Wilson Concrete Co.

National Labor Relations Board - Board Decisions

Oct 12, 1961

133 N.L.R.B. 951 (N.L.R.B. 1961)

WILSON CONCRETE COMPANY 951
Wilson Concrete Company and International Brotherhood of
Teamsters, Chauffeurs , Warehousemen and Helpers of Amer-
ica, Truck Drivers and Helpers Union , Local No. 784. Case
No. 17-CA-1703. October 12, 1961
DECISION AND ORDER
On May 19, 1961, Trial Examiner Phil Saunders issued his Inter-
mediate 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 Intermediate Report
attached hereto. The Trial Examiner also found that the Respondent
had not engaged in certain other unfair labor practices and recom-
mended dismissal of the complaint as to them. Thereafter, the Charg-
ing Party and the Respondent filed exceptions to the Intermediate
Report and supporting briefs.
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 made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Wilson Concrete
Company, Grand Island, Nebraska, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America,
Truck Drivers and Helpers Union, Local No. 784, or in any other
labor organization of its employees, by discharging, refusing to
reinstate, or otherwise discriminating against any of its employees
because of their concerted or union activities.
i While we concur in the Trial Examiner 's findings that the Respondent did not violate
Section 8 (a) (1) of the Act by the alleged withdrawal of employee privileges , we find it
unnecessary to, and do not, rely on the Trial Examiner 's reference to Fibreboard Paper
Products Corporation, 130 NLRB 1558, in this connection.
133 NLRB No. 97.
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Interrogating employees as to union plans and meetings.
(c) Interrogating employees as to their loyalties between the
Company and the Union.
(d) Interrogating employees as to their activities and their reasons
for wanting the union.
(e) Conducting surveillances of union meetings and the union
activities of employees..
(f) In any other manner interfering with, restraining, or coercing
employees in the exercise of their right to self-organization, to form,
join, or assist the aforesaid Union, or any other labor organization, to
bargain collectively through representatives 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 the Board finds will
effectuate the policies of the Act :
(a) Offer Melvin Shultz, Raymond Thomas, and George Ewoldt
immediate and full reinstatement to their former or substantially
equivalent positions, and make each of them whole in accordance with,
and in the manner set forth in, the section of the Intermediate Report
entitled "The Remedy"; make whole Milford Killham, Bernard
Morrow, and Larry Mason in the manner set forth in said section.
(b) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount of backpay due
and the benefits entitled under the terms of this Order.
(c) Post at its plant at Grand Island, Nebraska, copies of the notice
attached hereto marked "Appendix." 2 Copies of said notice, to be
furnished by the Regional Director for the Seventeenth Region, shall,
after being duly signed by an authorized representative of the Re-
spondent, be posted immediately upon receipt thereof, and be main-
tained by it for a period of 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that such notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director for the Seventeenth Region, in
writing, within 10 days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the Respondent violated Section 8(a) (1) by the withdrawal of em-
2 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
WILSON CONCRETE COMPANY 953
ployee privileges, and violated Section 8(a) (5) by refusing to bargain
with the Union, be, and it hereby is, dismissed.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the Labor Manage-
ment Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Truck Drivers and Helpers Union, Local No. 784, or any
other labor organization , by discriminating in regard to the hire or
tenure of employment or any term or condition of employment of
our employees.
WE WILL NOT interrogate, request information, or solicit our em-
ployees about their or other employees' union meetings and.
activities.
WE WILL NOT engage in any unlawful surveillance of our em-
ployees as to their union activities.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization, to form organizations, to join or assist any labor or-
ganizations, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the
purposes of collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all of such activities.
WE WILL offer Melvin Shultz, Raymond Thomas, and George
Ewoldt immediate and full reinstatement to their former or sub-
stantially equivalent positions, without prejudice to their seniority
and other rights and privileges, and make them whole for any
loss of pay suffered as a result of the discrimination against them.
WE WILL make whole Bernard Morrow, Milford Killham, and
Larry Mason, for any loss of pay suffered as a result of discrimi-
nation against them.
WILSON CONCRETE COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges filed by International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America , Truck Drivers and Helpers Union , Local No. 784,
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
herein called the Union, against Wilson Concrete Company, herein called the Re-
spondent or the Company, the General Counsel issued a complaint alleging that the
Respondent had engaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1), (3), and (5) and Section 2(6) and (7) of the National
Labor Relations Act, 61 Stat. 136, herein called the Act. The Respondent filed an
answer denying the commission of any unfair labor practices. A hearing was held
on January 25 through 27, 1961, at Grand Island, Nebraska, before the duly desig-
nated Trial Examiner. All parties were represented at the hearing and were afforded
full opportunity to examine and cross-examine witnesses, to introduce evidence, to
present oral argument, and thereafter to file briefs. Briefs were received from all
the parties concerned and have been duly considered. The parties also filed joint
motions correcting the transcript and record in specific and certain aspects.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a corporation engaged in the manufacture, sale, and distribution
of concrete products. Of its several places of business, its plant at Grand Island,
Nebraska, is the only part of its operation involved herein. In the course and conduct
of its business, the Respondent purchases, from sources outside of Nebraska, mate-
rials and products valued at in excess of $50,000 annually. It is conceded, and I
find, that the Respondent is engaged in commerce within the meaning of Section
2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Truck Drivers and Helpers Union, Local No. 784, is a labor organization
within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The complaint, as amended, alleges, and the answer denies, that the Respondent
through its officers and agents unlawfully interrogated employees, engaged in surveil-
lance of its employees' union activities and created the impression of such surveil-
lance, and that the Respondent withdrew from its employees certain privileges and
benefits. It is also alleged that the Respondent discriminatorily terminated the em-
ployment of six employees, and has failed and refused to reinstate such employees,
and that all such acts and conduct are in violation of Section 8(a)(1) and (3) of
the Act.
The complaint further alleges, the answer admits, and I find that all truckdrivers,
warehousemen and helpers, and production employees at the Respondent's Grand
Island, Nebraska, plant, including the timekeepers, but excluding all office clerical
employees, night watchmen, guards, and supervisors as defined in the Act, con-
stitute a unit appropriate for the purposes of collective bargaining within the meaning
of Section 9(b) of the Act. Also, that on May 13, 1960,1 a majority of the em-
ployees in the above-described unit, in a secret ballot election under supervision of
a Regional Director of the Board, designated and selected the Union as their repre-
sentative for the purposes of collective bargaining with the Respondent. On May 23,
the Regional Director certified the Union as the collective-bargaining representative
of the employees in the unit; and that since May 13 the Union has been the exclusive
representative of all employees in the unit for collective bargaining.
On the basis of the above, it is further alleged by the complaint that the Re-
spondent has refused to bargain with the Union, in that the Company has unilaterally
changed terms and conditions of employment, has attempted to bargain directly and
individually with employees in the unit, that the Respondent has negotiated with the
Union in bad faith with no intention of entering into any final or binding collective-
bargaining agreement, that the Company has attempted to undermine the Union and
destroy its majority, and that by all such acts and conduct the Respondent has
violated Section 8(a) (5) of the Act 2
All dates are 1960 unless specified otherwise.
Parties stipulated that the election on May 13 and the subsequent certification was
based on a petition filed by the Union on April 18, 1960, and based on Case No. 17-RC-3225
( not published in NLRB volumes).
