Texas Industries, Inc.

National Labor Relations Board - Board Decisions

Feb 18, 1969

174 N.L.R.B. 563 (N.L.R.B. 1969)

TEXAS INDUSTRIES 563
Texas Industries , Inc. and International Union of
Operating Engineers , Local 819 , AFL-CIO. Case
16-CA-3254
February 18, 1969
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On November 1, 1968, Trial Examiner Sydney S.
Asher, Jr., issued his Decision 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 Decision. The
Trial Examiner further found that the Respondent
had not engaged in certain other unfair labor
practices alleged in the complaint, and
recommended that those allegations be dismissed.
Thereafter, the Respondent and the General Counsel
each filed exceptions to the Trial Examiner's
Decision and supporting briefs.
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.
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
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner with the following modifications.
The Trial Examiner concluded that the
Respondent's disciplinary 1-week layoff of Olan
Gasway did not violate Section 8(a)(3) of the Act.
Consequently, the Trial Examiner also found that a
letter of reprimand, issued to Gasway in conjunction
with his layoff, did not violate Section 8(a)(1) of the
Act.
As more fully set forth in the attached Trial
Examiner's Decision, the record reveals that Gasway
was an active union protaganist. Shortly after the
March 15, 1968, union election victory he began
prominently displaying his prounion sentiments. The
Trial Examiner found, and we agree, that it was at
this time that Respondent became aware of
Gasway°s union sympathies. On April 5, Gasway,
while at work, received word that his in-laws in
Oklahoma were ill. Near the close of his workday
Gasway went to foreman J. B. Tate's office and
informed him that his in-laws were ill and he could
not report to work the next day. Tate did not reply.
Gasway then left Tate's office, but returned a short
time later. On this occasion Gasway noted that Tate
had listed him as working the next day and again
stated that he could not report as he had to go to
Oklahoma. Tate replied that he was already short of
personnel, but he erased Gasway's name from the
list. Gasway left and next reported for work on
Monday, April 8.
On that Monday, Gasway discovered that his
timecard had been removed from its usual place. He
sought an explanation from Tate and was informed
that he was being suspended from work for 1 week.
Thereupon, Gasway left. When he reported on the
following Monday, Gasway received a letter of
reprimand. In essence, the letter stated that his
suspension resulted from the fact that Gasway had
told Tate he could not report to work on the
Saturday in question instead of requesting the time
off.
The Trial Examiner based his dismissal of the
allegations relating to Gasway's suspension
primarily upon the testimony of another employee,
Leroy Neally. In substance, Neally testified that on
March 27 (approximately 2 weeks after the election)
he notified Tate in writing that, due to a death in
his family, he would not report to work on March
29. Accordingly, he did not report to work on that
date and was never reprimanded. Neally further
testified that he prominently displayed his union
affiliation and, in fact, told the Respondent's
management that he was a union adherent. The
Trial Examiner reasoned that Neally, a strong union
adherent, had not been disciplined for engaging in
essentially the same conduct as Gasway - only a
short time before Gasway's actions. Thus, the Trial
Examiner concluded that the General Counsel had
failed to meet his burden of proving that the
disciplinary measures taken against Gasway were
substantially related to Gasway's support of the
Union. We do not agree.
The matter of whether Neally was not disciplined
for engaging in conduct essentially the same as
Gasway's does not dispose of the issue presented by
the Respondent's treatment of Gasway. The fact
that another union adherent may not have been
discriminated against, while it may have some
relevance, is not determinative of whether the
disciplinary measures taken against Gasway were
substantially motivated by his union activities.
The record in this case reveals the existence of
several instances of interrogation, threats, and the
withholding of benefits, which were correctly found
by the Trial Examiner to constitute 8(a)(1)
violations. In fact, two of these threats were uttered
around the time of Gasway's suspension. One of the
threats pertained to the fact that, since the Union
had won the election, the Respondent would enforce
its rules more stringently. That statement was made
to an employee by foreman Tate's supervisor and in
Tate's presence. The day of Gasway's suspension, as
well as on previous occasions, Tate threatened
employees with the loss of benefits because of the
Union victory. Thus, through the commission of
numerous 8(a)(l) violations before and after the
election, Respondent has clearly demonstrated its
174 NL RB No. 83
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union animus.
In reaching our decision herein, we also find
significant an additional factor not noted by the
Trial Examiner. In his testimony Tate admitted that
he knew Gasway's in-laws in Oklahoma were ill and
he had, before the election, granted Gasway time
off. Thus, before the Respondent knew of Gasway's
union affiliation, he encountered no difficulties in
receiving time off to assist his in-laws. Although, on
the occasion in question Tate appeared to grant his
request, Gasway returned from Oklahoma to find
that he was suspended for 1 week and, later,
received a letter of reprimand.
The disciplinary measures taken against Gasway,
whose union sympathies had recently become known
to the Respondent, must be viewed in the context of
the demonstrated union animus evinced by the
Respondent's commission of the numerous 8(a)(1)
violations found herein. The strong prima facie case
presented by the foregoing is not rebutted by the
Respondent assertions that Gasway's suspension and
the subsequent letter of reprimand resulted from the
manner in which he sought time off. In view of the
foregoing and the additional facts that foreman Tate
was cognizant of Gasway's predicament, had
granted necessary time off before the election, and
appeared to do so at this time, we find the
Respondent's defense of its disciplinary action
herein to be without merit.
Accordingly, we find that the Respondent's
conduct in issuing Olan Gasway, a letter of
reprimand and suspending him from work for 1
week was discriminatorily motivated and therefore
in violation of Section 8(a)(1) and (3) of the Act.
THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1)
and (3) of the Act, we shall order the Respondent
cease and desist therefrom and take certain
affirmative action which we find necessary to
remedy and remove the effects of the violation and
to effectuate the policies of the Act. We have found
that the Respondent unlawfully suspended employee
Olan Gasway, thereby causing him to lose 1-week's
employment. Therefore, we shall order that the
Respondent make him whole for any loss of pay he
may have suffered by payment to him of a sum of
money equal to that which he normally would have
earned during the period of his unlawful suspension
less net earnings during said period, together with
interest thereon at the rate of 6 percent per annum.'
We have also found that, in conjunction with its
unlawful suspension, the Respondent also unlawfully
issued a letter of reprimand to employee Gasway.
Therefore, we shall order that the Respondent
rescind the illegal letter of reprimand.
' Isrs Plumbing & Heating Co., 138 NLRB 716.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified below, and hereby orders that the
Respondent, Texas Industries Inc., Tarrant County,
Texas, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial
Examiner's Recommended Order, as herein
modified.
1. Insert the following paragraph as 1(d) of the
Recommended Order and reletter the present
paragraph 1(d) to 1(e);
(d) Discourage membership in the above-named
labor organization by discriminatorily suspending
any of its employees or by issuing a letter of
reprimand in conjunction with such a suspension.
2. Insert the following paragraphs as 2(b), 2(c),
and 2(d) in the Recommended Order, and reletter
the present paragraphs 2(b) and 2(c) as 2(e) and
2(f):
(b) Make whole employee Olan Gasway for any
loss of pay which he may have suffered as a result
of our discrimination against him, in the manner set
forth in the section of the Board's Decision entitled
"The Remedy."
