Polk Bros. Concrete Products

National Labor Relations Board - Board Decisions

Jun 22, 1981

256 N.L.R.B. 783 (N.L.R.B. 1981)

POLK BROS. CONCRETE PRODUCTS 783
Polk Bros. Concrete Products and Teamsters Local
Union #515. Cases 10-CA-15593 and 10-CA-
15611
June 22, 1981
DECISION AND ORDER
On January 22, 1981, Administrative Law Judge
Hutton S. Brandon issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed an answering brief.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Polk Bros.
Concrete Products, Tunnel Hill and Resaca, Geor-
gia, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order. 2
l Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect Standard Dry Wal Products
Inc., 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings
Inasmuch as the Administrative Law Judge rejected as specious Re-
spondent's defense that Donnie Kimbrel was discharged for missing a
day's work, Member Jenkins would not rely on Wright Line. a Division of
Wright Line. Inc.. 251 NLRB 1083 (1980).
2 In accordance with his dissent in Olympic Medical Corporatin, 250
NLRB 146 (1980). Member Jenkins would award interest on hackpay due
based on the formula set forth therein
DECISION
STATEMENT OF THE CASE
HuTTroN S. BRANDON, Administrative Law Judge: A
hearing in this proceeding was held on October 2 and 3,
1980,1 at Dalton, Georgia. The charges in Cases 10-CA-
15593 and 10-CA-15611 were filed by Teamsters Local
Union #515, herein called the Union, on March 12 and
17, respectively, alleging that Polk Bros. Concrete Prod-
ucts, herein called the Respondent or the Company, vio-
lated Section 8(a)(3) and (1) of the National Labor Rela-
tions Act, as amended, herein called the Act. An order
consolidating cases, complaint, and notice of hearing
issued on April 21 alleging that the Respondent indepen-
dently violated Section 8(a)(l) of the Act by various acts
and statements of its supervisors and agents, including,
I All dates are in 1980 unless otherwise stated
256 NLRB No. 128
inter alia, unlawful interrogation of employees, unlawful
promises of benefits to employees to encourage them to
refrain from union activities, unlawful threats of dis-
charge or layoffs for union activities, and the creation
among its employees of an impression of surveillance of
their union activities. The complaint further alleges vio-
lations of Section 8(a)(3) and (1) of the Act by the Re-
spondent in the discharge of employees Harold Gordon
on February 11 and Don Kimbrel on March 5 because of
their union activity.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due considera-
tion of the briefs filed by the General Counsel and the
Respondent, I make the following:
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a Georgia corporation with offices
and places of business located at Tunnel Hill and Resaca,
Georgia, where it is engaged in the manufacture and sale
of concrete products. During the calendar year preced-
ing issuance of the complaint herein the Respondent sold
and shipped products valued in excess of $50,000 directly
to customers located outside the State of Georgia. The
Respondent admits. and I find, that it is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE I.ABOR ORGANIZATION STATUS OF THE
UNION
The complaint alleges, the Respondent by its answer
admits, and I find that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALEGED 8(A)( I VIOl.AtIONS
A. Background
There is no dispute that organizational activity on
behalf of the Union among the Respondent's employees
began in middle or late January. There is also no dispute
that such activity was initiated and promoted by David
Claridy, the Respondent's plant manager at its Tunnel
Hill operation and an admitted supervisor within the
meaning of the Act. On Sunday, January 27, Claridy dis-
closed to Jimmy Polk, president of the Respondent, the
existence of the union activity but failed to disclose his
own involvement. The revelation of the union activity to
Jimmy Polk resulted in a rather swift response.2 On the
day following the revelation Polk called employees to-
gether at the Tunnel Hill plant and forcefully related his
opposition to the union organizational efforts. His re-
marks in this regard provide the basis for the allegation
of the initial 8(a)(1) violations.
I2 Claridy', disclosure was fllohwed sometime later by the Union's
letter claiming representation of a majority of the Respondent's employ-
ces and demanding recognmition Neither the language of the letter nor the
cxa.t dli of i ips Irtlp y th Rspoindcnpl tlld t s est.lhlihedl in the record
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Statements and Conduct of Jimmy Polk
It was the testimony of former employee Harold
Gordon that Jimmy Polk told the employees at Tunnel
Hill at the meeting on the morning of January 28 that he
had received a letter from the Teamsters claiming that
all the employees wanted a union, but that he would not
stand for it. Jimmy Polk emphatically stated that he
would not sign a "damn union contract." Polk also
threatened, according to Gordon, that he would "have
the wheels put under this plant and have them shipped
back over to Africa or wherever it come from." Gordon
commented that the employees would not need a union
if the Respondent would give each employee 25 to 50
cent an hour more each time the Respondent went up on
its concrete. However, Polk responded that he could not
guarantee the employees a raise at that time but said, "I
will up and do the best of my ability."3 During the meet-
ing Polk made a scratch across the floor and said for the
"boys that were going to work to step across the line.
and the ones that didn't to stay put."