WILSON CONCRETE COMPANY 955
A. The alleged interrogations and surveillance; findings and
conclusions with respect thereto
The record discloses that Martin Wilcox is the Respondent's plant superintendent
and that Harold Myers, Morris Workman, and Don McKinn are foremen in the
company plant, and it was stipulated between the parties that all were acting within
the scope of supervisors as defined by the Act.3
The General Counsel contends that the Respondent's personnel clerk, Randy
Boesen, is a managerial representative and that the Company must answer for his
actions. Randy Boesen testified that he keeps the personnel records of the Respond-
ent's employees, that he takes care of safety equipment and posts safety records, does
some accounting and other clerical work, that he is paid hourly, that he voted in the
representation election on May 13, and that he is responsible to Plant Superintendent
Wilcox and Office Manager Mabmound Amoura. However, numerous witnesses
credibly testified and it was established that Boesen screens applicants for employ-
ment, and only if he finds them generally qualified are they passed on to the plant
superintendent; that Boesen sat in on the negotiation meetings between the Company
and the Union at Grand Island; that like Plant Superintendent Wilcox and Foremen
Myers, Workman, and McKinn, the Respondent also supplied Boesen with a copy
of the Company's proposed contract to the Union; that Boesen was kept continually
informed of the progress between the Company and the Union, and was gen-
erally accorded treatment in this respect like the admitted supervisors; and that
Boesen sits in on some management meetings pertaining to layoff and recall of
employees.
It appears to me from the credited testimony, that Boesen's functions and duties
at the plant were considerably more than routine, and that he was vested with
discretion which on frequent occasions required the use of his independent judgment.
This is especially so in the realm of assistance from Boesen in passing on em-
ployees' qualifications in regard to layoffs, hiring, and recalls. Boesen was initially
hired by the Company as a general office clerk in 1958, and was promoted to per-
sonnel clerk in June 1960. There is no argument in the Respondent's brief con-
tending that Boesen's duties are not supervisory in nature. In accordance with the
above and in consideration of Boesen's activities hereinafter set forth, I am of the
opinion, and find, that the evidence warrants the conclusion that Boesen was acting
for management as the Company's agent during the relevant period material hereto,
and that the Respondent, therefore, is responsible for such acts and conduct.
Dean Hodgson credibly testified that in late October or early November, Foreman
Morris Workman had inquired of Hodgson if there was going to be a strike, and had
also asked him if he would cross the picket line, and that Workman then told
Hodgson that there would be work for those that did .4 There is further credited
testimony of Hodgson to the effect that in November, Plant Superintendent Wilcox
had asked Hodgson if he was going to attend any union meetings, and that Wilcox
also told him in November that the Union was offering 60 hours without any over-
time and which testimony attributed to Wilcox is undenied. Hodgson also credibly
testified that during the middle of November he was in the plant office, and on this
occasion had noticed Wilcox talking with employees Wiley and McComb, and that
Superintendent Wilcox then told Hodgson about Wiley and McComb attending union
meetings. In addition to the above, there is also credited testimony by Hodgson that
Superintendent Wilcox and Personnel Clerk Boesen asked Hodgson to attend union
meetings and to see what was going on. Hodgson stated that he was not asked to
report back by management, but that "some did and some didn't."
Otis Davis and Larry Keeler credibly testified that at the time the Union had
taken a strike vote,5 Foreman Morris Workman had inquired of them if they would
cross the picket line. Marion Guerrero also testified that Foreman Workman had
asked him if he would cross the picket line in event of a strike and had further in-
quired of Guerrero as to where his loyalty would be.
There is credited testimony by Bernard Morrow to the effect that before the
employees voted on acceptance of the proposed contract, during the latter part of
October, Personnel Clerk Boesen had inquired of Morrow if he thought the
' Several of the alleged discriminatees were working in the "quinn room" of the plant
when their employment was terminated ; and the record established that the Company and
the Union, between June 28 and November 3, held nine bargaining sessions.
4 Testimony attributed to Foreman Morris Workman stands undenied as Workman did
not testify at the hearing.
s The record established that while the Union did not strike, a vote was taken on or
about October 15.
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees would accept the contract , and had then also stated to Morrow that the
Company thought "they got rid of the cause of the Union going in when they got
rid of Whity." ("Whity" is Harold Workman.)
George Ewoldt credibly testified to the effect that in the latter part of October,
Personnel Clerk Boesen had inquired of him if the Union was going to have a
strike, and that Boesen had also asked Ewoldt what he thought the employees would
gain by it. Ewoldt further testified that within 3 weeks before the May 13 repre-
sentation election , as aforestated , Foreman Morris Workman had told him that he
could not understand why the employees would want the Union in as they already
had paid vacations and holiday pay, and that Workman could not see where em-
ployees could gain anything.
Personnel Clerk Boesen admits in his testimony that he had numerous conversa-
tions with employees about the Union , and also stated that he encouraged employees
to attend meetings . Boesen also testified that employees Schultz, Ewoldt, Snyder,
Davis, and Metz may have told him that they attended union meetings , and that
Boesen knew that some of the meetings were taking place.
Plant Superintendent Wilcox stated that he encouraged employees to attend union
meetings , and that employees Gronstorn , Kosinski , Wiley, McComb, Metz, and
Snyder talked to him about the meetings and beer parties, and that these employees
"told me roughly what was said ." Wilcox admitted that he also received telephone
calls from Wiley and McComb about union meetings , that he had calls on the night
of the union meetings after they had taken place, and that he was then told what
transpired at the meeting. Wilcox further admitted that he was informed by tele-
phone calls , on the same evening that the Union voted on the Company 's contract
proposal , and that he was also informed on the same evening relative to the strike
vote of the Union.
The foregoing instances of interrogation that have been credited and attributed
to company supervisors and agents , are not instances of objective inquiry as to the
propriety of recognizing a labor organization ; they are not "casual , friendly, isolated
instance[s ] of interrogation by a minor supervisor." See Blue Flash Express, Inc.,
109 NLRB 591. Neither do they amount to the mere exercise of free speech under
the first amendment to the Constitution nor to protected expressions of views under
Section 8 (c). N.L.R.B. V. Minnesota Mining & Manufacturing Company, 179 F. 2d
323 (C.A. 8); National Shirt Shops of Delaware, Inc., et at., 123 NLRB 1213.
Rather they include an attempt to inquire into attitudes , loyalty, and the reasons for
wanting the Union, whether employees would cross a picket line in event of a strike,
that those employees who did not fully participate in union activities could be
assured of work, and the definite implication that employees would be better off
without the Union; they therefore constitute violations of Section 8(a) (1). Hudson
Pulp & Paper Corporation , 121 NLRB 1446; Talladega Foundry & Machine Com-
pany, 122 NLRB 125.
As to the aforestated instances of surveillance , there is obvious and ample ad-
mitted testimony of such activity on the part of Respondent 's Plant Superintendent
Wilcox. Both Wilcox and Personnel Clerk Boesen freely admitted that they en-
couraged employees to attend union meetings , and from the credited testimony in
this respect, as aforestated , it is clear to me that such encouragement resulted in
using several employees as informers , and that this highly organized infiltration was
so effective that within a very short time after union business was conducted at the
meetings , Wilcox received immediate telephone calls at his home and all was
disclosed to him. It is well established that maintaining an informer system and
spy network of this type is violative of Section 8 (a) (1) of the Act ,6 and in accordance
with the above I so find.
