Cherokee Culvert Company, Inc.

National Labor Relations Board - Board Decisions

Jul 14, 1982

262 N.L.R.B. 917 (N.L.R.B. 1982)

CHEROKEE CULVERT COMPANY, INC.
Cherokee Culvert Company, Inc. and Construction,
Production & Maintenance Workers, Local
Union 1210, affiliated with Laborers' Interna-
tional Union of North America. Cases 10-CA-
16009 and 10-CA-16882
July 14, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS JENKINS AND HUNTER
On December 11, 1981, Administrative Law
Judge Leonard N. Cohen issued the attached Deci-
sion in this proceeding. Thereafter, the General
Counsel, Respondent, and the Charging Party filed
exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions 2 of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Cherokee Cul-
vert Company, Inc., Macon, Georgia, its officers,
agents, successors, and assigns, shall take the ac-
tions set forth in said recommended Order, except
that the attached notice is substituted for that of
the Administrative Law Judge.
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc.. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 Contrary to the Administrative Law Judge, Member Jenkins would
find that Plant Superintendent Justice's statements to James Sinclair on or
about May 13, 1980, constituted an unlawful solicitation of grievances
and an implied promise to remedy such grievances. The credited testimo-
ny reveals that Justice approached Sinclair and told him that he (Justice)
had never had a chance to talk to Sinclair about the Union. Justice told
Sinclair that the Employer did not need the Union, that they were
having enough problems as it was. Justice said the Union would create
more problems. Justice then said that he was human and made mistakes
and that the employees ought to have been men enough to come and talk
to him about his mistakes. In view of the proximity to the election, Re-
spondent's numerous contemporary violations of Sec. 8(aX)(), and the im-
plicit promise in Justice's statement, i.e., that he had made mistakes but
they could be solved if the employees presented them to him, Member
Jenkins would conclude that Justice's statement violated Sec. 8(aXl).
262 NLRB No. 108
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate our employees
about their union activities, sympathies, and
desires.
WE WILL NOT create the impression that our
employees' union activities are under surveil-
lance.
WE WILL NOT promise benefits to our em-
ployees if they reject the Union.
WE WILL NOT threaten our employees with
economic reprisals if they select the Union.
WE WILL NOT threaten to transfer our em-
ployees if they select the Union.
WE WILL NOT refuse to bargain collectively
with Construction, Production & Maintenance
Workers, Local Union 1210, affiliated with La-
borers' International Union of North America,
as the exclusive representative of our employ-
ees in the certified unit by failing and refusing
upon request to furnish it with information re-
lating to job descriptions, wages, and other
benefits and conditions of employment of em-
ployees employed in the job classifications of
machine operator, mechanic, and mechanic
helper as well as information regarding the
maintenance and repair of trucks when such
work is no longer performed by our employ-
ees.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL furnish Construction, Production
& Maintenance Workers, Local Union 1210,
affiliated with Laborers' International Union of
North America, information relating to job de-
criptions, wages, and other benefits and condi-
tions of employment of employees employed
in the job classification of machine operator,
mechanic, and mechanic helper as well as in-
formation regarding the maintenance and
repair of trucks when such work is no longer
performed by our employees.
CHEROKEE CULVERT COMPANY, INC.
DECISION
STATEMENT OF THE CASE
LEONARD N. COHEN, Administrative Law Judge: This
matter was heard by me on July 13 and 14, 1981, in
917
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Macon, Georgia, pursuant to complaints issued on Sep-
tember 3, 1980,' and May 12, 1981, in Cases 10-CA-
16009 and 10-CA-16882, respectively, by the Regional
Director for Region 10 of the National Labor Relations
Board. The complaints, which were consolidated for
hearing by Order also dated May 12, 1981, are based
upon charges originally filed on July 7, 1980, and April
13, 1981. The complaints allege that Respondent commit-
ted various violations of Section 8(a)(l), (3), and (5) of
the National Labor Relations Act, as amended. Respond-
ent filed timely answers to the complaints in which it
denied having violated the Act.
All parties appeared at the hearing and were afforded
full opportunity to present oral and written evidence and
to examine and cross-examine the witnesses. Upon the
entire record, together with the careful observation of
the demeanor of the witnesses and after careful consider-
ation of the post-trial briefs, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Cherokee Culvert Company, Inc., herein called Re-
spondent, is a Georgia corporation with its principal
office and place of business in Macon, Georgia, where it
is engaged in the manufacture of corrugated steel culvert
pipes. Jurisdiction is not in issue. Respondent admits, and
I find and conclude, that Respondent is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
1l. LABOR ORGANIZATION
Respondent admits, and I find and conclude, that Con-
struction, Production & Maintenance Workers, Local
Union 1210, affiliated with Laborers' International Union
of North America, herein called the Union, is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES-FACTS
AND CONCLUSIONS
A. Background-Complaint Allegations
Respondent manufactures and distributes galvanized
corrugated steel pipe from its Macon, Georgia, plant.
With one exception, the approximately 14 production
and maintenance employees and truckdrivers work under
the direct supervision of Plant Superintendent Dick Jus-
tice, who in turn reports to Hal Jarrard, Respondent's
president and general manager.
In early March an organizing effort commenced
among Respondent's employees and on May 15 the ma-
jority of the employees selected the Union as their repre-
sentative. On May 23 the Acting Regional Director cer-
tified the Union as the exclusive bargaining representa-
tive in the following stipulated unit:
All production and maintenance employees em-
ployed by Respondent at its Macon, Georgia facili-
ty including truckdrivers, machine operators and
mechanics, but excluding all office clerical employ-
' Unless otherwise indicated, all dates are in 1980.
ees, salesmen, professional employees, guards and
supervisors as defined in the Act.
The parties commenced bargaining on June 15 and,
despite meeting on some 25-30 separate bargaining occa-
sions, they had not, by the time of the instant hearing,
reached agreement on a first contract.
The issues raised by the complaints and litigated at the
hearing can be divided into four separate categories.
First, the General Counsel contends that Respondent,
through individual conversations between Justice and
seven employees, unlawfully, and in violation of Section
8(a)(1), interrogated its employees about their union ac-
tivities, created the impression of surveillance of its em-
ployees' union activities, promised its employees' eco-
nomic benefits to reject the Union, and threatened em-
ployees with loss of pay and other reprisals, including
transfer, because of their support of the Union.
Second, the General Counsel contends that Respond-
ent, in violation of Section 8(a)(1) and (3), unlawfully
transferred employee Ernest Woodford from mechanic's
helper to general shop employee because of the employ-
ees' selection of the Union.
