Texas Industries, Inc.

National Labor Relations Board - Board Decisions

Oct 23, 1962

139 N.L.R.B. 365 (N.L.R.B. 1962)

TEXAS INDUSTRIES, INC., ETC . 365
The provisions of this notice relating to the discrimination against
Linnenberg shall not be taken to apply to International Longshore-
men's Association, Independent, and the provisions of this notice
relating to the payment of backpay and the reimbursement of percent-
ages shall not be taken to apply to C. B. Morrow.
INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, IND.,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
LOCAL 1351, STEAMSHIP CLERKS AND CHECKERS, INTER-
NATIONAL LONGSHOREMEN'S ASSOCIATION, INC.,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
Dated---------------- B
C. B. MORROW
(Business Agent, Local 1351)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, 6617 Federal Office Building, 515 Rusk Avenue, Houston 2,
Texas, Telephone Number, Capitol 8-0611, Extension 296, if they have
any question concerning this notice or compliance with its provisions.
Texas Industries , Inc.; and Dallas Lightweight Aggregate Com-
pany, Texcrete Structural Products Company, Texcrete Mosaic
Company, and Texcrete Company, Divisions of Texas Indus-
tries , Inc. and International Hod Carriers , Building & Com-
mon Laborers Union of America Local 518. Case No. 16-CA-
1565. October 23, 1962
DECISION AND ORDER
On April 26, 1962, Trial Examiner Lloyd A. Fraker issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had not engaged in and were not engaging in the
unfair labor practices alleged in the complaint, and recommending
that the complaint be dismissed in its entirety, as set forth in the
attached Intermediate Report. Thereafter, the General Counsel filed
exceptions to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
139 NLRB No. 22.
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this case to a three-member panel [Chairman McCulloch and Members
Leedom 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 entire
record in this case, including the Intermediate Report and the General
Counsel's exceptions and brief, and, as it finds merit in some of these
exceptions, hereby adopts the Trial Examiner's findings, conclusions,
and recommendations only to the extent consistent herewith.
1. The Trial Examiner found in his Intermediate Report that the
charge filed in this proceeding did not support certain allegations in
the complaint of violations of Section 8 (a) (1). We do not agree.
The original charge, filed on October 26, 1961, alleged that the Re-
spondents had engaged in and were engaging in unfair labor practices
within the meaning of Section 8(a) (3) and (1) of the Act. As a
basis for these violations, the charge further alleged that, on or about
September 18, 1961, the Respondents laid off Henry Tadlock because
of his membership in and activities on behalf of Local 518, Interna-
tional Hod Carriers, Building & Common Laborers Union of America,
and, by other acts and conduct, interfered with, restrained, and coerced
"the above-named employee" in the exercise of the rights guaranteed
by Section 7 of the Act.'
The complaint, on the other hand, alleged, inter alia, that the Re-
spondents had violated Section 8(a) (1) by their conduct toward
employees other than Tadlock. At the hearing, the Respondents
moved to dismiss such allegations of the complaint on the ground that
they were not supported by the charge. The Trial Examiner denied
the motion and received evidence on all the alleged violations of Sec-
tion 8 (a) (1). In the Intermediate Report, however, the Trial Ex-
aminer reversed this ruling, refused to consider evidence of any con-
duct by the Respondents which did not directly involve Tadlock, and
recommended dismissal of all such allegations on the ground that the
charge did not allege violations with respect to any individual other
than Tadlock.
It is well established that a charge is not a pleading, but merely
serves to initiate a Board investigation to determine whether a coin-
plaint shall be issued. Subject only to the requirement that there must
be some relationship between the allegations in the complaint and the
language of the charge, it is the function of the complaint, and not the
charge, to serve notice upon a respondent of the particular conduct
alleged to be violative of the Act. Where, as here, the charge alleges,
in general language, that Section 8 (a) (1), as well as 8 (a) (3), have
1 The amended charge, filed November 16, 1961 , was identical in these respects to the
original charge.
TEXAS INDUSTRIES, INC., ETC. 367
been violated, without particularizing the conduct alleged to be viola-
tive of Section 8(a) (1), the charge is sufficient to support the specific
allegations in the complaint of Section 8 (a) (1) conduct during the
6-month period preceding the service of the original charge, and
subsequent thereto. We therefore find that the charge was adequate
to support the entire complaint 2
2. Undisputed evidence shows that, shortly after the complaint
issued, Nelson, one of the Respondents' attorneys, and Personnel Man-
ager Logan separately interviewed a total of 147 of the Respondents'
200 employees. Each employee interviewed was told by his foreman,
during working hours, to report to the office, where Nelson or Logan,
in the presence of a supervisor, read to the employee a statement to
the effect that a complaint had been issued by the Board, and asked
the employee if he had any objections to telling what he knew about
the case. The employee was then asked a list of questions, including
the following :
Have you talked to an agent of the NLRB about this case? If
answered yes, state who, what, when, and where.