(c) Rescind the letter of reprimand issued to Olan
Gasway in conjunction with his discriminatory
suspension.
(d) Preserve and, upon request, make available to
authorized agents of the Board, for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary or useful in
computing the backpay due, or determining
compliance with any provision hereof.
3. Insert after the third indented paragraph of the
notice the following paragraph:
WE WILL NOT discourage membership in the
above-named union or any other union by
discriminatorily suspending any of our employees
nor by issuing a letter of reprimand in conjunction
with such a suspension.
4. Insert after the fifth indented paragraph of the
notice the following paragraphs: ,
WE WILL make whole Olan Gasway for any
loss of pay he may have suffered by reason of the
discrimination against him.
WE WILL rescind the letter of reprimand issued
to Olan Gasway in conjunction with his
discriminatory suspension.
WE WILL preserve and, upon request, make
available to authorized agents of the Board, for
examination and copying, our payroll records,
personnel records and reports, social security
payment records, and all other records necessary
or useful in computing the backpay due, or
determining compliance with the Board's order
herein.
TEXAS INDUSTRIES
TRIAL EXAMINER'S DECISION
SYDNEY S. ASHER, JR., Trial Examiner: On March 27,
1968, International Union of Operating Engineers, Local
819, AFL-CIO, Fort Worth, Texas, herein called the
Union, filed charges against Texas Industries, Inc.,
Arlington, Texas, herein called the Respondent. After the
filing of two amended charges, the General Counsel of the
National Labor Relations Board issued a complaint on
May 24, 1968 This alleges that since on or about
December 1, 1967, the Respondent has interfered with,
restrained, and coerced its employees by certain specified
conduct, that since on or about March 1, 1968, it has
withdrawn from its employees certain benefits by
restricting the use of batch rooms; that since on or about
March 15, 1968, it has withheld from its employees waste
concrete, that from on or about April 8 to on or about
April I5, 1968, it laid off employee Olan Gasway, and
that the Respondent engaged in said conduct because its
employees joined or assisted the Union or engaged in
other concerted activities. It is alleged that this conduct
violated Section 8(a)(1) and (3) of the National Labor
Realtions Act, as amended (29 U.S.C. Sec 151, et seq.),
herein called the Act. Thereafter the Respondent filed an
answer admitting that it laid off Gasway from on or about
April 8 to on or about April 15, 1968, but denying that it
took this action because he joined or assisted the Union or
engaged in other union activities. It denied all other
conduct alleged, and denied the commission of any unfair
labor practices.
Upon due notice a hearing was held before me on June
27 and 28, 1968, in Dallas, Texas. All parties were
represented and participated fully in the hearing. After the
close of the hearing the General Counsel and the
Respondent filed briefs. These have been duly considered.
Upon the entire record in this case, and from my
observation of the witnesses, I make the following.
FINDINGS OF FACT
The complaint alleges, the answer admits, and it is
found that the Respondent is, and at all material times
has been, an employer engaged in commerce as defined in
the Act, and its operations meet the Board's jurisdictional
standards;' and that the Union is and at all material times
has been, a labor organization as defined in the Act.
A. The Setting
The Respondent's facilities in Tarrant County, Texas,
include a number of ready-mix plants. In mid-December
1967 the Union began to organize the employees in these
plants. On January 3, 1968, the Union filed with the
Board a petition seeking to represent the Respondent's
production and maintenance employees in Tarrant
County, including, among others, all truckdrivers
employed at the Tarrant County ready-mix plants (Case
16-RC-4816). On February 21,2 the Regional Director
issued a Decision and Direction of Election. The election
'The Respondent is, and at all material times has been, a Delaware
corporation with its principal office and place of business in Dallas, Texas,
and other facilities in the States of Texas, Louisiana, and Oklahoma,
where it manufactures, sells, and distributes building materials , including
ready-mix concrete , masonry products, structual concrete , and related
products . During the 12 months prior to May 24, 1968 , the Respondent's
total sales exceeded $500,000, and products valued at more than $50,000
were shipped from its Texas facilities directly to destinations outside the
State of Texas.
565
was held on March 15 and resulted in a victory for the
Union. On May 20 (after the filing of the charges herein)
the Regional Director certified the Union as the exclusive
bargaining representative of the employees in the unit.'
This case is concerned with employees within the unit,
and with events which occurred in the months immediately
before the election and the months immediately afterward.
B. Interference, Restraint, and Coercion
1. Interrogation
a. Contentions of the parties
The complaint alleges that on or about March 1 and
again on or about March 12 R. P McDaniels, a
supervisor and agent of the Respondent, interrogated the
Respondent's employees "concerning their union
membership, activities, and desires." It further alleges that
Jack McKee, another supervisor and agent of the
Respondent, engaged in similar conduct on or about
March 12. The answer admits the supervisory status and
agency of McDaniels and McKee, but denies that they
engaged in activity violative of the Act.
b. By McDaniels
Approximately 2 weeks before the election of March 15
truckdrivers Hubert B. Cole and Clyde Underwood were
at Plant 13 when McDaniels, fleet superintendent of the
Respondent's North Central Texas Concrete Division,
came in. After some preliminary conversation, McDaniels
asked the drivers "how [they] thought the election was
going to come out." Cole replied: "I think it is going to
come out all right." McDaniels remarked: "Well, now, if
you wanted to work for a Union place why didn't you go
somewhere else and go to work? I think it is a conniving
deal that you came back over here and go to work4 and
push the Union like you have. Have you come back to
organize and start the Union?" Cole replied: "No, sir, the
Union was already started when I came back," adding
that he was sorry McDaniel felt that way about it., The
remainder of the conversation is described hereafter. I
conclude that by asking Cole if he had returned to the
Respondent's plant to organize the Union, coupled with
the intimation that if he wanted the Union he should work
elsewhere6 - especially in the context of other unfair
labor practices found hereafter - McDaniels illegally
interrogated Cole in violation of Section 8(a)(1) of the
Act.
On March 13 or 14 McDaniels spoke to truckdriver
Eamon Willis Behrens at the Arlington plant. McDaniels
asked 'Behrens how he was going to vote in the
forthcoming election. Behrens replied that he "was going
for the Union this time." McDaniels remarked: "I hope
you see to vote right."' That was the end of the
'All dates hereafter refer to the year 1968 unless otherwise noted.
'These findings are based on the record in Case 16-RC-4816, of which I
take official notice. The procedural steps leading up to the certification,
and those following the certification , are set forth in more detail in the
Trial Examiner's Decision in Case 16-CA-3365 (TXD-568-68, issued
September 25, 1968).
'Cole had previously quit , but had returned to the Respondent 's employ
in January
'These findings are based upon Cole's testimony, substantially
corroborated by that of McDaniels Underwood did not testify
"Compare Stewart & Stevenson Services, Inc., 164 NLRB No 100.
'These findings are based upon a synthesis of the testimony of both
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conversation . By inquiring how Behrens intended to vote,
in the context of other contempraneous unfair labor
practices , McDaniels engaged in illegal interrogation
violative of Section 8(a)(1) of the Act.'
c. By McKee
A day or two before the election Jack McKee, batch
plant foreman of the Respondent, had a conversation with
E. G. Rooke, a truckdriver in the Respondents' employ,
as follows:
McKee: What do you think about how the election is
going to go?
