Texas Industries, Inc.

National Labor Relations Board - Board Decisions

Dec 29, 1965

156 N.L.R.B. 423 (N.L.R.B. 1965)

TEXAS INDUSTRIES, INC. 423
1. The laborers currently employed by Metropolitan-Gill-Teton
who are represented by Colorado Laborers' District Council, affiliated
with the International Hod Carriers, Building and Common Laborers'
Union of America, AFL-CIO, are entitled to perform the disputed
work of unloading, handling, fitting, and welding of steel pipe being
installed by Metropolitan-Gill-Teton on the Homestake project at
Buena Vista, Colorado.
2. International Brotherhood of Boilermakers, Iron Shipbuilders,
Blacksmiths, Forgers and Helpers, AFL-CIO, Local Union No. 101,
is not entitled, by means proscribed by Section 8(b) (4) (D) of the
Act, to force or require the Company to assign the above-described
disputed work to boilermakers.
3. Within 10 days of the date of this Decision and Determination of
Dispute, International Brotherhood of Boilermakers, Iron Shipbuild-
ers, Blacksmiths, Forgers and Helpers, AFL-CIO, Local Union No.
101, shall notify the Regional Director for Region 27, in writing,
whether it will refrain from forcing or requiring the Company, by
means proscribed by Section 8(b) (4) (D), to assign the work in dis-
pute to boilermakers rather than laborers.
Texas Industries , Inc. and Dallas General Drivers, Warehouse-
men & Helpers , Local No. 745, affiliated with International
Brotherhood of Teamsters , Chauffeurs, Warehousemen & Help-
ers of America . Case No. 16-CA-92130. December 09, 1965
DECISION AND ORDER
On June 8, 1965, Trial Examiner Maurice S. Bush issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices, and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision with a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
156 NLRB No. 42.
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Examiner's Decision and the entire record in this case, including the
exceptions and brief, and hereby adopts the Trial Examiner's findings,
conclusions, and recommendations, with the following additions.
The Respondent urges, among other things, that it had no knowl-
edge of Hester's union activities and that, therefore, the complaint
should be dismissed. The Board, however, agrees with the Trial
Examiner that the Respondent knew of Hester's union activities.
The evidentiary findings of the Trial Examiner are supported by the
record, and there is no basis for disturbing the underlying credibility
resolutions of the Trial Examiner. It has been well established that
direct evidence is not necessary to support a finding of knowledge but
that such knowledge may be inferred by the Board from the record as
a whole. The facts, in the Board's opinion, clearly establish that the
Respondent knew of Hester's union activities when it discharged
him on August 14, 1964, for pretextual reasons which are detailed
by the Trial Examiner, who rejected them.
Hester was a driver of long experience. His qualifications and work
history apparently were extremely desirable to the Respondent, for as
the Respondent points out in its brief, Hester was selected from
approximately 100 applicants.
The Respondent knew that Hester was out on strike against another
employer at the time he was hired and was thus a potential source of
union organization. Foreman Meyer was not engaged in merely
friendly conversation during a routine entrance interview when he,
at the outset of Hester's employment, informed Hester that the
employees had been represented by a union but that the labor organiza-
tion had failed to receive the continued support of the employees
and the plant was nonunion.
Hester's union sympathies were known from the beginning, not only
by the Respondent, but also by the Respondent's other drivers. Ac-
cording to credited, testimony Hester was importuned to bring in the
Union immediately, but in fairness to the Respondent he told his
fellow drivers that he would not engage in such activities until he
had served his 90-day probationary period.
The Respondent contends that union animus was not proved. How-
ever, in the Board's opinion, the record shows that the Respondent
displayed an uncompromising opposition to consideration of employ-
ees' grievances and any expression of dissatisfaction of working con-
ditions by the drivers. At a meeting called by the Respondent on
May 21, 1964, for the purpose of correcting abuses of stop privileges
by the drivers, the drivers complained about their workweek which
exceeded 67 hours, requested the purchase of new equipment, the
hiring of more drivers, and the reduction of the workweek down to
60 hours. The Respondent's reply was that, if they were not sat-
TEXAS INDUSTRIES, INC. 425
isfied, they could look for employment elsewhere. That this was not
an idle threat is apparent in Hester's discharge on August 14, the
morning of the fourth day after he began his successful union orga-
nization campaign.
Moreover, with respect to union animus, there is further direct
evidence that Respondent was opposed to union activity. As found
by the Trial Examiner, shortly after Hester spoke with Rich and other
drivers on June 20, Meyer told him "that anybody that went to Mr.
Sewell, that talked union or anything would get fired." A clearer and
more forceful threat of retaliation for, and statement of opposition to,
union activity would be very difficult to conceive.
It is also apparent from the record, as found by the Trial Exam-
iner, that the Respondent was aware of discontent and of any activity
among the drivers. As found by the Trial Examiner, "at all times
herein material there was deep dissatisfaction, discontent, grumbling,
and outright complaint among Respondent's truckdrivers over the
hours they were obliged to work in excess of a 60-hour workweek."
That the Respondent knew its drivers were dissatisfied with working
conditions is evidenced by the occurrences at the meeting of May 21,
reported by the Trial Examiner in his Decision. That Respondent
quickly learned of the employee organizational activity arising from
the drivers' discontent is fairly inferable in part from the "almost
telegraphic speed" with which Respondnt had earlier learned Hester
had circulated an erroneous report on his conference with Meyer and
Lewis on June 20, warned him of possible discharge for union
activity, and, through Meyer,.told him "you can't say anything around
here that we don't know about."
The timing of Hester's discharge is also significant. Hester's orga-
nizational activity was limited to a 3-day period from August 10
through 13 (days on which he worked 15 hours, 17 hours, and 17 hours,
respectively) and he was discharged on the morning of August 14.
