Carolina Quality Concrete Co.

National Labor Relations Board - Board Decisions

Sep 30, 1971

193 N.L.R.B. 463 (N.L.R.B. 1971)

CAROLINA QUALITY CONCRETE CO.
Carolina Quality Concrete Co. and J .C. Michael, Boyd
Houck , Joseph Matherly , Ronald Mitchell. Cases
11-CA-4442-1, 11-CA-4442-2, 11-CA-4442-3,
and 11-CA-4442-5
September 30, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On June 22, 1971, Trial Examiner Thomas F. Maher
issued his Decision in this proceeding, finding that the
Respondent had engaged in and was engaging in
certain unfair labor practices and recommending that
it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondent
filed exceptions to the Trial Examiner's Decision with
a supporting brief and the General Counsel filed an
answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this proceeding, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner. i
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
Respondent, Carolina Quality Concrete Co., Greens-
boro, North Carolina, its officers, agents, successors,
and assigns, shall take the action set forth in the Trial
Examiner's recommended Order.
i The Respondent has excepted to certain credibility findings made by
the Trial Examiner It is the Board's established policy not to overrule a
Trial Examiner's resolutions with respect to credibility unless the clear
preponderance of all the relevant evidence convinces us that the resolutions
were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188
F.2d 362 (C A 3) We have carefully examined the record and find no
basis for reversing his findings The Respondent has also excepted to the
finding that dispatcher Tuttle is a supervisor We find it unnecessary to
reach this issue , since a contrary finding would not alter our ultimate
conclusions or require a change in the Remedy or Order
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
463
THOMAS F. MAHER, Trial Examiner: Upon charges filed
on January 11, 1971 by J. C. Michael, Boyd Houck, and
Joseph Matherly and on January 20, 1971 by Ronald
Mitchell against Carolina Quality Concrete Co., Respon-
dent herein, the Regional Director for the Eleventh Region
of the National Labor Relations Board, herein called the
Board, issued a Complaint on behalf of the General
Counsel of the Board on February 26, 1971 alleging
violations of Section 8(a)(3) and (1) of the National Labor
Relations Act, as amended (29 U.S.C., Sec. 151, et seq.),
herein called the Act. In its duly filed Answer Respondent,
while admitting certain allegations of the complaint, denied
the commission of any unfair labor practice.'
Pursuant to notice a trial was held before me in
Greensboro, North Carolina, at which all parties were
present, represented, and afforded a full opportunity to be
heard, present oral argument, and file briefs. A brief was
filed with me by Respondent on May 24, 1971.
Upon consideration of the entire record, including the
brief filed with me, and specifically upon my observation of
each witness appearing before me,2 I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE NATURE OF THE RESPONDENT'S BUSINESS
Carolina Quality Concrete Co., Respondent herein, is a
North Carolina corporation engaged in the manufacture
and sale of ready-mixed concrete. It owns and operates a
plant located in Greensboro, North Carolina, where, during
the 12-month period preceding the issuance of the
complaint herein, it received products valued in excess of
$50,000 directly from outside the State of North Carolina.
Upon the foregoing admitted facts it is conceded, and I
accordingly conclude and find, that Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted and I accordingly conclude and find that
Chauffeurs, Teamsters and Helpers Local Union 391,
affiliated with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
herein called the Union, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ISSUES
1. Interrogation of employees and advice to them that
i Upon motion of counsel for the General Counsel the Complaint was
amended at the trial to include a further allegation of interrogation of
employees as interference, restraint , and coercion to which Respondent
interposed its denial
2 Cf Bishop and Malco, Inc, 159 NLRB 1159, 1161.
193 NLRB No. 71
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
layoffs were caused by union activities as unlawful
interference, restraint, and coercion.
2. Discriminatory nature of employee discharge and
layoffs.
IV. THE UNFAIR LABOR PRACTICES
A. The Respondent's Business Operations
The preparation and sale of ready-mixed concrete entails
not only a specialized plant operation directed to loading
mobile mixers with appropriate ingredients but it also
requires a degree of precision and attention to send the
correct number of trucks to the appropriate customers with
a sufficient quantity of cement to insure a continual flow to
the job and a full utilization of the mobile equipment. This
is accomplished by a studied scheduling of jobs and a
dispatching system utilizing, among other techniques, two-
way radio communication.
Donald L. Cockerham is vice president of the corpora-
tion and, as manager of the concrete division, is responsible
for its operation, including the hiring of its drivers. Curtis
Laughlin, Jr. is the executive vice president in charge of
sales and is the official who appears to be most conversant
with the fluctuations of the business and the prospects for
future operations in the community.
