Louisiana Industries, Inc.

National Labor Relations Board - Board Decisions

Jun 2, 1970

182 N.L.R.B. 976 (N.L.R.B. 1970)

976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Louisiana Industries , Inc and Louisiana Lightweight
Aggregate Company, a Division of Texas Industries,
Incorporated and Truck Drivers & Helpers Local
No 568 a/w International Brotherhood of Teamsters,
Chauffeurs , Warehousemen & Helpers of America, Ind
Cases 15-CA-3628 and 15-CA-3628-2
June 2, 1970
DECISION AND ORDER
By MEMBERS FANNING, BROWN, AND JENKINS
On February 24, 1970, Trial Examiner Samuel Ross
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached
Trial Examiner's Decision The Trial Examiner also
found that the Respondent had not engaged in certain
other alleged unfair labor practices Thereafter, the
Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief, and the General Counsel
filed an answering brief
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the National
Labor Relations Board has delegated its powers in con-
nection with these cases to a three-member panel
The Board has reviewed the rulings of the Trial Exam-
iner made at the hearing and finds that no prejudicial
error was committed The rulings are hereby affirmed
The Board has considered the Trial Examiner's Decision,
the exceptions, the briefs, and the entire record in
this case, and hereby adopts the Trial Examiner's
findings, conclusion, and recommendations for the rea-
sons that follow
1 The Trial Examiner found, and we agree, that
by refusing, on and after April 10, 1968, to bargain
with the certified Union, by dealing directly with unit
employees in respect to rates of pay and other conditions
of employment, by unilaterally and without bargaining
with the exclusive representative of the unit employees
offering and later granting them a wage increase and
other benefits, and by telling the employees that its
wage offer was more than they would receive by bargain-
ing through their collective- bargaining representative,
the Respondent violated Section 8(a)(5) and (1) of the
Act
2 We also agree with the Trial Examiner that
Respondent's peremptory discharge of employee Julius
W Ashmore on August 28, 1969, was discriminatorily
motivated in violation of Section 8(a)(3) and (1) of
the Act We rely particularly on the following credited
evidence On August 8 Respondent convened a meeting
of all its ready-mix drivers and batchmen, including
discriminatee Ashmore The Company's spokesman was
J Nelson Ball, III, a vice president of Respondent's
parent company Ball stated that he was prepared to
offer the employees an immediate 25-cent-per-hour
increase in wages, a probable increase of 25 cents per
hour a year later, and a guarantee of 40 hours of
productive work each week He stated, however, that
he would not put the 40-hour offer into writing Ball
also said that the proposed wage increases were "proba-
bly more than [the employees] would get if [they] were
in the Teamsters ' and that "he was prepared to
take the [refusal to bargain] case into the Supreme
Court, if he had to, to keep [the employees] out of
the Teamsters " Ball then told the employees to think
over his offer, to designate a representative or a commit-
tee to talk to him about it, and that he wanted to
hear their feelings about his offer On August 11 or
12 Manager Ernest B Granger questioned Ashmore
as to his reaction to Ball's offer Ashmore replied that
the wage offer was satisfactory, "[b]ut that forty hour
week, without anything in writing, I didn't particularly
go for that " Granger then attempted to persuade Ash-
more that Ball would keep his word but Ashmore con-
cluded the conversation by saying "Well, I don't know
him that well " Ashmore was the only employee whose
views were on the proposed wage increase were sought
by Granger I On August 12 the Union forwarded to
Respondent a petition signed by 31 ready-mix drivers
and batchmen, including Ashmore, declaring that the
signatories were no longer members of the previously
recognized Laborers Union, that they did not wish to
be represented by the Laborers, and that the certified
Teamsters Union was their "unanimously selected" bar-
gaining representative
On August 27 Granger requested Ashmore to make
an after-hours delivery of bulk cement to a customer
some 90 miles away The assignment required Ashmore
to drive a tractor-trailer whereas he normally drove
a ready-mix truck Before he departed, Granger and
Vercher, the regular driver of the tractor-trailer, warned
him that the clutch of the tractor was "tricky," and
it was easy to burn up, and that it had been bad
ever since it had been acquired by the Respondent
some 3 years before Vercher advised Ashmore to shift
gears without using the clutch at all times after the
truck was rolling Ashmore was met at his destination
by Willard Wiley, Manager of Respondent ' s Monroe
plant, who aided him in the unloading process At that
time Wiley informed Ashmore that he had received
a call from the Company's Alexandria office to send
them a concrete right-of-way marker and requested his
assistance in carrying it from the trunk of his car to
the cab of the truck 2 The heavy and unwieldy marker3
was propped upright against the right hand seat and
the top was wrapped in rags Wiley cautioned Ashmore
to see that it did not roll against the door and cause
damage In fact, on the return trip the marker shifted
position and rolled against the door The next morning
Vercher inspected his truck and discovered dents in
the side door and a hole in the fiberglass innerliner
in the rear of the cab Before notifying anyone of
Granger and Ashmore were apparently high school classmates
' No rope was available to secure the marker in the trailer portion
of the truck
' The marker weighed about 150 lbs and was 41h to 5 feet long
and about 5 inches square
182 NLRB No 138
LOUISIANA INDUSTRIES
the damage , Vercher proceeded to drive the truck to
Olla, Louisiana. About 3 miles out of Alexandria the
clutch "froze" in gear and could not be driven further.
Vercher notified the dispatcher about the clutch problem
and also advised him about the damaged cab. The dis-
patcher sent out a mechanic and then notified Granger
about the damage.
Granger met the truck in Olla, inspected the cab
interior and, assertedly, then and there decided to fire
Ashmore without further inquiry .4 Granger , however,
returned to his office in Alexandria and called Manager
Wiley in Monroe who informed him that it was he
who instructed Ashmore to transport the marker in
the cab. In spite of that information , Granger told
Respondent 's payroll clerk to prepare a final paycheck
for Ashmore up to 3 p.m. that day and told the dispatcher
to send Ashmore to his office. Ashmore went to Gran-
ger's office at 2:50 p.m., whereupon Granger angrily
told him that he had no use for anyone who knew
no better than to tear up the cab of a truck and a
clutch like that. Ashmore replied that he had acted
under instructions from Manager Wiley , but Granger
retorted that he " didn 't care who put the right-of-way
marker in the truck" and that Ashmore, as a driver
"should have known better ." Granger then gave Ash-
more his final paycheck and informed him he was dis-
charged . The next day Ashmore received a "Separation
Notice Alleging Disqualification " signed by Granger
which stated that the reasons for his discharge were
(1) his failure on August 27 to comply with Respondent's
rule as to reporting on the two-way radio; (2) his poor
"attitude towards equipment " as evidenced by the dam=
age caused by the marker; and (3) his failure to follow
instructions regarding use of the clutch which "directly
caused" its failure . Prior to his discharge , Ashmore
had never been reprimanded by Respondent for either
his work or behavior and was admittedly regarded by
Granger as a competent and satisfactory employee.
Without more , we would hold that by the foregoing
the General Counsel has established a prima facie case
of discriminatory discharge . Respondent 's union animus
is established by Ball's action at the August 8 meeting
in offering the employees a wage increase and other
benefits , his statement that the wage offer was more
than they would have received through the Teamsters,
his further statement that he was prepared to take the
refusal to bargain case to the Supreme Court to keep
the employees out of the Union , and his request that
the employees designate a committee to- discuss his
offer with him. All this plainly, discloses Respondent's
purpose was to discourage support of the Union and
to subvert and undermine its status as collective -bargain-
ing representative of the employees . Respondent gained
knowledge of Ashmore' s union adherence through the
August 12 petition and Granger ' s singling him out for
discussion as to his feelings about Ball's offer . Finally,
Ashmore' s precipitous discharge in the face of his
unblemished employment record and the evidence that
he was acting under orders are more than sufficient
Granger inspected the truck about 10 a in.