Rooke: I believe it will go to the Union this time.
McKee: What makes you think it will go Union?
Has the company ever done anything against you or
anything?
Rooke. No.
I agree with the General Counsel that this constituted an
additional "incident of interrogation violative of Section
8(a)(1) of the Act."9
2. Threats
a. Contentions of the parties
The complaint alleges that McDaniels on or about
March 1 and April 8 orally threatened the Respondent's
employees "with discharge or other reprisals if they .. .
gave any assistance or support to" the Union, and that on
or about March 13 J. B. Tate, another supervisor and
agent of the Respondent, engaged in similar conduct. The
answer admits the agency and supervisory status of
McDaniel and Tate, but denies the alleged conduct.
b. By McDaniels
The first part of the March 1 conversation between
McDaniels and drivers Cole and Underwood has already
been related. According to Cole, after Cole had stated
that the Union was already started when he returned to
work, and he was sorry that McDaniels "felt that way
about it," McDaniels asked: "Do you know how long it
would take us to lay you off?" When Cole replied: "No,
sir," McDaniels stated: "Two days." Cole then remarked:
"You are talking about now," to which McDaniels
responded: "No, I am talking about if the Union comes
in." McDaniels, while substantially corroborating Cole's
version of the previous part of the conversation, flatly
denied making this statement regarding layoff.
Underwood did not testify. '" I credit Cole's version.
Accordingly, it is concluded that upon the occasion in
question McDaniels threatened to lay off Cole if Cole
persisted in supporting the Union.
participants When the testimony conflicts , I credit that of Behrens as
more accurate than that of McDaniels.
'Webb Tractor and Equipment Company, 167 NLRB No 46,
Brandenburg Telephone Company, 164 NLRB No . 26; and Marsh
Supermarkets, Inc., 140 NLRB 899, 901, enfd as modified 327 F 2d 109,
112 (C A 7), cert. denied 377 U.S. 944.
'Springfield Garment Manufacturing Company, 152 NLRB 1043, 1046.
"Cole testified that Underwood left before the conversation was
completed ; McDaniels that Underwood was present to the end I do not
deem it necessary to resolve this conflict . The Respondent points out in its
brief "General Counsel did not call this `fellow employee ' in rebuttal,"
and apparently contends that this creates an inference that Cole was
untruthful The short answer is that the Respondent did not call
Underwood , either As Underwood was equally available to each side, yet
On about April 8 (after the filing of charges herein) J.
B. Tate, truck foreman at the Longwood plant (in Tarrant
County) in his office, asked truckdriver Gene Paul
McLemore "how come [McLemore] had stopped so many
times." McLemore explained his stops, left Tate's office
briefly, and returned to find McDaniels had joined Tate.
According to McLemore's undenied testimony, which I
credit:
I asked him [McDaniels] why they wanted to know how
many times I had stopped ... And he [McDaniels] said
because they were keeping a record of it. I asked him
why they started doing this when they had never done it
before the election, and ... Mr. McDaniels told me we
didn't like the way the company was running things and
we voted the Union in so they were going to enforce the
rules strictly . I kept asking him why they had
started doing all this stuff since the election when they
had never said nothing about it before, and he said that
the rules had been there all the time, the Union didn't
have anything to do with it.
By warning employees that company rules which "had
been there all the time" were going to be enforced
"strictly" because the employees had "voted the Union
in," McDaniels threatened the employees with more
stringent working conditions in reprisal for their support
of the Union It is found that this conduct was coercive, in
violation of Section 8(a)(1) of the Act."
c. By Tate
According to Behrens ' testimony, on about March 13
he was standing near a gasoline pump discussing the
Union with Mr. Rock, an employee of the Respondent
who filled the trucks with gasoline (not to be confused
with truckdriver E. G. Rooke). Tate approached them
and, after a preliminary remark, stated: "Boys, if it does
go Union, the man said there would possibly be some new
faces."" The employees did not reply and Tate left.
Behrens also testified that "the man" referred to
McDaniels. Herman Roy Holbrook, a truckdriver in the
Respondent's employ, testified that Tate refers to
McDaniels as "the man." Tate flatly denied he had ever
told Behrens that if the Union came in the man said there
would be some new faces, but did not relate his version of
the March 13 conversation with Behrens and Rock. When
asked if he had ever used the expression "the man" when
talking to employees, Tate answered: "I don't believe so,"
then added: "I may have." Rock did not testify." In view
of Tate's failure to describe his recollection of his talk
with Behrens and Rock, and my observation of Behrens
and Tate while testifying, I credit Behrens ' version. It is
therefore found that on about March 13 Tate threatened
Behrens and Rock with possible replacement should the
Union be successful in the forthcoming election. This was
a potent form of coercion. It is concluded that the
Respondent thereby violated Section 8(a)(1) of the Act.
neither called him, no inference is justified one way or the other
"Hoffman-Taff, Inc., 135 NLRB 1319, 1325.
"On direct examination, Behrens used the word "will " instead of "would
possibly" the latter being taken from his testimony on
cross-examination I do not deem the difference to be substantially
significant.
"The Respondent states in its brief. "the General Counsel had the means
at hand to corroborate his witness ' s [Behrens'] testimony by that of a
fellow employee, Mr. Rock. He did not choose to do so ." But neither did
the Respondent choose to call Rock to corroborate Tate' s testimony. I
accordingly decline to draw any inference based upon the failure of both
TEXAS INDUSTRIES
3. Letters of reprimand
a. Contentions of the parties
The complaint alleges that on or about March 29
McDaniels "issued . . . letters of reprimand to certain of
[the Respondent's] employees . . . in reprisal for and to
discourage their activities . . on behalf of the Union." It
is also alleged that Tate engaged in similar conduct on
about March 20 and April 5 The answer admits that
McDaniels and Tate are, and have been, supervisors and
agents of the Respondent, but denies that they engaged in
the alleged conduct
DESCRIPTION OF EVENT AND DISCUSSION
What was it about? Who was present? Show date,
time, place, what was said and done.
567
Mr. Holbrook was in the batch room when he didn't
have any business in there. He had been told to stay out
of the batch rooms unless on official business . And also
there is a notice of this on the bulletin board. Mr. R. P.