Third, the General Counsel alleges that, in violation of
Section 8(a)(1), (3), and (5), Respondent, within days of
the election, unilaterally and without notice to the
Union, changed existing employee benefits by taking
away from its truckdrivers credit cards and by denying
its truckdrivers the privilege of taking their trucks home
overnight because of the employees' selection of the
Union.
Finally, the General Counsel contends that Respond-
ent, in violation of Section 8(a)(5) and (1), failed and re-
fused to furnish the Union with information concerning
the wages, duties, and benefits received by two individ-
uals, machine operator W. Don Williams and mechanic
Thomas Stowe.
B. The Alleged 8(a)(1) Conduct by Justice
1. Facts
In support of these allegations the General Counsel
called seven employee witnesses who all claimed to have
had one or more conversations with Justice prior to the
union election. While Justice does not deny having cer-
tain conversations with these seven employees, his ver-
sion of the conversations, not suprisingly, differs materi-
ally from the employees' versions. According to both the
employees and Justice, each of the conversations dis-
cussed below were one-on-one conversations which are
not subject to corroboration.
a. Conversations with Sinclair
Truckdriver James Sinclair testified that on the
Wednesday before the Thursday election Justice came
up to him and stated that he, Justice, had not had a
chance to talk to Sinclair before this time about the
Union. Justice then stated that Respondent did not need
a union and that they were having enough problems as it
was out there and a union would probably create more
problems. Justice then stated that he was human, like ev-
918
CHEROKEE CULVERT COMPANY, INC.
eryone else, and he had made mistakes like everyone else
but that employees ought to be men enough to come to
him and sit down and talk about the mistakes. Sinclair
answered that Justice knew that, if he, Sinclair, had any-
thing he did not like, he would come talk to Justice
about it. Sometime during this conversation Sinclair in-
formed Justice that he was going to be the union observ-
er at the election.
Justice admitted talking to Sinclair on the day before
the election, but testified that it was limited to Sinclair's
coming to him and stating that he would need to stay
close to the facility the following day since he was going
to be the union observer. Under this account, Justice
merely answered, "Okay." According to Justice, he and
Jarrard, in an earlier conversation, had concluded that
Sinclair was probably sympathetic to the Union and he
therefore was instructed by Jarrard not to talk to Sinclair
about the Union.
b. Conversations with Robert Williams
Truckdriver Robert Williams testified that he had two
conversations with Justice prior to the election. The first
occurred about a month before the election when he was
riding in the yard in Justice's pickup truck. According to
Williams, Justice stated that the employees did not need
a union. Justice then asked him what did the employees
need with a union. Williams responded, "I don't know."
Williams testified that the second conversation took
place about an hour before the election as Williams was
driving his truck into the yard. Justice got up on the run-
ning board and told him to pull his truck around to the
side of the building. As Williams did so, Justice stated
that he needed Williams' vote and would give him a 21-
cent-an-hour raise starting that day and another raise the
following month. Williams testified that prior to this con-
versation he had never discussed a raise in pay with Jus-
tice. Williams did not receive a raise as of the election
day or subsequently.
Justice testified that he had two conversations with
Williams about the Union. The first occurred some 6 to 8
weeks prior to the election at a time when he and Sin-
clair were riding together in Justice's pickup truck. Wil-
liams asked Justice what he thought the employees
should do about the Union. Justice answered that he
really did not know how the rest of the men felt but if
that was what the majority of the men wanted they
should do it. Justice then stated that he could not talk
with Williams at that time because he did not know any-
thing else that he could say. Justice did indicate that he
would get back with Williams when he found out what
he could tell him. Subsequent to this meeting he met
with Jarrard and informed Jarrard of the discussion he
had had with Williams.
Approximately 2 to 3 days before the election Justice
had a second conversation with Williams. At this time he
told Williams that he had found out what he could and
what he could not say about the Union. Justice stated he
felt like they did not need a union, and that the problems
that they might have they could talk about and work
them out. Williams did not say anything other than that
he needed to know something. Justice then asked Wil-
liams for his support in the election. He stated that Wil-
liams had been there a long time and that he thought he
could count on, and would appreciate, Williams' support
in the election. Justice testified that during these conver-
sations he never asked Williams a question and he spe-
cifically denied ever promising him a raise.
c. The conversation with Clarence Williams
Clarence Williams, a laborer, testified that approxi-
mately 2 months before the election he had a conversa-
tion with Justice about the Union. On that occasion Jus-
tice asked him if he had ever been in a union before.
When Williams answered that he had not, Justice then
stated that it would be better to try to keep the Union
out. Williams stated that Justice also said other things
about the Union but that he could not recall what.
Justice admitted having one conversation with Wil.
liams in which the Union was discussed, but places this
conversation on the Monday prior to the election while
the two were riding in his truck to another portion of
the yard. According to Justice, he asked Williams if he
had ever belonged to a union before When Williams an-
swered, "No," Justice stated that he felt like the prob-
lems, if there were any problems, could be werked out
and that he would appreciate Williams' support in the
election.
d. Conversations with Bobby Singleton
Truckdriver Bobby Singleton testified he had one con-
versation with Justice regarding the Union. This conver-
sation took place on the morning of the election while he
was in Justice's truck. Justice allegedly told him he
would give him a 20-cent-an-hour raise if he did not vote
for the Union. Justice said that the Union was no good
and it would not do anything but take their money. Jus-
tice added that if Singleton voted for the Union they
would make less money since they were currently
making more money than average tractor trailer drivers.
According to Singleton, he had on one prior occasion "a
long time before this conversation" discussed a raise with
Justice. Like Robert Williams, Singleton did not receive
a raise at this time.
Justice testified that a couple days prior to the election
as Singleton was getting into his truck he walked up to
Singleton and asked for his support in the election. Jus-
tice stated that he told Singleton that they did not need a
union and that Justice would like to have his support.
According to Justice, Singleton merely shook his head
and said, "okay." Justice specifically denied either prom-
ising Singleton a raise during this conversation or threat-
ening that his pay would drop if the Union came in.
e. Conversations with Roosevelt Curry
Roosevelt Curry, a laborer, testified that approximate-
ly 2 weeks before the election he had a conversation
with Justice in the rear of the plant. According to Curry,
Justice told him that he, Justice, had an even number of
employees for and against Respondent and that with his
vote the Company could win. Justice then asked him
how he felt about being in the Union. Curry made no re-
sponse to Justice's questions or remarks. Curry testified
that he had several conversations with Justice about the
919
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union, but at the hearing he was only questioned regard-
ing the above conversation.