977
basis to infer a discriminatory motivation . This strong
inference of illegal motivation , however, is further aug-
mented by the fact that the Respondent ' s asserted non-
discriminatory reasons for the abrupt discharge simply
do not withstand scrutiny. Thus, as is more fully detailed
by the Trial Examiner , Ashmore' s alleged failure to
use the truck's two-way radio on August 26 was never
raised during his terminal interview. The record shows
that in the past failures to call in have been the subject
of simple reminders to remember to do so in the future.
Granger admitted no one has ever been fired for such
failure and that Ashmore would not have been fired
"for that alone ." With regard to Ashmore' s responsibili-
ty for the failure of the clutch, the record is clear
that the clutch had been faulty for years and that Verch-
er, not Ashmore , was driving when it failed . On examina-
tion Granger admitted that a clutch may fail for reasons
other than faulty driving and there is no evidence that
Ashmore at that time , or at any time , drove in a negligent
manner . Finally, Respondent ' s assertion that the damage
to the cab interior reflected Ashmore' s improper "atti-
tude toward our equipment" is totally unworthy of
credence. Granger was well aware before the discharge
that Ashmore was under managerial instruction to trans-
port the marker the way he did. Although Granger
might have been understandably "mad" upon observing
the damage , he in fact waited 5 hours before dismissing
Ashmore and in the interval determined Manager Wiley's
primary responsibility for the hauling of the marker.
Indeed, to the date of the hearing Respondent had
taken no steps toward repairing the damage or even
obtaining an estimate of the cost of such repair. In
sum, the asserted grounds for discharge put forth by
Respondent are patently pretextuous and advance rather
than detract from the General Counsel's prima facie
case . Accordingly, we will affirm the Trial Examiner's
findings, conclusions , and recommendations in this
regard.
ORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions Act , as amended, the National Labor Relations
Board adopts as its Order the Recommended Order
of the Trial Examiner , as modified herein, and hereby
orders that Respondent , Louisiana Industries Inc., and
Louisiana Lightweight Aggregate Company , Alexandria,
Louisiana, its agents , officers , successors , and assigns,
shall take the action set forth in the Trial Examiner's
Recommended Order , as so modified:
1. Delete the first two lines of paragraph 2(a) and
substitute the following:
"(a) Offer Julius W. Ashmore immediate and full
reinstatement to his former job or , if that job no longer
exists , to a substantially equivalent position , without
prejudice to . . ."
2. Delete line 3 of the last indented paragraph on
page 1 of the Notice to Employees and substitute the
following:
. . . him immediate and full reinstatement to his
former job or, if that job no longer exists, to
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a substantially equivalent position, and WE WILL
pay him
in operations affecting commerce within the meaning
of Section 2(6) and (7) of the Act
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
SAMUEL Ross, Trial Examiner Upon charges filed
August 18 and September 3, 1969, respectively, by Truck
Drivers & Helpers Local No 568 a/w International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
& Helpers of America, Ind (herein called the Team-
sters), the General Counsel of the National Labor Rela-
tions Board issued a complaint on November 13, 1969,
which alleges that Louisiana Industries, Inc , and Louisi-
ana Lightweight Aggregate Company, a Division of
Texas Industries, Incorporated (herein collectively called
Respondent or the Company), had engaged in and are
engaging in unfair labor practices within the meaning
of Section 8(a)(1), (3), and (5) and Section 2(6) and
(7) of the Act More specifically, the complaint alleges
that the Respondent violated Section 8(a)(3) and (1)
of the Act by discharging an employee because of his
adherence to and activities on behalf of the Teamsters
and to discourage union and concerted activities by
its employees, that it violated Section 8(a)(1) of the
Act by interrogating employees concerning their union
sympathies, and that it violated Section 8(a)(5) and (1)
of the Act, by failing and refusing to meet and bargain
with the Teamsters, by offering and granting wage
increases to its employees, and by dealing directly with
the employees in this respect, notwithstanding that the
Teamsters was certified by the Board as the exclusive
representative of said employees The Respondent filed
an answer which denies the substantive allegations of
the complaint and the commission of unfair labor prac-
tices
Pursuant to due notice, a hearing in this case was
conducted before me at Alexandria, Louisiana, on
November 13, 1969 Upon the entire record, and my
observation of the witnesses and their demeanor, and
after due consideration of the briefs filed by the General
Counsel and the Respondent, I make the following
FINDINGS OF FACT
I COMMERCE
The two corporations named as the Respondent in
the caption of this case are wholly owned subsidiaries
of Texas Industries, Incorporated At all times material
herein the Respondent has been engaged at Alexandria,
Louisiana, in the production and sale of concrete During
the past 12 months, a representative period, the Respond-
ent has purchased in the course of its business operations
goods and materials valued in excess of $50,000 which
were shipped directly to it in Alexandria, Louisiana,
from places outside the said State
On the foregoing admitted facts, the Respondent con-
II THE LABOR ORGANIZATION INVOLVED
The Teamsters is, and at all times material herein
has been, a labor organization within the meaning of
Section 2(5) of the Act
III THE UNFAIR LABOR PRACTICES
A Background
Since about 1958, the Respondent's ready mix drivers
and batchmen employed at its Alexandria, Louisiana,
facility were represented by General Construction and
Laborers Union Local 1229, AFL-CIO (herein called
the Laborers), pursuant to collective-bargaining agree-
ments between that Union and Respondent The last
such agreement expired on August 17, 1967 On August
18, 1967, the Teamsters filed a petition with the Board
for certification as the representative of various classi-
fications of Respondent's employees at the Alexandria
facility, including the ready-mix drivers and batchmen
previously represented by Laborers
At the hearing on said petition, the Respondent and
the Laborers (who intervened in the proceeding) contend-
ed that a collective-bargaining agreement between them
which covered the period from August 17, 1967, through
August 17, 1969, barred the election sought by the
Teamsters After the hearing, the Regional Director
of the Board issued a Decision and Direction of Election
on October 6, 1967, in which he found that the said
contract was not a bar to the election because it had
been executed on August 21, 1967, after the filing of
the Teamsters' petition, and also because it contained
a union-security provision which, on its face, unlawfully
required membership in the Laborers within 15 days
of employent, notwithstanding that the Respondent was
not an employer primarily engaged in the building and
construction industry within the meaning of Section
8(f)(2) of the Act In addition, the Director's Decision
found that in the light of the integration and interdepen-
dent functioning of the Respondent's various depart-
ments, and the substantial interchange of employees
among the said departments, the appropriate unit should
include not only the ready-mix drivers and batchmen
but also (as the Respondent contended) all the Compa-
ny's production and maintenance employees at its Alex-
andria operation A request for review of the Regional
Director's Decision and Direction of Election was not
sought by any of the parties involved
At the election which followed on October 27, 1967,
the Teamsters received a substantial majority of the
votes cast 2 No objections to the election were filed,
and on November 6, 1967, the Regional Director certified
the Teamsters as the exclusive representative of
' Case 15-RC-3737
cedes, and I find , that it is engaged in commerce and E There were no votes cast for the Intervenor Laborers
LOUISIANA INDUSTRIES
Respondent's employees in the following appropriate
unit:
All production and maintenance employees of
the Employer's Alexandria, Louisiana, operations,
including truckdrivers; excluding all office clerical
employees, guards, watchmen and supervisors as
defined in the Act.
The Respondent thereafter refused to bargain with
the Teamsters, a charge was filed by the latter, and
a complaint thereon issued by the General Counsel,
alleging that the Company had engaged in unfair labor
practices within the meaning of Section 8(a)(5) and (1)
of the Act.' In the proceeding which ensued, the
Respondent reiterated its claim that its contract with
Laborers should have barred the election, and in addition
offered to prove that the unit determined by the Regional
Director was inappropriate. The Board rejected these
contentions and concluded in its Decision and Order
which issued on April 10, 1968,4 that the Respondent
had engaged in unfair labor practices within the meaning
of Section 8(a)(5) and (1) of the Act by refusing to
bargain with the Teamsters.