McDaniel [sic] was at the Rdiglea Friday 2/16/68 on
or about 10:30 a.m. and Mr. Holbrook was in the batch
room. And Mr. McDaniel [sic] warned him about being
in there.
b Background
In 1962 Wendell P. Logan, the Respondent's
vice-president for personnel, originated a form headed
"Record of Special Contact," to be used as a record when
a supervisor contacted an employee by instructions,
warning, or reprimand. It is to be made out in- triplicate:
the original for the central personnel office, the first copy
for the department manager, and the second copy for the
employee concerned. The procedure recommended by
Logan (but apparently not always followed) is that the
involved employee is asked to sign the original. Since its
inception, the form has been used in Tarrant County 30
times for reprimand; in 6 instances the employee signed
the original 14 During the same period, 44 such written
reprimands were made up for employees of the
Respondent in neighboring Dallas County.
c. By McDaniels
On February 16," Holbrook had been in the batch
room of the Ridglea plant for 7 to 10 minutes, using the
telephone. McDaniels and McKee entered. McDamels told
Holbrook: "You know, Roy, the rule is to stay out of the
batch room. This is a warning. You are supposed to stay
out. You read the notice.' 116 A few days later Tate handed
Holbrook a form which read:
RECORD OF SPECIAL CONTACT
NAME H . R. Holbrook
EMPLOYEE NO. 1426
LOCATION Ridglea Plant
DATE 2 / 1 6/68_
parties to call Rock
"In Tarrant County four such written reprimands were made out in
1967, none of which were signed by the employee. In the first half of 1968,
there were eight such reprimands issued, of which five were signed by the
employee
"Holbrook testified that the incident occurred "possibly three or four
days" before the election held March 15. McDaniels testified that it took
place on February 16. The written reprimand is dated February 16 and
therefore supports McDaniels' testimony as to the date , which I credit
This does not mean, however , that there was a fatal variance between the
date alleged and the date proven Haynes Stelhte Company, Division of
Union Carbide Corporation , 136 NLRB 95, 98, enforcement denied 310
F 2d 844 (C.A 6).
"These findings are based upon McDaniels ' credited testimony,
corroborated in substantial measure by that of Holbrook.
Contact by J. B. Tate
Date 2/16/68
Concur
Tate asked Holbrook to sign it. Holbrook complied,
explaining that he had been using the telephone in the
batch room and "had heard several state that you still
could use the telephone in the batch rooms." Tate replied
that "he didn't know about that. That the man said for
him to give [Holbrook] that letter and have [Holbrook]
sign it."
In determining whether the issuance of the letter of
reprimand to Holbrook at the time and under the
circumstances in which it occurred was illegally motivated,
several factors stand out. The form itself had been
initiated and was in use long before the advent of the
Union; the form was used not only in Tarrant County but
also in Dallas County where there was no union activity;
the rule which Holbrook was accused of violating was well
publicized and was valid, as hereafter described; and
Holbrook admitted that he had violated it. Moreover,
there is no showing that Holbrook was a union adherent,
or that the Union was mentioned in connection with the
incident. Accordingly, I find that the General Counsel has
failed to produce any convincing evidence linking the
issuance of the letter to union activities, or otherwise
indicating its discriminatory nature."
d. By Tate
On about March 25 Cole drove his truck to the
Arlington shop, then left to dump waste concrete. While
doing so he ran out of gas and had to walk back to the
shop to get more. This delay caused him to be late
reporting at the Longwood shop. About 2 days later Tate
stated to Cole that McDaniels had seen Cole at Arlington
"and the time [Cole] checked out was too long a time " A
day or so later McDaniels asked Cole about the same
situation, and Cole explained his predicament. In Cole's
presence, McDaniels told Tate: "Make a note of this. If it
happens again we will have to lay him off." On March 28
Cole received a written reprimand which read:
RECORD OF SPECIAL CONTACT
NAME H. B. Cole
EMPLOYEE NO 3054
LOCATION 3601 Lawnwood (sic) St.
Fort Worth Tex.
DATE 3 28 68
"Wellington Mills Division West Point Manufacturing Company, 141
NLRB 819, 831-2, enfd. in part 330 F.2d 579 (C.A 4), cert. denied 379
U.S. 882
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DESCRIPTION OF EVENT AND DISCUSSION
What was it about? Who was present? Show date,
time, place, what was said and done.
MR. HUEY: Not only were they not required to sign
them, but it would not be our position the numbers
increased too.
In his brief the General Counsel similarly states-
To [sic] much time from Arlington Tex. to Shop. On
the 3/25/68 Mi. R P. McDaniels saw this Driver at
5:10 p.m. and he did not arrive at Shop an [sic] punch
out untill [sic] 19:00 p.m. Mr. McDaniel (sic) warned
him if he caught him taking to [sic] much time again he
would lay him off.
Contact by J. B. Tate
Date 3/28/68
Concur
It does not appear that Cole was asked to sign the letter.
Cole admitted on cross-examination that on the
occasion in question he had stopped for a cup of coffee.
But even assuming, without deciding, that the reprimand
might have been harsh or even unjustified, it does not
necessarily follow that the Act has been violated. Bearing
in mind the General Counsel's burden of proof, while the
matter is not entirely free from doubt, I find that the
record is insufficient to justify a conclusion that Cole's
written reprimand was discriminatorily motivated.
The third letter of reprimand referred to in the
complaint was issued by Tate to truckdriver Olan Gasway
on April 8 (after the filing of the charges herein) in
connection with a 1-week disciplinary layoff of Gasway,
under circumstances described below. As the layoff itself
is alleged to have been discriminatory, and the written
reprimand forms an integral part of the incident, the
entire matter, including the written reprimand, will
hereafter be considered together as a single event.
d Scope of the issue
At the hearing, after all sides had rested, the General
Counsel, speaking of written reprimands, stated:
It is our contention ... [the Respondent] started issuing
the forms after the Union came in and they increased in
number . . . . we contend when the Union came in the
[Respondent] started enforcing the rules more strictly .. .
and that this is shared [sic] . . . in the increase in the
number of reprimand letters ... it would be our further
contention that there was no showing here that the
employees were issued these letters prior to the Union
coming in, but each of our men testified they were
called in and talked to and given a copy of the
reprimand letter and asked to sign it after the Union
came in.
The following colloquy ensued:
TRIAL EXAMINER: . . . YOU
and different procedure.
MR. HuEY: Yes, sir.
are saying this was a new
* *
TRIAL EXAMINER: I thought you [sic] position was
these printed forms were never used until the Union
came in.
MR. HUEY: Let me say our position has changed and
progressed.
TRIAL EXAMINER: . You are saying people were
not required to sign it before the Union came in.
Respondent violated Section 8(a)(1) of the Act by its
actions, after the advent of the Union, whereby it
initiated a new procedure with respect to the issuance of
such reprimand letters and whereby it substantially
increased the issuance of such reprimand letters .
Respondent changed its practice after the advent of the
Union by requiring its employees to sign their
reprimand letters.
In short, the General Counsel now seeks to enlarge the
matters at issue beyond the three specific reprimand
letters to which the complaint is confined. And his
intention to do so was first clearly enunciated at the close
of the hearing, after all parties had rested. The
Respondent contends in its brief that "the General
Counsel is necessarily tied to the allegation in his
Complaint." I agree. In my opinion, the belated attempt
to expand the issues failed to provide the Respondent with
timely and adequate notice of the nature of the charges
against it. I conclude that the alleged discriminatory
nature of the increase in the number of written warnings
and the change in procedure (requesting the employee to
sign ) were not encompassed within the allegations of the
complaint, were not fully litigated at the hearing, and are
not properly before me for decision.
C. Restricting the Use of Batch Rooms
1. Facts
All the Respondent's ready-mix plants contain batch
rooms about 8 feet by 10 feet in size, which are the work
stations for employees known as batch men. Each such
batch room is equipped with a telephone Often in the
past truckdrivers awaiting loading of their trucks or
further orders had spent this time in the batch rooms. In
November 1967 a notice was posted on the bulletin board
in various ready-mix plants which read.
