Crockett-Bradley Inc.

National Labor Relations Board - Board Decisions

Jul 15, 1974

212 N.L.R.B. 435 (N.L.R.B. 1974)

CROCKETT-BRADLEY INC. 435
Crockett-Bradley Inc.; Concrete Sciences , Inc.; C B
Materials , Inc.; and R . E. Holton , Inc. and Team-
sters Union Local 769, affiliated with International
Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America . Case 12-CA-5955
July 15, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
On October 31, 1973, Administrative Law Judge
Jennie M. Sarrica issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
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 brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt her recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified,
and hereby orders that the Respondent, Crockett-
Bradley, Inc.; Concrete Sciences, Inc.; C B Materials,
Inc.; and R E. Holton, Inc., its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the said recommended Order, as modified below.
Delete paragraph 1(c), and reletter paragraph I(d)
as 1(c).
1 Chairman Miller and Member Penello agree that a bargaining order is
appropriate herein as a part of the remedy However, in accordance with the
views they expressed in Steel-Fab. Inc, 212 NLRB No 41. they do not adopt
the Administrative Law Judge's finding of an 8(a)(5) violation upon which
she predicated the order They would instead rely solely on the serious and
extensive 8(aXI) and (3) violations committed by the Respondent as the basis
for such a bargaining order
Member Fanning dissents to the dismissal of the 8(a)(5) finding of the
Administrative Law Judge, for the reasons stated in his dissent in Steel-Fab.
Inc, supra
DECISION
STATEMENT OF THE CASE
JENNIE M. SARRICA, Administrative Law Judge: This is a
proceeding, under Section 10(b) of the National Labor Re-
lations Act, as amended (29 USC § 151, et seq.), hereinafter
referred to as the Act. Based on charges filed on February
26, 1973,1 and amended charges filed on May 3, a complaint
issued on May 31 presenting allegations that the named
enterprises, collectively referred to as Respondent, commit-
ted unfair labor practices within the meaning of Sections
8(a)(1), (3), and (5) and 2(6) and (7) of the Act. An answer
was filed on behalf of the named business enterprises deny-
ing, inter a/a, that they constitute a single employer for
purposes of this proceeding; that they are subject to the
jurisdiction of the Board; or, that the violations alleged were
committed.
Upon due notice the case was tried before me at Coral
Gables, Florida, on July 9 through 13; July 16 through 20;
and July 25 through 27, all inclusive. Representatives of all
parties entered appearances and were given an opportunity
to be present and participate in the hearing. The General
Counsel argued orally on the record at the close of the
hearing. Based on the entire record, including my observa-
tion of witnesses, and after due consideration of the brief
filed by Respondent, I make the following:
FINDINGS AND CONCLUSIONS
I THE RESPONDENT
The four corporate enterprises named as the Respondent
in this proceeding, each a Florida corporation, share the
same general corporate office and mailing address at 619
N.W. 7th Avenue, Fort Lauderdale, Florida. Concrete Sci-
ences is a holding company for the other three named cor-
porations and functions basically as a management firm for
the operating corporations.
Loretta P. Liljestrand owns 40 percent of the stock of
Concrete Sciences. Nicholas R. Sattee also owns 40 percent
of that stock, while John Crockett owns 11 percent, Francis
Elgrim owns 7 percent, and John Paradise owns the remain-
ing 2 percent. Concrete Sciences owns all of the stock of
Crockett-Bradley, C B Materials, and R. E. Holton.
J. B. Liljestrand, husband of Loretta, is president of Con-
crete Sciences, vice president of Crockett-Bradley, vice pres-
ident of C B Materials, and a director of R. E. Holton. He
has overall responsibility for the operations of the four com-
panies. John Crockett is president of Crockett-Bradley and
R. E. Holton, vice president of Concrete Sciences, and a
director of C B Materials. He is also the general manager
of Crockett-Bradley and C B Materials, and is in charge of
sales, promotion, advertising, public relations, and overall
production. Francis Elgrim 2 is directly in charge of produc-
Unless otherwise indicated all dates are in 1973
2 It appears that Elgrim is an officer in one or more of the corporations
here involved but the record is not clear as to what corporate title he presently
holds with which corporation
The names of several other corporations in this conglomerate are still
carried on the office doors, equipment, and logos of the group. but apparent-
ly these have been absorbed into the named corporations Thus, Daisy Mate-
rials. Inc. a company which Crockett testified had been dissolved and of
which Elgrim may have been president, previously employed the mixer driv-
ers. who were reassigned to Crockett-Bradley, and more recently to C B
Materials Also, the C W Brown operation which encompassed the grouting
Continued
212 NLRB No. 61
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion for Crockett-Bradley and C B Materials John Paradise
is an officer of R. E. Holton and runs that operation. Nich-
olas Sattee is secretary-treasurer of Concrete Sciences and
is generally in charge of the business management func-
tions. A J. Kranich, secretary-treasurer of C B Materials,
is a CPA and, at the offices of Concrete Sciences, he handles
the financial matters for all four corporations. Sattee's of-
fice is located at the 7th Avenue address. LilJestrand has
offices at both 7th Avenue and in the trailer at 4205 Ravens-
wood Road, Fort Lauderdale, Florida, where Crockett, El-
grim, and Paradise have their offices.
The four corporations utilize the same accounting firm
for tax reports. All other matters are handled by Concrete
Sciences at the 7th Avenue office. The services supplied for
the operating companies include management, accounting,
large purchases of equipment and supplies, banking, bill-
ings, the administrative staff, and maintenance of equip-
ment as well as payroll services. The four companies have
a common payroll which is kept on a computer and they
utilize a common account but separate identified checks.
The four companies use a common general checking ac-
count. The same insurance companies are used for vehicles
and other types of insurance.' LilJestrand , Sattee , Crockett,
and Elgrim, as well as Paradise, can sign checks for R. E.
Holton. Any one of the first four named individuals can sign
checks for Crockett-Bradley, Concrete Sciences, or C B Ma-
terials, and the first two named can sign checks from the
general checking account used for all four companies.
The business of the operating corporations consists pri-
marily of functions involving the uses of "gunnite" ° in vari-
ous types of construction. Basically, R. E. Holton performs
all "commercial" gunnite work, i.e , as a subcontractor per-
forming the gunnite work involved in the construction of
support columns for large buildings, bulkheads, and large
swimming pools; Crockett-Bradley does pressure grouting
and generally, as subcontractor, performs gunnite construc-
tion work on private residence size swimming pools; C B
Materials purchases, stores, processes, and supplies the ma-
terials used in these operations; and Concrete Sciences,
which as noted performs the management functions for the
other three corporations, also provides the maintenance
shop and mechanics to service the equipment.
Employees of all four corporations work at, or out of, the
yard and batching plant at Ravenswood Road where the
material loading functions and storage are carried on. Sand
and cement are received, prepared, and stored there, trucks
are parked, cleaned, fueled, and loaded and the day-to-day
scheduling and dispatching functions are performed in a
trailer-style building which houses the offices.
