Tullahoma Concrete Pipe Co., Inc.

National Labor Relations Board - Board Decisions

May 26, 1967

164 N.L.R.B. 1084 (N.L.R.B. 1967)

1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tullahoma Concrete Pipe Co., Inc.,
Tennessee Valley Metal Culvert Company,
Inc., Cen -Vi-Ro Pipe, Inc. of Tennessee and
Teamsters , Chauffeurs , Helpers and Taxi
Cab Drivers , Local Union 327, affiliated
with International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and
Helpers of America andlnternational Union
of District 50, United Mine Workers of
America . Cases 26-CA-2435 and 26-CA-2438.
May 26,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On January 26, 1967, Trial Examiner
William J. Brown issued his Decision in the above-
entitled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent and the General
Counsel filed exceptions to the Decision and
supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
Drivers, Local Union 327, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any
other labor organization."
TRIAL EXAMINER'S DECISION
WILLIAM J. BROWN, Trial Examiner: This proceeding
under Section 10(b) of the National Labor Relations Act,
as amended, hereinafter referred to as the Act, was heard
before Trial Examiner William J. Brown at Winchester,
Tennessee, on October 4 and 5, 1966.1 The underlying
charge of unfair labor practices had initially been filed on
May 312 by the above-indicated Charging Party
hereinafter referred to as the Teamsters; the complaint
was issued July 22 by the General Counsel of the National
Labor Relations Board, hereinafter called the General
Counsel and the Board, acting through the Regional
Director for Region 26. It alleged, in addition to
jurisdictional matter, that the above-indicated
Respondent3 engaged in unfair labor practices defined in
Section 8(a)(1), (2), and (3) of the Act. Respondent's duly
filed answer admits the jurisdictional allegations of the
complaint and denies the commission of the alleged unfair
labor practices.
At the hearing the parties appeared and participated as
noted above with full opportunity to present evidence and
argument on the issues.4 Respondent, at the outset of the
hearing, filed a written motion to dismiss several
allegations of the complaint for failure to state causes of
action; after argument this motion was denied by me for
reasons stated on the record of the hearing. Posthearing
briefs were received from the General Counsel and the
Respondent on November 28 and have been fully
considered. On the entire record herein and on the basis of
my observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The pleadings and evidence establish that TCP, TVMC,
and CVR are Tennessee corporations with their principal
office and place of business at Tullahoma, Tennessee,
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified below, and hereby orders that the
Respondent, Tullahoma Concrete Pipe Co.,
Tennessee Valley Metal Culvert Company, Inc.,
Cen-Vi-Ro Pipe, Inc., Winchester, Tennessee, its
officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's
Recommended Order, as herein modified:
In the notice attached to the Trial Examiner's
Decision, substitute the following for the last full
paragraph above the signature line:
"All of our employees are free to become, remain,
or refrain from becoming or remaining , members of
Teamsters, Chauffeurs, Helpers and Taxi Cab
164 NLRB No. 142
' Dates hereinafter relate to the year 1966 unless otherwise
indicated
2 The original charge in Case 26-CA-2435 included
Henry L . Dotson among 25 alleged discnmmatees . An amended
charge filed and served July 12 did not include Dotson nor did the
complaint as issued At the outset of the hearing , pursuant to prior
notice to the other parties, the General Counsel moved to amend
the complaint to include Dotson among those allegedly
discnmmatonly discharged in December 1965. The Respondent
objected to the amendment on the ground that Section 10(b) of the
Act precluded the amendment since the original charge was, in
effect, extinguished . General Counsel represented that Dotson
was absent from the State during the period between the date of
original charge and a time shortly before the hearing The Trial
Examiner allowed the amendment
S Tullahoma Concrete Pipe Co , Inc , hereinafter sometimes
referred to as TCP, Tennessee Valley Metal Culvert Company,
Inc , hereinafter sometimes referred to as TVMC , and Cen-Vi-Ro
Pipe, Inc of Tennessee , hereinafter sometimes referred to as
CVR, constitute a single integrated business enterprise named as
the Respondent herein
4 International Union of District 50 , United Mine Workers of
America, a labor organization and hereinafter sometimes referred
to as District 50 , took no participation in the case
TULLAHOMA CONCRETE PIPE 1085
where they are engaged in the manufacture of pipe and
related items, and whence each annually sells and ships
more than $50,000 worth of products directly to points
outside the State of Tennessee. I find, as Respondent
concedes, that it is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The pleadings and evidence indicate and I find that the
Teamsters and District 50 are labor organizations within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction and Summary of Events
Respondent's production operations appear to be
geared to the construction industry in the area as a
market for its output. The result is some seasonal variation
in the number of employees; thus the evidence established
that in October 1965 there were some 57 or 58 employees
in the concededly appropriate unit of production and
maintenance workers with the usual exclusions;5 about 27
or 28 were laid off due to seasonal decline on
December 17, 1965, and the complement had risen to 41 or
42 by May 1966. Although Mr. U. G. Williams is president
of at least one of the companies, and admittedly an agent
of Respondent, actual direction of the enterprise appears
to be in the hands of his son-in-law Jerry Garner, president
of CVR and general manager of TCP and TVMC. Garner
is assisted in supervision by Donald Burton, plant foreman
for CVR and TVMC and by Harmon Hamby, foreman for
TCP. The Respondent's employees are generally initially
hired as laborers or as truckdrivers, the laborers
sometimes progressing by on-job training to jobs as
operators of various machines and equipment.
