Mitchell Concrete Products Co., Inc.

National Labor Relations Board - Board Decisions

Jun 7, 1962

137 N.L.R.B. 504 (N.L.R.B. 1962)

504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mitchell Concrete Products Co., Inc. and International Union
of Operating Engineers , Local 49, AFL-CIO; and General
Drivers Union Local 749, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America . Case No. 18-CA-1302. June 7, 1962
DECISION AND ORDER
On January 18, 1962, Trial Examiner Phil Saunders issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. Thereafter, the Respondent and the General Counsel
filed exceptions to the Intermediate Report, and the Respondent filed
a supporting brief.
The Board 1 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 Intermedi-
ate Report, the exceptions and brief, and the entire record in the case,2
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner, with the following additions and modifications.
1. The Union started organizing Respondent's employees on April
17, 1960, and all but one signed an authorization card. The next day,
the Union sent a letter to Respondent in which it stated it represented
a majority of the employees and requested recognition and bargaining.
It also offered to submit its cards to a disinterested third party for a
determination of its majority status. On April 19, Respondent's man-
ager met with a majority of the employees and in reply to his question,
all but one indicated support for the Union. The Respondent, in reply
to the Union's April 18 letter, requested time to consider its legal posi-
tion with respect to the Union's request for recognition. On May 8,
at a meeting between company and union representatives, the Re-
spondent first challenged the Union's majority status and asked for an
election. The union representative offered to submit the union au-
thorization cards to a judge, minister, or priest, but this was not ac-
cepted by the Respondent. On May 16, the employees went on strike.
IPursuant to the provisions of Section 3(b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[ Chairman McCulloch and Members Leedom and Brown].
2 In finding that the Respondent is engaged in commerce within the meaning of the
Act, the Trial Examiner correctly found as a subsidiary fact that Kuippers , as prime
contractor for M & R Manufacturing , paid H. H. Robertson of Pittsburgh, Pennsylvania,
$85,000 under a subcontract for the fabrication and installation of certain insulated alu-
minum panels and window walls in the M & R Manufacturing plant at Mitchell, South
Dakota. In these circumstances , we reject the Respondent 's contention that M & R
Manufacturing rather than Kuippers was the purchaser of these goods and services,
which were purchased directly from sources outside the State of South Dakota.
137 NLRB No. 57.
MITCHELL CONCRETE PRODUCTS CO., INC. 505
On three occasions thereafter Respondent met with union representa-
tives. However, Respondent did not at any time extend recognition
to, or offer to bargain on a contract with, the Union.
The Respondent, in effect, concedes that it refused to bargain but
contends that it had no legal obligation to do so in view of its good-
faith doubt as to the Union's majority status. However, the Respond-
ent has produced no evidence supplying any basis for its doubting
the majority claim made by the Union on the basis of its authoriza-
tion cards 9 and which claim was supported by Manager Schneider's
questioning of the employees at the April 19 meeting.' At most, the
Respondent's position seems to be that it could ignore the Union until
it established its majority status in a Board-conducted election. How-
ever, an employer has no absolute right to insist upon such an election
before recognizing a union where, as here, the Union's claim of ma-
jority representation has been established in a less formal manner and
no reasonable basis exists for doubting that claim. An employer's
failure to recognize a union under such circumstances is a failure to
fulfill the bargaining requirements of the Act.-' Accordingly, we find
that the Respondent unlawfully refused to recognize, and to bargain
with, the Union.
Furthermore, we also agree with the Trial Examiner that the Re-
spondent at no time here material had, in fact, any good-faith doubt
with respect to the Union's majority status, but rather that its re-
fusal to bargain was motivated by "a rejection of the collective bar-
gaining principle" and "by a desire to gain time within which to un-
dermine the Union." 6 Thus, when confronted with a proposed union
contract, it labeled the demands as "preposterous" but failed to offer
any counterproposals despite the statements of the union representa-
tive that all demands were subject to negotiations. Also, while al-
legedly in doubt as to the Union's majority status, it advertised around
June 1, for strike replacements, unilaterally offering wages higher
than those it had paid the strikers, and prior thereto, on May 16 and
24, the Respondent wrote letters to its employees proposing meetings
between only management and the employees at which working condi-
tions could be considered. Further, on April 26 and May 13, while
insisting that the Union demonstrate its majority status, it discharged
8 The Respondent appears to contend that it could disregard the claim made on the
basis of the cards because the Union refused to permit it to inspect the cards However,
in view of the Union ' s repeated offer to submit the cards to a neutral third party to
check the cards and the Respondent 's failure to take up the offer, we find this contention
without merit under the circumstances here.
4 Respondent argues in its brief that the situation at the April 19 meeting resulted in
no showing of majority support for the Union, because Schneider merely asked, "How
many of you are for the Union ?", without specifying what union . As no union other
than the Charging Party was active in Respondent 's plant at the time of the events
under consideration , we find this argument to be frivolous
s Fred Snow, Harold Snow and Tom Snow d/b/a Snow & Sons , 134 NLRB 709.
e Artcraft Hosiery Company, 78 NLRB 333.
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees for engaging in union activities. The foregoing, coupled
with Respondent's other unlawful activities described in the Inter-
mediate Report, clearly show, and we find, that respondent's pur-
poses in refusing to recognize and bargain with the Union were not
motivated by any good-faith doubt as to its majority status, but rather
by a fixed intent to avoid dealing with the Union at all and to under-
mine its representative status among the employees. It, thus, con-
stituted a bad-faith refusal to bargain.'
In view of our findings above we conclude, as did the Trial Ex-
aminer, that Respondent on and after April 19, 1961, unlawfully
refused to bargain with the Union in violation of Section 8(a) (5)
and (1) of the Act. We further find, in agreement with the Trial
Examiner, that Respondent's unilateral offer of increased wages to
strike replacements and its letters to employees seeking, at least in
part, individual bargaining constituted independent violations of the
foregoing sections of the Act.'
2. We also agree with the Trial Examiner that the strike which
began on May 16, 1961, was at least in part a protest against the layoff
and discharge of a number of union adherents and that these lay-
offs and discharges were in violation of the Act. We further agree
with the Trial Examiner that the strike was an unfair labor practice
strike. It follows therefrom, although the Trial Examiner did not
specifically so find, that the Respondent further violated Section
8 (a) (3) and (1) of the Act when it denied reinstatement to the
strikers upon their unconditional application for reinstatement on
August 29, 1961.
THE REMEDY
In view of our findings above, we shall order the Respondent, insofar
as it has not already done so, to offer to those employees who went
on strike on May 16, 1961, immediate and full reinstatement to their
former or substantially equivalent positions,' dismissing, if necessary,
any employees hired since May 16, 1961, to replace them. If, after
such dismissal, there are not enough positions remaining for all these
employees, the available positions shall be distributed among them
without discrimination because of their union membership, activity,
or participation in the strike, following such system of seniority or
other nondiscriminatory practice as heretofore has been applied in
the conduct of the Respondent's business. Those strikers for whom
no employment is immediately available after such distribution shall
7 joy Silk Mills , Inc, 85 NLRB 1263, enfd . 185 F. 2d 732 (C A D.C.)) , cert denied
341 U.S. 914
8 while, as indicated above, we have found that the Respondent 's discriminatory dis-
charges of Taschler and Stiefel were evidence of bad -faith bargaining , we do not agree
with the Trial Examiner that these discriminatory discharges constituted, under the
circumstances, an independent violation of Section 8(a) (5).
9 See The Chase National Bank of the City of New York, San Juan , Puerto Rico , Branch,
65 NLRB 827.
MITCHELL CONCRETE PRODUCTS CO., INC. 507
be placed upon a preferential hiring list, priority among them being
determined by such system of seniority or other nondiscriminatory
practice as has heretofore been applied in the conduct of the Respond-
ent's business, and they shall thereafter, in accordance with such list,
be offered reinstatement as positions become available and before
other persons are hired for such work. Reinstatement, as provided
herein, shall be without prejudice to the employees' seniority or other
rights and privileges.
We shall also order the Respondent to reimburse these employees
for any loss of pay they may have suffered by reason of the Respond-
ent's discrimination against them by payment to each of them of a
sum of money equal to the amount which he normally would have
earned as wages from August 29, 1961, the date of the Respondent's
refusal to reinstate them upon their unconditional application, to the
date of Respondent's offer of reinstatement or placement on a pref-
erential hiring list in the manner hereinabove described, less his net
earnings during said period. Such loss of pay shall be computed on
the basis of separate calendar quarters, in accordance with the policy
enunciated in the Woolworth case."
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended , the National Labor
Relations Board hereby orders that the Respondent , Mitchell Con-
crete Products Co., Inc., Mitchell, South Dakota , its officers , agents,
successors, and assigns , shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with International Union of
Operating Engineers , Local 49, AFL-CIO ; and General Drivers
Union Local 749, affiliated with International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers of America, as the
exclusive representative of the employees in the following appropriate
unit :
All ready-mix drivers, yardmen , block machine men, mixer opera-
tors, semidrivers , tubers and strippers , front-end loader men, tank
truck drivers, and mechanics , excluding bookkeepers , guards, and
supervisors as defined in the Act.