Justice testified that he had several conversations with
Curry about the Union. On the first occasion, which
took place in the plant. Justice walked up to Curry and
stated that they did not need a union and that he would
appreciate Curry's support in the election. On this occa-
sion Curry merely answered, "Okay." The second dis-
cussion took place a couple days before the election. Jus-
tice went back to where Curry was working in the plant
and again told him that they did not need a union and
that he would appreciate Curry's support in the election.
Justice testified that he did not ask Curry any questions
in either of these conversations and he specifically denied
ever telling Curry that there were an even number of
employees for and against the Union.
f. Conversations with Riggins
Carey Riggins, a laborer, testified he had two conver-
sations with Justice before the election. The first conver-
sation took place 2 weeks before the election near the
back door of the plant. Justice asked him what he
thought ac,,u; the Ulioln and stated that the Union was
going to come around and take his money. Riggins did
not testify with regard to the second conversation.
Justice also testified that he had two conversations
with Riggins about the Union. According to Justice, the
first such conversation took place about I or 2 weeks
prior to the election. On that occasion Justice walked up
to Riggins and told him that they did not need a union.
According to Justice, that was the entire extent of the
conversation. The second occasion was a few days prior
to the election. Justice again walked up to Riggins and
said that he needed Riggins' support in the election. Rig-
gins just nodded his head and walked away. Justice
denied ever asking Riggins any questions in either of the
conversations.
g. The Conversation with Ernest Woodford
Immediately prior to the election, Ernest Woodford
was spending a substantial portion of his time working in
the truck shop as a mechanic's helper to mechanic Tom
Stowe.2 According to Woodford, his single conversation
with Justice about the Union occurred at the truck shop
on the day prior to the election. According to Wood-
ford, Justice came up to him and without explanation or
elaboration informed him that if the Union came in
Woodford would have to be moved. Nothing further
was said by either Woodford or Justice at this time.
Justice denied ever having any conversation with
Woodford prior to the election.
h. Justice's general defense
Justice testified that during the union campaign he
spoke to all but two of the employees in an effort to ex-
plain the good points about the Employer and to con-
vince the employees that they did not need a union. In
the following question and answer, Justice summarized
these conversations in the following terms.
Woodford's job duties, both before and after the Union election will
be discussed in some detail in a following subsection.
Q. And in trying to help people make up their
minds which way to, did you not attempt to put the
Company's best foot forward?
A. There again, sir, they wouldn't give me an op-
portunity to even talk about our company. We
never had a discussion about what the company
could or could not do or anything. That's, when I
talked to one of my employees, like, I walked up
and told one of them that we didn't need a Union,
well, he didn't want to talk to me, and nodded his
head and said okay. Now how can you talk? I'm
talking to this employee and he won't let me, so I
say I didn't talk to any of them really other than in
trying to make a stand that I was management and
that's about the size of the conversations.
Still later, Justice elaborated further when he stated:
You're getting back to a conversation where they
wouldn't let you say anything. When you can't talk
to nobody, you can't say anything, so, therefore, I
never had a chance to say anything. How can you
carry on a conversation with a man that answers by
"yes" and smiles and goes on? That's not a conver-
sation.
2. Credibility resolutions
As Administrative Law Judge Benjamin Schlesinger
observed in Cas Walker's Cash Stores Inc., 249 NLRB
316 at 321 (1980):
Resolution of credibility conflicts are often diffi-
cult, requiring the weighing of equally plausible
narrations of testimony of witnesses who appear to
be telling the truth and who are no more prejudiced
and biased than others who are telling a wholly dif-
ferent story. Ofttimes, there are no fatal inconsisten-
cies nor contradictions for the determiner of factual
issues to seize upon to arrive at a firm conclusion.
In those instances, the trial judge or jury must rely
upon a sixth sense and instinct, which makes the
resolution of certain conflicts somewhat unsatisfac-
tory, leaving the chance, sometimes slight and many
times significant, that the final decision was errone-
ous. A reasonable doubt remains.
Unfortunately, such is the case here. For the reasons
set forth below, I credit, with no particular enthusiasm,
the employees' versions over Justice's.
On the one hand, Justice was able, with no apparent
hesitancy and without the aid of any contemporaneous
notes' to recall and place in relation to the election each
of the conversations recited above. Yet, when it came
time for him to testify regarding the collection of the
credit cards, an event even more recent in time, his
memory became somewhat clouded and he suddenly
became unsure of when this action was taken. Moreover,
Justice's frustration in getting the employees to engage
him in conversations about the need or lack thereof for
union representation in no way prevented him from
either questioning employees about their sentiments or
making other statements regarding the election.
920
CHEROKEE CULVERT COMPANY, INC.
On the other hand, the majority of the seven employ-
ees who gave the testimony recited above were not
nearly so certain of the dates and the substance of their
conversations as was Justice. However, I do not view
any such defects or lapses in their memories as particu-
larly unusual or fatal. A common thread runs throughout
most of their testimony. Moreover, I note that each of
the seven testified adversely to Respondent notwith-
standing that they were still in its employ.3 Further, Re-
spondent presented no facts or arguments which con-
vinces me that these employees, unsophisticated and un-
lettered in the complex world of labor relations law,
would, either individually or in a group, intentionally
fabricate their testimony to assist the Union to the detri-
ment of their current employer.
3. Conclusions on the 8(a)(1) allegations
a. Interrogations
The complaint alleges that Respondent committed four
separate instances of unlawful interrogation: Justice
asking Clarence Williams if he had ever belonged to a
union, Justice asking Roosevelt Curry how he felt about
being in the Union, Justice asking Carey Riggins what he
thought about the Union, and Justice asking Robert Wil-
liams what the employees needed with the Union.
A supervisor's questioning regarding the employees'
union sympathies is coercive because such questioning
conveys an employer's displeasure with the employees'
union activities and thereby discourages such activities in
the future. Further, the coercive impact of these ques-
tions is not diminished by either the employees' open
union support or by the absence of attendant threats.
Gossen Company, a Division of the United States Gypsum
Company, 254 NLRB 339 (1981). 4 Accordingly, I find
that the General Counsel has established these violations
of Section 8(a)(1) as alleged.
b. Impression of surveillance
The General Counsel contends that Respondent un-
lawfully created the impression of surveillance when Jus-
tice informed Roosevelt Curry that Respondent had an
even number of employees for and against Respondent
and that with Curry's vote Respondent could win the
election.
Curry could reasonably assume from Justice's com-
ment that the employees' union activities were under sur-
veillance. Tifton Electric Company and Professional Furni-
ture Company, 242 NLRB 202 (1979). Accordingly, I
find that the General Counsel has established this viola-
tion of Section 8(a)(1) as alleged.