Jimmy Polk admitted in his testimony that in the
Tunnel Hill meeting with employees he told them that
he did not think the Union would benefit the Company
and that it would put them out of business. Polk also
conceded that he had told the employees that he would
not sign a contract with the Union.
Gordon was not an impressive witness. He appeared
confused regarding the sequence of events and the timing
of statements. It was necessary for the General Counsel
to elicit a major part of Gordon's testimony using lead-
ing questions. Finally, Gordon admitted to a poor
memory, and conceded that there were "a lot of times
that I can't even tell you what I done last week."
Notwithstanding what I regard as Gordon's poor testi-
monial demeanor and bad recollection, the specific re-
marks he attributed to Jimmy Polk were not specifically
denied, and at least one such remark concerning not
signing a contract was admitted by Polk. Accordingly, I
credit that portion of Gordon's testimony set forth above
regarding Jimmy Polk's remarks to the Tunnel Hill em-
ployees.
Based upon Gordon's testimony and Jimmy Polk's ad-
mission, I conclude as alleged in the complaint that
Jimmy Polk threatened employees that it would be futile
for them to select the Union since the Respondent would
never sign a contract with the Union. Moreover, I con-
clude that Polk's other remark to the employees about
sending the plant to Africa constituted a threat to close
the plant. Finally, while Polk's conduct in scratching a
line on the floor and asking those employees who
wanted to work to cross it was somewhat ambiguous, in
the absence of explanation I conclude that in the context
related by Gordon the act was a form of interrogation as
3 It is undisputed that at some subsequent time not clearly established
in the record, but approximated as early February by Jimmy Polk,
Jimmy Polk read a statement to employees regarding a wage increase
stating that a wage increase, consistent sith past practice and what some
of the employees had been told several s.eeks earlier, would be granted
effective February 6. The amount of the raise was rnot disclosed to the
employees and the money represented by the raise was not to hbe paid
until the union issue was resolved. Polk's announcement regarding the
wage increase was not alleged by the General Counsel to be a violation
of the Act.
argued by the General Counsel. Employees failing to
cross the line risked identification as union supporters.
Jimmy Polk's remarks and conduct in the foregoing re-
spects constituted violations of Section 8(a)(1) of the
Act.
C. The Statements and Conduct of Bobby Polk
The violations of Section 8(a)(l) of the Act attributed
to Bobby Polk, the Respondent's vice president and sec-
retary who had primary responsibility for the Respond-
ent's Resaca operation, were related by former employee
Donnie Kimbrel. Kimbrel testified that at a meeting of
employees at the Resaca plant Bobby Polk told the em-
ployees that a union would not come in at the Company,
that the employees were wasting their time bringing the
Union in because he would shut the gates and sell the
equipment before he would see it go union, and that he
could not afford a union there. Kimbrel exhibited consid-
erable confusion as to when Bobby Polk made these re-
marks and indicated that they took place in early Janu-
ary and before he signed a union authorization card on
January 24. Bobby Polk, on the other hand, admitted
that he had a meeting with the Resaca employees con-
cerning the Union, but placed the meeting on the day
after he learned of the union campaign on Sunday, Janu-
ary 27. Because of Kimbrel's confusion and since it is
likely that Bobby Polk's meeting with the Resaca em-
ployees would have occurred at or about the same time
as Jimmy Polk's meeting with the Tunnel Hill employ-
ees, I conclude that Bobby Polk's remarks were made to
the Resaca employees in late January.
With respect to the substance of his remarks to the
employees, Bobby Polk testified that he told the employ-
ees that he was afraid that the Union would "put us out
of business." According to Polk, who was admittedly
acting without benefit of legal counsel at the time, the
employees were told that he did not feel like the Union
would be good for the employees in the Company be-
cause of competition from other nonunion concrete com-
panies. In spite of his confusion as to the timing of events
and statements, Kimbrel appeared basically sincere in his
testimony. Accordingly, and because Bobby Polk failed
to deny the specific remarks attributed to him by Kim-
brel, I credit Kimbrel's testimony and conclude that the
Respondent through Bobby Polk unlawfully threatened
employees at Resaca with plant closure and impressed
upon them the futility of their organizational efforts.
Such conduct, I conclude, violated Section 8(a)(1) of the
Act.
Kimbrel testified concerning another meeting between
Bobby Polk and certain employees at Resaca in late Jan-
uary. In this meeting Polk, according to Kimbrel, stated
the Union "wouldn't work" at the Company and there
would never be a union there. Further, Kimbrel testified
that Polk "wanted to know" who had attended the union
meetings and how many had signed union authorization
cards. Polk also stated that anybody who signed a union
authorization card to bring in a union at Resaca "could
be looking for another job."