(b) Interrogating and threatening employees concerning their
membership in, or activities on behalf of , the above -named or any
other labor organization in a manner violating Section 8(a) (1) of
the Act.
(c) Promulgating or enforcing any rule prohibiting employees
from soliciting membership in the above -named or any other union,
'OF. W. Woolworth Company, 90 NLRB 289.
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or discussing self-organization among themselves on company prop-
erty during nonworking time, including lunch periods and breaks.
(d) Maintaining surveillance of union meetings of employees.
(e) Discouraging membership in the above-named or in any other
labor organization of its employees by discriminatorily discharging
or laying off its employees or by refusing to reinstate unfair labor
practice strikers or by discriminating otherwise in regard to hire or
tenure of employment or any term or condition of employment.
(f) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist the above-named Unions, or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with the Unions named
herein as the exclusive representative of all employees in the appro-
priate unit.
(b) Offer to Marlin Stiefel, Carl Larson, Donald Tischler, Reuben
Sonne, Floyd Hanten, and all other unfair labor practice strikers,
immediate and full reinstatement each to his former or substantially
equivalent position, and make each whole for any loss of earnings in
the manner set forth in the section of the Intermediate Report entitled
"The Remedy," as modified herein.
(c) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social security
payment records, timecards, personnel records and reports, and all
other records necessary to determine the amounts of backpay due and
the rights of employment under the terms of this Decision and Order.
(d) Post at its plant or facility in Mitchell, South Dakota, copies
of the notice attached hereto marked "Appendix." 11 Copies of said
notice, to be furnished by the Regional Director for the Eighteenth
Region, shall, after being duly signed by an authorized representative
of the Respondent, be posted by the Respondent 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 the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for the Eighteenth Region, in
u In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
MITCHELL CONCRETE PRODUCTS CO., INC. 509
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL, upon request, bargain with International Union of
Operating Engineers, Local 49, AFL-CIO; and General Drivers
Union Local 749, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America,
as the exclusive representative of our employees in the appropriate
unit of all ready-mix drivers, yardmen, block machine men, mixer
operators, semidrivers, tubers and strippers, front-end loader men,
tank truck drivers, and mechanics, but excluding bookkeepers,
guards, and supervisors as defined in the Act.
WE WILL NOT interrogate or threaten our employees concerning
their union membership or activities in a manner constituting
interference, restraint, or coercion in violation of Section 8 (a) (1)
of the Act.
WE WILL NOT promulgate or enforce any rule prohibiting
employees from soliciting membership in a union or discussing
self-organization among themselves on company property during
nonworking time, including lunch periods and breaks.
WE WILL NOT engage in surveillance of union meetings.
WE WILL NOT discourage membership in the above-named or
any other labor organization, by discriminatorily discharging or
laying off our employees, or by refusing immediate reinstatement
to unfair labor practice strikers upon their unconditional request,
or by discriminating in any other manner in regard to our employ-
ees' hire or tenure of employment, or any term or condition of
employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organiza-
tion, to form, join, or assist the above-named labor organizations,
or any other labor organization, to bargain collectively through
representatives of their own choosing, to engage in concerted
activities for the purposes of collective bargaining or other mutual
aid or protection, or to refrain from any or all of such activities.
WE WILL offer to Carl Larson, Reuben Sonne, Floyd Hanten,
Marlin Stiefel, Donald Tischler, and all other unfair labor prac-
tice strikers, immediate and full reinstatement to their former or
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
substantially equivalent positions, without prejudice to seniority
or other rights and privileges, and make each of them whole for
any loss of pay resulting from the discrimination against him.
All our employees are free to become, remain, or refrain from
becoming or remaining, members of the above-named Unions or any
other labor organization.
MITCHELL CONCRETE PRODUCTS CO., INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, 316 Federal Building, 110 S. Fourth Street, Minneapolis 1,
Minnesota, Telephone Number, Federal 6-8431, if they have any ques-
tion concerning this notice or compliance with its provisions.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
On September 25, 1961, pursuant to a charge, a first amended charge, and a
second amended charge, the General Counsel of the National Labor Relations Board,
by the Regional Director for the Eighteenth Region, issued a complaint and
notice of hearing, alleging that the Respondent herein had engaged in acts and con-
duct in violation of Section 8(a)(1), (3), and (5) of the Act. The hearing in this
proceeding, with the Respondent and the General Counsel represented, was heard
before Phil Saunders, the duly designated Trial Examiner, in Mitchell, South Dakota,
on October 17 and 18, 1961, on the complaint of the General Counsel and answer of
Mitchell Concrete Products Co., Inc., herein called the Respondent or the Company.
All parties were afforded full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence pertinent to the issues. The General Counsel
and counsel for the Respondent submitted briefs which I have fully and carefully
considered. Reserved rulings are in accordance with my findings herein.
Upon the entire record, and from my observation of the witnesses, I hereby make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a corporation organized under the laws of the State of South
Dakota with its principal office and place of business in Mitchell, South Dakota.
The Respondent operates a plant at Mitchell in which it is engaged in the sale and
distribution of concrete and related products, and the Respondent admits that dur-
ing the fiscal year ending February 28, 1961, it sold and delivered to Vittitoe,
Kuippers, Highway, and Henkel Construction Companies products valued in an ag-
gregate amount exceeding $134,000.
During the same fiscal year Respondent sold to Kuippers Construction Company
of Mitchell, concrete and other products in an amount valued in excess of $57,000.
The record discloses that during the same period Kuippers puchased goods and serv-
ices used in its operations from sources situated directly outside the State of South
Dakota in an amount in excess of the minimum dollar volume for the assertion of
jurisdiction over nonretail concerns. A portion of the purchases made by Kuippers
resulted from a subcontract let to H. H. Robertson of Pittsburgh, Pennsylvania, for
the fabrication and installation of insulated aluminum panels and window walls
for a construction project on the M & R Manufacturing plant in Mitchell, at which
Kuippers was the prime contractor. The aluminum products were fabricated in
MITCHELL CONCRETE PRODUCTS CO., INC. 511
Pennsylvania and shipped by rail to South Dakota. In return for the products and
their installation, Kuippers paid Robertson the approximate sum of $85,000.
The record further establishes that the Respondent sold its products to Henkel
Construction Company and Highway Construction Company of amounts in excess
of $9,000 and $13,000, respectively. It appears from the record that Henkel is
an Iowa enterprise with its general office at Mason City, and that the products Henkel
Construction Company purchased from the Respondent were used on a $700,000
disposal plant project in Mitchell on which Henkel was the main bidder or prime
contractor. Highway Construction Company appears to be an affiliate of Peter
Kiewit and Sons' Company, an enterprise over whom the Board has in the past
asserted jurisdiction.' The ready-mix concrete purchased by Highway Construction
Company from the Respondent was used for the most part on a highway bridge on
which Highway Construction was the main bidder with a contract exceeding
$1,000,000 in value.
The Respondent is a nonretail concern, and in Siemons Mailing Service, 122 NLRB
81, the Board stated, inter alia, that jurisdiction will be asserted over all nonretail
enterprises which have an outflow or inflow across State lines of at least $50,000,
whether such outflow or inflow be regarded as direct or indirect Pursuant to
Siemons Mailing, supra, direct and indirect outflow may be added to attain the neces-
sary dollar volume, and it is immaterial whether the inflow or outflow consisted of
goods or services or both. Accordingly, and without considering Henkel or High-
way Construction, the sales made by Respondent to Kuippers, coupled with Kuip-
pers' direct interstate inflow, constitute adequate grounds for the assertion of juns-
diction in this matter.
Moreover, in applying the nonretail standard, it is immaterial that Respondent de-
livered the products it sold to its customers to places within and not outside the
State of South Dakota. Sumner Sand & Gravel Company, 128 NLRB 1368. It
is equally immaterial that Respondent and some of its purchasers predict a decline
in sales or purchases for the current year. The Board relies for jurisdictional pur-
poses on the employer's past operations rather than on speculative predictions as
to future operations. Jos. McSweeney & Sons, Inc., 119 NLRB 1399, 1401.
In addition to the above, there is also an alternative ground upon which jurisdic-
tion may be asserted As the record reflects, Respondent made sales during its last
full fiscal year to Vittitoe Construction Company in an amount exceeding $52,000.
The products purchased by Vittitoe were used in the construction of curbs, gutters,
and sidewalks on South Dakota State Highway No. 37. The curbs, gutters, and
sidewalks were constructed as an integral part of the highway, and were paid for
in whole or part by Federal funds.
On the basis of Respondent's sales to Vittitoe, jurisdiction must be asserted if the
latter concern is engaged in commerce within the meaning of any of the Board's
standards other than indirect inflow or outflow. Vittitoe is engaged in commerce
by virtue of the fact that contractors employed in the construction of State high-
ways and bridges are subject to the Board's jurisdiction, if they meet the $50,000
volume test. J. W. Saltsman, doing business as Saltsman Construction Company,
123 NLRB 1176; and Madison County Construction Co., 115 NLRB 701. The
rationale of the rule as announced in Madison is that highways and bridges consti-
tute links in interstate commerce and their construction, therefore, affects commerce
within the meaning of the Act. Shortly after the announcement of the new stand-
ards in Siemons and related cases, the Board reexamined its "linkage" theory.