Did you give a sworn statement?
What, if anything, did you tell the agent of the NLRB?
Do you object to giving us a copy of the statement you gave
the NLRB?
Will you sign a request for the NLRB to send a copy of your
statement?
After the interviews were concluded, four employees were picked
up at the Respondents' Dallas plant, during working hours, by two
supervisors in a plant official's automobile. After they left the plant,
the supervisors told the employees they were going to Fort Worth
to get copies of their Board affidavits. At Fort Worth, Attorney
Nelson joined the group. They then proceeded to the Board's Re-
gional Office, where they obtained a copy of one employee's affidavit,
and to the homes of the other three employees, where copies of their
affidavits were obtained. When the group returned to the plant, the
affidavits were turned over to Price, another of the Respondents' at-
torneys. Price interviewed each of the four employees in a private
office, in the presence of a supervisor. Price read each employee's
affidavit to him, and asked him whether the statements therein were
true, and questioned him about the details of the incidents referred
to in his affidavit.
The Board has held that such statements given to Board agents are
confidential, and that an employer's demands on employees for copies
thereof or interrogation about their contents necessarily exerts an
2 N L.R.B v Raymond Pearson, Inc., 243 F. 2d 456 (CA 5) ; Triboro Carting Corpora-
tion, 117 NLRB 775.
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inhibitory effect on the willingness of employees to make such state-
ments, and thereby interferes with employees' exercise of their rights
under Section 7 of the Act.' We therefore find, contrary to the Trial
Examiner, that the Respondent, by the above conduct, violated See-
tion8(a) (1).
3. The complaint also alleged that the Respondents violated Sec-
tion 8 (a) (1) by threatening to abolish the employees' credit union if
the Union won the election scheduled to be held by the Board. At
the hearing, testimony was presented by some of the General Coun-
sel's witnesses that Production Manager Sewell had written a letter
to all employees before the Board election in which he threatened to
abolish the credit union if the Union won. The Respondents then
introduced in evidence a copy of a printed letter which was the only
letter Sewell wrote to the employees before the election. In the
Intermediate Report the Trial Examiner discussed only the last para-
graph of this letter, which he found, and we agree, did not contain a
threat to abolish the credit union. However, the Trial Examiner
made no reference to other paragraphs in this letter which the Gen-
eral Counsel contends in his exceptions were violative of Section 8
(a) (1).4 The letter contained the following two paragraphs.
There is only one way a union representative can enforce his
demands upon the Company. This is by calling a strike. When
you strike, you will lose your wages and possibly your job. The
Company is free to hire someone to take your place while you
are striking and when the strike is over there may not be a job
for you.
You know that under union methods we would not have been
able to operate with continuous employment for you during the
past year. Good pay checks depend upon continuous full time
employment.
We find that the Respondents, by these statements, indicated to
their employees that the designation of a union representative would
inevitably lead to strikes, lower wages, and loss of jobs, as well as the
discontinuance of full-time employment. Such threats of economic
loss, should the union win the election, clearly constituted interference,
restraint, and coercion of employees in the exercise of the rights guar-
anteed by Section 7, in violation of Section 8 (a) (1) of the Act.'
8 Hilton Credit Corporation, 137 NLRB 59 , footnote 1 ; Corpus Christi Grain Exchange,
Inc., 132 NLRB 145 (Intermediate Report).
d Although the complaint did not allege that the letter itself was unlawful, the Respond-
ents introduced it and relied on it as a defense The legality of the entire letter was
thereby put in issue by the Respondents Moreover , the facts with respect thereto were
fully litigated See Seaboard Terminal and Refrigeration Company, 114 NLRB 1391,
footnote 11.
6 Member Leedom would find that the statements in the Sewell letter constituted per-
missible predictions , which the Union had ample opportunty to refute , and, therefore, that
they did not violate the Act.
TEXAS INDUSTRIES, INC., ETC. 369
4. On the basis of the entire record and the Trial Examiner's credi-
bility resolutions, which we adopt, we concur in his finding that the
Respondents did not violate the Act by the discharge of Henry Tad-
lock. While Tadlock was the leader of the union activity, obtained
authorization cards from 40 employees, and was the union observer
at the Board election conducted on June 30, 1961, the evidence fails
to establish that he was terminated for discriminatory reasons.
