Texas Industries, Inc.

National Labor Relations Board - Board Decisions

Mar 5, 1971

188 N.L.R.B. 845 (N.L.R.B. 1971)

TEXAS INDUSTRIES, INC.
Texas Industries, Inc., Houston Division , Ready Mix
Concrete Plants and Lionel J. Jackson
Texas Industries, Inc., Houston Division , Ready Mix
Concrete Plants and General Drivers , Warehouse-
men and Helpers Local Union No. 968 , affiliated
with The International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca. Cases 23-CA-3560 and 23-CA-3665
March 5, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
BROWN
On September 22, 1970, Trial Examiner Ivar H.
Peterson issued his Decision in the above-entitled
cases , 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 at-
tached Trial Examiner's Decision. Thereafter, the
Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional 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 preju-
dicial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in these cases,' and hereby adopts
the findings,2 conclusions,' and recommendations
subject to the modifications set forth below:
1. We agree with, and adopt, the Trial Examiner's
findings that Respondent violated Section 8(a)(3) and
(1) by discharging employee Jackson because of his
i Respondent's request for oral argument is hereby denied, as the excep-
tions , briefs , and record adequately present the issues and positions of the
parties.
2 Respondent's exceptions directed to the credibility resolutions of the
Trial Examiner are without meet . The Board will not overrule a Trial
Examiner's resolutions as to credibility unless a clear preponderance of all
relevant evidence convinces us that they are incorrect . On the entire record,
such a conclusion is not warranted . Standard Dry Wall Products, Inc, 91
NLRB 544, enfd 188 F.2d 362 (C.A. 3).
With respect to employee Scott , the Trial Examiner inadvertently found
that Scott was present at a Christmas party at Jackson's home The record
shows that Scott was ill at the time and did not attend the party, and we
hereby correct the inadvertent statement This in no event affects the result
in this case.
3 In affirming the Trial Examiner's finding that the Respondent violated
Section 8(a)(3) by discharging employee Jackson for his union activities, we
find it unnecessary to rely on the Trial Examiner's statement . "It should be
observed that it cannot be said , with any degree of confidence, that Jackson
was negligent or otherwise responsible for the accidents in which he was
involved."
845
union and concerted activities 4 We further agree that
Respondent independently violated 8(a)(1) by coer-
cively interrogating employees, promising benefits to
induce employees to abandon the Union, and by cre-
ating the impression of surveillance.
2. The Trial Examiner found that Respondent vio-
lated 8(a)(1) by threatening employee Jackson with
discharge if he telephoned the Union during working
hours. We disagree. The warning occurred while Jack-
son was on the telephone talking to a union agent, and
was limited to working time. An employer rule so
limited is presumptively lawful, and we so find.'
3. The Trial Examiner also found that Respondent
violated 8(a)(4) and (1) of the Act by terminating
employee Scott. The Respondent excepts to this find-
ing, contending that the evidence shows that Scott
voluntarily quit his employment and was not dis-
charged.6
Whether Scott voluntarily quit or was discharged
turns upon certain words and actions which took
place during a conversation between him and Fleet
Superintendent Brown on March 26, 1970.
In that conversation Brown accused Scott of joyrid-
ing in a company truck, whereas Scott stated that,
rather than joyriding, he had missed a turn and there-
fore had been required to depart from the usual direct
route. In the course of the discussion which followed,
Superintendent Brown at one point said that if Scott
didn't "know the city any better than that" he didn't
think Scott needed "to drive for this Company."
The record shows, however, that Brown at no time
specifically told Scott he was discharged, and both
Scott and Brown's testimony indicate instead that
Scott was specifically advised to meet with Brown and
Respondent's director of personnel on the following
morning.
At the end of this conversation Scott took his per-
sonal belongings from his truck and asked for and
received a ride back to Respondent's plant.
Scott did not appear for the meeting with the direc-
tor of personnel on the next morning and sought to
In adopting the Trial Examiner 's finding that Jackson 's accident record
was no worse than that of employees whom the Respondent retained , we note
that Jackson testified without contradiction that he saw truckdriver Boring,
who was retained as an employee, cause three accidents in which Boring (1)
backed into a wall knocking it down and injuring several workmen, (2)
backed into a telephone pole knocking a transformer to the ground , and (3)
ran into an automobile parked on the plant grounds. Jackson further testified
that he saw truckdnver Harvey back into another truck at the plant's washout
pit, causing damage so extensive that the other truck had to be towed away.
5 Republic Aviation Corp v N L.R. B, 324 U.S. 793, 803, In. 10.
6 Member Brown would sustain the Trial Examiner 's finding that Scott was
discharged , but would nevertheless dismiss the complaint in this respect for
lack of preponderating evidence establishing unlawful motive therefor.
7 The "following morning" was March 27, a Friday . Though the Trial
Examiner found that Scott credibly testified that the meeting with the person-
nel director was scheduled for Monday , he also found that Scott 's memory
for dates and the precise chronology of events was poor . In these circum-
stances, and as Scott's pretrial affidavit corroborates the testimony of
Respondent's witnesses as to the Friday date , we so find
188 NLRB No. 124
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
explain his nonappearance by testifying that he
thought he had been fired. Respondent, on the other
hand, construed his actions as having evidenced a
quit.
Upon this record, we are of the view that the isolat-
ed remark to the effect that if Scott did not know the
city any better than that, Brown didn't think he need-
ed to work for the Company, was no more than an
expression of pique in the course of the dispute over
whether Scott had been joyriding and did not connote
a discharge. The specific directions to report to the
personnel office for a meeting on the following morn-
ing (which Scott avoided mentioning in his direct tes-
timony, but clearly admitted on cross-examination)
hardly constitute, and indeed are inconsistent with, an
expression of a decision to discharge Scott. Scott's
actions thereafter appear to evidence a decision on his
part to quit.
It is therefore our view that the record does not
support, by a preponderance of the evidence, a find-
ing that Scott was discharged, and we must dismiss
the allegations of 8(a)(1 ) and (4) of the complaint
which relate to these events.
THE REMEDY
We have found in agreement with the Trial Exam-
iner that the Respondent engaged in certain conduct
violative of Section 8(a)(1) and (3) of the Act, and
accordingly we adopt the remedial recommendations
in that regard. However, we have found, contrary to
the Trial Examiner, that the Respondent has not en-
gaged in certain other unfair labor practices in viola-
tion of Section 8(axl), (3), and (4) of the Act and we
shall dismiss those allegations of the complaint.
Upon the basis of the foregoing findings of fact and
upon the record as a whole, we substitute the follow-
ing conclusions of law for the Trial Examiner's second
and third Conclusions of Law:
2. By terminating Lionel J. Jackson on February 26,
1970, the Respondent violated Section 8(a)(3) and (1)
of the Act.