3 See Georgia Rug Mill, 131 NLRB 1304, 1305 (1961), modified on
other grounds 308 F.2d 89 (5th Cir. 1962).
4 The case relied on by Respondent, at least as to the Clarence Wil-
liams conversation, St. Louis Comprehensive Neighborhood Health Center.
Inc., 248 NLRB 1078, 1087 (1980), is inapposite. There, the Board major-
ity, in reversing an Administrative Law Judge, found that the employer's
questioning of employees regarding strike misconduct of which they
were accused was a bona fide investigation of those allegations and con-
tained no coercive overtones.
c. Promise of benefits
The General Counsel contends that Respondent made
unlawful promises of benefits when, on the day of the
election, Justice promised Robert Williams and Bobby
Singleton raises in exchange for their support in the elec-
tion. That such conduct constitutes an unlawful promise
of benefit in violation of Section 8(a)(1) warrants no dis-
cussion.
d. Threats of reprisals
The General Counsel alleges that Respondent made
unlawful threats of reprisals by Justice's remarks to Sin-
clair that the Union would "probably create problems"
and to Singleton that if the Union won the election the
truckdrivers would make less money.
As to the first allegation I find Justice's reference to
the probability of the Union causing more problems to
be too vague to be actionable under Section 8(aXl). This
remark was not accompanied by any examples of the
type of "problems" to which Justice may have been re-
ferring. Moreover, I note the absence of any other un-
lawful conduct during this conversation. Justice may
well have been simply referring to problems the Union
would cause Respondent. As such, this remark did not
exceed the bounds of Section 8(c) of the Act. Accord-
ingly, I recommend dismissal of this allegation.
Justice's above-summarized statement to Singleton was
intended to and had the effect of impressing upon Single-
ton the futility of the unionizing of Respondent. This is
especially so in view of Justice's contemporaneous un-
lawful promise to Singleton of a raise. Accordingly, I
find that the General Counsel has established this 8(a)(1)
allegation as alleged.
e. The threat to transfer
The General Counsel contends that Justice's statement
to Woodford that if the Union won the election Wood-
ford would be moved from his work station constitutes
an unlawful threat of reprisal in violation of Section
8(a)(l). Although, as will be discussed below, Respond-
ent was motivated in changing Woodford's duties subse-
quent to the election entirely by valid business consider-
ations, Justice, in his preelection discussion with Wood-
ford, made no mention of the reasons behind the possible
transfer. Instead, we are left with the naked threat that
Woodford would be moved if the Union won the elec-
tion. Accordingly, I find that the General Counsel has
established this violation of Section 8(aX)() as alleged.
f. Solicitation of grievances
The General Counsel alleges that Justice's statement to
Sinclair to the effect that the employees should come to
him and talk about his mistakes constituted an unlawful
solicitation of grievances for the purpose of causing em-
ployees to reject the Union as their collective-bargaining
representative. I disagree. Justice's solicitation of griev-
ances is not a per se violation of the Act. No accompany-
ing promise was shown, either actual or implied, that
any grievance would be remedied. Sunset Coffee and Ma-
cadamia Nut Co-Op of Kona, 225 NLRB 1021, 1023
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(1976). Accordingly, I recommend that this complaint al-
legation be dismissed.
C. The 8(a)(3) and (5) Allegations Regarding Credit
Cards
1. Facts s5
Since the mid-1970's Respondent had distributed to
each of its truckdrivers a Union 76 gasoline credit card,
which the truckdrivers were permitted to use to buy gas-
oline and oil while on the road.6
In the week following the election Justice collected
each truckdriver's credit card.7 At the time Justice took
back the cards, which were due to expire at the end of
June, he explained to each driver that, when they took
trips of substantial length, gasoline credit cards would be
furnished with the delivery tickets. There is no allegation
that the drivers were not subsequently furnished with
new cards when taking lengthy trips.
In denying that the union election played any part in
reaching this decision, Respondent points to two factors,
the near obsolescence of the cards and the potential for
their abuse, as the only factors which motivated it to
take the action when it did.
In 1978 and 1979 Respondent, as a cost-saving meas-
ure, began adding an ancillary gasoline tank to each of
its trucks.8 As a result of this change nearly all deliveries
could be made without the necessity of refueling prior to
making the return trip. Although no supporting docu-
ments or records were introduced, it appears that by
May 1980 the drivers used the credit cards infrequently. 9
The second factor which served as the impetus for Re-
spondent was the misuse in February of the card by
Robert Williams for personal use. On that occasion Wil-
liams submitted to Justice a receipt for the purchase of
gasoline. Williams explained to Justice that he had run
out of money while on a personal out-of-state-trip. Jus-
tice informed Williams that he was not supposed to use
the card for personal use and he instructed the book-
keeper to deduct the amount purchased on the card from
Williams' paycheck. o
6 Except as specifically noted the material facts involving this allega-
tion are not in dispute.
6 At all times the card had a $50 limit. On those occasions when major
mechanical problems arose while the truckdrivers were on the road, they
would call Respondent, who in turn would arrange by telephone for
towing and/or repair.
7 The record is somewhat hazy as to the exact circumstances surround-
ing the actual collection of these cards. Justice initially testified that this
was done at either the beginning of June or the end of May. However,
he did state during his testimony that he could have taken this action
within a week of the election.
8 The fuel stored on Respondent's premises, which is purchased in
bulk, is substantially cheaper than what could be purchased on the road.
Drivers have always been required to fill up their trucks prior to leaving
for a delivery.
I At no time during the hearing were specifics offered regarding the
frequency of use of the credit cards by May 1980.
'0 I reject as implausible that portion of Williams' testimony in which
he alleges that he alone, among the truckdrivers, had been previously
granted permission to use the company credit card for personal use and
that Justice acknowledged as much during this conversation. I recognize,
of course, that in other sections of this Decision I have credited Williams'
testimony. This result is required under the circumstances of this case.
Carolina Canners, Inc. 213 NLRB 37 (1974). "Nothing is more common
than to believe some and not all of what a witness says." Edwards Trans-
In mid-April while reviewing the paychecks Jarrard
discovered Williams' earlier purchase. Jarrard and Jus-
tice then met and discussed the situation. Jarrard testified
that while the two reached no final decision there was an
agreement that the cards would be taken from the driv-
ers at some future point. Justice testified that it was his
understanding that he and Jarrard had reached a final de-
cision to collect the cards. In any event, when the new
credit cards were delivered to Respondent, Justice did in
fact collect the cards from the individual drivers.
