Norris Concrete Materials, Inc.

National Labor Relations Board - Board Decisions

Nov 28, 1986

282 N.L.R.B. 289 (N.L.R.B. 1986)

NORRIS CONCRETE MATERIALS 289
Norris Concrete Materials , Inc. and Clarence Alvin
Dodson . Cases 11-CA-9735 and 11-CA-10403
28 November 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
On 17 March 1983 Administrative Law Judge
William N. Cates issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed cross-exceptions and
a supporting brief including an answer to the Re-
spondent's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions, cross-exceptions,
and briefs and has decided to affirm the judge's rul-
ings, findings,' and conclusions as modified and to
adopt the recommended Order as modified.
The judge found that the Respondent, a corpora-
tion which sells ready-mix concrete, violated Sec-
tion 8(a)(1) of the Act about 8 March 1982 when
its president Norris threatened employees with dis-
charge if they testified at an unfair labor practice
hearing before the Board.2 The judge further
found that the Respondent violated Section 8(a)(4)
and (1) of the Act by issuing written warnings to,
and by constructively discharging, employee Clar-
ence Alvin Dodson in late March 1982. We find no
merit in the Respondent's exceptions to these find-
ings.
In addition to the above allegations, the consoli-
dated complaint asserted that the Respondent vio-
lated Section 8(a)(1) of the Act about 1 September
1980 by informing its employees that it had issued
an unsatisfactory job recommendation for a former
employee because of the employee's protected con-
certed activities, and that the Respondent violated
Section 8(a)(4) and (1) of the Act about 19 Decem-
ber 1980 by discharging Dodson. These allegations
were encompassed by a charge (Case 11-CA-9735)
separate from, and filed earlier than, the one (Case
i The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 The judge attributed the threat to the Respondent 's supervisor Ken-
drick The record and the judge 's discussion of the facts reflect that the
Respondent 's president Norris made the unlawful statement We there-
fore correct the judge 's inadvertent reference to "Kendrick" (JD slip op
at 20) by substituting the name "Norris ," and find it unnecessary to rely
on the judge's discussion of Rule 801(d)(2)(D) of the Federal Rules of
Evidence
11-CA-10403) which resulted in the unfair labor
practice findings mentioned above. This earlier
charge, as explained below, was withdrawn with
Regional Director approval and later reinstated.
The judge declined to make unfair labor practice
findings with respect to these allegations based on
his interpretation of Winer Motors, 265 NLRB 1457
(1982). Contrary to the judge, we conclude that the
Regional Director properly reinstated the with-
drawn charge (and an issued but withdrawn com-
plaint) beyond the normal 6-month period pre-
scribed in Section 10(b) of the Act,3 and that the
Respondent additionally violated Section 8(a)(4)
and (1) as alleged.
On 26 February 1981 Dodson filed timely unfair
labor practice charges in Case 11-CA-9735 alleg-
ing that the Respondent violated Section 8(a)(4)
and (1) of the Act by laying him off about 19 De-
cember 1980 because his son, Randall Dodson, had
filed charges with the Board and had provided sup-
porting testimony. The Acting Regional Director
found merit in these charges and issued a complaint
on 10 April 1981. On 15 March 1982 Dodson and
the Respondent entered into a non-Board settle-
ment agreement4 pursuant to which the Respond-
ent agreed to reinstate Dodson and pay him
$1500.5 Dodson, in turn, agreed to withdraw his
pending charge. On 26 April 1982 the Regional Di-
rector issued an order which both approved Dod-
son's withdrawal request and withdrew the above
complaint. One week later, on 3 May 1982,
Dodson filed timely charges in Case 11-CA-10403
alleging that he was constructively discharged
shortly after his reinstatement because he had filed
charges with the Board. By letter dated 25 June
1982 the Regional Director notified the parties that
the evidence adduced in the investigation of Case
11-CA-10403 indicated that the terms of the non-
Board settlement in Case 11-CA-9735 had been
violated. The Regional Director informed the par-
ties that he was revoking his order of 26 April
1982 and reinstituting the complaint and notice of
hearing in Case 11-CA-9735. Subsequently, on 28
June 11982, the Regional Director issued an order
consolidating cases, consolidated complaint, and
notice of hearing. In its answer to the consolidated
complaint, the Respondent raised as a defense its
prior agreement with Dodson which, the Respond-
9 Sec 10(b) provides in relevant part that " no complaint shall
issue based upon any unfair labor practice occurring more than six
months prior to the filing of the charge with the Board .
4 Non-Board settlements such as this also are referred to as "private
settlements" and "non-Board adjustments " See, e g, National Labor Re-
lations Board Casehandling Manual (Part One), Unfair Labor Practice
Proceedings, Sec 10142
s The judge erroneously stated in his decision that the amount paid to
Dodson was $15,000
282 NLRB No. 45
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent claimed, "fully compromised and settled" the
"previous matters."
The judge concluded that the Board's decision in
Winer, which held that a withdrawn charge may
not be reinstated beyond the normal 6-month
period prescribed in Section 10(b) of the Act, pre-
cluded him from making unfair labor practice find-
ings with respect to the allegations in Case 11-CA-
9735. The judge did, however, make factual find-
ings regarding the matters encompassed by Case
11-CA-9735 as background for the evaluation of
conduct alleged to be unlawful in ' Case 11-CA-
10403. We find that the judge properly analyzed
and drew sound conclusions from the evidence.
We therefore adopt his factual findings and conclu-
sions in Case 11-CA-10403, as set forth in perti-
nent part below.
The judge found that two previous unfair labor
practice charges filed by Dodson' s son, Randall,
and settled in early 1980, caused the Respondent
"consternation," "worry," "inconvenience," and
"expense." Following the filing of Randall Dod-
son's second charge in 1980, Norris informed Plant
Manager Kendrick that "the whole Dodson family
had caused trouble, and . . . we were going to
have to get rid of them." About 1 September 1980
Kendrick, an admitted supervisor, informed former
employee Richard Mosely that "the Norrises"
were going to prevent Randall Dodson from get-
ting a job at the Olin Company.6 The judge con-
cluded that the Respondent carried through with
its threat to get rid of the entire Dodson family by
laying off Clarence Alvin Dodson on 19 December
1980.
Clarence Dodson had been employed by the Re-
spondent since 1974 as a truckdriver with various
maintenance and office responsibilities.7 Regarding
Dodson's 1980 layoff, Norris testified that numer-
ous reasons prompted the Respondent's actions, in-
cluding bad weather, deteriorating business condi-
tions, and degenerating work performance. Howev-
er, the Respondent's 20 March 1981 statement of
position to Region 11 claimed Dodson was laid off
because he lacked mechanical and carpentry skills
which the Respondent needed during the winter
months. The judge found that the unsupported rea-
sons and the shifting bases proffered to justify the
Respondent's actions in laying off Dodson support-
ed the conclusion that the Respondent's real moti-
6 Although the judge declined to make an unfair labor practice finding
regarding this statement due to his interpretation of Winer, he cited
Glover Bottled Gas Corp., 255 NLRB 137, 143 (1981), enfd 697 F 2d 294
(2d Cir. 1982), for the proposition that it is a violation of Sec. 8(a)(1) of
the Act for an employer to threaten to give, or to give, an employee an
unfavorable job reference in retaliation for filing charges with the Board
7 These responsibilities included routine truck maintenance , answering
the office telephone, and cleaning up around the plant.
vation was to punish Dodson because his son had
filed charges with the Board. The judge concluded
that if Winer did not preclude him from doing so,
he would find that the Respondent violated Section
8(a)(4) of the Act by laying off Dodson in Decem-
ber 1980.$
Dodson returned to work on 15 March 1982 pur-
suant to the postcomplaint non-Board settlement
agreement mentioned above. The settlement docu-
ment stated that Dodson would be employed in the
position of "truckdriver only," and would be the
last employee in his classification to be laid off for
a 1-year period. The judge'determiried that the Re-
spondent did not enter into its agreement with
Dodson in good faith. He found, for example, that
shortly before the agreement was executed and
Dodson was reinstated, the Respondent created
systems for the classification and discipline of its
employees. Under the new classification system,
Dodson, the sole "truckdriver only" employee, no
longer would perform any of his previous mainte-
nance and office duties.9 Further, Dodson would
be paid only for time actually spent hauling con-
crete-at other times, Dodson was to "punch out."
This arrangement reduced Dodson's hours to only
25 to 30 per week.1 ° The judge found, and we
agree, that the Respondent created the new classifi-
cation system in response to the requirement that it
reinstate Dodson in settlement of the unfair labor
practice charges and for the purposes of "starving"
Dodson out of his new employment. We also agree
with the judge's further finding that the Respond-
ent intended to scrutinize Dodson's activities and
attendance very closely in order to discipline him
for the slightest infraction of its new employee
rules.11
Dodson was sent home shortly after his arrival
at the plant on the first few mornings following,his
reinstatement . Although he was told by Norris to
"hit the clock and go home" because "there ain't
no concrete to haul," other drivers were permitted
to remain at work. Norris' action in sending
Dodson home violated one of the most important
purposes of the parties' 15 March agreement; i.e.,
to protect Dodson from layoff. Further, Dodson
was assigned the Respondent's "sorriest truck," one
with possible defective steering and brake mecha-
8 The judge cited Houston Coca Cola Bottling Co., 256 NLRB 520, 533
(1981), which addresses , in part, the application of Sec 8 (a)(4) of the Act
to relatives of employees who file charges with the Board
9 Prior to Dodson's reinstatement in March 1982 , at no time had there
been an employee classification known as "truckdriver only "
to The judge noted that Norris had expressed a desire to reduce Dod-
son's hours even more, but was counseled by the Respondent 's attorney
against such a further reduction in work hours'because the decrease
under consideration would have rendered Dodson eligible for unemploy-
ment benefits.
11 These findings are based on Kendrick 's credited testimony.
NORRIS CONCRETE MATERIALS
nisms, and was reprimanded within days for harass-
ing a customer , an incident which in fact did not
occur. The judge found, and we agree, that the Re-
spondent, by creating the new classification system,
designating Dodson a "truckdriver only," laying
off Dodson immediately following his return to
work, reprimanding Dodson for an incident that
never occurred, and assigning Dodson a dangerous
vehicle, intended to frustrate the settlement agree-
ment in Case 11-CA-9735 and create conditions
that would, and did, cause Dodson to quit his em-
ployment. We therefore adopt the judge's conclu-
sion that the Respondent's actions against Dodson
culminated in his constructive discharge approxi-
mately 2 weeks after his reinstatement. 12
With these facts in mind , we turn now to the
issues surrounding the judge 's failure to rule on the
alleged unfair labor practices that occurred prior to
the parties' March 1982 non-Board settlement.
When it became apparent that the non-Board set-
tlement agreement had been violated, the Regional
Director reinstated the charge in Case 11-CA-
9735. As previously noted, the judge, relying on
his interpretation of the Board's decision in
Winer,13 concluded that the reinstatement of the
charge was improper and that Winer did not pro-
vide an exception for situations in which charges
are withdrawn pursuant to the terms of non-Board
settlement agreements.