In September 1961, it became necessary for economic reasons to
reduce production in the block plant cubing department, where Tad-
lock was employed as a forklift operator, by 25 percent. At a man-
agement meeting on September 15 attended by Spraggins, the pro-
duction manager of all the Respondents' operations, and Cook,
production superintendent of the block plant, it was decided to dis-
continue the cubing department night shift. Upon inquiry, it was
learned that the foreman of the prestress plant, where work was
picking up, could use men experienced in that work. As five of the
night shift employees had had such experience, it was decided to trans-
fer them to prestress. The prestress foreman was also persuaded to
take an additional employee who had no prestress experience but whom
Cook particularly wanted to keep because he was available for night
work. It was then decided that a forklift operator job could be
eliminated. Cook selected Tadlock for layoff after examining the
personnel folders of the department's four forklift drivers. At the
hearing, Cook explained that it was his policy to lay men off accord-
ing to seniority if everything else, such as qualifications, ability, and
willingness to do the job, were equal; that he selected Tadlock for
layoff because Tadlock had the least seniority of the four forklift
drivers,6 because his production was less than that of the one other
driver doing the same work, and because of his poor attitude toward
the Respondents; that by poor attitude he had reference to Tadlock's
recent complaints that the Respondents had "cheated" him out of his
earnings by the operation of a new timeclock, and similar complaints
in terms of "cheating" him on other occasions. Whe Cook informed
Tadlock of his layoff for the foregoing reasons, Tadlock asked Cook
whether there was any other job in the plant he could fill, but
Cook replied there was not. Cook testified that Tadlock had no
experience in the prestress plant, and for personal reasons had been
unable to work nights. Tadlock was laid off on September 18. Four
cubing production employees were also laid off in the reduction in
force, one on the same day as Tadlock and three in October. None
have been replaced.
9 The three forklift drivers in this department , all with greater seniority than Tadlock,
were: Betts , Golden, and Valesquez . The dissenting opinion refers to forklift drivers with
less seniority than Tadlock who were nevertheless retained . These individuals , however,
worked in different departments, and it was not Respondent 's practice to permit depart-
mental "bumping ." The record shows that departmental transfers , which are referred to
in the dissent, occurred only in the event of job vacancies.
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The above facts clearly show that the Respondents decided to re-
duce production for economic reasons, with the result that a reduction
in personnel became necessary. The Respondents selected Tadlock,
among others, for layoff because he was junior in seniority, his pro-
duction rate was low, and he had several times accused the Respondents
of "cheating" him with regard to his pay. Moreover, there was no
job available to which Tadlock could be transferred, as there was for
some of the employees scheduled for layoff, because he did not have
their qualifications for such jobs.
Accordingly, we find that the General Counsel has not established
by a preponderance of the evidence that Tadlock's selection for lay-
off was discriminately motivated, and, therefore, we find that his dis-
charge was not violative of Section 8 (a) (3) of the Act.
The General Counsel contends, however, that even if Tadlock's ter-
mination did not violate Section 8 (a) (3), it was a violation of Sec-
tion 8 (a) (1) because one of the asserted reasons for Tadlock's selec-
tion for layoff was "his attitude," by which the Respondents referred
to his complaints about the timeclock. These complaints, the Gen-
eral Counsel continues, were protected, concerted activity. In sup-
port of this contention, the General Counsel points out that the opera-
tion of the new timeclock was a matter of concern to all the employees,
and many of them had complained about it; that Tadlock had dis-
cussed the timeclock with other employees; that, on one occasion, Tad-
lock said to employee Valesquez : "Well, here comes Mr. Cook now.
I think I will just ask him if he can fix my [time] card up"; and that
Valesquez replied that, if Tadlock could get his timecard fixed, Vales-
quez would do the same. The General Counsel also relies on the fact
that Tadlock's foreman, Cottrell (who was not, however, consulted
by Cook in selecting Tadlock for layoff) testified that Tadlock had
told him, "The timeclock is cheating us." Tadlock himself, however,
did not testify that he was speaking for anyone else.
We find no merit in the General Counsel's contention. We have
found that Respondents laid off Tadlock for economic reasons. Tad-
lock's attitude as exemplified by his accusation of "cheating" was
merely one of several peripheral circumstances considered by Re-
spondents in deciding not to depart from the seniority standard
normally used to select employees for layoff in a reduction in force.
Accordingly, even assuming arguendo that Tadlock's "cheating"
accusations could be regarded as a concerted activity within the mean-
ing of the Act, we conclude that under all the circumstances of this
case, it was not an operative factor in the discharge and that
Respondents' selection of Tadlock for layoff did not abridge any
Section 7 right in violation of Section 8(a) (1) of the Act.7
Y N L R B. v. Blue 13e11, Inc, 219 F. 2d 796 (C A. 5) ; Miller Electric Manufacturing Co ,
Inc v. N L R.B , 265 F. 2d 225 (C.A 7).
TEXAS INDUSTRIES, INC., ETC. 371
THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth above, occurring in con-
nection with its operations as set forth in the Intermediate Report,
have a close, intimate, and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce.