B. Alleged withdrawals of employee privileges; findings and conclusions with
respect thereto
1. Coffee breaks
The record established that on November 12, 1960 , the Respondent posted a
notice to all employees , which , in effect , stated that there would be two 10-minute
coffee breaks , one in the morning and one in the afternoon , that the time for the
same would be at the discretion of the respective foremen , and that with the ex-
ceptions of coffee breaks, noon lunch, before and after work, no unauthorized per-
sonnel would be allowed in the boilerroom at the plant.
Dean Hodgson testified that prior to this notice employees could drink coffee
whenever they had a chance , and that there were no restrictions on going into the
e Jackson Tile Manufacturing Company. 122 NLRB 764
WILSON CONCRETE COMPANY 957
boilerroom. Leslie Martin testified that prior to the notice employees could get
coffee anytime they wanted it and no certain time was specified, and that employees
could also use the boilerroom. There is testimony by Larry Keeler to the effect
that before the notice in question was posted, employees who were through with their
work could have coffee and that supervisors permitted the same. Raymond Thomas
testified that about 3 weeks before the notice was posted, Foreman Myers stated that
there would be no more coffee breaks, and for employees not to go over to the
boilerroom.
The Respondent argues that the notice in question was not a new rule regarding
the number of coffee breaks allowed, but rather to insure uniformity caused by some
employees who were abusing the privilege. Personnel Clerk Boesen testified that
the prior policy of the Company had been that if an employee had caught up on his
work, he could then take two coffee breaks a day, but if unfinished work remained,
employees were not to take any breaks. Superintendent Wilcox credibly stated
that before the notice employees could get coffee twice a day when their work was
completed, and that he had posted the November 12 notice because too many
employees were -abusing the privilege, and that some were taking three while others
had none.
2. Using company equipment, tools, and scrap wire
On May 14, Superintendent Wilcox posted a notice which stated that no employee
would be allowed to take company equipment, tools, scrap wire, steel, or any other
company property off the plant premises without his permission. The Respondent
contends that this notice merely reaffirmed an old rule, and was changed only to
the extent of which supervisor granted the authority. Superintendent Wilcox stated
in his testimony that the notice on May 14 was a "small revision," but stated that
it was not necessarily a new rule. Wilcox further stated that prior to this notice
employees would ask the foremen for such permission and would also ask him, and
the reason for the rule was that the plant was missing two motors , fabrics, and other
items.
The General Counsel produced testimony through Hodgson, Martin, and Keeler
to the effect that prior to the notice employees would get permission from foremen
to borrow tools overnight, and that employees working at certain jobs had also been
permitted for some time to cut up scrap wire and steel and then sell the same.
3. As to unauthorized personnel on company property
The record established that Superintendent Wilcox signed a notice dated No-
vember 12 , 1960, and which stated that no unauthorized personnel would be allowed
on the company property before 7 a.m. and after 5 p.m. The Respondent main-
tains that this notice was no departure from the company policy already announced
by a large sign at the entrance to the plant . Superintendent Wilcox credibly testified
that this was not a new policy, and that it was merely a reminder of an already
existing sign that the Company had at the gate entrance. Wilcox further stated
that people were coming into the plant at night, that there was gasoline taken, a pump
was broken into , that there was pilferage of small tools , and that employees still had
freedom to come and go with no restrictions.
Dean Hodgson testified that before this notice on unauthorized personnel, em-
ployees could come and go as they pleased, that employees used the plant premises to
work on their cars during Sundays, and that after the notice it was no longer possible
to do so. Leslie Martin testified that before this notice there were no restrictions,
and that employees could work on and wash cars and use the plant hose , tools, and
lift. Larry Keeler testified that prior to this notice, employees would do odd jobs
before or after work, that there was a sign on the company property relative to un-
authorized personnel, that he did not believe the sign was applicable to employees
prior to the posting of the notice, and that since the notice Keeler had never attempted
to work on the plant premises except during his regular hours.
In respect to the above, the General Counsel argues that the withdrawal of privi-
leges is not only an 8(a ) ( 1) and (3) violation , but is also evidence of a violation of
8(a)(5), and that new rules were imposed unilaterally after the certification of a
bargaining agent. The Respondent, on the other hand, contends that the alleged
unilateral actions in the above incidents were not even mentioned by the Union
during the negotiations, and further that the actions by the Company were allowed
under article II of the proposed company contract entitled , "Management 's Prerog-
ative," and agreed to in this extent by the Union.7
4 Article II of the Respondent 's proposed contract states that the management of the
plant and the direction of the working force, including the right to plan, direct, and
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In attempting to resolve this phase of the proceeding , I am well aware of several
Board decisions which hold that unilateral changes in plant rules after union certi-
fication, and which constitute substantial curtailment of previous employee privi-
leges, is conduct violative of the Act . However , it appears to me that while the
three incidents in question here were never specifically negotiated in the various
bargaining meetings between the parties , as later detailed herein , nevertheless, in
tentative acknowledgement on certain phases of a proposed contract the parties
hereto at least discussed and duly recognized certain legitimate managerial preroga-
tives. Moreover , even assuming and granting the contention that the alleged changes
were implemented without consultation, there appears to be additional factors neces-
sary to find a violation . In the first instance there is no credible evidence that any
former privileges of the employees were substantially curtailed , or, as a matter of
fact, that there were any curtailments at all. Before the one notice on November 12,
employees were permitted to have coffee breaks when their work was completed.
After the notice , as aforestated , the employees had two coffee breaks each day, but
the respective foremen in the deparments were to designate the specific times. The
employees could drink coffee before the notice was posted , and they could drink
coffee after the notice was posted; the employees during coffee breaks were on pay
time before the notice , and they remained on pay time after the notice . Under these
circumstances it is extremely difficult for me to see how this arrangement was any
substantial impairment of a former privilege , and I find none.
Insofar as using company equipment , tools , and scrap iron for personal reasons
and benefits are concerned , I am not aware of any specific decisions holding that such
matters encompass bargaining negotiations . However , the testimony in this respect
shows that the Company permitted their employees to use plant equipment in the
evenings with the permission from the foremen , and to sell scrap iron and wire.
Certainly this is not an ordinary working privilege , but goes well beyond the usual
conditions and general employment practices . Under these circumstances , it appears
to me that a change in policy which merely required permission from the plant
superintendent instead of the foremen was not in substantial curtailment of a privilege,
and especially so when the privilege in question does not fall within the usual category
of employment nor within the normal working hours. The General Counsel argues
that the important factor is the timing of the incidents and notice , but in the final
analysis here the former privilege to the employees still remained , and the most that
can be said for the change from any former policy , was possibly some minor incon-
venience to employees on a matter strictly within the realm and grace of management.
In respect to unauthorized personnel on company property , it appears to me that
the Respondent's former policy in this respect remained the same as it was even
after the November 12 notice . Admittedly , the Company had erected a sign at the
plant entrance some time ago prohibiting this sort of unlawful trespassing from out-
siders , and the notice in question was merely reiterative of its prior pronouncement
None of the present employee witnesses testified , since the posting of this notice,
that they have been actually restricted from using the premises . There appears to
be an assumption, on the part of at least one or two witnesses , that the former
privilege , in doing work for their own purposes on the plant premises during non-
working time , was withdrawn , but there is no testimony that an employee was ever
actually denied any such privileges before or after November 12. Again, even
assuming here , that this is a matter which is in the scope of bargaining , there appears
to be no change whatsoever in this policy of the Company.