DATE: November 2, 1967
TO: All Ready-Mix Drivers and Batch Plant City:
Personnel-Dallas and Tarrant County
FROM: C. C. Spraggins City:
SUBJECT : Batch Plant Procedure
CARBONS TO: R. P. McDaniel (sic)
Bob Foley
In order to avoid congestion and overcrowding in the
concrete plant batch houses, which at times have caused
TEXAS INDUSTRIES
problems, it is necessary that all truck drivers stay out
of the batch houses and wait for loading in their trucks
or in the truck drivers waiting room. The only
exception will be for the drivers in the hole, waiting
next in line for loading, and for the drivers required in
the batch houses for business; such as, picking up
tickets or telephone calls.
To assure good communication between the
Distribution Department personnel and the batch plant
operators, it is necessary that the batchmen stay out of
the truck drivers waiting rooms and stay in their
immediate work area at all times.
All drivers and batchmen are requested to follow this
procedure immediately.
/s/ C. C Spraggins
C. C. Spraggins
In addition, around December 1967,18 a handwritten notice
signed by Tate was posted over the timeclock in at least
one plant. It read: "All drivers are requested to stay out
of the batch room unless on official business.""
Despite these notices, some truckdrivers continued to
go into the batch rooms while waiting for their trucks to
be loaded. As mentioned above, on February 16 Holbrook
spent firom 7 to 10 minutes in the batch room of the
Ridglea plant, and this was observed by management.
Holbrook was orally reprimanded and warned on the spot,
and soon thereafter issued a letter of reprimand.
2. Contentions of the parties
The complaint alleges and the answer denies that since
on or about March 1 the Respondent "withdrew from its
employees certain privileges and benefits by promulgating
and maintaining a rule restricting the use of the batch
rooms,"' because the "employees joined or assisted the
Union or engaged in other . . . concerted activities." In
his brief the General Counsel contends that "the . . . rule
was not enforced until after the advent of the Union and
it was done . at that time to interfere with, restrain,
and coerce [the] employees." Speaking of Holbrook's
violation of the rule, the General Counsel urges that this
incident "presented" McDaniels with an "opportunity" to
"penalize Respondent's employees by withdrawing a
privilege from them which they had formerly enjoyed in
an attempt to discourage their membership in the Union."
The Respondent in its brief argues that the restriction
upon the use of batch rooms was a "rune of necessity"
promulgated for sound business reasons, "long before the
union organizing activities began," and that in any event
'the General Counsel totally failed to show that it was a
benefit' to the drivers" to be allowed to use the batch
rooms.
3. Conclusions
With reference to the allegation that the rule restricting
the use of the batch rooms was promulgated on or about
March Il for discriminatory reasons, this is without factual
"The funding that the second notice was posted "around December" is
based on McDaniels' testimony Holbrook placed it as occurring
"somewhere about the time we had our Union election" I credit
McDaniels ' testimony as more precise and accurate on this point than that
of Holbrook.
"McDaniels also testified that about this time at a monthly safety
meeting the truck supervisor announced to the drivers that they should
"stop going in the batch room" But as this testimony was vague as to
date and was hearsay , I base no finding thereon
569
foundation. The record shows clearly that the rule was
adopted at least as early as November 1967 - before the
Union appeared on the scene.20 Moreover, on its face the
notice of November 2, 1967, applied equally to facilities in
Dallas County, where there was no union activity. In
addition, the batch men are key employees. Clyde C.
Spraggins, an official of the Respondent who signed the
notice of November 2, 1967, testified that "anything that
tends to take away their attention from their job can be
very costly." According to McDaniels' undenied
testimony:
There was so many complaints from the batch men that
they were being annoyed and could not keep their mind
on their business . . . There was too much confusion in
the batch room, We had numerous complaints on that.
In order to relieve this situation , the Respondent in
mid-1966 "started a real dedicated program" of installing
a drivers' waiting room in each batch plant." This project
was completed, for all practical purposes, by either July
or early November 1967. Therefore the notice of
November 2 was posted between completion of the
drivers' waiting rooms and the advent of the Union. I am
convinced, and find, that the restriction on drivers' use of
batch rooms had its genesis in a sound business need, and
was not motivated by the drivers' union activities.
We turn, then, to the rule' s implementation . It is true
that Holbrook's reprimand and warning , described above,
occurred after the Union's appearance. And it apparenuy
was the only time sanctions were invoked against an
individual worker who violated the rule.22 The reason for
this may well be that the record reveals no other incident
in which a driver was apprehended violating the rule.23 I
conclude that there is nothing in the evidence to justify an
inference that, absent the Union, the rule would have been
enforced or maintained any differently. It follows, and I
find, that the General Counsel has failed to establish that
the restriction on the use of batch rooms was maintained
in substantial part because of the truckdrivers' union
activities. 24
D. Withholding Waste Concrete and Sand
1. Background
The Respondent's mixer trucks transport concrete in a
"Indeed Holbrook, a witness for the General Counsel, testified that the
rule was first promulgated "several years ago," that is , more than 6
months before service of the charges herein . However, I need not and do
not, decide whether the rule was in existence prior to November 1967.
"These have no telephones , However, drivers may use the telephones in
the batch rooms "for business purposes and emergencies."
"Behrens, a truckdriver, testified that in about September 1967 he was
told drivers "were not to go into the batch plants unless on official
business" - an admonition which he heeded thereafter . Behrens received
this communication from Mr. Louis, batch man at the Arlington plant.
The incident is mentioned in the Respondent 's brief Clearly , this was a
discussion between two rank-and-file employees at which no supervisor was
present and therefore is immaterial
"Olan Gasway, a truckdriver, testified that prior to the election the
drivers were "in and out of the batch rooms quite a bit," but that they
"have not been allowed in the batch rooms since the election " Leroy
Neatly, another truckdriver, testified that drivers went into batch rooms
"until recently ." The testimony of neither demonstrates , however, that
after November 1967 violations , when they did occur, came to the
attention of any supervisor.
"In this posture of the case , I do not reach the Respondent's additional
defense that the use of the batch rooms by the drivers did not constitute a
"privilege" or "benefit," as those words are used in the complaint.
Compare American Freightways Co, Inc, 124 NLRB 146, 147.
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
semi-liquid form from the Respondent's facilities to
jobsites where it is poured. At times there is concrete left
over after the completion of the pouring, or at the close of
the workday If allowed to remain in the truck too long, it
will harden, causing difficulties. Accordingly, all leftover
concrete is removed from the truck (often dumped at a
designated spot) and the truck is washed out before the
driver punches out at the end of the workday. For years,
with some exceptions, the Respondent has permitted its
employees to transport this excess concrete, in the
Respondent's trucks, to their homes for their personal use,
without cost.23 This was of value to the employees.26 The
last time this benefit was granted, so far as the record
shows, was "about a week before the elections" when
McLemore, with Tate's permission, took home three loads
of concrete.
