Illinois Concrete Pipe Co.

National Labor Relations Board - Board Decisions

Apr 25, 1973

203 N.L.R.B. 223 (N.L.R.B. 1973)

ILLINOIS CONCRETE PIPE CO. 223
Illinois Concrete Pipe Company and Ray O. Davis.
Case 13-CA-11691
April 25, 1973
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On February 16, 1973, Administrative Law Judge
Milton Janus issued the attached Decision in this pro-
ceeding. Thereafter, the Respondent filed exceptions
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.
ORDER
made statements concerning Davis and the Union which
interfered with, restrained, and coerced Davis in his exercise
of rights guaranteed in Section 7 of the Act. Respondent's
answer denies these allegations.
Upon the entire record, including my observation of the
demeanor of the witnesses, and upon the briefs received
from the General Counsel and the Respondent, I make the
following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Respondent, an Illinois corporation, has its principal
place of business at Hodgkins, Illinois, where it is engaged
in the manufacture of concrete products. During a recent
representative period, Respondent sold concrete products
valued in excess of $390,000, of which in excess of $50,000
was sold to enterprises located in Illinois which annually
ship goods valued in excess of $50,000 directly to places in
other States. During the same period, Respondent also pur-
chased materials valued in excess of $50,000 from suppliers
located in Illinois which receive said goods directly from
places in other States.
On these facts I find that Respondent is an employer
engaged in commerce within the meaning of the Act.
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Illinois Concrete Pipe Com-
pany, Franklin Park, Illinois, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the said recommended Order.
t The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board 's established policy not to overrule
an Administrative Law Judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions were incorrect . Standard Dry Wall Products, Inc, 91 NLRB 544,
enfd 188 F 2d 362 (C A 3). We have carefully examined the record and find
no basis for reversing his findings
DECISION
STATEMENT OF THE CASE
MILTON JANUS, Administrative Law Judge: This case was
heard before me at Chicago, Illinois, on October 30 and 31,
1972, pursuant to a charge and an amended charge filed
July 28 and September 27, 1972, respectively. A complaint
based on these charges was issued on September 29, 1972.
It alleges that Respondent terminated the employment of
Ray O. Davis, the Charging Party, on or about July 24,
1972, in violation of Section 8(a)(3), because of his efforts
on behalf of Construction and General Laborers' District
Council of Chicago and Vicinity, and because he had en-
gaged in other protected union and concerted activity; and
that Respondent, through certain named supervisors, had
II. THE LABOR ORGANIZATION INVOLVED
Construction and General Laborers' District Council of
Chicago and Vicinity is a labor organization within the
meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
Background and Issues
The Respondent (Illinois) is a subsidiary of National
Concrete Pipe Company (National), organized in June 1972
to acquire by purchase and lease certain assets of Vulcan
Material Corporation, an unrelated company. Vulcan's
Concrete Materials Division, which Illinois acquired, was
located at Hodgkins, Illinois, while National's plant was
located at Franklin Park, both within the Chicago metropol-
itan area, but about 20 miles apart.
Vulcan ceased operations at Hodgkins as of June 30,
1972, and terminated all its production employees. Illinois
began operations at Hodgkins on July 5, hiring all of
Vulcan's laid-off employees on a probationary basis. The
Union had been the bargaining representative of the Vulcan
employees, as it also was of the National employees.
Ray Davis, the Charging Party, had been an employee of
Vulcan at the Hodgkins plant as well as the union steward
there . He was among those hired by Illinois when it resumed
operations there on July 5. After about a week, Davis and
a few other former Vulcan employees were transferred to
the National plant at Franklin Park, where Illinois was c'r-
ganizing a second shift on which certain types of small pipe
would be manufactured.
On July 24, Davis was terminated. The General Counsel
contends that Illinois discharged him because he had tried
203 NLRB No. 49
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to function as the Union 's steward for the former Vulcan
employees who had been transferred to Franklin Park, or
had otherwise engaged in concerted protected activities on
their behalf . The Respondent contends in its brief that Da-
vis was not terminated because of any activities on behalf
of the employees or the Union (which it denies he was
engaged in , in any event) but solely because it was dissatis-
fied with his work performance , and because he had left
work without permission one day and had failed to call in
the next day.
