The Ready-Mix Concrete Co.

National Labor Relations Board - Board Decisions

May 9, 1963

142 N.L.R.B. 502 (N.L.R.B. 1963)

502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
application in accordance with the Selective Service Act after discharge from the
Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office , 22 North
Front Street, Seventh Floor Falls Building , Memphis, Tennessee , 38103 , Telephone
No. Jackson 7-5451, if they have any question concerning this notice or compliance
with its provisions.
The Ready-Mix Concrete Company of Lawrence , Kansas and
Truck Drivers and Helpers Local Union No. 696, affiliated with
International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen & Helpers of America. Case No. 17-CA-2022. May
9, 1963
DECISION AND ORDER
On February 5, 1963, Trial Examiner Alba B. Martin issued his
Intermediate Report 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 Inter-
mediate Report. Thereafter, Respondent filed exceptions to the Inter-
mediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Fanning].
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 Interme-
diate Report and the entire record in this case, including the exceptions
and brief, and hereby adopts the findings,' conclusions,2 and recom-
mendations 2 of the Trial Examiner to the extent indicated below.'
'Although the Trial Examiner found that Respondent violated Section 8 ( a) (1) by
threatening its employees with loss of employment and other economic reprisals because
of their union activity, adherence , and loyalty ; by promising economic benefits to em-
ployees who remained loyal to Respondent during the union campaign ; and, by coercively
interrogating employees concerning their union activities , the identity of their union
leader, and the outcome of the scheduled election , and although the Trial Examiner
recommended a notice containing provisions for discontinuing these violations , he inadver-
tently failed to provide remedies for these violations in his Recommended Order we shall
therefore correct this inadvertency in our Order herein
2 While we adopt the Trial Examiner 's conclusion that Respondent was discriminatorily
motivated in discharging employee Keith Kriesel, we do not rely upon the Trial Examiner's
reference to the fact that Respondent filed a charge against the Union and obtained an
injunction against certain picketing by the Union as evidence of such illegal motivation.
3 In the remedial section of his Intermediate Report, the Trial Examiner recommended
that Respondent reinstate Kriesel and award backpay to him from the date of his layoff
on July 31 , 1962 , to the date on which Respondent offers to reinstate him However, by
letter dated August 30, 1962 , Respondent had unconditionally offered reemployment to
Kriesel on a part -time basis commencing on September 5, 1962. All employees were then
on a part-time basis, and there is no claim that this was unlawful In view of these
circumstances , we conclude that Kriesel forfeited his right to reinstatement by his failure
to accept Respondent ' s unconditional offer, and that he is entitled to backpay only to
142 NLRB No. 61.
THE READY-MIX CONCRETE CO. OF LAWRENCE, KANS. 503
ORDER
The Board hereby adopts as its Order the Recommendations of the
Trial Examiner, as modified.'
September 5, the date on which reinstatement was offered to him. We therefore do not
adopt the Trial Examiner's remedial recommendation in this regard and we shall modify
the recommended Order accordingly
' For the reasons set forth in his dissenting opinion in Isis Phimbsng if Heating Co ,
138 NLRB 716, Member Rodgers would not add interest to the award of backpay.
I The Trial Examiner's Recommended Order is hereby modified by changing paragraph
1(c) to 1(d), and inserting as paragraph 1(c) the following
(c) Making express or implied threats against employees' jobs because of their "dis-
loyalty" to the Company, or making promises of benefit to employees because of their
"loyalty" to the Company, stating or implying that it might take economic reprisals
against known union adherents , making implied threats that employees' jobs might
be in jeopardy because of the employees' union activities, if the employees do not quit
their employment, and, interrogating the employees concerning their union activities,
who is the union leader, or how a representation election among its employees is
going to turn out.
The Recommended Order is further modified by deleting paragraph 2(a), by deleting
paragraph 2(b), and substituting the following therefor:
(a) Make whole Keith Kriesel for any loss of pay he may have suffered by reason
of Respondent's discrimination against him from July 31, 1962, the date on which
he was laid off, to September 5, 1962, the date of Respondent's unconditional offer
of reinstatement.
The companion notice provisions shall be deleted and modified accordingly. Paragraphs
2(c), (d), and (e) of the Recommended Order shall be renumbered paragraphs 2(b), (c),
and (d).
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding, with all parties represented by counsel, was heard before Trial
Examiner Alba B. Martin, in Lawrence , Kansas, on October 25 and 26, 1962, on
complaint I of the General Counsel and answer of The Ready-Mix Concrete Company
of Lawrence, Kansas, Respondent herein . The issues litigated were whether Respond-
ent unlawfully interrogated, threatened, and promised benefits to employees and
whether Respondent unlawfully terminated the employment of Keith Kriesel on or
about July 31, 1962, in violation of Section 8(a) (1), (3), and (4) of the Act. After
the hearing Respondent and the General Counsel filed briefs which have been
carefully considered.