3. By questioning employees about attendance at a
union meeting, indicating that wage increases would
be forthcoming if employees abandoned the Union,
and creating the impression of surveillance, the Re-
spondent violated Section 8(a)(1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, Texas
Industries, Inc., Houston Division, Ready Mix Con-
crete Plants, Houston , Texas , its officers, agents, suc-
cessors , and assigns, shall:
1. Cease and desist from:
(a) Promising wage increases if employees abandon
their union activities or discriminatorily discharging
any employees to discourage membership in or activi-
ty in support of the Union or any other labor organi-
zation.
(b) Creating the impression that it is engaged in
surveillance of the union activities of employees.
(c) Unlawfully interrogating employees about their
attendance at union meetings.
(d) In any other manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed to them in Section 7 of the Act.
2. Take the following affirmative action which we
find will effectuate the policies of the Act:
(a) Offer to Lionel J. Jackson immediate and full
reinstatement to his former job or, if that job no long-
er exists, to a substantially equivalent position, with-
out prejudice to his seniority or other rights and
privileges, and make him whole in the manner set
forth in the section of the Trial Examiner's Decision
entitled "The Remedy."
(b) Notify the said 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 Mili-
tary Training and Service Act, as amended, after dis-
charge from the Armed Forces.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all oth-
er records necessary to analyze the amount of back-
pay due under the terms of this Order.
(d) Post at its premises in Houston, Texas, copies of
the attached notice marked "Apendix."8 Copies of
said notice, on forms provided by the Regional Direc-
tor for Region 23, after being duly signed by the
Respondent's representative, shall be posted by it im-
mediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that said notices
are not altered, defaced, or covered by any other ma-
terial.
(e) Notify the Regional Director for Region 23, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
8 In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the Words in the notice reading "POSTED BY ORDER
OF THE NATIONAL LABOR RELATIONS BOARD " shall be changed
to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED
STATES COURT OF APPEALS ENFORCING AN ORDER OF THE
NATIONAL LABOR RELATIONS BOARD"
TEXAS INDUSTRIES, INC.
It is further ordered that those portions of the com-
plaint as to which no violations have been found be,
and they hereby are, dismissed.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in or activi-
ty on behalf of General Drivers Warehousemen
and Helpers Local Union No. 968, affiliated with
The International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca, or any other labor organization by discriminato-
rily discharging or refusing to reinstate any of our
employees or by discriminating in any other man-
ner in regard to hire or tenure of employment or
any term or condition of employment.
WE WILL NOT create the impression that we are
engaging in surveillance of your union activities.
WE WILL NOT unlawfully question you concerning
your attendance of union meetings.
WE WILL NOT promise wage increases to induce
your abandonment of union activity.
WE WILL offer Lionel J. Jackson immediate and
full reinstatement to his former job or, if his job no
longer exists, to a substantially equivalent position,
without prejudice to seniority and other rights and
privileges.
WE WILL make Jackson whole for any loss of pay
suffered as a result of his discharge and our refusal
to reinstate him.
All our employees are free to become or remain, or
refrain from becoming or remaining, members of the
above-named Union or any other labor organization.
Dated By
TEXAS INDUSTRIES, INC.
HOUSTON DIVISION READY
MIX CONCRETE PLANTS
(Employer)
(Representative) (Title)
We will notify immediately the above-named individ-
ual, if presently serving in the Armed Forces of the
United States, of the right to full reinstatement, upon
application after discharge from the Armed Forces, in
accordance with the Selective Service Act and the
Universal Military Training and Service Act.
This is an official notice and must not be defaced
by anyone.
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.
Any questions concerning this notice or compli-
847
ance with its provisions may be directed to the
Board's Office, 6617 Federal Office Building, 515
Rusk Avenue, Houston, Texas 77002, Telephone 713-
226-4296.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Ivar H. Peterson , Trial Examiner : On April 21 , 1970, the
Regional Director for Region 23, upon the charge filed by
Lionel J . Jackson on February 27 , 1970,' issued a complaint
on April 21, alleging that Texas Industries, Inc., Houston
Division , Ready Mix Concrete Plants, herein called the Re-
spondent , had unlawfully discharged the said Jackson on or
about February 26 in violation of Section 8(a)(3) and (1) of
the Act, and that since December 1, 1969, and continuing
until the date of the issuance of the complaint, had threat-
ened employees with discharge if they assisted the Union
(General Drivers , Warehousemen and Helpers Local Union
No. 968 , affiliated with The International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers of
America), promised wage increases in return for ceasing to
support the Union , interrogated an employee about a union
meeting , and, by the action of a foreman in informing an
employee that he knew who had attended a union meeting,
had created the impression of surveillance.
I heard this case (Case 23-CA-3560) on June 18 in Hous-
ton, Texas.
Thereafter the Regional Director issued a complaint in
Case 23-CA-3665, based on the charge filed by the Union
on June 15 , alleging that, on or about March 19, the Re-
spondent, by Foreman Ray Beene, threatened Lawrence A.
Scott with discharge or other reprisal for giving testimony
to a Board agent with respect to Jackson . On or about
March 26 , I received from counsel for the General Counsel
a motion to reopen the record in Case 23 -CA-3560 and to
consolidate it with Case 23-CA-3665 for further hearing.
On July 20 , I issued an Order To Show Cause why this
motion of counsel for the General Counsel should not be
granted and , in the same order , postponed indefinitely the
time for filing briefs in Case 23 -CA-3560, pending deter-
mination of the motion . The Respondent duly filed a timely
opposition and response to the motion . By telegraphic order
dated August 7 , after having considered the response to my
Order To Show Cause , I granted the motion of counsel for
the General Counsel , consolidated the cases , and scheduled
the hearing thereon for August 13. I held the further hearing
on August 13 and 14, at which all parties were represented
and afforded full opportunity to participate and adduce
relevant evidence.
Upon the entire record in this case , and from my observa-
tion of the demeanor of the witnesses while testifying, and
on careful consideration of the able briefs filed by counsel
for the Respondent and the General Counsel, I make the
following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The Respondent, a Delaware corporation, is engaged in
the business of selling and distributing ready-mixed con-
crete and related products from three facilities in Houston,
Texas. Although it operates other facilities, only the three
Houston plants are involved in this proceeding. During the
year preceding issuance of the original complaint the Re-
1 Unless otherwise indicated all dates refer to 1970
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent sold goods and materials valued in excess of $50,
000 from its Houston, Texas, facilities to firms within the
State of Texas, each of which in turn purchased goods and
materials valued in excess of $50,000 from suppliers in
States other than the State of Texas. The Respondent ad-
mits, and I find, that it is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III THE PRACTICES
A. Background and Issues
During the latter 2 or 3 months of 1968 Employee Jack-
son, and other employees, became interested and active in
obtaining representation by the Union. About June 12 or
14, 1969, a number of employees met Dempsey Merida,2 a
business agent of the Union, at the union hall. All employ-
ees present signed union authorization cards. Thereafter,
the Union filed a petition for certification as the exclusive
representative of the Respondent's employees (Case 23-
RC-3234). A consent election was held on January 24, 1969,
resulting in a majority selecting the Union, and on February
3, 1969, the Union was ceritified as the exclusive representa-
tive of a unit consisting of all production truckdrivers, in-
cluding lead drivers, but excluding all other employees,
office clerical employees, guards, watchmen, and supervi-
sors as defined in the Act.
