McCormick Concrete Co. of S.C., Inc.

National Labor Relations Board - Board Decisions

Jul 21, 1965

153 N.L.R.B. 1507 (N.L.R.B. 1965)

McCORMICK CONCRETE COMPANY OF S.C., INC. 1507
gross volume of business of at least $500,000 per annum. Carolina
Supplies and Cement Co., 122 NLRB 88, 89. The current nonretail
standard requires an annual minimum of $50,000 out-of-State inflow
or outflow, direct or indirect. Siemons Mailing Service, 122 NLRB 81,
85. The Petitioner's $60,000 annual gross volume of business does not
meet the Board's $500,000 retail test and there has been no showing
made that the Petitioner has out-of-State inflow or outflow sufficient to
meet the $50,000 nonretail test.-3
Accordingly, the parties are advised under Section 102.103 of the
Board's Rules and Regulations, Series 8, as amended, that on the basis
of the information submitted herein, the Board would not assert juris-
diction over the Petitioner's operations.
3 Further , there is no allegation that the Union 's conduct involved herein concerns sec-
ondary employers at a common construction site where the Board would also consider for
jurisdictional purposes the entire operations of the secondary employers at the location
affected by the Union 's conduct . See Anioskeag Construction Company , 147 NLRB 166;
Local 229 , International Brotherhood of Electrical Workers, AFL-CIO (John E Fuller-
ton, Inc. ), 144 NLRB 202 . Robert M. Matthews , d/b/a Matthews Construction Company,
142 NLRB 435 ; Warren Weibel, an individual, d/b/a Weibel Excavating Company, 137
NLRB 1788 , and cases cited in footnote 1 therein
McCormick Concrete Company of S.C., Inc. and International
Union of Operating Engineers Local 497, AFL-CIO. Cases Nos.
11-CA-.470 and 11-RC-2002. July 21,1965
DECISION AND ORDER
On April 26, 1965, Trial Examiner Joseph I. Nachman issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. The Trial Examiner further found that the Respondent had not
engaged in certain other unfair labor practices alleged in the complaint
and recommended that the complaint be dismissed with respect to the
latter allegation. The Trial Examiner also recommended that the
challenge to one ballot, in Case No. 11-RC-2002, which was cast in
the election held on August 21, 1964, be sustained; that the challenges
to certain other ballots be overruled; and that the latter ballots be
opened and counted and a revised tally of ballots be issued in con-
formity with the National Labor Relations Board's Rules and Regu-
lations, Series 8, as amended. Thereafter, the Respondent and the
General Counsel filed exceptions to the Trial Examiner's Decision
and recommendations, and also filed supporting briefs.
153 NLRB No. 137.
1508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial errors was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions," and recom-
mendations 2 of the Trial Examiner as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Order recommended by the Trial Examiner and orders
that the Respondent, McCormick Concrete Company of S.C., Inc.,
Georgetown, South Carolina, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's Recommended
Order, as so modified.
1. Delete paragraph 1(b) from the Trial Examiner's Recommended
Order, and reletter consecutively the present paragraph 1(c) and those
subsequent thereto.
2. The Appendix attached to the Trial Examiner's Decision shall
be amended by deleting therefrom the second indented paragraph.
IT IS HEREBY FURTHER ORDERED that the challenge to the ballot of
Bobby Wilson, in Case No. 11-RC-2002, which was cast in the election
held on August 21, 1964, be and it hereby is, sustained ; that the chal-
lenges to the ballots of Snooks Vernon Lambert and David Richard-
son, be, and they hereby are, overruled; and that the Regional Direc-
tor for Region 11 open and count the ballots of Lambert and Richard-
son and cause to be served upon the parties a revised tally of ballots.
1In finding that the Respondent violated Section 8 (a) (1) of the Act, we do not find it
necessary to determine and we do not herein pass upon the Trial Examiner ' s conclusion
that the Respondent violated the Act by disparaging the Union as "Communist" and
"no good "
awe hereby delete from the third paragraph of "The Remedy" section of the Trial
Examiner 's Decision the words "until such discrimination has been fully eradicated"
and substitute therefor the words " to the date when the Respondent offers him such
reinstatement."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
These cases , which were by order of the Regional Director consolidated for hear-
ing and decision , were heard before Trial Examiner Joseph I . Nachman at George-
town, South Carolina, on November 17, 1964. The CA case, based on a complaint 1
pursuant to Section 10(b) of the National Labor Relations Act, as amended , herein
1 Issued September 2 on a charge filed July 7 and amended August 13 All dates men-
tioned herein are 1964 unless otherwise stated.