In October 1965 the Teamsters and the United
Steelworkers of America, AFL-CIO, made separate
telegraphic demands for recognition as representative of
Respondent's employees; almost simultaneously the
Teamsters filed a representation petition in a proceeding
in which District 50 intervened. Respondent, by its
attorney, James Henry, replied to the Teamsters and
Steelworkers that the issue of representation would have
to be decided by the Board. At or about this time,
Respondent posted on its bulletin board a notice advising
employees that solicitation on behalf of any union during
worktime was forbidden and would result in immediate
dismissal of the offending employee.
On October 25, 1965, the Teamsters called a strike in
support of its demand for recognition and all but 5 or 6 of
the 57 or 58 employees joined in the strike. Some violence
occurred on the part of certain pickets and an injunction
was issued by the State Chancery Court at Manchester,
Tennessee, which, among other things, limited the number
of pickets to two at each of the three plant gates. The
strike continued for a period of 4 weeks and at its
conclusion all strikers who desired to return were
reemployed. On November 27, 1965, the Respondent and
the Teamsters entered into a written settlement
agreement providing for withdrawal of the representation
petition, mutual release of all claims, and that the
Teamsters would discontinue organization and make no
recognition demands for a period of 6 months, while
Respondent for its part would not voluntarily recognize
another union for such 6-month period. On various dates in
December 1965 the Respondent laid off 25 to 28 employees
of whom 15 were allegedly laid off and refused recall in
reprisal for their support of the Teamsters.6
On May 18, District 50 wrote Garner asserting a claim to
represent a majority of Respondent's employees and
requesting a meeting to negotiate a collective-bargaining
agreement; the letter contained an offer to prove its
majority status. It appears from a stipulation of the parties
that at this time the Teamsters had, as a result of the
October 1965 campaign, authorization cards from a
substantial number of Respondent's employees, up to a
possible 30 percent, but that the Company had no
knowledge as to the number of such cards or the identity
of the signers. On receipt of the May 18 letter from
District 50, Respondent's attorney, Henry, telephoned
District 50's representative and they arranged a meeting in
Henry's office on May 21 at which District 50 showed 32
cards out of the 41 or 42 employees then on the payroll;'
the validity of the signatures was confirmed by Garner,
and the parties commenced negotiating an agreement
although Henry advised that no agreement could be signed
until expiration of the November 27, 1965, agreement with
the Teamsters which included the 6-month moratorium on
recognition. The parties had almost concluded the
substantive terms of a contract when, on May 27, the
Teamsters wired a request for recognition. The final
agreement was concluded between Respondent and
District 50 on May 28 and was signed on May 29. A
meeting of employees for ratification of the agreement was
held on Monday, May 30.
The General Counsel alleges and the Respondent
denies that the latter's recognition of District 50 in the
face of the Teamsters request for recognition constituted
an unfair labor practice within the scope of Section 8(a)(2)
of the Act, as also did certain alleged instances in which
Respondent's supervisors ordered employees to support
District 50, threatened them with adverse consequences if
they did not, and sponsored meetings on worktime to
assist District 50. Williams, Garner, and Hamby are also
alleged to have interrogated employees concerning their
union sympathies and desires, thereby engaging in unfair
labor practices defined in Section 8(a)(1) of the Act.
Finally, as noted above, it is charged by the General
Counsel and denied by Respondent that 15 employees laid
off, mostly in December 1965, were discharged and
refused recall in reprisal for their support of the
Teamsters.
