Pinellas Paving Co., Inc.

National Labor Relations Board - Board Decisions

Aug 16, 1961

132 N.L.R.B. 1023 (N.L.R.B. 1961)

PINELLAS PAVING COMPANY, INC. 1023
embodied in Lahey's notice of February 5, 1960, should be rescinded insofar as it
applies to nonworking time, with the assurance that the right of employees to engage
in such activity on plant premises during nonworking time will be respected.
The recommendation will also include the customary posting of notices containing
the appropriate assurance that Respondent will respect the employees' rights under the
Act and remedy the found violations thereof. The role of the Company's director
of personnel in Cleveland, revealed by Relyea to be the architect of the Division's
strategy, which culminated in the violations found, cogently indicates a need for the
main office to join in the assurances in the posted notice. A remedy is always adapted
to the specific situation found 43 The need for the main office's joining in the notice,
which stems from the evidence of its direct involvement in the events here in issue, is
underscored by the frequent reminders to the employees that there is where the
ultimate decision concerning their welfare rests. Thus, they are told that a grievance
can be taken up beyond management of the Division to Cleveland, that the "annual
wage survey," discussed at joint meetings of management and the Association, was
made by the main office in Cleveland, and as Lahey reminded them (supra, foot-
note 21), the main office can curtail the employment opportunities within the Division
by reallocating its work to other divisions. All of these factors indicate that if the
assurances are to have genuine meaning to the employees, they come not only from
the Division, but from the source of control within the Company over the Division's
actions and policies.
On the findings made, and on the entire record, there are hereby made the following:
CONCLUSIONS OF LAW
1. By dominating and interfering with the administration of Dage Television Divi-
sion, and contributing financial and other support thereto, Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8(a) (2) of
the Act.
2. By discharging Rachel Treece because of her activity in support of the Union,
Respondent discriminated in respect to her hire and tenure for the purpose of dis-
couraging membership in said Union, thereby engaging in an unfair labor practice
within the meaning of Section 8(a) (3) of the Act.
3. By the above and by interfering with, restraining, and coercing its employees in
the exercise of their rights under Section 7, in the other respects heretofore specifically
found, Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
4. The said unfair labor practices affect commerce within the meaning of Section
2(6) and (7) of the Act.
[Recommendations omitted from publication.]
' Phelps Dodge Corporation v. N.L.R B, 313 U.S. 177, 199; N.L R B. v. Brown-Dunkin
Company, Inc., 287 F. 2d 17 (C.A. 10).
Pinellas Paving Company, Inc. and Kenneth B. Marquis, Herbert
T. Wilde, and Joseph N. Willoughby and International Hod
Carriers', Building and Common Laborers' Union of America,
AFL-CIO, Local Union No. 512.1 Cases Nos. 12-CA-1366-1,
12-CA-1366-2, 13-CA-1366-3, and 12-CA-1433. August 16, 1961
DECISION AND ORDER
On December 6, 1960, Trial Examiner David London issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices violative of Section 8 (a) (5) and (1) of the Act and recom
1 Herein called the Union.
132 NLRB No. 85.
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mending that it cease and desist therefrom and take certain affirmative
action, as set forth in the Intermediate Report attached hereto. He
also found that the Respondent had not engaged in other alleged un-
fair labor practices violative of Section 8 (a) (3) of the Act and recom-
mending that the complaint be dismissed insofar as it alleged such
unfair labor practices. Thereafter, the General Counsel and the Re-
spondent filed exceptions to the Intermediate Report and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Members Leedom, Fanning, and Brown].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and briefs, and the entire record in the
cases, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.2
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Pinellas Paving
Company, Inc., St. Petersburg, Florida, its officers, agents, successors,
and assigns, shall :
1. Cease and desist from :
(a) Interrogating its employees concerning their membership in,
or affiliation or sympathy with, International Hod Carriers', Building
and Common Laborers' Union of America, AFL-CIO, Local Union
No. 512, or any other labor organization, in a manner constituting
interference, restraint, or coercion in violation of Section 8 (a) (1) of
the Act.'
(b) Threatening employees with economic reprisals to discourage
membership in, or activity on behalf of, any labor organization.
(c) Refusing to bargain with the Union as the collective-bargaining
representative of the employees in the following appropriate unit : All
truckdrivers, mechanics, operators, helpers, and all production and
maintenance employees at its St. Petersburg, Florida, operation, ex-
2 While Member Brown agrees that Respondent violated Section 8 ( a) (5) of the Act, he
considers the bargaining order appropriate in the circumstances of this case whether or
not such separate 8(a)(5) finding also be made See D. H. Holmes Company, Ltd. V.
N.L RB.. 179 F. 2d 876,1879-880 (C A. 5) ; N.L R.B. v. Joe and Make Caldarera, d/b/a Fal-
staff Distributing Company, 209 F. 2d 265, 268 (C.A. 8), enfg. as modified 104 NLRB 760,
769. Cf. Editorial "El Imparcial" Inc v. N L.R B , 278 F. 2d 184, 187 (C.A. 1) ; Psasecki
Aircraft Corporation v. N L R B., 280 F . 2d 575, 691 ( C.A. 3), cert. denied 364 U S 933
S The Trial Examiner's omission of such a provision in his recommendations appears to
have been inadvertent as he found that the Respondent engaged in unlawful interroga-
tion and made provision for remedying this unfair labor practice.
PINELLAS PAVING COMPANY, INC. 1025
elusive of office clerical employees, dispatchers, guards, and super-
visors as defined in the Act.
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist the above-named or any other
labor organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection as
guaranteed in Section 7 of the Act, or to refrain from any or all such
activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with the Union as the ex-
clusive representative of all the employees in the above-described
appropriate unit, and embody any understanding reached in a signed
agreement.
(b) Post at its place of business in St. Petersburg, Florida, copies
of the notice attached hereto marked "Appendix." 4 Copies of said
notice, to be furnished by the Regional Director for the Twelfth Re-
gion, shall, after being duly signed by an authorized representative of
the Respondent, be posted by the Respondent immediately upon receipt
thereof, and be maintained by it for a period of 60 consecutive days
thereafter, in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(c) Notify the Regional Director for the Twelfth Region, in writ-
ing, within 10 days from the date of this Order, what steps it has taken
to comply herewith.