McCORMICK CONCRETE COMPANY OF S.C., INC. 1509
called the Act, involves allegations that McCormick Concrete Company of S.C., Inc.,
herein called Respondent or Company , violated Section 8 (a) (1) of the Act by inter-
rogating employees concerning their union sympathies and activities, and otherwise
threatened and coerced its employees , and violated Section 8 ( a) (3) and ( 1) of the
Act by discriminatorily discharging employees Snooks Vernon Lambert, David Rich-
ardson , and Bobby Wilson on June 17, June 26 , and July 11, respectively. The issue
in the RC case is whether Lambert , Richardson , and Wilson , each of whom voted
a challenged ballot at the election held on August 21, were "employees " of Respond-
ent at the time of the election 2 At the hearing , all parties were represented by counsel
and were afforded full opportunity to present evidence , to examine and cross -examine
witnesses , and to argue orally on the record . Oral argument was waived . Briefs
submitted by the parties have been duly considered.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDING OF FACT 3
I. THE ALLEGED UNFAIR LABOR PRACTICES
A. The facts
1. Union's campaign and Respondent knowledge thereof
In late May or early June, the Union began a campaign to organize Respondent's
employees .4 The evidence shows that no later than June 17 Respondent became
aware of the Union's campaign . On that day one of Respondent 's employees
attempted to unload concrete block sold by Respondent at a construction project for
International Paper Company 's plant in Georgetown , South Carolina . The Union's
business agent, who happened to be on the job, contended that construction workers,
and not Respondent 's driver, should unload the blocks. As part of the effort to
settle the dispute, John Thomas , Respondent 's plant superintendent , and an admitted
supervisor within the meaning of the Act , was called to the scene . It was concluded
that the unloading would be by a construction worker. While the latter was unload-
ing and with Thomas standing within 3 or 4 feet of the business agent, the latter told
his steward , ". . . at the present time I am in the process of organizing this concrete
company." J I find that Thomas heard this statement . Additional evidence that
Respondent was aware of the Union 's organizational efforts at all times here material
is found in the testimony of its owner and General Manager Frank M. Conway, that
on or about June 17 he was told that the men "were trying to join a union ," and that
while he did not believe it, he asked Superintendent Thomas to find out about it.
2. The discharge of Snooks Vernon Lambert
Lambert , at the time of his discharge , had worked for Respondent about 11/2 years.
Prior to September 1963, he was paid an hourly wage, but after that date was paid
a weekly wage of $80. Although Respondent claims that after September 1963
Lambert's work was in sonie respects deficient , there is no evidence that Respondent
ever told Lambert about such deficiencies . About June 1, Lambert signed a union
2 The election held on August 21 resulted in five votes for the Union , four votes against
the Union , and four challenged ballots No objections to conduct affecting the results
of the elections were filed by either party . The challenged ballots being of sufficient nuin-
her to be determinative , the Regional Director , on September 1, issued a Supplemental De-
cision and Direction , which overruled the challenge to one of the ballots , and, In view of the
conflicting evidence , which involved questions of credibility , directed a hearing on the em-
ployee status of Lambert , Richardson , and Wilson The representation case was then
consolidated with the unfair labor practice case for the purposes of hearing and decision
8 No issue of commerce or labor organization is presented The complaint alleges facts
which support both of these allegations Although Respondent ' s answer as filed denied
said allegations , at the hearing the answer was amended to admit those allegations of
the complaint I find these facts to be as pleaded
'The Union made no attempt to organize the employees of Coastal American Building
Company , an enterprise engaged in the construction business, and operating from the
same premises as Respondent , which is owned by Frank \I Conway , the owner of Re-
spondent . The operations of Coastal American Building Company are not involved in
this proceeding , nor are its employees in any way affected thereby
5 This finding is based on the uncontradicted and credited evidence of Carl W Gregory,
the business agent of the Union Thomas , although testifying as a witness for Respond-
ent, did not deny that he heard this statement by Gregory
1510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
card and participated in the Union 's organizational campaign . On June 17, after
the incident at International Paper Company in connection with the unloading of the
blocks, as above stated, Thomas had three conversations with Lambert . On the first
occasion Thomas, after telling Lambert about the difficulty he had encountered at
International Paper Company , asked whether Lambert had signed a union card.
Lambert asked what Thomas was talking about , and the latter replied , "You know
what I am talking about. There are 12 of you boys that done already signed one."
Later the same day Thomas told Lambert, "I want you to help me stop these boys
if you will." Lambert professed not to understand what Thomas was referring to,
and the latter replied, "Yes , you do too." For the third time that day, Thomas
sought out Lambert and told the latter, "Snooks , you can stop those boys if you will."