B. Interference, Restraint, and Coercion
The complaint alleges independent, i.e., nonderivative,
instances of interference, restraint, and coercion within
the scope of Section 8(a)(1) by acts of Williams, Garner,
and Hamby in interrogating employees in April and May
5 Office clericals, watchmen , guards, and supervisors as
defined in the Act.
6In addition to 13 alleged in the amended complaint and
admitted in the answer to have been laid off in December 1965,
there is an issue as to whether or not employees Charles Yates
and Maurice Stewart were laid off on or about May 1966 and
December 13, 1965, respectively
' The record does not indicate the text of the cards, the identity
of the signers , or the circumstances under which they were
signed.
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concerning their union sympathies, activities, and desires
and by threats on the part of Williams.
1. Interrogation
a. U. G. Williams
Employee Everett Glascoe,8 a supporter of the
Teamsters strike with some 11 years' service with the
Respondent as a pipestripper and block stacker, testified
that in April 1966 while he was engaged on Respondent's
time in putting in fence posts on Williams' farm, Williams
asked him if he had heard anything about the Teamsters.
When Glascoe replied negatively, Williams then,
according to Glascoe's account, said that Craighead, the
Teamsters representative, was not going to run his
business. Williams did not testify, the Respondent
explaining his absence both by testimony of Attorney
Henry and Garner and by a physician's certificate,
Respondent's Exhibit 4, that Williams had been under his
care for some months due to mental and physical strain
and that, in his opinion, testifying could work a serious and
permanent effect on his health.
I found Glascoe a thoroughly credible witness and I
credit his account of the interrogation on the part of
Williams. The question is as to the responsibility of
Respondent for his conduct. The Respondent's answer
admits the allegations of the complaint to the effect that
Williams is president of Respondent, a supervisor within
the meaning of Section 2(11) of the Act and an agent of
Respondent acting on its behalf. The evidence is clear that
he is fairly frequently on the working premises and has
contacts with employees both at the plant and where they
are detailed to work at his farm on Respondent's time.
According to the testimony of Charles Anthony, which I
credit, Williams is generally known among employees as
"the old man" and on one occasion, on May 30, when
Anthony balked at an order from Hamby to attend a
meeting he obeyed it when it was stressed that the "old
man" wanted employees to attend. While Attorney Henry
testified that Williams has not been active in the
Company's management for a period of 3 years and Garner
confirmed this testimony, it does appear from the
pleadings and evidence that he has held a position of
responsibility and has been placed in a position to affect
the day-to-day interests of the rank and file. It also appears
that employee Neel apparently sought out Williams'
advice on the matter of signing union cards.
On all the evidence I find and conclude that although
Williams is shown to be emotionally unstable9 he has at all
material times been placed by Respondent in a position
'where he could, on behalf of Respondent, affect rights of
employees under Section 7 of the Act. I conclude that
Respondent is accountable for his actions and that by his
interrogation of Glascoe, as found above, Respondent
engaged in an unfair labor practice within the scope of
Section 8(a)(1) of the Act as alleged in paragraph 11 of the
complaint.
b. Jerry Garner
With respect to the allegations of paragraph 14 of the
complaint relating to alleged interrogation of employees as
8 Referred to in the transcript, apparently erroneously, as
"Glasgow "
9 In addition to other testimony referred to above on this, it
to their union sympathies on May 27, General Counsel
presented the testimony of employee Charles Anthony, a
lift operator with many years of service with TCP.
Anthony was a supporter of the Teamsters strike and did
picket duty. He was one of the employees not affected by
the December 1965 layoff. His testimony is that on May 27
in the plant yard, Garner asked him if he had signed one of
those cards, a reference to the District 50 cards then
circulating among employees. When Anthony answered
that he had not, Garner told him to sign one. He conceded
that he could not recall all details of this conversation.
Garner testified that some days prior to his talk with
Anthony several employees had asked them if they could
sign District 50 cards without reprisals from Respondent
and he had reassured them in this respect. On the day in
question according to Garner, Anthony approached him in
the yard and Garner said to him that he did not know
whether or not he had signed a card but that it was quite
immaterial to Respondent.