IT IS FURTIIER ORDERED that the complaint be, and, it hereby is, dis-
missed insofar as it alleges that the Respondent violated Section
8(a)(3) of the Act.
MEMBER LEEDOM, dissenting in part :
I cannot agree with the Trial Examiner's finding, which my col-
leagues adopt, that "by ignoring and rejecting the Union's request on
February 8 and thereafter to begin bargaining negotiations, Respond-
ent refused to bargain with the Union in violation of its statutory
obligation to do so, and thereby violated Section 8 (a) (5) and (1) of
the Act." To the contrary, I would find that the Respondent did not
ignore or reject the Union's bargaining request.
A In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order "
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The relevant facts are as follows. On February 8, 1960, the Union
telegraphed the Respondent that the Union represented a majority
of the Respondent's employees and asked to commence bargaining
negotiations immediately. No answer having been received, on Thurs-
day, February 11, 1960, the Union's business agent, Guthrie, tele-
phoned the Respondent's general manager, Hayes, and requested bar-
gaining. Acknowledging receipt of the Union's telegram, Hayes
stated that he wanted to obtain legal counsel and that counsel "would
contact (Guthrie) and they would get together." Guthrie expressed
approval and stated that he would "be looking for the call." Neither
Hayes nor counsel for the Respondent called, but on Saturday morn-
ing, February 13, 1960, acting on the instructions of Hayes, who was
leaving town, the Respondent's dispatcher, Beck, telephoned Guthrie,
and notified him that Hayes could be reached in Chicago at the Sher-
aton Hotel after 4 p.m. that day.' Guthrie replied that there was no
use in calling Hayes in Chicago, and informed Beck that Guthrie was
"going to go ahead with the petition." Neither party thereafter made
any effort to communicate with the other with respect to bargaining.
On February 15, 1960, the Union filed a petition for an election. The
Board directed an election on April 11, 1960, but no election was held
because the Union filed an 8 (a) (5) charge on April 18, 1960.
On these facts, I would find that when the Union first requested
bargaining the Respondent evinced willingness to bargain, as evi-
denced by its assurance that it would retain a lawyer who would
communicate with the Union, and its notification to the Union to
communicate with Hayes at a specific,time and place in the meantime.
The Union, however, apparently became impatient only 5 days after
its initial request and, as it advised the Respondent, abandoned its
efforts to bargain on the strength of its authorization cards, and
changed to an alternate course, e.g., to obtain bargaining on the
strength of a Board certification. The Union having filed the repre-
sentation petition, the Respondent could reasonably conclude that,
until the representation question raised would be resolved by the
Board, it was unnecessary for the Respondent to communicate further
with the Union in regard to its bargaining request.' The Union's
precipitate and abrupt breaking off of negotiations occurred before the
Respondent had a reasonable opportunity to bargain in good faith as
required by the Act. Had the Union been less impetuous and allowed
its bargaining relations, which had thus far been satisfactory, to
mature in a normal manner free of undue haste, the Respondent might
have bargained in good faith with the Union.
It is the view of the Trial Examiner and my colleagues that the
Respondent's conduct, in light of its unfair labor practices, which
a The Respondent 's plant is located in St. Petersburg , Florida.
6 See True Temper Corporation , 127 NLRB 839 , 848. I note in this connection there is
no evidence the Respondent had any knowledge as to the Union's majority status.
PINELLAS PAVING COMPANY, INC. 1027
they have found and I agree violated Section 8(a) (1), demonstrates,
that the Respondent never intended to bargain with the Union. I do
not agree. The Board has held that the scheme of the Act does not
contemplate that a violation of Section 8 (a) (1) should automatically
constitute a violation of Section 8 (a) (5).1 And I cannot infer from
the 8 (a) (1) activity, none of which occurred after the Union filed its
representation petition, that the Respondent did not intend to bargain,
in good faith. As the Respondent did not decline to treat with the
Union, this is a case where the Respondent's good faith was not tested,,
and thus the 8 (a) (5) allegation must be dismissed.
7 The Walmae Company ( Radio Station KMAC & FM Station KISS ), 106 NLRB
1355, 1356.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT interrogate our employees concerning their mem-
bership in, or affiliation or sympathy with, International Hod
Carriers', Building and Common Laborers' Union of America,
AFL-CIO, Local Union No. 512, or any other labor organization,
in a manner constituting interference, restraint, or coercion in
violation of Section 8 (a) (1) of the Act.
WE WILL bargain collectively, upon request, with International
Hod Carriers', Building and Common Laborers' Union of
America, AFL-CIO, Local Union No. 512, as the exclusive rep-
resentative of employees in the bargaining unit described herein,
with respect to wages, rates of pay, hours of employment, or
other terms or conditions of employment, and, if an understand-
ing is reached, embody such understanding in a signed agreement.
The bargaining unit is :
All truckdrivers, mechanics, operators, helpers, and all pro-
duction and maintenance employees at our St. Petersburg,.
Florida, operation, exclusive of office clerical employees, dis-
patchers, guards, and supervisors as defined in the Act.
WE WILL NOT threaten our employees with discharge or other
economic reprisals for their union membership or activities.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist the,
above-named or any other labor organization, to bargain collec-
614913-62-vol. 132-66
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tively through representatives of their own choosing, to engage in
concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any and all
such activities.
All our employees are free to become, remain, or refrain from be-
•eoming or remaining members of International Hod Carriers', Build-
ing and Common Laborers' Union of America, AFL-CIO, Local
Union No. 512, or any other labor organization.