Kimbrel also related that in early February Bobby
Polk asked him to take a ride with him. During the ride
POLK BROS CONCRETE- PRODUCTS 785
in Polk's vehicle the union matter was discussed4 and
Polk stated that the employees were wasting their time
with the Union. He added that unions would never do
the employees any good because he would close the
gates and sell the equipment. During the ride Kimbrel
explained to Polk why the employees were trying to or-
ganize. As they returned to the plant, Polk advised Kim-
brel that there would be a "little something extra" on
Kimbrel's paycheck, but he could not give it to him until
"this Union business" blew over.
Finally, Kimbrel testified that in mid to late February
Bobby Polk again talked to a group of employees at the
Resaca plant and again told them that he would "close
the gates and sell the equipment" before he would have
somebody telling him how to run his business. Polk also
referred to a union meeting the preceding Saturday and
stated that he knew Kimbrel and three other employees,
specifically, Lanny Shaw, Mike Parker, and Larry Nich-
olson, had attended the meeting and added that he knew
what time they were at the meeting and what time they
had come back from the meeting.
Bobby Polk did not specifically deny the above re-
marks attributed to him by Kimbrel. Rather, Polk testi-
fied that after his initial comments to the employees the
day after he learned of the union activity he had no fur-
ther communications with employees concerning the
Union either individually or in a group. He admitted,
however, that he did once take Kimbrel for a ride in late
January or early February to discuss Kimbrel's tardiness
in reporting to work. He denied discussing the Union
with Kimbrel during the ride. Taking employees for such
rides to discuss problems with them was in accord with
his prior practice according to Polk.
I again credit Kimbrel's testimony regarding Bobby
Polk's statements. Although Kimbrel's testimony set no
standards for clarity and at times lacked detail, it was de-
livered in a manner sufficiently persuasive of honesty to
overcome Bobby Polk's general denial. Polk's denial that
he made any remarks regarding the Union to employees
either individually or in a group after the day of his first
admitted remarks strains credulity since it comes from a
man who conceded that he considered the union activity
as presenting a "life or death" threat to the Respondent's
business existence. Accordingly, based on Kimbrel's testi-
mony, I find that the Respondent through Bobby Polk
violated Section 8(a)(l) by threatening employees with
the futility of their organizational efforts, threatening em-
ployees with discharge for signing union authorization
cards, interrogating employees concerning their union
activities, creating the impression of the surveillance of
such activities, and promising an employee a benefit to
induce him to forego his union activity.
D. The Statements and Conduct of David Claridy
The Respondent admitted that David Claridy, its
Tunnel Hill plant manager during the relevant times
herein, was a supervisor within the meaning of the Act.
Claridy, called by the Respondent, testified that he was
4 Kimbrel's testimony was that "the question was brought up of h)"
the employees swere trying to organize He did not elaborate as to ho
the question was raised. and I find the record insufficient to establish that
it was raised in the context of unlawful interrogation
involved in the union activity and, indeed, it was Claridy
who initiated the union activity and obtained the blank
authorization cards from the Union to distribute among
the employees. Sometime after advising Jimmy Polk of
the union activity (but not his own involvement), Claridy
met with the Polk brothers and the labor counsel they
had retained and learned of the legal ramifications of the
union activity. Claridy testified that at this meeting a
question was raised about a petition to "dispose of the
Union." Counsel advised that such a petition would have
to be handled by the people who would be eligible for
the Union. Notwithstanding this information and know-
ing that he was acting contrary to advice of counsel and
without instructions from the Polk brothers, Claridy pro-
ceeded to work up a crude handwritten "petition" and
secured employee signatures thereon.
Claridy was not questioned further by either the Re-
spondent or the General Counsel concerning the details
of the initiation of the petition5 or the circumstances
under which it was signed by employees. Harold
Gordon and his stepson, Marlon Michael, who apparent-
ly was not an employee of the Respondent, testified con-
cerning the signing of the petition. Gordon testified that
around February 7 following a union meeting at a restau-
rant employee Bruce Hampton asked the other employ-
ees to meet at his house. At Hampton's house Claridy
talked to the employees and "came out" with this "peti-
tion." Claridy stated, according to Gordon, that he had
talked to Jimmy Polk about the petition and that Polk
would not fire anyone about the Union. Claridy added
that he would try to help the employees out "about the
raises" if they would drop the Union. Michael's testimo-
ny regarding Claridy's statements was ambiguous and
vague. Michael related that Claridy said he was not get-
ting along with Jimmy Polk and said something to the
effect that he had been laid off.6 Claridy added that he
felt sorry for Jimmy because he was losing everything he
had if the Union happened to get in and as he talked he
began to cry. It was at that point that Claridy "came
out" with the paper to sign to get the Union out.
The General Counsel argues that Claridy's initiation of
the petition was, because of his supervisory position, an
unlawful solicitation of employees to withdraw from the
Union and that his reference to raises in connection with
the petition was an unlawful promise of a benefit to em-
ployees to induce their withdrawal from the Union.