Upon the entire record and my observation of the witnesses, I hereby make the
following:
FINDINGS AND CONCLUSIONS
I. THE BOARD'S JURISDICTION
Respondent, The Ready-Mix Concrete Company of Lawrence, Kansas, a Kansas
corporation with its principal office and place of business at Lawrence, Kansas,
operates a ready-mix and concrete block plant. Only this plant is involved herein.
Annually at its Lawrence plant Respondent manufactures, sells, and distributes
products valued in excess of $250,000. During the first 9 months of 1962 Respond-
ent sold more than $64,000 worth of said products to Constant Construction Co., Inc.,
of Lawrence, Kansas. All of the products purchased by Constant from Respondent
were used by Constant on local jobs within Kansas; about $43,000 worth on two
school dormitories, and the remaining $21,000 worth on a State hospital, a grade
school, a bank, two apartment houses, a student union, two churches, a small market,
and another local building. During the first 9 months of 1962 Constant Construction
Co., Inc., purchased outside of Kansas materials valued in excess of $132,500.
The above facts, a $250,000 annual business selling over $50,000 worth of products
to a company engaged in interstate commerce by virtue of its purchase of over
'The original charge, by Local 696, was filed August 1, 1962; the amended charge
August 28, 1962. The complaint was issued October 1, 1962.
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
$50,000 worth of materials out-of-State, satisfies the Board's indirect outflow
standard for the assertion of jurisdiction over Respondent. Siemons Mailing Service,
122 NLRB 81; Southern Dolomite, 129 NLRB 1342; Greene County Faim Bureau,
132 NLRB 1592, 1593, footnote 2. Despite this Respondent contended that inter-
state commerce would not be affected by a labor dispute involving Respondent
because all the products, mostly ready-mixed concrete, sold by Respondent to Con-
stant were used within the State of Kansas.
In addition to its purchases from Respondent, Constant Construction Co , Inc.,
also bought ready-mix from a competing firm, Lawrence Ready-Mix Company.
During the year prior to the hearing herein Constant purchased "a great deal more"
from Respondent than from the competitor. Constant's president testified that if he
could not get ready-mix concrete from Respondent because of a labor dispute
at Respondent, he would try to get it from the competitor; and failing that. "we
would mix our own with our own equipment " He testified that during a labor
dispute at a concrete company in Lawrence, Kansas, during the last 6 months, his
business was slowed down because of a picket placed at one of his jobsites Although
he has done business with Respondent for some 20 years and with Lawrence Ready-
Mix Company for some 5 years, he expressed inability to say whether if it became
necessary either one of these ready-mix companies could supply the needs of the
Lawrence, Kansas, area ; "there would be so many different things that could enter
into it at the time, I think the question is impossible to answer."
One of the factors which would enter into such a situation would be the possibility
that a labor dispute involving Respondent might spread to the other ready-mix
company, thereby "damming up" the supply of ready-mix to Constant and causing
it to rearrange its normal business dealings by having to try to meet its own demand
for ready-mix by mixing its own. The mere imposition on such an interstate com-
pany as Constant of the burden of having to rearrange its normal business dealings
to find new suppliers or supply itself constitutes an interference with its operations
and might well cause it to discontinue or curtail its purchases in interstate commerce,
at least for a period of time. The potential obstruction to over $132,500 worth of
out-of-State purchases by Constant as a result of a labor dispute is well above de
tninimis and thus provides a sufficient effect on commerce to bring Respondent's
business under the Act. Further, in Bradford Dyeing Association, 310 U.S. 318,
326, the Supreme Court held that the fact that there was an alternative source of
supply was not a material matter, and the courts of appeals have consistently
interpreted this Supreme Court holding as meaning that the Court intended thereby
to rule this factor out altogether as a consideraton.2
Upon the entire record and the above considerations I find and hold that Re-
spondent's operations affect commerce and that it will effectuate the policies of the
Act for the Board to assert jurisdiction herein. Cf. N.L.R.B. V. Reliance Fuel Oil
Corporation, 371 U.S. 224.
II. THE LABOR ORGANIZATION INVOLVED
Truck Drivers and Helpers Local Union No. 696 (referred to herein as the Union),
affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen
& Helpers of America, is a labor organization within the meaning of Section 2(5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Interrogations , threats, and promises
The Union's organizational drive among Respondent 's employees began in March
1962; 3 meetings were held, the employees signed cards and the employees discussed
2 See , N L.R.B. v El Dorado Water Company , Inc, 195 F. 2d 959, 952 (C A 8) ;
N L R.B . v. Davis Motors , Inc, 192 F. 2d 782, 782-783 (C A 10) ; N L R B v. M. L.
Townsend , 185 F 2d 378 , 382 (C IA. 9), certiorari denied , 341 U S . 909; NLRB v.