H P 0 Service, Inc., 122 NLRB 394 The Board announced that for future and
pending cases it would assert jurisdiction over concerns serving as essential links in
interstate commerce if such concerns derived $50,000 or more per annum from
such operations or if they performed services valued at $50,000 or more per year
for enterprises over which the Board would assert jurisdiction under any standard
other than indirect inflow or outflow. The use of the disjunctive "or" affirms the
conclusion that the Board established a separate jurisdictional standard for links
and instrumentalities in commerce as an alternative to the indirect outflow standard.
Vittitoe, as a contractor engaged in constructing links in interstate commerce, falls
within this linkage standard. Accordingly, jurisdiction should be asserted over Re-
spondent on grounds that it sold in excess of $50,000 of its products to an enter-
prise over whom the Board would assert jurisdiction on a standard other than
indirect inflow or outflow. On the basis of its sales to Kuippers or on the basis of its
sales to Vittitoe, or both, jurisdiction must be exercised over the Respondent. I
find the Respondent is engaged in commerce within the meaning of the Act.
'Peter Kiewit Sons' Co, 111 NLRB 881 and 106 NLRB 194.
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATIONS INVOLVED
I find' each of the above-named Unions is a labor organization within the meaning
of the Act. 2
III. THE UNFAIR LABOR PRACTICE
A. Estoppel
In its answer the Respondent sets forth an affirmative defense coupled with a mo-
tion to dismiss on grounds of equitable estoppel. The Company asserts that the
Board should be estopped in this proceeding due to the acceptance by the Regional
Director of withdrawals in two prior cases, Cases Nos. 18-RC-4685 and 18-CA-
1263. It was established that these prior cases were filed in the Eighteenth Re-
gion on April 19 and 27, respectively, and on May 5 the withdrawals were approved
by the Regional Director. In argument in support of the motion and by the testi-
mony of its general 'manager, Schneider, Respondent asserts that it was advised by
a Board agent that the Board would not exercise jurisdiction and the Unions would
be requested to withdraw. Respondent alleges that it relied on this advice and
thereafter governed its relations with its employees and the Unions in accord with
the laws of the State of South Dakota. It is Respondent's contention that having
advised at a prior 'time that it would not exercise jurisdiction, the Board is now
estopped from proceeding on the same or a related matter.
The record here further indicates that the prior charge case was withdrawn with-
out prejudice and under applicable Board Rules and Regulations could be refiled at
any time within the 10(b) period. However, even if the case had been dismissed by
the Regional Director, the result would have been the same as regards the right to
refile. In precedent cases where the charge has been dismissed by the Regional
Director on grounds of a lack of merit, the Board has held the dismissal not to be a
bar to future proceedings based upon the same alleged violation of the Act. Republic
Steel Corporation (98" Strip Mill), 62 NLRB 1008, 1022-1023, where the Board
held:
In any event, whether or not the Regional Director originally refused to issue a
complaint for the reasons asserted by the respondent, it is well settled that the
doctrines of res judicata or estoppel cannot be invoked against the Board, at
least where, as here, there has been no hearing or adjudication on the merits of
the case. ,
The rule set forth above is not limited to cases which have been withdrawn or dis-
missed for a lack of merit. The rule applies equally well where the withdrawal or!
dismissal results from an erroneous belief that the Board lacks the jurisdiction or an
administrative requirement has not been met. As noted by the Board in West Texas
Utilities Co. Inc. v. N.L.R.B., 184 F. 2d 233, 239, enfg. 85 NLRB 1396:
One who commits an unlawful act because of an honest , but mistaken , under-
standing of the law is not absolved from responsibility for his unlawful conduct.
The case is no different because the Respondent"apparently 'relied upon an
interpretation of the statute advanced by the General Counsel, a statutory
officer. His primary function is to investigate charges and prosecute cases before
the Board. The task of making binding interpretations of the meaning of the
Act is a judicial function, vested in the Board Members with ultimate power of
review in the courts.
It is noted here that there is a series of .former cases in which the Board dismissed
unfair labor practices because the parties had at a prior time been advised that their
operations did not fall within the scope of the Board's jurisdictional standards?
These cases have now been overruled and are also distinguishable on their facts from
the instant case.
These former cases generally arose when charges were filed immediately subse-
quent to a time when the Board had lowered its jurisdictional standards and under
circumstances where the Respondents had at a prior time been advised that the Board
would not exercise jurisdiction. However, the rule of Almeida and its counterpart
cases no longer applies. In November 1958 the Board again revised its jurisdictional
2 The record' reveals that the two Unions named herein represented the employees
jointly.
s John Almeida, Jr., d/b/a Almeida Rue Service, et at., 99 NLRB 498 : Tom Thumb
Stores, Inc., 95 NLRB 57; and O. A. Brauknan, et al., d/b/a Screw Machine Products
Company, 94 NLRB 1009.
MITCHELL CONCRETE PRODUCTS CO., INC. 513
standards and announced that it would apply the new standards retroactively , even to
those cases which might involve unfair labor practices committed at a time when the
Board would not have exercised jurisdiction . In promulgating this retroactive appli-
cation, the Board specifically announced that the rule of the Almeida case was over-
ruled to the extent inconsistent with Siemons Mailing Service , supra.
In the former Board cases the parties had been advised on an earlier representation
case that the Board would not assert jurisdiction and the unfair labor practices
charged followed the receipt of that advice . It is the timing of the advice and notice
in relation to the commission of the unfair labor practices that provides the motivat-
ing reason behind the rule in these earlier cases. As the Board noted in Allneida,
the controlling consideration [ is] the Board's reluctance to impose statutory
sanctions against a party for conduct committed after advice and notice that its con-
duct would not be actionable... . In the instant case under consideration several
of the acts and conduct which constitute the initial allegations of the complaint, and
as will be detailed in later sections of this report , were committed in April 1961,
before the Respondent had any official indications that the Board would deny juris-
diction. The remaining allegations of the complaint , happening after May 5, cer-
tainly cannot be divorced from the alleged violative conduct in the month preceding.4
In accordance withthe above , I deny the Respondent 's motion to dismiss.
B. Background and events
Early in April 1961 ,5 the employees at the Respondent 's plant started an organizing
campaign for the two Unions herein involved . The record established that in subse-
quent events the Unions requested recognition , that meetings were held by manage-
ment in which union matters were discussed with employees and union representatives,
that several employees were laid off and discharged by the Company,6 and that on
May 16 the employees at the Respondent 's plant went on strike . About June 1, the
Company took applications and hired replacement employees , and on August 29 the
striking employees made an offer to return to their former or substantially equivalent
positions of employment.
The record established that Fred Shandorf is the president of the Company, and
at times its legal advisor , E. J. Schneider is the Respondent 's general manager and
treasurer , Bernard Tegethoff is the plant superintendent , and that in the period perti-
nent hereto all were and are supervisors within the meaning of the Act.
C. The alleged refusal to bargain ; findings and conclusions
The complaint alleges, and I find , that all ready-mix drivers , yardmen, block
machine men, mixer operators , semidrivers , cubers and strippers , front-end loader
men, tank truck drivers, and mechanics, employees of the Respondent at its Mitchell
plant , but excluding all bookkeepers , guards, and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 ( a) of the Act.
On or about April 10 employee Fred Hanten circulated a paper among fellow
employees asking them to indicate their willingness to form or join a union. At the
time the organizing campaign began , the Respondent had approximately 15 employees
and at this time all of them indicated a willingness to "go union ." On April 17
4 As to the decision of the Regional Director in withdrawing the two prior cases against
the Respondent , as aforestated , see NLRB v Armstrong Tire and Rubber Company,
The Test Fleet Branch. 263 F. 2d 680, in which the Court of Appeals for the Fifth
Circuit held , inter alia , that the Board was not bound by a settlement agreement between
the Regional Office and the employer , since the Act vests in the Board itself the
authority to so determine, and this authority had not been , and could not be validly
delegated to subordinates so as to hind the Board. As to the statements of the Board
agent to the Respondent to the effect that the Board did not have jurisdiction, it has
been consistently held that the informal or personal advice from Board agents are not
binding on the Board Stokely -Van Camp, Inc , et el, d/b/a Stokely-Bordo , 130 NLRB
869 See , also, the Board ' s decision in Rubin Brown Ace Wholesale Electrical Supply Co.,
et at ., 133 NLRB 480, and the U S Circuit Court cases cited therein, and United States v
City and County of San Francisco , 310 U S 16, 31-32, for authority that equitable
estoppel cannot be invoked against the Federal Government or the National Labor
Relations Board.
5 All dates are 1961 unless specifically stated otherwise.
6 The five alleged discriminatees named in the complaint are Carl Larson , Reuben Sonne,
Floyd Ilanten , Marlin Stiefel, and Donald Tischler.
649856-63-vol . 137-34
0
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees met the Union's representatives and all but one signed cards desig-
nating Drivers Local 749 or Operating Engineers Local 49 as their collective-
bargaining representative. The single remaining employee signed an authorization
card on April 24. As of the date of the hearing none of the employees had revoked
their authorizations.