While not disputing the facts related by Gordon and Mi-
chael with respect to Claridy and the "petition," the Re-
The body f the "petition" IG C Exh 4) contained the fllo lg
language
We the undersigned agree to sign against the Teamsters Union
belou We Do Not Want The Union Also we want to keep our
jobs, it is not legal for Jimmy & Bobbhh Polk Io fire us for union ac-
tiily We understand all this before we sign We do not want Union
in our job
At the bottom of the pctiill and follolng 14 employee signatures the
follosing additional language s as iserted
P' S. Ciuar.ited [sic] meeting s ilth all truck drivers It) talk about
guarateed [ic] raise, and job securil) by Company
; While Clarld) subsequcntly left the employment of the Respondent.
the Respondent through counsel at the hearing coinceded that Clarid3
as still emplosed at the time of the "petition" sIgniig
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent argues that Claridy was acting wholly in con-
travention to any express or implied authority of the Re-
spondent and that his conduct with respect to the peti-
tion was an employee-recognized departure from his su-
pervisory role. The Respondent, citing, inter alia, M. C.
Inc., d/b/a Poca Super Market, 164 NLRB 1080 (1967),
argues that the Board does not "saddle" the employer
with a supervisor's aberrations in such situations.
In Poca Super Market, supra, a supervisor, as in the in-
stant case, after first initiating a union organizational
effort and obtaining signed union authorization cards,
subsequently reconsidered and solicited employees to
sign a revocation petition. The Board found that while
the conduct of the individual involved, described as a
minor supervisor by the Board, was violative of Section
8(a)(1), no remedial order was warranted. In so finding
the Board noted that the employer was not aware of the
supervisor's initial conduct in soliciting union cards and
upon learning of it "manifested a completely neutral atti-
tude" to the organizational efforts. Further, the Board
found that the employer had no part in initiating or cir-
culating the revocation petition. The facts in the instant
case are distinguishable in several respects. First, Claridy
as a plant manager cannot be regarded as a "minor" su-
pervisor. Secondly, the Respondent never manifested its
neutrality in the organizational efforts and, on the con-
trary, vehemently opposed it to the extent already found
herein of threatening to close its operations and to refuse
to ever sign a contract with the Union. Thirdly, even if
Claridy's actions with respect to the revocation petition
were contrary to specific Respondent instructions, it was
clearly consistent with the Respondent's perceived threat
to its existence as a result of the union activity. More-
over, from the employees' viewpoint Claridy was speak-
ing for the Respondent because he referred to Jimmy
Polk's loss of everything if the employees unionized and,
by Gordon's uncontradicted testimony, intimated that he
had talked to Jimmy Polk about the petition. The coer-
cive impact of Claridy's conduct and remarks in connec-
tion with the petition, including his expressed intent to
help out with the "raises," is crystal clear. Accordingly,
I conclude, as alleged in the complaint, that the Re-
spondent violated Section 8(a)(1) of the Act by Claridy's
conduct and that a remedial order is warranted under the
circumstances here. 7
IV. THE ALLEGED 8(A)(3) VIOLATIONS
A. The Separation of Harold Gordon
Gordon had worked for the Respondent a number of
times during the 4 years preceding his separation from
employment on February 13, which is at issue herein.
Gordon obtained union authorization cards from Claridy
and distributed them to Donnie Kimbrel and signed a
union card himself. He attended union meetings and, al-
7 The other cases cited by the Respondent i support of its position on
Claridy's conduct, specifically. B. .N Beard Co., 248 NLRB 198 (1980).
Dietrz Forge Company of Tennessee, 173 NLRIB 19 (1968); Redcor Corpora-
tion, 166 NL RB 1013 (1967) and Furrs Inc., 157 NLRB 387 (1966), are
inapposite since the individuals whose conduct was in issue in those cases
were found not to be supervisors at the time of the alleged transgressions
or there was no evidence linking their conduct to the employers,
though he signed Claridy's revocation petition, he con-
tinued to speak out to employees in favor of the Union.
On the last day of his employment 8 by the Respondent
Gordon reported for work and noticed that fellow em-
ployee David Latimer was not present. Gordon testified
that he inquired of David Claridy about Latimer and
Claridy told Gordon that Latimer had been discharged
because of Gordon's pressing Latimer so much about the
Union.9 Thereafter, Gordon telephoned Jimmy Polk at
Polk's office which was some distance from the Tunnel
Hill plant and Gordon asked Polk if it were true that
Latimer had been laid off due to Gordon's pressuring
him about the Union. Polk, according to Gordon, did
not answer, but asked Gordon to come to his office.
Gordon went to Polk's office where he repeated his
question about Latimer and Polk replied that it was true
and that he could not have Gordon backing the Union so
much and added that before he would put up with that
he would lay Gordon off. Then Polk had his secretary
type up a resignation for Gordon and told Gordon if he
did not sign it he would not get his paycheck that week.
Gordon got his paycheck and left. He subsequently filed
an unemployment compensation claim contending that
he had been laid off due to bad weather. According to
Gordon, he was told by Polk at the time of his layoff
that Gordon could not be given a separation notice be-
cause of the Union, but if he filed for unemployment
compensation Polk would verify that he had been laid
off.