2. Facts
"Just before the Union election sometime " possibly
around March 1 - Rooke asked Tate for some waste
sand . " Tate replied : "Since this Union deal, I don't
know." Rooke then left 28
On March 18 Holbrook went to Tate's office and asked
him for concrete left over on another truck that was due
to come in . Tate did not answer , and Holbrook left.
Shortly thereafter , Tate called Holbrook to his office and
stated that Holbrook "had better not take the concrete
home, but the man said he was going to make some other
arrangement ." 29 On the same date, March 18, Behrens
telephoned Tate at his home and requested some waste
concrete . According to Behrens ' testimony , Tate replied-
"the man said for him [Tate ] not to give any more
concrete out until this mess was settled.",
On about March 25, Cole asked Tate for some waste
concrete . Tate replied that "he would have to wait and
see." Cole never received the concrete 31
About 3 weeks after the election McLemore asked Tate
to let him have some waste concrete . Tate replied that
"since the Union election, the Company was not going to
let us have any more." McLemore also asked McDaniels,
after the election , if the Respondent were going "to stop
"'This practice was stopped in 1962 because some employees "were
selling concrete, giving it away to other people and not using it for their
own use." It was stopped again in 1965 because some employees "got into
the contracting business with it " The General Counsel in his brief
contends that these were temporary , while the March 1968 change was
permanent . I decline to decide whether such a description is warranted
".It was used by employees for driveways , porches, walks , etc , at their
own homes
"'Waste sand is sand which has been used for sandblasting paint off pots
It is normally thrown away after use In the past, Rooke had been allowed
to have some for his personal use.
"'This finding is based on Rooke's testimony Tate testified that the
conversation concerned waste concrete, admitted he turned down Rooke's
request, and testified he told Rooke "we were not going to let any more
concrete go until we worked out something . because it was getting out
of hand " He denied mentioning the Union I credit Rooke ' s version as
more accurate than that of Tate
.This finding is based on Holbrook 's testimony Tate, when questioned
about this conversation , responded " I may have said it "
"Tate related a somewhat different version of his reply to Behrens
According to Tate, "I told Mr Behrens due to the way things are running
right now that Mr. McDaniels had requested me to stop concrete from
leaving the plants, it was getting out of hand, and some boys were even
taking it home without permission to take it " I credit Behrens' testimony
as more accurate than that of Tate
"'This finding is based on Cole's undenied and credited testimony Tate
recalled Cole's request but, when asked what he replied to Cole, answered
"I don 't exactly remember "
letting [the employees] have concrete on account of the
election." McDaniels responded that "he didn't know, we
would have to wait and see "32
Since these events, waste concrete in Tarrant County
has all been dumped
3 Position of the parties
The complaint alleges, and the answer denies, that on
March 18 and 24 and on April 1 and 8 Tate "orally
threatened . to withdraw from its employees their
privilege to pick up and utilize surplus or waste concrete
and to withhold other benefits if they became or remained
members of the Union or gave any assistance or support
to it," in violation of Section 8(a)(1) of the Act It is also
alleged in the complaint and denied in the answer that
since on or about March 15 the Respondent "withheld
from its employees surplus or waste concrete,"
because the employees "joined or assisted the, Union or
engaged in other union activity," in violation of Section
8(a)(l) and (3) of the Act.
The Respondent, in its brief, maintains that "this . .
fair and economic decision" of ceasing to give away waste
concrete was based on several factors. 1. "In November of
1967 (before union activity in Tarrant County) . . a new
and meaningful policy for all employees in the entire
North Texas Region," . (allowing the purchase of all
Company products at a large discount) was adopted. This
was announced to the employees on December 5, 1967. 2
"In January of 1968, top management gave its approval
to the construction of a reclaimer in Tarrant County by
which . waste or surplus concrete could be reclaimed
for further . . . use"" 3. "In March, Mr. McDaniel (sic)
determined that the policy was being abused in that the
drivers were taking the concrete home without asking
permission from their supervisors, and he had a suspicion
that some of the drivers were selling it."
4. Conclusions as to the statements
In reply to Rooke's request for waste sand, Tate stated:
"Since this Union deal, I don't know." A little later Tate
told Behrens that he had been ordered not to give out any
more waste concrete to the employees "until this mess was
settled." The words "this mess," in the context in which
they were uttered, undoubtedly referred to the Union's
selection as bargaining agent.3d A third reference tying the
change of policy to union activity was Tate's reply to
McLemore's request, namely, that "since the Union
election, the [Respondent] was not going to let [the
employees] have any more" waste concrete By these three
remarks, Tate clearly advised the employees that the
Respondent was withholding from them benefits
previously enjoyed, in retaliation for their selection of the
Union as their bargaining agent. Such statements were
coercive and violated Section 8(a)(1) of the Act
5. Conclusions as to the withholding of benefits
Tate allowed McLemore to take home waste concrete
""The findings regarding these two conversations are based on
McLemore ' s undenied testimony
"A reclaimer is a machine through which waste concrete is sent It
washes out the cement and adds mixtures and re-grains the aggregate The
aggregate is recovered and reused
14Wellington Mill Division West Point Manufacturing Company, supra,
835, fn 47
0
TEXAS INDUSTRIES
only a week before the election, yet the Monday following
the election denied the same privilege to Holbrook and
Behrens. The timing gives rise to the presumption that the
sudden about face was related to the election results. This
presumption becomes a prima facie case of such
relationship when we consider the Respondent's union
animus (demonstrated by conduct described above) and
Tate's remarks to Rooke, Behrens and McLemore.
Therefore we turn to the Respondent's three contentions,
stated above, to see whether there is a valid defense to the
prima facie case of interference which the General
Counsel has established.
The discount policy announced on December 5, 1967,
applied to all employees in the North Texas Region,
including both Tarrant and Dallas Counties. It set a
standard price for the sale of products (such as masonry
products, ready-mix concrete, aggregates, etc.) to
employees. But, of course, it referred to dry cement, in
bags, not to waste cement in the semi-liquid state. Nor
does it on its face appear to cover waste sand. Indeed, it
tends to indicate that waste concrete (unless reclaimed, as
related below) and waste sand were unsalable and virtually
valueless to the Respondent. In any event, I am
convinced, and find, that this discount policy announced in
December 1967 was unrelated to the abrupt change in the
policy concerning waste products which came about
approximately 3 months later. I am unable to perceive
any relationship between the two matters.
So far as the reclaimer is cone rned, one had been in
operation in the Dallas area fo l 1/2 years. As a result
the drivers in Dallas Count had less opportunity to
receive waste concrete free of charge than did the Tarrant
County drivers. In January 1968 when the Respondent
decided to install a reclaimer in Tarrant County,
according to McDaniels' testimony, "we felt we would get
repercussions from drivers in. Dallas if we were giving the
drivers here in [Tarrant County] the stuff." Therefore,
argues the Respondent in its brief, "instead of being
discriminatory, the policy (denying waste concrete to
Tarrant County drivers) placed all employees in the North
Texas region upon an equal basis as regards the .
allowance of surplus concrete." I cannot agree. There are
gaps in this defense. 1. McDaniels admitted it was
possible that some of the waste concrete in Dallas County
that did not go into the reclaimer was being taken home
by Dallas County drivers. 2. The reclaimer in Tarrant
County is not yet in operation. 3. The decision
purportedly made in January 1968 (to disallow waste
concrete to Tarrant County drivers) was not
communicated to Tate until March, and McDaniels'
excuse for not being more prompt is unconvincing.