I credit Anthony's account of this episode and find that
on the occasion in question Garner asked him if he had
signed a card for District 50 and told him that he should
proceed to do so. This constituted interference with
employee rights under the Act to self-determination free of
employer interference. I find that the allegations of
paragraph 14 respecting interrogation on the part of
Garner have been sustained by the credited evidence.
c. Harmon Hamby
Bobby Ray Stephens, employed by TCP as a laborer,
was a supporter of the Teamsters strike and did picket
duty; he was apparently not affected by the December
1965 layoffs. He testified that on May 30, Hamby talked to
him near the gravel pile and asked what he thought about
District 50. Stephens replied that he had already signed
for the Teamsters and did not think it right to sign for
another union. Hamby then, according to Stephens, said
he "would hate to lose my job over it." Hamby testified
that he merely advised Stephens of the meeting at
5 o'clock in the parking lot and that he could attend it at
that time . I believe Stephens' account of this conversation
and I find in accordance with it that on the day in question
Hamby interrogated him as to his view concerning
District 50. The interrogation does not appear immunized
by such circumstantial guarantees of innocence of purpose
as in Blue Flash Express, Inc., 109 NLRB 591, and I find
that by it Respondent, as alleged in paragraphs 14 and 19
of the complaint, engaged in unfair labor practices within
the scope of Section 8(a)(1) of the Act.
2. Threats
The complaint alleges and Respondent denies that
Respondent, through Williams, engaged in acts of
threatening employees on or about May 28 with closing of
the plant or other dire consequences if employees did not
support District 50.
Anthony testified that on May 28 he had two
conversations with Williams at the kiln. In the first,
Williams said that he had received a report from employee
Jenkins that Anthony was bucking their union and
appears from testimony of Gifford which is uncontradicted, that
Williams threatened him with a knife on an occasion when Gifford
displayed Teamsters cards in the plant
TULLAHOMA CONCRETE PIPE 1087
Anthony should stop it; about an hour later, according to
Anthony, Williams told him to sign a card and get
District 50 in or else there would he one of the "awfullest
fights" he had ever seen.
Employee Curry Neel testified that Williams spoke to
him in the machine shop and said that he and the others
could either sign District 50 cards or he would close the
plant down.
Charles Stubblefield, a striker and picket, testified that
on May 28 at the plant, Williams solicited him to sign a
District 50 card and added that the Teamsters had called
in and that he would shut down before he would let
Teamsters walk his floors.
As noted above Williams did not testify; for reasons
outlined above I find that Respondent must bear the
responsibility for his conduct. I credit the testimony of
Anthony, Neel, and Stubblefield and find that Williams
threatened employees with closing of the plant and other
dire consequences as alleged in paragraphs 12, 13, and 19
of the complaint and thereby engaged in unfair labor
practices defined in Section 8(a)(1) of the Act.
C. Support of District 50
The complaint alleges and Respondent denies that
Respondent contributed unlawful support to District 50 by
warning and threatening employees of dire consequences
unless District 50 were selected as the representative of
employees, by the conduct of Burton, Garner, and
Williams in instructing employees to sign cards
designating District 50 as the collective-bargaining
representative, by sponsoring a meeting on worktime to
encourage them to select District 50 as their
representative and by recognizing and contracting with
District 50 in the face of the Teamsters claim of majority
status and its request for bargaining.
The evidence indicates that under date of May 18,
District 50's regional director, Karl Mowry, wrote to
Garner asserting that a substantial number of
Respondent's employees had designated District 50 as
their representative, requesting a meeting to negotiate an
agreement , and stating that if Respondent had any doubt
of District 50's majority status it could prove it beyond a
reasonable doubt. Garner consulted Attorney Henry who
telephoned Mowry and arranged a meeting for Saturday,
May 21, as mentioned above. After checking the 31 cards
presented by Mowry, out of the 40 or 41 then on the
payroll, the parties proceeded to discuss the terms of a
collective-bargaining agreement , using as a basis an
agreement covering employees of a concrete pipe firm in
East Tennessee. A few days later, apparently about
May 25, District 50 asked permission to conduct a meeting
on Respondent's property for the purpose of electing its
bargaining committee; the Respondent replied that any
meeting would have to be after normal work hours; i.e.,
after 5 p.m. and could not be held on company property.
On May 27 Respondent received the Teamsters
telegram requesting recognition. At that time agreement
had not been finally reached between Respondent and
District 50, and on the same day the meeting for selection
of a committee was held on the parking lot adjoining the
Respondent' s plant . This parking lot, which has been
paved by Respondent, is on property of the Louisville &
Nashville R.R. and is used by employees and the public for
parking. Although Garner testified that his instructions to
supervisors were to the effect that the May 27 meeting to
select District 50's bargaining committee had to be off
Respondent property and on employees' own time, he
conceded that two employees were paid for their time
spent at the May 27 meeting.
Charles Anthony testified that on May 27, after Garner
had urged him to sign a District 50 card, Hamby told him
to attend the meeting in the parking lot and to stay on the
clock. He attended the meeting which was conducted by
District 50's Representative Staten, and was paid for his
time. It also appears from Anthony's testimony that Staten
used the occasion, not only to afford an opportunity to
select a bargaining committee but also to solicit additional
card signers for District 50.