The dispatching of trucks is handled by three dispatchers
operating on a modified staggered schedule which requires
one dispatcher to open the plant in the early morning and
another to close it down at night. Included among the
dispatchers is J.C. Tuttle, whose activities bear significance
to the subject matter of this case and who, together with
other dispatchers, is claimed by Respondent not to possess
supervisory authority, an issue before me here.
As previously noted, the dispatcher assigns drivers and
trucks of specific size to jobs, in rotation, giving due
attention to the size of the order to be filled, the driving
distance and like factors. Dispatchers have no authority to
grant time off to the drivers nor to excuse absences. They
do, however, have authority to adjust a driver's timecard to
reflect that he was being paid for a lunch period during
which he was required to work. Also, according to
Cockerham, "in the event that there is no concrete to be
hauled, and there are some jobs that need to be done
outside, the dispatchers would quite often ask a man to do
it, and most generally they help him with it." When pressed
to explain the force of a dispatcher's "suggestion" in this
respect Cockerham conceded that the work was expected to
be done.3
While it does not appear from the testimony that
dispatchers generally have authority to grant time off or to
hire or recommend hiring Employee Charles Cox credibly
testified that Tuttle had given him time off to attend a
funeral. And employee Boyd Houck credibly testified that
before he was hired Tuttle had asked him if he would be
interested in working for Respondent and thereafter got in
touch with him to report to work, and upon reporting
explained the wage structure to him.
Over and above the foregoing record details which clearly
3 Employee J C. Michael credibly testified that Dispatcher Tuttle
assigned him such tasks as loading and unloading freight cars and the
taking of stock inventory
describe authority comparable to that required to meet the
statutory standards for supervisor, as described in Section
2(11) of the Act, there is in the record the findings and
conclusions in Case 1 I-RC-3270, a representation proceed-
ing initiated by a petition filed in February 1971, which
concerns the same bargaining unit in which the Union had
lost the election in February 1970. At a hearing on this most
recent petition, held on February 25, 1971, it was stated in
behalf of Respondent as follows:
The Company's position is that while these dispatchers
may specifically have all the supervisory qualifications
as normally used by the Board in determining a
supervisor, they act in Mr. Cockerham's absence, they
have certain recommending authority which is listened
to very carefully, and we consider them more a part of
management than a part of the regular employee group.
From the operational stand-point we would not want to
have them incorporated in a contract covering our
general employees. I would agree with the Union's
position in their initial position that they should be
excluded.
Thereafter in the Decision and Direction of Election issued
by the Regional Director dispatchers were excluded from
the bargaining unit with the specific statement that:
The parties also agreed to the exclusion of three
dispatchers, apparently on the basis of their functions as
supervisors within the meaning of the Act. According to
the Employer the dispatchers act in the absence of Vice
President Cockerham, make recommendations which
are carefully considered, and are regarded as being
more a part of management than the regular employee
group.
Upon the findings I have made based upon the testimony
adduced at the trial before me and detailed above,
supplemented by the previous findings made by a Regional
Director on March 4, 1971 in his Decision and Direction of
Election in Case 1 I-RC-3270, as quoted above, I conclude
and find that Respondent's dispatchers, including J. C.
Tuttle, are supervisors within the meaning of Section 2(11)
of the Act.4
B. Union Activity and Respondent's Interest in it
Union interest at Respondent's plant prior to the fall of
1970 was not, as we can see from the foregoing, a new
phenomenon. An organizing campaign a year earlier had
culminated in the filing of the representation petition in
Case 11-RC-3059 on February 5, 1970. In the election
thereafter conducted the Union lost by a vote of 4 to 16.
Following this defeat and in view of the Board's
requirement that a new election may not be held for a year
thereafter, no organizing activity occurred until mid-
December when Employees Boyd Houck, Joseph Matherly,
and Ronald Mitchell appeared at the headquarters of the
Union and asked R. H. Hogan, the Union's organizer, for
union cards with which to sign up the employees at
Respondent's plant. Reminding the three employees that
the required year had not yet elapsed Hogan suggested that
they restrict their organizing efforts to obtaining the names
4 Amalgamated Clothing Workers v N L R.B (Sagamore Shirt Co.), 365
F 2d 898 (C A D C., 1966)
CAROLINA QUALITY CONCRETE CO. 465
of interested employees, and they would be signed up later.
On or about December 27, 1970, employee Houck returned
to Hogan with the list of names
Respondent had already expressed an interest in the
plans of the Union even before the drivers set about to
revive the campaign. As early as March 1970, following the
first election, when employee Joseph Matherly was hired,
he was asked by an unidentified official6 how he felt about
the Union When he replied that he thought it was "pretty
good" he was told that if another vote came up he might
feel free to vote as he saw fit.
In early October, as a number of the drivers were
delivering cement to a construction job at the local Sears
project, employee J C. Michael and other drivers had
occasion to visit briefly with a union official of Michael's
acquaintance who happened to be at thejobsite. Upon their
return to the plant employee Hanner, who was one of the
drivers in the Sears delivery group and had observed the
conversation but had not participated in it, asked Michael
what the union official had to say Shortly thereafter, prior
to leaving for the evening, Michael went into the plant
office where he met Vice President Cockerham. Cockerham
asked him what the union man had had to say. To which
Michael replied that it was a usual conversation and then,
seeking to defend himself from what he appears to have
viewed as a slight, replied to Cockerham, "If somebody
came in and told you I'm an agitator and trying to organize
the Union again, they're telling you a G-d--lie " To which
Cockerham replied, "They've got to have something to talk
about," thus suggesting that such was the import of a
conversation with a then otherwise unidentified individual
whom I assume to have been Hanner. Sometime thereafter,
in mid-December, shortly before the layoff of employees,
which will be considered in detail hereafter, employee
Hanner was in one of the plant offices when Cockerham
came in and asked Hanner "who he thought was nagging
the Union on." Hanner told him it was Houck and
Mitchell He also told Cockerham that Employee Matherly
had a part-time job, a fact that has been conclusively
determined elsewhere in the record Cockerham's response
to Hanner was for him "to keep listening." 7
D The Reduction of Driver Personnel
1. The discharge of J C Michael
Employee J. C. Michael was a driver with 3-1/2 years
seniority at the time of his discharge on October 19, 1970.
He was the brother of David Michael whose employment as
a driver had been terminated 10 months earlier and who
had been active in the affairs of the Union in the organizing
campaign prior to the first election The reasons for this
termination are not in issue in this proceeding. It was
Driver J. C. Michael, however, who had been questioned by
Cockerham about his conversation with the union repre-
sentative a week prior to the events detailed hereafter
(supra).
5 The credited testimony of R H Hogan
6 This incident was not alleged in the complaint as a violation of the
Act and it is considered at this point only for purposes of background
° I do not credit Cockerham's denials of the conversations attributed to
him
To fully understand the significance of Michael's
discharge it is necessary to recount Vice President
Cockerham's version of it. This is not to be misunderstood
as reliance upon Cockerham's testimony but rather as an
explication of Respondent's motivation in the matter. So,
on October 15, in the mid-afternoon, according to
Cockerham:
I was in the office upstairs looking for some papers, and
I noticed out the window that Mr. Michael's truck,
which at that time was, I believe, truck No. 80, which he
was in the process of washing out, he pulled around to
the place where he parked, and from that position I
observed him messing with the inspection sticker on the
truck. Another truck in the same process of washing out
came around, then Mr. Michael got out of his truck,
and I went back over to the concrete hatching office.
The driver that observed the same thing that I observed
came in and called my attention to it.
Cockerham identified his informant as driver Dewey
Hanner, the same driver who several months later at
Cockerham's request, identified the ones "nagging the
Union on," and was told to keep listening (supra).
Cockerham checked the state inspection sticker on
Michael's truck later that same day and found two-thirds of
it to have been loose from the window pane.8 Cockerham
checked Michael's truck again early the next morning,
October 16, and found the sticker intact. He checked the
truck for a third time in mid-afternoon after Michael had
left and found the sticker missing. On the following
workday, Monday, October 19, Cockerham confronted
Michael with the fact that the inspection sticker on his
truck was missing Michael told him he knew nothing about
the sticker and specifically denied having removed one.
Then, again according to Cockerham, not being satisfied
with Michael's reply he drove him home (Michael was
without a car that day) and told him he wanted to think
about it. That was Michael's last day at work and it does
not appear from Cockerham's testimony how Michael was
notified that he was through.
Michael was more specific about his termination and, I
find, more credible. Thus he testified that after Cockerham
confronted him with the sticker loss and they had searched
the truck cab for it Cockerham then said, "I am going to
have to have another sticker put on there and you can't
have it (the truck) today." Whereupon Cockerham took
Michael home and told him to call the next day. Michael
did so asking Cockerham when he wanted him to come
back Cockerham said, "I've decided to leave it like it is,"
and hung up. Since then Michael has tried on five or six
occasions to get a layoff slip from Cockerham but the latter
either avoided him or was unable to find the layoff slip
which he claimed to have had prepared. And on one
occasion when Michael asked if he was being fired or laid
off and if he were being accused of tearing off the
inspection sticker Cockerham stated he was not so accusing
Michael and that he would not give him information on his
termination, saying simply, "I don't need you anymore."