Thomas also told Lambert that the Union was "no good ," that it was nothing but
Communist and would not help him, and that "You cannot get much work as a
Union man ." Finally, Thomas told Lambert , ". . . if you do not help me stop those
boys you and these boys are going to lose their jobs on account of it. " After Lambert
had finished work on June 17 ( Wednesday ), Thomas handed Lambert a check and
told him he was off for the remainder of the week . Lambert protested that he was not
being given time off and added , ". . . you are firing me, and it is on account of the
damn Union ." Thomas nodded his head in the affirmative.6
Respondent contends that Lambert was a supervisor within the meaning of the
Act, and that he was discharged because he "would not work his men" and "would
not keep his equipment clean." The evidence with regard to Lambert 's supervisory
status is as follows: It is conceded that during Lambert's initial employment he was
not employed in a supervisory capacity . Respondent claims that prior to or about
early 1963 , its concrete operation consisted primarily of a ready -mix plant having
5 or 6 employees with Thomas as foreman , but that in April 1963 it acquired concrete
blockmaking equipment and expanded employment to about 15 to 20. To provide
adequate supervision for this enlarged staff, Respondent contends , Thomas was made
superintendent with full responsibility for the operations of the entire yard ( subject
only to the overall authority of Conway , the owner and general manager), and
Lambert was made foreman of the blockmaking operation with his basis of compen-
sation changed from an hourly rate to a weekly salary . According to Thomas, Lam-
bert was in charge of the blockmaking machine and "all employees involved in this
operation ," and his duties included operation of the crane , driving a truck, and "any-
thing [else ] I needed him to do for me ." According to General Manager Conway,
Lambert had the same authority as Thomas , except "not quite as much authority to
hire and fire ," and, as to the latter, Lambert could make recommendations which
were generally followed Conway testified that employee Richardson , whose dis-
charge is hereafter discussed , was hired on the recommendation of Lambert and
Thomas, and that notwithstanding that he (Conway ) told Lambert and Thomas that
he was doubtful that Richardson would make a satisfactory employee. Conway
further testified that the nature of the business required that Thomas be away from
the plant for some portion of each business day, and that in Thomas' absence
Lambert was in charge and directed the operation of the yard . Neither Conway nor
Thomas claimed that they told Lambert that he had the authority to exercise super-
visory functions.
Lambert, on the other hand, testified that his principal job was to operate the block
machine, the operation of the crane being Thomas ' responsibility ; that in his spare
time he began learning to operate the crane under Thomas ' guidance ; and that at
no time during his employment by Respondent was he told that he had the authority
to recommend the hiring or firing of any employee , or to direct any employee in the
performance of his work , and that he never in fact did so.
3. The discharge of David Richardson
Richardson began working for Respondent about June 1. He worked as a
mechanic, operated the forklift , and also drove a delivery truck . He was discharged
6 The findings in this paragraph are based on the credited testimony of Lambert
Thomas did not specifically deny the statements attributed to him by L a mbert He
admitted that during the midafternoon of June 17, he asked Lambert if the latter has
signed a union card , but denied that he ever spoke to Lambert again on the subject of
the Union . He denied telling Lambert that the latter was being discharged because of
the Union , claiming that he told Lambert that he ( Lambert ) had not maintained the
crane in proper condition and that the quality of his work had fallen off I regarded
Thomas ' attitude , while testifying , as belligerent and not such as to inspire confidence
To the extent that his testimony is in conflict with that of Lambert , I credit the latter.
McCORMICK CONCRETE COMPANY OF S.C., INC. 1511
on June 26. According to Richardson, nothing was said at the time of his hire about
a probationary period. Richardson learned of the Union during his first week of
employment. He drove the forklift to International Paper Company on June 17,
when the incident involving the unloading of the blocks occurred, and returned with
it to Respondent's plant after the unloading Later that day Thomas asked Richard-
son what he knew about the Union. Richardson replied that some of the men had
joined, but he did not know who. Thomas asked Richardson to find out and let him
(Thomas) know. Several days later Thomas asked Richardson if he had found out
who had joined the Union. Richardson replied that he had, but mentioned no names.
