance Busine.s Form.s Corp., 194 NLRB 341. 343.
HOOVER, INC.
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fn. 4 (1971), it was stated that "the presence of a manage-
ment official in a public place while a lunion] meeting is in
progress, without more, is insufficient to establish [illegall
surveillance." However. I find that something more was
involved than McCulloch's simply being there for supper.
Tidwell had informed Lamb that afternoon that he had to
be at the Holiday Inn at 6 p.m. that evening to give a
statement to the "Labor Board." and for that reason could
not carry out Lamb's order to go to Henegar. Lamb and
McCulloch both had two-way radios in their trucks for
communication, besides the telephones in their respective
offices, and they constantly worked as a team.
I find that it was no mere coincidence that McCulloch
showed up at 6 p.m., but draw the inference that he was
informed by Lamb of the meeting. While McCulloch de-
nied that he knew why the employees were there, he was
not asked if he knew that they were going to be there that
evening. McCulloch's actions at the Inn were totally out of
character. Here he saw a group of his employees standing
in the open behind the motel, for a period of over 3 hours.
and he never came up to speak to them, only yelling hey on
two occasions.
On the next day. Lamb not only questioned Tidwell
about the truck's use on the previous evening, but he em-
phatically told Smith to stay away from the Labor Board.
Obviously, Lamb knew who had been at the Holiday Inn
on the previous evening, as he himself had been in atten-
dance. I find that McCulloch's attendance at the Inn was
not a mere coincidence, but was a deliberate effort to learn
the identity of the employees attending. I find that Mc-
Culloch's conduct constitutes surveillance and violates Sec-
tion 8(a)( I).
4. Impression of surveillance
The General Counsel alleges and Respondent denies
that Respondent, by Lamb, on or about March 31 created
among its employees the impression that it was engaging in
surveillance of their union activities by telling them it knew
what employees had been responsible for contacting Local
660.
As previously set forth in section II,B,3. above, Lamb
stated in the grease house to Tidwell. Golden. and Massey
that Bailey and Smith were the two main ones that got the
Union started. The record is clear that at this early date.
none of the union activists, Tidwell, Smith, or Bailey. had
disclosed to Respondent that the employees were seeking
Local 660 to represent them. Nor does the record show that
Lamb secured this information from any legitimate source.
Thus, the impression of surveillance was raised in the
minds of the three employees present when Lamb mysteri-
ously came forth with the names of the employees whom
he regarded to be the union leaders. I find that Lamb's
statement created the impression of surveillance, in viola-
tion of Section 8(a)( I). Leslie E. Barnert d/ha Barnetr In-
strument Company 173 NLRB 1397 (1968). enfd. 415 F.2d
1374 (6th Cir. 1969).
5. The banning of (Grady Henry Tidwell
Paragraph 26 of the complaint alleges and Respondent
denies that on or about June 28. Respondent refused to
allow Tidwell to perform any work at its Henegar plant.
In section ll,C,3,d, above, are set forth the facts concern-
ing Henegar's Superintendent Albert Bryant's telephone call
to Tidwell on June 28. After berating Tidwell for passing out
union cards on the mine site, Bryant concluded his conversa-
tion, as Tidwell testified, by telling him, "I don't want you
back at Henegar on this property ever again." 29
For the next 4 to 5 weeks neither Tidwell or Golden was
dispatched to Henegar to repair any equipment. The two
mechanics were used at the Hollywood site by Lamb, to
load and shoot dynamite, to work around the crusher, to
haul and prime water pumps, and to change oil in equip-
ment. Previously, they had worked at Henegar "most all
day." and then went to Hollywood to repair Lamb's equip-
ment after regular working hours. A mechanic named
Jackson was hired for Henegar, who, with Wayne Blanton.
a mechanic out of Nashville, performed the work Tidwell
and Golden had formerly done at the coal mine.
Some weeks later, Buddy Jackson, Respondent's overall
mechanical equipment supervisor, whose office was in
Nashville, telephoned Tidwell on a Saturday evening and
informed him that there was a loader at Henegar that had
"a busted head on it" and that he was to go fix it. When
Tidwell informed him that Bryant would not let him on the
premises, Jackson said that he knew that, but Tidwell was
still to go out there. Tidwell resisted. On the next morning.