In addition to the above, the Board has also recently held that the establishment
of an appropriate bargaining unit does not preclude an employer acting in good
faith from making changes in his business structure without first consulting the repre-
sentative of the affected employees . Fibreboard Paper Products Corporation, 130
NLRB 1558.
From my observations and the demeanor of the witnesses, and for the reasons
given herein , I shall recommend that the allegations with respect to unilateral changes
be dismissed.
C. The alleged discriminatory termination of six employees ; findings and conclusions
with respect thereto
There was considerable testimony in the record bearing on whether the Company
had knowledge of the six alleged discriminatees ' union activities . The record estab-
control plant operations, to hire, suspend , discharge , transfer , or to relieve employees from
duty because of lack of work or for other legitimate reasons, and to make shop rules for
the government of the plant and the right to introduce new production methods or facilities
is vested exclusively in the Company
WILSON CONCRETE COMPANY 959
lished that prior to .their layoffs, Killham, Mason, and Morrow attended and par-
ticipated in at least one meeting between the Company and the Union in which the
Respondent's contract proposals were discussed, and Morrow was also on the bar-
gaining committee. All of the alleged discriminatees including the remaining three,
Schultz, Thomas, and Ewoldt, attended most, if not all , of the union meetings, and
several testified that they had signed union authorization cards. Since Killham,
Mason, and Morrow participated and openly attended a union negotiating meeting
with company representatives present before the layoffs, there is no question but
that the Company had specific knowledge as to their union activities, and this is so
regardless of whether or not the direct foremen over each were aware of ,their full
activities.8 Superintendent Wilcox admitted, as previously set forth in an earlier
section of this report, that on two occasions he even received telephone calls after
the union meetings and was then informed as to what transpired. Wilcox also ad-
mitted that he discussed union meetings with several other employees, as afore-
stated, and that they told him "roughly what was said." In view of the numerous
admissions by Wilcox of repeated contacts with employee informers and the ultimate
dexterity of communications, it would appear highly unlikely to me that the names
of those in attendance would not be disclosed, and under these particular circum-
stances it would be an outright absurdity to say that management did not have
such information. In accordance with the above, I conclude and find that the Re-
spondent had prior knowledge in the union activities of the alleged discriminatees.9
The General Counsel argues that the six individuals involved here,1e with two ex-
ceptions, were among the oldest employees, that the question of seniority and
seniority ratings had been discussed in various meetings between the parties, that
for all practical purposes there was an agreement on :the seniority principle, but that,
notwithstanding the Respondent's prior practice, some of the Company's oldest em-
ployees were terminated.il The brief for the General Counsel states that for all
practical purposes, the Company admitted that it considers length of service a most
important factor in considering the retention of employees in the event of layoff, that
the Respondent deliberately disregarded seniority, that employees with less seniority
than the six in question here were retained by the Company, and that the Re-
spondent's ire was concentrated upon the outspoken union adherents and particu-
larly those who participated in negotiations on behalf of the Union. The General
Counsel also argues that on prior occasions the older employees were transferred
out of operations that were about to be shut down and placed into other positions
within the plant. The Company stated in its answer that the layoffs, during the
period in question, were due to a normally expected seasonal drop in the need for
production. The Respondent further contends that, while seniority is a factor in
determining layoffs and rehiring , the main consideration is the capability of the
employees to do their work. Apparently it is also the Respondent's contention that
it laid off the alleged discrirninatees because they were not qualified for the work
that remained.
In support of the position by the company, Superintendent Wilcox testified that
plant employment has fluctuated from 25 men to 70 employees, that spring and
summer are the rush seasons, and that winter is the slack period at the plant.
Preference on employees is based, Wilcox stated, "On the man's job, ability and
willingness to work," and -further testified that, in determinations for layoffs and
rehiring, the Company keeps the men with the best ability, but that other factors
are also considered such as willingness to work, seniority, and that the employees'
$ Mason testified that he attended a meeting between the Company and the Union on
October 17, and Morrow testified that he participated in a meeting ;between the parties
on November S.
9 There is well-established Board and court precedent that knowledge may be inferred
as a whole . Wiese Plow Welding Co., Inc., 123 NLRB 616 ; The Radio Officers' Union of
the Commercial Telegraphers Union , AFL (A. H. Bull Steamship Company ) v. N.L.R.B.,
347 U.S. 17; and Pyne Moulding Corporation, 110 NLRB 1700.
I$ The alleged discriminatees set forth in the complaint are Melvin Shultz, Raymond
Thomas, Bernard Morrow, Milford Killham, George Ewoldt, and Larry Mason.
n During the period of negotiations between the parties , the Company submitted a
contract proposal ( General Counsel's Exhibit No. 32 ) and, in substance , providing in
article IX that the Company will apply the principle of seniority in promotions , layoffs,
reemployment, and in filling vacancies , to the extent that where , in the judgment of
management the qualifications of employees to perform the work are substantially the
same, employees having the longer term of continuous service will be given preference.
Section 2 , in part, provided that a list of employees arranged in order of their seniority
shall be posted . Section 3 , in part, stated that seniority shall be broken only by discharge
or voluntary quit or more than a 1-year layoff.
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attitude also has a considerable bearing in such situations. Superintendent Wilcox
stated that along with the 6 alleged discriminatees another 10 or 12 employees were
also laid off.
The Respondent's office manager, Amoura, testified that generally in the fall sea-
son some employees quit and go back to school, and that this situation saved the
Company from a major layoff in 1959, but that in 1960 there were not enough
"quits," and that the plant had less work than during ordinary periods. Amoura
further stated that in September there was no work in the quinn room, and that the
plant was showing a high cost of operations so that layoffs were then made. Amoura
testified that in November there was again lack of work, that Superintendent Wilcox
was forced into another layoff, that on layoffs during the fall of 1960, Wilcox
was "trying to keep some keymen in certain positions," and that in this respect
Wilcox had told Amoura in October that he wanted "Laborers and leaders with
them, I don't want all chiefs but no indians." There is further testimony by Office
Manager Amoura that the main factor considered by the Company in a layoff is
that of "capability," and the ability of the employee to do the work. Amoura
stated that other factors considered are behavior, attendance, safety record, that
the Company does consider length of service but that it is not the main factor, how-
ever, that if two employees had identical and equal work records in all respects,
then the employee with a longer service would be retained. As to the company
policy on the rehiring of employees Amoura testified that the Company prefers to
rehire former workers if they are qualified and have good records, and that the
Company places "certain weight on his previous experience."
To show that seniority and length of service was of prime concern and a definite
policy of the Company, the General Counsel introduced into the record, among
other factors, the May 10 issue of the Respondent's newssheet. This particular issue
carried a writeup on employee Larry Keeler and labels him a "5-year man at the
plant." In the same newssheet attention is called to the fact that two employees
have been with the Respondent for 12 and 10 years, respectively. Milford Killham,
one of the alleged discriminatees herein, is accorded a feature article in which his
6 years of service are mentioned. In this issue there is also an item which deals
with a merit rating program which Respondent had instituted at its Omaha plant.
It states that the.plan, if successful, would be extended to Grand Island and other
plants. The third paragraph of this article reads as follows:
Basically, it is a method of determining who is the best man for a particular
job. It considers seniority, quality of work, attitude, ability to get along with
others and other points that lead to promotions and raises.