The allegations of the complaint relating to violations of
Section 8(a)(1) refer to statements by Illinois officials alleg-
edly made to Davis and to other employees to the effect that
Davis was a troublemaker , that he had no authority in the
plant as a union steward , that they would fire everyone to
get to the troublemaker, and that there was no need for a
union at the plant.
Events Before July 13
Since the Union had represented the Vulcan employees
before their mass termination as of June 30, it was con-
cerned about their status when Illinois took over Vulcan's
operations . A week or so after Illinois started up at the
Hodgkins plant , the business agent of Local 25 of the
Union , Budack , called on Illinois officials to learn whether
it would recognize the Union and bargain for a new agree-
ment. The Company agreed that their new employees were
still represented by the Union and that it would negotiate
an agreement . It also informed Budack that it had hired the
former Vulcan employees on a probationary basis , had re-
duced their wages to the basic scale provided for in the old
Vulcan agreement for the next 30 days, and that it planned
to reduce its work force . Budack met again on July 21 with
Illinois officials , and they reached agreement on the basic
provisions for a new contract . Budack testified that he con-
sidered the contract to be in effect , even though it had not
yet been reduced to writing as of the date of the hearing,
more than 3 months later.
The Vulcan agreement had provided that the Union
could appoint departmental stewards and, as noted above,
Davis had held such a position as of the takeover date.
When Budack reached oral agreement with Illinois on July
21, nothing was said about whether a similar provision was
to be included in the contemplated written contract, but it
is obvious that Budack considered that to be a noncontro-
versial part of any contract , to be automatically included.
National , the parent corporation of Illinois , also had an
agreement with the Union , but no employee had been desig-
nated to act as steward during this period . Employee com-
plaints , if any, were handled by union officials who visited
the National plant on a regular basis.
On July 6, the second day of Illinois' operations at the
Hodgkins plant , Esposito , vice president both of Illinois and
National , told Davis (according to Davis) or asked him
(according to Esposito ) to transfer to the Franklin Park
plant the following Monday , July 10, when Illinois was to
begin working a second shift , using National's facilities.
Davis said he objected to transferring , since he lived near
Hodgkins and would now have to drive a long distance to
Franklin Park . He asked Esposito why he was being trans-
ferred , since he was the steward and the former Vulcan
employees wanted him to remain there . Esposito said he was
transferring him because he had heard that he was a good
man, that he didn ' t know what duties he could have as a
union steward since there wasn 't one at Franklin Park. Es-
posito also told him , according to Davis , to stay out of
Esposito 's affairs , do his job , and they would get along fine.
According to Esposito , Davis raised no objection to the
transfer . Esposito also said that Davis had told him that he
had been the steward at Vulcan , but he felt that one wasn't
needed at the Franklin Park plant . He denied telling Davis
to stay out of his affairs. What Davis testified to Esposito
telling him is not alleged to be in violation of Section
8(a)(1); its significance is that Esposito now learned that
Davis considered himself to be serving as steward.
Budack, the business agent of the Union , testified that
Davis had been the steward at Vulcan , but that his status
applied only at the Hodgkins plant. He also said that no
steward had been named for National 's plant at Franklin
Park , although the contract allowed one there.
According to Davis, he had spoken to Spears , the assist-
ant business agent , about his status after it was learned that
Vulcan had sold out to Illinois , and that Spears had told him
to continue to act as steward , and had told the Vulcan
employees the same thing.
Davis also called Spears a few times after he began work-
ing for Illinois . After he was transferred to Franklin Park on
July 10 , he called Spears from the office phone which was
located in the dispatcher's office . Davis said he had gotten
permission to use the phone , once from the night shift fore-
man, Schlesser , and once from Snider , the plant superinten-
dent . One or the other of them was in the office with him
when he called . Schlesser denied that he had given Davis
permission to use the office phone , and had the office
locked after he learned that Davis had used it without per-
mission . Snider admitted that he had heard Davis call
Spears from the office and ask him how the union meeting
had gone that night . Snider said he had made no comment
to Davis about his call.
Schlesser was told by Davis that he was the steward, and
had seen Davis leave his work to go to the kiln area to talk
with the men there . He had to break up these meetings, and
had told Snider that he had done so.
July 13
1. The testimony for the General Counsel
(a). Davis testified that on July 13, Esposito and Snider
came up to him at work , and Esposito asked him if he was
calling the Union every night. Davis said that if he had
problems he did . Esposito then said that if the men had
problems they should come to him , not to the Union; that
Davis was nothing at the plant , and he would eventually fire
every man there to get to the troublemaker ; that it seemed
like what Davis was doing was making trouble and he would
fire anyone , pointing directly at Davis . Esposito then
walked away toward the kiln area.