8 The significance of the removal of a state vehicle inspection sticker
appears to be its resale value for illicit use on a vehicle that could not pass
state inspection There is neither evidence nor implication by anyone that
Employee Michael was involved in such a practice , and nothing stated
herein is to be deemed as suggesting such a charge
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cockerham testified, however, that when Michael asked
him for a layoff slip he refused to give it to him, explaining
in his testimony that he did not intend to put in writing that
he was letting a man go for stealing an inspection sticker,
and thus give himself another legal problem - the possibility
of a libel suit.
When specifically asked at the trial why he had
discharged Michael on October 19, Cockerham affirmed
that it was because he had illegally removed the sticker
from the truck.
2. The layoffs
Late in November 1970 a meeting of Respondent's top
echelon was held at the home of President Robert Dinkel
where the economic conditions of the enterprise were
surveyed, the prospects of future business considered, and
the decision made to lay off six drivers. Present with
President Dinkel were Vice Presidents Cockerham and
Laughlin. It was determined that only those who had less
than a year's seniority would be considered for layoffs; and
there were 12 drivers in this category. Regardless of the
selection, it was decided, no announcement would be made
until after Christmas.
In determining the drivers to be selected for layoff there
were , according to Cockerham, a number of factors to be
considered . Among these were the family situation of the
men, marital 'status, the employees' probability of remain-
ing with the Company, care of trucks, driving habits, and
attendance record. Upon consideration of the 12 who were
in the category of being employed for less than a year, 6
were selected for layoff and notified on December 30, 1970,
of their termination . Among these were Boyd Houck,
Joseph Matherly, and Ronald Mitchell, as to each of whom
it is alleged that the selection for layoff was not for the
reasons assigned by Respondent but because of their union
membership and activities . An analysis of specific reasons
assigned for the selection of each follows:
Boyd Houck was the only driver as to whom Respondent
raised a specific reason for selection. Thus President Dinkel
testified that during July and August 1970 he had
frequently observed a driver recklessly driving his truck
into and around the plant yard and he became very
disturbed at this practice, particularly as the Company's
insurance rating was already in jeopardy. In a burst of
concern for the safety of the trucks and the men Dinkel
asked W.A. Dennison, the Company's official in charge of
truck maintenance , to identify the driver for him.
Dennison , according to Dinkel, identified Houck to him
and told him that Houck had the reputation of a reckless
driver.9 And, still in August, Dinkel resolved to rectify the
situation . He continued to observe Houck's reckless
handling of his truck throughout October and early
November and testified that during this same period he was
even more conscious of the insurance problems that
continued to plague the Company. Finally, when Dinkel
met with Cockerham and Laughlin in late November and
they were confronted with the necessity of laying off drivers
Dinkel insisted that Houck must go.
9 Dennison was called as a witness for Respondent but was not asked to
corroborate Dinkel's account of Houck 's driving propensities nor indeed
was he questioned about this incident at all Houck credibly denied that he
A consideration of the entire record compels me to reject
Dinkel's account of the selection of Houck for layoff and
Respondent's reliance upon it. Upon my observation of
Dinkel I find it incredible that a responsible businessman,
admitting to his serious concern for safety and for a
tenuous insurance rate, would sit at his desk and observe,
with continuing frequency over 4 or 5 months, the reckless
driving he attributed to Houck and yet not convey to
Houck one word of reprimand or caution; and finally, still
without so advising him of the true reason for his selection,
include the man on a list of economic layoffs. Because this
testimony so defies the reality of the total situation I do not
rely upon it in any respect. On the contrary, I have Vice
President Cockerham's assertion before me when he urged
the economic reasons for layoff that he would not have laid
off Houck for driving too fast around the yard. However, I
will reserve until elsewhere in my decision further analysis
of Houck's layoff as it relates to the other drivers laid off
with him.
Joseph Matherly was hired on March 9, 1970. When he
was laid off on December 30 Cockerham did so by calling
him into the office where he explained that they had lost a
couple of big jobs and the layoff would be necessary. He
went on to say that he understood the men were going to be
leaving the Company anyway so that laying them off would
not hurt their families. He assured Matherly that he had
done a good job. Several days later when Matherly returned
to the plant with Houck the latter engaged Cockerham in
conversation, asking him why they had been selected.
Cockerham simply said to Houck, "Because of lack of
driving experience," and turning to Matherly, said, "Truck
cleanliness."
Matherly had not previously been reprimanded for a lack
of truck cleanliness or anything else. According to
Cockerham he had had two accidents, one involving
damage caused by backing into a customer's driveway and
the other being the hitting of a bus from the rear. Matherly
credibly denied the backing-up incident, suggesting that it
may well have occurred when another driver had been
assigned the use of his truck, no. 40. He admitted to the bus
accident but the extent of the injuries credibly described by
him was considerably less than Cockerham described in the
record. In any event the subject of the accident was not
pursued by Respondent in its defense and Cockerham
conceded that he would not have laid off Matherly for the
accident, absent the alleged economic justification in
December. Cockerham's concession in this respect is
indeed borne out by his later testimony. Thus he admitted
that three more senior drivers, Faulkner, Dalton, and
Suggs, had had serious accidents, the first two having
turned over their trucks and the latter having hit a bus. All
three are still employed.
Cockerham placed considerable stress upon information
he had received to the effect that Matherly was one of the
drivers, with Employee Mabe, who had planned to take
other employment. Cockerham's sources of information as
to the men's expected departure were claimed to be a
customer and a secretary in the office, Mrs. Helen Smith.
had ever been reprimanded for fast driving or that he had had ever been
given the nickname "cowboy," as claimed by Respondent
CAROLINA QUALITY CONCRETE CO. 467
The customer was never identified nor his information
explicated. Mrs. Smith's account of the intelligence she
supplied leaves much to be desired. Thus she recounts
Driver Mabe coming into the office on routine business. In
the course of a conversation which followed Mabe, she
claimed, told her that he and Matherly had been talking
about leaving and that on the following Monday they and
several other drivers were going to work for the Coca-Cola
Bottling Co.10 She made a record notation of all the names
but threw it away shortly thereafter and cannot remember
who else was mentioned. She reported the conversation to
Cockerham the following day, but there is no indication
that this report was ever followed up by Cockerham. The
fact is that none of the men ever did leave for other jobs
regardless of what may or may not have been told Mrs.
Smith, and what she may or may not have told Cockerham.
Nor did Cockerham ever confront Matherly or the other
drivers with the information supposedly supplied him. And
finally, Matherly credibly denied ever having any intention
to leave, testifying instead that he was then working at a
part-time fob.
One final consideration of Matherly's situation was his
family situation in the light of the criteria that Respondent
claims to have used in its selection for layoff. Matherly was
married and had four children.
Ronald Mitchell was hired as a driver on August 1970 and
credibly testified that at that time he inquired if layoffs
were contemplated because he had a family to consider.
Cockerham replied that "they did not have any layoffs
from work, for the fact that there was always something for
the drivers to do." Three or four weeks prior to his layoff
(and presumably at a time when the layoffs were being
considered, supra, Mitchell went to Cockerham to obtain a
wage advance. In requesting it Mitchell told Cockerham he
"had to have forty hours of work a week to make a living,
because I had a wife and three kids." To which Cockerham
replied, "Well, as long as you're here I'll see that you get
forty hours, I guarantee it." During Mitchell's employment
he had a good driving record with no accidents.
Mitchell's credited account of his notification of layoff
follows:
The day of the layoff, Mr. Cockerham, after he named
the men, I went up and asked him why, I told him, I
said, "Mr. Cockerham, I've got three children, I live
from week to week, I don't have any money saved up,"
and I said, all my bills are due and some of them are
past due now. You are putting me in a bind." I said,
"Why?"
I said, "I worked on Thanksgiving day when you asked
me to, I worked on Saturdays when you asked me to
I've worked every time you asked me to." And I said,
"Why')"
And he hung his head down, he said there was some
other reasons on it, and he told me he considered the
family status of all of them, you know, the same stuff he
told the first time, and then he hung his head down and
said there were other reasons, and he walked off.
There is no dispute that among the drivers with less than a
10 Mahe was not called as a witness
year of employment who were not laid off there were men
either unmarried or without families.
In addition to the foregoing there are facts which apply in
common to the three men who were laid off. These are the
men who were observed conversing with the union
organizer at the Sears job, and Houck and Mitchell were
the ones reported by driver Hanner to Cockerham as
"nagging on" the Union (supra,).
An event of particular significance to the fortunes of
Mitchell and Matherly occurred several days before their
layoff. The two were seated in the drivers' room awaiting
assignment and were engaged in a conversation concerning
the Union. As they were talking they heard a distinct click
on the speaker element of the plant intercom system,
followed by a low humming or buzzing sound.
The intercommunication system at the plant involved a
master set located on the dispatcher's desk with units in the
various other areas of the plant, including the drivers' room.
From descriptions supplied by the record it appears that
two-way communication can only be initiated in the
dispatcher's office at the master unit. The system is
activated there by pressing a specific key for the station to
be called. This activation of the system then establishes
two-way voice communication and listening as well. Thus
the key would be pressed, the dispatcher would speak to
someone in the drivers' room, for example, and anyone in
that room within calling distance of the unit on the wall
could hear the dispatcher's voice, could reply from where
he was seated, and could be heard in the dispatcher's room.
In the operation of this two-way system two features were
noted: When the system was activated a click could be
heard, indicating that the key switch had been depressed on
the master set; and while this system remained activated
and the line open, a buzz or similar distinctive background
hum could be detected, and voices could be heard over the
system.
On the occasion noted above, two drivers, Matherly and
Mitchell, were, as previously stated, discussing the Union.
At a point in their conversation they heard a click on the
speaker, an indication to them that someone was about to
talk to the drivers' room. The background hum was heard
by both of them as they waited for the message that
inevitably would follow. Nothing followed. The men then
took up their conversation, fully aware that they could be
heard at the other end of the line. Matherly spoke up and
said, "Well I'm going to vote for it twice. I want them to
come in and I'll vote for it twice." Mitchell then
contributed, "Well, I'm certainly going to vote for it." At
one point Mitchell said to Matherly, "Joe, the speaker's
on," to which Matherly replied, "I don't give a damn if it
is."
Ten or fifteen minutes later the two drivers went into the
dispatcher's office where Cockerham and Tuttle were at
work. Mitchell, whose account of this incident I have relied
upon as it is corroborated by Matherly, credibly testified
that on past occasions he had gone into the dispatcher's
office and observed Dispatcher Tuttle listening to the
conversations of men in the drivers' room.ii
As the laid off employees were notified of their
him I do not credit Cockerham's denials upon my observation of him as a
1i Tuttle was not called as a witness to refute the conduct attributed to witness.
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
termination on December 30 they were given their final
checks. When Employee Houck received his he noted an
error and called it to Vice President Laughlin's attention
asking him at the time for a layoff slip. Laughlin referred
Houck to Cockerham who was then out of the office.
Houck, while waiting for Cockerham to return, engaged
Tuttle in conversation, asking why he was laid off. Houck's
undenied and credited account of Tuttle's reply was:
He said, "Well, all I can say is, it comes down to one
thing." I said, "What?" He said, "Union " He said,
"That's all it can be, it's union activity " 12
Periodic meetings of drivers were held by Respondent.
One such meeting was held in January 1971, several days
after the December 30 layoffs. On this occasion President
Dinkel spoke to the men. He told them they were going to
get a raise because they had done better in November and
December 1970 than in the same months of the previous
year. He told them, however, not to expect the raise until
March. 13
Later in February 1971 employee Cox requested a loan of
Cockerham, following past company policy. Cockerham
suggested that it would be better that he be given an
advance on his vacation pay. By way of explaining the
reason for this Cockerham said that Vice President
Laughlin wanted to check out the whole arrangement with
their lawyer, inasmuch as the Union had filed a petition. He
continued, "You know all about the Union coming in."
When Cox replied that he did Cockerham continued,
"Well; that's the reason we let three of the guys go. You
know who I'm talking about." He concluded the conversa-
tion by adding that it be kept confidential. 14
E Analysis and Conclusions
The record abounds in figures, estimates, and computa-
tions calculated to establish for the General Counsel that
Respondent 's 1970-71 business prospects were good, and
for the Respondent that they were bad. Whatever
conclusions are reached in this respect it is the selection of
drivers for layoff and not necessarily the layoff itself that is
of primary significance to the allegations of discrimination
in this matter.
Suffice it to say that out of all this welter of economic
data President Dinkel has put the issue to rest by his
January 1971 announcement that November and Decem-
ber 1970 had been better than the previous year (supra,). I
am not, therefore, disposed to belabor Respondent's
economic condition at the expense of more basic considera-
tions , namely its motive for selecting three known union
protagonists for layoff and its earlier discharge of a union
adherent on a contrived excuse.
Respondent had been quite conscious of the Union. This
it has manifested by the interest it showed in its employees'
membership and activity. Thus when Matherly was hired
he was asked how he felt about the Union.15 When it was
learned that employee Michael had been conversing with a
12 Tuttle was not called as a witness
13 The credited testimony of employee Cox who also credibly testified
to receiving a considerable amount of overtime during November of 1970
Dinkel did not comment on Houck's testimony when called as a witness in
Respondent 's behalf
14 Cockerham admits the conversation took place with Cox and that the
union organizer at the Sears Job in October, in the company
of Houck , Matherly , and others , Cockerham had asked him
what the union organizer had to say . This questioning, it is
to be noted , preceded the questioning of Hanner by
Cockerham, when he learned the names of Houck and
Mitchell as those most active in the Union , when he
inquired of Hanner as to who he thought was "nagging on"
the Union
With such a manifestation of interest in the Union it
becomes more understandable why employee Michael was
discharged for the unexplained loss of a dangling inspection
sticker. Michael was the brother of the driver known to be
most active in the previous union campaign and who was
thereafter discharged . It was Michael whose conversation
with the union organizer was noted and questioned . Absent
these two facts and Respondent 's inordinate interest in
union activity the missing sticker incident could simply be
catalogued as a pecularity of management . Under the
circumstances here, however, it becomes further evidence
of union antipathy , inflicting as it does termination for
union activity by a contrived means.
A review of the facts surrounding Michael's accusation
and discharge discloses an exercise in pure fantasy. All that
Cockerham saw, and that from a distance , was Michael
"messing" with the sticker on his truck windshield and,
after twice thereafter observing the sticker in its proper
place, found it to be missing . The driver who supposedly
reported that Michael was trying to pry it off , Hanner,
testified at the hearing and was available for corroboration
of the incident . He was never asked about it . The sticker
was never located; no one else observed anything
untoward; and to cap it all, Michael credibly denied having
removed the sticker or knowing anything of its removal.
The termination itself was as fantastic as was the
accusation . Cockerham never came to the point of telling
Michael why he was being terminated ; he was never
available when Michael sought to speak to him about it;
and he refused to provide Michael a layoff slip stating the
reason for the discharge . Finally, when he did give his
reason at the trial as being the removal of the inspection
sticker, Cockerham stated that he refused to put this in
writing for fear of the legal complication of libel. In
essence , Cockerham appears to have been fearful and
unwilling to give in writing what he would have me or the
Board state to be the reason for Michael 's termination. I
understand his reluctance , for I too am not disposed to
consider the sticker incident to be the reason. On the
contrary , upon all the facts and circumstances detailed
herein I conclude and find that employee J . C. Michael was
not terminated for removing the inspection sticker. I deem
this reason to have been contrived by Respondent as a
pretext to remove from its employ a driver whose union
interest and sentiments were known to it and displeasing
This I further conclude and find discriminates against
Michael in violation of Section 8(a)(3) of the Act and
interfers with , restrains , and coerces him and his fellow
vacation pay advance was checked with their attorney because of the
pendency of the Union's petition He denied that he made any reference to
the layoff of the three drivers I do not credit this denial
11 This incident has been cited only to establish a background for what
I find to be antipathy towards the Union (supra)
CAROLINA QUALITY CONCRETE CO. 469
employees in the exercise of their statutory rights in
violation of Section 8(a)(1)
The pattern which Respondent followed in eliminating
Houck, Mitchell, and Matherly is equally evident. At the
outset, in the face of President Dinkel's comment upon the
profitable business period just past, it is not necessary to
consider whether these three men's layoffs were economi-
cally motivated, even in part. Of the 12 available for layoff,
their respective selections and the reasons advanced for
them cannot withstand the test of candor. Here we have
criterion which favored the retention of family men and
two fathers of children are selected; the criterion of
accident records is cited and Suggs, Dalton, and Faulkner,
all with accident records, are retained over Matherly who
denied one reported accident and credibly minimized the
other; the criterion of retaining men who plan to stay with
the Company and letting Matherly and Mitchell go without
even verifying the alleged rumor that they were taking other
employment, a rumor scotched by their continuance on the
job long after they were reported to be leaving. And finally
the criterion of a poor driving record as it applies to Houck,
when he was supposedly observed driving in reckless
fashion over a period of five months and laid off. This man,
never told of his fault, was laid off 4 days after it was
learned that he was one of those "nagging on" the Union.
Finally, added to the inconsistencies noted above we
must consider the highly suspicious use of the plant's
intercom system to monitor the drivers' union conversa-
tions several days before their layoff; an incident which
corroborates the credited testimony which quotes dispatch-
er J. C. Tuttle and Vice President Cockerham as stating that
these men were laid off because of the Union.
Upon the foregoing circumstances and inconsistencies
and upon Cockerham's and Tuttle's quoted remarks I
conclude and find that Boyd Houck, Joseph Matherly, and
Ronald Mitchell were each selected for layoff because of
their union membership and activity, thereby discriminat-
ing against them in violation of Section 8(a)(3) of the Act
and interfering with, restraining, and coercing them and
their fellow employees in the exercise of their statutory
rights in violation of Section 8(a)(1).
Independently, I conclude and find that by the
interrogation of employees by Cockerham and Tuttle
enumerated above and by their respective statements to
employees that Houck, Mitchell, and Matherly were laid
off because of the Union Respondent thereby additionally
interfered with, restrained, and coerced its employees in
violation of Section 8(a)(1) of the Act.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section IV,
above, occurring in connection with its business operations
described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes
i6 Isis Plumbing & Heating Co, 138 NLRB 716
'r In the event no exceptions are filed as provided by Section 10246 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , and Recommended Order herein shall, as provided
burdening and obstructing commerce and the free flow of
commerce.
VI. THE REMEDY
It has been found that Respondent has violated the Act in
several respects. I will accordingly recommend that an
order issue requiring it to cease and desist therefrom; and
because the nature of the unfair labor practices committed
here are of such gravity as to present a threat of future
violations of the Act I shall recommend that Respondent
cease and desist from in any other manner interfering with,
restraining, or coercing its employees in the exercise of their
statutory rights. Affirmatively I shall recommend that
Respondent offer employment to J. C. Michael, Boyd
Houck, Joseph Matherly, and Ronald Mitchell with
backpay to each of them from the date upon which their
respective employment was terminated, such backpay to be
computed in the customary manner with interest at the rate
of 6 percent per annum,16 and that it post appropriate
notice of compliance with such order as the Board issue.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, and pursuant to Section
10(c) of the National Labor Relations Act, as amended, I
hereby issue the following recommended: 17
ORDER
Carolina Quality Concrete Co., its officers, agents,
successors, and assigns shall:
1. Cease and desist from:
(a) Unlawfully interrogating its employees concerning
their union membership, sentiment, and activity.
(b) Discouraging membership in Chauffeurs, Teamsters
and Helpers Local Union 391, affiliated with the Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, or any other labor
organization by terminating the employment of its
employees and thereafter failing and refusing to reinstate
them because they engaged in concerted union activities
and by stating to its employees that the termination of
employment was for such purposes.
(c) In any other manner interfering with, restraining, or
coercing its employees or unlawfully discriminating against
them in the exercise of rights guaranteed them by Section 7
of the Act.
2 Take the following affirmative action which it is
deemed will effectuate the policies of the Act:
(a) Offer reinstatement to J. C. Michael, Boyd Houck,
Joseph Matherly, and Ronald Mitchell whom it terminated
and thereafter failed and refused to reinstate , dismissing, if
necessary, individuals hired since the date of their
respective terminations.
(b) Make whole the aforesaid employees in the manner
set forth in "The Remedy."
(c) Preserve, and upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
in Section 102 48 of the Rules and Regulations be adopted by the Board
and become its findings, conclusions, and Order, and all objections thereto
shall be deemed waive for all purposes
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this order.
(d) Notify immediately the above-named employees, if
presently serving in the Armed Forces of the United States,
of their right to full reinstatement, upon application after
discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act.
(e) Post at its Greensboro, North Carolina, facility the
notice attached hereto as "Appendix " 18 Copies of said
notice, on forms provided by the Regional Director for
Region I I shall, after being duly signed by the Respondent,
be posted immediately upon receipt thereof in conspicuous
places and will be maintained for a period of 60 consecutive
days. Reasonable steps shall be taken to insure that said
notices are not altered, defaced or covered by any other
material.
(f) Notify the said Regional Director in writing, within 20
days from the receipt of the Trial Examiner's Decision,
what steps it has taken to comply herewith.19
18 In the event that the Board 's Order is enforced by a judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
enforcing an Order of the National Labor Relations Board."
19 In the event that this recommended Order is approved by the Board
after exceptions have been filed, this provision shall be modified to read.
"Notify the Regional Director for Region 11, in writing within 20 days
from the date of this Order, what steps the Respondent has taken to
comply herewith "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in Chauffeurs,
Teamsters, and Helpers Local Union 391, affiliated
with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America or
any other labor organization by discharging or laying
off employees or thereafter failing or refusing to
reinstate them because they engaged in union or
concerted activities, or by stating to our other
employees that employees had been laid off for such
reasons.
WE WILL NOT question you concerning your
membership, activities , or sentiments concerning the
aforementioned Union or any other labor organization.
WE WILL NOT in any other manner interfere with,
restrain , or coerce you in the exercise of your rights
guaranteed by the National Labor Relations Act.
WE WILL offer reinstatement to J. C. Michael, Boyd
Houck, Joseph Matherly, and Ronald Mitchell to their
former or substantially equivalent jobs, dismissing, if
necessary, any employee hired since the date of their
respective terminations.
WE WILL make whole J. C. Michael, Boyd Houck,
Joseph Matherly, and Ronald Mitchell for any loss of
pay incurred by them since the date of their termina-
tion.
All of you, our employees, are free to remain, or become,
to withdraw from, or refrain from becoming, members of
Chauffeurs, Teamsters, Helpers Local Union 391, affiliated
with the International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, or any other
labor organization.
Dated By
CAROLINA QUALITY
COMPANY
(Employer)
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions, may be directed to the Board's Office, 1624
Wachovia Building, 301 North Main Street, Winston-
Salem , North Carolina, Telephone 919-732-2300.