Employee Leslie Martin was asked by the General Counsel if the Company had
any practice with regard to retention of employees if a layoff was necessary, and
Martin replied, "Well, it was usually the older men and, I mean the older in seniority,
and their best men was their policy." Martin also testified that Superintendent
Wilcox had told the employees, in a May speech, that the company policy was to
keep the oldest and best men.
Otis Davis credibly testified that in November he was working in the quinn room
at the plant, that he was not laid off when the quinn room was shut down, and that
he was transferred into another part of the plant. It was established that Davis has
worked for the Company for 9 years and did not sign a union card.
Marion Guerrero testified that he has worked for the Company for 5 years and
has never been laid off. Guerrero also testified that when layoffs became necessary
at the plant the company practice was to keep the oldest employees and those who
were doing the better job.
Office Manager Amoura, called initially as a witness for the General Counsel,
testified that the plant maintains several crews or sections for its operations, and
that mainly the departments are the quinn room, rocla room, bridge crane, and
the prestress bed circle. Amoura further testified that it was difficult to keep the
various divisions of the plant separate due to rush orders from contractors, and
as a result management has to keep shifting employees from one section to another.
In this respect Amoura also stated that some employees cannot do certain jobs, or,
if they can, it is done inefficiently, so that under these circumstances it is left to
the foremen and superintendent in deciding the "switching" of an employee from
one job to another.
The Company admitted that seniority carries over for a period of 3 months after
a normal layoff.
From the above it appears to me that, while the Company does consider ability
on the job and other work habits and performances of their employees, nevertheless,
the General Counsel has sustained his position that employees' length of service and
seniority under normal circumstances and company policy outranked other factors
WILSON CONCRETE COMPANY 961
in management's decisions involving layoffs and terminations. Even considering the
testimony by the company witnesses, this contention in various instances was sub-
stantiated. Office Manager Amours admitted that if two employees had identical
work records the employee with longer service would be retained; that on rehiring
the Company would prefer a former worker; and that length of service was recog-
nized in ordinary layoffs by a seniority carryover for a period of 3 months.12 In the
Respondent's newssheet to its employees dated May 10, as aforestated, constant refer-
ence is made in several specific instances to length of service, and it is significant also,
that in the discussion of a merit rating program in this issue, and which if success-
ful would be extended to the Grand Island plant, the Respondent lists seniority first,
and various other factors in later places. The record and testimony further shows
that in a prior layoff by the Company, attempts were made to follow seniority pro-
cedures. Respondent's Office Manager Amoura testified that in September 1960,
Foreman Workman called him about a layoff of nine men, that six of them were
hired in 1960, and the testimony of Amoura reflects that at this time the office
manager asked that the layoffs be made on seniority. It appears clear to me that on
the basis of this testimony, and for the other reasons stated herein, that seniority
was the prime consideration by the Company under ordinary circumstances of this
nature. There is also credible testimony by several witnesses for the General Counsel
that seniority governed prior practices of the Company, and in accordance with the
above, I so find.
The record clearly establishes that on prior occasions older employees have
generally been transferred out of plant division shutdowns and placed into other
departments, and among others the credited testimony of Otis Davis duly reflects the
practice of the Company in this respect.
In attempting to resolve this phase of the case I will consider the above findings
and contentions in respect to each of the alleged discriminatees. In doing so I am
not unmindful of the prerogatives of employers to demote or promote employees,
and they may do so with immunity before, after, or in the midst of union or concerted
activity among its employees. The only deterrent to their exercise of this right is
that the discharge, demotion, layoff, terminations, or other changes in working con-
ditions must not be motivated by reason of an employee's union or concerted
activities.
1. Milford Killham
Killham went to work for the Company in March 1955, and except for extremely
cold weather days had continuous employment until his layoff on November 18, 1960.
Killham had worked in the quinn room at the plant for about 2 months before his
termination, and had previously worked in the roller room, in the circle, at the bridge
crane, at the prestress, and had also worked at "tying steel." His classification was
that of a leadman. Killham credibly testified that on November 18, employees Gay-
lord Madison and Herman Luhn were also working with him in the quinn room, that
Madison was laid off at the same time he was, but that Luhn was transferred over
to the gunite machine, that throughout the plant the Company also retained Delmar
Hostetler, and Killham stated that both had less seniority than he. Killham further
testified that his starting pay at the Company was $1, and that he had received pro-
gressing hourly wage increases when laid off to the amount of $1.72 and had been
paid at this rate for about 2 years. Killham stated that on November 18, Foreman
Workman told him that there was no more work and that he had to let him go.
The record also discloses that Killham was recalled by the Company on January 18,
1961, that he is receiving the same rate of pay as before the layoff, and that Killham
is now employed on construction work. Killham attended a meeting between the
parties prior to his discharge in which the Respondent's proposed contract with the
Union was discussed. On one occasion Killham was given an opportunity by the
Company in "trying out" for a job as foreman.
1 The record contained testimony on the status of alleged discriminatees Morrow,
Mason , and Killham at the time they were subsequently recalled by the Company. There
was testimony that Killham and Mason, on their recall, were then asked to sign personnel
forms which had been previously filed by them when they were initially employed by the
Company. There was also testimony on the amounts of insurance the recalled employees
received as compared to former coverage. While there may be some discrepancy in the
overall testimony here, the record does disclose that these three employees received the
same rate of pay upon their recall, and in the final analysis Office Manager Amoura
admitted that they were not considered new employees, being rehired within the 3-month
period, and that their seniority was "bridged" over.
624007-62-vol. 133-02
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusion
The record and pertinent exhibits introduced by the General Counsel disclose and
establish that in November 1960, Killham had a longer length of service with the
Company than any employee with the exception of Otis Davis. Killham credibly
testified that employee Luhn was also working in the quinn room as of November 18,
and that Luhn was then transferred to another job. There is no indication that Luhn
had anywhere near the seniority that Killham had.13
The record and credible testimony not only show that Killham had years of
seniority over most other employees , but also show that he had considerable ex-
perience in all departments and operations of the plant. Superintendent Wilcox
admits that Killham was even tried out for a job as foreman , and although this was
a temporary arrangement and Killham did not secure the assignment , it, neverthe-
less, shows that the Company thought well of his potential capabilities and prior
work performance . Even assuming here , arguendo , that the ability to do the job
was a main consideration by management in retention of employees in layoff situ-
ations, it appears clear to me, from these circumstances , that Killham had demon-
strated ample justifications even on this basis.
It is accordingly found that Milford Killham was laid off by the Respondent on
November 18 in violation of Section 8(a) (3) and (1) of the Act.
2. Larry Mason
Mason was initially employed by the Respondent on September 3, 1957, and was
laid off on November 18, 1960 . Mason credibly testified that at the time of the lay-
off he was working in the quinn room , that he had been working at this operation for
about a month and a half , that he had never before been laid off, and that on prior
occasions he had been shifted from one job to another . Mason further testified that
on the day of his layoff Foreman Workman told him that there was no more work,
that he was classified at the time as a machine operator , that his rate of pay was
$1.10 when first employed and received several increases to $1.60 , and that he was
recalled by the Company on January 17, 1961 . Mason also testified that he signed a
union card , attended union meetings , and that on October 17 attended a meeting be-
tween the Company and the Union in discussion over the proposed bargaining agree-
ment , as aforestated.
Conclusion
Of the approximate number of 25 production employees working at the plant on
November 18, 4 were laid off on this date , and Mason had a seniority status over
approximately 11 employees that were retained . There is no evidence in the record
that the work performance by Mason was unsatisfactory . Since I have found that
seniority was the prime consideration in decisions by the Company for layoffs, and
in consideration of the events , timing, the open union activities of the discriminatee,
and on the basis of the many other factors and circumstances previously set forth
herein , it is accordingly found that Larry Mason was laid off by the Respondent on
November 18 in violation of Section 8 ( a)(3) and (1) of the Act.14
3. Bernard Morrow
The record in regards to Morrow established that he was initially employed by
the Company in May 1957, that he was laid off on November 15, 1960, and was
rehired by the Company on January 12, 1961. Morrow credibly testified that he
had worked at the plant for about 31/2 years without any layoffs, that he had been
transferred around the plant doing different jobs, that he was classified as a mixer
operator , and that he was working on the bridge crane when Foreman Myers told
18 Insofar as the quinn room is concerned , the record further shows that this particular
operation at the plant had been shut down for economic reasons at various intervals on
several different occasions , and that older employees working there would then be trans-
ferred into other departments , as aforestated . There is no contention by the General
Counsel, as I understand it, that the actual shutdown of the quinn room itself was moti-
vated by any unlawful considerations.
14 Exhibits in the record show that in earlier months in 1960 , the Company had various
layoffs for lack of work reasons. In this respect it is noted that those employees laid off,
in these prior periods of 1960 on an economic basis , had worked at the plant for only a
very few months , and it appears to me these circumstances lend further substantial
weight to the seniority policy which the Company ordinarily followed. The same policy
is again reflected in exhibits showing economic layoffs in years prior to 1960.
WILSON CONCRETE COMPANY 963
him that the Company would have to let him go. Morrow further testified that the
plant has functions that do not require the operation of machinery, and that ap-
proximately 80 percent of the men are so employed. Morrow attended all of the
union meetings, and , as aforestated , openly participated in a bargaining meeting
between the parties prior to his layoff.
Conclusion
On November 15, as I view the record, there were some 27 production employees
at the plant, 2 men were discharged on this date, and Morrow had a plantwide
seniority status over about 18 employees retained.15 There is no testimony in the
record whatsoever that the prior work performance of Morrow was not satisfactory.
It is noted also from the testimony of Morrow, and as reflected by the record and
exhibits, that a good many of the plant manpower are not highly skilled workers
and that the Company even hired many young men on more or less of a temporary
basis at various intervals. Accepting again, arguenda, that in decisions for layoffs
a man's ability to do the job was of prime consideration, then it is difficult for me
to ascertain how an older employee could be laid off on this basis, when, like
discriminatee Morrow, an employee had worked in most all of the departments at
the plant for several years, and yet at the same time there is also lacking even any
contention or argument by the Company that his work was not satisfactory. For
the reasons stated here, and on the basis of the record as a whole, it is accordingly
found that Bernard Morrow was laid off by the Respondent on November 15 in
violation of Section 8 (a) (3) and (1) of the Act.
4. Melvin Schultz
Schultz was initially employed by the Company in May 1956. By his testimony
he appeared to be reemployed in February 1957, but the employment period in ques-
tion here was established from April 27, 1959, until his termination on September 29,
1960.16 Schultz testified that he had worked in various jobs at the plant, and on
September 29 he was employed as a leadman in the quinn room. Schultz testified
that during the last 3 months of his employment, Foreman Workman had asked him
on one occasion "what is the matter with you and the pipe," and that Workman
then informed Schultz that Superintendent Wilcox had called him to the effect that
the pipes were not fitting together properly. Schultz stated that nothing more was
said to him about the incident . Schultz signed a union card and attended all the
union meetings. Superintendent Wilcox testified that Schultz had fair ability, that
there was one instance where the pipe was "out of round " and this was the basis
for a complaint from a customer , and that he had received complaints as to the
quality of his work from supervisors. Schultz has never been rehired since his
termination on September 29.
Conclusion
The record established that on or about September 29, 1960, the Company
terminated approximately 12 or 13 employees for lack of work, all of the employees
so terminated, with two exceptions , were initially hired in 1960 and in most cases
had worked only a few months. This factor again demonstrates that older em-
ployees were generally retained by the Company, and that seniority was recognized
under ordinary circumstances. Of the employees working at the plant after Septem-
ber 29, at least four employees had less seniority than Schultz.17 It is also noted
that Schultz was a leadman in the quinn room on September 29, and was receiving
$1.70 as his hourly wage scale , and which also reflected several increases from his
initial employment. There appears to be only one incident which in any way
reflects on the work performance of Schultz, and from the overall testimony in
respect thereto it was not considered as any serious jeopardy to his job. It is
further noted that several of the employees terminated on September 29 were sub-
sequently rehired by the Company in January 1961, and in the case of Harold
16 There is no contention by either party that there was departmental seniority, and
there is no mention in the record of the same.
16 Since there obviously was a break of over 3 months in the prior employment of
Schultz-his seniority status dates from April 27, 1959.
17 The record shows in this respect that Teddy Reimers was hired by the Company on
November 16, 1959, and worked until November 1960, and had approximately 6 months
less time of service than Schultz. Gary Hardy was hired on June 7, 1960, Hostetler was
hired on July 19 , 1960, and Tellez was hired on July 25 , 1960, and all were working
after Schultz was terminated.
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Swanson , Stanley Badura , and Donald Smith , these employees had less seniority
than Schultz . For the reasons herein given , and from the record as a whole, it is
accordingly found that Melvin Schultz was discharged on September 29 in violatiop
of Section 8(a)(3) and (1) of the Act.
5. Raymond Thomas
Thomas had initial employment with the Company in 1958 but in this proceeding
we are concerned with an employment period which runs from March 31, 1959, to
his termination on November 15, 1960. After this termination Thomas was never
rehired by the Company . Thomas was employed at the time of his termination as
a general plant helper on the bridge crane , and had worked in repairing pipes and
in tieing wire and steel . Thomas signed a union card and attended all of the union
meetings . Superintendent Wilcox testified that the job ability of Thomas was average,
and that some employees were better and some were not as good.
Conclusion
The record established that two employees , Morrow and Thomas , were terminated
on November 15 and both were employed on the bridge crane. The record further
shows that on November 15 several employees with less seniority were retained by
the Company . 18 The record contains no reflections on the work ability of Thomas,
and it is admitted by Wilcox that he had average ability. It is also noted that several
former employees with less seniority than Thomas were subsequently rehired by
the Company . On the basis of the reasons given herein , and under these circum-
stances, it is accordingly found that Raymond Thomas was discharged on November
15 in violation of Section 8(a)(3) and ( 1) of the Act.
6. George Ewoldt
Ewoldt has several periods of employment with the Company and worked summer
months in 1957 and 1958 and also worked from September to December in 1959.
The period of employment in question here runs from February 1960 until his
termination on November 15, 1960 . 19 Ewoldt credibly testified that on his recalls
in 1958 and 1959 he received a higher rate of pay than during his respective prior
periods of employment , that he has worked in the plant as a pipe finisher, steel tier,
as a general plant helper, worked in the roller room, and that during the last few
days before his termination he was asked by Foreman Workman to go into the quinn
room. Ewoldt further testified that he attended all of the union meetings . Super-
intendent Wilcox testified that Ewoldt had fair job ability , but that he was under the
impression that Ewoldt was on a temporary basis as he was attending college and
going to school.
Conclusion
When Ewoldt was terminated by the Company on November 18, he had more
seniority than at least three or four employees retained by the Company. The
credited evidence and record shows that the Company was continually rehiring
Ewoldt, and there is admitted testimony by Wilcox that he had fair job ability which
is also reflected in the steady increases of his pay. On this basis and for the other
reasons as stated herein , it is accordingly found that Ewoldt was terminated on
November 18 in violation of Section 8(a)(3) and (1) of the Act 20
In the final analysis of this section of the report , the record is almost completely
devoid of any substantial proof whatever that the discriminatees were not qualified
to perform the jobs involved . On the contrary, the record reveals that each of the
six men involved was well qualified to perform virtually every operation in the plant,
and with few exceptions actually did perform a great number of the plant functions,
and all of the discriminatees received several pay raises as their usefulness to the
Company increased with their respective experience . In again assuming , arguendo,
that job ability was of prime consideration as maintained by the Company, then,
even on this basis the Respondent 's contentions must fail . It is further noted, in
summary here , that the quinn room has a rather constant history of shutdowns
1s Metz, Hardy , Hostetler , Tellez, Madison, and Reimers.
19 Ewoldt apparently was laid off for a short time in February 1960 , but was recalled
by the Company in April 1960 and then worked continuously until November 18.
20 It is also noted that the termination of Ewoldt occurred after personnel clerk Boesen
had inquired of Ewoldt if the plant was going to have a strike, and what the employees
expected to gain by it, as aforestated.
WILSON CONCRETE COMPANY 965
during the course of its yearly operation and in its relations to the remainder of the
more consistent work in other departments of the plant . The quinn room was out
of work in the early fall of 1960, and yet, as aforestated, several of the discriminatees
were transferred to this operation only a short time prior to their terminations.
Under these circumstances, it appears very likely to me that the Company was
well aware of an imminent shutdown in the quinn room operations when the transfers
were made.
D. The alleged refusal to bargain; findings and conclusions
The record established pertinent communications and exchanges between the
Company and the Union as follows:
Under the date of June 13, a proposed bargaining contract submitted by the
Union to the Company.
On July 18 contract proposals made by the Company to the Union.
On July 27 additional contract proposals made by the Union to the Com-
pany and on July 27 a contract proposal made by the Company to the Union.
On August 22 contract proposals made by the Company to the Union.
On August 29 a contract proposal made by the Company to the Union.
On September 19 a contract proposal made by the Union to the Company,
and a contract proposal submitted by the Company to the Union.
On October 3 contract proposals by the Company to the Union.
On November 3 a proposal made by the Union to the Company.
It was stipulated that the Company and the Union met for bargaining conferences
on nine different occasions starting on June 28 and intermediate meetings thereafter
until November 3. The Respondent argues and contends that an impasse was reached
at the October 3 bargaining meeting, and that if the impasse between the parties was
ever removed, it was reinstituted on November 3 when the United States Mediation
and Conciliation Service met with the Union and the Company, and when this con-
ference terminated without an agreement.
E. F. Noble, secretary-treasurer for the local Union, testified that he participated
in all of the meetings between the parties, and that by the time of the conference
in June the Union had submitted a proposed contract, and that it was read completely
through at this time. Noble testified that at the second meeting the Company made
several counterproposals, and that the parties had a discussion on the same, and that
at the third conference the Company again submitted proposed items resulting from
discussions at the prior meeting, and that the Union at this time also offered some
counterproposals . Noble further testified that in the negotiating meetings the parties
reached an -agreement on some items , that the Union's second proposal on seniority
was "pretty generally accepted by both parties," that there was an agreement on the
banding clause, and that there was "some other agreement on some of the other pro-
visions." Noble also testified, "The last meeting was the time they made what I
considered was their final offer on wages and which they [the Company] made us a
proposal of ten cents an hour, and which I agreed to take back to the employees for
ratification." Noble stated that the parties had a discussion on merit increases and
progression rates and that the Union wanted these provisions spelled out in the con-
tract, and in the respect Noble testified, "The first time I saw a proposal on that is
when it appeared in their [the Company] contract."
Office Manager Amoura credibly testified that in attending the meetings for the
Company, he had and still retains the authority to negotiate and to sign a contract
with the Union. Amoura stated that the Respondent disagreed with many of the
initial proposals by the Union, but further testified, "There was a lot of changes, and
after a few meetings, we included some and they [the Union] included some of our
proposals, but we were willing to give in more, I believe. This was my feeling that
we were willing or we were trying or we did give more than what they did."
In making my conclusions in this phase of the case, I am well aware of the Board's
decision that the commission of unfair labor practices simultaneously with the con-
duct of bargaining negotiations, raises a question as to the good faith of the party
engaging in such conduct; and any prior findings in these respects places a cloud on
the issue here. However, for the reasons given hereinafter, I am convinced that the
Company bargained in good faith with the Union, that the conduct of the Company
satisfied the requirements of the Act, and that the Respondent attempted at all
times to reach an agreement, but that certain differences between the parties resulted
in an impasse.
The initial proposals made by both the parties contained provisions relating to
recognition, 'grievances, seniority, bulletin boards, safety, and references to work
hours. On July 27 the Company made other proposals to the Union, and submitted
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
articles and sections relating to bonds, leaves of absence, vacations , holidays, and
discharges . Additional proposals , changes, and amendments were then again made
by the Company , and on August 28 the parties had reached a similar or a complete
agreement on proposals relating to leaves of absence , time off for union activity,
maintenance of standards , bonds, time records, and holidays . On September 19 the
Respondent notified the Union of approximately eight or nine amendments to its
prior proposals , and on October 3 the Company agreed to a 10-cent per hour raise
to all employees working during the past 60 days and offered other changes in wages,
reclassifications , and on grievance machinery. Union Representative Noble further
stated in his testimony that the proposal which the Union submitted on seniority was
"pretty" generally accepted by both parties. The last written proposals by the
Union on November 3 also show general accord between both parties on the sub-
jects of absenteeism , what constituted a full day's work, waste , quality of workman-
ship , lockouts, work stoppages , slowdowns , and grievances.
The General Counsel argues that the conduct of Respondent 's agents in showing
company proposals to employees is also evidence of bad faith . The only testimony
in support of this contention was by Leslie Martin , who stated that on one occasion
there were two or three men looking at the proposed company contract and that
Foreman Myers was one of them. Martin testified that all employees could read it,
that he had read the seniority and pay rate clause, but admitted that Myers had made
no comment on the same . The Company admits that its supervisory force received
copies of the Respondent 's proposed contract, and Wilcox stated that some of the
employees then asked about it . Relative to the above incidents , I can find no sub-
stantial or credited testimony that the Respondent bargained with any individual
employee.
There is also an argument by the General Counsel that a pamphlet appeared at the
plant in solicitation for advertising , and that a handwritten notation appeared on this
pamphlet signed by the principal owner of the Company , Charles Wilson, to the
effect that this means was another method by the Union to secure funds. The only
witness to give any testimony on this incident was Leslie Martin , and he acknowl-
edged and admitted in his testimony that he could not recognize the signature of
Charles Wilson , that he merely presumed it was Wilson 's signature , that no one
informed him that it was the signature of Wilson , and that in the final analysis the
notation on the pamphlet in question was merely signed "Charles."
The General Counsel further contends that the allegation of bad faith bargaining
is also supported by the Respondent's actions in keeping the employees informed
on the progress of negotiations . In support thereof reliance is made on several
notices the Company posted informing the employees of the bargaining meetings
between the parties. There is nothing in the notices to show anything other than the
date of the conferences , the next scheduled meeting, and in a few instances the sub-
ject matters discussed by the parties and other related items. Under these particular
circumstances I am unaware of any decisions that such conduct is violative of the
Act, or that such is a showing of bad faith . Conversely , it appears to me that these
notices actually had the effect of notifying the employees that the Company was ne-
gotiating with their bargaining agent.2i
The law is clear that negotiations carried on in good faith , where there has been
an open exchange of ideas, proposals and counterproposals , and an indication of
willingness to compromise , but which efforts resulted in an impasse , cannot be
found to have violated Section 8 (a)(5) of the Act simply because on some of the
issues, even though they may be crucial , one or the other of the parties has been
unwilling to recede from its position so as to yield to the contentions or demands
of the other.
The record of the negotiations, the proposals , counterproposals , and modifications
by the Respondent here, its availability and participation in the negotiations on
many different occasions , and its offer to compromise and willingness to sign an
agreement , clearly establishes that the Respondent 's conduct in the course of these
dealings was in keeping with the spirit of the Act , and was not in violation of Sec-
tion 8(a) (5). The record will not support any contention to the effect that the
behavior and attitude of the Company at any of the negotiating meetings was indi-
cative that the Respondent bargained in form only, without a genuine desire ulti-
mately to reach an accord with the Union.
a The General Counsel also argues that other factors showing bad faith were notices
posted by the Company pertaining to vacations and layoffs, and the presence of an un-
identified "guest" at the October 17 bargaining meeting I attach no material significance
to these incidents which would in any way vary my findings here. The remaining con-
tention that the Company made unilateral changes and, therefore, a factor in showing
bad faith in its negotiations , is recommended for dismissal , as aforestated
WILSON CONCRETE COMPANY 967
The record here further clearly demonstrates that items in the various proposals
were , at one time or another , openly discussed , and that agreements were reached
on several subject matters as aforestated .22
Moreover, the parties also reached some tentative agreements in several other
areas of the proposed contract, and almost succeeded in arriving at a solution in these
respects, and the Company also modified its position on some items of disagreement
as the bargaining sessions progressed. I do not find that the company procedure
and behavior, when reviewed in the light of the entire record, is sufficient to establish
that the Respondent refused to bargain in good faith. The courts and the Board have
repeatedly held that the Act does not compel an agreement or bargaining contract
between the parties, nor does the Act prescribe what shall be written in them. Fur-
ther, I do not believe that the incidents cited by the General Counsel as grounds for
showing the Respondent's bad faith, as aforestated, are adequately supported with
a preponderance of credible testimony. Mere surmise and suspicion cannot be con-
sidered as evidence in support of an unfair labor practice. From my observation
and the demeanor of the witnesses, and for the reasons herein, I shall recommend
that the allegations with respect to the refusal of the Respondent to bargain in good
faith, be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with its operations 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 commerce and the free
flow of commerce.
V. THE REMEDY
It having been found that the Respondent engaged in unfair labor practices in
violation of Section 8(a)(1) and (3) of the Act, it will be recommended that the
Respondent cease and desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act. It will be recommended that the Respondent
offer employees Melvin Schultz, Raymond Thomas, and George Ewoldt immediate
and full reinstatement to their former or substantially equivalent positions, without
prejudice to seniority and other rights and privileges, and make them whole for any
loss of earnings they may have suffered by reason of the discrimination against them,
by payment to them of a sum of money equal to that which they would have earned
as wages from the date of the discrimination against them to the date of offer of
reinstatement less interim earnings , and in a manner consistent with the Board policy
set out in F. W. Woolworth Company, 90 NLRB 289, and Crossett Lumber Com-
pany, 8 NLRB 440. On the same basis for computation of backpay it will be
recommended that the Respondent make Milford Killham whole for any loss of
pay suffered by him from November 18, 1960, until January 15, 1961; that Re-
spondent make Larry Mason whole from November 18, 1960, until January 17,
1961; and that the Respondent make Bernard Morrow whole for any loss of pay
suffered by him from November 15, 1960, until January 12, 1961. It will also be
recommended that the Respondent preserve and, upon request, make available to
the Board, payroll and other records to facilitate the computation of the backpay
due.
It will be further recommended, in view of the nature of the unfair labor practices
the Respondent has engaged in, that it cease and desist from infringing in any
manner upon the rights guaranteed employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the meaning of the Act and admits
to membership employees of Respondent; and on and since May 13 has been the
exclusive bargaining representative for all employees in the aforementioned bar-
gaining unit.
3. By discriminating in regard to the hire or tenure of employment of Melvin
Schultz, Raymond Thomas, Bernard Morrow, Milford Killham, George Ewoldt, and
22 It is further noted the meeting between the parties on October 17 was terminated
when Union Representative Noble lost his temper and hit Company Representative John
Tate, Jr.
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Larry Mason , thereby discouraging membership in the above Union , Respondent
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (3) of the Act.
4. By interfering with, restraining , and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
5. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
U.S. Divers Company and General Truck Drivers, Warehouse-
men & Helpers Union , Local 235 and Calvin Kirby and
William J . Lollis. Cases Nos. 11-CA-3983, 21-CA-4056-1, and
21-CA-4056-2. October 13, 1961
DECISION AND ORDER
On March 20, 1961, Trial Examiner Herman Marx issued his Inter-
mediate Report in the above-entitled proceedings, finding that the Re-
spondent had engaged in and is engaging in unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the Intermediate Report attached
hereto. The Trial Examiner also found that the Respondent had not
engaged in other unfair labor practices alleged in the complaint and
recommended that such allegations be dismissed. Thereafter the Re-
spondent filed exceptions to the Intermediate Report and a brief in
support of its exceptions.
The Board 1 has reviewed the rulings 2 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 Inter-
mediate Report, the exceptions and briefs, and the entire record in
these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
I Pursuant to the provisions of Section 3(b) of the Act , the Board has delegated its
powers in connection with these cases to a three-member panel [Chairman McCulloch and
Members Rodgers and Leedom].
2 During cross -examination of James Sutton , Respondent asked the witness for the names
of employees who had attended a union meeting at Lollis' home on the night before
Sutton ' s discharge and the names of employees who had signed union authorization cards
on the day of the discharge . General Counsel objected on the ground that the disclosure of
names of employees who had indicated interest in the Union might result in subsequent
discrimination against them . Respondent argued that if given the names of other em-
ployees at the union meeting questioning of such employees might reveal that Sutton had
not received any union authorization cards that night and thus would serve to attack his
credibility. Also , if the names of employees who had signed authorization cards were
revealed Respondent would show that it had not discriminated against them and that
Sutton was not attending to his duties on the day of his discharge but was spending his
time obtaining signatures to the union cards . The Trial Examiner ruled that he would
not permit Respondent to cross -examine Sutton as to the names of employees who had
either attended the union meeting or had signed union authorization cards unless they had
been identified or referred to in the direct examination . Respondent has excepted to
133 NLRB No. 88.