(b). What happened then in the kiln area was testified to
by employees Roy Wooley and Robert and Lonnie Sellers,
who are brothers.
ILLINOIS CONCRETE PIPE CO.
Wooley said Esposito, Snider, and Schlesser, the night
foreman or pusher, came into the kiln area and Esposito
called some of the employees who were working nearby
over to him. Wooley said Esposito asked them if they had
any problems, and that Robert Sellers had answered that
the work was too hard, at which Esposito told him he could
quit then. Lonnie Sellers then said that the pusher was yell-
mg at them and driving them too hard, and that Esposito
had then told Schlesser to cool it. Wooley said he also
voiced a complaint against Schlesser. Esposito said he had
been talking with Davis , and that it seemed some of the men
had work problems; that if they did, they should consult
with him about it; that he had never had any trouble with
the Union and it wasn't going to start now; and that he
would fire every one of them to get to the troublemaker. Just
about then, Dennis (Bob) Spears, the yard foreman for Na-
tional , and son of the Union's assistant business agent, came
by. Esposito stopped Spears, saying, "Here's the Union
man's son. We don't have any union problems around here,
do we, Bob?" Spears said they didn't.
Snider said, according to Wooley, that Davis could call
himself a union steward if he wanted to, but around there
he was nothing. Esposito then sent them back to work.
Robert Sellers' testimony as to the same group conversa-
tion with Esposito and Snider is that Esposito had said that
Davis had come to him with complaints that the men were
being pushed too hard, and he wanted to know what their
problems were . Sellers told him what Schlesser was asking
them to do. Just then Dennis Spears walked by, and Esposi-
to said they hadn't had any union trouble, and they didn't
want any to start now.
Lonnie Sellers' testimony corroborated that of Wooley's
and his brother's. In effect, it was that Esposito had asked
the group if they had any complaints, and that Robert Sell-
ers had said they were being worked too hard. Esposito
invited them to quit if they thought they were working too
hard, and then said Davis had told him he was the union
steward. Snider then said that they had never had any trou-
ble with the Union, and they wouldn't have any; that Davis
was nothing but a troublemaker. Esposito added that he
would fire anyone to get to the troublemaker.
(c). After the meeting in the kiln area ended , Esposito
and Snider walked back to talk to Davis again. Esposito said
he had talked to the men, that it didn't seem they had any
problems, and that it was Davis who was creating the prob-
lem. He said that he wanted it stopped, that he would fire
the whole bunch to get at the right man, and that he would
fire on the spot any man going to the Union.
(d). Later that evening, Esposito and Schlesser called
Robert Sellers into the office. Esposito asked him about
Davis, saying that he had heard that Davis wanted nothing
but trouble. Esposito also asked him why he didn't come to
work in his own car, instead of driving with Davis as he did.
Esposito also told Sellers , according to the latter, that the
men did not need a union steward in the plant.
2. The testimony for the Respondent
As set out above, there were four allegedly significant
incidents occurring on July 13: (a) the first conversation
between Davis, Esposito, and Snider; (b) the meeting in the
225
kiln area between some of the company officials and a
number of employees; (c) the second conversation with
Davis , following the meeting in the kiln area ; and (d) a
conversation between Robert Sellers , Esposito , and Schles-
ser. Following is a summary by the various witnesses for the
Respondent as to these incidents.
(a) and (c). Esposito was asked whether he had ever told
Davis not to call the Union, and denied that he had. Snider
was asked if he and Esposito had had any discussion with
Davis on July 13 concerning the Union, and he answered
generally that he had never discussed the Union with any-
one. Neither was asked anything about the other comments
which Davis testified they made , and I therefore consider
Davis' version of what happened then to be true.
(b). The thrust of the testimony for the Respondent as to
what took place in the kiln area is a denial that there was
in fact a meeting called by Esposito of the employees work-
ing there. According to Esposito, he was walking through
the area when he noticed that the men were not coordinat-
ing their efforts . He asked them what the problem was, and
Robert Sellers replied that Davis had told them they didn't
have to do certain jobs. Esposito said he told the men that
Davis wasn't the boss there, and if they listened to him
they'd get nothing but trouble. Sellers then asked him if that
meant Davis wasn't their union steward , and Esposito an-
swered that that was what he meant. Just then Spears
walked in, and Esposito asked him as the son of the union
man, if they had ever had any problems with the Union.