Although the Union, after certification, endeavored to
conclude a contract by engaging in bargaining meetings
with the Respondent, no agreement had been reached as of
the dates of the hearing herein.
Shortly before Christmas 1969, Jackson and other em-
ployees, with the assistance of the Respondent's supervisory
personnel and office workers, were instrumental in gather-
mg a collection to present as a Christmas donation to two
employees, Scott and one Powell, who were absent from
work because of illness . A Total of $103 was collected and,
according to the credited testimony of Jackson, by under-
standing among the employees this fund was to be divided
equally between Scott and Powell. However, the distrib-
ution which was made under the supervision of Foreman
Ray Beene resulted to Powell receiving $100 and Scott
$3. Jackson, upon learning from Scott that the latter had
received only $3, undertook, in conjunction with Scott and
at the suggestion of Business Agent Merida, to attempt to
arrange a conference with Raymond Williams, the
Respondent's personnel director. They encountered some
difficulty and delay in arranging such a meeting but even-
tually Williams met with them, but separately. The credited
testimony is that Williams initially expressed only a general
knowledge concerning the Christmas fund, but stated that
he would look into it further, and particularly the manner
of distribution. This meeting with Williams occurred on
January 7 or 8.
It is the General Counsel's contention, resisted by the
Respondent, that the action of Jackson and Scott in pre-
senting the "grievance" relating to the Christmas fund, and
their .general activity in support of the Union and concerted
activities by the employees, caused the discharge of Jack-
2 Merida, in December 1969, succeeded Ernest Whittle as business agent
of the Union
a As this distribution has bearing on the later discharge of Jackson and
Scott, the testimony concerning it will be considered in more detail in other
sections of this Decision.
son, and was a substantive factor (together with other cir-
cumstances to be related) in the later termination of Scott.
On the other hand, the Respondent contends that Jackson
was discharged because of his driving and accident record
and that Scott was not discharged, but voluntarily quit. In
addition, as indicated above, the General Counsel contends
that in certain other enumerated respects the Respondent
engaged in coercive conduct independently violative of Sec-
tion 8(a)(l) of the Act.
We turn now to a consideration of these three issues and
take up first the termination of Jackson.
B. The Discharge of Jackson
Lionel Jackson began work for the Respondent on April
1, 1968, as a full-time driver of a ready-mix concrete truck.
He continued in that capacity until his termination on Feb-
ruary 26, 1970. There is no dispute in the testimony that
Jackson was well above average as a truckdriver; however,
the Respondent contends that during the latter period of his
employment, i.e., from about December 1969, he began
"goofing off" and otherwise became inattentive to his du-
ties. The immediate cause of his termination, according to
the Respondent, was the fact that on February 26, while
driving his truck, he was involved in an accident which
resulted in substantial damage to the truck. Jackson testi-
fied that he told Mark Brown, fleet supervisor, that he had
backed into another truck, and that Brown said that be-
cause "the company was on his [Brown's] back about the
trucks having too many accidents" he had no choice other
than to terminate Jackson.4 There is no question that Jack-
son, as was true of other truckdrivers, during the course of
his employment, had been involved in a number of acci-
dents which resulted in damages to the vehicle he was driv-
ing or to the property of the Respondent or others.5 Upon
this record however, it is important to determine whether
the extent of Jackson's involvement in accidents, where
property damage occurred, was greater or less than that of
other truckdrivers during a comparable span of time. It
should be observed that it cannot be said, with any degree
of confidence, that Jackson was negligent or otherwise re-
sponsible for the accidents in which he was involved. Upon
a careful appraisal of the record, including the testimony of
all witnesses who gave evidence on this subject, and the
exhibits introduced by the Respondent, I conclude and find
that the accident of February 26, no more than prior acci-
dents, was not the operative factor leading to Jackson's
termination.
As stated in the preceding section, Jackson was a leading
figure in promoting unionization among the Respondent's
employees. It was he who initiated interest in the Union,
was instrumental in arranging meetings with the Union's
business agent, obtained signatures to union authorization
cards, and pursued the "grievance" relating to the distrib-
ution of the Christmas donation to truckdnver Scott, shortly
before Christmas 1969. More significant, perhaps, Jackson
was instrumental in obtaining new authorization cards from
employees in December 1969, when, I infer, there was an
intimation emanating from the Respondent, that the Union,
following the certification on February 3, 1969 , no longer
had the adherence of a majority of the unit employees. Also,
° Brown's reports of the matter (Res. Exh . 10 and It , respectively) state
that on February 26 Jackson "backed his truck 105 into front of 189 in yard
at 4 12," causing $250 damage , and that Jackson was on that date terminated
because of "excessive 'write ups ' for miscellaneous violations of rules and
procedures and careless accidents."
s See Res Exh. 2 through 8 concerning a period from October 2, 1968,
through October 20, 1969, some seven in number, recording the "write ups"
given Jackson by Brown
TEXAS INDUSTRIES , INC. 849
Jackson had acted as the union observer at the January 1969
election.
At a social gathering at Jackson 's home near the end of
December 1969, attended by Foreman Beene and other
truckdrivers , including Paul Frazier , during which those in
attendance each consumed several highballs , Beene and
Jackson had the following conversation (according to Jack-
son):
A. Well , the next occasion was over to my house.
That was around the last of December . Ray Beene was
over there , along with Paul Frazier and myself, and he
was telling me that he wanted to try to make me truck
foreman, and I told him that I couldn 't be a truck
foreman because I was a union man, and I were back-
ing the union all the way.
So he told me , said , well, he said "If you would let
the union alone ." He said, "I could put you in as truck
foreman," he said , "but if you keep pushing the union,"
he say , `,you are going to get yourself in a whole lot of
trouble .' He say, "You will probably wind up getting
fired."
Q. Did he say anything else on this occasion?
A. He also said that if I could get the men to vote the
union out , since it seemed to him that I pulled such, you
know , a big weight with the men, If I could get them
to vote the union out, that he would see that we get a
raise up to three dollars an hour. We were making $2.50
at the time.