Thereafter on July 2, 1969, on petition by the Board,
the Court of Appeals for the Fifth Circuit issued its
opinion enforcing the Board's Order,5 and on September
8, 1969, the court denied the Respondent's petition
for rehearingti On November 1, 1969, the Respondent
petitioned the Supreme Court for a writ of certiorari
to the Fifth Circuit. That petition was denied by the
Court on January 19, 1970,1 after the hearing in the
instant case was closed.
The Respondent admits that, since certification by
the Board, the Teamsters on several occasions formally
requested it in writing to. bargain, and that on each
.such occasion it refused in order to test the validity
of the certification.
B. The August 1969 Unilateral Wage Increase
On about August 8, 1969,' 1 month after the court
of appeals enforced the Board's Order directing
Respondent to bargain with the Teamsters, the Respond-
ent convened a late afternoon meeting in the drivers'
shack at Alexandria of all its ready-mix drivers and
batchmen who previously had been represented by
Laborers." J. Nelson Ball, III, a vice president of
Respondent's parent company Texas Industries, Inc.,
and Regional Manager of the North Louisiana Region,
including Alexandria, Monroe, and Shreveport, was the
Company's spokesman at this meeting.
Ball admittedly said that he was prepared to offer
the employees who attended the meeting an immediate
increase in wages of 25 cents per hour, a probable
additional increase of 25 cents per hour a year later,
Case 15-CA-3221
Louisiana Industries, Inc , 170 NLRB No 137
N L R.B v. Louisiana Industries, 414 F 2d 227 (C A. 5)
Louisiana Industries, Inc v N L R.B , 396 U S 1039
All dates hereinafter refer to 1969 unless otherwise noted
Theretofore, the only meetings which these employees were required
by Respondent to attend were safety meetings
979
and a guarantee of 40 hours of productive work each
week if they wanted it. Ball concededly also said that
he could not put the 40-hour guaranteed workweek
in writing, and that the work so provided would not
necessarily be at the employee's regular work assign-
ments."
Employee witnesses credibly testified that Ball also
said that the proposed wage increases were `.`probably
more than .we would get if we were in the Teamsters
and that "he was prepared to take the [refusal
to bargain] case into the Supreme Court, if he had
to, to keep us out of the Teamsters.""' Ball admittedly
also told the drivers and batchmen.to think over his
offer, to designate a representative or a committee to
talk to him about it, and that he "would like to have
an expression of their feelings" about his offer.
On the day after this meeting , some of the employees
who attended reported what had occurred to Robert
E. Rimes, a business representative of Teamsters. Rimes
then prepared a petition addressed to the Respondent
which stated that the undersigned no longer were mem-
bers of Laborers, did not desire to be represented by
it, and that the Teamsters was their "unanimously select-
ed" bargaining representative. During the next 3 days,
this petition was circulated among the ready-mix drivers
and batchmen and signed by 31 of them. On August
12, the Teamsters sent this petition by certified mail
to Respondent and a copy to, the Assistant General
Counsel of the Board in charge of enforcement proceed-
ings."
On August 18, notwithstanding receipt of the above
petition, and admittedly without bargaining with the
Teamsters, the Company by letter notified its employees
that it had put the wage rates in effect on August
14, and that the new wages would be reflected in their
payroll checks on August 27.12 The employees subse-
quently received the-25•cent per hour wage increase
which Ball had offered them. 13
" Before this meeting, these employees did not always have 40 hours
of work available to them each week
" The quotes are from the credited testimony of John H Whitehead,
which was corroborated in substance by James E Starks, Lawrence
E Spurgeon, Julius W Ashmore, and Jewel Parker, all ready-mix
drivers then employed by Respondent whom I credit in these respects
Although Ball.did not categorically deny the testimony credited above,
his version of what he said at the meeting did not include the foregoing
and thus inferentially constitutes a denial thereof However , since as
found infra, and contrary to Ball's testimony, I am persuaded that
the reason for convening the meeting and for granting the wage and
benefit increases to these employees was to discourage support of
the Teamsters and to subvert its representative status, I regard the
testimony of the above -named employees as to what Ball said as more
reliable, than his version, and I therefore credit the latter only to
the extent that it accords with'the testimony credited above
G C. Exh 3
1RGCExh4
3 The record does not disclose whether the employees at any time
after their meeting with Ball, notified Respondent of their acceptance
of his proposed wage increase
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C Concluding Findings in Respect to the Unilateral
Wage and Benefit Increases
In essence, the complaint in this case alleges that
the Respondent violated Section 8(a)(1) and (5) of the
Act by
(a) Dealing directly with its employees in respect
to their wages and conditions of employment, and not
through Teamsters, their certified bargaining representa-
tive, (b) unilaterally, and without notice to or bargaining
with the Teamsters, offering and later granting employees
increased wages and a guaranteed work week, and (c)
by undermining and subverting the certified bargaining
representative, both by suggesting that employees deal
with Respondent through a committee, and by telling
them that the wage offer was more than what would
have been offered them through the Teamsters
The Respondent, relying on the testimony of its Vice
President Ball, defends as lawful its admitted conduct
of dealing directly with its employees and of unilaterally
(without notice to or bargaining with the Teamsters)
offering and granting them a wage increase and a guaran-
teed workweek The asserted grounds on which Respond-
ent defends its conduct are as follows
(a) It had a legal right to test the validity of the
Board's certification of Teamsters and to refrain from
bargaining or dealing with it while the litigation was
pending, and (b) it would be unfair and discriminatory
for it to withhold the raise from the drivers and batchmen
which it contemplated giving all its hourly rated employ-
ees pursuant to a policy, in effect since it recognized
Laborers, of annually reviewing and adjusting wages
in August, the anniversary date of its contracts with
Laborers
I regard the Respondent's contentions as without merit
both factually and legally for the reasons hereinafter
stated
The National Labor Relations Act makes it the duty
of an employer to bargain collectively with the chosen
representative of his employees, and, the obligation
being exclusive, it exacts the negative duty to treat
with no other 14 The Teamsters had been certified by
the Board as the exclusive representative of all the
Respondent's Alexandria production and maintenance
employees Although the Respondent undisputedly had
a right to test the validity of the Board's certification
under either Section 10(e) or (f) of the Act, the pendency
of that litigation did not "operate as a stay of the
Board's order" which required Respondent to bargain
exclusively with Teamsters as the representative of the
employees 15 Moreover, about August 8, when the
Respondent engaged in its admitted direct dealing with
the ready-mix drivers and batchmen, and when it later
that month unilaterally gave all its hourly rated produc-
tion and maintenance employees a wage increase, the
19 Medo Photo Supply Corporation v N L R B 321 U S 678
683-684 N L R B v Jones & Laughlin Steel Corp 301 U S 1 44
Sec 9(a) of the Act
11 Sec 10(g) of the Act N L R B v Winn Dixie Stores Inc 361
F 2d 512 516 (C A 5) cert denied 385 U S 935 Old King Cole
Inc v NLRB 260 F 2d 530 532(C A 6)
Court of Appeals for the Fifth Circuit had already
issued its opinion and entered judgment enforcing the
Board's Order and, so far as the record discloses, no
stay of the Board's Order had ever issued 11 The
Respondent thus had no legal right to deal directly
with its employees in respect to wages or other conditions
of employment merely because it was testing the validity
of the Board's certification of Teamsters as their repre-
sentative 17
We come then to the Respondent's contention that,
in the light of its policy of annually reviewing and
adjusting the wages of all its hourly rated employees
in August, it would be unfair and discnminatory to
withhold from its ready-mix drivers and batchmen the
wage increase which it intended to give its other hourly
rated employees
This argument has only superficial appeal which does
not withstand close scrutiny or analysis The Respond-
ent's prior policy was to review and adjust the wages
of its unrepresented hourly rated employees at the same
time as it gave its ready-mix drivers and batchmen
the wage increase which had been negotiated by the
latter's representative Laborers However, in August
1969, Teamsters was the certified representative of all
the Respondent's hourly rated (production and mainte-
nance) employees, a unit which included not only the
ready-mix drivers and batchmen who formerly had been
represented by Laborers, but also many more hourly
rated employees who previously had not been represent-
ed by any union Thus, the situation pursuant to which
the policy had been instituted no longer existed in August
1969 Significantly, the Respondent offered no evidence
that it was compelled either by business or other consid-
erations (such as the inability to secure or retain employ-
ees) to grant any wage increase in August 1969 Accord-
ingly, no emergency existed which required an immediate
wage increase, and nothing prevented the Respondent,
if it so desired, from notifying all of its hourly rated
employees in August that at the conclusion of the pending
litigation the wage increase then given or negotiated
would be made retroactive to August There was thus
no need for the Respondent to discriminate against
any of its employees
Moreover, contrary to Ball's testimony that the pur-
pose of the wage increase to batchmen and drivers
was solely to avoid discrimination against them, I am
persuaded by the record that the real motivation for
the August meeting with them was to discourage support
to the Teamsters and to subvert and undermine its
16 On September 12 after Respondent engaged in the conduct charged
herein as unfair labor practices and after the court of appeals had
denied the Company s petition for rehearing the court granted Respond
ent s motion to stay the court s mandate until October 12 to afford
the Company time to file a petition for a writ of certiorari The court
later extended the stay to November 1 However that stay did not
affect the operability of the Board s Order but merely precluded the
Board from instituting contempt proceedings based on the Respondent s
later refusal to bargain with the Teamsters while the petition for a
writ of certiorari was pending in the Supreme Court
1' Cf Medo Photo Supply Corporation v N L R B supra Benne
Katz etc v N L R B 369 U S 736 Quaker Tool & Die Inc 169
NLRB No 1148
LOUISIANA INDUSTRIES
status as their collective-bargaining representative. In
this regard, I rely on the following:
The Respondent had never before convened meetings
of drivers and batchmen to announce proposed wage
increases, and it significantly did not either convene
a similar meeting of its other previously unrepresented
production and maintenance employees to announce the
wage increase it was giving them, or solicit their views
as to whether the proposed increase was satisfactory.