During that period, 23 of the 27 drivers signed union cards, with
Hester presumably obtaining about 10 of the signed cards. The dis-
charge occurred immediately after the successful 3-day organizational
campaign and only approximately 2 weeks after Hester had, to the
Respondent's satisfaction, completed his 90-day probationary period.
Also supporting a conclusion that the Respondent had knowledge
of Hester's union activity are the Trial Examiner's findings which
have substantial record support, that the reasons given by the
Respondent for the discharge were unreasonable and arbitrary, and
that the treatment accorded Hester was disparate. Other drivers with
similar stop records as Hester were neither suspended nor discharged.
Upon the record as a whole and particularly in the light of the
following facts of record, we are convinced and find that Hester's
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union activity was known to the Respondent:' (1) Respondent's
knowledge that Hester, on strike against another employer, was a
potential source of union organization; (2) Respondent's warning to
Hester when he was hired that another union had previously failed to
retain bargaining status in the plant; (3) Respondent's knowledge
that the drivers were extremely dissatisfied; (4) the threat on
May 21, 1964, that dissatisfied drivers should seek employment else-
where; (5) Meyer's threat on or about June 20 that anyone who talked
to Sewell, Respondent's president, about a union would be fired;
(6) the speed with which Meyer received information about Hester's
story of June 20; (7) Meyer's statement to Hester that "you can't say
anything around here that we do not know about;" (8) the timing of
Hester's discharge immediately after a very successful 3-day orga-
nizational campaign which Hester instigated and largely executed;
and (9) the disparate treatment accorded Hester.
In view of the foregoing and because we are persuaded from the
record as a whole and for the reasons more fully set forth in the
Trial Examiner's Decision that Hester was in truth discharged for
his union activity, and not for the reasons asserted by the Respond-
ent, we conclude, as did the Trial Examiner, that his discharge was
violative of Section 8 (a) (3) and (1) of the Act.
[The Board adopted the Trial Examiner's Recommended Order,
with the following modification: Delete paragraph 1(b) in its
entirety.]
' Wie8e Plow Welding Co., Inc., 123 NLRB 616 ; Big Town Super Mart, Inc., 148
NLRB 595, 606 ; Malone Knitting Company, 152 NLRB 643.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The issue in this proceeding is whether the Respondent discharged an employee for
union activities in violation of the unfair labor practices provisions of Section 8(a)(1)
and (3 ) of the Act.
The complaint herein , based on a charge dated October 16, 1964, was issued on the
same date and amended on November 2, 1964. The answer of the Respondent, which
does not bear a filing date , denies the allegations of unfair labor practices.
The case was heard before Trial Examiner Maurice S . Bush at Fort Worth, Texas,
on February 16, 17, 18, and 19, 1965. Briefs have been filed by counsel for General
Counsel and for Respondent.
Upon the entire record in the,case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Respondent , a Delaware corporation , maintains a principal office and place of busi-
ness at 715 Avenue H East, Arlington , Texas (with mailing address at Post Office
Box No. 400, Arlington , Texas ),' and a plant at Midlothian , Texas, where it is
'The complaint alleges that Respondent 's principal office and place of business is at
400 First National Bank Building, Dallas , Texas. The answer denies this and alleges
that Respondent ' s correct address is Post Office Box No. 400 , Arlington , Texas. At the
hearing it was stipulated that Respondent 's principal office and place of business is 715
Avenue H East, Arlington , Texas. The evidence shows, however, that mail Is normally
addressed to Respondent at Post Office Box No. 400, Arlington , Texas.
TEXAS INDUSTRIES, INC. 427
engaged in the manufacture and sale of cement. During the past year, Respondent
manufactured, sold, and distributed at its Midlothian cement plant products valued in
excess of $500,000, of which products valued in excess of $50,000 were shipped to
points outside the State of Texas.
II. THE LABOR ORGANIZATION INVOLVED
Dallas General Drivers , Warehousemen & Helpers, Local No. 745, affiliated with
International Brotherhood of Teamsters , Chauffeurs , Warehousemen & Helpers of
America, hereinafter called the Union or Charging Party, is a labor organization
within the meaning of Section 2(5) of the Act.
III. SETTING AND FACTS RELATING TO ALLEGED UNFAIR LABOR PRACTICES
Respondent is engaged in a number of building material manufacturing enterprises
in various parts of the country, but most of its plants are located within a radius of
250 miles of Fort Worth, Texas. The only enterprise here involved is Respondent's
aforementioned cement plant at Midlothian , Texas, which was opened for production
of bulk cement in August 1960. The plant employs approximately 170 employees, of
which about 27 are truckdrivers . The present labor dispute involves only these
truckdrivers.
The complaint revolves around the discharge of one of Respondent 's truckdrivers,
Kenneth L. Hester, at the said Midlothian cement plant . Hester, a truckdriver of
some 18 years ' experience , was hired by Respondent on April 27, 1964, and discharged
on August 14, 1964. The complaint alleges that Hester was discharged because of his
union activities . Respondent at the hearing and in brief denies that it had any
knowledge of Hester 's union activities at the plant at the time of his discharge and
contends that Hester was discharged strictly for cause.
Respondent assigns two reasons for Hester's discharge . The first, and the one most
relied upon, is that Hester made an excessive number of stops en route to and from
deliveries to customers in that he made more and longer stops than allowed by com-
pany rules for coffee breaks and meals. The second assigned reason for Hester's
discharge is that he operated the equipment regularly assigned to him in such negligent
manner as to cause it to require premature major repairs.