The job schedules for all of the crews are made up at the
Ravenswood Road yard where the crew leader or foreman
receives his assignment, picks up the equipped truck, and in
functions has been absorbed by Crockett - Bradley Trucks bearing those
names are operated by Crockett-Bradley crews and by C B Materials' mixer
drivers Crockett-Bradley formerly performed the work now assigned to
R E Holton
J It appears that the health insurance policy held in the name of Concrete
Sciences covers employees of all'four companies
Gunnite essentially is pneumatically applied concrete which is mixed dry
and applied under air pressure , hydrated out of a nozzle at which stage it
becomes wet mix of a no-slump consistency
the case of the grout crews, the needed material, and pro-
ceeds to the jobsite. Mixer drivers of C B Materials are
dispatched from the yard on a relay basis to the jobsites of
both "commercial" and "pool" crews supplying them with
the needed gunnite. After the initial morning run, these
trucks are dispatched pursuant to radio requests from the
crews for material. The labor policies of the four corpora-
tions evolve through discussions among the named corpo-
rate officials.
It was stipulated at the hearing that Crockett-Bradley,
C B Materials, and Concrete Sciences constitute a single
employer for purposes of this proceeding. On the basis of
the evidence presented, I find that R. E Holton is also a
part of the single employer Respondent herein for all pur-
poses.
11 JURISDICTION
It was admitted in the answer or stipulated at the hearing
that, in the course and conduct of its business operations
during the year preceding issuance of the complaint herein,
a representative period, Respondent provided services in an
amount in excess of $50,000 for Rule Pools Co., a Florida
corporation, which is engaged in the business of construct-
ing swimming pools on both a residential and commercial
basis and that Rule Pools Co. annually purchases and re-
ceives goods and materials valued in excess of $50,000 di-
rectly from suppliers located outside the State of Flonda.
Additionally, the record establishes that during the past
year Respondent's gross revenues were in excess of $4 mil-
lion, and that it performed work on Fontainebleau Park for
Trafalga Developers valued at approximately $750,000 on
a project totaling in excess of $10 million. In the past year
Respondent, through C B Materials, purchased in excess of
$1 million in materials , $500,000 of this from Maule Indus-
tries. Respondent also purchased in excess of $750,000 in
equipment from various sources. Gunnite shooting equip-
ment purchased outside the State of Florida alone totaled
$25,000. Respondent is the exclusive distributor for the
State of Florida for the Reed gun manufactured in Califor-
nia and used to shoot gunnite. In the past year Respondent
sold such equipment to companies located in Ohio and
Louisiana with several units costing about $5,000 each. Six
used mixer trucks worth approximately $4,000 each were
purchased in the past year from a source in the State of New
Jersey, and there were purchases of other trucks from local
sources. Respondent operated 60 vehicles for which it pur-
chased approximately $300,000 in fuel in the past year. The
cost of repair parts during the same period was around
$100,000.
The foregoing commerce figures amply 5 establish that
the Respondent herein is engaged in commerce within the
5 1 find it unnecessary to consider for purposes ofjurisdiction the evidence
offered by the Union to show that Respondent, through R E Holton's
collective-bargaining contracts, is a member of employer associations or
multiemployer bargaining groups which collectively would establish that
Respondent is subject to the Board's jurisdiction Although the Respondent
refused to admit to the legal conclusion that it was subject to the jurisdiction
of the National Labor Relations Act, and refused to comply with the Union's
subpoena for financial records, in view of my finding herein I deem it
unnecessary to determine whether adverse inferences are appropriate, as
urged by the Union
CROCKETT-BRADLEY INC.
meaning of Section 2(6) and (7) of the Act.
111 THE LABOR ORGANIZATION
Teamsters Union Local 769, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen,
and Helpers of America, hereinafter called the Union, is
now, and has been during all times material herein, a labor
organization within the meaning of Section 2(5) of the Act.
IV THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The questions presented by the pleadings, argument, and
brief are:
I. Whether Respondent engaged in interference, re-
straint, and coercion of its employees in violation of Section
8(a)(1) of the Act by interrogation, threats, and offers and
promises of benefits; urging the formation of employee
committees to deal with the employer; offering to negotiate
a contract through the employees' lawyer; circulating and
urging the employees to sign a petition to retrieve the cards
and revoke the authorization of the Union for representa-
tion ; telling employees that the plant was closing and to
pick up their checks; and advising against honoring of a
Board subpena.
2. Whether Respondent discriminated against employees
in violation of Section 8(a)(3) of the Act by locking out
and/or causing a loss of earnings to discourage union
adherence.
3. Whether the Respondent violated Section 8(a)(5) of
the Act by refusing to extend recognition to the Union as
majority representative of its employees in an appropriate
unit.
B Background
As previously indicated, with respect to Respondent's
production, Crockett has overall responsibility, Elgrim is
directly in charge of the operations at the yard and in the
field, and Rod Maine has responsibility for the yard. Maine
orders the material used, mainly cement and sand, and su-
pervises the truckdrivers and the batch plant loading opera-
tion. Supervising the crews in the field are four
superintendents who are directly responsible for the opera-
tions at the jobsites.
Evidence was presented indicating that in October 1971,
many of the same employees involved herein signed a peti-
tion revoking their authorization of the Union herein to
represent them. They called upon the union representative
for return of their cards and since he had not yet submitted
these to the National Labor Relations Board, he returned
them to the men at their request. He subsequently received
a copy of the employees' petition with a covering letter
signed by "Brad" Liljestrand on the letterhead of Daisy
Materials, Inc. "Brad" Liljestrand is one and the same indi-
vidual as the "J. B. Liljestrand" involved in this proceeding,
who acknowledged he had sent that letter to the Union.
Liljestrand is also frequently referred to in the testimony as
"Brad" or "Bradley.
437
C. The Union Activity
Mixer drivers Charles McGovern and Robert Brangan
visited the union hall on February 1 and obtained authori-
zation cards on which they solicited signatures from fellow
mixer drivers, tractor-trailer drivers, the front-end loader
operator, and the batch plant operator. A substantial num-
ber of these employees signed cards on February 2 and 5,
which McGovern turned over to the Union representative
on February 5.
D. The Conduct Involved
1. The meeting and lockout ,
Early on February 6, Maine learned from the yard me-
chanic at Ravenswood that the drivers were unhappy with
their wages and that McGovern was their spokesman. Mc-
Govern had been dispatched with his first load to the Miami
area. While at thejobsite McGovern received from the crew
foreman a message to report to the Miami plant and wait
for a call McGovern went to the Miami plant where he was
met by Maine and Elgrim, both of whom admittedly had
gone to the Miami plant especially to talk to McGovern.
They took him aside for a conversation.
The testimony which I credit indicates that Maine asked
McGovern why he had not come to Maine first before going
to the Union. McGovern responded that he had done what
the men wanted. Maine inquired of the nature of the drivers'
problems and McGovern advised that the men had various
complaints but basically it was money. Elgrim told Mc-
Govern he would like a chance to talk with the men and try
to iron out their differences before the union matter became
final, and Maine asked McGovern if he had already turned
in the union cards. McGovern indicated that he had Elgrim
said he would still like to meet with the men and talk it over.
McGovern would not commit the men to such a,meeting
but said he would speak to them individually at the yard to
ascertain their reaction to the suggestion for a.meeting with
management. Elgrim instructed McGovern to return to the
Ravenswood yard for this purpose and to let them know the
results. Around 4 p.m., McGovern advised Maine the men
were willing to meet with and listen to the -management
officials.6
Crockett admitted that he was informed by Elgrim of the
report of dissatisfaction among the drivers because of their
6 Driver. Randy Rogers aestified that dispatcher David Mizer told him
about the meeting around 10 30 or .1 I a.m Driver Gus Ross learned of the
meeting from Maine when he approached the latter to inquire about his
promised uniform Driver Allen Keller testified that when he came back to
the yard around noon, McGovern told him the Company had found out
about the Union and that he, McGovern, was the ringleader, they sent
someone to get him at the Miami plant and were going to have a meeting
with the drivers Driver Bob Brangan recalled that when he returned to the
yard about 1 30 p in that day he observed that none of the trucks were being
loaded He asked the batcher. Aubrey Clinton, what was going on and was
told that the Company was calling a meeting Mizer stated that because of
statements by various drivers he walked over to the batch plant and into
Maine's office to ask whether there was going to be a meeting, and that
Maine told him there would be as far as he knew Mizer further testified that
none of the crews called for more material after about 2 p in , and most of
them returned to the yard by 4 p m
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pay scale, of the trip by Elgrim and Maine to the Miami
plant that morning 1 to talk to McGovern, who was the
employee spokesman, to find out what was going on; and
of Elgrim's arrangement with McGovern for a meeting be-
tween management and the drivers to see what could be
worked out. Crockett told Elgrim, "Fine, we'll have the
meeting today." I find that Respondent independently
made the determination that it would hold the meeting with-
out regard to employees' wishes and that it made this deci-
sion long before it received any response from McGovern
as to the desires of the employees.
Around 4:30 p.m. the drivers assembled in the yard near
the batch plant where truckdriver meetings are usually held,
and at 5 p.m. management officials came over from the
trailer-office. In addition to Maine and Elgrim, there were
Paradise and Crockett and Sattee, whom Crockett had sum-
moned from his 7th Avenue office earlier in the day for the
purpose of attending the meeting with the drivers.
There is general agreement among the witnesses that El-
grim started the meeting by asking the drivers to state what
their problems were and that this was followed by a long
silence which caused Elgrim to state, "if there is a problem,
let us hear about it." There is disagreement among the wit-
nesses as to what was said next with General Counsel's
witnesses testifying that one of the drivers stated they want-
ed union representation, and Respondent's witnesses insist-
ing that the interest of employees in the Union was not
mentioned until about half or three-quarters through the
meeting. The witnesses do agree, however, that various em-
ployee complaints were brought up, that Crockett did most'
of the talking, that Crockett had'a clipboard pad on which
he was making notations, and that Crockett promised to
change various conditions, to investigate the cost involved
with respect to other suggestions, made some suggestions
himself for the formation of employee committees, an-
nounced an added holiday, and offered certain benefits,
including a wage increase proposal
Specifically, on the matter of drivers being required by
the mechanics' supervisor at the 7th' Avenue shop to per-
form certain mechanic work while their trucks were being
repaired, the drivers were told by Crockett that this was not
part of their job and that they were to do no more than
operate levers, etc , from the cab of their truck. With respect
to safety, Crockett directed Maine to substitute long han-
dles for the short ones on the mallets used by drivers to free
the drums of their trucks of "dead"- gunnite'before reload-
ing. In addition, Crockett advised the drivers that Elgrim
was the safety director for the Company and that Maine was
the assistant director, information concerning which em-
ployees had no prior knowledge, and suggested that em-
ployees form a safety committee to bring unsafe matters to
the attention of these,individuals.8 In response to their indi-
cation that additional holidays were desired, Crockett ad-
vised the men for the first time that the Company had
already decided to give one additional holiday. Drivers reg-
istered complaints about the delay in issuing uniforms and
of the improper service those who had uniforms were receiv-
ing. Employees were advised by Paradise, who handled such
matters, that the Company was in the process of changing
to another uniform supplier. The question of adding eye and
dental care to the health insurance program was referred by
Crockett to Sattee to ascertain the availability and feasibil-
ity of such added benefits.
On the subject of money, an employee asked Crockett
what the Company had to offer in this respect and Crockett
told the drivers that although Liljestrand was out of town
they had previously discussed the matter of raises for the
drivers and that he could offer them 25 cents now and 25
cents in 6 months.9 The drivers reminded Crockett that they
had not received a raise since June or July of the previous
year and had been passed over in December when the crews
received raises. Crockett explained that the Company had
only recently received price increases from the "trade," and
that the Company was under price control and could not go
back to the "trade" for more money. There was an indica-
tion from one of the drivers that they wanted what concrete
drivers at Mack and Lehigh were getting. It was generally
understood that those drivers were represented by the
Teamsters and were receiving union wage scales and follow-
ing union work rules. According to Crockett, he responded
that he did not see how the Company could continue to exist
under those circumstances. He explained that the Company
was essentially part of the swimming pool industry sup-
plying gunnite and, that if they had to work under concrete
truckdriver pay scales and work rules, this would throw
their costs into chaos and force them to raise their prices so
high it would throw them out of competition. Although
Crockett stated he did not believe he had "come on that
strong," I credit the testimony of various witnesses that
Crockett also said that union wages would cause the Com-
pany to go bankrupt and put them out of business. Paradise,
who is in charge of Holton operation where employees have
union contracts, told the drivers that under union rules
drivers normally work only 40 hours to week whereas the
drivers involved regularly worked overtime, and that he did
not think they would make as much money with union pay
scales and work rules as they were then making. He also
stated that there is no job security in unions, and that as
long as a driver is doing a good job he would have a job.
According to Crockett, at this point he was getting ques-
tions from several areas, but he had the impression the
drivers felt they needed 'security both with respect to the
money 10 and with respect to the job. He was displeased
At another point in his testimony Crockett said he told the drivers that
this offer would have to be approved by Liljesirand who was out of town
Although this is consistent with Maine's testimony, the accepted version is
consistent with the testimony of other persons present and'with Crockett'sti'
later assertion that he made a firm offer
7
At first Crockett indicated he knew nothing of these matters until just
before the meeting, and that Elgrim was in the yard all day On the other
hand, Mizer, who shares Elgrim's office , testified that Elgrim was out in the
field all day
8 Maine denied that Crockett suggested the men form a safety-committee
but said only that a couple of drivers could be added to the committee
consisting of him and Elgrim This is contrary to the testimony of Crockett
and most of the other witnesses
10 It was asserted by one of the drivers who had been with the Company
longer than others that the preceding year when employees signed cards-and
retrieved them from the Union on the Company's promise of benefits and
wage increases, the employees did not receive all of the raises promised, and
that the promised increases made at this meeting should be put in writing
At first Maine testified he had no recollection of any mention of that com-
ment, but on further examination he recalled that the employees did say they
wanted any wage increase promise in writing and that it was brought out at
CROCKETT-BRADLEY INC. 439
about the degree of focus on union wages and conditions,
and "got off the union thing dust as quickly as I possibly
could. I didn't want to discuss it any further." 11
Crockett told the drivers that the Company had not been
too successful; it was dust beginning to show a profit of
approximately 6 percent and an increase in wages of the
magnitude suggested would throw it into a "losing situa-
tion." One of the employees, who admittedly had been
drinking," began arguing about the 6-percent figure and
when he persisted Crockett assertedly threw up his hands
and said, "Look, I've heard your gripes. I don't even want
to discuss any part of what we're talking about." He stated
he did not want to discuss union scale and union rules; they
were there to talk about gripes and he had made them an
offer as far as money was concerned. Now he would like to
suggest that the employees form a committee of three who
would take employee gripes and talk to management at any
time, but for purposes of the immediate problem, the em-
ployees should consider the matters that had been dis-
cussed, and form a committee of three who could sit down
with management to iron out their differences and de-
termine whether they and the Company could arrive at an
agreement.
Brangan indicated the drivers would disucss the matter
among themselves and let Crockett know their decision the
next day. Crockett stated he would rather receive their an-
swer that night. It was decided that members of manage-
ment would take a walk and the employees would have their
response to Crockett's proposal in 30 to 45 minutes.
When company officials left, the employees began their
discussion. Someone stated that they were no better off than
they had been before the meeting, and that in view of their
prior experience, employees could not rely on the promises
made at the meeting. To avoid a lengthy debate a vote was
called for, with all employees desiring representation by the
Union rather than accept Crockett's committee proposal
directed to go to a designated spot. Everyone present
walked over to the designated spot, thus affirming their
the meeting that the last time a 25-cent raise was promised employees they
did not receive it Maine also insisted he had no recollection of Paradise
speaking at all at the meeting , and his testimony with respect to the various
statements at the meeting is frequently inconsistent with that of Crockett and
other witnesses I find his testimony frequently unreliable and have therefore
credited most of the testimony of Crockett and other witnesses on the content
of the meeting
it McGovern testified he told Crockett that the men had no job security
and he would like some recourse for the men Someone stated that Maine
fired so many drivers (assertedly 14 within the preceding 90 days). that the
drivers just did not know whether they would have a job from day to day
Maine then took over the meeting pointing out each driver and listing his
offenses or derelictions of duty for which each could have been fired, and
indicating other drivers whom he had fired and rehired It was in this context
that, according to Respondent ' s witnesses , employee Rogers demanded to
know of Maine "Who told you about the Union Rod"' Crockett testified
this was the first time in the meeting he heard the Union mentioned and that
he said "Hey, I don't know where this came from but you are getting into
talking about Union-this is a horse of a different color Now what are we
talking about here Are we talking about gripes and money and problems that
we have or are we talking about Union9 We are not here to discuss the
Union "
12 For this reason , and because his demeanor as a witness as well as certain
characteristics of his testimony were so unacceptable. I have placed no
reliance on the testimony of Terry McGurr
choice of union representation. Brangan , McGovern, and
King went to tell the management officials of the employ-
ees' decision.
Not more than 5 minutes had passed when Crockett saw
the three drivers approaching him. Crockett testified that
when he saw there were three he thought they had taken his
advice and chosen a committee to represent the employees.
Followed closely by Maine, Crockett walked to meet them
and asked what the employees had decided. McGovern told
him of the employees' choice.13 Crockett testified that he
responded by throwing up his hands and telling McGovern,
"I can't see how we can operate like this" and walked
away.14 The three dnvers testified that Crockett stated the
plant was closing down and to tell the men they could pick
up their checks in the morning at 8 a.m. This is denied by
Crockett The three returned to where the men were waiting
and McGovern reported that Crockett said the plant was
closing and they could pick up their checks at 8 a.m. Mc-
Govern suggested that some of the men report at the gate
at their regular 6 a in. scheduled time to see whether their
trucks were being driven out of the yard.
Shortly before 6 a.m. on February 7, the drivers be-
gan arriving at the gate . Between 7 and 7.30 a.m. Maine,
who was moving sand about in the yard, advised Crockett,
who assertedly had come in early because of the employee
unrest and because he was interested to see dust what the
situation would be, that the men were standing outside the
gate.ls Crockett, with Elgrim, Paradise, and Maine, went to
13 Crockett and Maine testified that McGovern said "the employees decid-
ed they wanted a 100 percent union deal " McGovern, Brangan and King
testified McGovern said the employees had "voted 100 percent Union " The
testimony of the three employees most accurately reflects what had occured
among the drivers and I credit their version However, for purposes of de-
termining the issues in this case, I find no significant distinction between the
two version;
14 Although Maine was so close behind Crockett that they almost collided
when Crockett turned around. Maine testified he heard what McGovern said
but could not hear Crockett's reply
15 Much of the testimony regarding the early morning events of the 7th
preceding the confrontation between company officials and the men has
significance only with respect to credibility of the various witnesses It may
be noted that Mizer testified he arrived at 5 30 a in and found the gate open,
whereas Maine testified he arrived at 5 45 and unlocked the gate Maine also
testified tha t he had the lights in the yard and plant set to go off automatically
at 6 30 on February 7, in contrast to Crockett's testimony that he arrived at
the plant at 6 15 a m and noticed nothing unusual . although it was dark, the
lights were out at the hatching plant and he could not see if there were any
drivers in the area He further testified that he did not see any cars parked
outside the gate where some cars are normally parked A number of drivers,
who parked their cars outside the gate and remained there. arrived at the gate
between 5 50 a in and 6 15 a in None of them testified they saw Crockett
arrive
Maine further testified that when he went to operate the front-end loader
he noticed that two tractor-trailer drivers were checking their equipment and
that two trainees were there He drove the front-end loader out into the yard
and noticed the men at the gate He then came back to the hatching plant
where the tractor-trailer drivers told him they did not think they were going
to work that day He told them to do what they thought best The two trainees
asked him what to do and he said he had no one for them to work with and
to go home and report at 8 a in the following day Maine then returned to
the operation of the front-end loader from which he observed that more men
were congregating at the gate He then called and advised the office of their
presence and saw Elgrim and Crockett go to the gate He drove over to the
gate on the loader If, as Maine testified, he had not heard what Crockett told
the men the night before and had not spoken to Crockett after that confronta-
tion until he reported the men congregating, there is no indication how he
knew what the tractor-trailer driver was referring to which would account for
Continued
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the gate where Crockett engaged McGovern in a discussion.
Crockett's verson of what occurred at this point may be
summarized as follows- He asked McGovern what was
going on and was asked "What is your offer this morning?"
He replied that it was the same as the day before without
change, and said "let's go to work." McGovern said "You
have locked us out." Crockett responded, "What do you
mean, the gate is open." A driver from the crowd asked
Crockett to repeat "the deal" and he restated what he had
offered the employees at the meeting the evening before.
Someone asked whether he would put it in writing and he
responded that he would, "once we agree on what we are
going to do." He told them that the group they designated
could sign the written agreement, they could use the
Company's lawyer or get their own lawyer, and the Compa-
ny would pay for the lawyer, they could pay him, or "we
could split the cost." McGovern stated the employees were
going to negotiate through the Union, and Crockett told
him "we are not here to talk about negotiations. We are here
to talk about what I proposed yesterday." McGovern said,
"you won't negotiate with the Union?" and Crockett replied
he was not talking about negotiating with any union-"let's
go to work." McGovern said that the men did not want to
work under those conditions, and told Crockett they were
going home, turned around, and walked away Crockett
said, "OX, you can pick up your checks at 10." He then
returned to his office.
There are numerous variations as to the content of this
conversation in the testimony of the various employees.
McGovern testified that to Crockett's initial query he stated
the men were there waiting for their checks and Crockett
told him the checks were not there yet. Then Crockett asked
him if there was any change from the night before and
McGovern told him there was none; that the men still want-
ed to go union. McGovern, like Crockett, recalled that
Crockett had repeated in detail the offer he had made the
evening before, had engaged in the discussion of how a
signed contract between the Company and the employees
could be negotiated, and had indicated his complete flexi-
bility as to who would pay the lawyer. McGovern also testi-
fied that in response to his inquiry about negotiating with
the Union, Crockett asserted he wanted nothing to do with
it. McGovern denied he told Crockett the men would not
go back to work and asserted that Crockett did not tell him
the men could go to work. Other witnesses were able to
testify only with respect to portions of the conversation.
After Crockett and the other company officials left, Mc-
Govern and other drivers concluded they needed some
guidance as to what they should do under these circum-
stances and decided to go to the union hall to consult with
the union representative. At the union hall McGovern ex-
plained what had occurred the night before and during that
morning. The union representative placed some telephone
calls, then told McGovern to get the rest of the men and
his own response. or how he knew he would have no driver to assign the
trainees to that day 1 regard these matters as insufficiently litigated to make
any determinations thereon at this stage of the proceeding I find, however,
that McGovern and Keller did not enter the plant or punch their timecards
that morning
bring them to the union hall. When the employees all ar-
rived at the hall the union representative was on the tele-
phone, so McGovern obtained additional authorization
cards and solicited signatures from any of the employees
who had not signed previously. He turned those cards over
to the union representative, who came into the hall and told
the men he had been informed that the lockout decision had
not been made by top management and that if they reported
back to the yard they would be put back to work The
employees then returned to the yard
Maine came and told Crockett the men were assembling
at the gate again. Crockett, Elgrim, and Maine went to the
gate. Crockett asked McGovern what was happening now
and McGovern told him the union representative said he
received a call for the men to report back to the yard and
they would be put back to work. Crockett said that he did
not know anything about this 16 but, if that was what the
men had been told, they could come into the yard, get their
trucks ready, and see Maine about their schedule for the
next morning. Crockett explained that it was too late to go
to work that day as the crews had all gone home.17
Crockett admitted that in a telephone conversation on
February 7 he was told by Andy Sattee, a vice president of
Maule Industries and a brother of Nicholas Sattee, that
Andy had called the Teamsters union hall and was advised
the Union had instructed the men to report back to work.
Crockett testified that he did not know how Andy knew to
call the Teamsters but that there had been conversations
between Nick Sattee and Andy earlier in the day and that
it was generally understood where the men had gone. Maine
testified that some time after Crockett spoke with the men
at the gate, a contractor who had made a delivery told
Maine he would not be able to make another delivery that
day because the men had asked him not to. The union
business agent, Tony Cannestro, testified he received a call
from Andy Sattee who claimed he had cement deliveries to
make to Crockett-Bradley and understood they were not
working arid that it had something to do with the Teamsters
organizing. He advised Sattee he understood the Company
had locked the employees out. Sattee asked him what he
intended to do. He replied he could go to the National
Labor Relations Board or he could hit them with pickets.
Sattee told him to hold off for a call. When Andy Sattee
called back he said he talked to somebody at Crockett-
Bradley and that top management did not go along with the
lockout action and to tell the men to go back to work. Sattee
refused to identify the person he had talked to but assured
the union representative that his was a reliable source.
Crockett testified that he later learned the trucks had not
been loaded the night of February 6 as they normally would
be in preparation for the drivers who leave at 6 a.m. This
failure to prepare for normal operations on the 7th was
attributed to confusion caused by the holding of the meet-
16 King heard Crockett say he had not heard anything about such a call,
but at that point someone from the trailer came over and spoke to Crockett,
whereupon Crockett said, all right, you men can come back and we will settle
our difference, in another way
17 The grout crews, which did not depend upon the drivers for their supply
of material, had worked at their respective jobsites that day However, the
other crews had mingled with the drivers at the gate or worked at cleaning
their equipment until after Crockett had spoken to the drivers that morning
They were then dismissed for the day by Crockett
CROCKETT-BRADLEY i[NC.
mg. I do not find this a cogent explanation for the failure
of the night hatcher, who normally loaded the trucks after
the drivers had left for the day, to perform his usual duties
and must infer that he received instructions not to load the
trucks.
Crockett asserted that Elgrim did not tell him that Elgrim
and Maine had mentioned anything to McGovern about the
Union on the morning of the 6th; that it was not mentioned
during the meeting of the 6th that employees had signed
union cards or that they wanted to be represented by the
Union; and that the only indication he had that the men
were interested in being represented by the Union before he
received the demand letter on February 8, was when the
employees said they were going to the union hall on the
morning of the 7th (contrast his testimony-McGovern said
they were going home); that on the 7th or 8th, Maine told
him he had heard that union cards had been signed. He
further stated that no one in the Company had indicated to
him prior to the 7th that they had any knowledge of union
activity, and that during the meeting on the 6th, union scale
and union work rules came up but no specific union was
named.
Maine denied he told Crockett on February 7 that union
cards had been signed . He also denied that at the meeting
with McGovern at the Miami plant McGovern mentioned
that the men wanted a union or that they had signed union
cards. Maine asserted that he had no knowledge that the
men had signed cards until about a week later in a conversa-
tion with one of the drivers who is his nephew. However, at
another point in his testimony the following appears:
Q. Did you ever tell Mr. Crockett on either the 7th
or 8th that you knew that the guys had been signing
cards?
A. Yes, I believe I did.
Q. What did you say to him?
A. I believe I told Mr. Crockett on the afternoon of
the 7th that Scott King asked me to sign a card.
Q. Is that all you said to him?
A. I believe so.. .
Q. At that point did you know that the men were
signing cards?
A. At that point I did, yes
Maine also testified that on the afternoon of the 7th after
the men came back McGovern told him what had gone on
at the union hall.
I do not credit Maine's asserted lack of knowledge before
the February 6 meeting that the employees had signed
union authorization cards. His testimony in many respects
has been shown to be unreliable and in this specific respect
is clearly self-contradictory. Moreover, Maine's conduct,
immediately after he received information from the yard
mechanic that there was dissatisfaction among the drivers,
convincingly demonstrates that, in fact, on the morning of
the 6th, he learned of the union activity, and specifically of
McGovern's activity. Thus, although Maine's area of re-
sponsibility focused on yard activities, and Elgrim would
not normally have left the Ravenswood scheduling and dis-
patching office, the two promptly departed together for the
441
Miami batch plant where McGovern had been instructed to
go, specifically to see the driver whom they labeled the
employee spokesman although at that stage McGovern was
merely the most active card solicitor. Further, I credit Mc-
Govern's testimony as to the content of the conversation
with Maine and Elgnm at the Miami batch plant. Accord-
ingly, I find that Maine and Elgrim engaged in unlawful
interrogation of McGovern in violation of Section 8(a)(1) of
the Act by such conduct. I further find that both Maine and
Elgrim at that time knew the employees had signed union
authorization cards and that those cards had been turned
over to the designated Union. Such knowledge is attribut-
able to the Respondent. I am also convinced, and find, that
Maine or Elgrim relayed to Crockett the information they
had obtained and that this information entered into
Crockett's prompt decision that a meeting with the drivers
should be held that evening, and into his later insistence that
the employees respond to his proposals that night rather
than give their answer the next day. The total response of
the officials involved, the precipitousness of their actions,
and the readiness with which they responded favorably to
almost every employee problem mentioned at the meeting,
either with change orders or offers, demonstrates, and I
find, that the Respondent's sole purpose of the meeting was
to crush the union activity and to interfere with the exercise
of rights guaranteed employees under Section 7 of the Act.
Therefore, it is immaterial whether it was stated at the very
beginning of the meeting, or indeed at any time during the
meeting, that the employees wanted to be represented by a
union; that no particular union was named; or that their
discussion was in terms of union wage scales and union
work rules.