Contrary to the judge, we find that the rule an-
nounced in Winer did not address cases involving
possible noncompliance with settlement agree-
ments.14 There is no question in the instant case
that the Respondent not only failed to comply with
the terms of its settlement agreement, but in addi-
tion perpetrated a fraud against both the Charging
Party and the Board by entering into a settlement
agreement with which it had no intent to
comply.15 In fact, the evidence reveals the Re-
12 As stated at the outset of this Decision and Order , we also adopt
the judge's conclusion that the warnings issued to Dodson about 26 and
29 March 1982 constituted violations of Sec 8 (a)(4) of the Act The 26
March warning dealt with the alleged customer harassment incident,
whereas the 29 March warning was issued in response to Dodson's fail-
ure to report to work This failure to report , as found by the ,fudge, oc-
curred after Dodson quit , a matter inextricably related to the constructive
discharge discussed in the accompanying text
19 Winer distinguished between withdrawn and dismissed charges
However, in Ducane Heating Corp , 273 NLRB 1389 (1985), the Board
erased that distinction and held that a dismissed charge also may not be
reinstated beyond the 6-month limitation period absent fraudulent con-
cealment of the operative facts underlying an alleged violation Ducane
overruled Winer to the extent that decision was inconsistent
14 See Candler Coffee Corp, 279 NLRB 198 fn 2 ( 1986) As stated in
Candler, Ducane Heating, supra , also is not germane to cases addressing
noncompliance with settlement agreements
15 It is apparent that a charging party in a case such as this agrees to
withdraw timely filed charges because it assumes that it can rely on a
respondent 's good -faith intent to comply with the terms on which those
charges are settled It is uncontested that Dodson so relied in withdraw-
ing the charge in Case 11 -CA-9735
291
spondent entered into the settlement with a specific
intent to circumvent its terms . To accomplish this,
the Respondent established new employee classifi-
cation and discipline systems designed to "starve
out" Dodson and force him to resign . Further, the
groundless warnings issued to Dodson, the tempo-
rary layoffs, and the constructive discharge indi-
cate that the purpose of the settlement to remedy
past alleged unfair labor practices was not
achieved . In short , the Respondent 's postsettlement
unfair labor practices not only substantially imped-
ed the implementation of the settlement , they effec-
tively nullified the settlement by negating its terms
and purpose . Such conduct also demonstrates a
contempt for the Board and its processes which
can neither be condoned nor allowed . We hold,
therefore, that because the Respondent has used a
non-Board settlement in a postcomplaint situation
as a subterfuge to avoid its liability under the Act,
the reinstitution of formal proceedings through the
reinstatement of a withdrawn charge is appropriate
despite the expiration of the Section 10(b) period.
To hold otherwise would be to permit the Re-
spondent to capitalize on its misconduct to the det-
riment of Dodson , who relied in good faith on the
Respondent 's agreement to comply with the terms
of the settlement agreement , and to allow the Re-
spondent to profit from its contemptuous disregard
of the Act and the Board . Accordingly, we find
that the General Counsel , through the Regional
Director for Region 11, did not act contrary to the
authority set forth in Section 3(d)16 or engage in
an abuse of discretion by reinstating the charge and
complaint in Case 11 -CA-9735.
In concluding as we do , we note the integral
role that settlements play in resolving unfair labor
practice complaint allegations . It is indisputable
that settlements, as a voluntary means of adjusting
labor disputes , perform an indispensable role in im-
plementing national labor policy. Non-Board settle-
ments, such as the one involved here , are often the
only means available to avoid time-consuming and
expensive litigation of unfair labor practice cases.
Their viability must not be endangered by allowing
respondents who fraudulently enter into such
agreements to benefit from their misconduct.
Addressing the merits of the allegations in Case
11-CA-9735, we agree with the judge that the rea-
sons advanced by the Respondent for the layoff of
Dodson in December 1980 had no basis in fact and
were merely a pretext to disguise the real reason
ie Sec 3(d) of the Act provides, in pertinent part, that the General
Counsel of the Board "shall have final authority, on behalf of the Board,
in respect of the investigation of charges and issuance of complaint
and in respect of the prosecution of such complaints before the Board
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for his layoff, i.e., to punish him because his son
filed charges with the Board. Consequently, we
conclude that the Respondent violated Section
8(a)(4) and (1) of the Act by discharging Dodson
in December 1980. We further find that about 1
September 1980 the Respondent, through Plant
Manager Kendrick, violated Section 8(a)(1) of the
Act by threatening to give, or by giving, an em-
ployee an unfavorable job reference in retaliation
for filing charges with the Board.17
AMENDED REMEDY
Having found that the Respondent engaged in
certain unfair labor practices prior to the 15 March
1982 non-Board settlement in Case 11-CA-9735,
we will revise the judge's recommended remedy
accordingly. Thus, having concluded that the Re-
spondent unlawfully discharged Clarence Alvin
Dodson on 19 December 1980, and failed and re-
fused to reinstate him until 15 March 1982, we will
order the Respondent to make Dodson whole for
any loss of pay or other benefits he may have suf-
fered by reason of the discrimination against him,
with interest.' Backpay and interest shall be com-
puted as set forth in the section of the judge's deci-
sion entitled "The Remedy." An appropriate
amount will be deducted from the backpay figure
as a result of amounts received by Dodson pursu-
ant to the terms of the non-Board settlement. We
will further order that the Respondent remove
from its files any reference to the unlawful dis-
charge of Clarence Alvin Dodson in December
1980 and notify him in writing that this has been
done and that the discharge will not be used
against him in any way. We adopt the judge's
remedy in all other respects, except that we will
order the Respondent to post the revised notice set
out in the "Appendix" to this Decision and Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Norris Concrete Materials, Inc., Pisgah
Forest, North Carolina, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the Order as modified.
1. Insert the following as paragraph 1(c) and re-
letter the'subsequent paragraph.
"(c) Threatening to give, or giving, an employee
an unfavorable job reference because the employee
filed unfair labor practice charges with the Board,
or because of other protected concerted activities."
17 See fn. 6 above and the accompanying text for a discussion of the
unlawful statement.
2. Delete paragraph 2(b) and substitute the fol-
lowing.
"(b) Remove from its files any reference to the
unlawful reprimands and discharges of Clarence
Alvin Dodson and notify him in writing that this
has been done and that the reprimands and dis-
charges will not be used against him in any way."
3. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT threaten our employees with dis-
charge if they testify before the National Labor
Relations Board.
WE WILL NOT threaten to give, or give, an un-
satisfactory job reference to any employee because
the employee filed unfair labor practice charges
with the National Labor Relations Board, or be-
cause of other protected concerted activities.
WE WILL NOT discharge or otherwise discrimi-
nate against any of you because of the filing of
charges with the National Labor Relations Board.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Clarence Alvin Dodson immedi-
ate and full reinstatement to his former job or, if
his job no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed
and WE WILL make Clarence Alvin Dodson whole
for his loss of earnings and other benefits resulting
from his discharge, retroactive to 19 December
1980, less any net interim earnings, plus interest.
WE WILL remove from our files any references
to the unlawful reprimands and discharges given to
NORRIS CONCRETE MATERIALS 293
employee Clarence Alvin Dodson, and WE WILL
notify him in writing that this has been done and
that the reprimands and discharges will not be used
against him in any way.
NORRIS CONCRETE MATERIALS, INC.
Janet M. Holland, Esq., for the General Counsel.
Russell L. McLean III, Esq., of Waynesville, North Caro-
lina, for the Respondent.
Clarence A. Dodson, of Brevard, North Carolina, in pro-
pria persona.
DECISION
the Board , in a letter dated June 25, 1982 , revoked the
settlement agreement in Case 11 -CA-9735 because of the
alleged violations of the agreement that were disclosed in
the investigation of Case 11 -CA-10403.
The issues in this matter were joined by Respondent's
answer of July 7, 1982, in which it denied violating the
Act in any manner , and it also raised certain affirmative
defenses
Each party was afforded full opportunity to be heard,
to call , examine , and cross -examine witness , to file briefs,
and to submit proposed findings of facts and conclusions
of law . On the entire record made in this proceeding, in-
cluding my observation of each witness , and after due
consideration of briefs filed by Respondent and counsel
for the General Counsel , I make the following
STATEMENT OF THE CASE
WILLIAM N . CATES , Administrative Law Judge. These
consolidated cases were heard before me on August 30
and 31 , 1982, at Brevard , North Carolina , pursuant to an
order consolidating cases, consolidated complaint, and
notice of hearing issued by the Regional Director for
Region 11 of the National Labor Relations Board on
June 28 , 1982 The consolidated complaint alleged that
Norris Concrete Materials , Inc. (Respondent ) violated
Section 8 (a)(1) and (4) of the National Labor Relations
Act (the Act), about December 19, 1980, discharging and
thereafter failing and refusing to reinstate its employee
Clarence Alvin Dodson until about March 15, 1982, and
thereafter about March 26, 1982 , again discharging him
and again failing and refusing to reinstate him. The com-
plaint alleges Dodson 's discharge on December 19, 1980,
was because Randall Dodson , the son of Alvin Dodson,
had filed charges in an unfair labor practice case before
the Board in Case I1-CA-8939 The complaint further
alleged that Respondent discharged Alvin Dodson on
March 26 , 1982, because he had filed an unfair labor
practice charge with the Board in Case 11-CA-9735.
The complaint further alleged Respondent issued on
March 17 and 26, 1982 , written warnings to its employee
Alvin Dodson because he had filed charges with the
Board . The complaint also alleged that Respondent vio-
lated Section 8(a)(1) of the Act about September 1, 1980,
when Plant Manager Tony Kendrick informed employ-
ees that Respondent had issued an unsatisfactory job rec-
ommendation for a former employee because of the
former employee 's concerted protected activities. Also
alleged as an 8(a)(1) violation was an alleged statement
by President William Norris when he threatened employ-
ees with discharge if the employees testified at an unfair
labor practice hearing before the Board . The allegation
was alleged to have taken place on March 8 , 1982. It
was also alleged in the complaint that on April 26, 1982,
Respondent and the Charging Party entered into an in-
formal adjustment of Case 11-CA-9735, which adjust-
ment provided, inter alia , for the reinstatement of
Dodson and for the withdrawal of the charge in that
case. On April 26, 1982 , the Regional Director for
Region 11 issued an order withdrawing the complaint
and notice of hearing and approving the withdrawal re-
quest in Case 11-CA-9735 . It is further alleged in the
complaint that the Regional Director for Region 11 of
FINDINGS OF FACT
1. JURISDICTION
Respondent is a North Carolina corporation with
plants located at Pisgah Forest and Waynesville, North
Carolina., where it is engaged in the business of selling
ready-mix concrete. Respondent's Pisgah Forest, North
Carolina facility is the only facility involved in these
proceedings During the 12-month period immediately
preceding the issuance of the consolidated complaint,
and at all times material , Respondent, in the course and
conduct of its business, received goods and raw materials
directly from outside the State of North Carolina valued
in excess of $50,000. During the same representative
period, Respondent, in the course and conduct of its
business, derived gross revenues in excess of $500,000.
The complaint alleges, Respondent admits, and I find
that it is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
11. THE ALLEGED UNFAIR LABOR PRACTICES
A. Undisputed Facts and Background
It is undisputed that Alvin Dodson's son, Randall
Dodson, was employed by Respondent for a period of
time. During the course of Randall Dodson's employ-
ment, he was twice discharged by Respondent. After his
first discharge, Randall Dodson filed charges with the
Board in Case 11-CA-8725. An informal settlement
agreement was arrived at between the parties in that case
in February 1980. As a result of the settlement agree-
ment Randall Dodson was reinstated to his former posi-
tion of employment with full backpay, seniority, and
other benefits. Respondent, as part of the settlement
agreement, agreed not to terminate employees for refus-
ing to drive unsafe vehicles (G.C. Exh. 3).