Sunday. Jackson came to Hollywood. got Tidwell, and
took him to Henegar, telling him that he was the supervisor
of the equipment, that he was the one to tell the mechanics
what to do, and that he was telling Tidwell to work on this
equipment. Jackson stood there while Tidwell worked on
the loader. Ever since that Sunday, Tidwell has been sent
to Henegar to do repair work, just as he did before Bryant
stopped him. It is my conclusion that the banning of Tid-
well and his helper Golden '3 resulted from Respondent's
antipathy to the Union. from Bryant's knowledge that Tid-
well was involved in an organizational campaign, and from
the superintendent's desire to ban this union activist from
Henegar. By' such conduct Respondent engaged in viola-
tions of Section 8a)(3) and (1) of the Act.
CONc.tI SIONS OF LAW
I. The Respondent is engaged in commerce and the
Unions are labor organizations. all within the meaning of
the Act.
2. Respondent violated Section 8(a)(3) and (1) of the
Act by discriminatorily discharging Ray R. Bailey on May
13 because of his support of the Union.
3. Respondent violated Section 8(a)(3) and (1) of the
Act by discriminatorily refusing to allow Grady Henry
Tidwell and Larry Golden from on or about June 28 to
pe form work at its Henegar plant.
: tl\l t did 1 l, tc lf\. iad I credit I idl. l tinco r;itradicted tclstniimi
\1 I1llh il IIIC l l lUl 111 d nol Itllcc Illia R pslponde nt rfused i, al1-
I, (Jod1I'1 1I ! UlI k jI ici,lCI . Itl c lcitice I cICI . a[id the Inmllc r w;l
turil,1 11l ilIll it htl h il I 111 I (li icchicil. id (ilIdcn, hins helpei
. il,.n\ kolcd 1;i 1,1 li l, illd titiI (ildel l .a ls deied il ri hi t oI woi irk
.I I cIC llc'i
HOOVER, INC 607
4. Respondent violated Section 8(a)( I) of the Act hby un-
lawfully: (a) interrogating employees about their own
union sentiments and activities and those of other employ-
ees: (b) threatening employees with reprisals or with dis-
charge for engaging in activities on behalf of Local 660 or
for exercising their rights to communicate with the Board:
(c) threatening employees to limit its work week to 40
hours if the Union was designated as the employees' repre-
sentative: (d) promising employees benefits for refraining
from activities on behalf of the Union; (e) soliciting em-
ployees to cease engaging in activities on behalf of the
Union: (f) engaging in the surveillance of the union activi-
ties of its employees: and (g) creating an impression of
surveillance of the union activities of employees.
5. Respondent violated Section 8(a)(2) and (I) of the
Act by recognizing Local I as the bargaining representative
of its employees, and by executing a contract with Local I:
by authorizing Local I to meet with its employees during
paid working time: by assisting Local I to secure a stew-
ard; by threatening its employees with discharge unless
they joined Local I: and by granting pay raises as set forth
in the Local I agreement.
6. These unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
7. The General Counsel has not proved by a preponder-
ance of the evidence (a) that Respondent interfered with.
restrained, or coerced its employees in the exercise of the
rights guaranteed by the Act, or (b) contributed illegal sup-
port, except by the specific acts and conduct found herein
to be violative.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I will recommend that the Re-
spondent be ordered to cease and desist therefrom and that
it take certain affirmative action designed to effectuate the
policies of the Act.
The Respondent having discriminatorily discharged its
employee Ray R. Bailey, I find it necessary to order the
Respondent to offer Bailey full reinstatement, with back-
pay computed on a quarterly basis as prescribed in F. W.
Woolworth Compan,. 90 NLRB 289 (1950). and Floridla
Steel Corporation. 231 NLRB 651 (1977), 31 from date of
discharge to date of a proper offer of reinstatement.
The Respondent having discriminatorily refused to allow
Grady Henry Tidwell and Larry Golden to work at the
Henegar mine from June 28 to a date unknown, it shall
make them whole for any losses they may have suffered
because of Respondent's discrimination, by payment to
each of them of a sum of money equal to the amounts of
overtime they normally would have earned as overtime
wages from June 28 to the date the)y were allowed to return
to work at Henegar, the backpay to be computed in accor-
dance with the formula set forth above.
The Respondent having illegally recognized Local I as
the collective-bargaining representative of its employees
and illegally entered into a collective-bargaining agreement
Sec, glencrll. I P/u/' ,., I& t l,', ; IS f \I RE 71t, I'(,%2
with Local I. I find it necessary to order the Respondent to
cease recognizing L.ocal I and to cease giving effect to the
collective-bargaining agreement dated May 12. 1977, and
any contract between the Company and the Union unless
and until the Union is certified by the Board.