PINELLAS PAVING COMPANY, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges duly filed, the General Counsel of the National Labor Relations
Board caused to be issued an amended consolidated complaint against Pinellas Pav-
ing Company , Inc., herein referred to as Respondent , alleging that it had engaged in
violations of Section 8(a)(1), (3), and (5 ) of the National Labor Relations Act,
as amended , herein called the Act. In substance , the amended consolidated com-
plaint alleges that since on or about February 5, 1960, Respondent , by its supervisors
and agents , interrogated its employees concerning their union membership , activities,
and desires, and threatened them with discharge or other reprisals if they became or
remained members of the Union , or gave any assistance or support to it. The
,amended complaint also charges that between February 19 and April 20, 1960, Re-
spondent discharged the seven employees ,' and that between February 5 and 11,
1960, it provided four named employees with less employment than they normally
would have received , and assigned more arduous , or less agreeable , job tasks to
three named employees , all because said employees joined or assisted the Union,
.or engaged in other union activity or concerted activities for the purpose of collective
bargaining or other mutual aid or protection . The amended complaint further
alleges that Respondent engaged in all of the conduct aforementioned in order to
undermine the Union and destroy its majority, and that by doing so, it failed and
refused to bargain with the Union as the collective-bargaining representative of
Respondent 's employees in an appropriate unit. Respondent , by its amended answer,
duly filed, denied the commission of any unfair labor practice.
Pursuant to due notice, a hearing on the above pleadings was held before the duly
designated Trial Examiner at St. Petersburg , Florida, May 23 through 25, 1960. The
General Counsel and Respondent were represented by counsel , participated in the
'hearing, and were afforded full opportunity to be heard , to examine and cross-
examine witnesses , to present oral argument , and to file briefs. Rulings on which
decision was reserved during the course of the hearing are disposed of in accordance
with the findings and conclusions that follow ? Since the close of the hearing, briefs
have been received from the General Counsel and Respondent nand have been duly
considered.
Upon the entire record in the case , and from my observation of the witnesses, I
make the following:
i Kenneth B. Marquis, Herbert T. Wilde, Matthew Vann, Joseph N. Willoughby , Kenneth
Skinner, Robert Poston, and Earl Dees.
2 Following the close of the hearing, the parties submitted two stipulations, dated
June 3 and November 17, 1960, to make certain additions and corrections to Respondent's
Exhibit No 3-B. The stipulations are hereby approved , made a part of the record, and
the said exhibit is accordingly amended and corrected.
PINELLAS PAVING COMPANY, INC.
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
1029
During all times relevant herein Respondent was, and is, a corporation duly or-
ganized under the laws of the State of Florida engaged at St. Petersburg, Florida, in
the manufacture, sale, and distribution of concrete products and ready mixed con-
crete. During 1959, Respondent purchased, transferred, and delivered to its plant
goods and materials valued in excess of $100,000 which were transported to said
plant and received from other enterprises located in the State of Florida, each of
which enterprises had received the said goods and materials directly from States
other than the State of Florida. Respondent concedes, and I find, that at all times
material herein Respondent was and is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Hod Carriers', Building and Common Laborers' Union of America,
AFL-CIO, Local Union No. 512, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
IH. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
The Union began its drive to organize Respondent's nonsupervisory and nonclerical
employees about February 1, 1960. At 5:30 p.m. on Friday, February 5, James Het-
land, Respondent's plant superintendent, called a meeting of all the drivers. Accord-
ing to the composite testimony of employees Wilde, Marquis, Willoughby, and Brad-
ley, Hetland said that it was his job as plant superintendent to prevent the Union
from coming in, to stop it any way he could, and that if he heard or found out that
anyone signed a union card or even mentioned the Union, he would be discharged
immediately.
Hetland denied that he made the remarks attributed to him above and was cor-
roborated in his denial by three employees and a foreman, all of them still in Re-
spondent's employment. Hetland testified that he called the meeting 3 because "there
had been an awful lot of employees congregated in little bunches, talking. In the be-
ginning, [he] didn't think too much of it, but then it got almost to a ridiculous state,
where they would even drop their work in order to carry on a conversation. .
I find it difficult to understand how truckdrivers could be guilty of dropping their
work while engaged in the performance of their duties-the driving of trucks. While
it is true that the drivers were also required, but only when time was available while
waiting to go out on deliveries, to help keep the yard and adjoining railroad tracks
clean and to build forms in which excess concrete could be dumped in the yard,
except for Hetland's generalized observation that drivers, the only employees called
to the meeting, had "dropped their work in order to carry on their conversation," no
direct or specific evidence of such conduct was offered, or that any employee had
ever been criticized or reprimanded for such conduct.
On the entire record, and my observation of the demeanor of witnesses as they
testified, I am convinced that Hetland testified falsely as to the reason he called the
meeting. Instead, I find that his sole purpose in calling the meeting was to discourage
the Union's organization drive,4 and that he made the threats attributed to him by
Wilde, Marquis, Willoughby, and Bradley.
I further find that in mid-February,5 Hetland asked employee Holloway if he
"knew anything about this union" and told him that anybody "talking about joining
the Union . . . would be fired." I also find that on or about February 10, Hetland
told employee Bradley that if he found out who attended the union meeting of the
previous Sunday "he would get rid of them if it took six months to do it," and that
he made a similar threat to employee Elijah Daniel. Hetland admitted that he had
asked employee William Raybon whether he had signed a union card and did not
deny the latter's testimony that Hetland "was trying to find out . . . who all had
signed."
I also find that on February 8 or 9, Hetland asked employee Vann whether he
had attended the union meeting of the Sunday before, and about a week later asked
him whether he had signed a union card.
8 Hetland testified that the meeting took place Monday, February 8.
'Hetland testified he became aware of union activity In the plant in the early part of
February from sources which he could not recall
5 Unless otherwise specified , all references to dates herein are to the year 1960.
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I conclude that by interrogating its employees concerning their union activities,
and by threatening them with discharge if they engaged in such activities , Respondent
violated Section 8 (a) (1) of the Act.
B. The alleged discrimination
1. Joseph N. Willoughby
Willoughby was employed by Respondent as a truckdriver from January 1959 until.
he was discharged on April 18, 1960. After taking part in the union meeting on
February 7, Willoughby was asked by Hetland whether he had attended that meet-
ing. When Willoughby stated that he did not know what Hetland was talking
about, the latter said that he believed that Willoughby did know, and added: "They
had a meeting yesterday; if anyone sticks out their neck I will chop it off for them
personally. And then, if I find out who did attend the meeting, if it takes me 6
months to do it, I will get rid of them."