Spears replied, predictably, that they hadn't. Esposito ex-
plained his assertion that the men would get into trouble
listening to Davis , as being called for by what he felt was
Davis' intrusion into management affairs , that is, telling the
men that they did not have to do all the work assigned them.
He denied telling them that they didn't need a union.
According to Spears, Esposito was explaining to the
group how they should be working together, when someone
said that Davis had told them something which he did not
remember, and that Esposito had replied by telling them not
to listen to Davis, that he was not a boss around there, and
that it was he , Snider , and Schlesser who would tell them
what to do. Spears' testimony would make it appear that
there had been no earlier reference to the Union before
Esposito asked him if the Company had ever had any trou-
ble with the Union. He said he heard no complaints from
any of the men about the pusher pushing them too hard, nor
did he hear Esposito or Snider threaten that people would
be fired to get at the troublemaker. However, he did remem-
ber Esposito telling the men that they should not listen to
Davis and that he was getting them into trouble.
Snider testified that he and Esposito had not gone to the
kiln area to call a meeting of the employees at work there,
although it appears that most of them were drawn into a
group as Esposito began talking. Snider said that Wooley
came in later , and that Spears was there almost from the
beginning. He said Esposito had noticed some of the men
standing around unoccupied while a pallet was being oiled,
but does not remember much of the conversation that en-
sued when Esposito remonstrated with them . He did not
recall Esposito saying anything about Davis, union stew-
ards, or troublemakers , nor did he hear Esposito threatening
to fire anyone.
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d). As to the conversation later that evening with Robert
Sellers, Schlesser testified that Esposito had told Sellers that
he didn't want him to think that Davis had any authority,
or that he should listen to him . Esposito also told Sellers that
rather than go to Davis with his problems , he should talk to
a company official . Schlesser said he did not remember
Esposito referring to Davis as a troublemaker , or saying that
the employees did not need a union in the plant, or that
Sellers should not ride with Davis.
July 14 to 24
The next day, July 14, Davis testified that he told Snider
that some of the men thought they had been shorted in their
pay and had asked him to take it up with Snider . Snider then
told Davis that if the men had problems they should come
directly to him, and that Davis should relay that message to
them . Snider denied that Davis had spoken to him about
anyone's shortage but his own, but said that two other men,
Johnson and Wooley, had each come to him individually
about his own claimed shortage in pay, that he had checked
it out and had corrected Johnson 's pay, the only one of the
three where a mistake had occurred.
The following Thursday, July 20, Davis complained to
Schlesser that he was feeling ill. Schlesser sent him to Snider
who told him , according to Davis, to go home if he was ill
and to come back when he felt better . Snider's version is
that Davis had come to him to say that he and Lonnie
Sellers were ill and wanted to go home , and that he had told
Davis he should have said something about it before the
concrete mixing machine had been started up , because now
he could not let it run without a full crew . Snider said that
Davis then offered to stay if he wasn 't pushed and if the
machines could be slowed down. Snider said it could not be
done , that he had to get the concrete out of the machine
once it is delivered to the mixer. He said he then told Davis
that if he was sick and could not work , he should go on
home . Davis and Lonnie Sellers then punched out about 6
p.m.
Neither came in to work the following day. Robert Sellers
told Snider that his brother was sick, and would bring a
doctor's excuse in on Monday , the next working day . Snider
said he asked him about Davis , and that Sellers said he did
not know about Davis' condition . Davis testified that he
called Friday to report that he was still sick , but that no one
answered the phone. Snider claimed that there was always
someone in the office to answer the phone from 6 a.m. to
6 p.m., and that Davis should have been able to reach
someone at the plant before the scheduled start of his shift
at 3:30 p.m.
When Davis and Lonnie Sellers came back to work on
Monday, July 24 , their timecards were not in the rack. Sni-
der then told Davis that he was discharged for not letting
him know that he would not be in on Friday, claiming that
he had lost 2 days' production because of the absences.
Lonnie Sellers either quit or was discharged at the same
time. His termination is not in issue here.