On April 18 the Unions prepared and mailed to the Respondent a letter advising
-of their majority status and requesting recognition and bargaining. In this letter
the Unions offered to submit their majority status to a third disinterested party,
and also advised the Company that a petition had been filed with the Regional
Office of the Board? It was further established that the Respondent received the
Union's letter of request on April 19.8 On April 25, the Company replied that it was
without sufficient legal knowledge to make a decision concerning the Unions'
request for recognition and bargaining, and therein deferred from making a decision
,on the same. The Respondent's letter in reply raised no question concerning any
doubt of the Unions' majority status.
On May,8 the Unions' business representatives met with the Respondent's president
.and attorney, Shandorf, and renewed its request for recognition and bargaining.
At this May 8 meeting President Shandorf questioned whether the Unions represented
a majority, and Shandorf testified that the Company wanted to have an election
so the Respondent could determine whether or not the Unions represented the
employees. The record further established that Business Representative Mclllvenna
then offered to submit the authorization cards to a judge, minister, or priest. At
the conclusion of the meeting Shandorf agreed to discuss the matter with the Re-
spondent's board of directors.9
On the day the employees began their strike, May 16, the Company mailed to
each of them an invitation to attend a meeting to hear the Respondent's side of the
story A second letter was sent out by the Company on May 24 to employees, and
,offered to discuss with them a settlement on wages and working conditions. The
record reveals that in response to the Respondent's letter of May 16, the employees
sent a reply offering to deal with the Respondent only through their collective-
bargaining representatives, and a meeting was thereafter held on May 19. At
this meeting the Unions' representatives renewed their request for recognition
and bargaining, and the Respondent then asked if the Unions had an offer to
make. The Unions agreed that they would prepare a written proposal and submit
it on the following day. During the meeting President Shandorf reiterated his doubt
-of the Unions' majority, and again the Unions offered to submit the cards to a
neutral party.
As agreed the Unions' representatives and two of the employees met with the
Company again on the following morning and submitted a written proposal. Re-
spondent's officers read the proposal and President Shandorf then proceeded to in-
form the Unions that the Respondent was not going to negotiate and intended
to close down unless the men returned to work. Shandorf expanded on his state-
ment by advising that Respondent had no alternative but to contact the news
media and announce that it was going to lock up and go out of business. Union
Representative McIllvenna explained that the Unions' proposal was only tentative,
that all items were open for negotiations, and that all the Unions wanted was
an opportunity to sit down and negotiate peaceably. At the conclusion of this
meeting Shandorf agreed to contact some of the members of the board of directors
and meet again with the Unions later in the day.
The parties then met again on April 20, and Shandorf announced that he had
contacted a few members of the board of directors, but that the Company could
not negotiate such a contract Shandorf testified that the proposed contract by the
Unions was "preposterous," and that the Company could not exist under its terms.
The Respondent offered no counterproposals, nor have there been any subsequent
attempts, meetings, or requests to bargain. The Company did not file any petition
for election with the Board.
7 As aforestated, the petition was withdrawn along with an unfair labor practice charge
on May 5, 1961.
8 On or about April 19, General Manager Schneider held a lunchroom meeting attended
by most all of the employees of the Respondent, and on which occasion Schneider In-
quired as to those who were in favor of the Union The record established that all em-
ployees In attendance Indicated that they were for the Unions, and that they did so by
raising their hands.
90n April 26 five employees In the "block crew" operations were laid off, and on
May 13 the employment of Tischler and Stiefel was terminated On May 15 the em-
ployees voted to strike.
MITCHELL CONCRETE PRODUCTS CO., INC. 515
Conclusions
The Respondent's defense in its refusal to recognize and bargain with the Unions
is mainly grounded upon an alleged doubt of the Unions' majority, and the company
assertion to have the question decided by a Board-conducted election
It appears to me that the evidence in this record completely destroys the Re-
spondent's contention of any bona fide doubt of the Unions' majority. By Manager
Schneider's own testimony, all of the employees at the lunchroom meeting on April 19
conclusively indicated a preference for the Unions, and the credited testimony of
several employees reflects that at least a majority of them in the unit were present
on this occasion. Subsequent interrogations of individual employees by Schneider
in April, as will be detailed later, also reflected the same sentiments for the Unions.
Under the Act, an employer is under a duty to bargain as soon as the Union
presents convincing evidence of majority support, and it is well established that elec-
tion and certification proceedings are not the only method of determining majority
representation. The Board and courts have consistently held that there is no
absolute right vested in an employer to demand an election. That if an employer in
good-faith doubts the Union's majority, he may, without violating the Act, refuse to
recognize the Union until its claim is established by a Board election A doubt
professed by an employer as to the Union's majority claim must be genuine. Other-
wise the employer has a duty to bargain and may not insist upon an election.
In order to determine the validity of a claim of good faith, however, the Board
looks to the employer's entire course of conduct. An employer who fails without
good reason, as here, to respond to bargaining requests of a union which represents a
majority of its employees, and embarks, instead, on a course of improper conduct
which is either calculated to or tends to destroy that majority, does not demonstrate
the good faith required to justify its failure to bargain.10 The record in this proceed-
ing is clear, and it has been too well established to require extended discussion,
that any doubt the Company may have entertained in respect to the Unions' majority,
was totally dissipated at the lunchroom meeting when Manager Schneider was
unequivocally informed, as aforestated that a majority of the employees favored
the Unions involved herein. It is also noted that it was after the lunchroom meeting
on April 19 that the Respondent thereafter raised the question of the Unions'
majority, and even the letter sent to the Union by the Company as late as April 25
did not raise this question From the established facts in this record it is most obvious
to me , that the Company not only lacked any good-faith doubt as to majority, but
that actually there remained, at the time in question here, no doubt at all. In ac-
cordance with the above, the Respondent could not insist on a Board-conducted
election.
As Respondent could not insist on an election under the foregoing circumstances,
neither can it rely on the fact that the Unions filed a petition as a defense to relieve
it of the duty to bargain. As the Board explained in Arts and Crafts Distributors,
Inc., 132 NLRB 166:
The filing of a petition does not constitute an irrevocable commitment by the
Union to establish its representative status only through a representation proceed-
ing. Confronted as it was by Respondent's unfair labor practices, designed to
destroy its majority in the unit and make a free election impossible, the Union
was forced to choose whether, in the face of such conduct, it would proceed to
establish its bargaining rights 'through the representation or complaint pro-
ceeding. . . A selection of forums is timely if made before the representation
election is held, nor does it constitute abuse of the Board's processes.
Another aspect of Respondent's conduct which violates Section 8(a)(5) and (1)
is the unilateral wage increase granted to the replacement employees. After com-
mencement of the strike on May 16, Respondent shut down its cement block opera-
tions until shortly after the first of June. About June 1 Respondent began adver-
tising for replacement employees and offered to pay wages in excess of those paid
the striking employees. The wages offered were paid as agreed with the applicants.
There is no evidence that the wage increase was ever discussed with the Unions or
that the Unions were ever given a corresponding offer. The granting of the wage
increase without notice to the Unions constitutes a refusal to bargain and shows bad
faith. The Board has further held that it is no defense that the wage increase was
granted .to replacement employees during the course of a strike.
A further violation of Section 8(a)(5) and (1) arises out of the letters mailed
by Respondent to its employees on May 16 and 24, as aforestated. The letters pro-
iu Joy Silk Mills, Inc, 85 NLRB 1263, enfd . 185 F 2d 732 (CAD C) , cert denied
341 U. S. 914.
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pose a meeting between Respondent and its employees from which the collective-
bargaining representatives are to be excluded and the latter suggest negotiations con-
cerning wages and working conditions. It has been well established that attempts
to deal unilaterally with the employees in the unit in derogation of the established
rights of the collective-bargaining representative constitutes bad faith.
In addition to its adamant refusal to recognize and bargain with the Unions, there
are other aspects of Respondent's conduct which violate Section 8(a)(5) of the
Act. One aspect is the layoff and termination of employees on April 26 and the dis-
charge of Tischler and Stiefel on May 13. As will be shown hereafter, the layoffs
and discharges were discriminatorily motivated and designed for the express pur-
pose of undermining the Unions' majority. As such, the discharges violate Section
8(a)(5) as well as 8(a)(3) of the Act. Termination of known union adherents
following their interrogations and following the receipt by the employer of a re-
quest to bargain, constitutes a refusal to bargain. Biltwell Trailer Company, 122
NLRB 606, 611, and cases cited therein.
The Unions' April demand for recognition as bargaining representative for the
purpose of negotiating a contract for employees in an appropriate unit, under the
above circumstances, imposed upon the Respondent a duty to grant such recognition,
and the Company may not, as it did, evade by failing to make or delaying its re-
sponse, committing unfair labor practices, and then belatedly questioning the Unions'
majority status. In view of all the foregoing, I find that the Respondent's failure
and refusal to recognize the Unions on and after April 19, 1961, constituted a re-
fusal to bargain within the meaning of Section 8(a)(5) and (1) of the Act.
D. Interference, restraint, and coercion; findings and conclusions
The complaint alleges that the Respondent interrogated its employees concerning
their union membership, threatened discharge and other reprisals, warned that the
plant would close and that employees would lose their jobs if they discussed the
Unions during working hours, and the complaint further alleges that the Respondent
informed employees that activities of the Unions were being kept under surveillance.