Commencing about February 10, Willoughby began wearing a union button.
Following Marquis' termination on February 19, Willoughby was elected to succeed
him as shop steward and thereafter wore, and prominently displayed, his shop
steward button.
About noon of February 17, Willoughby fell and remained asleep for about li to
2 hours in the cab of another driver then parked in Respondent's yard. Though the
record fails to disclose that his services were demanded or required during that period,
Hetland summoned him to the dispatcher's office and informed him that he would
be suspended for 1 week for that offense. Willoughby complained that a suspension
for so long a period would not enable him to "make a living" for his wife and children,
and suggested that it be reduced to a loss of pay for 2 hours, or 1 day. Hetland finally
reduced the suspension to 3 days.
On February 25, Willoughby requested and was granted leave for the afternoon so
that he could visit a finance company. When he reported for work at 7 a.m., the
following day, Hetland asked him whether he had any objections if Hetland made a
call to the finance company. Willoughby asked why the call was to be made and Het-
land stated it was to find out whether he had been at that office. Willoughby answered
that in view of the fact that he had been granted time off, and was not on the payroll
for the previous afternoon, he did not think it was any of Hetland's business where he
went and that he did not have to answer to the Company about anything he did.
A short time later in the day, Hetland told Willoughby to report to J. W. Hayes,
Respondent's general manager and vice president, who wanted to know where
he had been on the previous afternoon. Willoughby thereupon pulled from his
pocket a copy of the unfair labor practice charge he had filed with the Board in its
Regional Office at Tampa 6 and told Hetland that if an explanation of his whereabouts
was wanted, he could read that charge. Hetland and Willoughby went to Hayes'
office where a conversation similar to the one between Hetland and Willoughby
reported immediately above was engaged in between Willoughby and Hayes. Wil-
loughby also offered to let Hayes read the unfair labor practice charge but Hayes
declined the offer. Instead, he suspended Willoughby for the remainder of the day.
On Saturday, March 11, Willoughby missed his morning ride and failed to report
for work as scheduled for which he received a suspension of 2 days. He was also
warned, in writing, that a repetition of this, or other misconduct, would result in
immediate dismissal.
On Monday, April 11, Willoughby told Hetland that that day would be the last
workday for him. Hetland asked why he was quitting and Willoughby answered:
"You know why, making 15, 20 hours, 25 hours a week; I can't live on it." On Friday
April 15, when he called for and received his final pay, Willoughby signed a state-
ment certifying that he had resigned "because of shortage of time."
Though the complaint alleges that the Respondent "discharged" Willoughby, the
proof is conclusive that Willoughby quit his employment. The General Counsel's
theory in connection with Willoughby's termination, as expounded in his brief, is
that he was "forced to quit on April 15," thereby converting the quit into a construc-
tive discharge. The rationale underlying the doctrine of constructive discharge is
that "an employer cannot avoid his responsibilities under the Act by creating a
situation so unbearable to an employee . . . that the employee relinquishes his,
position rather than continue in such a situation." 7
6 Willoughby's charge in Case No. 12-CA-136G-3 was signed by him on February 25,
1960.
4 Chicago Apparatus Company, 12 NLRB 1002, 1020; Ideal Baking Company, Inc., 123
NLRB 1799, 1804; Coats & Clark, Inc. (Clarkdale Plant), 113 NLRB 237. -
PINELLAS PAVING COMPANY, INC. 1031
Here, however, the "unbearable" situation assigned by Willoughby which allegedly
forced him to quit, that he was given only 15, 20, or 25 hours a week, is without
.evidentiary support. Insofar as the record discloses, during the period commencing
December 17, 1959, and continuing to the date of his termination on April 11, 1960,
Willoughby had only 2 weekly periods when he worked less than 25 hours but in both
of which he was off for 3 days.8 During the last 2 complete weeks of his employment,
he worked 401/2 and 43 hours, respectively. Indeed, during the last complete week
of his employment, the week ending April 6,. 1960, Willoughby worked more hours
than 4 of the corps of 10 drivers 9 and as many hours as 1 other driver. And, when
he quit on April 11, he had worked 241/2 hours but had 2 days remaining until the
-expiration of the current weekly pay period.
Willoughby did not feel compelled to quit for the reason assigned by him when he
was working the smaller number of hours, but chose to terminate his employment
when the hourly curve of his employment was rising substantially. On the entire
record, I find that Respondent did not reduce Willoughby's hours to such an extent
that it became unbearable and caused him to relinquish his position rather than con-
tinue in such a situation. Instead, I find that he voluntarily quit his job for reasons
other than those assigned by him, or those alleged in the complaint.
I also find without merit the allegations that Willoughby, Wilde, and Vann were
discriminatorily assigned more arduous or less agreeable job tasks because of their
union activities. This contention, the General Counsel argues in his brief, is sus-
tained by the testimony of the alleged discriminatees that they were forced to clean up
around the railroad tracks, "a job they had never been assigned before." Contrary
to this contention, I find that drivers were always required to perform this work and
did so long before the union organization campaign began. Though the cleanup work
was different from that to which the drivers devoted most of their time, I find it
was not so arduous as to create an unreasonable hardship, though concededly it might
be less agreeable than driving a truck. A factor more relevant, however, is that it
was performed within the hours for which these men were being paid, and during
which they would otherwise sit idly by waiting to make another delivery. I cannot
conclude that Respondent, to avoid a charge of discrimination under the Act, was
required to pay the drivers while they were idle though there was other work to do
which they could reasonably be expected to perform.
2. Kenneth B. Marquis
Marquis was employed by Respondent as a concrete block driver from September
1959 until he was discharged on February 19, 1960. He signed a union authorization
card on February 5, solicited union membership from other employees, and on or
about February 5 or 6 was designated as shop steward. Respondent contends he
was discharged for "insubordinate, disrespectful, belligerent and abusive conduct."
On or about February 8, Hetland sought to engage employee Herbert Wilde in a
conversation pertaining to the latter's unexplained absence from work the day before.