Employee Thomas Watson testified that on May 27
Hamby sent him to see employee Whitworth who solicited
him to sign a District 50 card and gave him five more such
cards to solicit others. Later that day he attended the
parking lot meeting and was paid for his time.
Although Hamby testified that he did not authorize any
employee to stay on the clock while attending the May 27
meeting, I credit the testimony of Anthony and Watson.
Following the May 27 meeting, which marked the
expiration of the 6-month no-organization-no-recognition
pack between Respondent and the Teamsters,
Respondent and District 50 reached agreement on a
contract on May 28 and signed it the following day,
Sunday, May 29. Respondent desired employees to vote on
ratification of the agreement and on May 30 a meeting of
employees was held on Respondent's property for the
purpose of ascertaining employee opinion on the
agreement.
Employee Anthony testified that on May 30 he was told
by Hamby that Williams wanted all employees to attend a
union meeting at the big building. He attended the meeting
which was conducted by District 50 Representative Staten
who advised the group that if they approved the contract
which had been signed the result would be that District 50
was "in" and the Teamsters were "out." Employee
Curry Neel was called upon to read one-half of the
contract and Staten' s assistant read the other half. Ballots
were distributed and the vote was 22 for and 19 against
acceptance of the contract. There were no supervisors
present at this meeting which was held between 4 and
5 p.m.
Employee Alvie Armstrong, a Teamsters supporter,
testified that on May 30 Garner told him that the office
people had decided that it would be best for the Company
and for the employees to vote District 50 in, and that the
meeting of that date would be to decide between
District 50 and the Teamsters.
Henry and Garner conceded that Respondent urged
employees to attend the May 30 meeting but denied telling
them which way to vote.
Viewing the evidence as a whole it clearly
preponderates in favor of the conclusion that Respondent
furnished assistance and support to District 50, thereby
engaging in unfair labor practices defined in Section 8(a)(2)
of the Act. The evidence outlined above reveals that on
receipt of the District 50 claim, shortly before expiration of
the armistice period with the Teamsters, Respondent
proceeded to an acquiescence in District 50's claim which
was both hurried and unaccompanied by prudence in
inquiring into the circumstances surrounding execution of
District 50's card; the parties then sped to conclusion of an
agreement immediately after receipt of the Teamsters
demand of May 27. Furthermore, the Respondent through
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pressure of its supervisors and through the furnishing of
company facilities for a District 50 meeting, and for the
ratification of the contract, virtually swept District 50 into
office as the bargaining representative.
In addition to the several instances of positive
campaigning on behalf of District 50, I agree with the
General Counsel that the case falls within the rule
established in Midwest Piping and Supply Co., 63 NLRB
1060, to the effect that an employer renders unlawful
assistance by recognizing and contracting with a favored
union while the majority claim of another union raises a
real question of representation. In the case here the
Teamsters had almost solid support of its recognition
strike in the fall of 196510 and had a substantial number
of adherents in the spring of 1966.
Under all the circumstances of the case, I find and
conclude that by the conduct of supervisors in urging
employees to support District 50, by the furnishing of
facilities and paid time to aid District 50's organizing
efforts, and by the recognition of District 50 after receipt of
the Teamsters demand, Respondent engaged in unfair
labor practices defined in Section 8(a)(2) and (1) of the Act.
D. Discrimination
We approach consideration of the issue relating to
alleged discriminatory layoff and refusal to recall the 15
employees named in the complaint, as amended, with
certain material elements clearly established. Thus there
is no doubt on all the evidence in this case that
Respondent was definitely hostile to the Teamsters;
neither is there any genuine doubt as to Respondent's
knowledge of the pro-Teamsters sympathy of the alleged
discriminatees, 14 of whom struck and picketed in support
of the Teamsters strike while one, Gifford, who was in
layoff status at the time of the strike, had shortly prior
thereto openly worn a Teamsters button and distributed
Teamsters cards in the plant. It must also be remembered,
however, that there is no contention that the October 1965
strike was an unfair labor practice strike; it appears to be
economic in nature with the result that strike
replacements could be retained in employment. In this
connection General Counsel's brief in Appendix B lists 14
employees hired during the strike, 9 of whom were still
employed as of the date of the hearing, 5 having been laid
off or terminated between January and March 1966. It is
also clear that all strikers were, under the terms of the
strike settlement agreement of November 17, 1965,
recalled to work at that time. Finally, the record
establishes, of the 15 alleged discriminatees all save 3,
Shelton, Dotson, and Gifford, have been offered recall to
the Respondent's employment.' 1
Respondent's business is, in the nature of things,
dependent on the construction industry and experiences a
seasonal downturn in the winter months. In addition, I
credit the testimony of Garner that the 1965 strike caused
an additional damage to the volume of Respondent's
orders.