Following his second termination, Randall Dodson
again filed charges with the Board, this time in Case 11-
CA-8939, again , an informal settlement agreement was
arrived at between the parties in April 1980. As a result
of the informal settlement agreement Randall Dodson
was made whole with respect to backpay and benefits
and was offered, but declined, reinstatement . Respond-
ent, as part of the settlement agreement, agreed it would
not lay off or, in any other manner, discriminate against
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees because they filed unfair labor practice
charges with the Board (G.C. Exh. 6).
During the period of time that Randall Dodson was
employed by Respondent, his father, Alvin Dodson, was
also employed by Respondent. It is admitted that Alvin
Dodson filed the charge in Case 11-CA-9735 on Febru-
ary 26, 1981, involving his temination by Respondent on
December 19, 1980. Alvin Dodson's discharge of De-
cember 19, 1980, was the subject of a complaint issued
by Region 11 of the Board on April 10, 1981. In the
complaint in Case 11-CA-9735, it was alleged that Alvin
Dodson was discharged because his son, Randall
Dodson, had filed charges with the Board (G.C. Exh.
1(c)). A hearing-in the matter was set for March 11, 1982
(G.C. Exh. 1(j)). On April 26, 1982, the Regional Direc-
tor for Region 11 issued an order withdrawing complaint
and notice of hearing and approving withdrawal request.
The Regional Director in his order stated, "[T]he parties
having adjusted the matter [Case 11-CA-9735] and the
Charging Party [Alvin Dodson] having requested with-
drawal of the charge, and the undersigned [Regional Di-
rector Clark] having duly considered the matter," ap-
proved the withdrawal request and ordered that the
complaint and notice of hearing be withdrawn.'
It is likewise undisputed that thereafter on May 3,
1982, Alvin Dodson filed the charge in Case 11-CA-
10403 alleging that he had been constructively dis-
charged in March 1982 by Respondent in violation of
Section 8(a)(1) and (4) of the Act. It was alleged he had
been discriminated against because he had filed the
charge in Case 11-CA-9735. It is acknowledged that the
Regional Director for Region 11, by letter dated June
25, 1982, revoked his approval of the non-Board adjust-
ment in Case 11-CA-9735 and, in conjunction therewith,
revoked his April 26, 1982 order withdrawing complaint
and notice of hearing, and further revoked his approval
of the withdrawal request of Alvin Dodson in Case 11-
CA-9735. The Regional Director stated in his letter,
"Additionally, I am reinstating the complaint and notice
of hearing in Case 11-CA-9735 which initially issued on
April 10, 1981, and shall issue an Order Consolidating
Cases, Consolidated Complaint and amended, notice of
hearing in Case 11-CA-10403."
It is against this brief factual background that I will
consider what import, if any, the Board's decision in
Winer Motors, 265 NLRB 1457 (1982), has on the instant
case.2 The Board held in Winer that a withdrawn charge
may not thereafter be reinstated beyond the normal 6-
month period prescribed in Section 10(b) of the Acts
1 There is no explanation in the record regarding how the hearing was
scheduled for March 11, 1982, and not resolved until April 26, 1982, with
no hearing held or order issued postponing or rescheduling the hearing.
2 It is recognized that a 10(b) defense is an affirmative one and must be
raised by the pleadings . I am persuaded that in the instant case, Respond-
ent, although not stating in its answer that it was raising Sec. 10(b) as a
defense, did raise the related matter of the non-Board settlement involv-
ing Alvin Dodson to require my giving consideration to the Board's
holding in Winer as it relates to the instant case.
S Sec. 10(b) of the Act provides in part:
no complaint shall issue based upon any unfair labor practice occur-
ring more than six months prior to the filing of the charge with the
Board.
The Board also stated in Winer that the limitations of
Section 10(b) of the Act may not be ignored on equitable
grounds.4 The Board did not allow for any exceptions in
its holdings in Winer to cover situations such as in the
instant case when the charge was withdrawn by the
Charging Party as part of the terms of a non-Board set-
tlement of unfair labor practice allegations.
Although the instant case might be one that would
seem appropriate for equitable considerations' that would
allow the General Counsel to reinstate the withdrawn
charge, the Board, however, clearly stated such equitable
considerations would be without legal justification.
I am persuaded that the General Counsel may not re-
instate the charge in Case 11-CA-9735 as it indicated it
had done in its June 25, 1982 letter and as it pled it had
done at paragraph 13 of its order consolidating cases,
consolidated complaint, and notice of hearing dated June
28, 1982, because a period of time had lapsed greater
than' 6 months between the alleged unfair labor practice
and the attempted reinstatement of the charge in Case
11-CA-9735. I will therefore make no unfair labor prac-
tice findings with respect to those allegations that the
General Counsel attempted to raise as a result of the re-
instatement of the withdrawn charge in Case 11-CA-
9735. I am precluded from making unfair labor practice
findings with respect to the following allegations: that
Plant Manager Tony Kendrick about September 1, 1980,
informed Respondent's employees that it had issued an
unsatisfactory job recommendation for a former employ-
ee of Respondent's because of the employee's protected
concerted activities, and that Respondent discharged and
thereafter failed and refused to reinstate Alvin Dodson
about December 19, 1980, until about March 15, 1982,
because its employee Randall Dodson, the son of Alvin
Dodson, had filed charges in an unfair labor practice
case before the Board in Case 11-CA-8939.
Although I am precluded from making any unfair
labor practice findings with respect to the matters cov-
ered by the attempted reinstatement of the withdrawn
charge in Case I1-CA-9735, I will nevertheless make
factual findings with respect to those matters in order
that those events may shed light on the remaining mat-
ters that are currently before me. The Board held such
consideration to be proper in Tri-City Electric Co., 264
NLRB 1407, 1408 (1982):
We note at the outset that conduct which has oc-
curred outside the 10(b) period cannot form the
basis for unfair` labor practice findings. [Footnote
omitted.] However, pre-Section 10(b) evidence may
be relied on for the purpose of throwing light on
and evaluating conduct which occurred within the
10(b) period. Motor Convoy, Inc., 252 NLRB 1253
(1980); Pandair Freight, 253 NLRB 973 (1980).
B. Sequence of Events Relating to Alvin Dodson
Randall Dodson (son of Alvin Dodson) testified he
met with Respondent 's president , Norris, regarding an
4 The Board stated it would exceed its authority to allow the General
Counsel to ignore such a limitation period on equitable grounds.
NORRIS CONCRETE MATERIALS 295
informal settlement of the Board's charges in Case 11-
CA-8939. The General Counsel's Exhibit 6 indicates the
settlement of that case took place in April 1980. Randall
Dodson stated Norris told him there was his check and
he could return to work the following Monday Randall
Dodson told Norris he had found other employment and
did not desire to return to his job with Respondent.
Norris then told Randall Dodson, "[H]e said that he
would get even with me, and that he would make sure
that I never had a decent job in Transylvania County
again ." Randall Dodson testified he worked for other
employers in the area including Moores Funeral Home.
Randall Dodson applied for work at the Olin Company
but was not hired by them.
Norris testified Respondent had been in business in the
area since 1949 and had never during that time had any
unfair labor practice charges filed against it until the one
Randall Dodson filed Norris indicated the charges filed
by Randall Dotson caused Respondent a great deal of
worry and inconvenience. Norris never denied telling
Randall Dodson that he would make sure he never had a
decent job in Transylvania County again. I credit Ran-
dall Dodson's uncontradicted testimony in that respect.
Plant Manager Kendrick testified he terminated Ran-
dall Dodson for refusing to drive a truck, and after that,
Dodson took him to the Labor Board, and as a result
thereof, he was reinstated to his job. Kendrick testified
he had a conversation in Respondent's old office at the
Pisgah Forest plant with President Norris after Randall
Dodson's second discharge in 1980. Kendrick testified
Norris told him, "Randall [Dodson] had caused us a lot
of trouble and the whole Dodson family had caused
trouble, and that we were going to have to get rid of
them."
Kendrick testified he had a conversation with former
employee Richard "Ricky" Moseley in the fall of 1980 at
Respondent's plant. Kendrick asked Moseley if Randall
Dodson was still working for the funeral home, and Mo-
seley told him Dodson was. Kendrick asked Moseley if
he knew that Randall Dodson was going to get on at the
Olin Company. Moseley told Kendrick he had not heard
that, but he would speak to his father-in-law to see if he
could help Dodson. Kendrick told Moseley, "[T]hat
probably wouldn't be of any use because the Norrises
were going to kill the fob."5 Kendrick testified Respond-
ent's secretary-treasurer, Smathers, had called him the
day before he had his conversation with Moseley and
asked him if it was true that Randall Dodson was trying
to obtain employment with the Olin Company. Kendrick
told Smathers that Randall Dodson was, to which
Smathers replied, "That was all that it was going to be
that was going to get on because she was going to call
and see that he did not get the job."
Respondent's secretary-treasurer, Smathers, testified
she never called Plant Manager Kendrick in either
August or September 1980 about Randall Dodson's em-
ployment with the Olin Company. Smathers stated she
did not know anyone at the Olin Company. Smathers
testified she did have a conversation with Kendrick
about Randall Dodson, but that Kendrick called her.
Smathers stated Kendrick told her he had a call from the
Olin Company and they had asked him if Randall
Dodson had ever reported them to the Board. Smathers
stated Kendrick told her he informed the person calling
from Olin that Randall Dodson had reported Respondent
to the Board. Smathers testified Kendrick stated to her
that he did not know if he should have told that to the
Olin Company. Smathers told Kendrick she did not
know if what he had done was the right thing either.
Smathers testified that was the extent of the conversa-
tion
Kendrick's demeanor impressed me that he was telling
the truth in his trial testimony, notwithstanding the fact
that in a pretrial affidavit he had made statements con-
trary to what he was testifying to during the hearing.
The majority of Kendrick's testimony was either cor-
roborated by other witnesses or it was uncontradicted. I
am persuaded that Norris told Kendrick that the entire
Dodson family had caused trouble and they were going
to have to get rid of them. I credit Kendrick's testimony
that he told former employee Moseley that the Norrises
were going to kill any efforts by Randall Dodson to
obtain employment at the Olin Company. Kendrick's tes-
timony in this respect was essentially corroborated by
former employee Moseley's testimony. Additionally,
Kendrick was an admitted supervisor of Respondent
within the meaning of Section 2(11) of the Act and, as
such, his statements, which he made while acting in the
scope of his employment, constituted binding admissions
against Respondent. See Federal Rules of Evidence,
Rule 801(d)(2)(D).6 I do not credit Secretary-Treasurer
Smathers' version of the conversation she admitted
having with Kendrick about Randall Dodson's future
employment; however, even if, arguendo, Kendnck was
not telling the truth when he told Moseley about the
Norrises' position with respect to the future employment
of Randall Dodson, such would not excuse Respondent
from the comments of Kendrick even though they were
untruthful. The Board has held it to be a violation of
Section 8(a)(1) of the Act for an employer to threaten to
give, or to give, an employee an unfavorable job refer-
ence in retaliation for filing charges with the Board.
Compare Glover Bottled Gas Corp., 255 NLRB 137, 143
(1981). As indicated elsewhere in this decision, and for
the reasons stated elsewhere, I make no findings with re-
spect to any unfair labor practice regarding the above-
stated events which I have found to have taken place.