The record shows that Respondent sometime in May 1964 became concerned with
the excessive stops made by many of its cement plant truckdrivers en route to cus-
tomers for deliveries and on the return trips to the plant for reloading . These excess
stops were revealed to Respondent by a mechanical device called a "tachograph"
attached to all tractors used for deliveries of cement . Tachographs are timing devices
which print on a removable graphlike paper disc the number of times a tractor comes
to a stop and the duration of each stop. The disc shows the tractor 's history of stops
over a 24-hour period and new discs are inserted on tractors every 24 hours. Before
inserting a fresh disc , a dispatcher will place thereon the date, the identity of the
tractor by its assigned engine number, and the beginning mileage reflected by the
speedometer . At the end of the 24-hour period the dispatcher , upon removing the
disc from the tachograph , will insert on it the mileage then shown on the speedometer
and the points to which deliveries have been made. All truckdrivers are assigned
certain tractor and trailer units and each tractor is given an engine or vehicle number.
The management is thus at all times informed through a reading of the tachograph
discs of the number of stops made by each of its truckdrivers in a 24-hour period,
although the reasons for such stops can be ascertained generally only by inquiry of
the driver.
On May 21, 1964, the general foreman of the Midlothian cement plant , Ray Lewis,
called a meeting of the plant's truckdrivers. At the meeting Lewis told the drivers
that many of them had been making excessive stops on their way to customers with
deliveries and on the return trip to the plant, but did not single out any individual
drivers for criticism . From the testimony of Lewis and other witnesses , it is estab-
lished that Lewis told the drivers that they were entitled to one 15-minute break in the
morning, a 30-minute lunch period , and a 15-minute break in the afternoon for each
8 hours of employment , with comparable additional "breaks" for additional hours of
work above 8 hours . The drivers were warned that if any drivers took more than
these allowable breaks, they would be given a penalty of a 3-day layoff without pay
for their first infraction and would be discharged on the second infraction. At the
meeting the drivers complained that they were required to work more than 60 hours
a week and requested that more equipment be purchased and additional drivers be
hired so that their workweek could be cut to not exceed 60 hours. This request was
denied and the drivers were told that if they were not satisfied , they could find employ-
ment elsewhere.
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On June 20, 1964, Lewis and his subordinate, Harlan Meyer, shipping foreman at
the cement plant, called in Hester and another truckdriver, Charles R. Ward, for
individual conferences at which they aired complaints about their work. Ward was
called in first and reprimanded for "taking breaks which were too long and too fre-
quent." (Respondent's Exhibits Nos. 1 and 2.) The 3-day layoff penalty for Ward's
excessive stops was not imposed, but a warning was given Ward that he would be
fired if he abused his stop privileges again. He was told that the was being let off with
only a warning this time because he was still a "new employee" with the Company,
although the record shows that he had been working for the Respondent for about
2 years.
Hester was then called in by Lewis and Meyer and asked about two late deliveries
he had made to two different customers on two succeeding days that week on which
the Company had received complaints. Hester explained that one of the late deliveries
was necessitated by a toilet stop. He explained that the second late delivery was
caused by a stalled vehicle in a loop of the road he was traversing which prevented
him from getting his truck through until the road was cleared. Hester testified that his
explanations for the two late deliveries were accepted by Lewis and Meyer at the con-
ference as reasonable. At the hearing, however, Lewis in his testimony sought to
show that the road blockage explanation for the second late delivery does not hold up
because the asserted blockage occurred some 6 miles beyond the place where the
tachograph chart shows the stop in question was to have been made. Lewis admitted
at the hearing that he knew of this alleged discrepancy from his observation of the
tachograph record for the day in question at the time he was talking to Hester at the
conference, but that he did not mention the discrepancy to Hester or demand an
explanation for it. In view of this fact and my observation that Lewis is not the type
of supervisor who would hesitate to challenge an improbable alibi from a subordinate,
I credit Hester's explanation for the late delivery in question. I also credit Hester's
testimony that his explanations for the two late deliveries here discussed were accepted
by his superiors, Lewis and Meyer, as valid.
Meyer in his testimony at the hearing sought to show that the conference of
June 20 with Hester also involved a rebuke and warning to Hester for abuse of stop
privileges in lieu of the 3-day layoff penalty. This testimony is rejected because
Meyer could not at the hearing recall or supply any details of such alleged abuse of
stop privileges and because Hester's tachograph records for the week in question do
not lend themselves to an interpretation of an abuse of stop privileges.2 In summary,
it is found that the conference of Lewis and Meyer with Hester on June 20 related
exclusively to inquiries concerning two late deliveries by Hester whereas the con-
ference of the same date of Lewis and Meyer with truckdriver Ward related to his
abuse of stop privileges for which he received only a rebuke and warning and not the
company-publicized 3-day layoff penalty.
Hester was discharged by Shipping Foreman Meyer upon reporting to work on
August 24, 1964, following a short private conference with Meyer. At the con-
ference Meyer, after making brief inquiry of Hester concerning stops shown on three
of Hester's recent tachograph records, accused Hester of taking too many stops. He
also inquired of Hester as to whether he had been stopping to buy beer while driving
company equipment which Hester emphatically denied. Meyer also said to Hester,
"There is something going on that we did not know about " Hester, taking this to
be a reference to his union activities 3 at the plant, whipped from his pocket a stack
of union application cards 4 and pointing to them replied, "You know what it is all
2 The workweek in question is one commencing June 15 , 1964. During that week
Hester drove tractor No. 12 The tachograph records for No. 12 for that week are in
evidence as Respondent's Exhibits Nos. 8(a) through (e). Stops on the tachographs are
shown by hand-inserted inked arrows Only one of the five tachograph records in evidence
for the week in question show what may possibly be interpreted as an excess of stops
This is the record for June 15 , or Respondent's Exhibit No. 8(a ). The exhibit shows
eight stops as reflected by eight arrows, but it is important to note that the chart also
shows that Hester worked approximately 14 hours that day. Three of the arrows indicate
the briefest of stops. Without testimony to show the nature of the eight stops no con-
clusion can be drawn that the chart shows excessive stops for coffee breaks or food or
rests , as some could be for wholly legitimate reason such as traffic jams or motor trouble
All the other charts for the week show stops which are noteworthily within the number
of stops allowed by company rules for 8 hours of work.
s The details of Hester 's union activities at the cement plant among Respondent's
truckdrivers will be described later in this Decision.