Moreover, it clearly was unnecessary to offer the drivers
and batchmen a guaranteed work which they had not
previously enjoyed, or to tell them about an additional
wage increase which they would receive a year later,
if the Respondent's only purpose was to avoid discrimi-
nation while the litigation was pending. The announce-
ment and granting of these benefits, the statement that
the wage offer was more than they would have received
through the Teamsters,"the further statement that Ball
was prepared to take the case to the Supreme Court
to keep these employees out of the Teamsters, and
the request that the employees designate a committee
to discuss his offer with him, all clearly disclose the
Respondent's purpose to discourage and undermine their
support of Teamsters. 1
For all the foregoing reasons, I find and conclude
that by dealing directly with, the ready-mix drivers and
batchmen and not through their certified representative,
by unilaterally offering and granting employees wage
increases and other benefits without bargaining with
the Teamsters, by requesting the employees to select
a committee or representative to discuss its wage offer
with it, ' and by telling employees that its wage offer
was 'more ' than' they would receive through the Team-
sters, the Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (5) of the
Act.
D. The Respondent's Interrogation of Ashmore
Regarding its Wage Offer
Three or four days after Ball's August 8 meeting
with the ready-mix drivers and batchmen, Ernest B.
Granger, the manager of Respondent's ready-mix depart-
ment in Alexandria, asked ready-mix driver Julius W.
Ashmore what he thought about Ball's offer. Ashmore
replied, "Well, twenty-five cents an hour raise is good.
That is all I would hope to get out of the Union.
But that forty-hour week, without anything in writing, -
I didn't particularly go for that." Granger responded
by telling Ashmore that he had known Ball for a long
time , and that Ball' could be relied on to keep his
oral word regarding the guaranteed 40 hour workweek
without a written agreement. Ashmore then said, "Well,
IS The complaint (par 13) alleges and I find that by this statement
the Respondent, in effect, threatened employees with economic reprisals
if they bargained through Teamsters,' and that it thereby independently
violated Sec 8(a)(1) of the Act
'" N L R.B v Exchange Parts Company, 375 U.S 405, N L R B
v Benne Katz, supra, Quaker Tool & Die, Inc , supra
981
I don't know him that well," and the conversation
ended .211
The complaint (par. 14) alleges that by the foregoing
conversation between Ashmore and Granger, the
Respondent unlawfully "interrogated an employee con-
cerning his union sympathies and desires" in violation
of Section 8(a)(1) of the Act. Since I find nothing in
this conversation which' reasonably can be interpreted
either as interrogation of "union sympathies and
desires," or as interference, restraint, or coercion, 'I
shall recommend that this allegation of the complaint
be dismissed.21
E. Respondent's Termination of Julius W. Ashmore
Julius W. Ashmore was hired by Respondent as 'a
ready-mix driver in May 1968, after the Board election
which resulted in the certification of Teamsters as the
collective-bargaining representative of Respondent's pro-
duction and maintenance employees in Alexandria, Loui-
siana. Ashmore was peremptorily fired by Respondent
on August 28, 1969, under circumstances described
hereinafter. Prior to his discharge, Ashmore had never
been reprimanded by Respondent for either his work
or behavior, and he was admittedly regarded by his
supervisor, Manager Ernest B. Granger, as a competent
and satisfactory employee.21
During his employment by Respondent, Ashmore had
not joined any labor union. However, he was one of
31 employees who signed the petition which the Team-
sters prepared after Ball's August 8 meeting with the
drivers and batchmen (G. C.. Exh. 3). That petition
was mailed to Respondent on August 12 and admittedly
was received by it. The Respondent thus knew that
Ashmore was an adherent of Teamsters, the union whose
representation of its employees it opposed, and whose
certification by the Board it was seeking to overturn.
As previously noted, Manager Granger interrogated Ash-
more (after Ball's August 8 meeting with the drivers)
regarding his views of Respondent's wage offer and
Ashmore expressed distrust that the guaranteed work-
week promised by Ball would not be put in writing.
Ashmore was the only employee whose views on the
proposed wage increase were sought by Granger.23
On August 27, about 3 p.m., near the end of his
workday, Ashmore was requested by Granger to make
a delivery of bulk cement to a customer located in
"' The findings in respect to this conversation are based on Ashmore's
credited testimony Granger's version accorded substantially with that
of Ashmore
21 The complaint (par 12(c)) also , alleges this conversation as an
additional independent violation of Sec. 8(a)(5) of the Act However,
in view of my findings of Sec 8(a)(5) violations above, I deem it
unnecessary to determine whether this isolated and rather innocuous
conversation also constitutes a further violation of that section of
the Act
22 Ashmore also was regarded as a good worker by his fellow drivers
23 Granger testified that he similarly sought the views of all of his
drivers regarding the proposed wage offer , but I do not credit his
testimony in this regard because I regard his testimony as generally
unreliable, Respondent called no drivers to corroborate him in this
respect, and all of the drivers (except Ashmore) who testified denied
being questioned by Granger about Ball's wage offer
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Monroe , Louisiana , about 90 miles from Alexandria.
This assignment required, Ashmore to drive a tractor-
trailer,other than his regular ready -mix truck . Ashmore
was cautioned by Granger and Sam Vercher , the regular
driver of the tractor -trailer ; that the clutch on the tractor
was "tricky ," that it was easy , to burn ; up, and that
it had been bad ever since the tractor had been acquired
by the Company. Vercher advised Ashmore to use the
clutch only in first speed to get the tractor rolling from
a complete stop , and to ,shift speeds thereafter ' without
using the clutch. - , ,
Ashmore followed directions and drove the tractor-
trailer to the customer in Monroe . Upon arrival there,
Ashmore met Willard Wiley , Manager of the Respond-
ent's Monroe - plant , who assisted him in pumping the
bulk cement from the tank -trailer : While the delivery
was being effected , Wiley notified Ashmore that he
had received a , call from the Company's Alexandria
office to send them a concrete right -of-way marker (post)
and he , requested Ashmore to help him carry the post
from the trunk of :his car to the cab of Ashmore's
tractor . Ashmore complied with Wiley ' s request.; With
Ashmore's help , Wiley, placed the heavy and unwieldy
post24 in the cab of the truck and propped it in an
upright position with one, end op, the floorboard, the
center on the right -hand :sea't, and the ; other end pointing
towards the rear of the cab . Wiley.also wrapped the
top of the post with rags and cautioned Ashmore "to
keep an eye [on it] to see that it wouldn ' t roll against
the door, [and] do any damage . 25 After completing his
delivery of the bulk cement at Monroe , -Ashmore drove
the tractor -trailer back to the Company ' s yard in Alexan-
dria. During the return trip, the concrete post shifted
:position and,slipped , against the. door . Upon arrival at
Alexandria at about 11 . p.m.,-Ashmore , with the assist-
ance of the night watchman „ unloaded the post, and
observed in the - poor . light that. it,,-had ; caused ,,some
dents in the side of the door.
The next morning, Sam Vercher, the regular driver
of the tractor , - examined his' truck and observed that
a hole had been punched in the fiberglass innerliner
in the rear of the cab , that there were some dents
in the side door , and that the latter prevented the window
from rolling up. -Vercher fixed that problem with a
hammer , and he then proceeded to drive his truck to
Olla, Louisiana . After driving about 3 or 4 miles on
the route to Olla , the clutch froze (stuck) in gear and
the truck could not be driven further. 'Vercher then
called the dispatcher and advised him of the trouble
with the clutch and also that the cab of the truck
"was beat up ." A mechanic was dispatched to the
scene and he got the, truck "out of gear ." Vercher
then resumed his trip to Olla, a distance of about 45
more miles .26
2' The post weighed about 150 pounds and was 4i to 5 feet long
and about 5 inches square.
?' The quotes are from Wiley's credited testimony Ashmore denied
that Wiley wrapped the post with rags, but I do not . credit his testimony
in this regard
21 The total distance from Alexandria to Olla is about 49 miles
Later that day, Vercher drove the truck back from Olla to Alexandria
Granger , the supervisor of the ready -mix drivers,
was at Olla when Vercher arrived at 10 a.m. with
his truck . Granger already had been advised by the
dispatcher about the clutch failure , and the latter had
suggested that Granger look at the interior of Vercher's
tractor cab . Granger did so, and he assertedly then
and there decided without further inquiry to fire Ash-
more . 27 Notwithstanding that decision , Granger then
returned to his office in Alexandria and called Manager
Wiley at Monroe to find out who was responsible for
putting the concrete post in the cab of Vercher ' s truck.
Wiley told Granger that it was he who had done so,
and that Ashmore had assisted him. Despite that
response , Granger then told Respondent 's payroll clerk
to prepare a final paycheck for Ashmore up to 3 p.m.
'that day. At 2:30 p . m., Granger told the dispatcher
to send Ashmore to his office.
Pursuant to instructions from the dispatcher , Ashmore
went , to Granger ' s office at 2:50 p . m. According to
the credited testimony of Ashmore and Granger,28 the
latter angrily told Ashmore that he had no use for
anyone who knew no better than to tear up the cab
of a truck and a clutch like that. Ashmore replied
that Wiley , a Company supervisor, had put the concrete
post in the cab, and that he had only followed orders
in this regard . Granger then said that he "didn't care
who put the right -of-way marker in the truck," and
that Ashmore,, as a driver " should have known better."
Granger then gave Ashmore his, final paycheck, told
him he was being paid until 3 p.m., and that he was
discharged.211 ,
During this final conversation , Granger made no refer-
ence to any failure by Ashmore to comply with the
Respondent ' s' rule in respect to the use , of the 2-way
radio with which the ready-mix trucks were equipped.30
On August 29, the day following his discharge, Ash-
more received by'mail a copy of the "Separation Notice
alleging Disqualification " signed by Granger which
Respondent sent to the Louisiana Division of Employ-
ment Security . This notice stated in substance that the
reasons for Ashmore ' s "separation " were: (1) his assert-
ed failure on August 27 to comply with the Respondent's
rule in respect to reporting on the 2 -way radio; (2)
his poor "attitude - towards equipment " as evidenced
without further difficulty, and it was put in the shop to repair the
clutch. However, as of the date of the hearing in this case, the damage
to the cab's interior had neither been estimated nor repaired
27 In my opinion, Granger's testimony regarding the damage he
observed was exaggerated Among other things, Granger mentioned
a twisted right seat which had not been mentioned by Vercher when
he (a witness for Respondent) described the damage to his cab Since
Granger's testimony in other respects (described infra) also was self
contradictory, I regard his testimony as generally unreliable and con-
trived, and I credit it in this respect only to the extent that it accords
with that of Vercher
2" Granger's testimony, which I generally regard as embellished and
contrived, is credited in these respects because it accords substantially
with Ashmore's credited testimony
29 it was then 2 55 p.m
"' The Respondent's rule requires each ready-mix driver to report
to the dispatcher when he leaves the plant, when he arrives at a
jobsite, when he leaves the jobsite, and when he returns to Respondent's
plant
LOUISIANA INDUSTRIES
by the damage he caused to the interior of Vercher's
truck cab by hauling a concrete post in the cab, and
(3) his failure to follow instructions regarding the limited
use of the clutch on Vercher's truck which "directly
caused" its failure 3'
Since August 28, the Respondent has not offered
reinstatement to Ashmore
F Concluding Findings in Respect to Ashmore's
Discharge
The complaint alleges that the Respondent discharged
Ashmore because of his adherence to and activities
on behalf of the Union and to discourage union and
other concerted activities of its employees and that
it thereby violated Section 8(a)(3) of the Act The
Respondent contends that Ashmore's termination was
for cause and that the General Counsel has failed to
prove by substantial evidence that he was discharged
for antiunion reasons
The legal principles which apply to violations of Sec-
tion 8(a)(3) of the Act are well established The General
Counsel has the burden of proving by a preponderance
of the testimony that the discharge of an employee
was motivated by antiunion discrimination 32 An employ-
er may discharge an employee for any reason with
but one exception he may not discharge when the
real motivating purpose is that which Section 8(a)(3)
proscribes 33 Since the issue to be determined is the
motive for the discharge, a state of mind, direct evidence
will seldom be available, and the trier of the fact may
infer motive from the total circumstances proved 34 Proof
of discrimination may be found in an employer's vacilla-
tion and assignment of a multiplicity of reasons for
discharge, particularly against a background of union
animus 3,
Nor is the trier of the fact-here the trial examiner-
required to be more naif than is a judge If he
finds that the stated motive for a discharge is false,
he certainly can infer that there is another motive
More than that, he can infer that the motive is
one that the employer desires to conceal-an unlaw-
ful motive-at least where, as in this case, the
surrounding facts tend to reinforce that inference
[Emphasis supplied ]36
31 Under the Louisiana Revised Statutes Title 23 Section 1601 an
individual entitled to unemployment benefits is disqualified from receiving
them inter aha if he has been discharged for misconduct and such
misconduct has damaged the property of the employer Apparently
the separation notice alleging disqualification (G C Exh 2(a) and
2(b)) was sent to the Louisiana Division of Employment Secunty pursuant
to this provision for the purpose of disqualifying Ashmore from eligibility
for unemployment benefits The record does not disclose whether Ash
more thereafter applied for benefits or if he did what disposition
of his application resulted
as Sec 10(c) of the Act
N L R B v McGahey 233 F 2d 406 413 (C A 5)
34 Shattuck Denn Mining Corporation v N L R B 362 F 2d 466
470 (C A 9)
" Nix and IAM Representatives Association v N L R B 418 F 2d
1001 1008 (C A 5 1969) N L R B v Schill Steel Products Inc
340 F 2d 568 572-573 (C A 5)
" Shattuck Denn Mining Corporation v N L R B supra
983
Applying these principles to the record in this case,
I conclude first that the reasons asserted by Respondent
for terminating Ashmore are not only unreasonable and
irrational but they also are completely unworthy of
credence or belief and are pretexts to conceal the real
reason for his discharge My grounds for these conclu-
sions are as follows
Ashmore admittedly was regarded by Respondent as
a good driver and a competent, cooperative, and satisfac-
tory employee He had never had any trouble with
the vehicles he drove, either mechanically or otherwise,
and had never damaged any of them He had never
been warned or reprimanded either for failing to perform
his duties properly, or for any other reason Notwith-
standing his exemplary record of employment, he was
peremptorily discharged with no prior warning
As previously noted, the Respondent listed three rea-
sons for Ashmore's termination in his written notice
of separation (1) his asserted failure on August 27
to comply with the Respondent's rule in respect to
reporting on the 2-way radio, (2) his poor "attitude
towards equipment" as evidenced by the damage he
caused to the interior of Vercher's truck cab by hauling
a concrete post in the cab, and (3) his failure to follow
instructions regarding the limited use of the clutch on
Vercher's truck which assertedly "directly caused" its
failure These reasons will now be considered in the
light of Ashmore's prior record of competent and satis-
factory employment
1 Ashmore' s alleged failure to use the 2 way radio
The Respondent offered no evidence that Ashmore
had ever failed to comply with its reporting rule The
only evidence regarding this subject was adduced during
Ashmore's cross-examination According to Ashmore's
uncontroverted and credited testimony, on August 27,
the day before he was fired, he attempted to call the
dispatcher from a jobsite to report an additional order
for ready-mix concrete, the dispatcher failed to answer
his call, and he later reported the order when he returned
to the plant No comment was made to Ashmore when
he reported the order regarding his alleged failure to
use the 2-way radio Moreover, when Granger fired
Ashmore, he made no reference to Ashmore's asserted
failure to comply with the reporting rule during the
terminal interview 37
The undisputed evidence regarding enforcement of
this rule is that on occasion employees forget to report
on the radio, and all they are told is to remember
to do so the next time Other employees testified that
they occasionally have experienced trouble in being
heard when they report on the radio and in receiving
messages directed to them by the dispatcher Admittedly,
the Respondent has never fired any employee for failure
3' Granger assertedly did not even remember whether he learned
about Ashmore s alleged failure to use the 2 way radio before or after
he fired him In the light of Granger s vivid and detailed description
of the damage to the cab of Vercher s truck and of his final conversation
with Ashmore I regard his professed lack of memory in this regard
as incredible
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to comply with its rule regarding reporting on the radio.
Moreover, Granger admitted that he would not have
fired Ashmore "for that alone. 1131
All of the foregoing, and my lack of regard for Gran-
ger's credibility, persuade me that Ashmore' s alleged
failure to report on the 2-way radio on August 27 was
neither the reason nor any part of the reason for Ash-
more's termination the following day and that the listing
of this ground for his termination on Ashmore's separa-
tion notice was an afterthought and pretext to bolster
Granger's other incredible grounds for firing Ashmore
and to conceal the real reason for his termination.
2. The contention that Ashmore "directly caused" the
clutch breakdown
According to Ashmore's separation notice, one of
the reasons for his discharge was that he "failed to
follow driving instructions, and that this directly caused
the mechanical failure of the clutch."
The imputation of fault on the part of Ashmore in
this respect was clearly unjustified. The clutch on Verch-
er's truck admittedly had been "bad" ever since the
truck was acquired by Respondent. The truck had been
driven by three other drivers for a distance of 30,000
miles. It did not break down while Ashmore drove
the truck from Alexandria to Monroe and return. In
fact, the clutch failed while Vercher, the regular driver
of the truck, and not Ashmore, was operating it. Granger
admitted at the hearing that the failure of a clutch
is-not necessarily the fault of the last driver. He testified
"I realize that mechanical things can break." Granger
further admitted that clutches and other mechanical
equipment can break at any time for any number of
reasons unrelated to faulty driving.39
I conclude from all the foregoing that Granger obvious-
ly and admittedly had no reasonable or other basis
for imputing the clutch failure to faulty driving by Ash-
more and that the assignment of this incredible reason
for his termination was another pretextual device to
lend an aura of legality to his discharge and to conceal
the real motive therefor. ,
3. The assertion that Ashmore was fired because of his
poor attitude towards Respondent's equipment
The third reason' asserted by Respondent for Ash-
more ' s termination was stated in his separation notice
as follows:
'" When Granger was asked why then he listed it as a reason for
Ashmore's discharge , he evaded answering the question and never
gave an explanation.
s' When Granger was asked why then he listed in the separation
notice that Ashmore had "failed to follow driving instructions, and
[that ] this directly caused the mechanical failure of the clutch," Granger
testified evasively and nonresponsively as follows: "It just proved
the attitude of him [sic] towards the equipment " On the second attempt
to get Granger, in the light of his admissions above , to furnish a
rational explanation for attributing the clutch failure to faulty driving
by Ashmore, Granger testified unresponsively, "The day that I filled
this [separation notice] out-well, like it was reason enough, along
with the interior of the cab, it was just a part of it "
Another factor which prompted our decision for
dismissal was based on this employee's attitude
toward our equipment. On August 27, 1969, Julius
Ashmore hauled a load of materials from our Alex-
andria plant to our Monroe plant. On the return
trip, he hauled a concrete post in the cab of the
truck, causing damage to the interior of the cab.
As the driver of this unit, he should not have
hauled this concrete post in the cab of the truck.
I regard this asserted ground for Ashmore' s termina-
tion as unworthy of credence-and another pretext for
the following reasons:
a. The post was put into the truck cab at Manager
Wiley's direction by Wiley with Ashmore 's assistance.
Ashmore credibly testified without contradiction by
Wiley or any other witness that no rope was available
to tie the post to the rear of the trailer. Wiley was
the manager of Respondent's Monroe plant. Since he
was told by Wiley that the post was needed in Alexandria,
Ashmore, as an employee; clearly was in no position
to refuse to comply with Manager Wiley's instruction
and had no alternative other than to haul the post
in the cab where Wiley had placed it.4"
b. Wiley, Respondent's agent and Ashmore's superi-
or, obviously was aware of the potential for damage
which the post in the cab, entailed since he wrapped
the top of the post with rags and cautioned Ashmore
"to keep an eye [on it] to see that it wouldn't roll
against the door, [and] do any damage. "41
c. The truck which the post damaged was several
years old and had been driven 30,000 miles. It was
not a passenger car in respect to which appearance
is an important consideration. The damage to the iritefior
of the cab, while obviously not desirable, did not affect
the truck's utility. As of the date of the hearing in
this case, 21 months after Ashmore's discharge, the
truck still was being used by Respondent without either
repairing the cab or even obtaining an estimate of how
much repairs would cost. Thus, the decision to fire
Ashmore clearly could not have been based on the
cost of the damage to Respondent .41
d. Granger knew before he fired Ashmore, that the
concrete post was put in the truck cab pursuant to
Manager Wiley's instruction, and that, as Ashmore put
it, he was only following orders. He also knew that
Ashmore had been a good driver, a satisfactory employ-
ee, and had an accident free record with no prior repri-
mands. Clearly, there was nothing about this incident,-
especially in the light of Ashmore's prior exemplary
and accident free record, that warranted any employer
to conclude that Ashmore had a poor or reckless "atti-
41 At the hearing, Granger admitted that he did not expect Ashmore
to say to Wiley "point blank ." "Don't put it in the cab of my truck "
41 It defies comprehension how watching the heavy post while Ashmore
was driving could have prevented it from "rolling" or slipping and
causing damage To the contrary, too literal compliance with this instruc-
tion during the 90 -mile night trip likely could have involved the truck
in an accident and even more serious damage.
42 As previously noted (see fn 27, supra), Granger's testimony regard-
ing the extent of the damages is regarded as exaggerated Granger
admitted that he had no idea of how much it would cost to fix it.
LOUISIANA INDUSTRIES
tude toward our [Respondent's] equipment." The known
circumstances under which the concrete post had been
placed in the cab (by Manager Wiley's direction) also
did not justify Granger to conclude, as he assertedly
did, that "I did not need a driver like him [Ashmore]."
e. Granger's final explanation for his peremptory and
quite obviously unreasonable decision Ashmore was that
when he saw the condition of the cab's interior, he
was "mad. "43 I have no doubt that Granger was upset
when he observed the damage to the cab's interior
and that it caused him to be angry. However, Ashmore
was not discharged until 5 hours after Granger examined
the damage, by which time Granger already knew that
it was Wiley's decision and instruction which put the
concrete post in the cab and thus brought about the
damage. There was thus, not only ample time for Granger
to have cooled off but also no reason for Granger's
anger to be directed to or vented against Ashmore.
Accordingly, since I regard Granger as both rational
and intelligent, if not always credible, and since notwith-
standing the passage of many months, Ashmore, an
admittedly competent and satisfactory employee, has
never been offered reinstatement, I do not believe that
his discharge can be attributed to an irrational fit off
temper on the part of Granger.
All of the foregoing considerations persuade me that
there was no valid or plausible basis for firing Ashmore
either because of the damaged interior of the cab, or
for his assertedly poor "attitude toward our [Respond-
ent's] equipment," and I regard the assignment of this
ground for his dismissal as another incredible pretext.
In the light of the multiple implausible and pretextual
reasons assigned by Respondent for Ashmore's termina-
tion, the real motive therefor is not too difficult to
infer from the record in this case.
The Respondent clearly was opposed to the represen-
tation of its employees by the Teamsters and preferred
dealing with them though their former representatives,
Laborers. As found above, Vice President Ball had
sought to undermine and subvert the adherence of
Respondent's employees to the Teamsters, their certified
representative, by dealing directly with the employees,
unilaterally offering and later granting them a wage
increase and a guaranteed workweek, by suggesting
that they deal with Respondent through a committee
of employee, and -by telling them that the wage offer
was more than they would receive through the Teamsters
and that the Respondent would fight the certification
of Teamsters to the Supreme Court, if necessary, to
keep the employees "out of the Teamsters."
Ashmore was one of the employees who, notwith-
standing the benefits thus unilaterally offered and later
granted to them by Respondent, signed the petition
prepared by the Teamsters which stated that the signato-
ries did not desire to be' represented by Laborers and
that the Teamsters was their "unanimously" selected
representative. That petition admittedly was received
by Respondent about 2 weeks before Ashmore's termina-
tion and was read by Granger. Granger thus had know]-
11 Ashmore admitted that Granger was "mad" when he fired him
985
edge of Ashmore ' s support of the, union which the
Respondent opposed. `
In the light of Respondent ' s antipathy towards the
Teamsters , Ashmore ' s known support of that union,
and the multiple vacillating , implausible , and pretextual
reasons assigned not -only for the termination of this
competent and satisfactory employee , but also to deny
him eligibility for unemployment benefits, I am impelled
to the conclusion and find that his discharge was motivat-
ed by Respondent ' s opposition to Teamsters and Ash-
more ' s known support of that union.44
The Respondent argues that the General Counsel has
failed to establish that Ashmore ' s termination was moti-
vated by animus towards the Teamsters because: he
was only I of 31 employees who signed the Teamsters
petition; he "was not even employed [by it] when the
Teamsters Union was voted in "; other known pro-Team-
sters employees have not been discharged ; and that,
thus, no reason appears why it would have singled
out Ashmore for reprisal . I regard this contention as
without merit for the following reasons:
The issue in this case is not why the Respondent
selected Ashmore rather than other Teamsters supporters
for discriminatory discharge , but whether it did so.
It is, by now, well established that the retention by
an employer of some union adherents does not exculpate
him from -a charge of discrimination as to one who
was so discharged .4,5 Thus, in view of my finding above
that Ashmore ' s termination was motivated by Respond-
ent's antipathy towards the Teamsters , it is unnecessary'
to also determine why he was "singled out for reprisal."
Notwithstanding, the record does disclose a number
of reasons why he may have been so selected. For
example , Ashmore had been a schoolmate of Manager
Granger, and the latter could have been especially vexed
with Ashmore ' s support of Teamsters because of that
relationship. It is significant in this regard that of all
the drivers and batchmen who attended Vice President
Ball's meeting and heard his offer of a wage increase
and an oral guaranteed workweek, only Ashmore was
singled out for interrogation by Manager Granger as
to what the drivers thought of the offer . Moreover,
Ashmore then expressed lack of faith in the oral nature
of the guaranteed work week , and this could have been
the reason for his selection . Another possible reason
for Ashmore ' s selection for reprisal is that so far as
the record discloses , only he furnished the Respondent
with the necessary pretexts to conceal its illegal motive
of discouraging support of the Teamsters.
Whatever the reason for Ashmore being " singled
out," since I am persuaded for the reasons previously
stated that his discharge was motivated by the Respond-
ent's animus towards the Teamsters and to discourage
the adherence of its employees to that Union, I find
and conclude that the Respondent thereby engaged in
4' N L R B v Schill Steel Products , Inc , supra; Shattuck. DEni1
Mining Corporation v. N L R B , supra
" N.L.R B v W C Nabors Co., 196 F 2d 272, 276, (C A• 5);
Nachman Corp v N L R B , 337 F 2d 421, 424 (C A 7), N L.R B.,
v Challenge-Cook Brothers of Ohio, 347 F 2d 147, 152 (C A 6)
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unfair labor practices within the meaning of Section
8(a)(3) and (1) of the Act
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with the operations
of the Respondent described in section I, above, have
a close, intimate, and substantial relation to trade, traffic,
and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com
merce and the free flow of commerce
V THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor pratices, I will recommend that
it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act
Having further found that the Respondent discriminat
ed against Julius W Ashmore by terminating his employ-
ment to discourage union activities and thereafter failing
and refusing to reinstate him, I will recommend that
the Respondent be ordered to offer him immediate rein-
statement to his former or substantially equivalent posi-
tion, without prejudice to his seniority or other rights
and privileges, and make him whole for any loss of
earnings he may have suffered by reason of the discrimi-
nation by the payment of a sum of money equal to
the amount he normally would have earned from the
date of his termination to the date of reinstatement,
less his net earnings during said period, with backpay
computed on a quarterly basis in the manner established
by the Board 4'
I will also recommend that the Respondent preserve
and, upon request, make available to the Board or
its agents, for examination and copying, all payroll
records, social security payment records, timecards, per
sonnel records and reports, and all other records neces-
sary to analyze and determine the amount of backpay
due under the terms of this recommended remedy
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following
CONCLUSIONS OF LAW
I Respondent, Louisiana Industries, Inc and Louisi-
ana Lightweight Aggregate Company, a Division of
Texas Industries, Incorporated, is an employer engaged
in commerce and in operations affecting commerce within
the meaning of Section 2(6) and (7) of the Act
2 Truck Drivers & Helpers Local No 568 a/w Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware
housemen & Helpers of America, Ind , is a labor organi-
zation within the meaning of Section 2(5) of the Act
" F W Woolworth Coinpan> 90 NLRB 289 backpay shall include
the payment of interest at the rate of 6 percent per annum to be
computed in the m'inner set forth in Isis Plumbing & Heating Co
138 NLRB 716
3 By discriminating against Julius W Ashmore, by
terminating his employment and failing to reinstate him
because of his adherence to the Teamsters and to discour-
age support of the Teamsters by its employees, the
Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(3)
of the Act
4 The following employees constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act
All production and maintenance employees of
the Respondent employed at its Alexandria, Louisia
na, operations, including truckdrivers, but excluding
all office clerical employees, guards watchmen and
supervisors as defined in the Act
5 At all times since October 27, 1967, Truck Drivers
& Helpers Local No 568 a/w International Brotherhood
of Teamsters, Chauffeurs, Warehousemen & Helpers
of America, Ind , has been the exclusive representative
of the employees in the aforesaid unit for the purpose
of collective bargaining with respect to rates of pay,
wages, hours of employment, and other terms and condi-
tions of employment
6 By refusing on and after April 10, 1968, to bargain
with Truck Drivers & Helpers Local No 568 a/w Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, Ind , as the exclusive
representative of the employees in the said appropriate
unit, by dealing directly with employees in the said
unit in respect to rates of pay and other conditions
of employment, by unilaterally and without bargaining
with the exclusive representative of said employees,
offering and later granting them a wage increase and
other benefits, and by telling said employees that its
wage offer was more than they would receive by bargain-
ing through their exclusive collective-bargaining repre-
sentative, the Respondent has engaged in, and is engaging
in, unfair labor practices within the meaning of Section
8(a)(5) of the Act
7 By all the foregoing conduct, and by threatening
employees with economic reprisals if they bargain
through Truck Drivers & Helpers Local No 568 a/
w International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, Ind , their exclu-
sive representative, the Respondent also has interfered
with, restrained, and coerced employees in the exercise
of rights guaranteed by Section 7 of the Act, and thereby
has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act
8 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this
case, I recommend that the Respondent, Louisiana
Industries, Inc and Louisiana Lightweight Aggregate
Company, a Division of Texas Industries, Incorporated,
its officers, agents successors, and assigns, shall
LOUISIANA INDUSTRIES
1. Cease and desist from:
(a) Discouraging membership in and activities on
behalf 'of Truck Drivers & Helpers Local No. 568 a/w'
International Brotherhood of ' Teamsters, Chauffeurs,
Warehousemen & Helpers of America, Ind., or any
other labor organization of its employees, or in any
other manner discriminating in regard to hire or tenure
of employment or any term or condition of employment.
(b) Threatening employees with economic reprisal if
they bargain with it through their exclusive representa-
tive.
(c) Dealing directly with its employees in the
appropriate unit for which Truck 'Drivers & Helpers
Local No. 568 a/w International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of America,
Ind., is the exclusive bargaining representative.
'(d) Unilaterally offering or granting employees in the
said appropriate unit wage increases or other benefits
without first bargaining with their said representative;
provided, however, that nothing contained in this Deci-
sion and Recommended Order shall require'the Respond-
ent to vary or abandon any wages or other benefits
which the Respondent already has established, or preju-
dice the assertion by the employees of any rights previ-
ously acquired. i
(e) Requesting or suggesting that employees in the
said appropriate unit select a committee or other repre-
sentative to deal with it in' respect to wage rates or
other conditions of employment.
(f) Refusing to, bargain collectively concerning rates
of pay, wages, hours of employment,_ or other terms
and conditions of employment, with Truck Drivers &
Helpers Local No 568 a/w international Brotherhood
of Teamsters, Chauffeurs, Warehousemen & Helper of
America, Ind., as the exclusive representative of the
employees in the following appropriate unit:
All production and , maintenance employees of
the Respondent employed at its Alexandria, Louisia-
na, operations, including truckdrivers; but excluding
all office clerical employees, guards, watchmen and
supervisors as defined in the Act. , ,
(g) In any like, or, related manner interfering with,
restraining , or coercing employees in the exercise of
their right to self-organization , to, form labor organiza-
tions, to join or assist Truck Drivers & Helpers Local
No. 568 a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers, of America, Ind.,
or any other labor organization, to bargain collectively,
through representatives of their own choosing,, and to
engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection
or to refrain from engaging in such activities, except
to the extent that such rights may be affected by an
agreement requiring membership in a labor organization
as a condition of employment, as authorized by Section
8(a)(3) of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act: i
(a) Offer Julius W. Ashmore immediate and full rein-
statement to his former or substantially equivalent posi-
987'
tion, without prejudice to his seniority' or other rights
and privileges enjoyed, and make him whole for any
loss of pay he may have suffered as a result of the
discrimination against him in the manner provided in
the section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to
the Board. or its agents, for examination and copying,
all payroll * records, social security payment records,
timecards, personnel 'records and reports, and all other
records necessary to analyze and determine the amount
of backpay due under the terms of this Recommended
Order -
(c) Notify Julius W Ashmore if presently serving
in the Armed Forces of the United States of his right
to full reinstatement upon application in accordance
with the Selective Service and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
(d) Upon, request, bargain collectively with Truck
Drivers & Helpers Local No.. 568 a/w International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
& Helpers of America, Ind., as the exclusive representa-
tive of all the employees in the appropriate unit described
above, and if an understanding is reached, embody
such understanding in,a signed agreement.
(e) Post at its place of business in Alexandria, Louisia-
na, copies of the notice marked "Appendix. ""r Copies
of said notice, on forms provided by the, Regional
Director for Region 15, after 'being duly signed by'
Respondent, shall be posted by, it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily post-
ed. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced,
or covered by any other material.
(f) Notify the Regional Director for Region 15, in
writing, within 20 days from, the date, of the receipt
of this Decision, what. steps have been taken to comply
herewith."
I FURTHER RECOMMEND that the complaint be dis-
missed insofar as it alleges violations of the Act other
than those found above:
47 In the event no exceptions are filed as provided by Sec 102 46
of the' Rules and Regulations of the National Labo4 Relations Board,
the findings, conclusions, recommendations, and Recommended Order
herein shall, as provided in Sec 102 48 of the Rules and Regulations,
automatically become the findings, conclusions, decision and order of
the Board, and all objections, thereto shall be deemed waived for
all purposes In the event that the Board's Order is enforced by a
Judgment oft a United States Court of Appeals, the words in the
notice reading "Posted by Order of the National Labor Relations Board"
shall be changed to read "Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor
Relations Board "
'" In the' event' that this Recommended Order is adopted by the
Board, this provision shall be' modified to read "Notify said Regional
Director for Region 15, in writing, within 10 days from the date of
this Order, what steps the Respondent has taken to comply herewith "
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had the opportunity
to present their evidence, a Trial Examiner of the Nation-
al Labor Relations Board has found that we violated
the National Labor Relations Act and has ordered us
to post this notice and to keep our word about what
we say in this notice
The Act gives all employees these rights
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representa-
tive or their own choosing
To act together for collective bargaining
or other mutual aid or protection
To refrain from any and all these things
WE WILL NOT do anything that interferes with
these rights More specifically,
WE WILL NOT discourage union activity or mem
bership in Truck Drivers & Helpers Local No
568 a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America,
Ind , or any other labor organization, by discriminat-
ing against you if you choose to engage in union
activity or join that Union or any other union
WE WILL NOT threaten you in any way over
the Union
WE WILL NOT deal directly in respect to rate
of pay, wages, hours of employment, or other
terms and conditions of employment, with those
of you who are in the appropriate unit described
below for which Truck Drivers & Helpers Local
No 568 a/w International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of
America, Ind , is now the exclusive bargaining rep-
resentative
Since the Trial Examiner decided that we discrim
mated against Julius W Ashmore to discourage
union activities, WE WILL offer him full reinstate-
ment to his former job, and WE WILL pay him
for any loss he suffered because we fired him
If he is presently in the Armed Forces of the
United States, we will notify him of his right to
full reinstatement upon application after discharge
from the Armed Forces
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their right to self organization,
to form labor organizations, to join or assist Truck
Drivers & Helpers Local No 568 a/w International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America, Ind , or any other
labor organization, to bargain collectively through
representatives of their own choosing, and to engage
in other concerted activities for the purpose of
collective bargaining or other mutual aid or protec-
tion, and to refrain from any or all such activities
WE WILL, upon request, bargain collectively with
Truck Drivers & Helpers Local No 568 a/w Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, Ind , as the exclu-
sive representative of all employees in the bargain-
ing unit described below, concerning rates of pay,
wages, hours of employment, and other terms and
conditions of employment, and if an understanding
is reached, embody it in a signed agreement The
bargaining unit is
All our production and maintenance employ-
ees employed at Alexandria, Louisiana, includ-
ing truckdrivers, but excluding all office clerical
employees, guards, watchmen and supervisors
as defined in the Act
Dated By
LOUISIANA INDUSTRIES,
INC AND LOUISIANA
LIGHTWEIGHT
AGGREGATE COMPANY, A
DIVISION OF TEXAS
INDUSTRIES,
INCORPORATED
(Employer)
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's Office,
T6024 Federal Building (Loyola), 701 Loyola Avenue,
New Orleans, Louisiana 70113, Telephone 504-527-6361