There are numerous instances on this record in which several witnesses for the
General Counsel credibly testified as to what was said by Schneider on April 19,
and even General Manager Schneider himself readily admitted that at the lunchroom
meeting on April 19 he questioned the employees as to whether they had attended
the union meeting, and had also asked whether or not the employees were in favor
of the Union.
Harold Tegethoff credibly testified that within a few days after the lunchroom meet-
ing, Manager Schneider called him in and inquired if Tegethoff was for the Union,
told Tegethoff that if the Union was successful he would make less money, and that
Schneider further stated to Tegethoff that he had no trade and that if fired he could
be replaced in 45 minutes."
Raymond Radensleben credibly testified that on April 19, Manager Schneider in-
quired of him if he was at the union meeting, had asked Radensleben what he thought
of the Union, and that Schneider had further inquired as who was the union insti-
gator or leader. Schneider in his testimony could not recall any questions about the
Union directed to Radensleben, but stated that he had inquired as to what the em-
ployees wanted. Supervisor Bernard Tegethoff admitted in his testimony that Schnei-
der had inquired of Radensleben if he was for the Union.12 Donald Tischler credibly
testified that in April, Manager Schneider had asked him if he had attended the Union
meeting, what Tischler thought of the Union, and whether he was for the Union.
Schneider admitted this conversation with Tischler, but could not recall any of the
statements except a request for better working conditions, lunchroom, and a cleaner
restroom. The record also established that 2 weeks later Schneider had asked
Tischler what he thought the Union could do for him.
The foregoing instances of interrogation and other statements that have been
credited and attributed to company supervisors and agents, are not instances of ob-
11I credit the above on the basis of the demeanor of Tegethoff, and on the grounds that
the conversation with this witness was admitted by Schneider, and his further admission
that something was said about grievances and working conditions.
12 Unless specifically indicated to the contrary, any credibility evaluation I make of the
testimony of any witness appearing before me is based, at least in part, upon his or her
demeanor as I observed it at the time the testimony was given Cf Bryan B) others
Packing Company, 129 NLRB 285 To the extent that I indicate hereafter that I reject
in part or entirely the testimony of any given witness, it is my intent thereby to indicate
that such part or whole of the testimony, as the case may be, is discredited by me
Jackson Maintenance Corporation, 126 NLRB 115.
MITCHELL CONCRETE PRODUCTS CO., INC. 517
jective inquiry as to the propriety of recognizing a labor organization; they are not
"casual, friendly, isolated instance[s] of interrogation by a minor supervisor." See
Blue Flash Express, Inc., 109 NLRB 591. Neither do they amount to the mere ex-
ercise of free speech under the First Amendent to the Constitution nor to protected
expressions of views under Section 8(c). N.L.R.B. v. Minnesota Mining & Manu-
facturing Company, 179 F. 2d 323 (C.A. 8); National Shirt Shops of Delaware, Inc.,
,et al., 123 NLRB 1213. Rather they include an attempt to inquire into attitudes, loy-
alty, who started and who were for the Unions, and who attended meetings, reasons
for wanting the Union, that those employees who did not fully participate in union
activities could be assured of work, and the definite implication that employees would
be better off without the Union; they therefore constitute violations of Section
.8(a)(1). Hudson Pulp & Paper Corporation, 121 NLRB 1446; Talladega Foundry
& Machine Company, 122 NLRB 125.
In addition to the above it is also alleged, as aforestated, that the Company pro-
hibited discussions of union matters on the Respondent's premises. Manager Schnei-
der testified that he told his foreman that the employees were not to "gang up" on
company time and talk about the Union, but that he did not say anything about
union discussions on employees' free time. Schneider further stated that the Re-
spondent had no published rule on the above, and that prior to April 18 he had
never informed employees that they were not to talk about union affairs on company
,time. Plant Superintendent Bernard Tegethoff stated that he told employees not to
talk about the Union on company time. Harold Tegethoff credibly testified that
his brother, Superintendent Bernard Tegethoff, had told him that if he caught any
of the employees talking about the Union he would have to report the same to
'Schneider, "whether it was any time during the day, whether noon, morning or
any time." The record further established that when Harold Tegethoff complained
to his brother that the employees had the right to discuss the Union on noon hours
and during breaks, Superintendent Bernard Tegethoff then replied, "He would have
to tell Schneider." In addition to the above, the credited testimony of Floyd Hanten
as to discussions of union matters was in substantial corroboration to that given by
Harold Tegethoff.
The Company here admits, through the testimony of its General Manager Schnei-
der, that it has no published rule prohibiting union solicitation at the plant, and
also that prior to the time in question had never so informed its employees on
the matter. The credited testimony of Harold Tegethoff shows that the rule applied
at all times, and in accordance therewith it has been firmly established by the Board,
that a rule against solicitation which prohibits employees from soliciting union mem-
bership and discussions on nonworking time on the employer's premises, is an in-
vasion of the employees' rights guaranteed in Section 7 of the Act. The Respondent's
lack of specific intent to violate is immaterial where the natural consequence of the
conduct would constitute an interference with those rights. From the timing of this
incident it also appears to me that the company rule in question was solely promul-
gated as an impediment to the employees' rights of self organization.13
I find that by announcing and enforcing a rule prohibiting employees from engag-
ing in union activities and soliciting union membership on company premises during
nonworking time, including lunch periods and breaks, Respondent has interfered
with, restrained, and coerced employees in the exercise of their statutory rights
within the meaning of Section 8(a) (1) of the Act
As aforestated, the complaint also alleges that the Respondent engaged in un-
lawful surveillance. In this respect Superintendent Bernard Tegethoff testified that
Manager Schneider had told him to drive past the Labor Temple in Mitchell if he
"happened to be on that way home," but further stated that nothing was mentioned
about the taking of license numbers. Schneider in his testimony denied that he
had instructed Superintendent Teeethoff in April to go by the Labor Temple during
union meetings and take down license numbers, but admitted that after the strike
his wife had taken some license numbers at the Labor Temple, so that the guard
could see who was around the plant at night
Harold Tegethoff testified that his brother, Superintendent Bernard Tegethoff,
advised him and Tischler that he had been told by Schneider to drive past the Labor
Temple and check to see if any of the employees' cars were there, and to take down
the license numbers
"A valid no-solicitation rule on nonworking time must relate to snectal circumstances
necessary to maintain production or discipline . There is no credited evidence in the
instant case that the rule in question relates to these factors. Midland Manufacturing
Company, Division of Pacific Industries , Inc, 134 NLRB 10 See also Memphis Publish-
ing Company , 133 NLRB 1435
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With the admitted testimony of Superintendent Tegethoff, that he had been spe-
cifically told by Manager Schneider to drive past the Labor Temple but to do nothing
else, it would be extremely difficult for me to believe that such advice was merely
functionary instruction in the ordinary course of conducting daily business, as ap-
parently the Respondent's agents contend.14 This I do not believe, and I there-
fore credit the testimony of Harold Tegethoff.
Surveillance of union meetings by management officials or supervisors is per se
a violation of the Act, and it is equally violative to record the license numbers of
cars parked outside such a meeting. Allure Shoe Corporation, 123 NLRB 717, enfd.
in part 277 F. 2d 231 (C.A. 5); Dan River Mills, Incorporated, Alabama Divi-
sion, 121 NLRB 645, enfd. in part 274 F. 2d 381 (C.A 5); and Bakersfield Foods
Co., Inc, 123 NLRB 1130. Even conceding, arguendo, that Foreman Tegethoff
did not comply with Schneider's instructions or that no license numbers were even
copied down, a violation of Section 8(a)(1) has nevertheless been proved. The
statements made by Superindent Tegethoff to the employees created the impression
that the Respondent was engaging in surveillance and are as much a violation of the
Act as if the surveillance had actually been conducted Unified Industries, Inc.,
et al., 121 NLRB 1184, enfd 273 F. 2d 431 (CA. 6). In accordance herewith the
above also constitutes a violation of 8(a)(1).
E The alleged discriminatees
1. The block crew
On April 22, 3 days after receipt of the Unions' letter of request for recognition,
Respondent notified five of its employees that they would be laid off effective April
26 Aside from a similar but incorrect letter dated April 21, no prior notice of lay-
off was given the employees. The five employees selected for layoff, and who also
composed the Respondent's "block crew," were Larson, Sonne, Hanten, Ansel, and
Keitz 15 Larson and Sonne were recalled by the Respondent on or about April 29
and May 8, respectively, and worked up until the strike, but Hanten and the other
two employees were never recalled. Ansel and Keitz are not named in the com-
plaint as alleged discriminatees.
Manager Schneider testified that the Company had ordered some new equipment
or "batcher" for the plant, and in the process of installing this equipment it was neces-
sary to cut the "cement pipe out," so that the plant could no longer run the block
equipment. Schneider stated that as a result of the above none of the equipment
was operated out of the main ready-mix plant nor in the block plant, but that the
Company did run a "portable hatcher," and thereby continued to sell and deliver
regular concrete 15 Schneider further testified that the employees who remained at
the plant worked on the installation of the new equipment except for those operating
the portable batcher. Schneider also stated that the decision to shut down the block
plant division was made by the Respondent's board of directors a week to 10 days
before the actual shutdown on April 26, and that the plant was having financial
difficulties with a $20,000 overdraft out of their operating capital.