Respondent 's Reasons for Discharging Davis
Davis brought his discharge to the Union 's attention, and
the Union inquired of Esposito on his behalf. On July 27,
Esposito wrote a letter (G.C. Exh. 2) to the Union , giving
the reasons for Davis' dismissal . It states that Davis had
missed 2 complete days of work, had refused to do work
assigned to him , and had caused unrest with all the men
associated with him. The second paragraph also states that
Davis gave the Company only a minimal amount of work
when he was there.
In its answer to the complaint , received by the Regional
Director on October 13, Respondent offered the following
explanation for the discharge: (a) that on Thursday, July
20, Davis left the plant without explanation or cause, about
3 hours before the end of his shift , causing it to lose a
substantial amount of production time, in that four other
employees were unable to perform their duties; and (b) that
the next day, Davis did not appear for work without expla-
nation or cause , again causing it to lose a substantial
amount of production time plus other losses in wages and
material.
In its brief to me after the hearing, Respondent argues
that Snider alone was responsible for discharging Davis,
and that his reasons were that Davis was a probationary
employee who could be dismissed even without adequate
cause; but that, in any event, he was discharged for leaving
work on Thursday and for not calling in on Friday, without
proper excuse or explanation , and because of his poor work
performance from the date he was hired.
It will be noted that neither the answer nor the brief
mentions the charge made in Esposito's letter to the Union
of July 27, almost contemporaneous with Davis' discharge,
that Davis had been causing some sort of undefined unrest
among the other employees; and that the answer relies sole-
ly on Davis' leaving work early on Thursday and not ap-
pearing the next day "without explanation or cause,"
without mentioning his alleged incompetence.
The evidence , in my view, does not sustain Respondent's
contention that Davis left work on Thursday when he
claimed to be ill, without adequate cause or explanation.
Snider himself testified that Davis had offered to stay even
though he felt ill, if production was slowed down, that Sni-
der rejected the offer because the concrete had already been
mixed , and that he told Davis to go on home if he was too
sick to work at the expected production rate. This certainly
constitutes what I would find to be an adequate explanation
of why Davis could not work, as well as a release to leave
work early by the proper authority at the plant. Snider may
well have been unhappy about losing the services of two
men after the production process had been started, but it is
clear that they left with his knowledge and with his grudging
consent.
Davis said that he tried to phone in the next day but was
unable to reach anyone in the office . I find that hard to
believe , particularly in view of other testimony of his that
the practice at Vulcan had been not to call in every day of
an illness , implying thereby that he considered the same
procedure was to be followed at Illinois . In any event, Davis
did not get in touch with Snider or Schlesser to let them
know that he would not be coming in on Friday, and Snider
had good reason to be upset at the loss of another day's
production.
During most of his short period of employment for Illi-
ILLINOIS CONCRETE PIPE CO. 227
nois, Davis was assigned to making wire cages which were
inserted into the forms in which concrete was poured to
make pipe . His job consisted in unrolling wire mesh , cutting
it to the proper size, and tack-welding the ends to form a
cylindrical cage. Davis had done that work at Vulcan during
his 3 years of employment there, as well as other types of
work. As to his competence and proficiency while working
for Illinois, there is a wide disparity of opinion . The witness-
es for the General Counsel who worked with Davis de-
scribed him as turning out sufficient cages to keep ahead of
the production of pipe , while the Respondent 's witnesses
uniformly described him as slow, lackadaisical, and below
average in the quality of his work.
In the absence of any objective data on Davis' production
or that of other cage makers, it is difficult to determine the
adequacy of his work. It is perhaps sufficient to say that I
believe Respondent's contention that he was wholly incom-
petent to be grossly overdrawn, particularly the testimony
that Snider and Esposito had to be called in some nights to
assist in making cages so that the production of pipe would
not be delayed.
Analysis and Conclusions
National and its chief officials , Esposito and Snider, had
enjoyed a tranquil relationship with the Union for many
years . It negotiated and signed union agreements , permitted
the Union 's business agents to come onto the premises and
talk to the employees , mainly for the purpose of collecting
moneys owed it, but otherwise heard little from the Union.
There was no union steward at National 's plant at Franklin
Park and, in Esposito's phrase, there had never been any
union trouble there, which he apparently equated with an
absence of employee grievances.
This equable state of affairs was threatened when Davis
and the other former Vulcan employees were assigned to the
Franklin Park plant to work for Illinois. Davis claimed to
be the union steward , and whether in fact his official status
as steward continued ' is, in my opinion , immaterial, since
he regarded himself as representing the employees on behalf
of the Union, and had never been told otherwise by any
union official.