Marquis came over between the two men, and according to his own testimony,
"shoved [his steward's] badge in [Hetland's] face and said that [Hetland] had to
talk to [him], and not to Wilde." Several hours later, after Marquis had already
punched out for the day, he shouted to Supervisor Hetland who was then in the dis-
patcher's office, that he, Hetland, "had been telling [him] when he (Marquis) was
going to work and when he was going home, and [now, he] was going to tell him
when [he] was going home, then, right then." When Hetland asked whether he
was sick, Marquis answered: "Yes, just say I am sick."
During the same afternoon, Marquis reappeared on Respondent' s premises and
engaged in an angry conversation with S. H. Batton , shop foreman, during the course
of which threats of bodily assaults were exchanged between the two men. Shortly
thereafter, Marquis went to General Manager Hayes' office to see Hayes about the
suspension of Willoughby. He asked Hayes' secretary, Mrs. Dusenbury, if Hayes
was there and was told that he was not. Marquis, instead of leaving, began deriding
Hayes as being unfair to, and inconsiderate of, his employees. Wilde, who was
present with Marquis, suggested the men leave and though Wilde left, Marquis de-
clined to do so. Wilde, accompanied by Willoughby, returned a few minutes later
and both men asked Marquis to leave because another employee was waiting for them
to go home. Although Wilde and Willoughby left the office immediately, Marquis
remained 5 to 10 minutes longer. During their conversation, Mrs. Dusenbury
8 One of these periods of 3 days without work was occasioned by the suspension for
falling asleep in a truck as heretofore detailed.
One of these four drivers, however , was off 1 day during the week.
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
smelled alcohol on Marquis' breath,'° and twice asked him to leave the office before
he finally departed.
When Hayes returned to his office on the morning of April 19, Hetland, Batton, and
Mrs. Dusenbury, reported their experiences with Marquis as detailed above. Hayes
called Marquis to his office, recounted the complaints made against him by the super-
visors and secretary, and discharged him.
Consideration of the entire record, together with my observation of the demeanor
of the witnesses involved as they testified, compels the conclusion that the General
Counsel has not established by a preponderance of the evidence that Marquis was dis-
charged for the reasons alleged in the complaint. Marquis impressed me as a man
who, because he had been designated as shop steward, could, colloquially speaking,
"throw his weight around," and who thought that he was by reason of his status as
shop steward immune to discipline for insubordination or misconduct. In this latter
viewpoint he was, of course, mistaken. Union activity of any kind, including status as
a shop steward, grants no such immunity. "Respondent may well have welcomed
the opportunity of getting rid of [Marquis], but neither his activities, nor the Re-
spondent's attitude gave him privileges greater than those of other employees."
Lloyd A. Fry Roofing Company, 85 NLRB 1222. I find that Marquis was discharged
for his insubordination and misconduct detailed above.
3. Herbert Wilde
Wilde was employed by Respondent as a truckdriver from mid-November 1959 to
April 19, 1960. He signed an application to join the Union early in February and
thereafter wore a union button, as did most of the other drivers.
When Wilde reported for work during the morning of Thursday, February 18,
after being absent from work the 3 preceding days due to illness, Hetland asked him
why he had not called in to report his absence. Wilde replied that his mother had
called Beck, the dispatcher, on 2 of these days and during the last conversation had
informed him that she was not sure whether he would report on the following day.
Hetland stated he knew nothing about it and told Wilde that if he had received at-
tention from a doctor to get a written statement to that effect.
Wilde went to the doctor's office and waited until 9:30 a.m. before the latter came
in. He received a statement certifying that he had received a checkup on February
15, and had been advised to stay home and rest on the following 2 days. Marquis
returned to Respondent's yard, the exact time not being disclosed, and presented the
doctor's statement to Hetland. Hetland asked him whether he had already punched
in and, upon receiving a negative reply, told him to "knock off" because it was then
"too late in the day to start out." Wilde entered no complaint and returned to his
home.
Wilde reported for work at 6:30 a.m. on the following day, February 19. Accord-
ing to his own testimony, he had a "few words" with Hetland but could not "recall
what they were" though he was pressed several times, both by the General Counsel
and the Respondent, to do so and ended the conversation by simply telling Hetland
that he was quitting. That afternoon, he picked up his check and signed a written
statement affirming that he had resigned his job.
As in the case of Willoughby, the complaint unequivocally alleges that Wilde was
discharged because of his union activities. Again, as in Willoughby's case, the record
establishes conclusively that Wilde quit. Here, however, insofar as the evidence
discloses, both at the time of the termination and during his testimony before the
Trial Examiner, Wilde failed to ascribe a reason for his quitting. Though the record
is in the state just described, it is the General Counsel's contention that Wilde was
constructively discharged because of "constant harassment and interrogation" to which
he was allegedly subjected, "plus the fact that [he] was suddenly assigned new duties
(that is, working on the railroad tracks) and plus the fact that [he] was sent home
from work on the slimmest of pretext." I find no merit in either contention.
Assuming what the record fails to disclose, i.e , that he had been subjected to
"constant harassment and interrogation," Wilde did not impress me as a man pos-
sessed of such sensitivity that be would quit his job on that account. Having already
found that the cleanup work around the railroad tracks was neither unreasonably
nor discriminatorily assigned to any of Respondent's drivers, there remains for con-
sideration the General Counsel's contention that Wilde was forced to quit because
he "was sent home from work on the slimmest of pretext."
In the absence of any suggestion to the contrary, this contention can have refer-
ence only to the events of April 18, when Wilde was sent home after returning with
to Marquis admitted he smelled of alcohol but attributed it to codine which he had
taken.
PINELLAS PAVING COMPANY, INC. 1039
the doctor's certificate aforementioned . Though Wilde testified that his doctor ar-
rived in his office at 9:30 a.m ., the record is silent both as to when Wilde left that
office and when he returned to Respondent 's yard and was sent home. On this.
meager record , and in view of the fact that his usual workday began at 6:30 or
6:45 a.m ., I cannot conclude that Wilde , who admittedly had missed work on four
or five occasions , was unjustifiably sent home on April 18.
On the entire record, I find that Wilde voluntarily quit his employment , and that
the General Counsel has not established by a preponderance of the evidence that
he was discharged , constructively or otherwise , for the reasons alleged in the com-
plaint.