Thomas then stated that Lambert must have been the one pushing the Union and that
this was the reason for Lambert's discharge. Thomas then asked Richardson who
had signed him up, and Richardson replied that it was Bobby Wilson.7 Thomas then
told Richardson that the Union "was not going to do [him] any good." 8 Richardson
testified that during his period of employment no one in authority criticized his work
or indicated dissatisfaction with it; that 2 or 3 days before his discharge he asked
Thomas if his work was satisfactory and that the latter stated it was, and if it ceased
to be Richardson would hear from him (Thomas). On June 26 Richardson reported
for work as usual, but in accordance with practice was sent home because it was rain-
ing. He returned to the plant about noon, as directed, when the rain ceased, and was
put to work by Thomas. Shortly thereafter, having spent the intervening time in
Respondent's office, Thomas sought out Richardson and told him, "I want to remind
you that you are on three weeks notice; after that I am going to have to let you go."
Richardson commented that Thomas had said his work was satisfactory. Thomas
replied that it was not; that Richardson had been loafing too much. Richardson did
not return to the plant after that day, and thus did not work out the notice period.
Thomas, although denying that he discussed the Union with Richardson, gave no
testimony as to the circumstances surrounding the latter's discharge or the reasons
therefor. Conway testified that Richardson was "let go" because he was "not inter-
ested in working" and because he "had no ambition whatsoever to work." 9 To sup-
port these assigned reasons for Richardson's discharge, Conway referred to two
occasions when he berated Richardson for loafing on the job One of these occasions
was when Richardson had been assigned to assist in loading concrete blocks on a
truck. According to Conway, after observing Richardson from the office window,
he hollered to the latter to stop loafing and get on with the loading. The other occa-
sion mentioned by Conway was when employees of an independent contractor were
cutting a hole in the office wall preparatory to installing an air-conditioner. Accord-
ing to Conway, Richardson stood around for about 30 minutes and watched the
operation until he asked Richardson if he could not find something to do, and that
Richardson agreed he could and went into the yard. Conway also testified that about
a week prior to June 26 he told Richardson if his work did not improve he would be
let go 10 Conway admitted, however, that the truckloading incident and the air-
conditioner incident, independently or collectively, were not sufficiently serious, when
he spoke to Richardson about the improvement in his work performance, to warrant
his discharge.
4. The discharge of Bobby Wilson
Wilson had been employed by Respondent about 15 months at the time of his
discharge on or about July 10. His principal work was driving a truck, but he also
operated the forklift and, in his spare time, was learning to operate the crane, Lam-
bert being his tutor until June 17 when the latter was discharged. Wilson signed
a union card either a few days before or a few days after Lambert's discharge on
June 17, and after Lambert's discharge wore a union button at work. After mid-June,
Superintendent Thomas had two conversations with Wilson in the course of which
the Union was mentioned. The first occurred a day or two following Lambert's
7 Bobby Wilson was later discharged by Respondent and the facts surrounding his dis-
charge are hereafter set forth
8 Thomas testified that he never talked to Richardson about the Union ; denied asking
Richardson to report to him about the Union's membership and denied telling Richard-
son that Lambert had been discharged for pushing the Union. I have heretofore men-
tioned Thomas' demeanor as a witness To the extent that his testimony is in conflict
with that of Richardson, I credit the latter
8 Conway also failed to give any details as to the events of June 26 when Richardson
was "let go " He did admit, however. that Richardson was terminated on June 26
10 Richardson denied that Conway spoke to him on any of the occasions referred to,
but I find it unnecessary to resolve the conflict
1512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge on June 17. At that time Thomas told Wilson he had heard that the latter
"had something to do with the Union ," and that if he (Wilson ) was going to "mess"
with the Union , he would not be permitted to operate the crane . For about 2 weeks
Wilson did not operate the crane . At the end of that time, and about a week prior
to Wilson 's discharge , Thomas told the latter that he (Wilson ) was next in line for
the crane job and a weekly salary , and that " it would be better if '[Wilson ] tore that
badge off and straightened up." 11 On the day of his discharge Wilson reported to
General Manager Conway that he (Wilson ) had lost his license to operate a motor
vehicle.12 Conway told Wilson, that he (Conway ) would see what he could do about
the matter . Wilson worked the remainder of the day, and at that time was told by
Conway that there was no work for him because of the loss of his driving privileges.
Conway testified without contradiction that all but two or three of his employees are
required to be able to operate a truck, and as Wilson was then unable to do so, and
refused .to load or stack blocks, there was no work for him. This , according to Con-
way, was the sole reason for Wilson 's discharge.
5. Other alleged violations of Section 8 (a) (1)
For about 8 years Benjamin Cuttino had been employed by Respondent as a truck-
driver. When not engaged in truckdriving for some portion of a day, Cuttino was
given other work about the yard, such as filling orders or cleaning up. About a
month before the election, held August 21, Superintendent Thomas told Cuttino that
he should drop the Union because it "wouldn't do us any good," and that if the Union
did get in , Respondent would put a driver on each truck and any day when all trucks
were running he (Cuttmo) would be sent home 13
John Rice worked for Respondent about 6 months as a truckdriver. On two occa-
sions Thomas discussed the Union with Rice, and Conway did so on one occasion.