2. Conclusions
Relying on the timing of Respondent's actions, as well
as the alleged pretextual nature of the business reasons
advanced by it in support thereof, the General Counsel
contends that this change in practice was taken in direct
reprisal for the employees' selection of the Union. For
the reasons set forth below, I find that the General
Counsel has not established this violation of Section
8(a)(3) by a preponderance of the evidence.
While the timing of Respondent's action, coming less
than a week after the election, is suspicious, more is re-
quired than suspicion, even when coupled with demon-
strated union animus. Only 1 month prior to the collec-
tion of the credit cards, Robert Williams' misuse of his
card was brought to Respondent's president and general
manager's attention. Further, the cards that were collect-
ed were due to expire in 6 weeks or less. Taking these
factors into account substantially diminishes any infer-
ence of unlawful motivation caused by the timing of the
change.
Moreover, I find that Respondent did possess a valid
business consideration for its conduct. The fuel capacity
of the trucks had, over the past 2 years, been substantial-
ly increased. Therefore, the need for the drivers to pos-
sess cards on shorter trips was virtually eliminated. On
the longer trips where a driver would need to refuel,
cards were provided. These factors, plus the recent inci-
dent of a driver's misuse of the card, provided reasoned
business considerations apart from the union activity of
its employees. Accordingly, I recommend that the 8(a)(3)
allegation arising from the collection of the credit cards
be dismissed.
Further, under the circumstances of this case, I do not
find that the General Counsel has established that the
collection of the credit cards constituted a refusal to bar-
gain. The General Counsel failed to demonstrate how
the change in practice from supplying each driver with
his own credit card to keep in his possession to a prac-
tice whereby Respondent would furnish the driver with
a card on all trips where it could reasonably be foreseen
that the driver could have legitimate need for the card
was a significant change from past practice t t or had any
impact on the employees or their working condition.12
Jarrard's testimony that by the spring of 1980 the use
of credit cards by drivers was infrequent was not chal-
lenged or contradicted. Moreover, no evidence was of-
portation Company, 187 NLRB 3 (1970), enfd. 449 F.2d 155 (5th Cir.
1971).
I" Rust Craft Broadcasting of New York Inc., 225 NLRB 327 (1976).
i2 Lawson-United Feldspar & Mineral Ca, 189 NLRB 350 (1971).
922
CHEROKEE CULVERT COMPANY, INC.
fered that any driver had in the recent past used a credit
card for other than fuel. Therefore, in view of Respond-
ent's continued furnishing of the card for all lengthy
trips it is difficult to perceive how the change had any
real impact on the drivers' working conditions. 13 Ac-
cordingly, I recommend that the 8(a)(5) allegations aris-
ing from Respondent's treatment of the credit cards be
dismissed. 1 4
D. The 8(a)(3) and (5) Allegations Regarding
Employees' Use of Their Trucks
1. Facts
According to employees Robert Williams, John Curry,
James Sinclair, and Bobby Singleton, Justice, during the
week of May 19 and more probably on May 19 itself, in-
formed the truckdrivers that they were not to take their
trucks home with them at night anymore and, as a conse-
quence of this instruction, this common practice ceased.
While Justice denied issuing that order in the week fol-
lowing the election, he testified in some detail and at
some length that he had issued similar orders on many
occasions previously both in group meetings, as well as
in private conversations with individual truckdrivers.
Justice testified that the policy regarding truckdrivers
taking their trucks home at night or on weekends has
never changed. That policy, as it has existed for some 14
years, has been that truckdrivers are not permitted to
take their trucks home without permission. At the time
that each truckdriver is interviewed and hired Justice in-
forms him that he needs his own transportation to get to
and from the facility. Although the company policy pro-
hibited employees from taking their trucks home Justice
admitted that he made exceptions to this policy occasion-
ally over the years and did permit employees who would
be returning to the plant late at night or who would
have to leave for a delivery early in the morning to take
their trucks home with them at night. Justice further tes-
tified that over the entire course of the facility's exist-
ence truckdrivers would on occasion ignore this policy
and take their trucks home without permission. If more
than one driver violated the policy he would speak to
the employees in a group; if there was just one violation
by an individual truckdriver he would speak to that indi-
vidual alone.
Is I reject the General Counsel's arguments that since the parties spent
substantial time at the bargaining table on this very issue they were there-
by acknowledging the fact that the use of credit cards was in fact a real
benefit to the drivers. If this were a relevant consideration, it would be
equally relevant to note that the tentative contract proposal which the
parties eventually reached merely confirmed Respondent's practice as it
currently existed.
" The Board, in two recent cases, Louisiana Council No. 17.
AFSCME, AFL-CIO, 250 NLRB 880, 889 (1980), and Florida Steel Cor-
poration, 231 NLRB 923 (1977), reached contrary conclusions on a similar
issue. Both cases are factually distinquisable from the instant matter.
In Louisiana Council No 17, supra, the employer cancelled the employ-
ees' credit card priviledges and forced employees to use their own money
and wait a week for reimbursement. Similarly, in Florida Steel supra, the
employer prohibited the employees from using credit cards for lodging
and meal allowances, while at the same time imposing restrictions on the
amount of money to be paid for their meals and lodging. In both cases,
the employer's action had a substantial impact on the employees' working
conditions. That impact is missing here.
The testimony of the four truckdrivers regarding the
policy as it existed prior to May 1980 is somewhat con-
fused and contradictory. In this regard Sinclair testified
that he was expected to have his own transportation to
and from the facility. Sinclair recalled that when his car
had been in an accident approximately 4 years earlier
Justice had given him permission to take his truck home
until his car was repaired. Sinclair also stated that since
that time he would occasionally take his truck home
when he returned to the plant late; however, Sinclair ad-
mitted that on those latter occasions Justice never gave
him such permission. Sinclair did not indicate whether
Justice had knowledge either before or after the fact of
what he had done.
Singleton, a truckdriver for 5 years, testified that at no
time prior to the election had Justice ever told him that
he could not take his truck home at night without per-
mission or that he would need to furnish his own trans-
portation to and from work. However, he did admit that
on the three or four occasions that he had in fact taken
his truck home he always sought and received permis-
sion beforehand from Justice.
Robert Williams testified that when he was hired ap-
proximately 14 years ago he was not told that he would
need his own transportation and was specifically told
that he could take his truck home. Although he allegedly
had blanket permission to take his truck home at night
Williams stated that he only did so when he came in
from the road late. Williams testified that he did attend
several meetings prior to the election during which Jus-
tice informed the truckdrivers that they were not to take
their trucks home. Williams stated that on those occa-
sions he reminded Justice that Justice had "promised"
him that he could take his truck home and Justice an-
swered that Williams could. but no one else.