Manager Schneider further advised that in a conversation with his attorneys, it
was decided to lay off the block crew rather than picking employees, and as a
result there were some older employees laid off and some newer ones kept, but
that the Company had no policy on seniority. Schneider stated that the actual layoff
of the block crew depended on the arrival of the new equipment, and that it did not
all come at the same time.
Alleged discriminatee Reuben Sonne testified that he was first employed by the
Company in July 1958, and had continually worked on the block crew. Sonne
stated that employees Wittenhagen and Stiefel had less time with the Company than
he had, but that both were retained and worked up until the strike on May 16.
Sonne stated that upon returning to the plant after his layoff he worked on the
"weight basket," and also "stripped chains."
14 It was further established that Superintendent Tegethoff drives past the Labor Temple
to and from work, and therefore, his instructions from Schneider to merely "drive past' is
completely untenable
11 The record establishes that the block operations at the plant were shut down on
April 26, and that this division did not resume work until on or about June 1
"The record established that the Company had two cement batchers , a fixed one and a
portable one, and during the period in question the fixed botcher was taken out and a
new one was being installed with the portable batcher being used in the interval. The
hoteliers are used to mix rock and sand before loading the same in a ready-mix truck.
MITCHELL CONCRETE PRODUCTS CO., INC. 519
Alleged discriminatee Carl Larson testified that during winter months the block
plant operation in the past was shut down, but that in these winter periods the
employees involved were then kept busy making repairs on trucks and other ma-
chinery. Larson further stated that on April 26, the date of the layoffs, the ma-
terial for the new batcher and other equipment was on the plant premises, and that
these materials had been there a good week before the layoffs. Manager Schneider
stated that he recalled Larson, after his 2 or 3 days' layoff, as the plant had some
"curing room doors" being installed, and that the outside contractor hired by the
Company to do this work did not have enough men.' On cross-examination Schneider
admitted that the "doors" were already on the plant premises before Larson was
notified of his layoff. Larson was initially hired by the Company in April 1960.
Alleged discriminatee Floyd Hanten testified that he was the union instigator
at the company plant, that he had some experience in operating the portable hatcher,
that prior to the time in question he, Larson, and Sonne worked on the block
machine, and further stated that Ansel and Keitz, who were also laid off on April 26,
as aforestated, were doing general laborer jobs and that they had nothing to do with
the operation of the block machine. Hanten also testified that after his layoff"
Edwin Graves operated the portable batcher as Hanten was never recalled by the
Company. Graves testified that in a conversation with Superintendent Tegethoff
before the installation of the new hatcher, he informed Tegethoff that he was not
experienced in the running of the portable batcher and then told the superintendent
that Floyd Hanten was experienced in this operation. Hanten was hired by the
Company in April 1960. After the layoffs in question here, Marlin Stiefel also.
gave credible testimony relative to a conversation he had with Superintendent
Tegethoff, and the pertinent aspects thereof will be subsequently set forth herein.
Conclusions as to the Block Crew
The record here is crystal clear that before the layoffs and discharge on April 26,
the Company had specific knowledge of the union activities of Sonne, Larson, and
Hanten, and the Respondent raises no serious issue whatsoever in this respect.
In essence here the record reveals that the cement block division of the plant
was shut down due to the installation of a new fixed hatcher, that a portable hatcher
was used in the interval so that the Company could continue to deliver its regular-
concrete, but that the making of cement blocks was not resumed until about June.
Therefore, the question to be resolved is whether or not, under these particular
circumstances, the Company would have retained the block crew to do other jobs
at the plant had it not been for their union activities.
Manager Schneider admitted in his testimony that at a prior time during 1961,.
the Company installed a new boiler in the plant and that no employees were then
laid off, and further admitted, as a matter of fact, that several were used to do some
of the work on the installation of the boiler.17 There is also evidence that some
of the employees retained by the Company in April performed work in connection
with the installing of the new hatcher, and in past slow periods employees were used'
in the repairing of machinery.
Moreover, it appears to me that evidence of discrimination is reflected to a
considerable degree in the layoff of Floyd Hanten. As aforestated, Graves was
retained by the Company to operate the portable hatcher during the time of the
new installation though he had no experience, but the experienced operator, Hanten,
was discharged. There is reliable evidence that it was Hanten who instigated the
Union, and it was also established that Hanten further called attention to himself
when he refused, at the lunchroom meeting on April 19, to tell Manager Schneider
who had contacted the Unions.18 The discriminatory motivation behind the layoffs
is further substantiated by two conversations which occurred shortly before and
shortly after the layoff. Several days before the installation of the new equipment
began, Superintendent Tegethoff advised employee Graves that he would operate
the portable batcher. Graves then explained to Tegethoff that he had no experience
on this equipment but pointed out that Hanten had operated the portable hatcher.
Tegethoff replied that it was Schneider' s instruction that Graves operate the portable
hatcher and he would be taught how to operate the equipment.
In addition to the above the record further established that several days after the
employees were laid off, Marlin Stiefel had a conversation with Superintendent Teget-
hoff. Stiefel asked why three of the older employees had been laid off while two
"Official transcript at page 202
'5There is credited testimony by several witnesses that when Schneider asked em-
ployees on April 19 who it was that contacted the Union, Hanten replied: "It's not up•
to us to say."
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with only a few weeks' tenure with the Company were retained. Tegethoff replied
that Schneider believed that Floyd Hanten and Carl Larson were instigators of the
Union and for this reason got rid of them As far as I am able to ascertain there is
no direct or specific denial by the superintendent of this statement attributed to him
and furthermore, as aforestated, I have credited the testimony of Stiefel in this
respect and do hereby reject Schneider's denial of the same.
Some further doubt of the reliability of Respondent's contentions is raised by the
layoff and almost immediate recall of Carl Larson. Schneider contends that he did
not know he would need Larson when he laid him off, but decided to recall him when
the curing room doors arrived at the plant. The record discloses, however, that all
of the equipment for the installations, including the curing room doors, were at the
plant at least a week before the employees were notified of the layoff, Larson's
testimony to this effect is corroborated by Respondent's letters to the employees of
April 21 and 22, which recite that the equipment had been delivered.19
In concluding here it is also noted a most convincing indication that the layoffs in
question were discriminatorily motivated. The Company contends, as previously set
forth, that the decision to shut down the block operations at the plant was made by the
Respondent's board of directors a week to 10 days before the actual shutdown, and
which at the best would then date this decision on April 19. On the same day or
within the immediate interval, the Company received notification from the Unions
requesting recognition. However, what is even more convincing, in light of the
Respondent's decision to supposedly cut its working force, is the fact that the Com-
pany then hired Marlin Stiefel on April 19. Moreover, if this decision by the board
of directors to cut operations was made 10 days before the shutdown, the contention
by the Respondent and their testimony on the same becomes even more difficult to
follow, when subsequent thereto another employee was hired.
Finally, the record here certainly establishes that the plant had undergone changes
before, and on at least one prior occasion when new equipment was installed the
employees were not laid off, but actually assisted in the installation. During the
time in question here the evidence shows that there was considerable work to be
done in the installing of a new batcher, which was further demonstrative by the
recall of Larson on April 29 and Sonne on or about May 8. It is also apparent to me
that these layoffs and then the recall of the two employees is further indicative of the
initial harassment by the Company to discourage union efforts of its block crew, and
an effort to rid itself of union instigator Floyd Hanten who was not at any time
recalled by the Company.
From my observation and demeanor of the witnesses, and for the other numerous
reasons given here, coupled with the antiunion statements credibly attributed to the
Company, it is accordingly found that Reuben Sonne and Carl Larson were laid off,
and Floyd Hanten discharged on April 26, in violation of Section 8(a) (3) of the Act.
2 As to Marlin Stiefel
The record established that Stiefel attended the lunchroom meeting on April 19,
and there is no question or issue that the Company had knowledge of his activities
in support of the Unions. Stiefel's employment was terminated by the Respondent
on May 13, and during the short period of his employment he had worked as a
"cuber" and general laborer 2° Superintendent Tegethoff terminated Stiefel's employ-
ment at Manager Schneider's direction, and the reason given by the Company was
lack of work.
Stiefel stated that at the time of his discharge he had told Superintendent Tegethoff
that the plant was already short of men, and then had asked as to the actual reason
for his termination. Stiefel credibly testified that Tegethoff then told him that a
relative of Stiefel, Cora Jones, had contacted Manager Schneider and advised him that
Stiefel was definitely for the Union and to get rid of him.21
Conclusions at to Stiefel
Manager Schneider denied that Cora Jones told him to fire Stiefel However,
Superintendent Tegethoff did not specifically deny the Cora Jones' statements attrib-
uted to him by Stiefel, but merely testified that he had informed Stiefel of his termina-
tion and that there was no further conversation. Whether Superintendent Tegethoff
10 General Counsel's Exhibits Nos. 11 and 12
20 Stiefel was never recalled by the Company.
21 It was established that Cora Jones formerly worked for the Company, and that the
evening before the discharge she and Stiefel had engaged in a conversation in which the
Union was discussed
MITCHELL CONCRETE PRODUCTS CO., INC. 521
actually phrased his statements in the exact way and manner as so attributed to him
by Stiefel, could possibly be subject to some conjecture or rebuttal, but Tegethoff's
testimony that he merely informed Stiefel of his termination and that there was no
further conversation cannot be supported by the credited testimony in respect to
this incident.