General Counsel' s position appears essentially to be
that the 15 alleged discriminatees were in most cases
persons of long service who were laid off although persons
employed during the strike and only 2 or 3 months before
the layoff were retained; further, it is asserted, the alleged
discriminatees were told at the time of their layoff that
they would be recalled shortly which also indicates that
Respondent's hiring of new employees during the layoff
was discriminatory against the 15 alleged discriminatees
laid off in December 1965.12
Garner testified, and I credit his testimony, that
Respondent's practice is that laid-off employees are
rehired only if they apply at a time when Respondent has
an opening and at a time when no better applicant is
available. It also appears that the great bulk of jobs are
semiskilled at best and there can be no generalized
contention that discrimination is shown by retention of
new hires in favor of experienced operators.
Berlin Ferrell had 2 years' service with TCP prior to the
strike. He was laid off December 24, 1965, by Burton who
told him merely that the layoff would be for a few days and
was due to work being slack. He never applied for return
and when he received a July letter concerning
reemployment he did not reply.
Cecil Wilson, a TCP laborer with 4 years' service, had
been laid off twice before in the winter months of 1962-63;
on each occasion he was notified through the State
employment service to return. He was recalled by letter of
September 27.
Harvey Cook, a TCP employee with 3 years' service,
was laid off by Burton on December 24, 1965.13 He never
reapplied to Respondent for work.
Cecil Moore, a night cleanup man for TCP and CVR
since 1962, was laid off for lack of work on December 24,
1965. He had experienced winter layoffs in 1962-63. He
was offered reemployment in July but did not accept it.
Charles E. Yates, a riveter with about 8 years' service,
was laid off February 15, 1966, by Hamby who explained
that they were out of steel and that he would be recalled.
He had previously experienced a winter-long layoff. He
was recalled August 11 and again terminated on
August 23.
Mike Choate had 8 to 10 years' service with TCP as a
chainman; he was laid off December 17, 1965. He never
reapplied but was recalled by the Company about 2 weeks
before the hearing.
Wayne Gifford was hired in 1963 and laid off
September 9, 1965. He was recalled September 14, 1965.
Sometime about October 10, 1965, after he had displayed
a Teamsters button and Teamsters cards in the plant he
was told by Garner that he was discharged, Garner's
testimony indicating that the discharge was for abusive
10 Garner at one point testified that only 5 or 6 employees failed
to support the October 1965 strike; at another point he put the
number at 10 to 15
11 In this regard the testimony of Garner is that he offered to
take back all the strikers except two (apparently Shelton and
Gifford). It appears from the testimony of Dotson and Smith that
they were not reachable by mail It is also noted that 12 employees
listed on G C. Exh 8 as hired during the strike are still employed
as of the date of the hearing, as against this, however, it appears
that the December 1965 layoff affected more nonstrikers than
strikers
12 With respect to the question of whether or not employees
laid off on December 17, 1965, were informed that the layoff
would be of short duration, I credit Garner's testimony that he did
not himself know its probable duration and instructed the
foremen to answer any employee questions by telling them that
the layoff would be indefinite. Burton and Hamby denied telling
employees the layoff would be short Six employees (Ferrell,
Grant, S Smith, Gifford, Dotson, and Partin) testified they were
told it would be short Nine did not so testify
13 This is the date established by the pleadings, although
Cook's testimony is that he was laid off a week before Christmas
TULLAHOMA CONCRETE PIPE 1089
language and insubordination. This was the occasion when
Williams threatened him with a knife. Rehired
December 7, 1965, he was laid off by Hamby on
December 17, 1965; at that time Hamby told him,
according to Gifford, that the layoff would not be
permanent. He has not been recalled and has never been
back to apply as, according to his account, he is afraid of
Williams' knife. Gifford served a term in fail as a
consequence of his activities on the picket line.
Robert Grant, a laborer first hired June 28, 1965, was
laid off by Hamby December 17, 1965, with the
information, according to Grant, that it would be
temporary. He went back and applied for work three
times, the first coming about 3 weeks after the layoff, at
which time he called for his check and was told by Hamby
that he would be recalled before long. The second and
third times he received the same advice. He was recalled
by letter of July 30 but did not accept the offer.