As a witness , Frazier corroborated Jackson , testifying:
Trial Examiner : Well, were you there? Did you at-
tend Lionel Jackson's residence?
The Witness : Yes, I was there.
Trial Examiner : Before Christmas?
The Witness : Yes, sir.
Trial Examiner : You were there . All right.
Q. (By Mr . Arter) And who was present?
A. Looper . I don't know his first name . But his last
name is Looper . Another driver, Johnny Hansen, Ray
Beene and myself.
Q. Did you hear foreman Beene have any discussion
with Lional Jackson about the union?
A. Yes.
Q. Would you tell us what you heard , please?
A. Foreman Beene asked Lionel Jackson did he want
to be foreman , Lionel said no, that he could not be
foreman because he was a union man. And foreman
Beene say , "Why not?"
And Jackson said , "Well, I am just for the union."
And Ray Beene also said that he would make a good
truck foreman because , you know , the guys looked
toward Jackson as somewhat a leader . And so also Ray
Beene said that if we wasn't in the union he could get
us a raise.
Q. Did he state how much the raise would be?
A. He stated a fifty cent raise.
Q. Which would bring your wages to what?
A. Up to three dollars.
Jimmy Looper , a witness for the Respondent, and a
ruckdriver who was also at the Christmas party at
ackson 's home , testified with respect thereto as follows:
Q. (By Mr . Smith) Were you at a party at Mr.
Jackson s house sometime during the Christmas season
1969?
A. Yes, sir.
Q. And was everyone at the party drinking and hav-
ing a good time?
A. Yes, sir.
Q. All right, sir. Would you tell us what oc-
curred.... What did you hear Mr. Beene say at that
party?
At that party he told us that we were going to get
a ten-cent raise as soon as it went through the
union.... And I think he said that as it had to go
through the Union, and if it hadn't been for the union
we would have already had it a long time ago, but they
were afraid that the union would consider it that they
were bribing the employees , or something to that order.
Q. Did Mr . Beene say anything else?
A. Not that I caught.
Foreman Beene, who testified that, prior to about De-
cember 1969, Jackson was "good" as an employee and "a
man to catch up in concrete, testified with respect to the
Christmas party as follows:
Q. Now, then , do you recall attending a party at Mr.
Jackson's house around the Christmas holiday period
in 1969.
A. Yes, sir.
Q. Would you relate to us what happened there,
please, to the best of your memory?
A. To the best of my memory I was getting ready to
leave the plant. I told Lionel I was going to brine him
a couple of quarts over to the party for the drivers,
drivers ' party , and Lionel invited me over to the
party
And we [Beene and Frazier ] went inside , and I was
talking to Jackson....
We sat there , oh, for a good while, I guess , and I had
three or four drinks, and then others came in, Looper
and all came in . We sat there , shooting the breeze, and
just drinking ....
We was discussing the union , talking-he was talking
about the union.
Q. Who brought that up?
A. Jack brought up the union deal. Said that he had
more power in the union now with the voters . He told
me he had more power in the union , and wanted to
know if I wanted to look at the cards, and I said no.
And he said, "I have got more out in the car, that we
have got 65 percent," Igbelieve is what it was.
And I told him I didn't care to see them. And then
I stayed a little bit longer , and then I left.
Q. Did he come and-ask you for five dollars?
A. He wanted to borrow five dollars to get some
more whiskey.
Q. Was everybody at the party drinking?
A. Yes, sir, as far as I know they was.
Mark Brown, the Respondent's fleet superintendent, tes-
tified that on February 26, he was notifiedpthat Jackson had
backed into a truck and damaged the radiator of that ve-
hicle. When he came to the plant he obtained Jackson's
personnel file and reviewed it with Personnel Director Wil-
liams. Brown further stated that it was his decision to dis-
charge Jackson for "these past records and from the
maintenance cost that our trucks was costing us." Foreman
Beene accompanied Superintendent Brown in the discus-
sion with Personnel Director Williams and, after they re-
turned from this conference , Brown told Jackson that he
was terminated for the reasons above indicated. Brown stat-
ed that the damage caused by Jackson on this occasion
amounted to about $ 100. On cross -examination Brown tes-
tified as follows:
Q. What sort of a driver was Jackson when you
started working at the company?
A. Jackson is an excellent driver.
Q. Did he get the concrete delivered?
A. Well , except maybe sometimes here where [for] an
hour and a half I couldn 't find him.
850 DECISIONS OF 14ATIONAL LABOR RELATIONS BOARD
Q. But generally he was pretty good , pretty able?
A. Yes, sir. Yes, sir.
Q. And could he really drive his truck when he was
on the job site?
A. Yes, sir.
Q. Could he get it into the muddy and slippery and
narrow places?
A. I have been right in the mud with Jackson, You
bet he could.
C. The Termination of Lawrence Scott
As indicated in the introductory section of this Decision,
Case 23-CA-3665 , involving the discharge of Scott, was
consolidated with the prior case (23-CA-3560), fpllowingg a
hearing in the earlier case on June 18. Scott testified in the
June hearing in support of the General Counsel's complaint
involving Jackson . During the June hearing , it became evi-
dent that there was then on file with the Regional Director
a charge alleging discriminatory treatment of Scott, which
was then under investigation . After the conclusion of the
June hearing, the Regional Director issued a complaint al-
leging that, in respect to Scott , the Respondent had violated
Section 8(a)(3) and 8 (a)(4) of the Act and , derivatively,
Section 8(axl). At the outset of the resumed , consolidated
hearing on August 13, I considered and rejected a motion
of counsel for the Respondent which , as I understood it, was
to the effect that it was "grossly unfair" for the Agency to
follow the procedure that has heretofore been described,
i.e., consolidating the two cases and reopening. The re-
opened hearing , conducted on August 13 and 14, was al-
most exclusively concerned with the alleged discriminatory
termination of Scott's employment.
Scott was first employed by the Respondent in January
1969, and terminated March 26 , 1970. While employed by
the Respondent, Scott was interviewed by a Board agent,
Mr. Gutshall, who called Scott on the telephone one night
to inquire whether Scott would give him a statement regard-
ing Jackson 's discharge . Scott testified that this telephone
conversation occurred "around the 16th or 18th of March"
1970. Scott talked to Gutshall for approximately 15 minutes.
Foreman Beene , who was present in Scott's home at the
time was seated where he could overhear Scott's end of the
conversation . After Scott hung up, Beene inquired , so Scott
testified , what Gutshall wanted . Scott told Beene that Gut-
shall wanted to obtain an affidavit from Scott regarding
Jackson's case . Thereupon , so Scott testified , Beene "made
the statement [that] if he was in my place he would forget
it, not get mixed up in that , [becausel 'you can get yourself
in a bunch of trouble ."' Further, according to Scott, as
Beene left his home Beene "cautioned me again to stay out
of it ." According to Scott , Beene stayed at Scott's home
approximately an hour after Scott had finished his conver-
sation with Board Agent Gutshall , and during that time they
had some drinks.