Alvin Dodson was employed as a truckdriver from
1974 until December 19, 1980. In addition to his function
as a truckdriver, he also performed routine maintenance
on his assigned truck. Dodson testified he never received
any complaints during his employment about the condi-
6 Richard J Moseley testified about a conversation on August 28,
1980, with Kendrick in which the two of them discussed Randall Dod-
son's efforts toward employment with the Olin Company Moseley stated
Kendrick told him that Respondent's president , Norris, had said that as
long as Norris had anything to do with it, Randall Dodson would not get
a decent job
6 Rule 801 (d)(2)(D) of the Fed R Evid states in part
A statement is not hearsay if [t]he statement is offered against
a party and is a statement by his agent or servant concerning a
matter within the scope of his agency or employment , made during
the existence of the relationship
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of his truck. Dodson also answered the telephone
and cleaned up around the Pisgah Forest plant. Dodson
never received any reprimands or criticism of his work
between 1974 and 1980. Dodson testified the work for
drivers slowed up in the wintertime because of the cold
and snowy weather conditions; however, the weather in
December 1980 had been good up until December 19.
Dodson stated that during the week he was laid off, he
worked 49 or 50 hours. Dodson stated that in the past
employees had been given temporary layoff slips due to
bad weather but had never been given permanent layoffs.
Dodson testified he was laid off on December 19,
1980. He was informed of his layoff by Plant Manager
Kendrick. Dodson testified he had delivered two loads
of concrete on that day and was prepared to deliver a
third load when Kendrick told him that Norris had
called from the Waynesville location of Respondent and
had instructed Kendrick to lay Dodson off for a while.
Dodson asked what reason was given, and Kendrick told
him that Norris did not give him a reason. Kendrick
stated to Dodson, "I don't know a thing about it . . . all
I can do is tell you what Bill [Norris] said." Dodson tes-
tified Kendrick later on told him that Norris had said it
was because of a lack of work. Dodson asked Kendrick
if Norris could get by with this. According to Dodson,
Kendrick replied, "Alvin, knowing Bill, he has probably
already checked and he knows that he can get by with it
because Randall learned him a lesson with the Labor
Board, and he knows he can get by with it until he hires
somebody else, but he'll have to call you back first."
Dodson testified he thereafter visited Respondent's fa-
cility in the first week of January 1981 and received pay
for New Year's Day and a temporary layoff slip. As
Dodson started to leave, Kendrick followed him to his
car and told him there would not be anymore temporary
layoff slips. Dodson inquired why and Kendrick told
him, "I still don't know why ... Ms. Smathers said
there wouldn't be anymore." Dodson told Kendrick it
sounded like a permanent layoff to him. Kendrick told
Dodson that was what Norris had said it was. Dodson
complained to Kendrick that it was "a cheap way of
firing sombody." Dodson thereafter contacted the Na-
tional Labor Relations Board and subsequently on Febru-
ary 26, 1981, filed the charge in Case 11-CA-9735 in
which he alleged Respondent had laid him off on De-
cember 19, 1980, because his son had given testimony
and filed unfair labor practice charges with the Board.
Dodson testified about certain of his assigned deliv-
eries and about the condition in which he kept his truck.
Dodson testified that between 1974, and 1980, neither
Norris, Kendrick, or former Plant Manager Hightower
ever spoke to him about adding water to concrete.
Dodson stated there were two occasions during his em-
ployment with Respondent when he had wet concrete.
The first occasion, according to Dodson, occurred 3 or 4
months before he was terminated when he made a deliv-
ery to Baycon Construction. Baycon sent the load of
concrete back to Respondent. Dodson stated he took it
to the plant, it was dried out (by adding additional con-
crete mix), and delivered to another customer. The
second occasion was when he delivered a load to the
Allen Creek Dam Project in Waynesville, North Caroli-
na. Dodson took the load back to the plant, it was dried
out, and redelivered to the darn project where it was uti-
lized.
Dodson stated he did have some concrete set up in his
truck during the summer of 1980. Dodson testified that
he, along with other drivers, took loads of concrete into
Tennessee and by the time he arrived on one particular
delivery into Tennessee, the concrete had been in the
truck so long that it was getting hot. Dodson testified he
used every means possible to try and get the truck un-
loaded, but he could not get all the concrete out of the
truck because it had already gotten hard. After he un-
loaded what concrete he could get out of the truck, he
tried to clean it for about an hour, but he did not have
any water on his truck. The water Dodson had had been
added to the concrete to try to keep it from going hot
and getting hard. Dodson testified that when he returned
to Waynesville, North Carolina, and further on to his
home, he did not attempt to get the concrete out that
night because it was already hard. When he returned to
work the next day, he asked Plant Manager Kendrick if
the concrete could be gotten out before the truck was
loaded. Kendrick informed him that he could not pull
the truck out of service at that time, that he would have
to continue to make deliveries. Dodson informed Ken-
drick that each time they put more concrete in the truck,
more of it would remain and stick to that that was al-
ready hard in the truck.
Dodson testified that about 4 days later at the Baycon
Construction site, he used a small air chisel for about 3
or 4 hours and tried to chisel out the dried concrete, but
he had no success. Dodson testified Kendrick continued
to have him load the truck out for about a week before it
was actually taken out of service to get the concrete out.
On the morning that the concrete was gotten out of the
truck, Kendrick informed Dodson that he was to operate
a fellow employee's truck that day because Kendrick and
two other employees were going to get the' concrete out
of the truck. Dodson stated he never at any time refused
to participate in the cleaning of the concrete out of his
truck.
Dodson testified that his truck was kept "as clean as
any truck" and the lights of his truck were never sur-
rounded with concrete nor were they ever set in con-
crete. Dodson stated he never received any complaints
about the condition he kept his truck in. Dodson testified
that President Norris never talked to him about the con-
dition of his truck. Dodson never received a ticket while
driving his assigned truck nor did he ever put a scratch
on the truck.
Dodson testified he delivered concrete to Duyck Con-
struction Company in December 1980. Other drivers also
delivered concrete to Duyck on the same occasion.
Dodson testified he delivered the second load, and con-
crete was delivered and poured after the delivery of his
particular load. Dodson testified he was sure there was a
load of concrete after the one he delivered to Duyck
Construction Company because he personally called in
to Respondent and told them to send the additional load.
Dodson testified that when he took the load of concrete
to Duyck Construction Company, he had no discussion
NORRIS CONCRETE MATERIALS 297
with Dispatcher Teddy Norman about the load nor did
he say at any time that he was going to fix the concrete.
Dodson testified that after his layoff, he was aware of
an accident involving one of Respondent's trucks. The
accident took place in the summer of 1981 and Dodson
was told about the accident by members of his family.
Dodson testified he and Danny McPeters went to the
place where Respondent's truck had been wrecked. At
the wreck scene , Dodson saw Plant Manager Kendrick
and batcher Wilburn Brittain . Dodson testified Kendrick
walked up to him, put his arm around his shoulder, and
told him:
Alvin, I know how this case is coming out and you
know how it's coming out . . . . I talked to Ms.
Smathers for 2 weeks until I turned blue in the face
to telling them that you didn't have anything to do
with Randall [Dodson] taking them to the Labor
Board . . . . I don't want me and you to have no
hard feelings against each other whatsoever
Kendrick then asked Dodson to come by his location
and go to dinner with him.
Respondent's president, Norris, testified he laid Alvin
Dodson off in December 1980.
Well, it was for a multitude of reasons. The weather
was bad, business was getting slow, we didn't have
enough work to go around for everyone in the
plant, and that's normal conditions for about that
time of year; we have to lay off some drivers.
Norris testified he also had an opportunity to personally
observe Dodson's work a day or two before he was laid
off in that Dodson had delivered a load of concrete to a
customer and had made a mess out of it by adding water
to it, thus damaging the product.7 Norris stated he re-
ceived a call from Ronnie Duyck of Duyck Construction
Company, who informed him that the concrete was wet,
that he had gone ahead and used it, but he did not like it,
and he did not want anymore concrete like that.8 Norris
testified, "In reviewing everything in my mind, Mr.
Dodson was the most likely candidate to be laid off."
Norris stated the fact that Dodson delivered wet con-
crete to Duyck Construction had a great deal of bearing
on his decision to lay Dodson off. Norris stated the de-
livery to Duyck Construction Company was "just all I
could stand." Norris testified the reason he did not fire
Dodson was that he did not wish to deprive him of his
right to collect unemployment. Norris acknowledged
that his pretrial affidavit stated he did not know why
Dodson was laid off instead of fired. Respondent's presi-
dent, Norris, stated he was angry when he hung up the
telephone after speaking with Duyck on December 19,
1980, and that he called Plant Manager Kendrick the
next day and told him he was going to have to lay some-
7 Norris testified that by adding water to concrete, it can destroy up to
50 percent of the strength of the concrete Norris stated it was easier to
drive a truck with wet concrete
8 Norris had indicated in his pretrial affidavit that three other drivers
had delivered concrete to Duyck Construction on the date in question in
December 1980, and he stated in his affidavit that those deliveries were
"beautiful ," but the one Dodson delivered was "horrible "
one off and that it would be Alvin Dodson. Norris
stated, "I laid him [Dodson] off because of the delivery
he had made to Duyck Construction Company. It was
just all I could stand; that was it."9
Norris testified that when he laid Dodson off in De-
cember 1980, the fact that his son, Randall Dodson, had
filed charges with the Board played no part in his con-
sideration of selecting Alvin Dodson for layoff.
Norris testified he had a problem with Alvin Dodson
delivering wet concrete for approximately 3 years, and
the adding of water to concrete had been an ongoing
problem with Dodson for several years. Norris testified
he received calls from his plant manager at the Pisgah
Forest plant that Alvin Dodson was deteriorating as an
employee. Norris stated Dodson had the newest but
dirtiest truck at the Pisgah Forest plant Norris also
stated Dodson had permitted, on occasions, concrete to
setup in his truck and that other employees had to jack-
hammer the concrete out.
Ronnie Duyck of Duyck Construction Company,
Asheville, North Carolina, testified he was the general
contractor for a building being constructed at the Hay-
wood Technical College of Haywood County, North
Carolina, in December 1980. Duyck testified he contact-
ed Respondent for concrete for the building. Duyck tes-
tified that on the day in question, he received two or
three loads of concrete from Respondent, one of which
was wet. Duyck testified the concrete that was delivered
had a very high slump and he considered it to be abnor-
mally wet. Duyck stated they were able to use the con-
crete because it was acceptable for the work they were
doing that day, and they did not have to make any spe-
cial effort to put the concrete any place other than
where it had been ordered for. Duyck testified he men-
tioned the wet load to Norris, but he was not sure when.