4 The record herein shows that the Union served a representation petition on Respond-
ent on August 17, 1964, which was 3 days after Hester 's discharge
TEXAS INDUSTRIES, INC. 429
about," but declined to allow Meyer, as he reached for the cards, to see them. Meyer
thereupon concluded the conference by telling Hester, "We can't use you any more."
The discharge for alleged abuse of stop privileges was made without the preliminary
3-day layoff penalty the Company had told the drivers they would impose first for
such offenses.
Hester had been told by the dispatcher the night before the above-described con-
ference to report to work at 7:30 in the morning and when he arrived he noticed
that his then regularly assigned tractor and trailer unit, normally waiting for him,
had already been dispatched. From this it is inferred and found that the decision
to discharge Hester had been reached by Respondent prior to Meyer's conference
with Hester at which he was discharged.
The discharge of Hester was pursuant to authority granted by Odel Averett,
assistant superintendent of the Midlothian cement plant, as neither General Foreman
Lewis nor Shipping Foreman Meyer have authority to terminate employees on their
own authority. Lewis and Meyer met with Averett the evening before Hester's dis-
charge with complaints about Hester. It is Averett's testimony that they complained
that Hester had been abusing his stop privileges and that they suspected negligence
on his part had caused his tractor to break down the night before. They also reported
to Averett rumors that Hester had been buying and drinking beer while on the job.
Averett testified that he authorized the dismissal of Hester by his subordinates Lewis
or Meyer if after inquiry Hester was unable to give satisfactory explanations for his
seeming abuse of stop privileges and of the equipment he had been driving, but
expressly declined authority for Hester's discharge on his rumored beer drinking
because "we did not have proof that it was true" and "we do not discharge anyone
on hearsay." Averett's forthright refusal to countenance the dismissal of Hester on
the rumor that he had been drinking beer in working hours (which was in any event
denied by Hester) effectually removes as an issue in this case the question of whether
Hester's discharge was in any part due to drinking while on duty.
Hester later on the same day he was discharged saw and spoke to General Foreman
Lewis who had not been present at Hester's discharge that morning. In the ensuing
conversation, Lewis reaffirmed that Hester's discharge had been due to his alleged
abuse of stop privileges. But Hester also learned for the first time that Lewis felt
that he was responsible for the breakdown of his tractor 2 days ago and that "that
could have entered into the decision" to discharge him. This was the first intimation
Hester had that his discharge was in any part due to "abuse of equipment."
Referring back at this point to the conference of Shipping Foreman Meyer with
Hester on August 14, 1964, at which he discharged Hester, the record shows that
Meyer's remarks to Hester at that time, insofar as they related to Hester's alleged
abuse of stop privileges, related exclusively to Hester's stop records for August 10, 11,
and 12, 1964. The tachograph records on the equipment operated by Hester on these
3 days are in evidence as Respondent's Exhibits Nos. 10(a), 10(b) and 10(c). An
analysis of the tachograph records and related time data is reflected in General
Counsel's Exhibits Nos. 7(a) through (c).
The record shows that on August 10 Hester worked 15 hours, made six stops, and
took 2 hours and 35 minutes for "down time," or breaks from work, that day. Tech-
nically speaking, Hester on that day took one more stop and about 35 minutes in
excess break time than he was entitled to, if there is prorated over his 15-hour
working day the stops 5 and "down time" he is entitled to for each 8 hours of
working time. In view of the 15-hour workday and the factor of fatigue and need
for toilet stops in such a long day, it is found that the "down time" taken by Hester
on August 10 was not excessive.
For August 11 the record shows that Hester put in a 17-hour workday and took
11 stops for which he was charged with 2 hours and 25 minutes of "down tune."
Based on stops and time off allowable under the Company's rules for an 8-hour day.
Hester exceeded his stop privileges roughly by five stops and his time off privileges
by 25 minutes. Two of the stops appear to be for no more than for 5 to 7 minutes
and two others from 10 to possibly 20 minutes. Hester's tractor developed definite
engine trouble the next day. The brevity of some of the five excess stops in the
17-hour workday here under consideration, as shown by the testimony, suggests that
motor trouble had started that day and that the excess stops were made to give the
overheated engine time to cool off. Under the circumstances, it is found that the
evidence is not clear that Hester made any stops for strictly personal reasons, such as
coffee breaks and lunch periods, on August 11 in excess of that allowed by company
rules.
5 As heretofore found the allowable off time under company rules are three "breaks"
per 8-hour day;-I.e., 15 minutes for a morning coffee break, 30 minutes for lunch, and
15 minutes for an afternoon coffee break.
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
For August 12 the record shows that Hester again put in a 17-hour day. Although
the evidence is somewhat conflicting as to whether Hester made 9 stops (Respondent's
Exhibit No. 10(c) or between 9 and 11 stops (General Counsel's Exhibit No. 7(c))
that day, I find from the extensive cross-examination of Shipping Foreman Meyer
that Hester made only 9 stops that day, 1 of which is not to be counted because it
was a stop at the plant for reloading, leaving only 8 stops to be explained, which
is only 2 above that allowable under company rules for a 17-hour workday. The
"down time" on these eight stops was 41h hours. The evidence is quite clear that
the excessive downtime for the day here in question was due to engine trouble. This
is inferred from the fact that the tachograph disc for the day shows that the equip-
ment was being operated at less than normal speed and from the further fact that
Shipping Foreman Meyer himself had placed the word "Engine" in ink on the tacho-
graph disc to show that engine trouble had developed during the course of the day.