4. Matthew F. Vann
Vann was employed by Respondent as a driver of ready mix concrete from the
fall of 1958 until he was laid off on April 28 , 1960. He attended the union meeting
of February 7, signed an application to join the Union , and was thereafter questioned
about both matters by Hetland as has heretofore been found . Two or three days,
after Willoughby 's termination , Vann became shop steward for the Union.
As a ready mix concrete driver, Vann was part of a team of such drivers whose
duty it was to keep a constant flow of concrete at the sites where the concrete was
to be poured . Any driver operating at a subnormal efficiency thereby upsets the tim-
ing of the operation and causes delay not only to the other drivers serving the same
site, but also to the contractor 's crew engaged at the site of the pour.
On or about March 1 , Hetland received a call from John Daniels of the Daniels-
Paving Company, informing him that he "preferred not to have Vann serve him,
he felt that it would cost him money to have a slow truck and slow driver serv-
icing him." A similar complaint and request was made of Beck by Foreman Cobb,
of the Daniels Firm. On several occasions , the last in about mid-April , Howard
Martin , foreman for the Blackburn Paving Company, one of Respondent 's biggest
ready mix customers , asked Beck not to "send Vann back again" because he was too
slow.
On April 28 , according to Vann 's own testimony , he was called to Hayes' office
and told that "due to the complaints they had out on the jobs of [his ] work, and due
to the business falling off, they was [sic ] going to have to lay [him] off ." He subse-
quently received a letter from Hayes informing him of his "insurance benefits and,
other things [pertaining to his] laid of} status."
Consideration of the entire record has failed to convince me that Vann was dis-
charged for the reasons alleged in the complaint . Instead, I find that in April 1960
Respondent suffered a substantial reduction in its ready mix concrete business
prompting a reduction in its staff of concrete drivers, and that it selected Vann for-
layoff because of the complaints from Daniels Paving Company and Blackburn
Paving Company described above. Thus, the record establishes that commencing
with the week ending April 2 , 1960, and continuing through the week ending April
30, 1960, the latter being the week during which Vann was laid off, Respondent's
ready mix concrete business dropped steadily from 490 cubic yards per week to
360 cubic yards per week. I further find that during the pay periods ending April 6
and 13, 1960, Respondent employed 10 concrete or ready mix drivers and that this
number was reduced to 7 during the period ending April 20 and kept thereat to the
time of the hearing herein.
Though Vann testified that only one other mixer driver had worked longer for
Respondent , no testimony was offered that seniority was ever recognized as a con-
trolling factor by Respondent in reducing its staff . Under all the circumstances
existing here, I find that Vann was selected for layoff on April 28 because of the
complaints received concerning him, and shall recommend that the allegations of
the complaint charging he was discharged because of his union activities be dismissed.
5. Earl Dees
Dees was employed by Respondent for about 21/2 years when he was discharged'
on April 20 , 1960. During the -last year of his employment , he was engaged as a
mechanic 's helper and "grease man," and it was his duty to keep Respondent's
mechanical equipment and trucks properly greased and fueled . Respondent not
only denies that Dees was discharged because of his union activities but contends
that he was discharged for neglect of duties.
Though Lam mindful that I previously have found Respondent guilty of violations
of Section 8(a)(1) of the Act, consideration of all the testimony herein compels
the conclusion that the General Counsel has not established by a preponderance of
the evidence that Dees was discharged because of union activities known to Respond-
ent. The only evidence of such activities by Dees is his testimony that since mid-
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
February he wore a union button "about the size of a quarter" on the belt of his
-trousers. That fact, when considered in light of the testimony that most of the
approximately 45 to 55 production and maintenance employees wore similar but-
tons, is not sufficient for me to draw the inference that he was discharged because
of his union activities. The burden of establishing that Dees was discharged for
that reason rests on the General Counsel and it has not been met herein.
Instead, I find that after being warned several times about his failure to properly
grease Respondent's equipment, he was discharged on April 20 for failure to grease
the rollers on a bulldozer. It will therefore be recommended that the allegations
pertaining to the alleged discriminatory discharge of Dees be dismissed.
6. Kenneth Skinner and Robert Poston
No evidence pertaining to the alleged discriminatory discharge of Skinner or
Poston having been offered, it will also be recommended that the allegations of
the complaint pertaining to these two employees be dismissed.
C. The refusal to bargain
On February 8, about a week after the Union began its organization campaign,
T. J. Guthrie, business agent for the Union, sent a telegram to Respondent reading
as follows:
Please be advised that this organization represents a majority of your em-
ployees. We desire commencing negotiations immediately. Myself or one
of my representatives will fone [sic] this day for an appointment. Please
advise time and place to commence negotiations.
T. J. GUTHRE, Business Agent,
Labors Local Union No. 512.
The General Counsel introduced evidence to establish that at the time this tele-
gram was sent Respondent had approximately 42 production and maintenance
,employees. Neither party offered into evidence Respondent's payroll for this period
so that the exact number of production and maintenance employees could be defi-
nitely established. Respondent contended itself with Hayes' generalized statement
that he "believed" that at the beginning of February "he had about" 55 production
and maintenance employees. Under these circumstances, and in view of the state-
ment in Respondent's brief that it had "55 nonsupervisory and nonclerical em-
ployees" on February 6, it seems reasonable to conclude that Respondent had, at
most, .55 employees in the appropriate unit on that day. As I hereafter find, Guthrie,
at the time he sent his telegram to Respondent on February 8, had in his possession
28 or 29 cards signed by production and maintenance employees authorizing the
Union to represent them for purposes of collective bargaining.