Thomas' first conversation with Rice was sometime prior to June 25.14 On that
occasion Thomas asked Rice if he "was mixed up with these boys." Rice professed
not to understand what Thomas was referring to, and Thomas explained that he
meant "the Union people." Rice denied that he was. Thomas' second conversation
with Rice was in the latter part of July. On that occasion Thomas stated that he was
trying to get the employees to forget the Union because it would not do them any
good, and asked Rice to think it over.15 In the latter part of June, Rice, at the direc-
tion of Thomas and accompanied by the latter, went into Conway's office. There
Conway showed Rice a photostat of a union card and asked if the signature thereon
was that of Rice 16 Rice admitted that it was. Conway commented that he was
checking to make sure that it was Rice's signature, and then dismissed the latter.
Rice's testimony as to this conversation is admitted by both Conway and Thomas
Conway also admitted that he questioned several employees about the genuineness
of their signatures on the cards submitted to him by the Union, and testified that his
purpose in doing so was to ascertain if the purported signature thereon were genuine.
Conway did not claim, nor is there any evidence to show that he assured the employ-
ees whom he questioned about their signatures on the union cards, that there would
be no reprisal against them for having signed the cards. Conway did admit, however,
that following receipt of the Union's demand for recognition, dated June 25, he
addressed the employees in a body, told them he did not want a union, that the Union
had nothing to offer them, and that they should think the matter over carefully.
"Thomas did not deny that he made the statements attributed to him by Wilson, and
I credit the testimony of the latter in that regard
"Wilson had been convicted of operating a motor vehicle while under the influence of
intoxicants Under South Carolina law his operator's permit was suspended for a
period of 6 months from July 10
is Based on the credited testimony of Cuttino Thomas denied that lie told Cuttino
not to belong to the Union, but did not deny the other portion of Cuttino's testimony
As heretofore stated, I do not credit Thomas
14 At one point Rice stated it was during the week Lambert was discharged Later he
stated it was before Lambert's discharge
"Based on the credited testimony of Rice Thomas testified that he never had any
discussions with Rice concerning the Union For reasons heretofore stated I do not
credit Thomas' denials
ii Rice's card had been forwarded to Conway by the Union, along with its letter of
June 25, demanding recognition.
McCORMICK CONCRETE COMPANY OF S.C., INC. 1513
B. Concluding findings
1. The supervisory status of Lambert
Before setting forth my specific conclusions as to whether Respondent's conduct, as
above found, was violative of any of the provisions of the Act, it is necessary to first
dispose of Respondent's contention that Lambert was a supervisor within the meaning
of Section 2(11) of the Act.17 On the facts set forth above I find and conclude that
Lambert was not a supervisor within the meaning of the Act.
The General Counsel having alleged and proved that Lambert was employed by
Respondent, a prima facie case of "employee" status was established, and it then
devolved upon Respondent to go forward with evidence to establish Lambert's super-
visory status, to remove conduct otherwise illegal, from the interdiction of the Act.
Local No. 636 of the United Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO (The
Detroit Edison Company and Westinghouse Electric Corporation), 123 NLRB 225,
230; Local 560, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (The Pennsylvania Railroad Company), 127 NLRB 1327,
1330. The credible evidence adduced by Respondent fails to establish Lambert's
supervisory status. Rather, I am convinced that reliance upon Lambert's alleged
supervisory status is an afterthought, seized upon in an attempt to give its unlawful
conduct the appearance of legality. I am led to this conclusion by the following:
(a) The testimony shows that virtually all of Lambert's work was of a manual
and routine nature. Although Thomas testified Lambert was "in charge of the block-
making machine and all employees involved in this operation," this was denied by
Lambert whom I credit, and I regard this statement by Thomas as "puffing" in view
of the fact that Respondent failed to adduce the testimony of a single witness whom
Lambert allegedly supervised.
(b) A supervisor is usually paid something above the customary earning of those
whom he supervises, as compensation for the additional responsibility. The record
fails to furnish any basis for determining whether Lambert's compensation was any
greater than that earned by those whom he allegedly supervised.
(c) There is no evidence that Lambert was ever told that he had the authority to
supervise employees. Neither Thomas or Conway claim that they communicated
this to Lambert and the latter, whom I have generally credited, denied that he had
been so informed or that he ever exercised or sought to exercise such authority.