Accordingly, it is found that the decision was not made
until after the Union began its campaign; 4. McDaniels
told 'Tate that the decision was based upon suspected
abuse by the drivers. He did not mention that in January
it had been decided to install a reclaimer in Tarrant
County. 5. Tate's statements to employees mentioned the
Union, not the anticipated installation of a reclaimer, and
6. Rooke was denied waste sand, and the reclaimer was
apparently used to reclaim concrete.
Finally, there is a suggestion in the Respondent's brief
that McDaniels "discovered" the privilege was being
abused. Clyde C. Spraggins, Production Manager of the
North Texas Division of the Respondent, McDaniels'
superior, testified about the change of policy regarding
waste concrete, but did not mention suspected or known
abuse as a factor considered in making the change.
McDaniels described the meeting at which it was decided
571
to withhold waste concrete, and the reasons Spraggins
gave McDaniels for the change. He testified:
TRIAL EXAMINER: I refer to this meeting . in
December, 1967, at 1:00 in the afternoon in which Mr.
Spraggins gave you certain instructions. Did he say
anything at all about the privilege of employees taking
back waste concrete, to their home was being abused?
THE wrrNESS: In December he did not. We didn't
discuss that. We discussed the reclaimer in December.
I conclude that the alleged abuse was not discussed
between Spraggins and McDaniels, and that it was not a
factor in the decision to withhold waste concrete.
In sum, I find all the Respondent's defenses flimsy.
However, even if, contrary to the above, there had also
been valid economic reasons dictating the change, the
result would be the same. For one substantial motivating
factor was union activity. This is shown by the
Respondent's union animus demonstrated in the
interrogation and threats described above, the timing of
the change, and the remarks of Tate to the employees. I
conclude that a substantial motivating factor behind the
withholding of this benefit was the Respondent's
determination to punish the employees for selecting the
Union as their bargaining agent.35 This constitutes a
violation of Section 8(a)(1) of the Act. As it would not
affect the Order hereafter recommended, I do not find it
necessary to determine whether the conduct in question
also violated Section 8(a)(3) of the Act.3'
E. Gasway's Layoff
1. Facts
Olan Gasway has been employed by the Respondent as
a truckdriver for about 6 years. He works out of various
plants operated by the Respondent in Tarrant County. In
December 1967 Gasway "talked to the boys throughout
the plant ... most all of them" about the Union, and was
the first employee to contact the Union's representatives.
He was one of the three most active union protagonists.
After the Union's victory in the election, Gasway wore a
union decal ("Go Union") on his hard helmet "most all
the time" while at work. He also placed AFL-CIO
stickers on both bumpers of his car and on the window of
his truck, which he drove to and from work each day.
On Friday, April 5, Gasway came to work in the
morning., At about noon he received word that his
father-in-law in Oklahoma was seriously ill and his
mother-in-law was also sick. Between 2 and 2:30 p.m. he
went to Tate's office and stated: "I have got to be off
tomorrow," explaining about the illness in his family. Tate
did not reply. Gasway then left Tate's office but returned
at 2:30 p.m., when he punched out for the day. At that
time he called Tate's attention to the fact that Tate had
put his truck number on a list of trucks to work the next
day, Saturday. Gasway stated: "I can't work tomorrow,
I'm going to Oklahoma." Tate responded "that he was
short two trucks and needed all he could get." Tate then
erased Gasway's truck number from the list.3' Gasway left
and did not report for work again until 7 a.m. on
Monday, April 8. He found his timecard had been
"Hoffman-Taff, Inc, supra
"Hudson Transit Lines, Inc, 173 NLRB No. 13, fn. 2.
"Tate at first set the time of this April 5 conversation as 5 30 to 6 p in
He later testified he could have been mistaken Gasway's timecard shows
he punched out much earlier . I conclude that Tate was confused as to the
time
57 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"pulled." Accompanied by two or three fellow workers,
Gasway went to Tate's office and asked where his card
was. Tate responded that he had pulled it Gasway asked:
"For how long?" and Tate replied for one week. Gasway
answered "Okay" and left. Tate followed him out and
said: "Now, Olan, if you think you can come back - " to
which Gasway replied: "You said you pulled my timecard,
didn't you?" Tate answered affirmatively and both men
walked away."
Gasway next reported for work on Monday, April 15
Tate called him into the office and handed Gasway a
letter which read:
RECORD OF SPECIAL CONTACT
NAME Mr. 0. 0. Gasway
EMPLOYEE NO. 1818
LOCATION 360 Lawnwood St. Fort Worth Tex.
DATE-4-8-68
DESCRIPTION OF EVENT AND DISCUSSION
What was it about? Who was present" Show date,
time, place, what was said and done.
Working on Saturday Mr. 0. 0. Gasway and J. B.
Tate I received the truck list from the dispatcher on the
4-5-68 which called for all the truck (sic) for Saturday
4-6-68. And I had Mr. Gasway on the list to work at
the Arlington plant. And he told me that he could not
work that he was going to Oklahoma. Now if Mr.
Gasway knew he had to go to Oklahoma Friday
afternoon when he got off I am reasonable (sic) sure he
knew it Friday morning. Which I think he should have
called and made some arrangements to get off or at
least ask to get off instead of telling me what he was
going to do. So I pulled his card. And Monday Mr.
Gasway ask (sic) me if I pulled his card and I told him
I did and he wanted to know for how long and I told
him for one week. And I tried to tell Mr. Gasway why
t pulled his card and he walked out of the office and
got in his pickup and left.
Contact by J. B. Tate
Date 4/8 /68
Concur
Tate told Gasway he was reasonably sure that when he
(Gasway) came to work Friday morning he knew he had
to go to Oklahoma Friday night. Gasway replied that he
did not know it until late in the morning. Gasway then
returned to work, and has been working ever since. He
has never been paid for the week during which he was laid
off.
2. Positions of the parties
The complaint alleges, and the answer denies, that the
Respondent violated Section 8(a)(1) of the Act by issuing
the above-quoted letter of reprimand to Gasway "to
discourage [his] activities and assistance on behalf of the
3"The findings of the Tate-Gasway conversations are based upon a
synthesis of the testimony of Tate and Gasway. The testimony of each
contains serious errors and I consider neither of them to be a particularly
accurate or reliable witness.
Union " The complaint further alleges that the
Respondent violated Section 8(a)(l) and (3) of the Act by
laying Gasway off from on about April 8 to on about
April 15 because he "joined or assisted the Union or
engaged in other ... concerted activities " In his brief the
General Counsel contends that the Respondent harbored
animus against the Union; that "Respondent's position in
dealing with other employees on matters much more
serious than that of Gasway had not resulted in layoffs,"
that Gasway would not have been laid off "had he not
been one of the Union's principal organizers," and that
the Respondent "seized on" this incident "in an attempt
to justify its unlawful motive."