Duyck testified, "I didn't [notify Norris] that day, but at
some subsequent date when I was talking to him about
maybe ordering more concrete, and I don't recall why,
but I did mention to him that we got a load of concrete
that was pretty wet." Duyck could not remember who
the driver was on the wet load Duyck testified a high
slump was normally caused by too much water being
added to the concrete. Duyck testified that the load of
concrete that was wet was the last load delivered on the
day in question.10
Assistant Plant Manager Teddy Norman of the
Waynesville plant testified she saw Alvin Dodson on De-
cember 118, 1980, at the Waynesville plant . Norman testi-
fied Dodson took the order for concrete from Ronnie
Duyck of Duyck Construction Company. Norman in-
structed Dodson to deliver the concrete to the Haywood
Technical School Project for Duyck Construction Com-
pany, however, Norman stated Dodson wanted to return
8 Norris testified that when he laid Dodson off on December 19, 1980,
he also had in mind the fact that Dodson had allowed concrete to set up
in his truck when had hauled a load of concrete to the Waterville Dam
Project
is Duyck testified that it could have been several days later when he
spoke with Norris about the concrete , that he thought perhaps it was
Duyck testified he did not make a special call to Norris to complain
about the wet load Duyck did not give the number of the truck to
Norris when he spoke with him
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to his home in Brevard, North Carolina, instead. Norman
asked Dodson to take the load of concrete and then go
home when he fmished delivering the concrete. Norman
stated Dodson did not want to take the concrete and
made the statement he would fix the concrete. Norman
received a call the next day from Duyck who said he
needed to talk to Norris about the concrete he had re-
ceived the day before. Norman testified Duyck said
nothing in his call except to complain about the wet con-
crete and to say that his men had worked all night be-
cause of the wet concrete. Norman testified Dodson did
not return to Waynesville on the evening in question, but
rather, when he had unloaded his truck, gave the ticket
to the driver'behind him, and then proceeded to Bre-
vard, North Carolina.
Plant Manager Kendrick testified Dodson had worked
for him for 2 years and his overall evaluation of Dodson
was that he was a better-than-average employee. Ken-
drick stated Dodson helped him more than any other
driver when he was first assigned to the Pisgah Forest
plant because Dodson knew the 'location of customers
and where to dispatch various trucks.
Kendrick testified that in December 1980 the work-
load was a little better than average. Kendrick laid
Dodson off on orders from Respondent's president,
Norris. Kendrick asked Norris what had happened.
Norris told him that Dodson "took one of our good cus-
tomers a wet load of concrete." Norris then told Ken-
drick to just lay Dodson off. Kendrick asked Norris
whether the layoff should be temporary or permanent,
and Norris told him to make it permanent. Kendrick ad-
vised Norris that Kendrick was getting ready to go on
vacation and they might need Dodson and asked if he
could just lay him off temporarily. Norris told him he
could, but the day he got back from vacation he wanted
him permanently laid off. I'
Kendrick testified that during the time he was plant
manager at the Pisgah Forest facility, Dodson had no
more loads of wet concrete than any other driver. Ken-
drick testified, "[E]verybody takes a load that some cus-
tomers would think was wet, and some customers would
think that it was, you know, just right." Kendrick testi-
fied his only instruction to the drivers was simply to tell
them "to watch it and that that contractor likes it dry,
then take it to him dry." Kendrick testified loads were
always brought back to the plant that were too wet and
they were "dried up" and sent to another customer. Ken-
drick stated there never-was an occasion where a load of
concrete had to be scrapped because it was too wet.
Kendrick testified that after Dodson was laid off, it
made him one employee short, and he had to call the
Waynesville plant for a driver. Kendrick testified he
hired James Burgess and Junior Collins as truckdrivers.
Burgess did some general maintenance work but about
90 percent of his time was spent driving a truck.
Kendrick testified that at the time Dodson was laid off
there was no system of classification of truckdrivers at
Respondent's Pisgah Forest plant. Kendrick stated there
was no system of discipline or reprimand, however, he
learned somewhere between March 5 and 10, 1982, of a
new system being instituted.
Kendrick testified he was present at the scene where
an accident involving one of Respondent's trucks had
taken place on November 16, 1981, on Old, Road 64 in
Brevard, North Carolina. Kendrick testified he saw
Alvin Dodson, Dodson's son-in-law, and a friend at the
accident. Kendrick stated he asked Dodson if he was
mad at him. Kendrick testified he told Dodson:
I said that I had tried to convince them that he
hadn't had any activities whatsoever in Randle's
[Randall Dodson] Labor Board suit, and that he
was trying to stay completely neutral, and I asked
him if he felt like it, one evening, to come down
and sit around and talk a little bit, that we would go
out and eat. He said he would.12
Kendrick testified some concrete had set up in Dod-
son's truck on an occasion when he made a delivery
from the Waynesville facility of Respondent. Kendrick
sent Dodson to Baycon Construction Company the next
day to use its chipping hammer to get the concrete out
of his truck; however, Dodson was unable to get it out
with the particular equipment Baycon had. Kendrick tes-
tified he then borrowed a 150-pound jackhammer from
Baycon, and he, along with three other employees, jack-
hammered the concrete out of Dodson's truck while
Dodson took care of the office. Kendrick testified he in-
structed Dodson to stay in the office because Dodson
had been in the truck all day and he did not figure that
Dodson could handle the big jackhammer. Kendrick tes-
tified Dodson maintained his truck a little better than the
other drivers.
Kendrick acknowledged on cross-examination that he
had given a pretrial affidavit to the Board in which he
had -made various statements with respect to, Dodson's
layoff, but that the statements in his affidavit were false.
Kendrick explained that he made the statements in his af-
fidavit because if he had not, he would have been dis-
charged by Respondent.
Wilburn Brittain testified that he had been employed
by Respondent for 12 years. He had driven for 4 years
and had been the batch person for the remaining 8 years.
He testified that since April 15, 1982, he has been the as-
sistant manager of the Pisgah Forest facility. 'Brittain was
one of those that helped jackhammer concrete out of
Dodson's truck' in October or November 1980. Brittain
stated Dodson did not keep his truck as clean as some' of
the other drivers did.13
" Kendrick acknowledged Dodson had asked him if he thought
Norris could get away with laying him off and he told Dodson, "[T]hat
Bill had probably already checked and found out that he could get by
with laying him off and not taking him to the Labor Board " Kendrick
testified, a couple of weeks later he informed Dodson that his layoff was
permanent and Dodson told him "[I]t was a cheap way; was it a layoff or
a cheap way to get rid of him."
12 Vincent Stone Jr and Danny Ray McPeters corroborated the testi-
mony of Dodson and Kendrick with respect to the conversation at the
wreck site in the fall of 1981
13 James E Burgess testified that he had been employed by Respond-
ent off and on for approximately a year, and that Dodson got along well
with his fellow employees, but kept his vehicle "poorly."
NORRIS CONCRETE MATERIALS
Larry Hightower testified he worked for Respondent
from January 1975 until April 1979. Hightower started
out as a truckdriver, and at the time he quit for a better
paying job in April 1979, he was the plant manager of
the Pisgah Forest plant. Hightower supervised Alvin
Dodson the entire time that Hightower worked for Re-
spondent. Hightower testified that when he quit as plant
manager , he recommended that Alvin Dodson be made
the manager because he was the best and most dependa-
ble employee Respondent had. Hightower testified he
had received complaints from customers about wet con-
crete and very possibly Dodson was one of those com-
plained about, but there were no more complaints about
Dodson than any other employee. Hightower testified
that a wet load of concrete could come about for several
reasons: First, the batch person could place too much
water in the load; second, the driver could place too
much water in the load; third, the truck could have been
washed leaving too much moisture in the truck; and
fourth, when the weather was rainy the sand or gravel
contained too much moisture, thus creating wet con-
crete. Hightower testified that during the time he had
been a driver for Respondent, he had delivered wet con-
crete and had the customer reject it, but he had never
been disciplined for it. Hightower testified Norris never
complained to him that Dodson was delivering wet con-
crete.
Various contractors (Marion Owen, Mitchell Andres,
Terry J. Conner, and Ben Fisher) testified about having
concrete delivered to them by Dodson, and that he did
the job as they wished him to in delivering the concrete.
For example, Fisher testified he specifically asked for
Dodson by name to deliver the concrete to him because
Dodson would do so exactly where it was needed and
exactly where they wanted it to be delivered.
It is undisputed that Alvin Dodson was laid off on De-
cember 19, 1980. There are a number of factors present
in the instant case that, in my opinion, establishes the
motivation for Dodson's discharge. The facts as shall be
discussed infra, demonstrate that the General Counsel es-
tablished a factual foundation supporting an inference
that protected conduct was a motivating factor in the
December 19, 1980 layoff of Alvin Dodson.
That Respondent took the action it did against Alvin
Dodson because his son, Randall Dodson, filed charges
with the Board is clear from the uncontradicted testimo-
ny of Randall Dodson that Respondent's president,
Norris, told him during the settlement of Randall Dod-
son's second charge with the Board that he would make
sure that Randall Dodson never had a decent job in
Transylvania County, North Carolina, where Respond-
ent had its operation. This undenied statement of unlaw-
ful motivation was then transferred by Norris from Ran-
dall Dodson to all members of the Dodson family. I
credit Plant Manager Kendrick's undenied statement that
Norris told him that Randall Dodson had caused Re-
spondent a lot of trouble as well as the whole Dodson
family, and that they were going to have to get rid of
them. Norris acknowledged that the charges filed by
Randall Dodson had caused Respondent consternation,
worry, inconvenience, and expense. Not only did Re-
spondent transfer its unlawful motivation from Randall
299
Dodson to other members of the Dodson family, it also
carried out its threat that it would see to it that Randall
Dodson did not obtain a decent job in Transylvania
County inasmuch as Respondent's secretary-treasurer,
Smathers, indicated to Plant Manager Kendrick, whose
testimony I credit, that she would take care of Randall
Dodson's application at a local factory (the Olin Compa-
ny).
It would appear that approximately 6 months after
Randall Dodson had caused his trouble at Respondent
that Respondent carried through with its threat to get
rid of the entire Dodson family by laying off Alvin
Dodson. i 9°
The reasons given by President Norris for the lay off
of Dodson in December 1980 were numerous. Norris
stated the weather was bad, business was slow, and there
was not enough work to go around. Norris stated Re-
spondent had received a complaint from one of its cus-
tomers that Dodson had made a bad delivery of con-
crete, and that he also considered Dodson's poor work
performance over an extended period of time. Norris
also considered the fact that Dodson continually added
water to his loads of concrete in deciding to lay Dodson
off. All these reasons were advanced by Norris at the
trial, however, in a letter of position by Respondent's
counsel dated March 20, 1981, the stated reasons for
Dodson's layoff were as follows:
When concrete sales and delivery fall off in the
winter months, there is usually left available work
dealing in the mechanical and carpentry aspects of
the business. It was determined in management's
opinion that Mr. Dodson did not have the necessary
mechanical or carpentry experience to perform the
type of work which was being done during the off
season. [G.C. Exh. 12.]
In his testimony at trial, Norris made no mention of
Dodson's lack of mechanical or carpentry experience. In
the letter of position referred to above, no mention was
made of Dodson's alleged poor work performance or of
"the straw that broke the camel's back" as testified to by
Norris, which was the delivery of the load of wet con-
crete to Duyck Construction Company in December
1980. Respondent in its letter of position acknowledged,
as the record evidence establishes, that an employee was
hired after Dodson was laid off. The position paper con-
tends he was hired as a mechanic. The credited testimo-
ny indicates otherwise in that Plant Manager Kendrick
testified the individual that was hired was a mechanic,
and spent 90 percent of his time driving a truck deliver-
ing concrete. i 5 I am therefore persuaded that the shift-
" The charge of Randall Dodson in Case I1-CA-8939 was settled in
April by an informal settlement agreement , which required a 60-day
notice posting Therefore, the earliest that the case could have been
closed would have been late June 1980
15 Burgess , the individual hired after Dodson was laid off , acknowl-
edged that he performed only minor maintenance and that heavy repair
was still subcontracted out even after he began employment and per-
formed some maintenance work
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing defenses advanced by Respondent made its claim of
nondiscrimination less than convincing. See, for example,
Sentry Food Store, 198 NLRB 879 (1972).