Charles Shelton, a truckdriver hired in May 1965 after
some prior service in 1957-59 was laid off December 20,
1965, by Hamby who told him that the layoff would be
indefinite. His testimony indicates that he had
experienced winter layoffs in his prior term of service. He
applied for reemployment in May and according to his
account, Garner literally ran him off the premises. He has
not received an offer of recall.
Murray Stewart was hired as a truckdriver in 1957, laid
off in the winter of 1962, and recalled in spring of that year.
He was recalled by letter in September and offered work
of a laboring nature similar to that he had earlier
performed when there was no driving available but turned
it down.
John Elliott had 2 years' service with Respondent at the
time of the strike. He had been laid off in July 1964 for 8
months and went back and applied without benefit of a
recall by the Respondent. At the time of the December
1965 layoff Hamby told him it would be indefinite and
Respondent would call him when he was needed. He
received a recall letter in July but did not return for work.
Marlin Partin had about 7-1/2 years' service mostly with
TVMC at the time of the strike. Laid off in December
1965, he was offered recall in August but did not accept it.
He did not return prior to August to apply but explained
that by the statement of Burton that Respondent would
call him when needed.
Samuel Smith, apparently the most persistent of the
pickets in the October 1965 strike, was laid off by Hamby
on December 17, 1965. At that time Hamby told him that
work was slow and the Company was laying off the new
hands. He has not applied for recall and a July 25 letter
offering him work was undeliverable due to his moving
without a forwarding address.
Marlin Rollins apparently had only a few months'
service with Respondent before the strike in which he was
an active and violent picket though not convicted of any
offense. After _ his December 8, 1965, layoff he was
unemployed for some 22 to 23 months and then applied to
Williams and Garner for rehire. They promised to see what
could be done and in about 6 weeks thereafter he was
recalled.
Henry Dotson was laid off December 17 by Hamby who
told him, according to his account, that the layoff would be
temporary, probably only until the first of the year. He has
not been recalled, the testimony of Garner being that the
crane operated by Dotson has been discontinued.
It can be seen from the foregoing that three employees,
Gifford, Shelton, and Dotson have not been offered
reinstatement. Gifford's employment history indicates that
he has been somewhat rebellious. Thus, the record
indicates, he had some difficulties with Hamby, Williams,
and Garner during the October 1965 campaign when he
openly displayed Teamsters cards in the plant,'' he had at
least once been insubordinate and had served a sentence
as a consequence of picket line irregularities. He testified
that he did not reapply for work due to fear of violence
from Williams. Shelton had worked for Respondent as a
truckdriver in 1957-59 and returned in May 1965; recalled
after the strike he was laid off December 20, 1965, by
Hamby who told him he would be called if needed. He
returned to the plant in May to get his clothes out of the
truck and was told that he should stay away.15 Dotson, a
crane operator initially hired in May 1963 was suspended a
week before the strike when Williams accused him of
organizing for the Teamsters; Dotson apparently did not
protest the suspension and joined the picket line when it
was established. He reapplied for work in March and
asked Hamby when big pipe would be available for him to
work on. Hamby said that he would know soon. Garner's
testimony, which I believe, is that the crane operated by
Dotson has been discontinued.
On all the evidence relating to the alleged
discrimination against the 15 employees named in the
complaint as amended , I can see no rational basis for
concluding that it preponderates in favor of the conclusion
that they were refused reinstatement because of their
activities in support of the Teamsters. As noted above, 12
were offered reinstatement apparently in a departure from
policy and the 3 who were not so offered it appear on the
record of the case to have been passed over for
nondiscriminatory reasons. Furthermore several
employees active as pickets in the Teamsters strike were
not affected at all by the layoff in December 1965. I
conclude that the allegations respecting discrimination
have not been sustained by a fair preponderance of the
testimony on the record considered as a whole, and shall
recommend dismissal of these allegations.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, and there found to constitute unfair labor practices,
occurring in connection with the operations of Respondent
as set forth 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 such commerce and the free
flow thereof.
V. THE REMEDY
In view of the findings set forth above to the effect that
Respondent has engaged in unfair labor practices defined
in Section 8(a)(1) of the Act by interrogating employees
concerning their union activities and threatening them in
connection therewith, and unfair labor practices defined in
Section 8(a)(2) of the Act by urging employees to support
"This apparently either was in violation of or led to institution
of the no-solicitation rule.