In fact, the tractor stalled at the end of the day and was brought back to the plant
by company mechanics. Under the circumstances, it is found that Respondent is
not justified in claiming that Hester took excessive stops or downtime on August 12.
The record contains a summary (General Counsel 's Exhibits Nos. 7 ( a) to (c),
inclusive), of the number of hours worked by Hester each workday in the period
between June 1 and August 13, 1964, together with the number of stops and the
amount of downtime chargeable to him each day. The summary generally shows
that Hester took only the number of stops and the amount of downtime allowable
under company rules and fails to show in and of itself that Hester exceeded the
number of allowable stops or allowable downtime.
The evidence also shows that at all times here pertinent other truckdrivers with
records similar to that of Hester with respect to downtime and number of stops were
never discharged by Respondent or even given the 3-day penalty layoff for abuse
of stop privileges.
The other ground asserted by Respondent for Hester's discharge was his alleged
abuse of the driving equipment assigned to him. Each of Respondent's full-time
truckdrivers is assigned a unit consisting of a tractor and trailer . During most of
his period of employment at the cement plant, Hester was assigned a tractor known
as engine No. 12. No. 12 is a 1960 model tractor. The record shows that No. 12
had been given a "frame overhaul" on February 23, 1964, after it had been in opera-
tion for 123,126 miles; this was 2 months before Hester went to work for Respond-
ent. After the February 23, 1964, "frame overhaul," No. 12 was driven by other
drivers for a total of 25,294 miles. The vehicle thus had a grant total life-time
operation of 148,420 miles before it was assigned to Hester in early May 1964.
Hester was assigned engine No. 12 on May 4, 1964, after having served his first
week as a student driver. In his first week or two "on his own," Hester discovered
and reported to General Foreman Lewis and Truck Shop Foreman H. C. Woolard
that engine No. 12 was running "hot." Woolard checked into the complaint and
came to the conclusion that the excess temperature reflected on engine No. 12's heat
gauge was due to the inaccuracy of the heat gauge, rather than to any defects in the
engine itself. Some adjustment was made on an air shutter on the engine to permit
the maximum amount of cool air to reach it. Notwithstanding this adjustment,
Hester found and complained that the engine still continued to run hot.
On June 25, 1964,6 Respondent's truckdriver Arnold McBeath substituted for
Hester in the operation of engine No. 12 and its trailer for several hours in Hester's
temporary absence. Prior to his taking over the equipment, Hester warned McBeath
that the engine was running hot. An hour or two after taking over the equipment,
McBeath called the plant to advise that he was having extreme difficulty operating
the vehicle due to mechanical troubles and complained bitterly that the engine was
running hot. Respondent's head night mechanic was sent after the truck and brought
it back to the plant where he discovered that the lockout unit of the rear end was
out which made the truck almost completely undrivable. He also discovered that
the engine had a slight knock. The mishap to No 12 occurred at a very busy season
when Respondent urgently required every piece of delivery equipment it had to fulfill
delivery orders. For this reason, Respondent deferred repair of the engine to elim-
inate the knock, but repaired immediately the rear end of the tractor and put the
tractor back to work the next day. On the following day, Saturday, June 27, the
knock having become very much worse, the engine was given a "frame overhaul" in
which only three pistons and related parts were replaced. This second frame over-
6 It is noted that this date is also the date adopted by Respondent in its brief at page 9,
footnote 7, as the date Arnold McBeath substituted for Hester in the operation of Hester's
tractor engine No. 12.
TEXAS INDUSTRIES, INC. 431
haul occurred after engine No. 12 had been driven 25,294 miles by prior truckdrivers
and 4,430 miles by Hester. The record shows that a "frame overhaul," being only a
partial overhaul, is not the equivalent of a fully "rebuilt" overhaul job.
After the frame overhaul of June 27, Hester found that No. 12 was still running
hot. Some 2 weeks later, in the evening of August 12, Hester found that No. 12
was running so hot that it had become inoperable. He called the plant which sent
the same head night mechanic and an assistant to the scene of the trouble with a
tow truck and a replacement tractor. When they got to No. 12, they were able to
start it up and drive it with its connecting loaded trailer up an incline a mile or so
away to a service station where No. 12 was detached from its load and the replace-
ment tractor substituted, after which Hester continued on with his delivery. Although
the engine of No. 12 was running hot, the mechanics did not add any water to the
radiator, but drove the tractor on its own power a distance of some 25 miles to the
plant at a speed of about 40 miles an hour. At this garage it was discovered that
the condition of No. 12 was so bad that its engine was pulled and a rebuilt engine
from another tractor substituted for it.
The evidence presented in this proceeding shows that an overheated engine can
result from a number of causes, such as overfueling, lack of care on the part of the
driver in keeping the radiator full, a defective fuel ejector or fuel pump, a leaky
radiator or radiator hose, and a defective thermostat. The record also shows that
Respondent recognizes that occasionally even a new tractor may be a "lemon" or
troublesome vehicle; from this it is inferred and found that an overhauling job may
also turn out to be a "lemon." It is also found from the record that some of
Respondent's overhauling jobs may fail because of defects in the new parts inserted
in an engine, as occurred in its engine No. 6 (not involved in this proceeding in any
way) which required a reoverhauling after only 500 miles of operation.