Not only does it appear thatRespondent shifted its de-
fense with respect to Dodson's layoff in December 1980,
but the reasons advanced by it at the trial do not with-
stand close scrutiny.
Respondent's contention that the weather was bad and
business was slow in December is not borne out by the
record evidence. Alvin Dodson testified, and I credit his
testimony, that the weather in December was good up
until December 19, which was the time of his layoff.
Dodson's testimony is supported by the fact that during
the week that Dodson was laid off he worked 49 or 50
hours. Dodson's testimony was also supported by that of
then Plant Manager Kendrick who testified that the
workload at Respondent in December 1980 had been a
little better than average. The fact that business was not
that slow is further borne out by Kendrick's credited tes-
timony that after Dodson was laid off, it made him one
employee short and he had to borrow an employee from
the Waynesville faciity until he could hire James Burgess
and Junior Collins. Kendrick testified both were hired as
truckdrivers although Burgess did devote about 10 per-
cent of his time to general maintenance work. The facts
simply do not support Respondent's contention that bad
weather and a lack of business brought about the layoff
of Dodson.
With respect to the delivery of wet concrete to Duyck
Construction Company, there are several factors which
tend to indicate that Respondent' s reliance thereon as the
precipitating reason for Dodson's layoff is likewise not
borne out by the facts. I do not credit Norris' testimony
that Dodson made a mess of a load of concrete after he
had batched it for a very good customer of Respondent.
I likewise do not credit Norris' testimony that when he
asked Dodson to deliver the load of concrete to Duyck
Construction Company that he gave him a look that indi-
cated to him that he did not want to deliver the load.
Norris stated in his pretrial affidavit and reaffirmed at
the trial in part as follows:
Three other Norris drivers had delivered concrete
to Duyck at the same time, and they told me those
deliveries were beautiful but that the one Al
Dodson delivered was horrible.
I find that the evidence quite clearly indicates that
Ronnie Duyck of Duyck Construction Company consid-
ered one of the loads of concrete he received to be
wetter than he liked; however, Duyck stated he was able
to use the concrete. I do not consider the situation to
have been of the magnitude that Norris attempted to
portray it simply because Duyck himself stated he did
not mention the matter to Norris on the date in question,
but did so at some subsequent date when he was talking
to Norris about ordering other concrete. Duyck testified
he did not recall who the driver was, nor did he provide
the number of the truck to Norris. With respect to when
he contacted Norris,, Duyck testified he thought perhaps
it was several days before he,talked to Norris about the
concrete, although it could have been the next day.
Duyck also stated that he did not make a special call to
Norris to complain about the particular load of concrete
he considered to be too wet. Duyck testified it was the
last load of concrete he received on that day. Dodson
testified, and I credit his testimony, that he did not deliv-
er the last load of concrete on the date in question. Dod-
son's testimony would seem to be supported by that of
Waynesville's assistant plant manager, Norman, when
Norman testified that Dodson did not return to the
Waynesville plant on the day in question, but gave the
signed copy of his invoice to the next driver and re-
turned to Brevard, North Carolina. Norris' testimony
that he sent Dodson with the load to Duyck Construc-
tion at the time Dodson gave him a look indicating he
did not wish to make the delivery is contradicted by the
testimony of Assistant Plant Manager Norman who
stated she 'instructed Dodson to take the load of con-
crete, and that he indicated he wanted to go home to
Brevard, North Carolina, instead, and stated, to her that
he would "fix the concrete." Norman likewise testified
that Norris was no where around when Dodson was sent
to Duyck Construction Company. I find unbelievable
Norman's testimony that Dodson told her he would fix
the concrete to be delivered to Duyck. It simply defies
logic to believe that Dodson would do something that
could result in his termination and inform management in
advance that he intended to do it. I find there are too
many inconsistencies between Norris and Norman's testi-
mony with respect to the delivery of concrete to the
Duyck Construction Company in December to credit
either's version of the events. I am therefore persuaded,
based on the fact that the concrete was used and that
Duyck did not make a special effort to call about the
concrete, that it was probably days thereafter before he
spoke with Norris about the wet load. It appears no real
investigation was made by Respondent to determine if in
fact Dodson was the one who delivered the load, but
rather Respondent, after the fact, seized on the load of
wet concrete and attributed it to Dodson as a pretext to
cover its reason for laying Dodson off.
Norris' contention that Dodson's work performance
was poor and had been deteriorating is again not borne
out by the facts. Former Plant Manager Hightower testi-
fied that Dodson was the best and most dependable em-
ployee he had working for him, and that when High-
tower left Respondent's employment, he recommended
Dodson be given the job of plant manager . Plant Manag-
er Kendrick, who was the manager at the time of Dod-
son's layoff, testified he considered Dodson to be overall
a better-than-average employee. I credit Hightower and
Kendrick's testimony, and fmd it refutes and makes unbe-
lievable Norris' testimony that Dodson had a poor work
performance record at Respondent. Norris contended, as
part of, Dodson's poor work performance, he had, for a
number of years, added water to the loads of concrete he
delivered, thus damaging the product of Respondent.
However, Norris could produce no evidence to indicate
that the matter had ever been raised with Dodson even
assuming that it had been a problem. Former Plant Man-
ager Hightower testified that Norris never' complained to
him that Dodson was delivering wet concrete, nor had
NORRIS CONCRETE MATERIALS 301
he ever complained or talked to the employees in a
group about wet concrete. Hightower acknowledged he
had received complaints from customers that their con-
crete was wet, and that even possibly one of those driv-
ers complained about may have been Dodson, but he
stated there were no more complaints about Dodson
than any other employee.16 Dodson's testimony that he
had never received any warnings with respect to deliver-
ing wet concrete from either Plant Manager Kendrick or
Plant Manager Hightower was corroborated by them.
Kendrick testified, and I credit his testimony, that every
driver who took a load would find that some customers
might think a load to be too wet while others would
think it to be dust right. Kendrick testified he had never
disciplined any driver with respect to wet concrete other
than to inform them that certain contractors liked their
concrete drier than others. Kendrick testified there had
never been a load of concrete scrapped at Respondent
because it was too wet, that it was always brought back
to the plant, dried out, and then sent to another custom-
er. The vast majority of the testimony in this case indi-
cates that rather than having a poor work performance
record, Dodson in fact had a fine work record in that
various contractors testified that Dodson did an accepta-
ble job delivering concrete to them, and a number of
them testified they specifically asked that Dodson be the
one to deliver concrete for them because of his coopera-
tion with the customer. I am persuaded that the record
establishes Dodson did not have a poor work perform-
ance record with Respondent.
Finally, Respondent indicated it relied on the fact that
Dodson allowed concrete, on one occasion, to set up in
his truck as a basis for laying him off in December 1980.
I find very logical and believable the reasons given by
Dodson for the concrete setting up in his truck, and I
find believable the reasons given by Dodson and Ken-
drick with respect to how the set up concrete was re-
moved. It appears it was set up in the truck because the
delivery was at too great a distance from Respondent's
facility, thus causing the load to become hot and harden.
On the day the hardened concrete was removed from
Dodson's truck, he performed a day's work and Plant
Manager Kendnck made a determination that he and
others should remove the hardened concrete from the
truck while Dodson performed other tasks for Kendrick.
I am persuaded that the reasons advanced by Respond-
ent for the layoff of Dodson in December 1980 had no
basis in fact and were merely spurious reasons advanced
as a pretext to disguise the real reason for the layoff of
Dodson. In summary, I conclude that the totally invalid
reasons and the shifting basis' proffered to justify Re-
spondent's actions fortify the conclusion that I draw
from the other evidence of record that Respondent's real
motivation for the permanent layoff of Dodson in De-
cember 1980 was to punish him because his son had filed
charges with the Board. I am persuaded there was only
16 Hightower likewise indicated as set forth elsewhere in this decision
that there were numerous reasons why a load of concrete on any given
day might be too wet without the driver being at fault Hightower ac-
knowledged that when he had been a driver for Respondent , he had de-
livered concrete that the customer had rejected as being too wet, but lie
had never been disciplined
one genuine reason for the action Respondent took
against Dodson in December 1980 and that was the fact
that his son had filed charges with the Board. The Board
adopted the administrative law judge's decision in Hous-
ton Coca Cola Bottling Co., 256 NLRB 520, 533 (1981), in
which he found a violation of Section 8(a)(4) of the Act
when the respondent therein discharged the mother of an
employee it had fired because the daughter filed charges
with the Board. Ordinarily, I would find such conduct to
constitute a violation of Section 8(a)(4) of the Act. How-
ever, for the reasons set forth elsewhere in this decision,
I do not make such a finding with respect to Dodson's
December 1980 layoff.
Prior to the withdrawal of the charge in Case 11-CA-
9735, and at a time when the trial of that particular case
was set for March 11, 1982 (G.C. Exh. 1(j)), Respondent
commenced to prepare its defense for the case. Plant
Manager Kendrick testified that one morning, sometime
between March 5 and 10, 1982, Respondent's president,
Norris, came to the Pisgah Forest plant at approximately
7 a.m. Kendrick testified all the employees were standing
around ready to get their trucks loaded when an employ-
ee asked President Norris how Alvin Dodson was
coming along. Kendrick testified Norris became angry at
the question and stated, "Anybody on his employment
who would help Alvin [Dodson], that he would find
himself looking for another job." Plant Manager Ken-
drick testified that about this time Respondent's attorney,
McLean, came in and McLean, Norris, and he started
toward the back office. One of the employees spoke up
and stated that Norris could not fire anyone for helping
Dodson. Kendrick testified Norris said "he could find
reason to fire anybody at anytime." I credit Kendrick's
uncontradicted testimony regarding the above comment
attributed to Norris. I note also that Kendrick's state-
ments were made while he was acting in the scope of his
employment as a Section 2(11) supervisor, and as such,
his admissions are binding on Respondent. See Federal
Rules of Evidence Rule 801(d)(2)(D). I therefore con-
clude and find that Respondent acting through President
Norris violated Section 8(a)(1) of the Act when about
March 8, 1982, he threatened Respondent's employees
with discharge if the employees testified at an unfair
labor practice hearing before the Board. See Seligman &
Associates, 240 NLRB 110, 117 (1979).
Following the conversation just referred to above,
Kendrick testified that Attorney McLean, President
Norris, and he proceeded to the back office where they
discussed the then upcoming March 1982 hearing involv-
ing Case 11-CA-9735. Kendrick testified after they fin-
ished their discussion with respect to preparation for the
Board hearing, the three of them commenced talking
about job classification sheets that he was to fill out on
employees as well as reprimand sheets. Kendrick testified
Norris said they were going to have to start classifying
their jobs. Kendrick asked Norris what he meant. Norris
responded they were going to classify the jobs as truck-
drivers, office help, truckdrivers and office help, truck-
drivers and general maintenance , truckdrivers and truck
maintenance, and batchmen. Kendnck inquired why they
were going to start doing this, and complained that it
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would put more work on him. Kendrick testified Norris
responded, "That he had to do this so that if we had to
take Alvin [Dodson] back that we could find a reason to
starve him out." Kendrick stated it was made clear to
him by Norris that Dodson was to be classified as a
truckdriver only. Kendrick stated this was the first time
he had ever heard of such a system of employee classifi-
cation.'7 Kendrick asked Norris what Dodson would be
doing when he was not driving because he was going to
be assigned just as a driver. Norris told Kendrick that
Dodson would be off the clock and would remain off the
clock until another load was ready to take out. Kendrick
told Norris that Dodson probably would not get 25 to 30
hours a week that way. Norris responded, "If I could,
that I should cut it down to 12 to 15 [hours], as low as I
could." Kendrick testified Attorney McLean spoke up at
that point and said, "No, if we did that, then he would
be able to draw temporary unemployment."