11 Shelton 's testimony indicates that on this occasion Gamer
was considerably hostile toward him
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
District 50 and by recognizing and contracting with
District 50 at a time when the Teamsters claim to majority
status presented a question concerning representation, I
shall recommend that Respondent be required to cease
and desist from such unfair labor practices and take such
affirmative action as appears necessary and appropriate to
effectuate the policies of the Act. In view of my findings
that the evidence does not preponderate in favor of the
conclusion that the 15 employees allegedly refused
reinstatement were so refused in reprisal for their
activities on behalf of the Teamsters , I shall recommend
dismissal of the allegations relating to Section 8(a)(3) of the
Act.
Upon the basis of the foregoing findings of fact and upon
the entire record in this case , I make the following:
CONCLUSIONS OF LAW
1. By interrogating employees concerning their
sympathies and activities with respect to labor
organizations and by threatening them with adverse
consequences in the event the Teamsters received their
support, Respondent has engaged in unfair labor practices
defined in Section 8(a)(1) of the Act.
2. By urging and encouraging employees to support
District 50, by encouraging employees to attend District 50
meetings on company property, by paying employees for
time spent in attending District 50 meetings and by
recognizing and contracting with District 50 as exclusive
representative of employees at a time when the Teamsters
demand for recognition presented a real question
concerning representation, Respondent has engaged in
unfair labor practices defined in Section 8(a)(2) and (1) of
the Act.
3. Except as specified above Respondent has not
engaged in unfair labor practices alleged in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case,
it is recommended that Respondent, Tullahoma Concrete
Pipe Co., Inc., Tennessee Valley Metal Culvert Company,
Inc., Cen-Vi-Ro Pipe, Inc. of Tennessee, Tullahoma,
Tennessee, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Interrogating employees concerning their activities
and sympathies with respect to the Teamsters, District 50,
or any other labor organization.
(b) Threatening employees with closing of the plant or
other adverse consequences if the Teamsters succeed in
securing representation or if District 50 fails to secure
representation.
(c) Encouraging employees to support District 50.
(d) Giving any force or effect to the collective-
bargaining agreement entered into with District 50 on
May 29, 1966, or any modification or extension thereof.
(e) In any like or related manner interfering with,
restraining , or coercing employees in the exercise of their
right to self-organization , to form, join, or assist labor
organizations, to bargain collectively through
representatives of their own choosing, to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection or to refrain
from any or all such activities.
2. Take the following affirmative action which is
necessary and appropriate to effectuate the policies of the
Act:
(a) Withdraw and withhold all recognition from
District 50 as the collective-bargaining representative of
any of its employees unless and until the Board shall
certify District 50 as such representative.
(b) Rescind the collective-bargaining agreement
entered into in May 1966 with District 50 or any
replacement thereof.
(c) Post at its plants copies of the attached notice
marked "Appendix "is Copies of said notice, to be
furnished by the Regional Director for Region 26, after
being duly signed by Respondent's authorized
representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 26, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.17
IT IS FURTHER RECOMMENDED that unless on or before
20 days from the date of receipt of this Decision,
Respondent notify the Regional Director that it will
comply with the foregoing recommendations, the Board
issue an order requiring it to take the action aforesaid.
16 In the event that this Recommended Order is adopted by the
Board , the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order."
i7 In the event that this Recommended Order is adopted by the
Board , this provision shall be modified to read: "Notify the
Regional Director for Region 26, in writing , within 10 days from
the date of this Order , what steps Respondent has taken to
comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL withdraw and withhold all recognition
from International Union of District 50, United Mine
Workers of America as the collective-bargaining
representative of any of our employees unless and
until such organization is certified as such
representative by the National Labor Relations
Board.
WE WILL rescind and give no force or effect to the
agreement of May 29, 1966, with said District 50 or
any extension or modification thereof.
WE WILL NOT question employees concerning their
sympathies respecting District 50 or Teamsters,
Chauffeurs, Helpers and Taxicab Drivers, Local
Union 327, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America.
TULLAHOMA CONCRETE PIPE
WE WILL NOT threaten employees with closing of
the plant or other dire consequences if the Teamsters
becomes their representative or if District 50 fails to
become such representative.
All our employees are free to join or assist the
Teamsters and to engage in concerted activities for the
purpose of collective -bargaining or other mutual aid or
protection.
TULLAHOMA CONCRETE
PIPE CO., INC., TENNESSEE
VALLEY METAL CULVERT
COMPANY, INC., CEN-VI-RO
PIPE, INC. OF TENNESSEE
(Employer)
Dated By
1091
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board ' s Regional Office, 746 Federal
Office Building, 167 North Main Street, Memphis,
Tennessee 38103, Telephone 534-3161.
298-668 0-69-70