Although Respondent has assigned "abuse of equipment" as one of its reasons for
discharging Hester, Respondent's Truck Shop Foreman Woolard in his direct testi-
mony carefully avoided placing direct responsibility on Hester for the mechanical
mishaps of engine No. 12.7 Similarly, when Assistant Superintendent Averett was
asked on cross-examination whether Hester had "abused the truck," he refrained
from flatly putting the blame on Hester for No. 12's engine troubles, but merely
stated an opinion "I think that could be, yes." [Emphasis supplied.] The opinion
was based on the asserted claim that Respondent's trucks usually run 150,000 miles
before requiring overhauling. The record shows, however, that many of Respond-
ent's tractors are overhauled at mileages of only about 75,000 miles and some at even
much lower mileages than 75,000 miles. Thus Respondent's tractor No. 2 was over-
hauled after it had been operated for only 45,100 miles; tractor No. 5, after it had
been operated for only 511 miles; tractor No. 8, after it had been operated for only
79,683 miles; tractor No. 11, after it had been operated for only 44,001 miles; and
tractor No. 27 received a major overhaul, as distinguished from a "frame overhaul,"
after it had been operated for only 77,401 miles. (See Respondent's Exhibits Nos.
15(a) and (b).)
It is inferred, found, and concluded from the above evidentiary facts and the
entire record that Respondent did not have a bona fide belief at the time of Hester's
discharge that he was responsible for the mechanical mishaps of engine No. 12.
General Counsel's case-in-chief shows that at all times herein material there was
deep dissatisfaction, discontent, grumbling, and outright complaint among Respond-
ent's truckdrivers over the hours they were obliged to work in excess of a 60-hour
workweek and the frequency of iecall to duty after less than 8 hours of time off for
sleep. The drivers worked a 5i/2-day week and made an average of five deliveries
each full workday. Most of the drivers put in an 15- to 18-hour workday 4 days
out of the workweek. Although they expected and wanted a 60-hour workweek,
many of Respondent's truckdrivers were required to work from about 70 to 77 hours
and on occasion up to 80 hours a week. They found these long workweeks physically
exhausting and a hazard to safe driving. They took particularly strong objection to
being called back to work with less than 8 hours' time off for sleep after having put
in more than a 16-hour workday. In at least 7 of the 16 weeks Hester had engine
7 Reference here is to transcript 797 where counsel for Respondent put the following
question to Truck Shop Foreman Woolard: "In looking at that incident in August-
the second incident where Hester was involved-in looking at that engine , could you
say, in your opinion whether the damage was related to the performance of the driver
in any way?" Instead of making a direct reply, Woolard answered : "It is the driver's
duty in the performance of his job to watch his guages [sic ] and know what that engine
is doing at all times ." As heretofore indicated , the record shows that Respondent's
mechanics on August 12, 1984, drove the overheated and stalled engine No . 12 a distance
of some 26 miles back to the plant without adding a bit of water to the tractor's radiator.
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
No. 12 assigned to him, he had to report to work with less than 8 hours of time off
from the previous day's work . In one of the weeks, he was required to report back
to work after only 41/2 hours of time off for rest and sleep from the previous day's
work. Another matter of complaint among the truckdrivers was that adequate
measures were not taken by Respondent to keep their equipment in safe driving
condition.
At the aforementioned meeting of May 21 , 1964, at which General Foreman
Lewis spoke to the drivers about the abuse of stop privileges , the drivers openly
complained about the long hours they were required to work and requested that the
Company buy additional equipment and hire more drivers so that the workweek
could be cut from upwards of 67 hours to a 60-hour workweek . The men were told
that if they did not like their working conditions at the cement plant, they could look
for employment elsewhere . The record shows that the labor market in the Fort
Worth area was such that Respondent would have no difficulty in recruiting new
truckdrivers.
It was under these working conditions that Hester started to work for Respondent
at its Midlothian cement plant on April 27, 1964. When it shortly became known
among his new coworkers that Hester had had long experience in union activities as
a former Teamsters Union member, Hester received requests from the drivers to
organize a local Teamsters Union at the cement plant because of their dissatisfaction
with working conditions . Hester declined these early requests because of the recency
of his employment at the plant . Later, however , after he had completed a proba-
tionary 90-day period of employment at the plant , and had himself been recalled to
work a number of times after less than 8 hours of rest and sleep from a previous long
day of work , Hester obtained union membership application cards from the Charging
Party and began efforts to organize his fellow truckdrivers into the Union. By
August 13, 1964 , he had succeeded in getting signed cards from 23 of the 27 truck-
drivers employed at the plant . As shown above, Hester was discharged the next day
upon reporting to work for alleged abuses of stop privileges and driving equipment.
Respondent denies that Hester's union activities had anything to do with his dis-
charge and in fact contends that it had no knowledge of Hester 's union activities at
the time of his discharge. In connection with the issue of whether the Respondent
had knowledge of Hester 's union activities , the following incidents established by the
record are pertinent.
Blackie Rich was a fellow truckdriver at the time Hester worked for the Company.
Blackie saw Hester as he emerged from his above -described conference of June 20,
1964 , with Shipping Foreman Meyer and General Foreman Lewis at which Hester
had been questioned about two late deliveries , and asked Hester what he had been
called in for . Because he was embarrassed and disliked and distrusted Blackie, Hester
replied with a cock-an -bull story that the aforementioned supervisors had called him
in to ask "if I could help them straighten out the driver 's complaints and get every-
thing squared away to where everybody would be happy." He told Blackie that he
had answered his superiors with the remark that after he had served his 90-day
probationary period he would go "to the union and then write everything down on
paper and hand it over to Mr. Sewell ... president of the company , and get every-
thing to where everybody would be happy." Later Hester also told other drivers
that following his probationary period he would see Mr . Sewell "to more or less
get that cement plant straightened out." In addition he told them that he would get
management to fire Shipping Foreman Meyer and would take over Meyer's job.
I find that the substance of these remarks by Hester to Blackie and other drivers was
reported by them to Meyer. The record shows that Meyer shortly thereafter saw
Hester and told him "that anybody that went to Mr. Sewell, that talked union or
anything would get fired for doing such as that" and instructed him to refrain from
seeing Mr. Sewell except "through the proper channels."