Having found that Respondent violated Section 8(a)( 1).
(2)., and (3) of the Act by the numerous acts and conduct
detailed above. and since it is part of the purpose of the
Act to prevent the commission of unfair labor practices. I
recommend that Respondent be ordered to cease and de-
sist from violating the Act in the above or any other man-
ner.
Upon the foregoing findings, conclusions. and the entire
record, and pursuant to Section 10(c) of the Act. I hereby
issue the following recommended:
ORDER '-
The Respondent. Hoover. Inc.. Nashville, Tennessee. its
officers, agents. successors. and assigns, shall:
1. C('ease and desist from:
(a) Discharging, shortening the hours, or otherwise dis-
criminating against an) employee for supporting Interna-
tional Union of Operating Engineers, Local 660. AFL-
CIO. or any other union.
(b) Interrogating its employees about union support or
union activities, threatening its employees with reprisals or
discharge for engaging in union activities or for communi-
cating with the Board, threatening to limit employees'
hours of work, promising benefits to employees for refrain-
ing from activities on behalf of Local 660, soliciting its
employees to join Local I or any other labor organization,
and engaging in the surveillance of its employees' union
activities and creating the impression of so doing.
(c) Recognizing Local I as the collective-bargaining rep-
resentative of its employees and giving effect to the collec-
tive-bargaining agreement dated May 12, 1977-provided,
however, that nothing in this Order shall be construed as
authorizing or requiring the Respondent to withdraw or
eliminate any wage increase or other benefits in the terms
and conditions of employment presently enjoyed by Re-
spondent's employees- threatening its employees with dis-
charge unless they join Local I or any other labor organi-
zation. or otherwise assisting Local I or any other labor
organization to secure membership from its employees.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed under Section 7 of the Act.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act:
(a) Withdraw and withhold all recognition from Local I
as the collective-bargaining representative of its employees
unless and until said labor organization has been duly cer-
tif d b the National Labor Relations Board as the exclu-
sive representative of such employees.
11 11n Che c 1nt ,1)n.' c e.1 hnrll rlCr filed .a, prnonidrcd h Se, 112 4. f hc
iRule, .,1t1 R gtu.ll ll, A tile \.iilwlnl l I.h,-l Rltim, [ to.lid the fdiwu.
Il0liIlsl*,llx. iLd ICoii d OrlldI en 11. lr c in l .all it pr-licd in Sc,
1l( 4J8 ,f I1ic RKle ., id RcI.I tii ls i, td h AJptJ hn Ilic [tn.llTr l .nd hceol
I, h11dllelt _ 1..l ll I ( .ll ,ri ()idCi .1dO d .11nd thlliii, thrc'i, sh1.lI hC
d lmed nk,,l cd t'. ,11 ptripM>
HOOVER, INC
608 DECISIONS OF NATIONAL .ABOR RELATIONS BOARD
(b) Offer Ray R. Bailey immediate and full reinstate-
ment to his former job or, if the job no longer exists. to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him
whole for his lost earnings in the manner set forth in the
remedy.
(c) Make Grady Henry Tidwell and Larry Golden
whole for their lost earnings in the manner set forth in the
remedy.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying. all pay-
roll records, social security payment records. timecards.
personnel records and reports, and other records necessary
to analyze the backpay due under the terms of this recom-
mended Order.
(e) Post at its quarries in Hollywood and Woodville, Al-
abama, its coal mine in Henegar, Alabama. and its office
in Nashville, Tennessee, copies of the attached notice
marked "Appendix." 33 Copies of said notice, on forms
provided by the Regional Director for Region 10, after
being duly signed by Respondent's authorized representa-
tive. shall be posted by the Respondent immediately upon
receipt thereof, and be maintained for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that
said notices are not altered. defaced, or covered by any
other material.
(f) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps the Respon-
dent has taken to comply herewith.
Itl s ALSO ORDERED that the complaint be dismissed inso-
far as it alleges violations of the Act not specifically found.
11I the cenli that his Order i. enforced hb a judgment of a nited
SlAti ( turl ,f Appealls. he , lrds n he notlice reading "Posled h Order
,f the Na;linal I lhor Real.llion Board" shall read "Posted Pursuant to a
IJudCCnt of itic tI 1ied Stlite, ()ourt of Appeal, nforcing an Order of the
\ ll-otlll I h*o Raliiotn B:rd