On March 26 Scott was discharged . The Respondent has
a policy that each truck in the fleet is called into the shop
for general maintenance , on approximately a monthly basis.
On March 26 the maintenance personnel called plant 14,
where Scott was working , and instructed that his truck be
brought to the maintenance and repair shop.
Plant 14 is about 23 or 24 miles away from the mainte-
nance shop . In traversing this distance, all but approximate-
ly 4 miles of the route is an interstate highway. Scott missed
the appropriate exit off the freeway and therefore had to
continue for some distance until he reached the next exit.
Scott had not previously traversed the'distance from plant
14 to the maintenance shop, as he had been hired at plant
12 and had been assigned to plant 14 about 2 weeks before
he was terminated .6
When he arrived at the maintenance shop and of out of
his truck, Fleet Superintendent Brown parked his Brown's)
car behind him and some 10 or 15 minutes later called Scott
into the foreman's shop office. Brown, so Scott testified,
"asked me what I was doingIoy-riding around over town in
the mixer truck. I told him wasn't joy-riding. He wanted
to know what I was doing off my route." Scott testified that
he told Brown that he had missed the proper turn off the
freeway, and added that he was approximately 6 blocks off
his direct route to the maintenance shop.
According to Scott, Brown "sat there and looked at me"
and, after some 10 minutes, stated that Scott owed him
(Brown) an explanation as to "what I was doing off of the
route." Scott told Brown that he had given him the only
explanation that he had, namely that he had missed his turn
off the freeway. Thereupon, so Scott testified, Brown said
that if Scott did not "know the city any better than that" he
could not drive a truck for the Respondent. Scott was told
by Brown that the maintenance on the trucks driven by
employees was "over our head" and that the Respondent
"can't take it any more." In an apparently ironic vain, Scott
remarked that he knew that he had "done a lot of damage"
to the truck, "driving it six blocks out of my way" en route
to the maintenance shop .7 Thereupon, so Scott testified,
Brown said that he did not "think you [Scott] need to drive
for this company." Scott remarked, to this observation b
Brown, that Brown's statement was "a good enough deal'
for Scott, and thereupon Scott walked out of the office. He
then told Brown that he wished to obtain company trans-
portation to the point where his automobile was located, at
plant 14, some 23 miles away. According to Scott, after he
had removed his personal belongings from the truck, Brown
"got the tire man' to drive him back to where his personal
automobile was located.
When Scott returned to plant 14, the foreman (or batch-
man) for that plant, Charles Hall, who dispatched the trucks
from that plant, asked Scott what had happened. Scott in
substance said that he did not know what lead happened,
that the episode was "a surprise and shock" to him; Hall,
according to Scott, stated that he regretted that Scott was
leaving because he was "a good man on the mixer truck."
Scott further testified on direct examination that Hall asked
exactly what had happened at the maintenance shop, and
Scott told Hall that he had been discharged; Hall inquired
what the stated reason was and Scott told him what had
transpired, which elicited a remark from Hall that he (Hall)
"hated to hear it," as in Hall's view Scott was "such a good
man."
Hall testified that when Scott came to plant 14 on Friday,
March 27, to pick up his regular paycheck Scott told Hall
that he had not reported to Williams' office that morning
and stated that he had another job with a company manu-
facturing boxes. Scott categorically denied that he had
made such a statement about new employment to Hall and,
of course, the Respondent produced no corroborating evi-
6 With relation to the maintenance shop , plant 14 was m the northwest
direction, plant 12 was southeast of the shop.
7 Brown testified that he saw Scott's truck "going east," after he had
finished lunch and was on the freeway, that he "proceeded to get in behind
it and followed it," up to a feeder off the Gulf Freeway, to a point off the
feeder , back to the feeder, and then to the maintenance shop There he
"proceeded to ask Scott where he was clear south of the shop, what he was
doing if he had some personal business over that side of town, and he
said no, he just got lost "
TEXAS INDUSTRIES, INC.
dence to support the testimony of Hall. I do not credit Hall's
testimony in this regard but, to the contrary, accept Scott's
testimony relating to this matter.
The following day Scott went to plant 14 to pick up his
salary check and, during that process, Hall asked him if he
had found a job. Scott told Hall, so Scott credibly testified,
that he had not had a chance to begin looking for a job, and
that Hall reiterated that he hated to see Scott leave because
he was a good truckdriver.
With respect to truckdrivers "getting lost," Scott testified
that it was not an uncommon occurrence in the city of
Houston, and that Fleet Superintendent Brown in June or
July 1969 had called a meeting in which he discussed the
matter of "too many men wandering around over town"
looking for the jobsites they were to serve. On that occasion,
so Scott testified without contradiction, Brown emphasized
that if it took 20 or 30 minutes for a loaded driver to sit at
the yard, investigating how to reach the destination of his
load, that the driver should "take that time." Some drivers,
as Scott further testified, were supplied with maps of the city
by the Respondent, but he did not have a maps
Scott testified that the two Christmas funds, previously
referred to, had been presented to him by two employees on
separate occasions; first by Paul Castenaeda, who gave him
$3, and next by Jackson, who brought him $27. After having
received the Christmas donations . Foreman Beene tele-
phoned Scott and asked if Scott "had a drink." Beene lived
some 12 or 14 miles from Scott's residence; Scott replied to
Beene, so Scott testified, that he did have some whiskey, and
some time shortly thereafter Beene came over to Scott's
home for "a friendly visit." After Beene had been at Scott's
home some 30 minutes, Scott received the telephone call
from Board Agent Gutshall. Beene asked to whom Scott
had been talking and Scott stated that it was Gutshall, who
was inquiring rather persistently whether Scott would give
Gutshall an affidavit concerning the case involving Jackson.
On March 26, as previously outlined, Scott had a conver-
sation with Fleet Superintendent Brown in the maintenance
shop office regarding the damage to Scott's truck. As Scott
credibly testified on cross-examination, Brown told Scott to
report to the office of Personnel Director Williams the fol-
lowing Monday morning, but Brown did not indicate to
Scott why he wished Scott to report to Williams. Scott did
not attend the scheduled meeting with Williams and, in
explanation , testified that he had concluded that he was
"already fired, and I didn't figure there was any need of me
spending my time down there talking to Mr. Williams."