Meyer also told Hester on this occasion that "you can 't say anything around here
that we don 't know about ." The record bears out the accuracy of this observation
because as shown above the statements made by Hester to some of his fellow drivers
that he was out to get Meyer's job and that he intended to see Mr. Sewell to get the
plant "straightened out" reached Meyer with almost telegraphic speed. Similarly,
rumors of Hester's alleged beer drinking on the job had also reached Meyer. Although
Meyer in his testimony denied that the statements made by Hester to his coworkers
as relayed to him contained any mention of any proposed union activity by Hester
or even any mention of the word "union ," I do not credit such denials because they
appear improbable under all the circumstances and for the further reason that Lewis'
demeanor and vacillating testimony was not such as to warrant credibility.
At the time of his discharge Hester had 23 signed union cards from the 27 truck-
drivers employed at the plant , including Meyer's informant , Blackie Rich. From
TEXAS INDUSTRIES, INC. 433
the entire record it is inferred, found, and concluded that Respondent had knowledge
of Hester's union activities at the cement plant at the time of his discharge on
August 14, 1964.
Discussion and Conclusions
I find and conclude from my analysis of the lengthy record in this matter that the
reasons advanced by Respondent for Hester's discharge are pretext and that the real
reason for his termination was his union sympathies and activities at Respondent's
cement plant.
The principal reason given by Respondent for Hester's discharge is that he violated
company rules on three specific days, namely, August 10, 11, and 12, 1964, by
making more stops on those days en route to and from deliveries than the permissible
number. As heretofore shown, Respondent's rules allow three stops for each 8 hours
of work. Hester worked 15 hours on August 10; 17 hours on August 11; and 17 hours
on August 12. The detailed analysis above of Hester's stop record for the 3 days
in question shows that on August 10, Hester made six stops instead of the allowable
five stops for a 15-hour day and exceeded his allowable downtime by 25 minutes;
that on August 11, he made five stops above the allowable number and exceeded his
allowable downtime by 35 minutes which the record discloses was in all probability
due to engine trouble; and that on August 12, he made two stops more than allowable
and exceeded his allowable downtime by 41/2 hours which the tachograph record for
the day in question and related testimony establishes was due to motor trouble.
Under the above circumstances, with Hester working more than an average of 16
,hours a day and with the excess stops for the 3 days in question attributable to
toilet calls, fatigue, or engine trouble, Respondent's discharge of Hester for alleged
abuse of stop privileges appears so unreasonable and arbitrary as to constitute a
cover for the real reason for his discharge. This conclusion is fortified by the fact
that Respondent failed to discharge other truckdrivers with tachograph stop records
similar to that of Hester or even to discipline them by imposing the Company's pub-
licized 3-day layoff penalty for abuse of stop privileges.
The second reason given for Hester's discharge-that he abused his tractor-
merits only the briefest mention because the evidence linking Hester with the mechan-
ical mishaps of engine No. 12 is wholly speculative. The record even shows that
Respondent 's supervisors did not entertain a bona fide belief at the time of Hester's
discharge that he was responsible for the mechanical difficulties of No. 12. Accord-
ingly no credence is given to this second reason for Hester's discharge.
When Hester reported to work on the morning of his discharge, his truck had
already been dispatched. This is a clear indication that the interview accorded Hester
by Shipping Foreman Meyer just prior to Hester's discharge for the alleged purpose
privileges and abuse of equipment was spurious and designed to cover up the real
reason for Hester's discharge.
The real reason for Hester's discharge lies in the fact that he was the ringleader
in the endeavor to organize the truckdrivers at the cement plant. There was great
dissatisfaction and discontent among the drivers because of the long 67- to 80-hour
workweek they were required to work. The evidence shows the Company not only
declined to meet the drivers' request for a shorter workweek, but had told them that
if they were dissatisfied, they could look elsewhere for employment. Under these
circumstances, the Company, as an operator of multiple plants in various parts of
the country, would naturally be on the alert for any union activity at the cement
plant which could force its hand to accede to the demands of the drivers for a shorter
workweek. The record shows that Respondent kept very close tab of everything that
went on at the cement plant among its drivers. In fact, it was the boast of Respond-
ent's Shipping Foreman Meyer that nothing went on among the drivers that he did
not know about. He was obviously kept abreast by employee informants of virtually
everything that Hester said and did. Thus, for example, rumors of Hester's alleged
beer drinking and news of Hester's assertion that he was out to get Meyer's job
reached Meyer with almost electrical dispatch. It must be inferred, found, and con-
cluded, despite Meyer's denial, that the news of Hester's union activities which led
to the signing up of 23 of the 27 drivers at the plant just prior to Hester's discharge
reached Meyer very quickly and that this information upon relay to Meyer's superiors
led directly to Hester's discharge in violation of Section 8(a) (1) and (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
It having been found that the Respondent engaged in unfair labor practices in
violation of Section 8(a)(1) and (3) of the Act, it will be recommended that the
Respondent cease and desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
It will be recommended that Respondent offer employee Kenneth L. Hester
immediate and full reinstatement to his former or substantially equivalent position,
without prejudice to his seniority and other rights and privileges, and to make him
whole for any loss of earnings he may have suffered by reason of the discrimination
against him, by payment to him of a sum of money equal to that which he would
have earned as wages from the date of the discrimination against him to the date of
offer of reinstatement and in a manner consistent with Board policy set forth in
F. W. Woolworth Company, 90 NLRB 289. Interest on backpay shall be computed
in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716.
It will also be recommended that the Respondent preserve and make available
to the Board, upon request, payroll and other records to facilitate the computation
of backpay.