The Respondent, in its answer, admits that it meted out
a disciplinary one-week layoff to Gasway, but denies any
discriminatory motive. In its brief it argues that "there is
absolutely no evidence that . . . any . . . supervisor ever
saw or took note" of the pro-union decals on Gasway's
helmet, car or truck It adds that "the fact that an
employee was engaged in union activity at the time of his
suspension, taken alone, is not substantial evidence of a
suspension for engaging in union activities . . . the General
Counsel has totally failed to prove a violation of Section
8(a)(3) of the Act by ... substantial evidence "
3. Conclusions
So far as the Respondent's knowledge of Gasway's
union sympathies are concerned, the General Counsel is
not always required to prove this factor by direct
evidence. From the testimony of Gasway regarding the
wearing of union decals it is reasonable to assume, and I
find, that the Respondent became aware, shortly after the
election, that Gasway was a supporter of the Union.
Coupled with the timing of the layoff soon after the
Union's election victory, and the Respondent's antagonism
toward the Union, suspicions are aroused that Gasway's
known prounion sentiments played a substantial part in
Tate's decision to discipline Gasway.
One fact, however, detracts significantly from the
General Counsel's case. The General Counsel produced
evidence of other similar instances in which employees had
simply told Tate they would be absent, rather than asking
his permission, and indeed some had completely failed to
mention their planned absence in advance. In some
instances the culprit got off "Scot free" but in others he
received a disciplinary one-week layoff There does not
appear to have beers any particular pattern. Disparate
treatment there was, but was it based in substantial
measure on union activities? An answer seems to be found
in the testimony of truckdriver Leroy Neally, a witness for
the General Counsel. On redirect examination, Neally
testified that on March 27 he notified Tate in writing that
due to the death of Neally's uncle, Neally would not come
in to work on March 29; he accordingly did not report for
work on March 29 and was never reprimanded. On
recross-examination, Neally testified that he wore union
decals on his helmet and on his car, and in fact told the
Respondent's management that he was a union adherent I
am unable to find that the disparate treatment accorded
Neally only a few days before Gasman's one-week
disciplinary layoff for essentially the same conduct was
due to Gasman's known pro-union sympathy, as Neally
appears to have been equally known as favorably inclined
toward the Union. While the matter is not entirely free
from doubt, I conclude that the General Counsel has
failed to establish by a preponderance of evidence that the
disciplinary measures taken against Gasway early in April
TEXAS INDUSTRIES
were in substantial part related to his support of the
Union."
Upon the basis of the above findings of fact and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Texas Industries, Inc., is, and at all material times
has been, an employer within the meaning of Section 2(2)
of the Act, engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. International Union of Operating Engineers, Local
819, AFL-CIO, is, and at all material times has been, a
labor organization within the meaning of Section 2(5) of
the Act.
3. By interrogating its employees concerning their union
activities, threatening its employees with reprisal if they
selected a labor organization as their bargaining agent,
informing its employees that it was withdrawing benefits
previously granted because the employees chose union
representation, and withholding from its employees the
privilege previously enjoyed by them to take home, free of
charge, waste concrete and waste sand, in reprisal for the
Union's victory in the election, thereby interfering with,
restraining, and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondent
has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
4. The above-described unfair labor practices tend to
lead to labor disputes burdening and obstructing
commerce and the free flow of commerce, and constitute
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
5. It is not necessary to rule upon the contention that,
by withholding from its employees the privilege they
previously enjoyed to take home, free of charge, waste
concrete and waste sand, the Respondent has engaged in
or is engaging in unfair labor practices within the meaning
of Section 8(a)(3) of the Act.
6. The General Counsel has failed to establish by a
preponderance of evidence that, by limiting its drivers' use
of its batch rooms for discriminatory reasons, the
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of the Act,
or that the Respondent discriminated against Olan
Gasway within the meaning of Section 8(a)(1) or (3) of
the Act.
THE REMEDY
It will be recommended that the Respondent cease and
desist from the unfair labor practices found above, or
from infringing upon the rights guaranteed to its
employees in Section 7 of the Act by any like or related
conduct.
Affirmatively, it will be recommended that the
Respondent forthwith restore to its employees the
privilege which they previously enjoyed to take home, free
of charge, waste concrete and waste sand. Nothing
contained herein shall, however, be construed as
prohibiting the Respondent from changing its pre-election
policy regarding waste concrete and waste sand for
nondiscriminatory reasons, such as the placing in
operation of a reclaimer in Tarrant County.
Upon the basis of the above findings of fact and
conclusions of law, and upon the entire record in this case,
"Compare S H. Lynch and Company, Inc., 167 NLRB No 67.
I make the following.
RECOMMENDED ORDER
573
Texas Industries, Inc., Tarrant County, Texas, its
officers, agents, successors, and assigns, shall-
1. Cease and desist from:
(a) Interrogating its employees with regard to their
union membership, sympathies, or activities, or that of
their fellow employees, in a manner constituting
interference, restraint, or coercion.
(b) Threatening its employees with reprisal if they
should aid or support the above-named labor organization,
or any other labor organization.
(c) Withdrawing or threatening to withdraw any
privilege previously granted to its employees in retaliation
for their selection of the above-named labor organization,
or any other labor organization, as their
collective-bargaining agent.
(d) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Forthwith restore to its employees the privilege they
previously enjoyed to take home, free of charge, waste
concrete or waste sand.
(b) Post at its plants in Tarrant County, Texas, copies
of the attached notice marked "Appendix .1140 Copies of
said notice, on forms provided by the Regional Director
for Region 16, after being duly signed by the
Respondent's representative, shall be posted by it
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 these notices are not altered,
defaced or covered by any other material.
(c) Notify the said Regional Director, in writing, within
20 days from the receipt of this decision, what steps it has
taken to comply herewith."
IT IS FURTHER RECOMMENDED that the complaint herein
be dismissed, insofar as it alleges that the Respondent
limited the use of batch rooms for discriminatory reasons,
or discriminated against Olan Gasway
"Should the Recommended Order be adopted by the Board , the words
"the Recommended Order of a Trial Examiner" shall be stricken from the
notice , and the words "a Decision and Order" shall be substituted therefor.
Should the Board 's Order be enforced by a decree of a United States
Court of Appeals the words "a Decision and" shall be stricken from the
notice and the words "a Decree of the United States Court of Appeals
Enforcing an" shall be substituted therefor.
"Should this Recommended Order be 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 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
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT question our employees about their
union membership, sympathies, or activities, or those of
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their fellow employees, in a manner constituting
interference, restraint or coercion.
WE WILL NOT threaten our employees with reprisal if
they support International Union of Operating
Engineers, Local 819, AFL-CIO, or any other union.
WE WILL NOT withdraw or threaten to withdraw any
privilege previously granted to our employees in
retaliation for their selection of the above-named union,
or any other union, as their bargaining agent.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their right to self-organization to form, join, or assist
any union, to bargain collectively through
representatives of their own choosing, or to engage in
other mutual aid or protection, or to refrain from such
activities.
WE WILL immediately restore to our employees the
privilege they previously enjoyed to take home waste
concrete or waste sand free of charge.
Dated By
TEXAS INDUSTRIES, INC.
(Employer)
(Representative) (Title)
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, 8A24 Federal
Office Building, 819 Taylor St., Fort Worth, Texas 76102,
Telephone 817-334-3921