Kendrick testified he learned from Norris about a
week later that Dodson would be returning to work.
Norris told Kendrick, "Well, it looks like we are going
to have to take this sorry SOB back." Kendrick asked
Norris if Dodson would be reinstated to his normal job
as a driver; Norris informed him he would. Kendrick
asked Norris if Dodson would be assigned truck 36
again . Norris said no. Kendrick asked what truck to
assign Dodson. Norris asked, "What is the sorriest truck
that you have got over here?" Kendrick told Norris that
truck 29 was the worst. Norris told him that Dodson
would get that one. Kendrick informed Norris that it
was not operational at that time it had been turned over.
Norris asked when he expected to have it back in oper-
ation and Kendrick told him it should be within 1 or 2
days. Norris again told him to give that truck to Dodson.
Kendrick informed Norris, "That the steering was a little
bit bad and the brakes were bad." Norris told Kendrick,
"that sounds even better." Kendrick asked Norris if he
was "trying to kill him, or just get rid of him." Norris
responded, "Either one will do." Kendrick testified
Norris also wanted Dodson to clock in precisely on time,
clock out precisely on time for lunch, and return precise-
ly on time, and if he was a minute late, to write him up.
Kendrick testified Dodson returned to work on March
15, 1982, as a result of the non-Board settlement of Case
11-CA-9735. ,
President Norris testified he and Attorney McLean
had a meeting prior to March 15, 1982, with Plant Man-
ager Kendrick at which job classification and written
reprimand,policies were discussed. Norris testified in part
as follows:
I told him [Kendrick] that I was sorry that we had
to coinplicate business like that, but it just seemed
to me a "sign of the times" and that, as near as I
could understand, the NLRB wanted us to conduct
our business that way, that everytime I talked with
them, they, always asked me about things like that,
and so I said, "I assume that we are going to have
to have it" and I said, "here they are, and we have
got to handle everything on a very business-like
nature from here on out even though it causes a lot
more work on our part" and I said, "they will be
administered fairly" and I said, "that is all there is
to it, we will just have to do it just like anything
else that we do around the plant."
Norris stated McLean essentially said the same thing.
Norris testified that he did not recall 'any conversation
between Kendrick, McLean, and himself concerning the
amount of time that Dodson was to receive while work-
ing for Respondent.
Secretary-Treasurer Smathers testified Respondent es-
tablished written classifications for the various employees
it employed after the matter of Randall Dodson had been
handled by the Board.
I credit Plant Manager Kendrick's version of the
events with respect to his meeting with Norris and
McLean wherein the system of employee classifications
and discipline was discussed. The critical portions of
Kendrick's testimony were undenied. Kendrick's testimo-
ny was corroborated by Lail with respect to the fact that
classifications for employees at Respondent was a new
thing. Under the new classification system, Dodson was
to be classified as a truckdriver only. I find the evidence
overwhelmingly indicates that prior to his return to
work, Dodson had performed various other tasks for Re-
spondent other than simply driving a truck. For example,
he had performed normal care and maintenance of his
truck, he had been involved in general clean up around
Respondent's facility, and had served as an office em-
ployee. I credit Kendrick's testimony that Norris indicat-
ed the reason for the new classification for Dodson was
so that Respondent could "starve" him out if .it was
forced to return Dodson to its employment. I discredit
any testimony to the contrary. I likewise credit Ken-
drick's testimony that Norris wanted Dodson to have as
few hours as possible and to be assigned the "sorriest"
truck Respondent had to offer, and that Norris wanted
Dodson reprimanded for the slightest infraction of any of
the newly established disciplinary guidelines. The over-
whelming weight of the credible evidence in this case in-
dicates beyond any doubt that Norris became extremely
displeased with the Dodson family after Randall Dodson
filed charges with the Board, and the overwhelming
weight of the evidence also indicates that Norris em-
barked on a pattern of conduct designed to force
Dodson into quitting his employment with Respondent.
Dodson testified he returned to work pursuant to a
non-Board settlement on March 15, 1982. The terms of
the settlement, according to Dodson, were that he was
to be paid $15,000 in cash, and was to be permitted to
return to work at top seniority, and he was to be the last
individual sent home if work became slack.' 8
17 Phillip Lail testified he had been employed by Respondent from
1979 until 1982. Lail testified that about a month or so before he left Re-
spondent's employment in 1982, Respondent started classifying drivers.
According to Lail, prior to that time, there had been no such classifica.
tions.
is The notarized agreement executed between Dodson and Norris on
March 15, 1982, contained in part the following provisions: (1) that
Dodson be paid $ 15,000 on the execution of the agreement ; (2) that
Dodson withdraw his charge filed with the National Labor Relations
Continued
NORRIS CONCRETE MATERIALS 303
Dodson testified when he returned to work, Plant
Manager Kendrick told him to check out truck 29 and
get ready to load concrete. Dodson testified that in the
past he had been allowed to have coffee but was denied
that privilege on the first day of his return to work.
Dodson testified after he got truck 29 ready, Kendrick
told him Norris and Smathers were in the office and
wanted to see him. Dodson went to the office where
Norris had some papers he wanted him to look at and
sign . Dodson signed the papers and told Norris, "Bill,
that's rules . . . you never knowed me to break one of
them." Dodson testified Norris had not spoken up to that
point, but then told him to pick up his check Dodson
complied. Norris then told Dodson, "Now hit clock and
go home. There ain't no concrete to haul today."
Dodson went home and returned the following day,
March 16. Dodson testified other drivers were permitted
to remain on March 15, when he was sent home. Dodson
testified that when he returned on March 16, he did so at
approximately 6:30 a.m., and went around back to where
Plant Manager Kendrick stayed in a little camper. Ken-
drick stuck his head out the door of his camper and told
Dodson that Norris had called him and told him to send
Dodson home, but to let the rest of the drivers stay.
Dodson testified he reported for work on Wednesday
and worked until Friday of the next week. Dodson testi-
fied that on Thursday evening, about 4:30 p.m., Kendrick
had three loads of concrete that he needed delivered to
Bass Construction Company where Haywood Johnson
was the supervisor. Dodson testified they delivered the
concrete.19 When Dodson reported to work on Friday
morning, Kendrick wanted to know "what in the hell"
had happened at Bass Construction the night before.20
Dodson told Kendrick nothing had happened that he
knew of, that he had unloaded his concrete as did the
other two trucks. Kendrick told Dodson, "I got a call
here from Norris' attorney in Waynesville that you had
harassed Haywood Johnson." Dodson stated Kendrick
wanted him to sign a paper that he had harassed John-
Board in Case 11-CA-9735, (3) that Dodson would return to work on
March 15, 1982 , with the following conditions attached . (a) Dodson
would abide by all the rules and regulations of Respondent , (b) Dodson
would be employed in the position of truckdriver only, and (c) Dodson
would be the last driver in his classification laid off on either a temporary
or permanent basis, for a period of 1 year , from the execution of the
agreement , (4) after 1 year, Dodson would have a merit only
employer/employee relationship with Respondent , and (5) all other pro-
visions of employee policies such as vacations and holidays would be the
same for Dodson as all other employees of Respondent (R Exh 4)
19 Plant Manager Kendrick testified he received a call from Haywood
Johnson of Bass Construction Company stating he needed three loads of
concrete delivered late and wanted to know if Kendrick could help him
out Kendrick informed Johnson he could The three loads were deliv-
ered by drivers Dodson, Morgan, and Smith
20 Kendrick testified he received a call from Norris in which Norris
informed him that he heard Dodson had harassed Haywood Johnson and
for Kendrick to find out what was going on Kendrick testified he called
via a truck radio and instructed driver Smith to inform Johnson that he
wanted him to call on the telephone Johnson called Kendrick that
evening, and Kendrick asked him what was going on Johnson said noth-
ing was going on The only comment Johnson made, according to Ken-
drick , was that he was glad to see they had Dodson back as a driver
Kendrick asked Johnson if any employee of Respondent had harassed
him, and Johnson told them they had not Kendrick told Johnson he had
received a call from Waynesville , North Carolina , that he had some trou-
ble and harassment Johnson told Kendrick nothing had happened
son. 21 Dodson told him he would not sign it and asked
Kendrick to get in his truck and go with him to find
Haywood Johnson, and if Johnson told Kendrick that
Dodson had harassed Johnson, then he would sign it.
Dodson asked Kendrick if Kendrick would sign it. Ken-
drick told him he would not. Dodson testified Kendrick
did not want to go with him to see Johnson, so he told
Kendrick that either he could go with him or he would
go alone. Kendrick then agreed to go with him to speak
to Johnson.22
Dodson testified that on the way to the jobsite, they
met Johnson in downtown Brevard, North Carolina, and
followed him to his home. Dodson asked Johnson if he
had harassed him in any way, and Johnson told him
"none whatsoever" and wanted to know what was
wrong. Dodson told Johnson to ask Kendrick, that "they
called here from Waynesville that I had harassed you
last night." Dodson testified Johnson said that he had not
called anyone. Dodson told Kendrick on his way back to
the plant that he just as well go to the plant, punch out,
and go home because he just could not take it any
more. 2 3
Kendrick asked Dodson not to quit, to give him a day
or two to see if he could work the thing out. Kendrick
asked Dodson to make a delivery in George Smith's as-
signed truck and to take the delivery to the Hemphills.24
Dodson testified Kendrick told him the truck had al-
ready been checked out, and they were in a hurry for
him to go ahead and take the load. Dodson took the
Smith load and about a mile and a half down the road,
he discovered that the air pressure would not build up
on the truck. Dodson stopped to check the reason and
discovered that the nozzle on the back of the truck had
been left open letting water run into the back of the tank
where the concrete was. Dodson testified he did not
check the water valve when he left for the Hemphill's
location because he had been told the truck had already
been checked out, and that the delivery was needed in a
hurry. Dodson testified that after that incident, he did
not return to work because "I just couldn't take it any
more. They were going to get rid of me one way or the
other." Dodson testified he believed the truck was
rigged against him so as to make the load of concrete
wet at the time he would have delivered it. Dodson
called Kendrick on March 29, 1982, and told him that he
21 Kendrick stated he received a call from Respondent ' s president,
Norris, the following morning in which Norris told him that he wanted
him to draw up a paper on Dodson Kendrick testified he prepared a rep-
rimand for Dodson and called him into the office and showed it to him
He testified Dodson declined to sign it (G.C Exh 11)
22 Kendrick corroborated Dodson 's testimony that they left Respond-
ent's facility and talked to Johnson about whether he had been harassed
and Johnson stated, "No , that all three of the drivers were helpful and
nobody had harassed him whatsoever "
22 Kendrick corroborated Dodson's testimony that he had indicated he
probably would quit and go back to the Board , that he could not take the
harassment any longer Kendrick also acknowledged he told Dodson he
was getting the same treatment by trying to stay between Dodson and
Norris, and he would probably quit also
24 Kendrick confirmed that after he and Dodson returned to the plant
from visiting with Johnson , he instructed Dodson to take a delivery of
concrete in driver George Smith 's truck to a location where Ed and Will
Hemphill needed concrete Kendrick testified Dodson radioed back and
said that someone had turned the water valve on the truck
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would not be coming back to work until things were
straightened out because he could not take it anymore.25
'Plant Manager Kendrick corroborated the testimony
of Dodson with respect to his returning to work and the
events at work to include the fact that Dodson was sent
home while other drivers remained on the job.