It will also be recommended, in view of the nature of the unfair labor practices
the Respondent has engaged in, that it cease and desist from infringing in any manner
upon the rights guaranteed employees 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. Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Dallas General Drivers, Warehousemen & Helpers, Local No. 745, affiliated
with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America, is a labor organization within the meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed them by Section 7 of the Act, as found above, the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
4. By discharging Kenneth L. Hester to discourage membership in a labor orga-
nization, Respondent violated Section 8 (a) (3) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law and upon the
entire record in the case, and pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, it is recommended that Respondent, Texas Industries, Inc.,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in the Dallas General Drivers, Warehousemen &
Helpers, Local No. 745, affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, or any other labor organization,
by discharging, laying off, or otherwise discriminating in regard to the hire or tenure
of employment of employees, or any term or condition of employment.
(b) Interrogating its employees as to their membership in, or activities on behalf
of, the Union, or any other labor organization, in a manner constituting interference,
restraint, or coercion in violation of Section 8 (a)( I) of the Act.
(c) In any other manner interfering with, restraining, or coercing its employees
in the exercise of the rights to self-organization, to form, join, or assist labor orga-
nizations, to bargain collectively through representatives of their own choosing, and
to engage in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any or all such activities.
2. Take the following affirmative action which will effectuate the policies of
the Act:
(a) Offer to Kenneth L. Hester immediate and full reinstatement of his former
or substantially equivalent position without prejudice to his seniority or other rights
and privileges, and make him whole for any loss of earnings he may have suffered
by reason of Respondent's discrimination against him, as set forth in the section of
the Trial Examiner's Decision entitled "The Remedy."
TEXAS INDUSTRIES, INC. 435
(b) Notify the above-named employee, if presently serving in the Armed Forces
of the United States, of his full reinstatement upon application in accordance with the
Selective Service Act and the Universal Training and Service Act, as amended, after
discharge from the Armed Forces.
(c) Preserve and, upon request, make available to the Board or its agents, all
payroll records, social security payment records, timecards, personnel records and
reports, and all other records necessary to analyze the amount of backpay due as set
forth in the section of this Decision entitled "The Remedy."
(d) Post at its cement plant at Midlothian, Texas, copies of the attached notice
marked "Appendix." 8 Copies of the notice, to be furnished by the Regional Director
for Region 16, shall, after being duly signed by authorized representatives of the
Respondent, be posted by Respondent immediately upon receipt 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 said Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(e) Notify the said Regional Director, in writing, within 20 days from the date
of receipt of this Decision and Recommended Order, what steps the Respondent has
taken to comply herewith .9
8In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" In the notice. In the further event that the Board's Order is enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order."
s In the event that this Recommended Order is adopted by the Board, this provision shall
be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in Dallas General Drivers, Warehouse-
men & Helpers, Local No. 745, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America, or any other
labor organization of our employees, by discharging employees for engaging in
protected concerted activity, or in any other manner discriminating against any
individual in regard to his hire, tenure of employment, or any term or condition
of employment, except as authorized in Section 8(a)(3) of the Act.
WE WILL offer to Kenneth L. Hester immediate and full reinstatement to his
former or substantially equivalent position without prejudice to his seniority or
other rights and privileges, and make him whole for any loss of earnings he may
have suffered as a result of the discrimination against him.
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 orga-
nizations, to join or assist the above-named or any other labor organization, to
bargain collectively through representatives of their own choosing, or to engage
in other concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activities, except to
the extent that such rights may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as authorized in
Section 8 (a) (3) of the Act.
All our employees are free to become or remain, or refrain from becoming or
remaining, members of the above-named or any other labor organization.
TEXAS INDUSTRIES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
217-919-66-vol. 156-29
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NOTE.-We will notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the Armed Forces.
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.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, Sixth
Floor, Meacham Building, 110 West Fifth Street, Forth Worth, Texas, Telephone
No. Edison 5-4211, Extension 2131.
Corral Sportswear Company and International Union of Operat-
ing Engineers , Local 670, AFL-CIO. Case No. 16-CA-2410.
December 29,1965
DECISION AND ORDER
Upon charges duly filed by International Union of Operating
Engineers, Local 670, AFL-CIO, herein called the Union, the General
Counsel of the National Labor Relations Board, by the Regional
Director for Region 16, issued a complaint dated August 31, 1965,
against Corral Sportswear Company, herein called the Respondent,
alleging that the Respondent had engaged in and was engaging in
unfair labor practices within the meaning of Section 8(a) (5) and
(1) and Section 2(6) and (7) of the National Labor Relations Act,
as amended. Copies of the charge, complaint and notice of hearing
before a Trial Examiner were duly served upon the Respondent and
the Union.
With respect to the unfair labor practices, the complaint alleges,
in substance, that on or about May 11, 1965, the Union was duly
certified by the Board 1 as the exclusive bargaining representative of
Respondent's employees in the unit found appropriate by the Board
and that, since on or about July 16, 1965, Respondent has refused to
recognize or bargain with the Union as such exclusive bargaining
representative, although the Union has requested it to do so.
On or about October 6, 1965, the parties executed a stipulation
whereby they agreed to the submission of this case directly to the
Board on a stipulated record 2 for findings of fact, conclusions of law,
and a Decision and Order. The parties waived a hearing before a
Trial Examiner, the making of findings of fact and conclusions of'aw
by a Trial Examiner, and the issuance of a Trial Examiner's Decision.
'Decision and certification of representative in Case No . 16-RC-3745 . On June 30,
1965 , the Board by telegraphic order denied Respondent 's petition for reconsideration of
this Decision and certification of representative.
2 The record as stipulated to by the parties consists of the stipulation and the follow-
ing: the charge , the complaint and notice of hearing , the answer to the complaint, and
the entire proceedings in Case No. 16-RC-3745.
156 NLRB No. 58.