Davis' testimony, which I credit where it conflicts with
that of Respondent 's witnesses , was that he had told Esposi-
to on July 6, that he was the union steward, and that Esposi-
to had immediately retorted that he didn't know what duties
he could have at Franklin Park since there was no steward
there . Snider and Schlesser also learned from Davis that he
considered himself as having some union function to play
at his new employment, while Schlesser had seen Davis
holding meetings with the men during working hours.
Davis had made at least two calls to the Union from the
office phone between July 10 and 13, and these served as the
occasion for Esposito to talk to him about it the evening of
July 13. Davis testified that Esposito had asked him if he
was calling the Union every night, while Esposito said that
he had never told Davis not to call the Union. I do not know
1 Budack , the business agent , considered his status as steward to be limited
to the Hodgkins plant , while Spears , the assistant business agent , had told
him to continue to act as steward at Franklin Park.
if Esposito thought he was thereby contradicting Davis'
testimony, but in any event, I credit Davis.
I also credit Davis as to what Esposito told him in their
first conversation on July 13, that if the men had problems
they should come to him and not to the Union; that Davis
was nothing at the plant, and he would eventually fire every
man there to get at the troublemaker ; and that it seemed
that Davis was making trouble. Esposito did not deny any
of this . In their conversation that same evening , Esposito
accused Davis of creating problems in the plant . That these
problems related to the Union is made clear by Esposito's
following statement that he would fire on the spot any man
going to the Union.
As for the conversation in the kiln area between Esposito,
Wooley, and the two Sellers brothers that same evening, I
credit the versions of the employees testifying for the Gener-
al Counsel . I find that Esposito went into the area to meet
with the employees whom he assembled around him in or-
der to emphasize that they were not to regard Davis as their
spokesman or representative, and that if they listened to him
they would be in trouble . I find that Esposito was concerned
that the employees were listening to Davis and that they
might object to the way their work was organized at the
plant , and was determined there would be no questioning
of his arrangements . Although Davis had not said or done
anything yet about the working conditions at Franklin Park,
I am satisified that Esposito resented that Davis was show-
ing signs of concern about the employees ' interests , and that
he regarded such concern as "trouble ." And later that eve-
ning, Esposito told Robert Sellers that the men did not need
a union steward in the plant.
I credit Davis' testimony that he approached Snider the
next day as the spokesman for some employees who thought
they had been shorted on their paychecks. This was the first
overt sign that Davis intended to represent any fellow em-
ployees who had a grievance.
I find, based on the foregoing summary and on the fuller
recitation of the testimony set out previously, that Esposito
was opposed to the Illinois employees acting concertedly for
their mutual aid or protection, and particularly to Davis'
assumption of a role as their representative.
I also find that Esposito and Snider seized on Davis'
unexcused absence on Friday, July 21, as a pretext to dis-
charge him. I have already noted that Davis left early the
day before with Snider's knowledge and consent, so that
Respondent's argument that Davis was away "without ex-
planation or cause" on Thursday weakens its argument that
it terminated him for his 2-day absence. Davis was at fault
for not calling in on Friday but, under all the circumstances,
I find that he would not have been discharged for that
reason alone. I base this on the fact that Esposito told the
Union, just 3 days after the discharge, that one of the rea-
sons for letting him go was that he was causing unrest
among the men. In the light of Esposito's freedom from any
union constraint at Franklin Park before Davis and the
other Illinois employees arrived there on July 10, I am satis-
fied that "unrest" and "trouble" were synonymous to him
with the first indications of a more independent attitude on
the part of employees than he was accustomed to.
I conclude from the foregoing findings of fact and the
inferences I have drawn from them that Esposito and Snider
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
knew that Davis was talking and acting as if he were a union
steward and that he intended to act on behalf of the Illinois
employees in the presentation of grievances; that they dis-
charged him, in whole or in part, because they were opposed
to his assumption of such a role and in order to discourage
union participation and further activities for the mutual aid
or protection of the employees; and that they threatened
and interrogated Davis, Wooley, and Robert and Lonnie
Sellers in the exercise of rights guaranteed them in Section
7 of the Act.