Haywood Johnson testified that he was the superin-
tendent of Bass Construction Company and had been for
about 2 years. Johnson testified he had received concrete
from Respondent on various occasions , and that Dodson
had delivered concrete over a hundred times to sites he
had been involved in, and he had never complained
about Dodson or the concrete Dodson delivered for him.
Johnson testified Dodson delivered concrete to the
worksite he was involved at in March 1982, and he had
no complaints ' about it, nor did he register any com-
plaints with Respondent's _president, Norris, about Dod-
son's delivery in March 1982. Johnson corroborated the
testimony of Kendrick and Dodson that they had met
with him regarding whether he had complained about
being harassed. Johnson stated he had not complained in
any manner.
Respondent's president, Norris, testified he did not
place any telephone call to Tony Kendrick on March 25,
1982, concerning any problem Dodson may have had at
Bass Construction Company. Norris testified he received
a call from Kendrick after Dodson had made the deliv-
ery to Bass Construction Company and in the call Ken-
drick told him Dodson had harassed Haywood Johnson,
Norris testified he told Kendrick that if that was the
case, and he was sure about it, he should write Dodson
up and place it in his employment file. Norris stated he
received a call from Kendrick on March 29, 1982, telling
him that he had written Dodson up, but Dodson did not
sign it . Norris testified he told Kendrick to place it in
Dodson's file that he had done all he could do.
I credit the testimony of Dodson regarding the events
surrounding his return to work on March 15, 1982, and
his employment thereafter. Dodson's testimony in essen-
tial and relevant parts was substantiated and corroborat-
ed by Plant Manager Kendrick and Bass Construction
Company Superintendent Johnson. I discredit Norris'
testimony that it was Kendrick who called him regarding
the alleged harassment problem at Bass Construction
Company. The record evidence as a whole, and Norris'
demeanor on the stand, persuade me that he was misstat-
ing the truth when he testified it was Kendrick who
called him about the harassment problem.
The evidence overwhelmingly indicates that the warn-
ing issued to Alvin Dodson on March 26, 1982, was for
an alleged act of harassment that never occurred. I credit
Dodson's testimony that he did not in any manner harass
Bass Construction Company Superintendent Johnson.
Dodson's testimony in this respect was corroborated by
Kendrick and Johnson. Johnson clearly stated he did not
call anyone at Respondent to complain about the con-
crete delivered to him in March 1982, nor was he in fact
25 Kendrick testified Dodson did not appear for work the following
Monday so he called Norris . Norris instructed hun to write up a repn-
mand for Dodson. Kendrick testified he wrote a reprimand on March 29,
1982, for Dodson because he did not report for work.
harassed by any driver of Respondent making delivery to
the Bass Construction site. Respondent was fully aware
of the fact that the disciplinary warning given to Dodson
was specious and without merit. I therefore conclude
and find that the. written warning issued to Dodson on or,
about March 26, 1982, was issued to him because he had
filed an unfair labor practice charge in Case 11-CA-9735
and, as such, Respondent's conduct violated Section
8(a)(4) and (1) of the Act.
The issue of whether the second warning given to
Dodson, based on his failure to report to work on March
29, 1982, constitutes a violation of the Act is inextricably
intertwined with whether Respondent constructively dis-
charged Dodson in violation of Section 8(a)(4) and (1) of
the Act.
The Board in Valley West Welding Co., 265 NLRB 597
(1982), set forth the elements of a constructive discharge
and did so by quoting from, Crystal Princeton Refining
Co., 222 NLRB 1068 (1976). The Board in Valley quoting
from Princeton stated:
There are two elements which must be proven to
establish a "constructive discharge." First, the bur-
dens imposed upon the employee must cause, and
be intended to cause, a change in his working con-
ditions so difficult or unpleasant as to force him to
resign. Second, it must be shown that those burdens
were imposed because of the employees union ac-
tivities. [Fn. omitted.]
In looking to the facts with respect to whether
changes were imposed on Dodson to cause him to resign
his job, it is undisputed that Respondent established a
new classification system for its employees. I am per-
suaded, based on the credited testimony of Plant Manag-
er Kendrick, that a new disciplinary system was also es-
tablished and that both the new classification of employ-
ees and the new system of discipline arose out of the fact
Respondent had to return Alvin Dodson to its employ-
ment in settlement of the unfair labor practice allegations
of Case 11-CA-9735. There had never, previous to Dod-
son's return to work in March 1982, been an employee
classification known as truckdriver only. I credit Plant
Manager Kendrick's testimony that Respondent's presi-
dent, Norris, told him the' classification system was
brought about to "starve" Dodson out of his employ-
ment . Further, the record evidence clearly indicates
Dodson was given the "sorriest" truck Respondent had
after he returned to work. Norris instructed Kendrick to
give Dodson the sorriest truck he had even though it
might be one with bad steering and bad brakes. Plant
Manager Kendrick was also instructed by Norris to
closely scrutinize Dodson's attendance and to write him
up pursuant to the new disciplinary system for the slight-
est infraction of Respondent's rules.
I am persuaded that Dodson's quitting was provoked
by Respondent and consistent with the testimony of
Kendrick, the result was plainly foreseeable. It is without
contradiction that President Norris was unhappy with
the prospect of Dodson being returned to employment
with 'Respondent. I am persuaded, and the evidence
clearly indicates, that Norris took the action he did be-
NORRIS CONCRETE MATERIALS 305
cause Dodson had filed an earlier charge with the Board.
Norris had warned employees that anyone who helped
Alvin Dodson would find themselves looking for a job.
Norris created a new classification system for his em-
ployees and assigned a "truckdriver only" status to
Dodson for the specific purpose of attempting to starve
Dodson out of his employment. On the very first day of
Dodson's return to work pursuant to the settlement in
Case 11-CA-9735, he was immediately laid off even
though other drivers remained at work and notwith-
standing the fact the settlement agreement indicated
Norris would be the last truckdriver to be sent home in
the event of a layoff. As discussed supra, Norris instruct-
ed that a reprimand be given Dodson for an alleged inci-
dent that in fact never occurred. I am fully convinced
that Respondent took the action it did against Dodson
because it was disturbed that he had gone to the Board
in Case 11-CA-9735, and in intended by its actions to
frustrate the settlement agreement it that case and to de-
liberately bring about conditions that would cause, and
did in fact cause, Dodson to quit his employment with
Respondent. I find Respondent by its conduct, caused
Dodson to quit his employment and, as such, it violated
Section 8(a)(4) and (1) of the Act. See Heck's Properties,
264 NLRB 501 fn. 2 and JD fn. 8 (1982). I likewise find
that the reprimand given Dodson because he did not
show for work after he had quit also constitutes a viola-
tion of Section 8(a)(4) and (1) of the Act. I am persuaded
by the findings and conclusions outlined above that the
General Counsel established a prima facie showing that
Dodson was forced to quit his employment because of
his protected conduct. I conclude that the reasons of-
fered by Respondent for its actions were pretextual and,
as such, I find Respondent has totally failed in its effort
to demonstrate that the same action would have been
taken against Dodson even in the absence of the protect-
ed conduct. There was clearly only one genuine reason
for the constructive discharge of Dodson, and that
reason was unlawful.
CONCLUSIONS OF LAW
1. Norris Concrete Materials, Inc. is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Respondent did not violate Section 8(a)(1) of the
Act when it issued an unsatisfactory job recommendation
for a former employee about September 1, 1980, because
of the proscriptions set forth in Section 10(b) of the Act.
3. Respondent did not violate Section 8(a)(4) and (1)
of the Act when it about December 19, 1980, discharged
its employee Clarence Alvin Dodson inasmuch as such a
finding is precluded by Section 10(b) of the Act.
4. Respondent violated Section 8(a)(1) of the Act
when its president, William Norris, about March 8, 1982,
threatened employees with discharge if they testified at
an unfair labor practice hearing before the National
Labor Relations Board.
5. Respondent has engaged in, and is engaging in,
unfair labor practices within the meaning of Section
8(a)(4) and (1) of the Act by issuing about March 26 and
29, 1982, written warnings to its employee Clarence
Alvin Dodson.
6. Respondent has engaged in, and is engaging in,
unfair labor practices within the meaning of Section
8(a)(4) and (1) of the Act by causing the discharge of its
employee Clarence Alvin Dodson about March 26, 1982,
and thereafter failing and refusing to reinstate him.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
8. The General Counsel has not established by prepon-
derance of evidence that Respondent has violated the
Act as alleged in the complaint except to the extent
found above.
THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices, I will recommend that it be or-
dered to cease and desist therefrom and take certain af-
firmative action designed to effectuate the purposes of
the Act.
It having been found that Respondent reprimanded
and caused the discharge of its employee Clarence Alvin
Dodson, I will recommend that Respondent be ordered
to offer Dodson full reinstatement to his former position
or substantially equivalent position of employment with-
out prejudice to his seniority or other rights, and make
him whole for any loss of pay that he may have suffered
by reason of the discrimination against him with interest.
Backpay will be computed in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950). Interest will be
computed as prescribed in Florida Steel Corp., 231 NLRB
651 (1977) See generally Isis Plumbing Co., 138 NLRB
716 (1962). Further, it is recommended that Respondent
remove from its files any reference to the reprimands of
March 26 and 29, 1982, or to the March 26, 1982 dis-
charge of Clarence Alvin Dodson, and to notify him in
writing that this has been done, and that evidence of the
unlawful reprimands and discharge will not be used as a
basis for future personnel actions against him. See Ster-
ling Sugars, 261 NLRB 472 (1982). It is recommended
that Respondent post a notice to employees.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed28
ORDER
The Respondent, Norris Concrete Materials, Inc.,
Pisgah Forest, North Carolina, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Threatening its employees with discharge if they
testify at unfair labor practice hearings before the Na-
tional Labor Relations Board.
(b) Discharging employees or otherwise discriminating
against them in any manner with respect to their tenure
of employment or any terms or conditions of employ-
26 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions , and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment because they have filed charges in any unfair labor
practice case before the National Labor Relations Board.
(c') In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.,
2. Take the following affirmative action necessary to
effectuate the purposes of the Act.
(a) Offer Clarence Alvin Dodson immediate and full
reinstatement to his former job or, if his former job no
longer exists, to a substantially equivalent position of em-
ployment without prejudice to his seniority and other
rights and privileges previously enjoyed, and make him
whole for any loss of earnings he may have suffered by
reason of the discrimination against him in the manner
set forth in the remedy section.
(b) Remove from its files any reference to the repri-
mands and discharge of employee Clarence Alvin
Dodson and notify him in writing that this has been
done, and that the evidence of the unlawful reprimands
and discharge will not be used as the basis for future per-
sonnel actions against him.
(c) Preserve and, on request, make, available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its Pisgah Forest, North Carolina facility
copies of the attached notice marked "Appendix."27
Copies of the notice, on forms provided by the Regional
Director for Region 11, after being signed by the Re-
spondent's authorized representative, will be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps will be taken by the Respond-,
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
27 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "