American Aggregate Co, Inc.

National Labor Relations Board - Board Decisions

Mar 17, 1961

130 N.L.R.B. 1397 (N.L.R.B. 1961)

AMERICAN AGGREGATE CO., INC. & FEATHERLITE CORP. 1397
voting group will be pooled with those of the employees in voting
group (2).11 If a majority of the employees in voting group (2) or
in the pooled group, as the case may be, vote for the Painters, or
District 50, the Regional Director is instructed to issue a certification
of representatives to such labor organization for such group, which
the Board, in the circumstances, finds to be a unit appropriate for the
purposes of collective bargaining. In all other events, the Regional
Director is instructed to issue a certification of results of the elections
as appropriate in the circumstances.
[The Board dismissed the petition filed in Case No. 22-RC-1071.]
[Text of Direction of Elections omitted from publication.]
n If the votes are pooled , they are to be tallied in the following manner : Votes for
the Operating Engineers shall be counted as valid votes , but neither for nor against the
Painters or District 50. All other votes are to be accorded their face value, whether for
representation by the Painters , or by District 50, or by no union. See Independent Linen
Service Company of Mi8si8sippi, 122 NLRB 1002, 1006.
American Aggregate Company , Inc. and Featherlite Corporation
and United Stone and Allied Products Workers of America,
AFL-CIO.1 Cases Nos. 16-CA-1331 and 16-CA-1338. March 17,
1961
DECISION AND ORDER
On October 18, 1960, Trial Examiner Phil Saunders issued his In-
termediate 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 copy of the Inter-
mediate Report attached hereto. He also found that the Respondent
had not engaged in certain other alleged unfair labor practices and
recommended dismissal of the complaint pertaining to such alleged
unfair labor practices. Thereafter, the Respondent filed exceptions to
the Intermediate Report and a supporting brief.
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 In-
termediate Report, the exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner, except as indicated below.'
1 Herein sometimes referred to as the Union.
2 In its exceptions , the Respondent complains that the Trial Examiner , in determining
whether striker Nowak was offered his old job upon termination of the strike , failed to
consider a tape recording of an interview between representatives of the Respondent and
Nowak. As the tape recording contained omissions and unintelligible portions, we do not
regard it as reliable. Cf. Walton Manufacturing Company, 124 NLRB 1331 , 1333. We
130 NLRB No. 144.
1398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the basis of 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,
American Aggregate Company, Inc. and Featherlite Corporation,
Ranger, Texas, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with United Stone and Allied
Products Workers of America, AFL-CIO, as the exclusive bargain-
ing representative of all employees of the Respondent in the appro-
priate bargaining unit described in the Conclusions of Law in the
Intermediate Report.
(b) Discouraging membership in the Union, or in any other labor
organization of its employees, by refusing to reinstate unfair labor
practice strikers or by discriminating otherwise in regard to hire or
tenure of employment or any term or condition of employment.
(c) By means of discrimination in respect to tenure of employ-
ment, by unlawfully refusing to bargain, by refusal to reinstate strik-
ers, or in any other manner interfering with, restraining, or coercing
employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist the 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 re-
frain from any or all such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with United Stone and
Allied Products Workers of America, AFL-CIO, as the exclusive
representative of all employees in the appropriate unit.
(b) Offer to Louie Nowak and D. D. Foster immediate and full
reinstatement each to his former or substantially equivalent position,
and make each whole for any loss of earnings in the manner set forth
in the section of the Intermediate Report entitled "The Remedy."
(c) Make whole Archie Hatton for any loss of earnings from
September 15 to November 25, as set forth in the section of the Inter-
mediate Report entitled "The Remedy."
(d) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and
all other records necessary to compute the amount of backpay due
under the terms of this Order.
find, like the Trial Examiner, that the content of the job offered to Nowak was that of a
bulldozer operator and not his old job as a clam operator. We further find, contrary to
the Respondent 's contention, that Nowak declined to accept the job proffered.
AMERICAN AGGREGATE CO., INC. & FEATHERLITE CORP. 1399
(e) Post at its plant or facility in Ranger, Texas, copies of the
notice attached hereto marked "Appendix." 3 Copies of said notice,
to be furnished by the Regional Director for the Sixteenth Region,
:shall, after being duly signed by an authorized representative of the
Respondent, be posted by the Respondent immediately upon receipt
thereof and maintained by it for a period of 60 consecutive days there-
after, in conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(f) Notify the Regional Director for the Sixteenth Region, iri writ-
ing, within 10 days from the date of this Order, what steps they have
taken to comply herewith.
IT IS FURTHER ORDERED that the allegations of the complaint as per-
tain to Jim Vinson, Alvin Mayhar, P. M. Mandoza, C. E. Boney, and
Thomas D. Venable be, and they hereby are, dismissed.
CHAIRMAN MCCULLOCH and .MEMBER JENKINS took no part in the
consideration of the above Decision and Order.
a 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."
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 National Labor
Relations Act, we hereby notify our employees that :
WE WILL, upon request, bargain collectively with United Stone
and Allied Products Workers of America, AFL-CIO, as the
exclusive bargaining representative of all employees in the fol-
lowing bargaining unit with respect to rates of pay, wages, hours
of employment, and other conditions of employment: -
All production and maintenance employees at our Ranger,
Texas, facility, excluding office, clerical, and professional
employees, guards, and all supervisory employees as defined
in the Act.
WE WILL offer to D. D. Foster and Louie Nowak immediate
and full reinstatement each to his former or substantially equiva-
lent position, without prejudice to seniority or other rights and
privileges, and make each whole for any loss of pay resulting from
the discrimination against him.
WE WILL make whole Archie Hatton for any loss of pay result-
ing from discrimination against him.
1400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
• WE WILL NOT by unlawfully refusing to bargain with United
Stone and Allied Products Workers of America, AFL-CIO, by
discriminating against unfair labor practice strikers, or in any
other manner interfere with, restrain, or coerce our employees in
the exercise of their right to self-organization, to form, join, or
assist the above-named labor organization, or any other labor
organization, to bargain collectively through representatives of
their own choosing, to engage in concerted activities for the pur-
poses of collective bargaining or other mutual aid or protection,
or to refrain from any or all of such activities.
All our employees are free to become or remain, or refrain from be-
coming or remaining, members of the above-named Union, or any
other labor organization. We will not discriminate in regard to hire
or tenure of employment, or any term or condition of employment
against any employee because of membership in, or activity on behalf
of, any labor organization.
AMERICAN AGGREGATE COMPANY, INC.
AND FEATHERLITE CORPORATION,
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 AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed by United Stone and Allied Products Workers of America,
AFL-CIO, herein called the Union , against American Aggregate Company, Inc.
and Featherlite Corporation , herein together called the Respondent or the Company,
the General Counsel issued a consolidated complaint alleging that the Respondent
has engaged in unfair labor practices affecting commerce within the meaning of
Section 8 ( a)(3), (5), and ( 1) 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 May
9 to 12 , 1960 , at Eastland , Texas, before the duly designated Trial Examiner. All
parties were represented by counsel at the hearing and were afforded full opportunity
to examine and cross-examine witnesses , to introduce evidence , to present oral ar-
gument, and thereafter to file briefs as well as proposed findings of fact and con-
clusions of law. A brief was received from both the General Counsel and the Re-
spondent and have been duly considered herein . Reserved rulings are disposed of
in accordance with the following findings of fact and conclusions of law.
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
American Aggregate Company, Inc., is, and has been at all times material hereto,
a corporation duly organized under and existing by virtue of the laws of the State of
Texas, having its principal office and place of business at 915 Congress Avenue,
in the city of Austin , Texas , and is now and has been at all times material continu-
ously engaged in Ranger , Texas, hereinafter referred to as the "facility ," in the ex-
cavating and processing of clay and related products.
AMERICAN AGGREGATE CO., INC. & FEATHERLITE CORP. 1401
Featherlite Corporation is, and has been at all times material herein, a corpora-
tion duly organized under and existing by virtue of the laws of the State of Delaware,
having its principal office and place of business at 915/ Congress Avenue, in the
city of Austin, Texas, and is now and has been at all times material herein continu-
ously engaged at Ranger, Texas, hereinafter referred to as the "facility," in the ex-
,cavating and processing of clay and related products.
Respondent is composed of the two corporations above described, American Ag-
gregate Company, Inc. and Featherlite Corporation; the operations of each corpora-
tion are integrated one with the other in such fashion that both corporations are
operated as and are one concern. In the course of its business operations at the
"facility" during a 12-month period, which. period is representative of all times ma-
terial herein, Respondent-ships goods annually valued in excess of $50,000 from that
facility to points outside the State of Texas.
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.
11. THE LABOR ORGANIZATION INVOLVED
United Stone and Allied Products Workers of America, AFL-CIO, is a labor or-
ganization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Events and issues
The complaint alleges, and the answer denies, that the Respondent discriminated
against eight of its employees,' regarding their conditions and tenure of employment,
by discontinuance of their shift rotation, reduction of their hours from 48 to 40,
and demoting the employees to inferior positions because of their union activities.
The complaint further alleges, the answer admits, and I find that all production
and maintenance employees at Respondent's Ranger, Texas, facility, excluding office,
clerical, and professional employees, guards, and all supervisory employees as de-
-fined in the Act, constitute a unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act. Also that on October 28, 1957, a
majority of the employees in the above-described unit designated the Union as their
representative for the purposes of collective bargaining, and, by virtue of Section 9
of the Act, the Union was designated and certified by the Board as the exclusive
representative of all the employees in the unit.
On the basis of the above it is further alleged that the Company has refused to
bargain with respect to wages, pay, and hours of employment, and that the Re-
spondent unilaterally changed shift rotations, made a reduction in work hours, insti-
tuted a profit-sharing plan, and refused to furnish wage rates and classifications deal-
ing with group insurance.
The record here discloses that in prior Board litigation between the same parties 2
the Respondent was held to have violated 8(a)(5) and (1), and covered the con-
troversy with the Company up to the date of April 27, 1959.3 The General Counsel
contends that- the meeting on April 27 was the last bargaining conference between
the Company and the Union, and that many efforts to obtain additional bargaining
sessions were without success.
It was established that the production and maintenance employees went on strike
at the company plant on July 29, in protest of the continual refusal on the part of the
Company to bargain and to discuss grievances of certain employees within the unit.
The strike continued up to September 15, at which time it was terminated and all
of the strikers made unconditional applications for reinstatement. The General
Counsel contends that when the strikers returned to work they found a series of
unilateral changes which had been made by the Company, and, upon reinstatement
of the striking employees, there was discrimination in assignment of hours, jobs,
and shifts which was in violation under 8(a) (3) of the Act.
The Respondent contends that when the striking employees went back to work,
the employees in the various classifications were put on a 40-hour week and on non-
revolving shifts, and that the changes were "common ordinary routine" in the Re-
spondent's plant operation for better efficiency and greater economy. As to the
8(a) (5) allegation, the Respondent states that its obligation to bargain ceased when
' Louie Nowak, Jim Vinson, Alvin Mayhar, P. M. Mandoza, Archie Hatton, D. D. Foster,
C. E. Boney, and Thomas D. Venable.
O American Aggregate Company, Inc. and Featherlite Corporation, 125 NLRB 909.
s All dates are 1959 unless specified otherwise.
1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Company had a reasonable doubt as to the Union's majority after the certifica-
tion year had expired 4 and that the Respondent had asked for a consent election,
but that the Union turned the request down, and from that point on the Company
had no obligation to bargain.
B. The alleged refusal to bargain, and findings and conclusions with respect thereto
The record discloses that on April 27 the Union and the Respondent held a meet-
ing, at which time the Union again requested that the Company resume contract ne-
gotiations. The Union at this meeting also attempted to discuss -certain unilateral
changes of employment that had been made earlier. The Union was then told by the
Respondent that there would be no additional meetings unless the Union showed a
change in its position, that the Company questioned union majority, and that the only
way to settle this question was by a consent election. The Union then offered to
prove its majority by several other means, but the Respondent wanted a consent
election and told the Union that this method "was the only way to see how the em-
ployees felt."
This record further established that on May 3, A. J. Shippey, a representative for
the Union, sent a letter to Respondent's counsel in which he outlined three bargain-
ing changes which indicated different positions on behalf of the Union relative to
these matters, and which was in accordance with the Respondent's wishes stated to
the Union at the meeting on April 27. These proposed changes by the Union, how-
ever, did not result in any conferences with the Company. Union Representative
Shippey then directed several additional letters to the Respondent setting forth a prior
grievance, and further requests by the Union that the Company enter into bargain-
ing conferences at times convenient to all concerned. All proved unfruitful and
Respondent refused each proposed meeting. Even during the strike the Union sent
a telegram on July 29, offering to meet and negotiate.
The testimony shows not only a refusal by the Company to meet, but that the
Respondent would not supply any material requested by the Union. Accordingly,
the union request made on December 24, 1959, for (1) the group insurance plan,
(2) a seniority list, and (3) job classification and wage rates, was ignored and none
of such information was ever supplied.
Between Christmas and New Year's, in 1959, the Company notified its employees
of a newly created pension insurance plan which also became effective at this time,
and introduced the plan without giving any notification to the Union .5
On February 11, 1960, the Union, still seeking a meeting with the Company, went
in a body to the office of Respondent's manager, Carl Black. The union people
were unable to get in to see Black, but were given a typewritten note signed by
Black, which stated, "I do not recognize your union as representing the majority of
our employees; therefore, I have nothing whatsoever to discuss with you."
There is no contradiction in the evidence but that the Union up to April 27, 1959,
represented a majority in the bargaining unit. This majority was held to be a fact
by the Trial Examiner in Case No. 16-CA-1217 (125 NLRB 909), as aforestated.
The Respondent's defense from then on, although the refusal to bargain allegation is
in no way argued or set forth in the Respondent's brief, appears to be that the Com-
pany's payroll increased, during the period involved herein, from 43 to. 70 employees;
that from the strike period on the Company had no sure way of knowing who was for
the Union and who was not; that after the strike, when the plant increased its person-
nel, it had more employees who had not struck than employees who did, and that,
therefore, the Respondent had a reasonable doubt as to the Union's majority.
A decision of the Board (E. A. Laboratories, Inc., 80 NLRB 625, 683) puts the
matter succinctly:
A good faith doubt ... must be based on something more than a mere desire to
put a union to a contest of strength in the hope that it may somehow lose.
Where the Union is admittedly the choice of the employees before the question
is raised, there must be some evidence of disaffection brought to the employer's
attention before an asserted doubt can be characterized as bona fide. Elections
are held to settle questions concerning representation-to resolve real doubts,
not feigned ones.
On November 4, 1957, the Board issued a certification to the Union as the exclusive
majority representative.
5 There is no dispute but that the Company, without any consultation or meeting with
the Union, also unilaterally reduced hours of employees and discontinued shift rotations
on and after July 29. Further aspects of these contentions, as they relate to the alleged
discriminatees, will be discussed in detail later in this report.
AMERICAN AGGREGATE CO., INC. & •FEATHERLITE CORP. 1403
The record here established that on May 3, the Union contacted the Company and
indicated three concessions in its demands, and an offer to meet again with the Re-
spondent. The only reply from company counsel was a letter to the effect that he
was happy with the Union's change on these matters, but still doubted the Union's
majority. No meeting resulted although the Company indicated that they would
get together at a later time. As to the May 3 efforts by the Union to negotiate, there
is no testimony of any material change-in the personnel of the unit from April 27.
It is also noted.that, in the Respondent's reply to the union letter of May 3, the Com-
pany stated that it was happy to see the three changes in the Union's posiion, and in
this respect also stated, "Now it would be nice if you would do the same on several
others and we could proceed to reach a contract."
The Union again established its majority on July 29 when the strike started. While
this factor is not conclusive in proving union majority, it nevertheless shows that
there were 44 employees in the unit at this time, and 30 supported the strike and also
engaged in picket line efforts. Upon completion of the strike on September 15 the
strikers returned to the plant in one capacity or another. The Company then dis-
charged some of the replacements it had hired during the strike, but retained several
of the replacement employees on the basis that new kilns were being installed and
their services were needed in connection with this plant enlargement. The increase
of employees from 44 to 70, as mentioned by the Respondent, reflects in various de-
grees such employees. This record further shows that for the most part the replace-
ment employees retained by the Company performed jobs in the final construction
work on the new kilns, and that these kilns were not completed or put into produc-
tion until April 1960. The contention apparently of the Company being that these
employees did some maintenance work thereby increasing the unit, and that the
Company did not know if they were union members or not. It is obvious from this
record that the additional employees were considered construction people, that at
least 50 percent of their work was construction, that they did not punch timecards
as other employees did, and that the production and maintenance unit is not a com-
bined unit with construction people, but is in truth and in fact the production and
maintenance employees who were doing this type of work at all times separate and
distinct from construction. Moreover, the Union showed that during the first several
months of 1960 it had 33 employee union authorization cards, and Manager Black
testified that as late as May.7, 1960, he had a payroll totaling 68 employees in all, but
that 8 of this number were temporary employees, and that the net number of perma-
nent employees on May 7, 1960, was accordingly 60. So even assuming , arguendo,
that the total unit included construction people the Union would nevertheless have a
clear majority as of this payroll period.
The witnesses for the Respondent contended that the only way they could tell union
from nonunion employees was whether they took part in the strike and whether or'
not they wore union buttons. However, other than the above assumptions, no valid
reasons appear on the entire record that all the employees who left had voted for the
Union originally, that those employees who did not actually participate in the strike
were all nonunion, or that the replacements did not include both pro- and anti-
union employees.
In the circumstances of this case and taking judicial notice of prior litigation against
the Company as aforestated, I find the defense of loss in majority is without merit.
A majority status once shown is presumed to continue, and this is especially true re-
specting a certification issued by the Board.6 If the Respondent in good faith doubted
the Union's continuing representative status, it was privileged to have it put to a test
in a Board-conducted election by filing a petition. Instead it designated to itself the
authority to resolve the question adversely to the Union, while rejecting the Union's
offer to prove its majority by other means. It had no reasonable foundation for its
conclusions?
6 Ray Brooks v. N.L.R.B., 348 U.S. 96.
7 The Board recently had occasion to treat with an employer's doubt concerning a
union's continued majority status after the end of the certification year. In Stoner
Rubber Company, Inc., 123 NLRB 1440, the Board considered an employer's rights-
whether it could raise a question concerning representation, whether it could suspend
bargaining, whether it could take unilateral action-where an employer "in good faith"
had "a reasonable basis" for doubting the union's continued majority. Implicit in that
decision is the rule that when the employer does not act in good faith or does not have
a reasonable basis for doubting the majority, it violates the Act if it deals with the
employees directly instead of through their union. On this point, the Stoner decision
only reaffirmed earlier Board and court decisions.
1404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the evidence outlined above, I find that the Union in April 1959, and at all
times material since, has been the exclusive representative of all the employees in the
appropriate unit for purposes of collective bargaining in respect to rates of pay,
wages, hours of employment, and other terms and conditions of employment.
I find that on April 27, 1959, and at all times thereafter, the Respondent has re-
fused upon request to bargain collectively with the Union, and thereby committed
an unfair labor practice in violation of Section 8(a) (5) and (1) of the statute. The
Respondent's continual and adamant rejection of all the Union's request for bargain-
ing meetings, its substantial refusal to permit the Union's grievance committee to
process grievances on behalf of individual employees, its absolute refusal upon re-
quest to furnish the Union information with respect to insurance plans, seniority lists,
and job classifications, and its insistence upon reserving to itself unilateral determi-
nation of the terms and conditions of employment.
C. The alleged discriminatees; findings and conclusions with respect thereto
The complaint alleged that Respondent discriminated against eight employees on
the basis and for the reasons as aforestated. All of the alleged discriminatees were
union members and participated in :the strike. The General Counsel established that
before the strike the plant operated on a 48-hour week, and that in several depart-
ments there were shift rotations. The General Counsel further showed that after the
strike some of the discriminatees were placed on a 40-hour week, that the shift
rotations were discontinued, and that in certain instances the discriminatees were not
reinstated to their former jobs.
It was established that the strike on July 29 resulted in refusal by the Company to
bargain with the Union, and there is no serious argument or contention but that the
discriminatees were unfair labor practice strikers. In referring to company-union
meetings and in explanation for the strike, the president of the local credibly testi-
fied, that the Union "hadn't accomplished anything with them," and that "we didn't
have any other alternative but to do just that" (referring to the strike). In accord-
ance with the above I find that the discriminatees were unfair labor practice strikers.
Upon the basis of the above, it would appear, therefore, that the General Counsel
make out a strong prima facie case of discrimination. The Respondent, on the other
hand, made out a strong case that certain changes within the plant were contem-
plated over a considerable period of time, and these changes were based on eco-
nomic justification and for greater efficiency in the plant operations. With respect
to the economic and business reasons, asserted by Respondent as the only considera-
tions entering into its decisions to make the changes in question here, Respondent
introduced considerable oral and documentary evidence which I find established the
following:
The Respondent, at its Ranger plant, manufactures a lightweight concrete aggre-
gate, known as expanded shale, and in the market area this product competes with
ordinary sand and gravel. Respondent's general manager, Carl Black, testified that
the raw shale is excavated with a power shovel, dumped into a shale crusher, and
then into a shale storage building. From storage it is conveyed by belt to rotary
kilns where the material is melted at high temperatures, then discharged into a
cooling pit, and from the pit it is taken to the stockpile by means of a "clam shell"
and from the stockpile to a rim grinder where it is recrushed.
Manager Black testified that in 1958, in order to hold his costs down, he had to
make a number of changes in the plant operation. During 1958 Black cut the
number of kiln burners from 14 to 7, put an "oiler" with the kiln burners on
a round-the-clock basis, put into operation the rim grinder setup, and by so doing
took 16 machine hours a day off of each machine and eliminated overall 4 jobs,
discontinued the evening shift of the crusher operators and put them on the midnight
shift which enabled the railroad cars to function without shutting the crusher down,
and in 1958 also put a maintenance man on each of the 3 shifts to prevent and correct
breakdowns. In 1959 Black established that further changes were also made. He
displaced two clam shovels with one machine in the pit operations, purchased new
trucks which hauled twice as much as the old ones and thereby eliminated five driv-
ers, and again changed the oilers on the kilns by putting two oilers on the day shift
and eliminated the midnight and evening oilers.
It was also established that during the strike, from July 29 to September 15, 1959,
Manager Black made various changes in the plant operation. Black testified that
at the outset of the strike he immediately stopped the shift rotations,8 and did so
8It was established that prior to the strike the plant was generally operating on a
shift rotation basis, and under this system employees would work ] week on the day
shift, 1 week on the evening shift, and then the following week on the midnight shift.
AMERICAN AGGREGATE CO., INC. & FEATHERLITE CORP . 1405
"to freeze everyone and see in what place they would be." Black also stated that
it had been difficult for him to follow who was on each shift and that it gained more
efficiency and enabled the foremen to know their men better and what to expect of
them. From July 29 on, the plant has had no shift rotations of any of its employees.
Manager Black further testified that he also pulled one of his clam machines off the
production line as they were having trouble with it, and set up a three-shift round-
the-clock operation on the remaining clam machine. The three clam operators
were also to use a bulldozer and push the material to the center of the stockpile,
and Black testified that this change was a much more efficient operation and that
he could then start thinking about the elimination of "some pushup men."
It was further established by Black that for some time he had also considered the
purchase and installation of some new kilns at the plant, and during June the Com-
pany decided to go ahead with the enlargement plans. In July an outside firm of
engineers were'hired to draw up the plans, in late August the Company let the con-
tract for the construction of the new kilns to Erectors & Riggers Corporation, it was
not until January 1960 that the Riggers Corporation completed their phase of the
construction work, but the kilns did not go into production until April 1960.
As to the change from a 48-hour week to a 40-hour week, which was put into
effect at the termination of the strike on September 15, Manager Black testified that
he had contemplated this change for some time, on the basis that the Fair Labor
Standards Act required a premium on all hours over 40 and in his constant efforts
to save money in the operations of the plant. Black further stated that he could not
"economically" put every employee on a 40-hour basis, and cited instances where it
was not feasible to do so. In this respect the General Counsel contends that non-
union employees were given the jobs based on the 48-hour week, and that overtime
for nonunion employees was greater than that given to the discriminatees.
In attempting to resolve these phases of the controversy I will consider the above
facts and contentions in respect to each individual discriminatee. 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, reduction of hours, or other changes in working
conditions must not be motivated by reason of an employee's union or concerted
activities.
1. D. D. Foster
Foster credibly testified that prior to the strike on July 29 he had worked as a
relief burner at the plant kilns, that he was employed on a 48-hour week, and
that he worked 2 evenings, 2 days, and 2 midnight shifts each week. It was estab-
lished that after the strike Foster was placed on the straight midnight shift as a
burner, and upon his return only worked a 40-hour week. Further testimony by
Foster disclosed that after the strike the plant had two relief burners, Johnson and
Tabor, both were nonunion employees, and that they were kept on a 48-hour week.
Manager Carl Black testified that before the strike the Company had six regular
burners and one relief burner, all on rotating shifts. After the strike they also had
six burners, but had two relief burners, and were operating on straight shifts. Black
was unable to offer any specific explanation as to why Foster was put on a straight
shift rather than on relief, but testified that he started making the assignments after
the strike by beginning with the relief assignment, and Johnson and Tabor were
given the relief jobs because he (Black) knew they were there and would be avail-
able. Black further testified that he did not give any consideration to the matter one
way or another, and that Foster had said nothing to him about it .9
Conclusion
The Company in this instance attributes its change from one relief burner to two
on the basis that the regular kiln burners were working 40 hours after the strike, so
that an extra relief man was needed. However, there were no economic or efficiency
considerations which eliminated or changed Foster's prior job as a relief burner in
any respect, and the Company readily so admits. Manager Black merely stated that
under compelling circumstances he made a mistake in Foster's reassignment. In
this respect it is noted that Black testified as to other mistakes made after the strike,
6 Manager :Black further explained that the assignments of plant personnel after the
strike were made under very difficult conditions. The office manager had suffered a heart
attack, and he was left without sufficient help. Black testified that as a result, and with
his work in buying machinery for the new kilns, mistakes were made and one of them
was in not assigning Foster to his prior duties as a relief burner.
1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but also stated that corrections were soon made after their discovery. Here Foster
still remains on the same job several months after the strike.
Foster was an unfair labor practice striker, and it was incumbent upon the Re-
spondent, after his unconditional application, to reinstate him to his former or sub-
stantially equivalent job, even if it required dismissal of a replacement. I find that
in failing to do so, the Respondent under these circumstances discriminated against
Foster in violation of Section 8 (a).(3) and (1) of the Act.
2. Archie Hatton
Hatton established that prior to the strike in which he participated, he was a kiln
oiler and also helped clean up around the kilns. He stated that in March the oilers
were taken off rotating shifts, that thereafter he then worked on a straight-day shift
until the strike, and that up until this time he was getting 48 hours a week.
Hatton credibly testified that after the strike he was assigned to the oiler job on
the evening shift, worked 40 hours a week until November 25 when he was put back
on 48 hours, and was then also assigned to the day shift.
Further testimony by Hatton disclosed that Shorty Shouse and C. N. Scott were
also kiln oilers, both received 48 hours of work after the strike, both were also non-
union at this time, and that Scott was hired during the strike.
Respondent's Manager Black testified that he had no explanation or reason as to
why Hatton was not assigned to the daytime oiling job that he held prior to the strike.
Black further stated that several weeks later he discovered his failure to put Hatton
on his old job, and that he then changed- Hatton back to the day shift by merely
switching shifts between Hatton and Scott.
Conclusion
Here again the plant changes as set forth by the Company did not, in this instance,
alter in any respect the oiling job that Hatton held prior to the strike. After the
strike his job remained and on the same basis that he left it with the exception that
a nonunion replacement employee was doing it. Before the strike Hatton was an
oiler on the straight-day shift working 48 hours, and the Respondent's reassignment
to the night shift on a 40-hour basis was not a reinstatement to his former or sub-
stantially equivalent position. b0 Being an unfair labor practice striker Hatton was
entitled to his old job, and in failing to so reinstate the Respondent discriminated
against Hatton in violation of Section 8 (a) (3) and (1) of the Act.
Jim Vinson
Vinson testified that he had worked at many jobs in the plant and up until March
worked as a kiln oiler, but that since March, and up until the July 29 strike, his job
was that of vacation relief, and that he was working in that capacity on the midnight
shift. Vinson testified that after the strike he was assigned to the midnight shift
as an oiler and given 40 hours. Vinson also testified that there was actually no
oiling to do on this job, and instead was required to clean out stock dust and haul
it off in a wheelbarrow, and that he also helped the maintenance man. Vinson did
not know if there was a vacation relief job available after the strike, and testified
that vacation relief paid $1.30 an hour and that an oiler was paid $1.20 per hour.
Relative to Vinson, the Company produced credited testimony through Manager
Black to the effect that after the strike there was no vacation relief job available,
nor had Vinson , at the time he was put. on vacation relief in March , ever been told
that he would be returned as an oiler . Respondent also argues that unless the
General Counsel furnishes proof that the assignment Vinson received after the
strike was not substantially equivalent to the vacation relief job he had prior to the
strike, the judgment of the Company must be respected.
Conclusion
It appears to me that the job which Vinson held prior to the strike was a temporary
position by the very designation of "vacation relief." There was some testimony
by Vinson that not all of the employees had taken their vacation when he returned
in September, and hence his old position should have been available. This testi-
mony is mere assumption, and, along with being denied by the Company, lacks
corroboration.
10 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827. Lykes Bros . Inc. of Georgia, 128 NLRB 606.
AMERICAN AGGREGATE CO., INC. & FEATHERLITE CORP. 1407
Vinson also testified that after the strike he worked 40 hours as an oiler. As
aforesaid , Manager Black testified that where economically possible he had cut
hours from 48 to 40. It appears to me that in Vinson 's circumstances the Com-
pany showed justifiable economic reasons in cutting hours, as plant changes back in
March had put two oilers on the day shift to better place responsibilities, and had
eliminated the evening and midnight shifts. This fact was even substantiated by
Vinson's own testimony when he stated that as an oiler on the midnight shift after
the strike he actually had nothing to oil, and so worked in cleanup jobs around the
kilns.
While the circumstances here might raise a suspicion that the change in working
conditions was discriminatory, mere suspicion or surmise cannot be considered as
evidence to support a finding of unfair labor practice. ,
In accordance with the above, I, therefore, find and conclude that there is in-
sufficient credible evidence that the Company discriminatorily changed the working
conditions and tenure of employment as to Vinson . The job he held prior to the
strike was eliminated , and the evidence so justified the Company's position in this
respect. I shall, therefore, recommend that the allegation as to Jim Vinson be
dismissed.
4. C. E. Boney
Boney testified that before the strike he was running a bulldozer and stockpiling in
connection with the clam operations , and that he was working on the midnight shift
on a 48-hour week.
It was established that after the strike , and until October 20, Boney again oper-
ated the bulldozer on a 48-hour week , but was placed on the day. shift. After Oc-
tober 20 he was assigned to the midnight shift moving stock dust and from then
on only received 40 hours, and he is still working on a 40 -hour basis . Boney stated
that there had never been any shift rotations with bulldozer operators.
Manager Black , testified that during the strike, as aforestated , he had changed
operations , because of excessive breakdowns , from a two-clam operation to a one-
machine-clam operation with three operators working around the clock , that each
operator would in turn do a third of the "clamming " and each a third of the
"dozing," and as a result Boney 's job was eliminated by this change. Black also
credibly testified that due to this change he had told Boney , when he returned from
the strike , that he was going to put someone on at nights that could also run the
clam, and that Boney had no operating experience in running a clam machine. Re-
spondent argues that there was good reason for changing Boney from nights to days,
and there was no obligation to keep him on nights once the job was eliminated.
As to the 40-hour week that Boney was placed on in October , the record discloses
that the Company purchased a larger clam machine in this period , as a result only
two clam operators were then needed , and Clarence Hamilton , who had been the
clam operator on the midnight shift , was then switched from a clam operator to
moving stock dust . Black testified that there was not enough work to give either
Boney or Hamilton more than 40 hours.
Conclusion
In regard to Boney it is noted that immediately after the strike , and up until
October 20, he apparently had a better job than prior to the strike , as he was given
the same job and hours , but worked the day shift rather than the midnight shift.
The Company produced credited testimony that during the strike one of its clam
machines was not repairable for economic reasons, and as a result it was taken out
of production . The operations then continued with the remaining one clam, but
round-the-clock shifts were set up, and on this basis the three clam operators on
each shift could then do both the digging and the bulldozing. Black credibly
testified that the above changes resulted in much greater efficiency , but that he
nevertheless reassigned Boney to the bulldozing job after the strike to ascertain if
the new system would actually work over a longer period.
From the above , it appears to me that while the initial changes in this operation
occurred during the strike and at a time when the Company was short-handed, the
change was actually made due to the failure of a clam machine. This fact is further
substantiated on the basis that in October the Company replaced both the old clam
machines with a bigger one. Since there was now no bulldozing, except by the
clam operators themselves , there appears to have been ample economic justifi-
cation in reducing the hours of Boney.
I find that the controlling and determining factor in changing Boney's conditions
of employment were economic considerations , and that there is insufficient evidence
to show discrimination . On the basis of the above , I will recommend that the
allegation as to Boney be dismissed.
1408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Louie Nowak
The record established that before the strike Nowak was a clam operator, that he=
worked a 48-hour week,. and that he was on the day job without any rotation of
shifts.
Nowak testified that after the strike he had a conversation with Manager Black.
about returning to his job, that Black then informed Nowak that he had "made some.
changing up here," that Nowak would have to be on the midnight shift as a clam
operator, and that there would be no rotating on shifts, but that he would be on.
48-hours. Nowak testified that the other two clam operators on the day and evening:
shifts, after the strike, would do all the "bailing out" of the pits as there was only
16 hours of this type of work, that there would be no clam work for him on the
midnight shift, that his job would be that of operating a bulldozer, that this offer
of reinstatement was not his old job, and that only occasionally had he operated a
bulldozer prior to the strike. Nowak then accepted a job with another employer and:
never returned to the plant after the strike. Nowak testified that some weeks later'
he again asked Black, "What about my old job?" and that Black then told Nowak.
to wait a week and he would let him know. Nowak was never contacted by Black.
Manager Black stated that prior to the strike the clam operators were also required'
to use a bulldozer when it was necessary to do so, that during the strike one of the
clam machines broke down, and was not repairable, as aforestated, so Black changed
the operation by going to three shifts around the clock with one machine. Re-
spondent argues that the new and different situation which Nowak found when he'
returned came into existence because of a machine failure, and did not result through,
any design to discriminate against Nowak for his union activities, and that Nowak_
was offered a job "practically identical" to the one he left.
Conclusion
As aforestated, the record established that certain changes were made in the clam
operations due to the mechanical failure of a machine, and as a result round-the-
clock shifts were established, and one out of the two day shifts was thereby elimi-
nated. The record further established that after the strike Ray Nicks, who had'
previously been with Nowak on a day shift before the change, was retained as the=
clam operator on the day shift, that employee Stagner, who was hired during the
strike, was left on the evening shift, and that Nowak after the strike was offered the,
midnight shift.
Nowak's main contention is that there was no clam work on the midnight shift.
and he would actually be required to operate a bulldozer and do other work, and:
that, therefore, this was not his old job. From this record and the testimony in-
volved, it appears to me that Nowak's contentions are amply supported. As ani
unfair labor practice striker he had a right for reinstatement to his former or sub-
stantially equivalent job. Prior to the strike, as we have seen , Nowak was a clam
operator on the day shift, and only operated a bulldozer as incidental to his maim
job. I find that upon return, for the reasons herein given, he was actually offered
by the Company the job of a bulldozer operator and on the midnight shift. This.
is not his former job or substantially equivalent thereto."
In reflection upon the actual duties of the third shift after the change, it is noted:
that during the strike the Company had only two regular clam operators, Nicks onj
day and Stagner on evening, and the midnight or third shift was filled in by a super-
visor. The record further discloses that when Nowak did not report to the midnight-
shift after being told by Black of his reassignment, employee Hamilton was then:
placed on the midnight shift. There is credited testimony by Hamilton that his work
on this midnight shift,'and which had been offered to Nowak, was that of a bulldozer'
operator and that he worked at this job until the new clam machine was purchased,.
asaforestated.'2 Hamilton also credibly stated that the clam machine itself had not:
"Lykes Bros . Inc. of Georgia, supra. .
12 Manager Black testified that when Nowak did not show up for the midnight shift,.
Hamilton was put on the midnight shift in Nowak's place. Respondent argues that:
Hamilton did not testify as to what his duties were on this shift. I find to the contrary..
In this respect the record established the following testimony by Hamilton :
Q. All right. Now, did you relieve Louie [Nowak]?
A. Louis never came back to work.
Q. Did you relieve anybody on that shift?
A. Yes. I went on the push-up [bulldozing] job after that.
(Footnote continued on following page.)
AMERICAN AGGREGATE CO., INC. & FEATHERLITE CORP. 1409
been operated on any regular schedule during the midnight shift. From the above
it appears clear to me that the job Nowak was offered upon his return was that of a
bulldozer operator and the changes in the clam operations did not eliminate his
former job but merely relegated it to the second shift, and on which a replacement
employee, Stagner, was permanently assigned. Recognizing that changes were made
as to shifts due to a mechanical failure, it nevertheless appears to me that the clam
operations were done during the day and evening shifts, and that the midnight shift
mainly was that of bulldozing. Under these circumstances, I find that the Company
failed to reinstate Nowak to his former job, and that in so doing the Respondent
discriminated against Nowak in violation of Section 8(a)(3) and (1) of the Act.13
5. Thomas D. Venable
Venable testified that before the strike he was a crusher tender, rotated between
the day and midnight shifts, and was paid at $1.25 an hour. Venable testified that
after the strike he was put back on the crusher with the day shift for about a month,,
and then transferred to the evening shift, but on both received 40 hours a week.
Venable further testified that after the strike he did not get his share of the overtime,
that he only worked three or four Saturdays while "others" worked "practically"
every Saturday. Venable stated that Alvin Mayhar, a union member, also got very
little overtime as did union employee Eddie James, but that nonunion employees.
Ray Parsons and Bobby Green got "quite a bit" of overtime and more hours than the
union crusher operators or tenders.
Manager Black testified that after the strike he put the men and their crews back.
to work as they had been, the only difference being that he stopped rotating shifts.
Black testified that in October he then went from a two-crusher operation shift to a
three-shift one-finished-crusher operation. From company records Manager Black
also testified as to the total number of hours worked by certain employees on the
crusher operations for the period ending September 26, 1959, which was the first pay
period after the strike, and the period ending February 13, 1960, the first pay period
after the charge in this proceeding was filed. This testimony established that alleged'
discriminatee T. D. Venable worked 771 hours straight time and 6816 hours overtime;.
union employee Alvin Mayhar worked 730 hours, and 90V2 hours overtime; nonunion
employee Ray Parsons worked 800 hours straight time and 193 hours overtime;:
nonunion employee Strickland worked 775 hours straight time and 641/ hours over-
time; and Bobby Green, who was a union member up until sometime in January 1960,
worked 79:8 hours straight time and 176 hours overtime.
Conclusion
Venable testified that he was put back on the same job and at the same gate of pay,
but that his hours were out. Venable, before the strike, also rotated between the
day and night shift, and from the testimony appears to have had no specific objection
to his assignment on a straight evening shift in October, and in this respect it is further
noted that at this time a change was made from a two-crusher operation to a three-
shift one-crusher operation.
The main contention by Venable is that he was not getting his share of the over-
time after returning from the strike. There is no testimony in the record as to the
overtime Venable received piror to the strike other than all employees were working
a 48-hour week. Venable, like the other discriminatees here, was entitled to get
what he had before the strike unless changes were justifiably made, but, in absence:
12--Continued
Q. That day ? I mean when did you go on the push-up?
A. Well, the very next-let's see that would be Thursday on midnights.
Q. You went to work midnights pushing up? [bulldozing]
A. Yes, sir.
Q. Now , did you relieve on the clam?
A. No, sir.
7s Further testimony by Nowak showed that Jeff Mann was the foreman on the mid-
night shift. The record also showed that Mann and Nowak had encountered at least
one prior misunderstanding, and Nowak testified that he and Mann "never got along."
Employee CC. N. Scott testified that during the strike Foreman Jeff Mann had told him
that when the strikers returned the Company would put them on the midnight shifts,
that some of the strikers did not like him, and that they would not stay long. Mann
denied the remarks. On the basis of my observation of the witnesses, their demeanor,
and sequences of events here, I credit the testimony of Scott.
597254-61-vol. 130-90
1410 DECISIONS OF NATIONAL LABOR- RELATIONS- BOARD
of specific testimony as to any exact hours of overtime prior to the strike, I am unable
to find that there is sufficient evidence to show a discriminatory change in his working
conditions.
Black stated that where economically possible, he reduced employees to 40 hours,
and as noted beforehand this general policy had several exceptions and even to the
discriminatees herein.14
With due recognition that some nonunion employees in the crusher department
had more hours overtime after the strike than union employees, as argued by the
General Counsel, such evidence in my opinion is not sufficient proof of discrimina-
tion, as it is very unlikely that any two employees would be the same under any
circumstances. Here it becomes obvious that overtime hours after the strike, even
between union and nonunion people had considerable variance. Bobby Green, who
was a union man up until 1960, had 176 hours of overtime during the period from
September to February, as aforestated, and during the same period nonunion em-
ployee Strickland had only 641/2 hours of overtime, while Venable himself, as an
alleged discriminatee, had 681/2 hours of overtime in the above period. Venable
further testified that on many occasions during the winter of 1959 he would also do
maintenance work to complete his 40 hours.
In the final analysis here Manager Black testified that he cut his hours from 48
to 40 in his efforts to save money. In the period from September to February the
overtime paid Venable, union employee Mayhar, and nonunion employee Strickland,
as aforestated, shows that the Company did save money by a reduction in hours. In
the September to February period, there were approximately 20 weeks. Had the
Company continued these employees on a 48-hour week the additional working
hours per employee for this period would have been about 160 hours, and which
far exceeds the actual overtime hours paid under a 40-hour week.
In accordance with the above, and under the circumstances here, I find and con-
clude that there is insufficient evidence to establish that the Company discriminatorily
changed the working conditions and tenure of employment of Thomas D. Venable.
I shall, therefore, recommend that the allegation as to Venable be dismissed.
6. Alvin Mayhar
Mayhar testified that before the strike he worked as a crusher tender and received
48 hours a week. Mayhar testified that after the strike he worked a 40-hour week
on the same job, but that employees Ray Parsons and Bobby Green received more
work after the strike than he did.
Conclusion
Here again the contention and allegation is in the change of hours. Mayhar's
contention that Parsons and Green received more time than he did is correct as
previously indicated, but I am unable to find that this evidence in this instance con-
stituted discrimination. Mayhar admitted in his testimony that Green was a union
man at the time of the strike and so remained until early 1960. Mayhar also
testified that he missed some working time after the strike due to deaths in his family,
and that he was not a mechanic. In this respect the Company established that on
many occasions there was maintenance work to do on weekends, and that additional
time worked by Parsons and Green reflected hours that were involved in maintaining
the crusher, and that they had a better aptitude for such work than others including
Mayhar.
Again it is noted that the difference in working hours, in the period between
September and February, as aforestated, reflected a considerable variance among
the employees in the crusher operation. It is noted, however, that nonunion em-
ployee Strickland had less hours than Mayhar. It appears to me that the total
hours Mayhar worked after the strike mainly hinged on his ability and. availability,
and his union activity was not a factor. In accordance with the above, I shall,
therefore, recommend that the allegation as to Mayhar be dismissed.
7. P. M. Mandoza
Mandoza testified that before the strike he worked as a truckdriver and was getting
between 48 and 54 hours a week, but that after the strike got around 40 hours and
that he had to take 1 day off during the week.
Mandoza testified that the union drivers did not receive as many hours after the
strike as nonunion drivers. In this respect Mandoza stated that Carl Young worked
14 Louie Nowak was offered 48 hours upon his return, and also Boney was put back on
48 hours for some time after his return.
AMERICAN AGGREGATE CO., INC. & FEATHERLITE CORP. 1411
7 days straight and Young was nonunion ; and that Junior Howell was nonunion
and worked 40 hours, but stayed on during occasions after the usual quitting time,
and that Howell also drove a grease truck on Saturdays which was normally oper-
ated during the week by Gino Solignani who was a union driver. Mandoza testified
that both Ray Mayhan and Charlie Nowak were union drivers , and that they also
only received about 40 hours a week after the strike.
Manager Black testified and established that after the strike he created a job
called "relief truckdriver and shale crusher operator," and that Carl Young was
placed on this job. Black also credibly testified that company payrolls from
October 19 , 1959 , to February 27, 1960, showed that in this period union driver
Mandoza worked 8271/2 hours, and that for the same period union driver Charlie
Nowak worked 8371/2 hours. Black further testified that in the same period non-
union driver J. A. Howell received 7751/2 hours. The Respondent argues that
Carl Young had two jobs and therefore is not comparable to the other drivers.
Conclusion
Mandoza claims shorter hours after the strike as compared to nonunion drivers
Young and Howell , and, therefore , the Company discriminated against him because
of his union activity . The record does not support this contention.
By Mandoza's own testimony he did not desire the job of relief truckdriver "and
crusher operator when all drivers were asked by the Company if they wanted it.
Carl Young then was given this job and as a result drives a truck as relief man for
4 days and relieves the shale crusher operator on 2 other days.
Mandoza claimed that nonunion driver Howell stayed on after working hours
when union drivers were off. Mandoza's testimony in this respect is not corrobo-
rated , and is refuted by the company records which showed that union drivers
Mandoza and Charlie Nowak both received more hours from October 10 , 1959, to
February 27, 1960 , than nonunion driver Howell.
In accordance with the above , I find and conclude that there is insufficient credible
evidence that the Company discriminatorily changed the working conditions and
hours of employment of Mandoza , and I shall recommend that this allegation 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
Having found that the Respondent has discriminated against D . D. Foster , Archie
Hatton , and Louie Nowak in regard to their hire or tenure and conditions of em-
ployment, it will be recommended that it offer to Foster and Nowak immediate and
full reinstatement each to his former or substantially equivalent position , without
prejudice to seniority and other rights and privileges previously enjoyed. That
Respondent further make Foster whole for any loss of pay he may have suffered
by reason of the Respondent 's discrimination against him, by paying, based upon
the difference between the amount actually paid to him since the beginning date of
the discriminatory action on September 15, 1959 , and the amount that would nor-
mally have been earned absent the discrimination . I shall further recommend that
Nowak also be made whole for any loss of earnings sustained by payment to him
of a sum of money equal to the amount he would have earned from September 15,
1959 , to the date of offer of reinstatement less his net earnings during this period.
Backpay shall be computed in accordance with the Board 's Woolworth formula.15
Earnings in one particular quarter shall have no effect upon the backpay liability for
any other quarter. It will be recommended that the Respondent make Hatton whole
for any loss of pay he may have suffered by reason of the Respondent 's discrimina-
tion against him, by paying to.him a sum of money covering his loss of pay, based
upon the difference between the amount actually paid to him since the beginning
date of the discriminatory action on September 15, 1959, and the amount that would
normally have been earned absent the discrimination up to November 25, 1959.
I shall further recommend that the Respondent , upon request, make available to the
15P. W. Woolworth Company, 90 NLRB 289.
1412 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board or its agents, for examination and copying , payroll records and reports and.
all other records necessary to analyze the amount of backpay due.
Having found that the Respondent has unlawfully refused to recognize or to bar--
gain with the Union as the representative of its employees in an appropriate unit, it
will be recommended that the Respondent be required upon request to extend'
recognition to and to bargain with the Union.
In view of the nature of the unfair labor practices found to have been committed
on the record in this case, and of the unfair labor practice found to have been com -
mitted by the Respondent in the immediately preceding unfair labor practice pro-
ceeding, the commission of similar and other unfair labor practices reasonably may
be anticipated . I shall therefore recommend that the Respondent be ordered to
cease and desist from in any manner infringing upon rights guaranteed to its em-
ployees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact , and upon the entire record in
the case , I make the following:
CONCLUSIONS OF LAW
1. United Stone and Allied Products Workers of America , AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
2. American Aggregate Company, Inc. and Featherlite Corporation are em
ployers within the meaning of Section 2(2) of the Act.
3. All production and maintenance employees at Respondent 's Ranger , Texas,
facility , excluding office clerical and professional employees , guards, and all super-
visory employees as defined in the Act , constitute , and have at all times material to
this proceeding constituted , a unit appropriate for the purposes of collective bargain--
ing within the meaning of Section 9(b) of the Act.
4. United Stone and Allied Products Workers of America , AFL-CIO, was on and'
since April 1959, and at all times since has been , the exclusive representative of all
the employees in the aforesaid appropriate bargaining unit for the purposes of
collective bargaining within the meaning of Section 9(a) of the Act.
5. By refusing to bargain collectively in good faith with the Union as the exclu-
sive representative of the employees in the aforesaid appropriate unit, the Respond-
ent has engaged in and is engaging in unfair labor practices within the meaning of-
Section 8 (a)(5) of the Act.
6. By discriminatorily changing the conditions , tenure , and terms of employment,..
the Respondent has engaged in and is engaging in unfair labor practices within _the^
meaning of Section 8(a)(3) and ( 1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Construction and General Laborers Union Local No. 639, Inter,
national Hod Carriers , Building and Common Laborers Union
of America , AFL-CIO [Miller-Karr and Company , Inc.] and'
Tracy D. Elliott
Mid-Ohio Valley Building and Construction Trades Council;.
AFL-CIO, and its agent , Robert L . Ward and Tracy D. Elliott..
Cases Nos. 9-CB-891 and 9-CB-898. Mardi 17, 1961
DECISION AND ORDER
On October 24, 1960, Trial Examiner Earl S. Bellman issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had not engaged in and were not engaging- in the
unfair labor practices alleged in the consolidated complaint and rec-
ommending that the complaint be dismissed in its entirety ,. as set.
130 NLRB No. 146.