Truckdriver Curry testified that, when he was hired
approximately 4 years before, Justice told him that he
was expected to furnish his own transportation. Curry
further testified that he attended group meetings where
Justice told the truckdrivers that Robert Williams had
been with the Company longer and that, while Justice
did not mind Williams taking his truck home, he did not
want other trucks going out if they did not have to.
Justice testified that he has had a problem with Robert
Williams taking his truck home for 14 years. Justice
stated that on numerous occasions he informed Williams
that he could not take his truck home but that on eight
or more occasions Williams called from the south of
Georgia and informed him that he would be in late and
on those occasions he permitted Williams to take his
truck home. Justice admitted that he was more lenient in
his treatment of Williams than he was with the other
truckdrivers.
Both Justice and Jarrard testified that the two main
reasons that truckdrivers were prohibited from taking
their trucks home without permission was the expense of
the fuel and the liability to Respondent should the trucks
be in or be the cause of an accident.
In support of its contention that Respondent always
had a policy against employees taking their trucks home,
923
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent introduced a 1978 warning to Curry from
Justice. The warning reads:
Please be advised that if you continue to take your
company vehicle home at night in defiance of the
plant manager's order, your employment with this
company will be terminated. A copy of this letter
will be placed in your personnel file.
2. Conclusions
The General Counsel contends that Respondent, in
violation of Section 8(a)(3), retaliated against its employ-
ees for their selection of the Union by instituting a new
policy prohibiting truckdrivers from taking their trucks
home with them at night. The General Counsel further
alleges that Respondent took this action without notice
to the Union and thereby also violated Section 8(a)(5).
For the reasons set forth below, I find that the General
Counsel has not established either of these allegations by
preponderance of the evidence.
Put quite simply, the record evidence does not estab-
lish that Respondent instituted a new policy after the
election with regard to the employees taking their trucks
home.15 The record discloses that for many years Re-
spondent had a policy of prohibiting employees without
the express permission of the plant manager from person-
al use of their trucks. Any instructions Justice may have
given to the truckdrivers in the week following the elec-
tion on the subject were merely recapitulations of long-
standing instructions. Moreover, no showing was made
that subsequent to the election any employee was denied
permission to take his truck home where, in similar cir-
cumstances, he would have been permitted to do so prior
to the election. Accordingly, I recommend that all alle-
gations arising from this incident be dismissed.
E. The Refusal To Furnish Information
1. Facts 6
On or about June 15, some 3 weeks after the certifica-
tion issued, the parties met for the first time in an effort
to negotiate a contract. At either this meeting or shortly
thereafter, the Union requested a list of employees with
their job classifications, rates of pay, seniority, fringe
benefits, salary, and conditions of employment. By letters
dated July 25 and 30, respectively, the Union informed
Respondent that the information furnished by Respond-
ent did not include any information on mechanic Thomas
Stowe and machine operator Don Williams.
Respondent, by letters dated July 28 and August 5, re-
spectively, notified the Union that Stowe had voluntarily
terminated his employment with Respondent on June 4
and that Williams was promoted to a supervisory posi-
tion subsequent to the election and was therefore "no
longer included in the bargaining unit."
By separate letters dated March 27, 1981, the Union
requested the following information:
1" I am satisfied with Justice's explanation that, while Robert Williams
was not exempt from the general rule, Justice was more lenient in his
case in granting permission for Williams to take his truck home. Williams
offerred no evidence that this treatment changed after the election.
16 The material facts in this subsection are not in dispute.
Please be advised that this correspondence is in ref-
erence to the continuing request of wages and bene-
fits you paid the mechanic and mechanics that per-
form maintenance and repair work on your equip-
ment and vehicles.
In the stipulated consent, we agreed to include in
the bargaining unit the mechanic classification, one
of the mechanics at that time was a Mr. Thomas
Stowe that you stated quit his job with you. Please
furnish me the following information, the rate of
pay and other benefits of the mechanic classification
and on helpers, the date Mr. Stowe quit, the names
of the employees now doing the maintenance and
repair work of your equipment and vehicle [and
their] rates of pay and benefits. If the maintenance
and repair work is not being done by Cherokee Cul-
vert employees, please furnish me the details of who
is doing this work, the date when the new arrange-
ment went into effect, and the financial arrange-
ments paid for the performance of these duties pre-
viously performed by employees of Cherokee Cul-
vert Pipe Company.
Upon my previous requests of wages and fringe
benefits of machine operator W. Dor Williams, you
previously advised me that machine operator W.
Don Williams is now in a supervisory position.
Please supply me with the rates of pay and fringe
benefits for machine operators classification before
his promotion. The date he was promoted, the
changes in his duties he performed as machine oper-
ator, and the power he has in the present position
over the machine operator classification. Your im-
mediate attention to this request will be appreciated.
The Union sent identical letters to the Respondent
dated April 10.
By letter dated April 13 counsel for Respondent an-
swered the Union's request. This letter states in pertinent
part:
We are perplexed by your letter of April 10 since
you and I discussed the information sought by the
letter in some detail during the bargaining session
on April 9. In fact, as I recall, after I had responded
point by point to the information you requested in
your letters, you stated that you had not really de-
sired to discuss the information sought in the first
place. Therefore, rather than attempt to repeat all
of the information I related to you on April 9 in
this letter, we have assumed that your April 10
letter is an oversight.
If this is not the case, please advise us as to the spe-
cific information which you still need.
By letter dated April 21 the Union sent the following
response to Respondent's April 13 letter:
924
CHEROKEE CULVERT COMPANY, INC.
In reference to your letter dated April 13, 1981,
concerning my request for certain information on
Thoma Stowe and W. Don Williams.
To set the record straight, the only information you
gave orally in the negotiating meeting was the date
June 11, 1980 when W. Don Williams was supposed
to have been changed. Thomas Stowe, you stated,
quit on the same date. You stated to us it was none
of the Union's business what these men were
making then. I pointed out to you that these men
were in the bargaining unit and upon your insis-
tance that we included the mechanic (Thomas
Stowe), you would agree to a stipulated consent
election.
Your response to my request was that it was none
of my business. I asked you to answer my request in
writing, you stated you would.
Please be advised that we still request the informa-
tion on Thomas Stowe and W. Don Williams as at-
tached. You can be assured our request was no
oversight.