Receiving no reply to his telegram of February 8, Guthrie called Hayes on the
telephone on Thursday, February 11, and asked him if he was ready to begin bar-
gaining in behalf of his employees. Hayes acknowledged receipt of Guthrie's tele-
gram but stated that before talking further with him he wanted to obtain legal coun-
sel who "would contact [Guthrie] and [they] would get together." Guthrie ex-
pressed approval and told him he would be looking for the call." Neither Hayes,
nor his counsel, ever called Guthrie thereafter.12
Hayes testified that about 4:30 p.m. on Friday, February 12, he tried to call Guth-
rie but "there was no answer to the phone" and was also unable to reach him on
the following morning. Hayes left town that morning, Saturday, and called Dis-
patcher Beck from the Tampa Airport and instructed him to call Guthrie and inform
him that Hayes could be reached at the Sheraton Hotel in Chicago after 4 p.m. that
day. Though Hayes testified, as has previously been noted, that he was unable to
reach Guthrie on the telephone on four or five occasions, the last time on the Satur-
day morning he left for Chicago, Beck apparently had no difficulty in reaching
Guthrie on the telephone on the same Saturday morning. At that time, Beck
gave Guthrie the message he had been instructed to give by Hayes. Guthrie replied
that he saw no use in calling Hayes in Chicago and informed Beck that he was
"going to go ahead with the petition." The Union's petition seeking certification as
11 Hayes testified, in substance , that such a conversation took place on Wednesday,
February 10
121 do not credit Hayes' testimony that on February 9 he "placed" two or three calls
for Guthrie and that "in each instance a lady answered the telephone and said he wasn't
in but be would be in later," nor his further testimony that he left word and called him
'back two or three times.
PINELLAS PAVING COMPANY, INC. 1035
collective-bargaining representative was placed in the mail that afternoon together
with the 33 authorization cards then in Guthrie' s possession , and was received and
filed by the Board on the following Monday, February 15, designated as Case No.
12-RC-826 (not published in NLRB volumes), and of which I have taken official
notice.
In that petition, the Union sought certification as collective-bargaining representa-
tive for the following appropriate unit : all truckdrivers, mechanics, operators, help-
ers, and all production and maintenance employees of Respondent employed at its
St. Petersburg, Florida, operation, exclusive of office clerical employees, dispatchers,
guards, and supervisors as defined in the Act. By its answer in the instant proceed-
ing, Respondent admits the foregoing to be an appropriate unit, and I so find it to be.
Respondent, in its brief, argues that the allegations of the complaint charging
Respondent with unlawfully refusing to bargain with the Union should be dismissed'
for any one of four separate reasons which will be considered seriatim.
Respondent first argues that "the Union never told the Respondent what unit of
employees it was seeking to represent and without such knowledge, Respondent could
neither determine the appropriateness of the unit nor the Union's alleged majority
status." In cases of this type, the question of whether an employer is acting in good
or bad faith at the time of the refusal is, of course, one which of necessity must be
determined in the light of all relevant facts in the case, including any unlawful
conduct of the employer, the sequence of events, and the time lapse between the
refusal and the unlawful conduct." 13
On the record made here, I cannot say that Respondent's refusal to bargain was.
in any sense engendered by a lack of knowledge of "what unit of employees [the
Union] was seeking to represent." With respect to that alleged lack of knowledge,
the alleged deficiency was raised for the first time in Respondent's posthearing brief
filed on June 28, 1960, more than 4 months after the demand to bargain was admit-
tedly received by Respondent. Under these circumstances it seems reasonable to
conclude that this contention was an afterthought seeking to bolster a sham defense
rather than a contributing factor to a good-faith lack of knowledge of what unit
of employees the Union was seeking to represent. "If Respondent had doubts as to,
the scope and composition of the proposed unit, it raised no question with respect
to these issues at the time of the Union's demand for recognition. . Respondent's
objections as to the scope and composition of the unit, raised for the first time [in
its posthearing brief], comes too late to convince [me] that its refusal was based
on some bona fide doubt as to the appropriateness of the unit " 14
In any event, and even if it be assumed, arguendo, that Guthrie's telegram of
February 8 was too broad or ambiguous to enable Respondent to determine what
unit the Union claimed to represent, the deficiency was supplied, and whatever doubt
existed with respect thereto was put at rest, by the Union's petition filed with the
Board on February 15. Accordingly, I "find that Respondent's continued failure to,
respond to the Union's bargaining demand after receiving the Union's representation
petition in" mid-February, negates its contention that because it was never told by
the Union what unit of employees it was seeking to represent, it therefore cannot be
found guilty of a violation of Section 8(a)(5) of the Act. Automotive Supply Co.,
Inc., 119 NLRB 1074; N.L.R.B. v. Sunrise Lumber & Trim Corp., 241 F. 2d 620,
623 (C.A.2).
The second contention of Respondent pertaining to this phase of the case is that
"the Union never offered to prove its majority status to the employer by a cross-check
of authorization cards or related method." This contention is also without merit.
Guthrie's telegraphic representation that the Union represented a majority of
Respondent's employees was never challenged until the hearing herein more than 3
months after the Union had asserted its majority. If, in February, Respondent had a
good-faith doubt that the Union represented such a majority, why did it fail for 3'
months to give expression to such doubt. It not only failed to do so, but instead
immediately thereafter embarked upon a program to dissipate the Union's majority
by interrogating its employees concerning their union membership and by threatening
them with discharge if they joined the Union. "In these circumstances, [1] conclude
that Respondent's refusal to recognize the Union on February [ 81 and thereafter
was not motivated by a good faith doubt of the Union's majority." or because it had
failed to offer proof of that majority. Harlan B. Browning and Roy J. Rasco, d/b/a
Cottage Bakers, 120 NLRB 841; Traders Oil Company of Houston, 119 NLRB 746.
Also without substance is Respondent's third contention that " it is uncontroverted
that there was no refusal to bargain in that Respondent made every effort to contact
' Joy Silk Mills, Inc, 85 NLRB 1263 , enfd . 185 F . 2d 732 (C.A.D C ), cert denied'
341 U.S 914.
14 United Butchers Abattoir , Inc, 123 NLRB 946, 957.
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union to discuss a bargaining meeting." Instead, the evidence compels a finding
that Respondent made no such effort. Hayes' testimony that he tried unsuccessfully
four or five times to contact Guthrie has already been discredited. The only direct
conversation between the two men occurred on February 11 and was initiated by
Guthrie when he called Hayes to ascertain whether he was ready to begin negotia-
tions. Hayes then informed him on the telephone that his legal counsel would
contact him. But no such contact was ever made.15 Instead Guthrie was informed
by Beck on February 13 that Hayes had left for Chicago.ie Under these circum-
stances, Guthrie could reasonably conclude that Hayes had no intention of recog-
nizing or bargaining with the Union and was only buying time to dissipate the
Union's majority.