(d) Finally, of Respondent's total employee complement of approximately 15,
from 6 to 8 are truckdrivers who spend the majority of their time away from Respond-
ent's premises. This leaves from eight to nine employees to be supervised at the
plant With Thomas present, and if Lambert be regarded as a supervisor, the ratio of
supervisors to nonsupervisory employees is relatively high in a business of this nature
where the work to be done is so routine. I am not unmindful of the fact that Thomas
is required to be away from the plant some portion of each business day, but this
becomes insignificant in view of Conway's testimony which indicates quite clearly
that he devotes full time to the operation and participates fully in the supervision of
personnel. I regard it as highly significant that at the time of this hearing 5 months
had elapsed since Lambert's discharge, but no one had been employed in a supervisory
capacity to replace Lambert and Conway admitted that since Lambert's discharge he
(Conway) exercised direct supervision when Thomas was absent.
2. The Section 8(a) (1) violations
Having concluded that Lambert was not a supervisor within the meaning of the
Act, I find and conclude that Respondent violated the Act in the following particulars:
(a) Thomas' interrogation of Lambert as to whether the latter had signed a union
card; his request that Lambert assist in stopping the employees from seeking union
representation, disparaging the Union as "Communist" and "no good"; as well as his
statement to Lambert that he (Lambert) and other employees would lose their jobs
because of the Union.
(b) Thomas' interrogation of Richardson as to what he knew about the Union; his
request that Richardson find out which employees were assisting the Union and let
him (Thomas) know, as well as the subsequent inquiry as to whether such information
"The General Counsel contends that even if Lambert be found to be a supervisor, his
discharge was nonetheless violative of Section 8(a) (1) of the Act because Thomas used
the discharge to coerce employees and discourage their further union activities In view
of the conclusions reached with respect to Lambert's supervisory status, I find it un-
necessary to consider that contention.
1514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had been obtained by Richardson; his interrogation of Richardson as to who had
"signed him up"; and his statement to Richardson that the Union "was not going to
do [him] any good."
(c) Thomas' statement to employee Wilson that the latter "had something to do
with the Union," and if he continued to "mess" with the Union he (Wilson) would not
be permitted to learn to operate the crane; as well as Thomas' subsequent statement to
Wilson that it would be better for him if he "tore that badge [Union button] off and
straightened up."
(d) Thomas' statements to employee Cuttino that he should drop the Union,
because it "wouldn't do [the employees] any good," and if the Union got in the
employees would not be given yardwork when they were not busy with their driving
duties.
(e) Thomas' interrogation of employee Rice as to whether the latter was "mixed
up" with the Union, as well as the subsequent statement that he (Thomas) was trying
to get the employees to forget about the Union because it would not do them any good.
(f) Conway's interrogation of employee Rice as to the genuineness of the signature
on the union card. In view of the other unfair labor practices found herein, particu-
larly the extensive violations of Section 8(a)(1); the fact that when Rice was ques-
tioned about the union card Respondent gave no assurances against reprisal; and that
Conway's interrogation was not for the sole purpose of determining his obligation to
recognize and bargain with the Union, the Board's decision in Blue Flash Express,
Inc., 109 NLRB 591, has no application. See American Furniture Company, Inc,
118 NLRB 1139, 1140; Oikm Exterminating Company of South Florida, Inc, 136
NLRB 399-400; Zimnox Coal Company, 140 NLRB 1229, enfd. 336 F. 2d 516
(C.A. 6).
3. The Section 8(a)(3) and (1) violations
I find and conclude that Lambert and Richardson were discharged by Respondent
because of their assistance to and support of the Union. The fact that Lambert was,
on the very day (June 17) that Thomas ascertained that the employees were being
organized by the Union, implored on three occasions to give Respondent assistance
in getting rid of the Union, that he was told by Thomas that continued support of the
Union would lead to his discharge and the discharge of others, and the fact that Lam-
bert's work performance had not theretofore been questioned, admits of no conclusion
other than that Lambert was discharged because of his refusal to desist from his
union activity. Thomas admitted as much when he gave an affirmative nod to
Lambert's statement, " . . you are firing me, and it is on account of the damn Union."
Richardson also was interrogated by Thomas on June 17 and asked to find out which
of the employees had joined the Union It was not until after it became clear to
Thomas that Richardson was not going to cooperate by disclosing what employees
were assisting the Union, that Thomas discharged him on June 26, allegedly for
unsatisfactory work. The assigned reason for the discharge, however, does with-
stand scrutiny in view of Thomas' assuiances to Richardson, just 2 or 3 days before
the latter's discharge, that his work was satisfactory; testimony which Thomas did not
deny.
I further find and conclude that the General Counsel has failed to prove by a pre-
ponderance of the evidence that Wilson's discharge on July 10 or 11 was discrimi-
natorily motivated. The evidence is inadequate to overcome that of Respondent that
Wilson, who was employed as a truckdriver, was discharged because he had lost his
permit to operate a motor vehicle and was, therefore, unable to perform the work for
which he was hired It is true that shortly after June 17, Thomas interrogated Wilson
concerning his union activity; told Wilson that if he continued such activity he would
not be permitted to work with the crane which Wilson was learning to operate in his
spare time; and a few days later was told that he (Wilson) would be better off if he
"tore that badge off and straightened up " This conduct on the part of Thomas was,
as I have heretofore found, violative of Section 8(a) (1), but I find no casual connec-
tion between the foregoing statements by Thomas, and the subsequent discharge of
Wilson on July 10 or 11, when the latter became unable to perform the duties for
which he was hired because of the loss of his driver's license.
II. THE REMEDY
Having found that Respondent engaged in unfair labor practices as above set forth,
it will be recommended that it cease and desist therefrom and take affirmative action,
set forth below, found necessary and designed to effectuate the policies of the Act.
Having found that Respondent interfered with, coerced, and restrained its employ-
ees in the exercise of rights guaranteed by Section 7 of the Act-the basic purpose
the Act was designed to achieve-I shall recommend that Respondent be required to
McCORMICK CONCRETE COMPANY OF S.C., INC. 1515
cease and desist from in any manner interfering with, restraining, or coercing its
employees in the exercise of rights guaranteed them by Section 7 of the Act.' N.L.R.B.
v. Entwistle Mfg. Co., 120 F. 2d 532 (C.A. 4); California Lingerie, Inc., 129 NLRB
912, 915.
Having found that Respondent discriminatorily discharged Lambert and Richard-
son, it will be recommended that it offer to each of them immediate, full, and uncon-
ditional reinstatement to his former or substantially equivalent position, without
prejudice to his seniority or other rights, privileges, or working conditions, and make
each of them whole for any loss of earnings suffered by reason of the discrimination
against him, by paying to each a sum of money equal to the amount he would have
earned from the date of the discrimination against him until such discrimination has
been fully eradicated, less his net earnings during the period of such discrimination.
Backpay with interest at the rate of 6 percent per annum, shall be computed in the
manner set forth in F W. Woolworth Company, 90 NLRB 289, and Isis Plumbing
& Heating Co, 138 NLRB 716.
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. Respondent is an employer within the meaning of Section 2(2) of the Act, and
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
3. By the conduct set forth in section B, 2, (a) through (f) hereof, Respondent
interfered with, restrained, and coerced its employees in the exercise of rights guar-
anteed to them 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.
4. By discharging Lambert and Richardson, as above set forth, Respondent dis-
criminated against them in regard to their tenure of employment, and the terms and
conditions thereof, to discourage membership in the Union, and thereby has
engaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (3) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
6. Except to the extent that violations of the Act have been found, as above set
forth, the General Counsel has failed to establish by a preponderance of the evidence
the remaining allegations of the complaint herein, and it will be recommended that
said complaint be, to that extent, dismissed.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and the
entire record in the case, and pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, it is recommended that the Respondent, McCormick Concrete
Company of S C , Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from-
(a) Coercively interrogating employees as to their membership in, views about,
or activities on behalf of International Union of Operating Engineers Local 497,
AFL-CIO, or any other labor organization; or directly or by implication promising
benefits to any employee for ceasing to assist or support the aforesaid Union or any
other labor organization.
(b) Disparaging to its employees the aforesaid Union, or any other labor orga-
nization, as "Communist" or "no good."
(c) Threatening employees with discharge if they support or assist any labor
organization.
(d) Requesting employees to ascertain and report on the union activities of their
fellow employees.
(e) Threatening employees with the withholding of work if they assist or support
the aforesaid Union, or any other labor organization
(f) Discouraging membership in the aforesaid Union, or any other labor orga-
nization of its employees, by discriminatorily discharging, or in any other manner
discriminating against any employee in regard to hire, tenure, or any term or condi-
tion of employment.
(g) In any manner interfering with, restraining, or coercing employees in the
exercise of their right to self-organization, to form, join, or assist labor organiza-
tions, 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 any and all such activities.
1516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action found necessary to effectuate the policies
of the Act:
(a) Offer to Snooks Vernon Lambert and David Richardson immediate, full, and
unconditional reinstatement to their former or substantially equivalent position,
without prejudice to their seniority or other rights, privileges, or working condi-
tions, and make them whole for any loss of earnings they may have suffered in the
manner set forth in the section hereof entitled "The Remedy "
(b) Notify Snooks Vernon Lambert and David Richardson if they, or either of
them, are presently serving in the Armed Forces of the United States of their right
to full reinstatement upon application in accordance with the Selective Service Act
and the Universal Military Training and Service Act of 1948, as amended, after
discharge from the Armed Forces.
(c) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary or useful to
determine or compute the amount of backpay due, as herem provided.
(d) Post at its plant premises in Georgetown, South Carolina, copies of the
attached notice marked "Appendix." 18 Copies of said notice, to be furnished by
the Regional Director for Region 11 of the Board (Winston-Salem, North Caro-
lina), shall, after being duly signed by Respondent, be posted by it immediately
upon receipt thereof, and be maintained by it for a period of 60 consecutive days
thereafter, in conspicuous places, including 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.
(e) Notify the aforesaid Regional Director, in writing, within 20 days from the
date of receipt of this Decision, what steps it has taken to comply herewith.19
It is further recommended that the challenge to the ballot cast by Bobby Wilson
be sustained; that the challenges to the ballots cast by Snooks Vernon Lambert and
David Richardson be overruled; that the Regional Director be directed to open and
count the ballots cast by Snooks Vernon Lambert and David Richardson, and, after
serving upon all interested parties a revised tally of ballots, certify the results of the
election in conformity with the Board's Rules and Regulations.
18 In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a Trial
Examiner" in the notice. If the Board's Order is enforced by a decree of a United
States Court of Appeals, the notice shall be further amended by the substitution of the
words "a Decree of the United States Court of Appeals, Enforcing an Order" for the
words "a Decision and Order"
19 In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read: "Notify the aforesaid Regional Director, in writing, within 10
days from the date of this Order, what steps it has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT coercively interrogate you about your membership, views, or
conduct on behalf of any union, or promise benefits for your not supporting any
union.
WE WILL NOT make statements to you that any union is "Communist" or "no
good," or any other statement of disparagement of any union.
WE WILL NOT threaten you with discharge, or with the withholding of work
if you support or assist any union.
WE WILL NOT ask you to find out about and report to us on the union activities
of your fellow employees.
WE WILL NOT discharge or in any other manner discriminate against you
because of your assistance to or support of any union.
WE WILL offer to Snooks Vernon Lambert and David Richardson full rein-
statement to their former jobs with us, and pay them the wages they lost by
reason of their discharge.
WE WILL NOT interfere with, restrain, or coerce our employees in the exercise
of their right to self-organization, to form labor organizations, to join or assist
International Union of Operating Engineers Local 497, AFL-CIO, or any other
MANTZOWITZ MFG. CORP. 1517
labor organization of our employees , to bargain collectively through represent-
atives of their own choosing , or to engage in other concerted activities for the
purposes of mutual aid, or to refrain from any and all such activities.
All our employees are free to become or remain , or not to become or remain,
members of any union.
MCCORMICK CONCRETE COMPANY OF S.C., INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify Snooks Vernon Lambert and David Richardson if pres-
ently serving in the Armed Forces of the United States of their right to full rein-
statement upon application in accordance with the Selective Service Act and the
Universal Military Training and Service Act of 1948, as amended , after discharge
from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board' s Regional Office, 1831
Nissen Building , 310 West Fourth Street, Winston-Salem, North Carolina, Telephone
No. 724-8356.
Mantzowitz Mfg. Corp and District 65, Retail , Wholesale & De-
partment Store Union, AFL-CIO. Case No. 2-CA-10212-2.
July 21,1965
DECISION AND ORDER
On April 16, 1965, Trial Examiner George L. Powell issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had not engaged in any unfair labor practices and recommending
that the complaint be dismissed in its entirety, as set forth in the
attached Trial Examiner's Decision. Thereafter, the General Counsel
filed exceptions to the Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision and the entire record in this case, including the
General Counsel's exceptions and brief, and finds merit in the excep-
tions. Accordingly, the Board adopts the findings, conclusions, and
recommendations of the Trial Examiner only to the limited extent
consistent herewith.
The essential facts in this case are as follows:
On August 17 and 19, 1964, eight employees of Respondent in the
stipulated appropriate unit signed cards designating the Union as
their collective-bargaining agent. The unit consisted of 11 employees,
or at the most 12 employees, if Victor Maysonet, whose supervisory
153 NLRB No. 134