The only testimony offered at the hearing regarding
what may have transpired at an April bargaining session
on this subject was the testimony of Wash Mitchell, a la-
borer and member of the bargaining committee. In es-
sence, Mitchell merely testified that the Union requested
information on both Stowe and Williams and that Re-
spondent informed the Union at the bargaining session
that Stowe had come to the Company and quit voluntar-
ily early in June and about the same time Williams had
been promoted to a supervisory position where he had
the authority to hire and fire. At no time during this
meeting or subsequently has Respondent furnished any of
the information requested by the Union in its March 27
letters.
2. Contentions and conclusions
The consolidated complaint alleges that Respondent,
since on or about April 4, has refused in violation of Sec-
tion 8(a)(5) to comply with the Union's requests of
March 27 for certain wage and related information con-
cerning Stowe and Williams.
Respondent, while conceding that it refused to furnish
the Union with the information sought, argues that its re-
fusal was justified and lawful since neither Stowe nor
Williams were, at the time of the request, bargaining unit
employees. In support thereof, Jarrard testified that, in
early June, Stowe informed him that he did not wish to
work for an organized company and was terminating his
employment with Respondent in order to go to work for
Macon Concrete Company, hereinafter called MCC. Al-
though employed as a truck mechanic for Respondent,
Stowe actually performed his work at a truck shop locat-
ed on MCC's property which adjoined Respondent's.
While an employee of Respondent, Stowe also per-
formed mechanical work on MCC's trucks. As the quid
pro quo for Respondent's not billing MCC for the time
Stowe spent working on its trucks, Cherokee paid MCC
no rent for use of the truck shop. Subsequent to his ter-
mination of employment with Respondent, Stowe in fact
commenced employment with MCC in the same truck
shop. Stowe continues while an employee of MCC to
work both on MCC's trucks as well as on Respondent's
trucks. Respondent is billed on a quarterly basis for the
percentage of Stowe's time spent working on Respond-
ent's vehicles. MCC pays Stowe's salary and makes all
deductions and payments to required funds.
With regard to Williams, Jarrard testified that, in early
June, Williams was promoted from a machine operator
to superintendent of pipe production, and was given a
full-time employee to supervise. At the same time, Wil-
liams was changed from an hourly employee to a sala-
ried employee and was reassigned from Justice's supervi-
sion and instead reported directly to Jarrard. Further,
Respondent contends that due to Williams' new authori-
ty and responsibilities, including the authority to order
material in the amounts of $7,000 to $8,000 on his own,
Williams became a managerial employee who would be
excluded from the unit irrespective of his supervisory
status.
Respondent claims that the sole reason given by the
Union in seeking the information was that the Union, de-
spite being orally informed to the contrary by Respond-
ent, continued to believe that Stowe and Wllliams were
bargaining unit employees and, as such. the Union was
entitled to the information in its efforts to fairly represent
these employees. Even if I were to fully agree with this
characterization, I would not be persuaded that Re-
spondent is legally excused from complying with the re-
quests. 1 7
"It is well established that wage and employment in-
formation pertaining to bargaining unit employees is pre-
sumptively relevant for the purposes of collective bar-
gaining and contract administration inasmuch as such in-
formation concerns the heart of the employer-employee
relationship, and that such information must be provided
upon request to the unit employees' bargaining repre-
sentative." Andy Johnson Co., Inc., 230 NLRB 308 at 309
(1977).
It is difficult to perceive of more relevant information
to the Union than that which would either confirm or
refute Respondent's assertion that two individuals whose
job classifications were specifically included in the bar-
gaining unit were, less than I month after the election,
suddenly out of the unit. This is even more true where
both individuals appeared to continue to perform the
identical duties in the identical locations as before. "Any
information concerning the status or compensation of
bargaining unit employees is presumptively relevant to
the union's statutory duty, and hence is producible under
17 Respondent additionally contends that the complaint allegation is
time barred by Sec. 10(b) of the Act. I find no merit in this contention. It
is well settled that Sec. 10(b) is a statute of limitations and is not junsdic-
tional ill nature. As such, it is an affirmative defense and, if riot timely
raised, is waived. Vilronic Division of Penn Co'poration, 239 NLRB 45
(1978). Respondent here did not plead or litigate the issue at the hearing,
but instead first raised this defense in its post-hearing brief I do not find
that Respondent's introduction, without explanation, of the early corre-
spondence between the Union and Respondent on this subject amounts to
"litigating the issue at hearing." In any event, it is abundantly clear that
the Union's requests of March 27, 1l81, are not merely repetitions of its
earlier requests, but instead arc requests for additional information which
constitutes a new cause of action.
925
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the terms of the Act. The Brooklyn Union Gas Company,
220 NLRB 189, 191 (1975). Nowhere does the Act re-
quire that the Union must accept without any verifica-
tion an employer's claim that bargaining unit employees
are now out of the bargaining unit.
Moreover, as to a portion of the information sought on
Stowe, it is clear that the Union's purpose by late March
was more thaa a mere need to determine whether Stowe
was or was not an employee of Respondent. This request
sought specific details as to what arrangements Respond-
ent then had for the repair of its trucks by nonem-
ployees. Such information could potentially be necessary
for meaningful negotiations on subcontracting issues. See
B. F. Goodrich General Products Company a Division of
the B. F Goodrich Company, 221 NLRB 288, fn. 6 (1975).
To justify the issuance of a Board order requiring the
supplying of requested information, it need not be shown
that the information sought is clearly dispositive of the
basic issues between the parties. Instead, the Union need
merely demonstrate "the probability that the desired in-
formation [is] relevant, and that it [will] be of use" to the
Union in fulfilling its statutory duties and responsibilities.
N.L.R.B. v. Rockwell-Standard Corporation, Transmission
and Axle Division, Forge Division, 410 F.2d 953, 957 (6th
Cir. 1969), quoting from N.L.R.B. v. Acme Industrial
Co., 385 U.S. 432, 437, fn. 6 (1967). Here, the Union has
demonstrated such a probability.
In view of the above findings and conclusions, I need
not and specifically do not pass upon Williams' current
status. Such a finding would in no way alter or change
Respondent's bargaining responsibilities. Accordingly, as
set forth above, I conclude that the Union in its March
27 letter sought potentially relevant information concern-
ing issues between the parties and that Respondent's re-
fusal to supply such information violated its duty under
Section 8(a)(5) of the Act.