The General Counsel contends that Gordon was dis-
charged because of his union activity and support. The
Respondent, on the other hand, contends that Gordon
quit because he had recently moved to a new address in
Tennessee which was approximately 50 miles from the
Tunnel Hill plant making a long and expensive commute
to work for Gordon. In support of its position the Re-
spondent called several employees and former employees
who testified about Gordon's actions and statements on
the morning of February 13. Thus, David Claridy testi-
fied that when Gordon came in that morning Gordon in-
quired about Latimer and Claridy responded that Lati-
mer had quit.'° Upon receiving that information Gordon
picked up the telephone and called Jimmy Polk. After
finishing his conversation he slammed the phone down,
got his timecard, and punched out. Claridy asked him
where he was going and Gordon replied that he quit and
left.
Claridy's testimony was generally corroborated by
former employees Donald Hasting, Shane Bingham, and
Melba Claridy, David Claridy's wife. Hasting specifically
testified as to overhearing some of Gordon's remarks on
Gordon testified that his last day was Monday, February 11 It is
clear, however, that Gordon signed a resignation slip on his last day. and
that slip, Resp. Exh. 8, is dated February 13. 1 conclude Gordon's testi-
mony as to the date of his last day is i error.
9 At another point in his testimony Gordon related he simply asked
Claridy if Latimer had been laid off and Claridy's simple response was an
affirmative yes.
") Claridy explained that Latimer had quit the day before stating that
he could make more money in a business with his wife. A resignation slip
signed by Latimer submitted in evidence by Respondent, Resp. Exh. 9,
was dated February II.
POLK BROS. CONCRETE PRODUCTS 787
the telephone as he called Jimmy Polk that morning. Ac-
cording to Hasting, Gordon asked if he could be laid off.
After he apparently received a negative response from
the other party on the line Gordon responded, "Then I'll
quit then," and slammed the phone down. Melba Claridy
testified that when Gordon was told by someone on the
morning of February 13 that Latimer quit, Gordon disa-
greed, and claimed that Latimer had been laid off and
that he wanted the same. Hasting testified concerning
Gordon's motivation with respect to quitting relating
that Gordon had told him earlier that same morning that
he would go to work somewhere else if he could find
something closer to where he lived because he was
having to drive too far.
Jimmy Polk testified that on the morning of February
13 Gordon telephoned him from the plant claiming that
Polk had laid Latimer off and asking for a layoff himself.
Polk refused to lay him off and Gordon responded that
he quit. Polk asked him not to quit but to come to Polk's
office. Thereafter, Polk met with Gordon for about 5
minutes and Gordon insisted he wanted a layoff. Polk re-
fused and Gordon asked what had Latimer done. Polk
explained that Latimer quit and Gordon said he was
quitting. Polk asked Gordon to sign a letter of resigna-
tion since the Respondent was experiencing "this union
problem" and he did not want to be accused of firing
Gordon. Polk denied that there was any discussion about
Gordon pressuring Latimer about the Union or holding
up Gordon's paycheck if he did not sign the resignation
letter. He could not recall whether Gordon's subsequent
unemployment compensation claim ever came to his at-
tention.
If Gordon's testimony is credited, a clear violation of a
discharge for union activity is established. However, I
have previously noted that Gordon was not an impres-
sive witness. His testimony regarding the details of his
separation from the Company was equivocal and illogi-
cal. There would have been absolutely no motivation for
the Respondent to "lay off' or discharge Latimer be-
cause Gordon was pressuring Latimer about the Union.
Gordon's own admissions served to undermine his testi-
mony for not only did he admit on cross-examination to
a poor memory, but he also conceded that he may have
told Polk when he telephoned him from the plant that he
wanted to quit or get laid off. Jimmy Polk's testimony
regarding the meeting with Gordon on February 13 is
more reasonable and logical than Gordon's in light of
Gordon's announcement that he wanted to quit. Consid-
ering all the foregoing, including the testimony of Hast-
ing, Bingham, and both Claridys, all of whom had little
reason to prevaricate because none were employed by
the Respondent at the time of the hearing, I conclude
that Gordon's testimony cannot be credited where spe-
cifically contradicted on the details of his separation. I
further conclude that he was not discharged but, in fact,
quit. Accordingly, I find no violation of the Act in Gor-
don's separation from the Respondent.
B. The Discharge of Donnie Kimbrel
Donnie Kimbrel testified that he worked for the Re-
spondent as a truckdriver off and on for a period of 3
years prior to his discharge on March 4, which is in issue
herein. It is undisputed that Kimbrel was active in the
Union's campaign and solicited a number of employees
to sign union authorization cards. Kimbrel attended some
union meetings and Bobby Polk's acknowledgement of
such attendance has already been noted above.
It is undisputed that on February 28 Kimbrel experi-
enced transmission trouble with his truck. He took it to
the shop where he was told by the mechanic that it
would be the following day before the work could be
started. When Kimbrel came to work the following day,
his truck was not ready and he related that he did not
work. He was contradicted, however, by his timecard
for February 29,11 which shows that he did work 10
hours that day driving another vehicle.