IV. THE REMEDY
In order to effectuate the policies of the Act , I find it
necessary that the Respondent be ordered to cease and
desist from the unfair labor practices found and from other
invasions of the Section 7 rights of the employees; to take
certain affirmative action, including the offer of reinstate-
ment to Ray Davis, with backpay computed on a quarterly
basis from the date of his discharge to the date on which the
Respondent offers him reinstatement , as prescribed in
F. W. Woolworth Company, 90 NLRB 289, plus interest at
6 percent per annum; and to post appropriate notices.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case , I make the following:
CONCLUSIONS OF LAW
1. Illinois Concrete Pipe Company is an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Construction and General Laborers' District Council
of Chicago and Vicinity is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discriminatorily discharging Ray Davis on July 24,
1972, thereby discouraging membership or participation in
the Union and activities for the mutual aid or protection of
its employees, the Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of
the Act.
4. By telling its employees that the union steward had no
authority in the plant, that the steward was a troublemaker,
that they would fire everyone to get at the troublemaker,
and that a union was not needed in the plant, the Respon-
dent has engaged in unfair labor practices within the mean-
ing of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 2
2 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings.
conclusions , and recommended Order herein shall, as provided in Sec 102 48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions , and Order, and all objections thereto shall be deemed
waived for all purposes.
ORDER
Respondent Illinois Concrete Pipe Company, its officers,
agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in, or participation in ac-
tivities on behalf of, Construction and General Laborers'
District Council of Chicago and Vicinity, or in any other
labor organization of its employees, or discouraging em-
ployees from acting concertedly for their mutual aid or
protection by discriminatorily discharging, or in any other
manner discriminating against any employee in regard to
hire, tenure, or any other term or condition of employment.
(b) Interfering with, restraining, or coercing its employ-
ees by telling them that the Union was not needed in the
plant, that the union steward had no authority and was a
troublemaker, and that it would fire everyone to get at the
troublemaker.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization , to form labor organizations, to join or assist
the above-named labor organization or any other labor or-
ganization, to bargain collectively through representatives
of their own choosing, to engage in other concerted activi-
ties for the purpose of mutual aid or protection as guaran-
teed in Section 7 of the Act, or to refrain from any or all
such activities.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Offer to Ray Davis immediate and full reinstatement
to his former job at the Respondent's plant at Franklin
Park, Illinois, or, if that job no longer exists, to a substantial-
ly equivalent position, without prejudice to his seniority or
other rights and privileges, and make him whole for any loss
of earnings suffered by reason of Respondent's discrimina-
tion against him, in the manner set forth in the section
entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other reports necessary to
analyze the amount of backpay due and the right to rein-
statement.
(c) Post at its plants at Franklin Park and Hodgkins,
Illinois, copies of the attached notice marked "Appendix. "3
Copies of the notice, on forms provided by the Regional
Director for Region 13, after being duly signed by an au-
thorized representative of the Respondent, shall be posted
immediately upon receipt thereof, and be maintained for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced or covered
by any other material.
(d) Notify the Regional Director for Region 13, in writ-
ing, within 20 days from the date of this Order, what steps
3 In the event the Board 's Order is enforced by a Judgment of the United
States Court of Appeals , the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
ILLINOIS CONCRETE PIPE CO. 229
the Respondent has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in or participa-
tion in activities on behalf of Construction and General
Laborers' District Council of Chicago and Vicinity, or
in any other labor organization , or discourage employ-
ees from acting concertedly for their mutual aid or
protection , by discharging , or in any other manner dis-
criminating against any of'our "employees in regard to
hire, tenure, or any other term or condition of employ-
ment.
WE WILL NOT tell our employees that the Union was
not needed in the plant, that the union steward had no
authority or that he was a troublemaker , or that we will
fire everyone to get at the troublemaker.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce our employees in the exercise of the
rights guaranteed by Section 7 of the Act.
WE WILL offer Ray O . Davis immediate and full rein-
statement to his former job at our plant at Franklin
Park, Illinois, or , if that job no longer exists, to a sub-
stantially equivalent position , without prejudice to his
seniority or other rights and privileges , and we will
make him whole for any loss of earnings suffered by
reason of the discrimination practiced against him.
Dated By
ILLINOIS CONCRETE PIPE COM-
PANY
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consectuve days
from the date of posting and must not be altered , defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board 's Office , Everett
McKinley Dirksen Building, Room 881, 219 South Dear-
born Street , Chicago , Illinois 60604 , Telephone 312-353-
7572.