F. Alleged Unlawful Transfer of Ernest Woodford
1. Facts
The General Counsel alleges that Respondent fol-
lowed through on Justice's unlawful threat to transfer
Woodford (see sec. B,3,e, above) when, on the day after
the election, Woodford was moved from the truck main-
tenance shop and assigned to work in the plant. It is un-
disputed that, at least prior to April, Woodford spent a
considerable amount of his time in the truck shop assist-
ing Stowe and that at some point in time hi, duties were
changed to that of a general shop employee with the re-
sultant reduction, if not outright elimination, of his me-
chanic's helper duties.' What is disputed is exactly
when Woodford's duties were changed and what event
or events caused the change.
Justice testified that due to a business slowdown Re-
spondent, by early in April, laid off three truckdrivers
with the result that a substantial percentage of Respond-
ent's trucks sat idle. With the reduction in use of the
trucks, Woodford began spending more time in the plant
" Woodford's hours, wages, and basic conditions of employment did
not suffer by reason of this change.
and finally, around the end of April or first of May, he
was moved quasi permanently to the plant.19
No employees of Respondent had replaced Woodford
in performing mechanic's helper duties in the truck shop.
2. Conclusions
I do not find either Justice's or Woodford's version of
when Woodford was moved from the mechanic shop to
the plant as wholly satisfactory. Woodford's recitation of
what jobs he performed and when he performed them
throughout his 5 years of employment was confused and
at times contradictory. For example, Woodford initially
testified that he never drove a truck for Respondent
while employed as a mechanic's helper. Yet, later in his
testimony, he admitted driving a truck on occasion both
before and after the election. Moreover, I did not find
him to be an entirely candid witness. In this regard, de-
spite knowing of the layoff of truckdrivers, Woodford
stated that he did not even notice that there was a slack-
ening in truck repair work. Based upon the entire record,
it would appear that Woodford was moved from the
truck shop to the plant not in April or May but in early
June.
In any event, it appears, based upon the entire record
herein, that Woodford's move was occasioned by two
factors: (1) the slackened truck repair requirements, and
(2) the fact that Stowe, shortly after the election, quit
Respondent's employ and began work as an employee
for Macon Concrete. Therefore, based upon the above
and specifically noting the absence of any evidence that
Respondent knew that Woodford even supported the
Union, I find that the General Counsel has not met its
burden of establishing that Woodford's move was unlaw-
ful. Accordingly, I recommend that this allegation be
dismissed in its entirety.
Upon the foregoing findings of fact and upon the
entire record, I make the following:
CONCLUSIONS OF LAW
1. Respondent Cherokee Culvert Company, Inc., is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Construction, Production & Maintenance Workers,
Local Union 1210, affiliated with Laborers' International
Union of North America, is a labor organization within
the meaning of Section 2(5) of the Act.
3. At all times material herein, Local Union 1210 has
been the exclusive representative for the purposes of col-
lective bargaining of the employees in the following de-
scribed unit:
All production and maintenance employees em-
ployed by Cherokee Culvert Company, Inc., at its
Macon, Georgia facility, including truckdrivers, ma-
chine operators and mechanics; but excluding all
office clerical employees, salesmen, professional em-
"9 It appears that at all times Woodford first reported each morning to
the plant where he received his work assignment from Justice for that
day.
926
CHEROKEE CULVERT COMPANY, INC.
ployees, guards and supervisors as defined in the
Act.
4. Since on or about April 13, 1981, Respondent has
failed and refused to provide the aforesaid collective-bar-
gaining representative with information relating to job
descriptions, wages, and other benefits and conditions of
employment of employees employed in the job classifica-
tions of machine operator, mechanic, and mechanic's
helpers, as well as information regarding the maintenance
and repair of trucks when such work is no longer per-
formed by employees of Respondent, and, in so doing,
has violated Section 8(a)(5) and (1) of the Act.
5. By interrogating employees concerning their union
activities, sympathies, and/or desires, Respondent violat-
ed Section 8(a)(1) of the Act.
6. By creating the impression that its employees' union
activities were under surveillance, Respondent violated
Section 8(a)(1) of the Act.
7. By promising its employees pay raises if they voted
against the Union, Respondent violated Section 8(a)(1) of
the Act.
8. By threatening its employees with economic repri-
sals if the selected the Union, Respondent violated Sec-
tion 8(a)(l) of the Act.
9. By threatening to transfer an employee if the Union
were selected, Respondent violated Section 8(aX1) of the
Act.
10. Respondent did not violate the Act in any other
manner.
11. The unfair labor practices have a close, intimate,
and substantial effect on the free flow of commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has committed certain
unfair labor practices, I will recommend that it be or-
dered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the purposes
and the policies of the Act. Specifically, I recommend
that Respondent be ordered to provide the information
requested by the Union in its letters of March 27, 1981.
Upon the foregoing findings of fact, conclusions of
law, and upon the entire record herein considered as a
whole, and pursuant to Section 10(c) of the Act, I make
the following recommended:
ORDER 2 0
The Respondent, Cherokee Culvert Company, Inc.,
Macon, Georgia, its officers, agents, successors, and as-
signs, shall:
20 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 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 waived for all purposes.
1. Cease and desist from:
(a) Refusing to bargain collectively with Construction,
Production & Maintenance Workers, Local Union 1210,
affiliated with Laborers' International Union of North
America, by refusing to furnish it with information relat-
ing to job descriptions, wages, and other benefits and
conditions of employment of employees employed in the
job classifications of machine operator, mechanic, and
mechanic's helpers, as well as information regarding the
maintenance and repair of trucks when such work is no
longer performed by employees of Respondent.
(b) Interrogating its employees about their union sym-
pathies, activities, and desires.
(c) Creating the impression that its employees' union
activities are under surveillance.
(d) Promising its employees benefits if they reject the
Union.
(e) Threatening its employees with economic reprisals
if they select the Union as their bargaining representa-
tive.
(f) Threatening to transfer employees if the Union is
selected as the bargaining representative.
(g) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the purposes and the policies of the Act:
(a) Furnish the Union in writing with information re-
lating to job descriptions, wages, and other benefits and
conditions of employment of employees employed in the
job classifications of machine operator, mechanic, and
mechanic's helpers, as well as information regarding the
maintenance and repair of trucks when such work is no
longer performed by employees of Respondent as set
forth in the Union's letters of March 27, 1981.
(b) Post at its Macon, Georgia, facilities copies of the
attached notice marked "Appendix." 21 Copies of said
notice, on forms provided by the Regional Director for
Region 10, after being duly signed by Respondent's rep-
resentative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
ensure that said notices are not altered, defaced, or cov-
ered by any other material.
(c) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS ALSO RECOMMENDED that, insofar as the com-
plaint alleges matters which I have not found herein to
have violated the Act, the complaint is hereby dismissed.
a' In the event that this 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 read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
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