Kimbrel testified that at some point he was told by
Vaughn Jones, the manager at Resaca at the time, that
Kimbrel would be called to work when his truck was
ready. Kimbrel testified that he was not called to work
on Monday, March 3, or Tuesday, March 4, but saw
fellow employee Lowell Pinion driving his truck that
Tuesday afternoon around 4:30 p.m. Tuesday evening,
according to Kimbrel, Pinion telephoned him and stated
that he had been assigned to the truck permanently.
Since he knew his truck was drivable, Kimbrel reported
in for work on Wednesday morning at 6:30 a.m. only to
find that his timecard was missing. Kimbrel asked
Vaughn Jones where his timecard was and Jones re-
sponded that Bobby Polk had "pulled" it. Kimbrel asked
why and Jones said he did not have anything to do with
it. The record shows no further contact or discussions
between Kimbrel and any Respondent official concern-
ing his separation. Kimbrel insisted that he had been at
his home up until 4 p.m. on both March 3 and 4 awaiting
a call from Jones but never received it. He explained an
apparent contradiction by his prehearing statement sub-
mitted to the Board relating that he had waited for the
Respondent's call up until 9 a.m. each day by saying he
had waited in his house until 9 a.m. and then had worked
on his car in his yard the remainder of the time until 4
p.m. each day.
The Respondent does not contest the fact that Kim-
brel's card was "pulled." However, the Respondent
through Bobby Polk contended that Kimbrel was not
fired-he simply failed to show up for work. In this
regard Bobby Polk testified that the Respondent had a
rule that if employees had to be off work they were to
call in by telephone, and if they did not Respondent "fig-
ured" they quit. In keeping with that rule, Polk "pulled"
Kimbrel's card the evening of February 4.12 Moreover,
Polk related that Kimbrel had quit the Respondent on
previous occasions by failing to report to work and Polk
had "pulled" his card once before in 1978. Bobby Polk's
testimony with respect to Kimbrel's employment history
was generally corroborated by Vaughn Jones who
I I Resp Exh
32 While Bobby Polk supplied no other examples of instances where
employees' cards were "pulled" for not reporting to work, Jimmy Polk
in his testimony named several employees as examples. However, from
the limited details supplied by Jimmy Polk those named appeared to have
either "laid out" for a period greater than I day and were discovered to
have begun work for another employer or they reported for work and
left shortly thereafter without notice and after being warned not to do so.
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
added, without contradiction from Kimbrel, that Kimbrel
had stated several times that he was going to quit. Kim-
brel himself admitted that he had on prior occasions quit
employment with the Respondent by just not showing
up.
Even if Kimbrel were terminated the Respondent
argues that it was for cause based upon Kimbrel's failure
to report for work on March 4 after having been previ-
ously told by Vaughn Jones to stand by to be called in
when his truck was repaired and failing to report in
when Jones telephoned Kimbrel's home the morning of
March 4. In this regard Jones testified that Kimbrel had
called him on March 3 to see if the truck was ready and
Jones told him that it was not but that he would call
Kimbrel the next morning between 7 and 7:30 a.m. The
truck was ready the next morning and Jones testified he
called Kimbrel's home and spoke to Kimbrel's wife. She
reportedly replied that Kimbrel had left and she did not
know when he would be back. Jones told her that Kim-
brel's truck was ready and they needed it to go and to
have Kimbrel call him as "quick as possible." Kimbrel
did not thereafter phone or come in and employee
Pinion was assigned to drive Kimbrel's truck.
Jones' testimony was corroborated by that of Pinion
and David Nicholson who at the time of the hearing was
serving as plant manager at Resaca replacing Jones who
was transferred to Tunnel Hill. Both Pinion and Nichol-
son testified that they were present with Jones when he
telephoned Kimbrel's home and heard Jones' comments
to Kimbrel's wife. Kimbrel's wife was not called to tes-
tify by any party.
The General Counsel apparently takes the initial posi-
tion that Jones never called Kimbrel's home the morning
of March 4 and, thus, his termination for failing to report
to work was a fabricated basis for discharging him. Al-
ternatively, the General Counsel contends that even as-
suming Kimbrel's failure to report to work on March 4,
the only "unpardonable sin" he had committed was his
participation in union activities.
I find no merit in the General Counsel's initial posi-
tion, for I find that the record fully substantiates that
Jones made the call to Kimbrel's home on the morning
of March 4. I base this finding on Jones' credible testi-
mony supported by the equally credible testimony of
Pinion and Nicholson that Jones made the call. Inexpli-
cably, that testimony was not contradicted by the only
person who could contradict it-Kimbrel's wife. More-
over, although what Mrs. Kimbrel reported to Jones as
to Kimbrel's whereabouts may well have been hearsay as
the General Counsel argues, the fact of Jones' contact
with Mrs. Kimbrel and what he told her was clearly not
hearsay. Nor were Mrs. Kimbrel's remarks to Jones
hearsay to the extent that the Respondent acted upon
them. Accordingly, I find and conclude that Kimbrel's
failure to report to work on March 4, whatever the real
reason for such failure, was not an offense fabricated
purely by the Respondent.