Scott testified that Brown's direction that Scott see Williams
followed Brown's statement to Scott that he (Brown) had no
need for an employee who "$ot lost." Scott further testified
that he had been to the maintenance shop some 10 or I I
times during his employment, but that on prior occasions,
he had driven the truck to the maintenance shop from plant
12, rather than plant 14 (to which he had been assigned
some 2 weeks before his termination). On the day Scott was
terminated he immediately removed his personal belong-
ings from the truck and, so he testified, "everybody in the
shop" saw him do so.
Merida, the business representative of the Union, testi-
fied that he took over that position in November or Decem-
ber 1969. In the latter part of December, or perhaps early
in January 1970, Scott and Jackson came to his office and
in substance stated that they had a complaint concerning
the distribution of a Christmas fund to Scott and Powell
that had been collected from the employees of the Respon-
8 Scott had been in Houston since sometime in 1969, having previously
lived in Alabama.
851
dent . Scott and Jackson related that Superintendent Brown
had told them that he would take charge of the distribution
of the fund . The substance of their complaint was that they
felt the distribution , conducted by Brown , had been unfair
in that Scott had only received $3, although the understand-
ing among the employees , so Scott and Jackson related, was
that the contribution was intended equally to benefit Scott
and Powell . Merida suggested that Scott and Jackson con-
sult with Personnel Manager Williams and attempt to ascer-
tain why the fund had been distributed in the fashion that
it had been-$3 to Scott and $100 to Powell . Merida contin-
ued, in his testimony , to relate that Scott and Jackson later
informed him that they were having some problem in ar-
ranging an appointment with Williams . Thereupon, Merida
telepphoned Williams , a few days after being apprised of the
problem by Scott and Jackson , and told Williams that he
felt that the employees "had a legitimate complaint" and
that they were owed an explanation of why the fund had
been distributed as it had been . Merida related that Wil-
liams stated he would meet with Jackson and Scott , and that
he (Merida) was later advised that Williams did meet with
Jackson and Scott , not as a committee , but individually.
The first witness called by the Respondent was one Larry
Gilbert, the vice president and general manager of Champi-
on Concrete Company . He testified that Scott was inter-
viewed by him on March 31 and hired April 13, and that
when he applied Scott related that he had been employed
by the Respondent as a driver and had been released from
that employment because he had "made the wrong turn."
Gilbert stated that Scott told him that he had been told by
representatives of the Respondent that he would have to
take a 10-day layoff, and that Scott had then responded that
"rather than do that he would just quit ." Gilbert further
related that after Scott had been employed by his concern
he "just quit."
On cross-examination, Gilbert testified that he had first
met Scott on March 31, when the latter had applied for a
t with Gilbert's concern . Scott filled out an application
blank at the time , which contained a provision for the appli-
cant to state why he had left his last employment . Gilbert
did not know whether Scott had completed that portion of
the application blank ; indeed , he was unsure whether the
application blank of Champion contained a line requiring
such information . Gilbert testified that no representative of
the Respondent had asked him to see the application form,
and that the completed blank was in his files at his office.
In response to my question he stated that he would "very
definitely" produce it . Gilbert stated , when indicating that
he was willing to produce the completed application form
of Scott , his establishment was probably 45 minutes dis
tance away from the hearing room . In consequence, I ar-
ranged to reconvene the hearing on the morning of August
14 in order that the application form of Scott might be
produced and subjected to appropriate examination.
Gilbert testified that Scott went on his payroll on April
13, but that his Company did not deliver any concrete until
April 24. At the time Scott was employed, Gilbert had only
one other employee , other than the production supervisor,
his son -in-law , Mr. Ziifle . While Gilbert stated that he was
entirely willing to produce the completed application form
of Scott , he stated that his concern was "too busy to bring
it in tomorrow ." Thereupon , counsel for the Respondent
stated that they would produce the payroll record and the
application form . Gilbert testified that between March 31,
when he interviewed Scott , and April 13 , when Scott was
placed on the payroll , he made no contact with any repre-
sentative of the Respondent . Indeed, he testified that his
first contact with any representative of the Respondent with
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respect to Scott was on the day he testified: "When they
asked me to come . "9 Gilbert then testified as follows:
The Witness: Yes, sir, the lawyers asked me to come.
The first day.
Trial Examiner: All right.
The Witness: They called, well, right before noon, I
guess.
Q. (By Mr. Arter) And when did you first have any
contact with these lawyers about this case?
A. Right outside here, just awhile ago.
Trial Examiner: I believe the record can show at
about 2:00 to 2:30 you came into the hearing room.
The Witness: Yes, sir, I opened the door.
Trial Examiner: Yes, I saw you come in.
The Witness: And I walked out.
Trial Examiner: Right.
The Witness: That is the first contact. I never met
any of these gentlemen before in my life.
Q. (By Mr. Arter) Well, how did you happen to come
here?
A. They asked me to come.
Gilbert was then asked whether he did any work for the
Respondent to which he replied in the negative, but then did
testify that he bought cement "occasionally" from the Re-
spondent . Gilbert then added that Scott , after being em-
ployed on April 13, worked until 3 or 4 weeks before the
time Gilbert appeared as a witness (August 13), and that
Scott "never told me" why he was leaving-that Scott merely
"came in and picked up his check." Gilbert was then asked
whether he had ever worked for the Respondent, and testi-
fied that he had been employed by a subsidiary of the
Respondent in Louisiana, from 1965 to 1969, but that he
had never worked for the Respondent's Houston operation.
Gilbert professed that he knew none of the Respondent's
representatives who appeared as witnesses in this hearing,
but that he did know the Respondent's chief dispatcher, one
Bishop, whom he described as the person to contact when
ordering cement. On redirect examination, Gilbert testified
that Scott telephoned him and stated that he was coming
out to Gilbert's plant to pick up his personal property and,
when he arrived, did not state where he "was going to go to
work." Subsequently, Gilbert received a telephone call from
Scott, who reportedly stated that he was going to work for
a armored car company., and stated that Scott did not say
why he was quitting Gilbert's employ.
Called as a witness by counselor the General Counsel,
Brown testified that he had participated in the handling of
the 1969 Christmas fund collection conducted among the
drivers. He stated that the customary procedure was to
"have a sheet" of paper on which the drivers "put down"
the amount that they would contribute out of their next
paycheck, signing their names and the intended contribu-
tion. The sheet on which the employees indicated their con-
tribution had a statement that the collection was being
taken up for one Albert Powell, an employee who had been
injured. While the solicitation effort was in process, Scott
became ill and "they" i.e., the truckdrivers, with the ap rov-
al of Foreman Beene , "decided that they should give Scott
some of the collection." According to Brown, he heard that
the division of the collection was to be a third for Scott and
two-thirds for Powell.