In addition to the above it is also interesting to note that the Company supposedly
terminated Stiefel on the grounds that he was not needed and that there exised a
lack of work. However, 5 days prior to Stiefel's discharge the Company had
recalled Sonne, and 2 weeks before had recalled Larson, as aforestated. From these
circumstances it appears highly unlikely to me that the Company would rehire
employees because they were needed, and then, within the same general period of
time, discharge another employee because he was not needed, unless there was
present a predominant antiunion motivation and a continual harassment of union
adherents.
It is accordingly found that Marlin Stiefel was discharged by the Respondent on
May 13, 1961, in violation of Section 8(a)(3) and (1) of the Act.
3. As to Donald Tischler
The record establishes that Tischler was initially hired by the Company in 1958,
that he was discharged on May 13, 1961, and that he was never recalled. It was
also established that the Respondent had full knowledge of Tischler's union activities
prior to his discharge, as aforestated, and there is no issue or contention otherwise.
Superintendent Tegethoff testified that Manager Schneider directed him to dis-
charge Tischler for the reason that a cement mixer "was tore up," and Tegethoff
further stated that at the same time Schneider gave him a letter to deliver to
Tischler.22 The superintendent also testified that when he gave him the letter,
Tischler then told Tegethoff that he thought he would get fired as he had been given
chances before, and that Tischler at this time was referring to the cement mixer that
had been damaged by him on May 12.
Manager Schneider testified that Tischler was discharged for the four following
reasons: Working the timeclock,23 improperly watching the plant so that on one
occasion the cement "pits" flooded, that in the spring of 1960 Tischler had let the
mixer engine run at high speed after being told differently, and that on May 12 he
had been negligent in the operation of a mixer which resulted in damages amounting
to $300 or $400.
Schneider admitted, however, that on prior occasions other drivers also had acci-
dents. That in 1958 or 1959 driver Don Webber rolled a truck during snowy
weather, but was not discharged.24 Schneider further testified that driver Don Young
had recently rolled over a truck which was completely demolished, and admitted
that Young was not discharged but that the cause of this accident had not as yet
been established. Schneider also admitted that driver Linus ran a lift truck off the
road but was not discharged, and that driver Schooler had backed a truck into a wall
and had also dropped a semi off a tractor, but was not discharged.
The record here further reveals considerable testimony as to the specific damage
on Tischler's mixer due to his accident on May 12. Superintendent Tegethoff stated
that a rod was bent and this "threw the chain," and also testified that the damage
could have been caused by "dropping the clutch" or "stiff mud" or "anything,"
and that several times he had seen Tischler let out the clutch too fast with too much
speed on the engine 25 Manager Schneider testified that prior to the accident the
mixer in question was in good shape, and that the resulting damage could not have
happened except through the negligence of Tischler, and by "jerking the levers on
it." Schneider stated that the mixer involved in this incident was the newest one
the Company had. Schneider also stated that the company policy in respect to
the damaging of equipment, is to give the employees the doubt, but if the doubt is
resolved against them and negligence is involved, then they are discharged.
22 It was established that Tischler was given free house rent by the Company in return
for his services of cleaning the office and watching the plant. The letter, delivered to
Tischler as referred to above, notified him that he would have to vacate the Company's
house within 30 days.
23 Schneider stated that in connection with cleaning the office Tischler would punch
the timeelock before he was sunposed to, and that Tischler had admitted doing so.
24 Schneider admitted that the damage caused by the Webber accident amounted to
$4,100, but stated that this accident was covered by insurance while he himself had to
stand the damages caused by the Tischler incident on May 12
25 Tegethoff testified that the other damage involved was the result of the arm bending
and letting the chain go slack so that the mixer tore through the radiator.
-522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tischler testified that the accident and resulting damages he had on May 12
happened in the following manner. That he was unloading cement and holding
,the spout with the mixer turning slow, and that all of a sudden the mixer made a
"crack" and "everything went to pieces." Tischler stated that on this occasion he
was hauling a "heavy mix," and that the accident and damage was caused by the
"stiff mud" and the wom parts 26
Conclusions as to Tischler
I reject the Respondent's contention that Tischler was discharged for cause. In
so resolving 'a principle of law I consider applicable here is that stated by the First
Circuit Court of Appeals in N.L.R.B. v. Whitin Machine Works, 204 F. 2d 883, as
follows:
In order to supply a basis for inferring discrimination it is necessary to show
that one reason for the discharge is that the employee was engaging in pro-
tected activity. It need not be the only reason, but it is sufficient if it is a sub-
stantial or motivating reason, despite the fact that other reasons may exist [citing
cases.] Although the discharge of an inefficient or insubordinate union member
or organizer is lawful, it may become discriminatory if other circumstances
reasonably indicate that the union activity weighed more heavily in the decision
to fire him than did the dissatisfaction with his performance.
In amplification of the above principle of law it is noted that Manager Schneider
based his discharge of Tischler on four reasons, as aforestated. Three of these
reasons concerns conduct supposedly committed by Tischler during the winter and
spring of 1960-1961. Insofar as padding the timeclock is concerned, it appears to
me that the arrangements in this regard, irrespective of some alleged deviations, were
acceptable to the Company up until Tischler's union activities. As to the flooding
of the cement pits on one occasion, and the contention by the Company that this
would not have happened if Tischler had been properly watching the plant. The
evidence shows that there were automatic pumps in the bottom of the pits which
,operate on a float system, and that the pumps were supposed to operate when the
water reached a certain level. There was no testimony as to what was wrong with
the pumps, but the main complaint by the Company appeared to be that Tischler
could not be located after the incident happened. Schneider testified that he dis-
covered the flooded pits on a Sunday, and then called Tischler's home and that
no one answered the telephone, but that Tischler informed him on the next day
that he had been out the night before and had been drunk. Schneider admitted
that Tischler had no regular hours in his part-time duties as plant watchman, and
'furthermore as to the actual duties involved in this job, Schneider stated, "He
[Tischler] was more or less to watch the customers coming through, I mean, after
hours customers coming through, and he was to check the boiler and shut the boiler
-off, and also clean the offices." From the above it seems to me that there exists
considerable speculation as to the exact duties or responsibilities of Tischler, especially
in regards to the observation of cement pits on Sunday, and under the additional and
extenuated circumstances: this incident in question cannot be credibly regarded as
a justifiable reason for discharge. The third reason given by Schneider for Tisch-
ler's discharge was that he left the mixer engine running at too high a speed.
Schneider admitted that this incident happened sometime in the spring, quite some-
time before the discharge, and that the Company was having difficulties of the same
nature on other trucks. Schneider also admitted that after instructing Tischler
on the proper operation he could not recall any further incidents. Under these
circumstances I likewise deem this reason as a pretext for the discharge. Moreover,
whatever may have been the merits of these three reasons and episodes, it is
nevertheless apparent to me that the Company attached so little significance to them
that Tischler's acts in these respects were frilly condoned for considerable periods
-of time, and only after the ascertainment of his preference for union organization
did the alleged conduct become reasons for the discharge
The fourth and main reason given for the discharge concerns the damage to
the mixer on a truck driven by Tischler on May 12, the day before his termination.
`On May 12 Tischler was hauling "school mix," a stiff grade of concrete with a
lower water content, and the record reveals that he often hauled such loads. As
21 The record established that the truck and mixer in question had an automatic clutch
whereby it can only be released at a certain speed, and the clutch then engages the auto-
matic throttle and the motor is idled down. The record further reveals that at the time
in question Tischler was hauling "school mix" which is an extra heavy grade of con-
crete-lower water content and heavier gravel and sand-than an ordinary mix
MITCHELL CONCRETE PRODUCTS CO., INC. 523
aforestated, Schneider specifically attributed the damage on the mixer to Tischler's
negligence, but on the other hand, Superintendent Tegethoff's testimony added
some qualifications by agreeing that the accident in question could have been caused
by the stiff mix, or dropping the clutch, and then Tegethoff finally stated and
concluded that the damage could have resulted from "anything." The evidence
in this record concerning the mechanical nature of the mixer and the manner in
which the clutch is engaged, leaves me with some doubt as to the exact operational
functions. However, it was undenied that the truck driven by Tischler on May 12
was equipped with an automatic clutch, and that the clutch has a shock absorber
cylinder which enables the clutch to engage at a constant but limited speed. It
further appears that an automatic throttle regulates the speed of the motor in rela-
tion to the speed at which the clutch is engaged, and in order to jam the clutch
into position, it would be necessary for the operator to hang with his weight upon
the clutch lever. On the day in question, Tischler was standing behind the mixer
holding the concrete chute and the mixer had already unloaded half the load when
the accident occurred. It seems to me from the above credited and undenied
testimony, that for a valid defense of negligence wherein various automatic equip-
ment is controlling, there is lacking here any rebuttable evidence by the Company
that such were not the facts, and under these particular circumstances it would
be highly unlikely that Tischler could possibly be guilty of misfeasance as so
specified by the Respondent.
In conclusion here it is also noted that in the past the Company had experienced
considerable damage to their equipment operated by other drivers, and yet Schneider
admitted that not one of the drivers so involved were discharged.27 The Respondent,
as aforestated, also maintained that it had a company policy wherein employees
were given the doubt, but if negligence was involved then discharges resulted.
However, from the testimony on the various incidents involving other drivers, and
granting the unusual circumstances involved, nevertheless, it is extremely difficult
for me to ascertain the distinctions or standards used by the Company in these
accidents in comparison with the instant case, other than the insurance coverage.
Certainly this factor, for the purposes stated herein, has no bearing whatsoever in
any actual determination by the Company of whether or not the drivers were
negligent in their operations. Furthermore, the Respondent has offered no credible
testimony or explanation as to why it has condoned far more serious incidents by
other employees, wherein their actual driving directly resulted in the accidents,
and running into thousands of dollars as in the case of Webber and Young, and
yet discharging Tischler for damages of a few hundred dollars, and wherein his
alleged misconduct would, at the very best, be only indirectly related to the damages.
From my observation and demeanor of the witnesses, and upon the other numerous
reasons given here, coupled with the antiunion statements and other unlawful acts
credibly attributed to the Company, it is accordingly found that Donald Tischler
was discharged by the Respondent on May .13, 1961, in violation of Section 8(a)(3)
and (1) of the Act.
F. Nature of the strike and reinstatement
The record established that a strike vote was held by the employees on the evening
of May 15. In this respect Business Agent Mclllvenna credibly testified that the
situation and question voted on was the following: "employees were being laid off and
discharged, and they [the employees] didn't feel that they would be recognized
unless they went out on strike, and also the Company had refused to sit down and
negotiate a contract with us." Business Agent Bondhus credibly stated that 11
employees in the proposed unit voted to go on strike, and further stated, "The
question was whether to go on strike because a few had been discharged and laid off,
and that they were being laid off one by one and they voted to strike while they
still had strength in number, while some of them were working there." Several other
witnesses for the General Counsel credibly testified that the employees went on strike
in efforts to maintain the unit, to protest the discharges, and the refusal of the
Company to bargain with the Unions. The Respondent contends, however, that
the employees are economic strikers, and not entitled to reinstatement. Along this
line Respondent elicited testimony from the Unions' representatives and some of
the employees that their desire for recognition, a union contract, better wages and
working conditions, and job security was some part of the reason for the strike.
Testimony that the employees engaged in a strike in part for economic reasons does
not militate against a finding that the strike was caused and prolonged by Re-
spondent's unfair labor practices. There must, of course be a causal connection
27 In further explanation of these other incidents I have fully considered the testimony
of Schneider on the same.
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
between the unfair labor practices and the strike, but the strike need not be bottomed
in its entirety on unfair labor practices. Winter Garden Citrus Products Cooperative
v. N.L.R.B., 238 F. 2d 128 (C.A. 5), enfg. as mod. 114 NLRB 1048. Here the num-
ber and variety of Respondent's unfair labor practices, the timing of the violations
in connection with the strike, and the unrebutted testimony of the employees as to
the reason for the strike provides the causal connection.
The Board and the courts have long upheld the view that an unfair labor practice
finding can be made, in spite of evidence that some of the employees struck for
economic reasons. Where a union agent testified that one of the reasons for the
strike was a discriminatory discharge, the court upheld the Board's finding of an
unfair labor practice strike, even though some of the employees testified they struck
for economic reasons N.L.R.B. v. West Coast Casket Company, 205 F. 2d 902
(C.A. 9), enfg. 97 NLRB 820. The court held:
The strike which in fact did take place, was accordingly an unfair labor practice
strike, even though other reasons were also present, since one of the reasons for
it was to protest an unfair labor practice.
In accordance with the above I find and conclude that the strike was an unfair labor
practice strike from the outset, and that the employees involved were unfair labor
practice strikers, and thereby entitled to reinstatement.
On August 29, 13 of the employees in the unit who had gone on strike, including
all the discriminatees involved herein, made an unconditional application through
the Unions to return to work. The application contained the word "unconditionally."
It has been well-settled law that an application made for all the employees through
the medium of a labor organization, which represents them, is a proper application for
reinstatement. The Respondent contends, nevertheless, that the application of Au-
gust 29 was not unconditional. This contention is based on the testimony of some em-
ployees on cross-examination that they would not have returned to work unless the
Respondent agreed to bargain and sign a contract with the Unions. There is
credible testimony in the record, however, that no one from the Respondent ever
had any conversations with the employees or the Unions concerning reinstatement,
and had no reason to believe that recognition, bargaining, or a contract were condi-
tions precedent to their returning to work.
It is fundamental that the offer of reinstatement must be unconditional, but the
failure to denote in the offer that the strikers have abandoned their demands does
not render the offer conditional. Where an offer to return to work is unconditionally
made, the mental reservations of the employer that the offer is made in bad faith
or is made only for the purpose of harassing the employer is no defense to a refusal
to reinstate. National Shirt Shops of Florida, Inc, et al., 105 NLRB 116, 125. Nor
do the mental reservations of the employees themselves concerning the exact condi-
tions under which they will return to work affect the duty of the employer to offer
reinstatement, so long as the offer is made unconditionally The fact that some
of the individuals offering to return to work testified at the hearing that they
would not have accepted employment, except under certain conditions, has been
held not to render conditional an application for employment where the application
was, on its ;face, unconditional, and the employer did not know of the applicant's
reservations Pacific American Shipowners Association, et al., 98 NLRB 582, 592.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connection
with the operations of Respondent described in section 1, 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 commerce and
the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent engaged in unfair labor practices in
violation of Section 8(a)(1), (3), and (5) of the Act, it will be recommended that
the Respondent cease and desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act It will be recommended that the Respondent
offer employees Reuben Sonne, Carl Larson, Floyd Hanten, Marlin Stiefel, and
Donald Tischler immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to seniority and other rights and privileges,
and make them whole for any loss of earnings they may have suffered by reason of
the discrimination against them, by payment to them of a sum of money equal
to that which they would have earned as wages from the date of the discrimination
against them to the date of offer of reinstatement, less interim earnings, and in a man-
ner consistent with Board policy set out in F. W. Woolworth Company, 90 NLRB'
MERCHANTS POLICE, INC. 525
289, and Crossett Lumber Company, 8 NLRB 440. On the same basis it will be
recommended that Larson and Sonne also be made whole by the Respondent for
any loss of pay suffered by them during their layoff periods as herein set forth. It
will be further recommended that in addition to the employees named above, all
other unfair labor practice strikers who made unconditional application on August 29
be reinstated to substantially equivalent positions and any loss of earnings to them
to be paid in accordance herewith.
Having found that the Respondent has unlawfully refused to recognize or to
bargain with the Union as the representative of its employees in an appropriate unit,
it will be recommended that the Respondent be required upon request to extend
recognition to and to bargain with the Union. It will also be recommended that the
Respondent preserve and, upon request, make available to the Board, payroll and
other records to facilitate the computation of the backpay due.
It will be further recommended, in view of the nature of the unfair labor practices
the Respondent has engaged in, that it cease and desist from infringing in any manner
upon the rights guaranteed employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Unions are labor organizations within the meaning of the Act and admit
to membership employees of Respondent.
3. By discriminating in regard to the hire or tenure of employment of Reuben
Sonne, Carl Larson, Floyd Hanten, Marlin Stiefel, and Donald Tischler, thereby dis-
couraging membership in the above Unions, Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act.
4. By engaging in the conduct set forth in section D, supra, the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(1)oftheAct.
5. All ready-mix drivers, yardmen, block machine men, mixer operators, semi-
drivers, cubers and strippers, front-end loader men, tank truck drivers, and me-
chanics, but excluding bookkeepers, guards, and supervisors, constitute, and have
at all times material to this proceeding constituted, a unit appropriate for the pur-
poses of collective bargaining within the meaning of the Act.
6. International Union of Operating Engineers, Local 49, AFL-CIO; and General
Drivers Union Local 749, affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, on and since April 19, 1961,
and at all times since, has been exclusive representative of all the employees in
the aforesaid appropriate bargaining unit for the purposes of collective bargaining
within the meannig of Section 9(a) of the Act.
7. By refusing to bargain collectively in good faith with the Unions as the exclusive
representative of the employees in the aforesaid appropriate unit, the Respondent
has engaged in and is engaging in unfair labor practices within the meaning of Sec-
tion 8 (a) (5) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Merchants Police, Inc. and Gerald F. Pashek
Merchants Police , Inc. and Local 555, United Plant Guard Work-
ers of America . Cases Nos. 13-CA-4547 and 13-CA-4547-2.
June 7, 1962
DECISION AND ORDER
On April 6, 1962, Trial Examiner Horace A. Ruckel issued his
Intermediate Report in the above-entitled proceeding , finding that the
137 NLRB No. 64.