Having found that Kimbrel did not in fact fail to
report to work on March 4 does not preclude the exist-
ence of a violation in his termination, and I specifically
conclude that he was terminated. Notwithstanding Kim-
brel's prior employment history or even his expressions
of an intent to quit at some unspecified time, the evi-
dence does not establish that he had "quit." Indeed,
Kimbrel credibly testified without contradiction that he
had been absent before without calling in and his card
was not "pulled." Specifically, Kimbrel related that he
had been absent in August 1979 for 3 days without call-
ing in and was not disciplined or terminated. And Kim-
brel's appearance at the job on March 5 ready for work
is obviously inconsistent with any intent to forsake his
employment with Respondent.
Kimbrel's union activity, the Respondent's knowledge
thereof, the Respondent's strong antiunion animus, and
the Respondent's eagerness to accept Kimbrel's failure to
report for work as a "quit" when in fact, as I have
found, he did not quit, all establish the requisite prima
facie showing sufficient to support the inference that
Kimbrel's union activities were a motivating factor in his
termination. The burden is thus shifted to the Respond-
ent to show that Kimbrel would have been discharged
even absent his union activity. Wright line, A Division of
Wright Line, Inc., 251 NLRB 1083 (1980). 1 am not satis-
fied that the Respondent has carried that burden.
The Respondent's contention that people who missed a
day without calling in automatically had their timecards
"pulled" is not fully supported by the record. On the
contrary, it was contradicted by Bobby Polk's own testi-
mony to the effect that Kimbrel had missed 2 days in
late February without calling in. Obviously Kimbrel was
not fired then so the Respondent's reliance on any hard
and fast rule about "pulling timecards" in such situations
is misplaced. The late February absences of Kimbrel do
raise the question of why the Respondent did not seize
upon them to effectuate a discriminatory discharge if it
was so inclined. The answer to that question may be re-
vealed in the failure of the record to affirmatively estab-
lish that either of the Polks was personally aware of such
absences. In any event, I do not deem the failure to act
against Kimbrel on these prior absences as evidencing
any absence of discriminatory motivation in his subse-
quent discharge.' 3
The Respondent's failure to clearly establish that time-
cards were automatically "pulled" for employees who
failed to appear for work without calling in obviously in-
dicates an ulterior motivation in Kimbrel's card being
pulled on March 4. The likelihood of such motivation is
increased by the admission of Bobby Polk that Kimbrel's
work was sufficiently acceptable to reemploy him on
previous occasions in the past notwithstanding Kimbrel's
having quit in the past without notice.' 4 This history of
" Kimbrel had signed Claridy's petition o withdraw from the Union
in early February. This too would seem to undermine any finding of dis-
criminatory motivation against Kimbrel. However, neither Jimmy nor
Bobby Polk claimed to have knowledge of the petition or the names
thereon. The absence of such a claim is explained by Claridy's testimony
that he never advised the Polks about the petition until a month or two
after the fact From Kimbrel's credited testimony it also appears that
Bobby Polk had continued in his antiunion comments at times after the
signing of the petition.
14 Bobby Polk conceded that notwithstanding Kimbrel's employment
history, including the separation which was litigated herein, he would
give "strong" consideration to Kimbrel's reemployment if Respondent
had an "opening" Although this concession was an obvious self-serving
Continued
POLK BROS CONCRETE PRODUCTS 789
employment of Kimbrel coupled with the absence of any
showing of the hiring of any new employees prior to
March 5 when Kimbrel reported to the job establishes in
my opinion that Kimbrel's card would not have been
"pulled" but for some ulterior motivation. I am persuad-
ed on the evidence found herein of the Respondent's
strong antiunion animus that such ulterior motivation
was based upon Kimbrel's union support. I find that the
Respondent has not established that Kimbrel would have
been discharged without regard to his union activities
and I conclude that his discharge was therefore discrimi-
natory within the meaning of Section 8(a)(3) and (1) of
the Act as alleged in the complaint.
CONCLUSIONS OF LAW
1. Respondent Polk Bros. Concrete Products, Tunnel
Hill and Resaca, Georgia, is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Teamsters Local Union #515 is a labor organization
within the meaning of Section 2(5) of the Act.
3. By coercively interrogating employees concerning
their union activity and support, by soliciting employees
to sign a petition withdrawing their support from the
Union, by promising employees benefits in order to
induce them to forego their union activity, by threaten-
ing employees with plant closure or sale should they
select the Union as their bargaining representative, by
threatening employees that it would never sign a collec-
tive-bargaining agreement with a union and otherwise
expressing to employees the futility of their organization-
al efforts, by threatening employees with discharge for
signing union authorization cards, and by creating the
impression among employees of surveillance of their
union activity, the Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. By discharging Donnie Kimbrel on March 4, 1980,
the Respondent engaged in and is engaging in unfair
labor practices affecting commerce within the meaning
of Section 8(a)(3) and (1) of the Act.