Brown related that he recalled an incident involving Scott
bringing in his truck for maintenance on March 26. The
occurrence took place shortly after lunch , so Brown testi-
fied, when he "saw this truck going east." He then "proceed-
9 He added that the attorneys for the Respondent had asked him to appear
ed to get in behind it and followed it ... up to the feeder
off the Gulf Freeway , and ... back down the feeder ... to
the shop ." When Brown , according to his account , came to
the maintenance shop he asked the shop foreman why the
truck he had been following was in the shop ; the shop
foreman replied that it was in for the customary service,
and, thereupon , Brown "proceeded to ask Scott why he was
clear south of the shop , what he was doing down there," and
that Scott replied he had been "lost." Brown interrogated
Scott why he had not, on the two -way radio, called the
dispatcher to ascertain his destination . Brown continued to
testify that by his estimation Scott had been "15 blocks
south of the shop ." Pressed by Brown for an explanation,
Scott , so Brown testified , simply stated that he had been lost
and that Brown then replied, Well, you better come over
to the main office the next day and meet with Ray Williams
and myself and we will discuss this further ." Scott left the
Respondent's premises and made no indication , so Brown
testified, whether he would or would not attend the meeting
with Williams . According to Brown , the shop foreman, Al
Nava, was present during this conversation. Brown testified
he did not tell Scott he was discharged or terminated, but
that Scott "just got up and left. " Brown testified that he did
not see Scott approach his truck inasmuch as he (Brown),
"stayed in the office."
Brown related that on March 26 he telephoned Williams
and asked if he would be available for the meeting with
himself and Scott the following morning . Brown admitted
that he and Williams discussed "the possibility," that if
Scott still "insisted" that he had been lost that he would be
penalized , according to normal discipline, by being given a
2-day layoff . Scott did not appear at the meeting arranged
by Brown with Williams . Indeed, followingg that date Brown
first saw Scott "at ... that last hearing we had ." (Doubtless
referring to the June 18 hearing).
Brown continued to relate that on March 26 , the day he
spoke with Scott at the maintenance shop , he also spoke
with Charles Hall, the "batch man" at plant 14. Brown
continued to testify as follows , upon direct examination:
Q. Do you recall what was said between you and Mr.
Hall?
A. Well, not exactly . I just told him that Scott didn't
show up and that-
Q. X. Now, the 26th , March 26th, the day you
talked to him at the shop , the day you talked to Scott
at the shop.
A. I will just have to think just a minute.
Q. Did you call Mr. Hall to tell him that Mr. Scott-
Mr. Arter : Objection.
Trial Examiner : Just a minute . Sustained.
A. Just a minute . I will think . Just a minute. The
26th, the day that-
Trial Examiner : That he got lost.
The Witness : That he got lost . The question is-
Q. (By Mr . Smith) Did you talk to Mr . Charles Hall
that day, after you had talked to Mr . Scott?
Trial Examiner: Who is Mr. Hall, Mr. Brown?
The Witness : He is the batch man at the plant where
Scott was stationed.
Trial Examiner : Well, now , what does a batch man
do, if you know?
The Witness: Well, he kind of oversees the plant and
loads the trucks with material and oversees the plant.
Trial Examiner : And does he give any directions to
the drivers whatever?
The Witness: Yes. After he loads them he gives them
a ticket and tells them which direction to go.
Trial Examiner: He is kind of a dispatcher?
TEXAS INDUSTRIES, INC.
Mr. Smith : Mr. Trial Examiner , I would kind of like
to examine my own witness , if you don' t mind, and if
you have questions there will be plenty of time when
I am through , please, sir.
Trial Examiner : Well, perhaps you have a point, Mr.
Smith , but I don't appreciate your attitude. So go
ahead.
Mr. Smith : Mr. Brown was trying to think of the
answer to a question.
Trial Examiner : Yes, and you started to supply it. I
wasn 't born yesterday , Mr. Smith.
Q. (By Mr . Smith) Did you talk to Mr . Charles Hall
later on the day of March 26th?
A. I can 't remember whether I did or not.
Q. All right . Did you talk to Mr . Charles Hall the
next day , the day of the 27th , when Mr. Scott was
supposed to come in to Mr. Williams ' office?
A. I believe-I either called him or he called me.
Q. What was said in that conversation?
A. That is the next day?
Q. Yes, sir.
A. Well, after the next day we found that he didn't
show up for work , I just told Charlie to make sure he
got his final check and got his uniform.
Q. All right. And did Mr. Hall tell you anything
about Scott at that time?
A. No.
Trial Examiner : Your answer is "No"?
The Witness: "No, sir."
On cross-examination , Brown testified that on March 26,
when Scott left the maintenance shop, Brown made ar-
rangements for the tire man to take him back to plant 14.
He denied that he told Scott that he had been suspended for
2 days , or for any period . In answer to my question, Brown
testified that he could not recall having suspended any dnv-
er before for "getting lost." He added that it was not unusu-
al for a truck not to reach its destination on time. On
redirect examination , Brown testified that the maintenance
shop had not changed its location following the employ-
ment of Scott . He then testified as follows:
Q. And had he been to the shop several times prior
to the 26th of March?
A. Several times , yes, sir.
Q. Do the job locations where you are delivering
concrete frequently change , say, on a day to day basis.
A. Yes, uh-huh.
Q. So drivers get lost looking for a location they had
never seen before that day?
A. That happens , yes, sir.
The shop foreman under Brown , Albert Nava, testified
that he had to call the batch man at the plant to order Scott's
truck in for regular maintenance service . On direct exam-
ination , Nava testified as follows:
Q. Would you please tell in your own words what
was said in that conversation between Mr . Brown and
Mr. Scott?
A. Well, Mr. Brown asked Mr. Scott what was he
doing in that part of town , which he was about , the way
I understand it, about maybe twelve to fifteen blocks
south of the shop.
And Mr. Scott actually wouldn 't answer Mr. Brown
at first.
Mr. Brown repeated his question . Mr. Scott said he
was lost.
So Mr . Brown asked him again, "Were you out there
on personal business ? All I want to know , what were
you doing out there?"
Mr. Scott answered that he was lost.
853
So Mr. Brown asked him why didn't he get in touch
with the dispatcher. No answer to that.
So the question was asked several times , I say three
or four times , what was he doing-
Trial Examiner : Well, what was it?
The Witness: The question was what was he doing
in that part of town.
Trial Examiner : From your observation did it ap-
pear necessary for. Mr. Brown to repeat the question so
many times?
The Witness : Well, I imagine trying to get, find out
why he was so far away from the shop, that is why he
asked.
Trial Examiner: Okay.
Q. (By Mr. Smith) What else happened in that con-
versation?
A. Well, Mr. Scott never did answer.
Trial Examiner: Except to say he was lost?
The Witness: That is all he said, that he was lost. Mr.
Brown asked him how many times he had been to, the
shop . He said "Five or six times ," which is true.