It follows, and I find, that Respondent violated Section
8(a)(1) of the Act by announcing an additional holiday,
promising other changes in working conditions, warning
employees that Teamster wages and working conditions
would force the Respondent out of business, offering em-
ployees an immediate wage increase and another in 6
months, telling employees they could have their own safety
and grievance committees to deal with management at any
time, warning employees that union scale and work rules
would cause loss of jobs by putting the Company out of
business, threatening loss of overtime if the employees were
represented by a union, and urging employees to establish
a bargaining committee to represent them in dealing with
the Respondent to see if they could not reach an agreement,
all for the purpose of causing them to relinquish their inter-
est in union representation , thus interfering with their Sec-
tion 7 rights.
With respect to the statement by Crockett to McGovern
after the men had caucussed on and rejected his suggestion
that they deal with Respondent through a committee and
discuss contract proposals, I credit the three drivers and
find that Crockett did say the plant was closing down and
the men should pick up their checks the next morning. I
base this holding in part upon the subsequent conduct of
those involved including the failure of the night dispatcher
to load the mixer trucks and Crockett's unusually early
arrival the next morning which he attributed to the "unrest "
Accordingly, I find that Respondent, by stating that it was
closing the plant , in effect announced an ultimatum that
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
drivers give up their desire for union representation or lose
their jobs , which option violated Section 8 (a)(I).
Again on February 7, Respondent violated Section
8(a)(1) by repeating the offers of benefits it had made on the
6th and offering to pay for an attorney to provide them with
a written contract , and by insisting upon the same condition
stated the previous evening that employees deal with the
Respondent through a committee or attorney and give up
their preference for representation by a union.
It is alleged that Respondent , by the foregoing conduct,
unlawfully locked its employees out or caused them to lose
work opportunities and wages Respondent asserts that the
gate was open and that the employees were not locked out
but instead engaged in a strike or walkout. In view of the
position taken both on the evening of the 6th and the morn-
ing of the 7th requiring employees to accept its committee
bargaining proposal instead of seeking union representa-
tion , I find that Respondent imposed an illegal condition to
the drivers ' working, amounting to an ultimatum, which
caused a loss of work and wages for that day. In so doing,
Respondent discriminated against the drivers because of
their union activity and thereby violated Section 8(a)(3) and
(1) of the Act. See Ra-Rich Mfg. Corp, 120 NLRB 503, enfd.
276 F.2d 451 (C.A. 2, 1960); North Country Motors, Ltd., 133
NLRB 1479.
2. Other incidents
Guss Ross testified that around 11:30 on the 6th of Feb-
ruary, he approached Maine to inquire about the uniform
he had been promised because no one had arranged to have
his measurements taken . Maine said he had just learned that
morning the men had signed cards for a union , and there
would be no uniforms for Ross or the men . Maine asked
Ross if he had signed a card and Ross replied that he had
Maine denied having any such conversation with Ross on
February 6, or any other time thereafter, assertedly "be-
cause I was instructed to not even mention any kind of
union activity," and because Ross was not eligible for a
uniform until the end of February . Maine also denied he
asked Ross whether he had signed a card. I have not found
Maine 's testimony generally credible and his stated reasons
why he would not engage in such conduct are not convinc-
ing I credit Ross and find that Respondent thereby violated
Section 8 (a)(1) by interrogation and threat of loss of bene-
fits.
On February 13, McGovern had occasion to go into
Maine's office. Maine told McGovern the Company had a
proposal they would like to present to the men, and that he
was not supposed to mention it but the Company would
give employees 50 cents retroactive to when the Union start-
ed and 25 cents every 6 months for a period of 3 years, an
extra holiday, July 4, and would discuss a dental plan. Mc-
Govern told Maine he did not think much of this proposal
but would find out what the men wanted to do. I do not
credit Maine 's denial of this conversation with McGovern,
and find this new proposal, designed to discourage union
activity , a violation of Section 8(a)(1).
On February 15, McGovern was in the yard waiting to
load his truck when Elgrim drove up near Maine's office at
the batching plant McGovern had information that four or
five men had gone to the office where Elgrim had explained
to them the new proposal before McGovern had had a
chance to speak with them. McGovern walked over to
Elgrim's car and told Elgrim he thought Elgrim had acted
improperly by making the proposal to the individual em-
ployees without waiting until all of the men were present.
Elgrim explained that the four had come in and asked him
to tell them what the proposal was. McGovern testified that
at that point Elgrim restated the proposal previously men-
tioned by Maine. McGovern told Elgrim he thought 3 years
was too long to go on a contract and Elgrim said this could
be negotiated. McGovern advised Elgrim that since he had
spoken to the four or five individuals, McGovern felt it was
out of his hands and he would not even discuss it any
further
Elgrim testified that on the occasion mentioned , McGov-
ern came to his car and said , "You've got a hell of a nerve
asking those people to come over and talk to you." He told
McGovern i.he employees had come to him and asked, then
he turned and walked away because he thought McGovern
was being arrogant. Elgrim insisted he did not tell Mc-
Govern who he had talked to or repeated any of their con-
versation and that he did not state any offer with regard to
money or retroactive pay to McGovern.
McGovern was a candid witness and throughout his testi-
mony gave the impression of one who was careful to adhere
to the truth. Although Elgrim had been ill and his testimony
was confined to only a few matters, he did not exercise such
care for accurate detail. Notably, in this situation, it is not
clear how Elgrim "walked away" from this conversation
which took place while he was in his car.
I credit McGovern over Elgrim and find that he repeated
the offer mentioned to McGovern by Maine, thereby violat-
ing Section 8(a)(I) of the Act.
While McGovern was at a pool site on February 16,
Crockett came and engaged him in conversation . McGov-
ern testified that Crockett asked him what he thought of the
proposal the. Company was making to the men. McGovern
responded that there were so many stories going around
that he did not really know what the proposal was. Crockett
told him it was 50 cents retroactive-but McGovern could
not recall whether Crockett said it was to February 6 or to
when employees started with the Union . He testified that
Crockett also mentioned the other conditions stated by
Maine and Elgrim and added that the employees could have
their own lawyer in their negotiations . Crockett asked Mc-
Govern how he thought the men felt about the offer. Mc-
Govern told Crockett the men were having a meeting on
Saturday and he would ask them. Crockett told McGovern
he thought the men on the negotiating committee should get
a little more in hourly pay.
Crockett testified that he was spot-checking crews on his
way to call on a pool company and stopped by a project
where McGovern happened to be unloading his truck. He
walked with McGovern away from the noise, leaving the
controls of the truck in the hands of a trainee who was with
McGovern that day. He testified that they talked about the
job and the trainee and that he did not ask McGovern what
he thought of the Company's offer. Crockett denied that he
CROCKETT-BRADLEY INC 443
mentioned retroactive increases or anything about employ-
ees having a negotiating committee of their own or that he
made any reference whatsoever to the Company's offer.
because he knew that McGovern was "the key man," or
"ringleader" and he had been told not to say anything.
Here, again, I do not find the reason given for avoiding
such an incident convincing. The officials knew from the
beginning of McGovern's central involvement in the union
activity and admittedly attempted to use this to get the men
to the February 6 meeting. Nor did the officials, by their
conduct, demonstrate that they were following any instruc-
tions to remain aloof from the employee union activity. It
is also noted that Crockett did not deny that such a new and
improved wage increase proposal had been formulated. I
credit McGovern's testimony with respect to this incident
and find that Respondent violated Section 8(a)(1) by this
conduct.
The employees held a meeting at Brangan's home on
Saturday, February 17, at which they selected a steward, an
assistant steward, and a secretary-treasurer. McGovern had
posted a notice of the meeting on the bulletin board beside
the timeclock Friday. McGovern, Rogers, and Clinton were
elected to the respective posts.
Rogers testified that on the following Monday morning
his truck broke down and, as was the practice in such cir-
cumstances, he went to Maine to ask whether there was
fill-in work for him to do or whether he should clock out and
go home. Some of the other drivers were present when he
approached Maine. Maine asked if Rogers was the spokes-
man for "these guys" and stated "I'm the boss." Rogers
replied he knew Maine was the boss and he was merely
asking for himself. Maine said he knew Rogers was the
steward and that in the future when a truck broke down the
drivers would be laid off automatically and the Company
would call the union hall for a new driver when the truck
was repaired; that this was what the men wanted if they
wanted a union.
Maine testified that he knew Rogers was a steward be-
cause McGovern advised him of this on Monday morning,
and he also knew of the meeting as he saw the posted notice.
Maine denied telling Rogers that in the future when a truck
broke down the driver would be laid off. He admitted,
however, that he had told someone of the drivers-and it
may have been Rogers-of his experience up north with a
unionized company wherein the driver went home when his
truck broke down and when the truck was repaired the
Company called the union hall for another driver
I credit Rogers and find that the statements by Maine
constituted a threat of changed working conditions which
violated Section 8(a)(1).
Dispatcher David Mizer, who attended the meeting at
Brangan's home, immediately thereafter drew up a petition
requesting the Union to return the signed authorization
cards and stating that the signatories to the petition did not
desire union representation Although Mizer was salaried
and did not stand to gain from the Company's various
offers, Mizer testified he had prepared and signed the peti-
tion the preceding year as well as the current one because
he felt the Company had more to offer the men than the
Union could. Mizer solicited and obtained signatures on the
petition from the employees involved,18 both at the
dispatcher's office and at the batch plant.
The General Counsel asserts that Mizer is a supervisor
and that Respondent violated the Act by his conduct in
drawing up and circulating the petition. The record fails to
establish that during February Mizer was a supervisor,19 or
that he was acting at the behest of and as an agent of the
Respondent in connection with the petition. The evidence
does establish, however, that Respondent's officials had
knowledge of the petition at the beginning of its circulation
and demonstrated to the employees their support and ap-
proval of it by various statements and conduct set forth
herein.
Cornelius Warran testified that he was asked by Mizer to
sign the petition on the morning of February 19, but re-
fused. Later that morning when Warran was at the dispatch-
er window to pick up his trip ticket Mizer again asked him
to sign the petition, and he said no. Crockett was in the
dispatcher's office. Crockett said to Warran, "you are a
fool." Warran replied, "that may well be" but he still was
not going to sign. Crockett told him that he would be sorry.
Crockett testified he is frequently in the dispatch room
and that he knew the petition was for the purpose of recall-
ing the cards from the Union was being circulated, but did
not know its source. He also recalled that this petitioning by
employees for recall of authorization cards happened once
before. He denied, however, that he ever witnessed Warran,
or any employee, sign the petition or that he ever spoke to
any employee about the petition. I credit Crockett's testimo-
ny in this respect. Both in this respect and in relation to
other events, Warran demonstrated a propensity for exces-
sive elaboration and did not impress me as giving an accu-
rate recollection of the actual events.
When Mizer first approached Rogers to sign the petition,
Rogers said that he would think it over. He did sign it later
at the dispatcher's office when it appeared that a majority
of the mien had signed. Crockett, Liljestrand and Maine
were there in the office. As he was leaving, Maine said
"thank you." I do not view this comment even in the context
19 Four employees working at the Miami plant came to the Fort Lau-
derdale plant from Miami specifically to sign the petition Mizer testified he
did not know who told them to do so and assumed that they had signed cards
None of the Miami plant employees had been solicited to sign cards Mizer
also left the petition in the office at the Ravenswood batch plant for I day
so employees in that area could sign it
9 Mizer was later promoted to field superintendent, a supervisory position
However. as dispatcher, he had no authority to hire employees or effectively
recommend such action Because of his location in the office, Mizer or
another office employee handed out job applications when Elgrim or Maine
were not immediately available and, at such time, he provided information
as to the prevailing terms of employment and job requirements for drivers
or crew members Mizer had no authority to discharge a driver or effectively
recommend such action I find that the instructions given by Mizer as dis-
patcher, bosh to the batcher as to the type and amount of material to be
loaded on the next truck in and to the drivers when handing out the trip ticket
for the load in helping a driver in person, by telephone. or by radio to locate
ajobsite. or in giving other instructions, taking mechanical breakdown calls.
and advising drivers whether to return to the yard or go to the shop, arranging
for the shop to send a mechanic, and the many other situations in which the
dispatcher played a part. did not constitute responsible direction of employ-
ees Rather, these were routing implementations of the established work
schedule and procedures and the relaying and coordinating of operative
information. I conclude that Mizer had no supervisory authority
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sufficiently significant to warrant finding an 8(a)(1) viola-
tion.
Brangan testified that at 6:30 on February 20, Mizer was
sitting in his truck near the hatching plant and Maine was
leaning against his front fender. Brangan punched in and
was going toward his own truck when Mizer called him over
and asked him to sign the petition. Mizer told Brangan that
once they got the cards back the Company could give the
employees an offer and if they were not satisfied the Union
would always give them cards to sign. Brangan refused to
sign. Mizer had also called Robinson over and Robinson
was immediately behind Brangan. Mizer told Robinson to
sign the petition and added they had just received the insur-
ance papers on his accident. Robinson became angered by
the reference to the accident and refused to sign. Maine
noticed that Brangan was staying near and, although Bran-
gan was a half-hour early for his work schedule, Maine
ordered him to go to his truck and get started. Brangan did
so.
I find Maine's conduct in this situation an endorsement
by Respondent of the petition signature solicitation being
carried on by Mizer, and that it was coercive in violation of
Section 8(a)(1) of the Act.
On February 20, Keller was digging a sump pump hole
beside the batch plant with O'Donnell. Maine approached
Keller and asked him whether he had signed the petition
yet. Keller replied, that he had not and that he could not do
that because it was against his principles.20 Mizer then drove
up in his truck and Maine left the men and sat in the truck
with Mizer. They called O'Donnell over to the truck. When
O'Donnell returned he told Keller he had signed the petition
and that he felt bad about it.
Maine testified he was talking with O'Donnell and Keller
when Mizer drove up in his truck and motioned to O'Don-
nell to come over. Keller asked Maine what was going on,
and he replied he did not know-"Dave was there with a
paper or something." Keller suggested it might be the peti-
tion. Maine further testified he said, "Well, didn't you sign
it?" and walked away. Maine admitted he knew Mizer had
the petition because he had seen Mizer around the plant and
at the dispatcher window getting the men to sign it. He
asserted that Mizer later told him they had taken the peti-
tion to the union hall but it did no good; and that only a
few weeks before the hearing herein, Mizer, for the first
time, explained what the petition was for.
Mizer testified that on the occasion when he asked
O'Donnell and Keller to sign the petition, Maine was not in
his truck. Rather, Maine was talking with the two men when
Mizer arrived and went into the batch plant office. On his
way back to his truck Mizer spoke to Maine who then
walked toward his office and Mizer asked the two men over
to his truck.