Respondent's fourth contention is that "the evidence establishes that the Union
did not in fact represent a majority of Respondent's employees in an overall unit as
of February 8, 1960, the date of its demand." Respondent makes no claim that the
33 authorization cards in evidence, each purporting to bear the signature of one of
Respondent's employees, were not genuine . Its only contention on this last phase of
4he case is that "there is a great deal of uncertainty as to the dates on which the union
-authorization cards were actually signed."
Twenty-seven of the authorization cards were dated prior to February 8, the date
of the original demand for bargaining by the Union, one on February 8, and five
were dated February 11. Respondent, in its brief, challenges the card of R. L. Poston,
-dated February 8, on the ground that the testimony fails to establish that this card
was signed on that day before the Union made its demand, and the card of Gene
-Gaskins, dated February 6, because Vann, who solicited Gaskins' signature, testified
that he "believed" Gaskins signed the card on "either a Monday or Tuesday after
'[they] had the union meeting on a Sunday, [but he] wouldn't be sure." However,
Guthrie testified that at the time he sent the wire to Respondent on February 8, he
.had 28 or 29 cards in his possession . He also testified that he sent 33 cards to the
Board's office on February 13, a fact verified by the Board's acknowledgment stamped
-on the back of each of the 33 cards.
Though the record fails to specifically disclose the hour when, on February 8,
Poston signed his card, and though doubt or confusion may have existed in Vann's
-mind as to the day that Gaskins signed his card, I find neither reason sufficient to
discredit Guthrie's unequivocal testimony that at the time he sent the telegram he
-had 28 or 29 signed cards in his possession. Of all who testified at the hearing,
Guthrie impressed me most favorably as a witness whose testimony could be relied on.
Even if it be assumed, arguendo, that Poston's card was not signed on February 8
until after Guthrie made his demand, it would avail nothing to Respondent because
-of the continuing nature of the Union's original demand and the unquestioned
majority status which the Union maintained thereafter.17 Thus, the record estab-
lishes that Guthrie called Hayes on Thursday, February 11, and asked him whether
the Union's telegram had been received and whether he was ready to begin bar-
,gaining. By that time, Poston's card was beyond challenge and conclusively estab-
lished the number of designations at 28. The demand was again repeated, in effect,
when the Union filed its petition with the Board on February 15 and by which time
the Board had in its possession 33 valid designations.
On the entire record, I find that on February 8, 1960, when the Union's demand
for bargaining was made, and at all times thereafter, the Union was the duly desig-
nated representative of a majority of Respondent's employees in the unit heretofore
found to be appropriate. I further find that by ignoring and rejecting the Union's
request on February 8 and thereafter to begin bargaining negotiations, Respondent
refused to bargain with the Union in violation of its statutory obligation to do so, and
thereby violated Section 8(a)(5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The unlawful activities of Respondent set out in section III, above , occurring in
,connection with the operations of Respondent described in section I, above, have a
close, intimate , and substantial relation to trade , traffic, and commerce among the
15Hayes testified that on February 10 he told Wilde and Willoughby that he "did not
want them to drive equipment off the yard" while wearing union buttons until he had
checked with an attorney He immediately consulted his attorney, was told that the
employees "were legally right," and he so advised the employees
1s Hayes testified that he did not return to St. Petersburg until the end of the following
week.
17 Burton-Dixie Corporation , 103 NLRB 880, enfd . 210 F. 2d 199 (C.A. 10) ;. Scott and
Scott, 113 NLRB 911 , 929, enfd . as modified on another ground 245 F. 2d 926 (C.A. 10).
THE GRAND UNION COMPANY 1037
.several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I
recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent refused to bargain collectively with the Union on
and after February 8, 1960, it will be recommended that, upon request, Respondent
bargain collectively with that organization as the representative of its employees in
the unit found herein to be appropriate for the purposes of collective bargaining.
In my opinion, the unfair labor practices committed by Respondent in the instant
case are such as to indicate an attitude of opposition to the purposes of the Act gener-
ally. In order, therefore, to make effective the interdependent guarantees of Section 7
of the Act, thereby minimizing industrial strife which burdens and obstructs com-
merce, and thus effectuate the policies of the Act, I recommend that Respondent be
ordered to cease and desist from infringing in any manner upon the rights guaranteed
in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. International Hod Carriers', Building and Common Laborers' Union of America,
AFL-CIO, Local Union No. 512, is a labor organization within the meaning of
Section 2(5) of the Act.
2. All truckdrivers, mechanics, operators, helpers, and all production and main-
tenance employees of Respondent employed at its St. Petersburg, Florida, operation,
exclusive of office clerical employees, dispatchers, guards, and supervisors as defined
in the Act, constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
-3. International Hod Carriers', Building and Common Laborers Union of Amer-
ica, AFL-CIO, Local Union No. 512, was on February 8, 1960, and at all times there-
after has been, the exclusive representative of all the employees in the above-described
unit for the purposes of collective bargaining within the meaning of Section 9(a) of
the Act.
4. By failing and refusing on and after February 8, 1960, to bargain with the
Union as the exclusive representative of all the employees in the above appropriate
unit, Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (5) of the Act.
5. By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, Respondent has violated Section 8(a)(1)
of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
7. Respondent did not discriminate against any of its employees as alleged in the
amended consolidated complaint.
[Recommendations omitted from publication.]
The Grand Union Company and Joseph J. Shultz and Robert E.
Gray, Party to the Contract . Case No. 3-CA-1439 (formerly
2-CA-5660). *August 16, 1961
SUPPLEMENTAL DECISION AND AMENDED ORDER
On June 12, 1959, the Board issued its Decision and Order in this
case' in which it found that the Respondent had engaged in certain
conduct in violation of Section 8(a) (1) and (3) of the Act, adopting
the ultimate conclusions of the Trial Examiner that the Act had been
violated, but not his reasoning. Specifically the Board found that the
1123 NLRB 1665.
132 NLRB No. 96.