On cross-examination Nava stated that he did not hear
Brown mention to Scott anything about a layoff, but that
he did hear Brown state that Scott was to appear at "the
office [Ray Williams' office], the following morning."
D. Concluding Findings
Upon the foregoing findings of fact I conclude and find
that the Respondent terminated the employment of Jackson
and of Scott for discriminatory reasons and , therefore, by
so doing violated Section 8(a)(3) and (4), as well as Section
8(a)(1) of the Act. With respect to Jackson, I have found
above that on the record before me it cannot reasonably be
concluded that Jackson' s accidents with his concrete truck
were significantly more numerous or costly than those of
other truckdrivers during a comparable span of time. Nor
do I believe the generalized and conclusionary testimony
that during the last few months of his employment Jackson
had "slowed down." In short, I am satisied and find that
the reasons advanced by the Respondent for the termina-
tion of Jackson were pretextual in nature , and that the real
reason was that he was a member and an adherent of the
Union.
With respect to Scott , the undenied testimony is that
Scott was directed to appear with his truck at the mainte-
nance shop on March 26; that he was told by Shop Foreman
Nava and supervisor at plant 14 to wait at the shop for the
truck.
In evaluating the relative credibility of Scott and the wit-
nesses produced by the Respondent , I note that
Respondent's counsel urges that "the overwhelming weight
of any credence to Scott s testimony." With all due respect
to counsel , I cannot subscribe to this characterization. it is,
of course, true that Scott's memory of the precise chronolo-
gy and exact dates of events was not altogether accurate, as
demonstrated by relevant documents and the objective
facts . This, however, is not an unusual situation , and in m,
opinion does not tend to discredit the substance of Scott s
testimony . In contrast , the record demonstrates that Super-
intendent Brown, supported by Shop Foreman Nava, was
not above manufacturing a paper record to support the
Respondent's position that Scott quit his employment.10
Nor is it denied that Superintendent Brown followed Scott
during the latter's journey to the maintenance shop and
10 See Res Exh 1, the contemporaneous written account prepared by
(Contin ued)
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after the conversation between Brown and Scott thereafter,
that Scott removed his personal belongings from the truck,
action which is scarcely compatible with the Respondent's
theory that Scott voluntarily quit his job . It strains credulity
to accept the contention that Scott quit or would then and
there voluntarily terminate his employment , when it is con-
sidered that it was necessary for Brown to supply transpor-
tation to Scott back to plant 14 where Scott had left his
automobile . The more logical course, had Scott intended to
quit, would have been for in to complete his day's work
by waiting until his truck had been serviced and then driv-
ing the truck back to plant 14. I conclude, and find, that the
true reason for Scott's termination was that he had engaged
in concerted protected activity and had indicated clearly to
Foreman Beene that he was about to give testimony to the
Board regarding the termination of Jackson , as he in fact
did.I I In this regard , it is significant to note that both Super-
intendent Brown and Foreman Beene admitted that they
were aware that Scott had been contacted by Board Agent
Gutshall . 12 Moreover, the several acts of coercive conduct
violative of Section 8(a)(1) of the Act support and confirm
the findings just made with respect to Jackson and Scott.
Thus, in October 1969 Foreman Beene threatened Jackson
with discharge if he called the Union during working hours.
Also, during the Christmas party at his home , Scott and
others present were told that a wage increase would have
been forthcoming sooner but for the fact that the employees
had selected the Union as their representative . Finally,
Jackson's credited testimony is that after the union meeting
Foreman Beene questioned him as to who had attended and
stated to Jackson that he (Beene) knew every man who had
been present at the meeting.
Brown and witnessed by Nava. Significantly , this document was not fully
completed on the day of Scott 's last employment , but obviously was supple-
mented at a later point to reflect the uncontradicted fact that on March 27
Scott did not appear at the conference in the office of Personnel Manager
Williams.
I I In his brief counsel for the Respondent asserts that the "most devastat-
ing blow to Scott's claim" of illegal discharge came from Gilbert's testimony
and the employment records of Gilbert 's company relating to Scott. It is
claimed that this testimony and the records "reflect that Scott intentionally
misrepresented the truth while under oath when he testified that he had been
off work for six weeks after Texas Industries ." Regrettably , I do not share
counsel's confidence in the verity of Gilbert 's testimony , both from a close
scrutiny of the transcnpt and my observation of him as a witness. Gilbert
was, to say the least , glib and inclined to exaggerate . I think it suffices to state
that his testimony carries its own "death wound."
i2 While there is no testimony that Beene related to Brown or any other
official of the Respondent the substance of his conversation with Scott during
the Christmas party, I think it a reasonable inference that Brown knew of this
episode, or at least Scott 's interest in the Union , as evinced to Foreman
Beene , prior to the events of March 26 and 27
In short, I find that by the termination of Jackson the
Respondent violated Section 8(3) and (1) of the Act, and by
discharging Scott it violated Section 8(a)(4) and (1) of the
Act. Additionally, by the independent acts of a coercive
nature as related above, the Respondent additionally violat-
ed Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent, Texas Industries , Inc., Houston Divi-
sion , Ready Mix Concrete Plants , Houston, Texas, is an
employer within the meaning of Section 2(2) of the Act; the
Union is a labor organization within the meaning of Section
2(5) of the Act.
2. By terminating Lionel J. Jackson on February 26, 1970,
and Lawrence A. Scott on March 26, 1970, the Respondent
violated Section 8(a)(3) and Section 8(a)(4), respectively,
and, derivatively , Section 8(a)(1) of the Act.
3. By threatening employees with discharge because of
their union adherence , questioning employees about atten-
dance at a union meeting , indicating that wage increases
would have been forthcoming sooner but for the Union, and
creating the impression of surveillance, the Respondent vio-
lated Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce , within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain
conduct violative of the Act, it will be recommended that
the Respondent cease and desist therefrom and, affirma-
tively, take certain action designed to effectuate the policies
of the Act.
I have found that by terminating Lionel J. Jackson and
Lawrence A. Scott the Respondent violated Section 8(a)(3)
and Section 8(a)(4), respectively, as well as Section 8(axl)
of the Act. It will, therefore, be recommended that the Re-
spondent offer each of them reinstatement to his former job
or, if that is no longer available, to a substantially equivalent
position, and make each of them whole for any losses sus-
tained by reason of their termination, with interest at the
rate of 6 percent per annum. Additionally, it will be recom-
mended that the Respondent cease and desist from engag-
ing in any other conduct violative of Section 8(a)(1) of the
Act, and post apprQpriate notices to its employees.
Upon the basis of the foregoing findings of fact and con-
clusions of law, it is recommended that the National Labor
Relations Board, pursuant to Section 10(c) of the Act, issue
the following Order:
[Recommended Order omitted from publication.]