Mid-Co Gasoline Co., 183 F 2d 451, 452, 453 (C A 5) ; J. L Brandeis & Sons v N L R B,
142 F 2d 977, 980 (C A. 8), certiorari denied , 323 U S 751 ; N L R B. v Bank of America,
etc , 130 F 2d 624, 626 ( C A 9), certiorari denied , 318 U - S 791 , 792; N L R B V. Western
Massachusetts Electric Company , 120 F 2d 455 , 457 (C A 1) ; Pueblo Gas and Fuel
Company v N L R B , 118 F 2d 304,'306 (C A 10) ; Cudahy Packing Co v. N L R B , 118
F 2d 295 , 299 (C A. 10 ) ; NLRB. v. Henry Levanr, Inc., 115 F 2d 105, 109 (C A 1),
certiorari denied , 312 U S 682 ; Consumers Power Company v. N L R B , 113 F. 2d 38,
40-41 (CA. 6).
3 All events herein occurred in 1962 unless otherwise noted
THE READY-MIX CONCRETE CO. OF LAWRENCE, KANS. 505
the matter among themselves at the plant on their own time and some on company
time. There was no rule against discussing the Union on company time.
1. About March 20, the Union requested recognition, which Respondent did not
grant? When he received the Union's written request, Respondent's vice president
and manager, Stanley Penny, "was curious as to whether this letter that I received
was valid" as he testified. He sought out employee Keith Kriesel at work, told him
he had received a letter, and asked him, according to the credited testimony of
Kriesel, who impressed me as a basically credible witness, if he knew anything
about the Union and what he knew about it. Kriesel told him that the employees
had been to a union meeting and had signed cards. Penny asked if any union repre-
sentative had been down to the plant and had contacted them there about the
Union-to which Kriesel replied in the negative.
Penny did not deny that in this conversation he asked Kriesel if he knew anything
about the Union and what he knew about it. As Penny was admittedly curious
and skeptical concerning the Union's claim of an interest it is probable that he did
ask these questions of Kriesel. Penny, who did not impress me as a credible witness
on controverted matters, admitted that he asked if he knew anything about "this
letter" but added the unlikely testimony that when Kriesel answered that he did
know something about it, Penny dropped the matter there and asked him nothing
further except whether union men had been down to the plant. Upon the above
considerations and the entire record I believe and hold that Penny went beyond
asking Kriesel what he knew about the "letter" and asked if Kriesel knew anything
about the Union in the plant and what he knew about it; and that such interrogation
reasonably tended to interfere with, restrain, and coerce employees in the rights
guaranteed in Section 7 of the Act, Respondent thereby violating Section 8(a)(1).
Kriesel and Penny had two other conversations during the next several weeks, one
in the office at Kriesel's suggestion, the other in the plant at Penny's instigation.
Kriesel credibly testified that all the employees wanted more money and that all
of them wanted him to go to Penny and ask him for more money and vacations.
When Kriesel sought the interview he apparently told Penny he was speaking for
the other employees and that they wanted more money and a vacation. In sub-
stance Penny replied that he could not promise them anything, that he had been
told by his attorneys not to discuss this problem with anybody. In one conversation
Penny told Kriesel that he was opposed to the Teamsters Union.
Kriesel credibly testified that in one of these conversations Penny asked him
"how some of the other fellows felt about it, and ... how I felt," and that in the
other conversation "it was about the same; we just discussed it. He asked me if
I knew any more and how I felt. It was always the same." Upon the entire record
considered as a whole. I hold that these further interrogations reasonably tended
to interfere with, restrain, and coerce employees in the rights guaranteed in Section 7
of the Act, Respondent thereby further violating Section 8(a)(1).
2 In early April, Vice President Penny asked employee William Mayhew to go
to one of the company offices with him and there initiated a conversation with him
about the Union. In substance Penny told Mayhew that in the past when there
had been "union trouble" it had never amounted to anything and that the union
involved had not lived up to its promises to the employees. Penny told him also
that at another company where the employees had joined a union and the union
and the company had signed a contract the employees were making less money than
before the union. In testifying Penny admitted that Mayhew's testimony was true.
Although in this conversation Penny was obviously attempting to persuade Mayhew
against the Union, his statement did not go beyond views, arguments, or opinions
protected by Section 8(c) of the Act.
3. In June, Respondent obtained a temporary court injunction against the Union
for certain picketing activities in which it was engaging. In June also, Penny asked
employee Noah Putman, according to Putman's undenied testimony, what side he
was on, and added that "the guy that was loyal to him, he was going to be loyal
to them." Although on cross-examination Putman made some self-contradictory
statements, and although in an affidavit he gave Respondent's attorney, Putman said
that Penny never mentioned the Union to him, by his demeanor in the witness chair
he impressed me as a credible witness. Upon the entire record I find and hold
that Penny's statement about loyalty related to the Union and Putman's job, and
constituted an implied threat against Putman's job if the latter was "loyal" to the
Union and an implied promise of benefit to Putman if the latter was "loyal" to the
Company. By this threat Penny went beyond the bounds of free speech and inter-
* The facts in this sentence were stipulated in the representation case, Case No. 17-RC-
3794, of which I take official notice
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fered with, restrained, and coerced employees in the rights guaranteed in Section 7,
thereby violating Section 8(a) (1) of the Act.
4. On July 13 during a conversation involving William Mayhew's possible dis-
charge, Mayhew, a credible witness, asked Penny "if it was because he was having
union trouble or if it was because I was for the Union or anything." That Mayhew
entertained such a suspicion and asked such a question shows what was uppermost
in employee minds. Vice President Penny replied that he did not want to know who
was involved in the Union because he might hold it against them.5 This remark
indicated Penny's awareness of his own attitude towards the Union-an attitude
of antipathy that might lead him to reprisals against union members. However, on
this occasion he allowed Mayhew to continue working. On the entire record this
remark by Penny amounted to a threat of reprisal against employees active for the
Union. By this threat Respondent further violated Section 8(a) (1) of the Act.
5. Kriesel and Eades were laid off July 31. That night, after the layoff, employee
John Lawrenz, a credible witness, who had worked for Respondent for 9 years,
approached Vice President Penny in front of the plant and asked him if he, Lawrenz,
was going to be laid off. That Lawrenz, an employee of 9 years standing entertained
the fear of being laid off and considered himself vulnerable enough to approach the
vice president and ask such a question, was evidence that Penny's hostility toward and
campaign of interrogations and threats against the Union were known to and feared
by the employees. Penny replied to Lawrenz that he had no immediate plans to lay
him off and that when and if he planned to lay him off he would give him notice.
(Penny gave Kriesel no notice.) Penny then added that he would probably have to
lay off some more employees, and that "he thought maybe this would scare some of
the other fellows into going out and looking for another job."
Respondent contended in substance that this remark related to Respondent's loss in
business in June, July, and August (considered below) and that therefore it was
not in violation of the Act. Upon the entire record considered as a whole I believe
and find that Penny's remark related to the forthcoming election which the Regional
Director had directed for the second time on July 18, and related to Penny's hope
that this layoff of a union leader, Kriesel, would cause enough employees to quit to
enable the Company to defeat the Union at the polls. In the light of the entire record
Penny's statements that he might have to lay off some more employees and his "scare"
remark amounted to implied threats that other employees' jobs might be in jeopardy
because of the employees' union activities if they did not quit. By making these
threats Respondent further interfered with, restrained, and coerced employees in the
rights guaranteed in Section 7 of the Act, thereby violating Section 8 (a)( I).
6. Immediately after the filing of the original charge herein on August 1 alleging
the unlawful discharge of Kriesel and unlawful interrogations, threats, and coercion,
committed theretofore, the General Counsel wrote Respondent informing Respondent
of the filing of the charge and asking for "a full and complete written account of the
facts and circumstances as you know them, including a written statement of your
position with respect to all the allegations as outlined in the charge." In investigating
the issues raised by the charge, according to undenied and credited testimony, an
attorney representing Respondent asked one employee, John Lawrenz, how he
thought the election would go. When the employee replied "perhaps 50-50," the
attorney replied in substance, "It is going to be that close?" 6 As the issues raised by
the charge in no way related to the forthcoming election and how it would come out,
the attorney's interrogation went clearly beyond the latitude permitted counsel in the
preparation of a defense to a charge or complaint. The attorney asked another
employee, Mayhew, according to undenied and credited testimony, "Who was the
leader of the union trouble?" As the employee did not answer, the attorney asked the
same question several times, and then said that maybe it would be best if he did
not ask that question. This question was asked as the attorney was attempting to
learn whether Kriesel was any more active in the Union than other employees, a
proper subject of inquiry. But the attorney went beyond the issue of Kriesel's rela-
tive union activity when he sought to discover who, if not Kriesel, was the leader in
the union movement.
On the entire record, which included threats uttered to Mayhew and John Lawrenz
by Vice President-Manager Penny ( as seen above), these interrogations of Mayhew
5 As to what Penny said , Mayhew's testimony on cross-examination is credited His
version on direct examination was subject to two interpretations , which he clarified on
cross-examination
See the testimony on cross-examination at p 112 of the transcript of testimony. The
court reporter ' s erroneous statement of this reply on direct examination at p. 102 of the
transcript , is hereby corrected to read as stated above
THE READY-MIX CONCRETE CO. OF LAWRENCE, KANS. 507
and Lawrenz by Respondent's attorney beyond the proper scope of his investigation
of the charge, and shortly before the election, reasonably tended to interfere with,
restrain, and coerce employees in the exercise of rights guaranteed in Section 7 of
the Act, Respondent thereby further violating Section 8(a)( I). Cf. Joy Silk Mills,
Inc., 85 NLRB 1263, 1288-1292, enfd. as modified 185 F. 2d 732, cert. denied 341
U.S. 914. Cf. Atlantic & Pacific Tea Company, 138 NLRB 325.
B. The layoff and discharge of Keith Kriesel
Keith Kriesel worked for Respondent for nearly 8 years 'r prior to his "layoff"
July 31 and his "permanent termination" September 5, 1962. Most of Respondent's
employees, including Kriesel, had no specific duties; upon assignment they drove
ready-mix trucks or helped mix mud for the concrete block machine or helped run
the block machine or did other general plant work. His last couple of years Kriesel
had driven trucks rather less at his own request and had worked in the block plant
helping to mix mud and run the block machine rather more. Most of the time four
men worked in the block plant, although three could run it. It was no secret that
Kriesel did not enjoy working in the block plant; but, according to Kriesel's un-
contradicted testimony, neither did anyone else, largely "on account of the dust."
Kriesel described himself as "more or less the contact man between the Union and
the employees." This was not contradicted. He helped the organizational drive by
talking to the employees in their homes and in the plant. He was one of two employees
who testified for the Union at a hearing in the representation case. Although Vice
President Penny claimed to have been unaware that Kriesel was active for the Union,
Kriesel was the first one he sought out when he wanted information as to the extent
of the Union's success among the employees. He would not have sought out Kriesel
had he not suspected or known Kriesel was active and informed. Kriesel's replies,
as seen above, informed Penny that Kriesel knew all about the union campaign. As
has been seen above they had two further conversations in which Penny unlawfully
interrogated Kriesel. Upon the entire record I find that prior to his layoff July 31,
Vice President Penny knew that Kriesel was an active supporter of the Union.
Respondent's usual layoffs were during the winter when work was slack. It was
unheard of to lay off in the summer, which was the construction season and Respond-
ent's peak season. Never before had Kriesel been laid off by Respondent when there
had been a layoff.
In the representation case involving the Union and the Company, Case No. 17-RC-
3794, at a second hearing, on June 14, Kriesel testified as a witness for the Union.
Vice President Penny was present. In his Supplemental Decision and Second Direc-
tion of Election dated July 18, 1962, the Regional Director for the second time
directed an election,8 which was conducted on August 14. The Union won the
election. It was certified September 6. Bargaining was to begin the week after the
hearing herein.
From June until the August 14 election the Union followed and picketed some or
all of Respondent's ready-mix trucks. In June, Respondent filed a charge against the
Union for this action, which charge was dismissed by the Board upon review in late
August.
Also in about June, Respondent brought an injunction action against the Union,
presumably from the same boycott action, in an Arkansas State court, which resulted
in a temporary 10-day restraining order but not in a permanent injunction.
As a result of the Union's picketing Respondent's sales of ready-mix concrete,
which was the bulk of its business, dropped off considerably in June, July, and
August, although its sales of concrete blocks increased. Ready-mix sales were
$23,653, in June 1962 as compared with $43,450 in June 1961; $29,624, in July
1962 as compared with $39,387 in July 1961; $38,047 in August 1962 as compared
with $51,462 in August 1961. Concrete block sales were $2,214 in June 1962 as
compared with $992 in June 1961; $1,916 in July 1962 as compared with $2,162
in July 1961; $5,163 in August 1962 as compared with $3,153 in August in 1961.
Respondent's overall sales were $18,517 less in June 1962 than in June 1961; $10,008
less in July 1962 than in July 1961; and $11,405 less in August 1962 than in
August 1961.
v Kriesel testified he worked for Respondent from September 1954 to July 1962 A
list of employees submitted by Respondent showed Kriesel's date of hire as March 14, 1958.
This discrepancy was not explained Possibly Kriesel was away and returned On the
whole record I credit Kriesel's date-although resolution of this matter is not vital to
the ultimate findings herein
s The facts stated thus far in this sentence are taken from the Board's records in
Case No 17-RC-3794 (not published in NLRB volumes), of which I take official notice.
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Was there business necessity for the layoff July 317 In substance Respondent
contended there was business necessity for laying off some employees on July 31,
1962, and so Penny selected for layoff Kriesel, a long-time employee, and Theron
Eades, a new employee who had worked for Respondent only about 5 months.
Through Penny 's testimony Respondent contended in substance that when it saw
sales were dropping in June and July, it first tried to economize by cutting repair
costs and watching other expenses more closely ; and finally it decided to make a
layoff.
In the severance interview Penny told Kriesel that "the work had slacked off and
he had lost another job that day and we had blocks pretty well made up." In its
defense Respondent made no mention of having "lost another job" the day of the
layoffs. The record showed that the inventory of concrete blocks was about at
normal level, not higher, on July 31. In the severance interview Penny made no
mention to Kriesel of the alleged reasons asserted in the defense (considered below)
for the selection of Kriesel for layoff. Under these circumstances and on the entire
record I find no close connection between the reasons given Kriesel by Penny in
the severance interview and the real reason for the layoff of Kriesel. The wage rates
of Kriesel and Eades were not shown, but Penny could not possibly have believed,
as in substance he claimed, that reducing the payroll by the amount of their com-
bined wages would have appreciably reduced the $18,000 drop in sales he suffered
in June and July over the previous year. Nor could he possibly have believed, as
in fact he claimed, that putting the remaining employees on part-time work would
have yielded an appreciable offset in August (they were put on a 4-day week from
about August 15 to sometime in September). Respondent must have known that
the solution of its economic trouble lay in reaching a rapprochement with its em-
ployees and the Union-but at this time it was not moving in that direction.
On Friday, August 30, Respondent wrote Kriesel offering him reinstatement
September 5 on a part-time basis. All employees were then on a part-time basis.
The Union had stopped picketing August 14 and presumably Respondent's sales
were beginning to pick up, but as Penny must have known by August 30, sales in
August were still $11,400 under sales in August the previous year. Respondent of-
fered no reason or proof as to why it chose the end of August to offer Kriesel rein-
statement or why it offered him reinstatement at all. If, as Respondent claimed, he
was laid off in the first place to reduce the payroll, then surely keeping him off more
than 4 weeks would have reduced the payroll even more.
A key to Penny's motive in laying off Kriesel on July 31 was his statement to
employee John Lawrenz that evening after the layoff, referring to the layoff, that "he
thought maybe this would scare some of the other fellows into going out and looking
for another job." That Penny thought and expressed any such "scare" thought at
all at just this time 2 weeks prior to the election suggests that in making the layoff
Penny was thinking of its impact upon the election and that he hoped and expected
that enough employees would quit to enable the Company to defeat the Union at
the polls. If Penny had a real business necessity on July 31 to get rid of some
employees, he would have reduced the payroll by the necessary number and not laid
off only two and then talked about laying off others and expressed the implied hope
and threat that others would quit. The way he handled the situation suggests that
the layoff of Union Leader Kriesel was timed, just 2 weeks prior to the election, for
its impact upon the election rather than for the limited effect the layoff of two
employees for a few weeks would have had upon the Company's economic position.
If the layoff was motivated by economic reasons it appears unlikely to me that
Respondent would have delayed the layoff so long in the face of decreased sales. If
there was economic necessity for the layoff at the end of July, there was almost twice
as much economic necessity at the end of June when the decrease in sales was almost
twice as much. The fact that sales were affected by the Union's picketing did not
prove that two employees, a long-time one who was a union leader , and a relatively
new one, had to be laid off July 31, 2 weeks prior to the election.9
Upon the above figures and considerations and the entire record considered as a
whole I conclude that Respondent did not prove a business necessity for laying off
any employees on July 31.
9 The fact that on July 27 Respondent's attorney filed with the Board a petition for
review of the Regional Director's Supplemental Decision and Second Direction of Election,
which was denied by the Board August 3, is not persuasive on the entire record that
Penny was not motivated as found above. (From the Board's records in Case No. 17-RC-
3794, 1 take official notice of the dates in this footnote )
THE READY-MIX CONCRETE CO. OF LAWRENCE, KANS. 509
Why was Kriesel selected for layoff? Respondent had no set standards for the
selection of employees for layoffs . If Respondent had any new employees ( such as
Eades ) they would be apt to be laid off first , but as between old employees seniority
did not govern the order of layoff . Kriesel was an older employee. In substance
Vice President Penny testified that his standard was production , that he sought to
lay off the employee doing the least work per hour. He considered also, he said, the
type of work an employee was performing , whether there was any of that work
to be done.
In substance Penny testified that he selected Kriesel for layoff ( 1) because he was
a dissatisfied employee; (2) because of a growth on his back which limited the
number of jobs he could perform ; and (3 ) because of the number of telephone calls
he received during working hours.
As for (1) the record showed that all of the employees wanted higher wages and
a vacation, that none of the employees liked working in the block plant because of
the "dust," and that Respondent rehired an employee named Logan sometime before
the July 31 layoff, who had previously quit because he was dissatisfied with the
salary he was receiving and the bonus he received. Penny testified that Kriesel had
been a good employee prior to the period of 2 or 3 months before his layoff. Once
during this period Kriesel even threatened to quit. This was, to Penny's knowledge,
the period of the organizational drive. On the whole record I conclude that the
employees generally were discontented with their wages and at least some of their
working conditions , and that Kriesel's attitude was not greatly different in this
regard from the attitude of the employees generally. Therefore I believe and find
that Kriesel 's dissatisfaction with the job was a pretext rather than a reason for
Kriesel 's selection for layoff.
As to (2) Kriesel had had a small "growth" on his back removed about 3 years
ago. Then a new "growth" began to grow but arrested itself. Because of these
difficulties Kriesel had, at his request of Penny, been relieved of so much driving
and therefore worked more in the plant and less in the truck than theretofore. As
Penny had put up with this situation for 2 or more years, I believe and find that this
alleged reason for the selection of Kriesel for layoff on July 31 was more a pretext
than a fact.
As to (3) employees were permitted to receive telephone calls at the office, and
telephone messages were received for them. They were also permitted to use the
office telephone to make outgoing calls. As there were only about 20 employees,
this service was not considered an undue burden by the Company. During his
last few months Kriesel received and returned more calls than usual because of his
own financial troubles. Penny knew this and never complained to Kriesel about it
or asked him to stop it. Kriesel returned most of the calls on his own time. It
was not proved that Kriesel's telephone calls greatly obstructed or reduced the
Company's work or production, although they were a slight inconvenience to the
bookkeeper-secretary. On the entire record considered as a whole I believe and
hold that Kriesel 's telephone calls were more a pretext than a reason for his
selection for layoff on July 31.
Assuming relative production of employees as the standard for layoff I find on the
basis of the above, and the whole record, that Respondent did not prove that Kriesel's
production was lower than that of employees retained. As for type of work per-
formed, the record showed that after Kriesel's layoff the making of concrete blocks,
the work he was principally doing at the end, continued-although in lesser amount.
Conclusions
Keith Kriesel was the first employee to whom Vice President Penny spoke con-
cerning the Union, and it was Kriesel whom Penny sought out for information,
unlawfully interrogating him, when he received the Union's request for recognition in
March. In the next few weeks, in March and April, Kriesel was spokesman for
the employees in two conversations with Penny in an effort to get higher wages and
a vacation for the employees, and Penny further unlawfully interrogated him. On
August 14, Kriesel testified for the Union at the representation case hearing in the pres-
ence of Penny. Penny was admittedly hostile to the Union, and the record showed that
this was a deep hostility. In June he unlawfully threatened an employee and promised
him a benefit in connection with his job. On July 13 he made a threat of reprisal
against employees active for the Union. And on the day of the layoff and shortly
after the event, he threatened other employees' jobs because of their union activities.
Respondent filed a charge and pursued an injunction against the Union. Upon these
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
considerations and the entire record considered as a whole, and as Respondent's
defense consisted of pretexts rather than convincing proof, I believe and hold that
the real reasons for the layoff of Kriesel were because of his union activities, because
he testified for the Union at the August 14 hearing, and in order to frighten em-
ployees as the election approached and to discourage further membership and par-
ticipation in the Union and voting for the Union-Respondent thereby violating
Section 8(a)(3), (4), and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Respondent 's activities , set forth in section III, above , occurring in connection
with Respondent's operations described in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in the unfair labor practices set forth
above, I recommend that it cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the Act.
Respondent having unlawfully laid off Keith Kriesel from his full-time job on
July 31 because of his actual or suspected union activities, and not having offered
him reinstatement to his full-time job,10 I recommend that Respondent offer to
Kriesel immediate and full reinstatement 11 to his former or substantially equivalent
position 12 without prejudice to his seniority and other rights and privileges and
make him whole for any loss of pay he may have suffered by reason of the discrimi-
nation against him by payment to him of a sum of money equal to that which he
normally would have earned as wages from the date of his layoff, July 31, 1962, the
date of the discrimination against him, to the date when, pursuant to the recom-
mendations herein contained , Respondent shall offer him reinstatement , less his net
earnings during said period, Crossett Lumber Company, 8 NLRB 440, 497-498,
said backpay to be computed on a quarterly basis in the manner established by the
Board in F. W. Woolworth Company, 90 NLRB 289. As provided in the Woolworth
case, I recommend further that Respondent make available to the Board, on request,
payroll and other records in order to facilitate the checking of the amount of
backpay due. Kriesel's backpay will be somewhat reduced by the fact that had he
continued working instead of being laid off, he would have worked only part time,
as did the other employees, for several weeks in August and September. The backpay
obligation of the Respondent shall include the payment of interest at the rate of 6
percent to be computed in the manner set forth in Isis Plumbing & Heating Co., Inc.,
138 NLRB 716.
The violations of the Act committed by Respondent are persuasively related to
other unfair labor practices proscribed by the Act, and the danger of their com-
mission in the future is to be anticipated from the Respondent's conduct in the past.
The preventive purposes of the Act will be forfeited unless the Order is coextensive
with the threat. In order therefore, to make more effective the interdependent
guarantees of Section 7, to prevent a recurrence of unfair labor practices, and
thereby minimize industrial strife which burdens and obstructs commerce, and thus
effectuate the policies of the Act, I shall recommend that Respondent be ordered to
cease and desist from infringing in any manner upon the rights guaranteed in Section
7 of the Act
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, I make the following:
10 Respondent hired four new employees for full-time work, between September 28 and
October 10.
11 Kriesel did not waive or lose his right to reinstatement by taking the position with
Penny and Respondent's attorney after his layoff that he did not wish reinstatement on
their terms. He made it clear to them that he would consider returning to work for
Respondent if Respondent was ordered to reinstate him as a result of this proceeding
and in the meantime the Union achieved a collective-bargaining contract with Respondent
which provided for higher wages
12 The Chase National Bank of the City of New York, San Juan, Puerto Rico Branch,
65 NLRB 827.
THE READY-MIX CONCRETE CO. OF LAWRENCE, KANS. 511
CONCLUSIONS OF LAW
1. The Ready-Mix Concrete Company of Lawrence, Kansas, is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. Truck Drivers and Helpers Local Union No. 696 affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is a
labor organization within the meaning of Section 2(5) of the Act.