5. The foregoing unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
6. The Respondent has not violated the Act as alleged
in the complaint except to the extent noted above in
paragraphs 3 and 4.
THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices violative of Section 8(a)(3) and (1)
of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action, including
the reinstatement of Donnie Kimbrel, and making him
whole for any loss of earnings, in order to effectuate the
policies of the Act. Backpay and interest thereon is to be
computed in the manner set forth in F W Woolworth
attempt to show the absence of discriminatory concern over Kimbrel's
employment, I construe it as a further demonstration of the Respondent's
general satisfaction with Kimbrel's job performance which makes his dis-
charge under all the circumstances here all the more suspect
Company, 90 NLRB 289 (1950), and Florida Steel Corpo-
ration, 231 NLRB 651 (1977).15
Upon the foregoing findings, conclusions, and the
entire record, and pursuant to Section 10(c) of the Act, I
hereby issue the following recommended:
ORDER' 6
The Respondent, Polk Bros. Concrete Products,
Tunnel Hill and Resaca, Georgia, its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against
employees because of activities on behalf of Teamsters
Local Union #515 or any other labor organization.
(b) Coercively interrogating employees concerning
their activity or support of the above-named Union or
any other labor organization.
(c) Unlawfully soliciting employees to sign a petition
withdrawing their support of the above Union or any
other labor organization.
(d) Promising employees benefits in order to induce
them to forego their union activity.
(e) Threatening employees with plant closure or sale if
they select the above Union or any other labor organiza-
tion to represent them.
(f) Threatening employees that it would never sign a
collective-bargaining agreement with the Union or other-
wise advising employees that their organizational efforts
will be futile.
(g) Threatening employees with discharge for signing
union authorization cards.
(h) Creating amoing employees the impression that it
has their union activities under surveillance.
(i) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the National Labor Re-
lations Act, as amended.
2. Take the following affirmative action which will ef-
fectuate the purposes of the Act:
(a) Offer to Donnie Kimbrel immediate and full rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent position, without prej-
udice to his seniority or any other rights or privileges
previously enjoyed, and make him whole for any loss of
earnings he may have suffered by reason of his unlawful
discharge by the Respondent in the manner set forth in
the section herein entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
is See. generally. Isis Plumbing & Hearing Co., 138 NLRB 716 (1962)
is In the eent no exceptions are filed as provided by Sec 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions and recommended Order herein shall, as proided
by Sec. 102 48 of the Rules and Regulations, be adopted by the Board
and become its findings, conclusions and Order. and all objections thereto
shall be deemed waived for all purposes
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Post at its plants in Tunnel Hill and Resaca, Geor-
gia, copies of the notice marked "Appendix." 1 7 Copies
of said notice, on forms provided by the Regional Direc-
tor for Region 10, after being duly signed by Respond-
ent's representative, shall be posted by the Respondent
immediately upon receipt thereof, and be maintained by
it for 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 al-
tered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 10, in
writing, within 20 days of the date of this Order, what
steps the Respondent has taken to comply herewith.
Ir IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed in all other respects.
" In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals. the words in the notice reading "Posted
by Order of the National Labor Relations Board" shall read "Posted Pur-
suant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
Noll (I TO ENiPI O YI-S
POSIDI) BY ORDIR 01 IHI
NATIONAl LABOR R.ll AIONS BOARI)
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions, the National
Labor Relations Board found that we have violated the
National Labor Relations Act, as amended, and has or-
dered us to post this notice.
The National Labor Relations Act gives employees
the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives whom they select
To engage in activities together for purposes
of collective bargaining or to act together for
common interests or protection
To refuse to participate in any or all of these
activities.
WE WILL NOT coercively interrogate our em-
ployees concerning their activities on behalf of
Teamsters Local Union #515, or any other labor
organization.
WE WILL NOT unlawfully solicit our employees
to sign a petition withdrawing their support of the
above Union or any other labor organization.
WE WILL NOT promise employees benefits in
order to induce them to forego their union activity.
WE WILL NOT threaten employees with plant clo-
sure or sale if they select the above Union or any
other labor organization to represent them.
WE WILL NOT threaten our employees that we
will never sign a collective-bargaining agreement
with the Union or otherwise advise employees that
their organizational efforts will be futile.
WE WILL NOT threaten our employees with dis-
charge if they sign union authorization cards.
WE WILL NOT create among our employees the
impression that we have their union activities under
surveillance.
WE WILL NOT discharge or otherwise discrimi-
nate against employees because of their activities on
behalf of the above Union or any other labor orga-
nization.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed to them by the
Act.
WE WILL offer Donnie Kimbrel immediate and
full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights
and privileges previously enjoyed, and WE WILL
make him whole for any loss of earnings he may
have suffered by reason of our unlawful discharge
of him, with interest.
POLK BROS. CONCRETE PRODUCTS