THE REMEDY
Having found that the Respondents engaged in certain unfair labor
practices, we shall order that they cease and desist therefrom and take
certain affirmative action which we find necessary to effectuate the
policies of the Act.
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Texas Industries, Inc., and Dallas Lightweight Aggregate Com-
pany, Texcrete Structural Products Company, Texcrete Mosaic Com-
pany, and Texcrete Company, Divisions of Texas Industries, Inc., are
engaged in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. International Hod Carriers, Building & Common Laborers Union
of America Local 518 is a labor organization within the meaning of
Section 2 (5) of the Act.
3. By interrogating employees in connection with, and obtaining
copies of, their Board affidavits, and by threatening them with eco-
nomic loss if they designated a collective-bargaining representative,
the Respondents have violated Section 8(a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
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 Respondents, Texas Indus-
tries, Inc., and Dallas Lightweight Aggregate Company , Texcrete
Structural Products Company, Texcrete Mosaic Company, and Tex-
crete Company, Divisions of Texas Industries, Inc., their officers,
agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Interrogating their employees in connection with, and obtain-
ing copies of, their Board affidavits in a manner constituting inter-
672010--63-vol. 139-25
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ference, restraint, or coercion within the meaning of Section 8(a) (1)
of the Act.
(b) Threatening their employees with economic loss if they desig-
nated a collective-bargaining representative.
(c) In any like or related manner interfering with, restraining, or
coercing their employees in the exercise of their right to self-
organization, to form, join, or assist International Hod Carriers,
Building & Common Laborers Union of America Local 518, or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or pro-
tection, 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) Post at their plants in Dallas, Texas, copies of the notice
attached hereto marked "Appendix." 8 Copies of said notice, to be
furnished by the Regional Director for the Sixteenth Region, shall,
after being duly signed by the Respondents' representative, be posted
by the Respondents immediately upon receipt thereof, and be main-
tained by them for a period of 60 consecutive days thereafter in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ents to insure that said notices are not altered, defaced, or covered by
any other material.
(b) Notify the Regional Director for the Sixteenth Region, in writ-
ing, within 10 days from the date of this Order, what steps have been
taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the Respondents violated the Act by conduct other than that found to
be violative herein, be, and it hereby is, dismissed.
MEMBER BROWN, dissenting in part :
I dissent to my colleagues' failure to find that Tadlock was unlaw-
fully terminated.
My colleagues would minimize Respondent's consideration of Tad-
lock's "attitude" by asserting that it was merely one of several "periph-
eral" circumstances considered by Respondent in the selection of em-
ployees for layoff. I believe however, that the record amply supports
the conclusion that Tadloc's alleged "attitude" as illustrated by his
complaint about the timeclock was a substantial factor in his selection.
Respondent acknowledged this when Cook, production superintend-
ent, testified that Tadlock's attitude was a factor considered and Cook
8 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 "
TEXAS INDUSTRIES, INC., ETC. 373
then testified at length concerning various purported incidents exem-
plifying this attitude.
The events leading up to Tadlock's statement about the timeclock
commenced with the installation of a new timeclock about 1 month
prior to Tadlock's layoff. Thereafter the Respondent received ap-
proximately 20 complaints from various employees concerning the
timeclock's operation. Tadlock, who was known to the Respondent
as the chief protagonist of the union organizing campaign, had dis-
cussed the timeclock with other employees and told employee Vales-
quez he was going to see if he could have his timecard adjusted.
Valesquez replied that if Tadlock got his card fixed up, Valesquez
would do the salve. The credited testimony of Foreman Cottrell is
that Tadlock told him, "the timeclock is cheating us." Under these
circumstances I would find that Tadlock in his complaint concerning
the timeclock was engaging in protected concerted activity.9
My colleagues further find that in laying off Tadlock Respondent
did not depart from its normal layoff standards and practices. I
disagree.
Superintendent Cook in testifying concerning company policy,
stated that "In layoffs and job assignments and all, seniority rules if
everything is equal." Both Cook and Production Manager Spraggins
testified that employees were frequently transferred from department
to department, and Foreman Cottrell stated that whenever possible
men would be transferred rather than laid off. Cook also testified
that he had praised Tadlock's work and that Tadlock was more
dependable than Betts, a forklift operator who was retained. Addi-
tionally the record reveals that Tadlock was senior to two other fork-
lift employees, Wright and Trammel, who also were retained. Fi-
nally, it appears that Cook took it upon himself to notify Tadlock of
his layoff without prior consultation with Tadlock's immediate su-
perior as was customary.
In view of the foregoing, I would direct Tadlock's reinstatement
with backpay as a remedy.
U Walls DTanufacturtng Company, Inc, 137 NLRB 1317 ; Burnup