3. By interrogating and threatening employees and making promises of benefits
to them concerning their union activities and sympathies, and by other acts, Re-
spondent has engaged in and is engaging in unfair labor practices within the meaning
of Section 8(a)(1) of the Act.
4. By discriminating in regard to the hire and tenure of employment of Keith
Kriesel, thereby discouraging membership in the labor organization named in
paragraph 2, above, and because he gave testimony under the Act, Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(3), (4), and (1) of the Act.
5. The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case considered as a whole, I recommend that The Ready-Mix
Concrete Company of Lawrence, Kansas, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from:
(a) Discouraging membership in Truck Drivers and Helpers Local Union No.
696, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America or any other labor organization of its members, by dis-
criminating in regard to the hire and tenure of their employment or any term or
condition of employment.
(b) Discriminating against employees because they have given testimony under
the Act.
(c) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their rights to self-organization, to form labor organizations, to
loin or assist Truck Drivers -and Helpers Local Union No. 696, affiliated with
International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of
America, or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities for the purposes
of collective bargaining or other mutual aid or protection, or to refrain from any
and all such activities.
2 Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Offer reinstatement to Keith Kriesel in accordance with the recommendations
set forth in "The Remedy" herein.
(b) Make whole Keith Kriesel for any loss of pay he may have suffered by reason
of Respondent's discrimination against him in accordance with the recommendations
set forth in "The Remedy" herein.
(c) Preserve and make available to the Board or its agents upon request for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all the records necessary to analyze the
amount of backpay due and the rights of Keith Kriesel under the terms of these
recommendations.
(d) Post at its plant in Lawrence, Kansas, copies of the notice attached hereto
marked Appendix.13 Copies of said notice, to be furnished by the Regional Director
for the Board's Seventeenth Region (Kansas City Missouri) shall, after being signed
by the representative of Respondent, be posted by Respondent and maintained by
it for 60 consecutive days thereafter in conspicuous places, including all places
where notices to employees are customarily posted at the Lawrence plant. Reason-
able steps shall be taken by Respondent to insure that said notices are not altered,
defaced, or covered by any other materials.
"In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner " In the further event that the Board's Order be enforced by a decree
of a United States Court of Appeals, the words "a Decree of the United States Court of
Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order "
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Notify the Regional Director for the Seventeenth Region , in writing , within
20 days from the date of the receipt of this Intermediate Report and Recommended
Order what steps the Respondent has taken to comply herewith.14
14 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read "Notify said Regional Director in wnting within 10 days from
the date of this Order what steps the Respondent h as 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, we hereby notify our employees that:
WE WILL NOT discourage membership in Truck Drivers and Helpers Local
Union No. 696, affiliated with International Brotherhood of Teamsters,
Chauffeurs , Warehousemen & Helpers of America, or any other labor organiza-
tion , by discriminating against our employees in any manner in regard to their
hire or tenure of employment or any term or condition of employment.
WE WILL NOT discriminate against our employees because they have given
testimony under the National Labor Relations Act.
WE WILL NOT expressly or impliedly make threats against employees' jobs
because of their "disloyalty" toward the Company or make promises of benefit to
employees because of their "loyalty" towards the Company.
WE WILL NOT state or imply that we might take economic reprisals against
known union adherents.
WE WILL NOT make implied threats that employees' jobs might be in jeopardy
because of the employees' union activities , if the employees do not quit their
employment.
WE WILL NOT interrogate our employees concerning their union activities or
sympathies , concerning who is the union leader , or how a representation election
among our employees is going to come out.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their rights to self-organization, to form labor
organizations, to join Truck Drivers and Helpers Local Union No. 696, affiliated
with International Brotherhood of Teamsters , Chauffeurs , Warehousemen &
Helpers of America , or any other labor organization , to bargain collectively
through representatives of their own choosing , and to engage in concerted ac-
tivities for the purposes of collective bargaining or other mutual aid or pro-
tection, or to refrain from any and all such activities.
WE WILL offer to Keith Kriesel immediate and full reinstatement to his former
or substantially equivalent position, without prejudice to his seniority and other
rights and privileges previously enjoyed.
WE WILL make whole Keith Kriesel for any loss of pay suffered by him by
reason of the discrimination practiced against him in accordance with the
recommendations of the Intermediate Report.
All our employees are free to become, or refrain from becoming, members of the
above-named or any other labor organization.
THE READY-MIX CONCRETE COMPANY
OF LAWRENCE, KANSAS,
Employer.
Dated---------- --------- By-------------------------------------------
(Representative ) ( Title)
NOTE.-We will notify Keith Kriesel, if he is 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 after his discharge from the United States
Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 1200
Rialto Building, 906 Grand Avenue, Kansas City, Missouri, 64106, Telephone No.
Baltimore 1-7000, Extension 731, if they have any question concerning this notice
or if they have information that its provisions are being violated.