I do not credit Mizer's version of this event. The testimo-
ny of both Maine and Keller establish that Maine interro-
gated Keller as to whether he had signed the petition. I find
that both men knew what petition was referred to. Such
20 Keller testified that Maine did not state what petition he had reference
to but Keller understood what Maine was asking because he had been nearby
earlier when Mizer approached Ross at the hatcher's shack to sign, and
Keller had stood at the doorway saying "intimidation, intimidation "
interrogation is unlawful under Section 8(a)(I) of the Act.
Also on February 20, William Norris entered Elgrim's
office. Maine was there. Norris stated he had heard of the
new increased offer by the Company and Elgrim confirmed
the proposal. Norris also said he had heard about a petition
being passed around and asked who had it. Elgrim told him
Mizer had it at the batch plant. He found Mizer there and
signed the petition.
Elgrim testified that Norris came to him on February 20
inquiring about the petition and what offers had been made.
He told Norris he knew a petition was around but had not
seen it and that no offers had been made other than those
made at the February 6 meeting. Elgrim testified that he did
not state the particulars of that offer.
I credit Norris and find that by his conduct, Elgrim fur-
thered the dissemination of the wage offers of Respondent
as well as the solicitation of signatures on the petition to
retrieve the union authorization cards. Even if Elgrim, as he
claimed, referred only to the February 6 offer, this was a
reaffirmation of previous unlawful conduct and violative of
Section 8(a)(1)
McGovern learned from several other drivers on Febru-
ary 19 that David Mizer was obtaining signatures from
employees at the yard on a petition similar to the one em-
ployees had signed to reject the union the year before. When
he came to work on February 20 McGovern accepted the
petition offered to him by Mizer, read it, and returned it.
McGovern then tried to reach the union representative but
was not successful in doing so until that afternoon, at which
time he was told that three men had already been at the
union hall with the petition and demanded the return of the
cards. When McGovern returned to the yard at 4:30 or 5,
he asked Clinton if the latter would go with him to the trailer
to find out what was going on. Clinton said he would meet
McGovern at the trailer. While McGovern was waiting for
Clinton, Liljestrand came out of the trailer and asked
whether McGovern wished to speak to him. McGovern
replied that he did, but was waiting for Clinton tojoin them.
Liljestrand told McGovern that if he wanted to talk, Liljest-
rand would speak only to him and alone. At Liljestrand's
suggestion, the two went to a bar about two miles from the
yard, arriving between 5 and 6 p.m.
According to McGovern, in the conversation that ensued,
Liljestrand told McGovern that he would never let the
Company go Union if he could avoid it because he did not
want a third party telling him how to run his Company and,
financially, the Company could not afford the union scales
and would go under. Liljestrand told McGovern the Union
would not give employees representation and could not
protect theirjobs. McGovern replied they had no represen-
tation now and employees had no recourse from Maine's
propensity to discharge them Liljestrand told McGovern
that employees could always come to him or Crockett. Mc-
Govern responded that he had worked there 10 months and
had not even met Liljestrand before Liljestrand restated the
Company's latest wage proposal and indicated the employ-
ees could have their own lawyer, etc. He also told Mc-
Govern that if employees could get their cards back they
might be able to negotiate more money. McGovern advised
Liljestrand that he had spoken to the union representative
and that there was no way they could get the cards back.
CROCKETT-BRADLEY INC.
LilJestrand asked why McGovern did not offer the Union
representative something McGovern stated he doubted
that this would be successful.
LilJestrand testified that someone told him Brangan and
McGovern wanted to talk with him and he said "no." He
did not recall Clinton's name being mentioned . He agreed
to see McGovern only, went out to meet him , and suggested
that they go to a bar to talk . LilJestrand further testified that
McGovern asked him about various wage and other bene-
fits offered by Crockett when the "problem first started"
and that he reaffirmed those offers and most of what Crock-
ett had said . LilJestrand indicated he believed it was 25 or
50 cents and a reoccurance of these increases over future
years. He talked about the fact that the pool industry in the
South of Florida was basically nonunion and it would be
very difficult to remain competitive with Teamster rates.
LilJestrand testified he believed he spoke of the rates paid
by companies working on union scale and discussed how
these would effect their Company if they had to pay union
scale. He asked McGovern what the real problems of em-
ployees were that caused the situation to arise . LilJestrand
recalled that McGovern mentioned certain individuals in
the Company who created difficulties for the men on the
job, and of other problems such as safety and the need to
be able to handle problems as they came up. Liljestrand
asked McGovern why he thought they needed a third party
to discuss things like these matters and McGovern referred
to his past experience in working under a union contract in
the North, and being accustomed to having a third party
speak for him on grievances , etc. LilJestrand admitted say-
ing they employees did not need a representative because
they could always come to him . LilJestrand denied offering
McGovern 50 cents an hour to drop the Union . He denied
saying that if McGovern could get the cards back the Com-
pany would offer more money, or telling McGovern to offer
the Union money to get the cards back . LilJestrand admit-
ted talking about the petition that some of the drivers had
circulated and that they discussed whether it was going to
be effective in getting the cards back but he could not
remember specifically what he said.
Both versons of this conversation disclose unlawful inter-
rogation , threats, and offers of benefit by Respondent,
made for the purpose of interfering with the union activities
of employees , which constitute violations of Section 8(a)(I)
of the Act.
Rogers testified that several days. after the petition inci-
dent, while he was at a jobsite in Del Ray, Crockett came
by and engaged him in conversation Crockett stated he did
not want the men to think the Union was a piece ,of cake,
adding that you could lose a job whether you were Union
or not . Crockett then asked Rogers whether he was afraid
for his job. Rogers testified that although he was afraid, he
told Crockett he was not.
Crockett denied having any conversation with Rogers
subsequent to February 7, and specifically denied asking
Rogers what he thought in reference to the Union or telling
Rogers he could lose his job , Union or no Union.
Roger 's central role in the discussion of job security at the
meeting of February 6, including the fact that he had been
specifically singled out by Maine as one who had been
discharged several times and who was particularly vulnera-
445
ble to discharge , lends credibility to the incident he de-
scribed . In addition Crockett knew he had been selected by
fellow employees as a steward and Respondent was still
actively trying to destroy interest in union representation;
I am convinced that Rogers accurately reported this conver-
sation . I find the statements made coercive and in violation
of Section 8(a)(1).
At the hearing , the General Counsel amended the com-
plaint to add an allegation of an 8(a)(1) violation based on
the following incident. King testified that he was present on
July 2 when McLellan , who had received the General
Counsel 's subpena , went to Maine's office and showed the
subpena to Maine . Bob Vogt was inside Maine's office at
the time of the conversation and King was at the watercool-
er beside the office door , standing about 3 inches away from
McLellan . When McLellan showed the subpena to Maine,
the latter told him "Forget it , you don ' t have to go." King
injected the comment "what do you mean , he doesn't have
to go, that is a subpena ." Maine said that the Company
lawyer told them the men did not have to show up "unless
it goes to a higher court ." King replied "Baloney , it is just
like a traffic citation . If you get one to go to court , you had
better show up . If you don ' t go somebody is going to serve
a bench warrant on you ." At that point McLellan went out
to make a phone call.
Maine testified that McLellan said he wanted to see him
in private and that he, thereupon , dismissed all others pre-
sent in his office . He asserted that none of their conversa-
tion was overheard . Maine related that conversation as
follows: McLellan told him of the receipt of the subpena
from the N.L.R.B and, taking it out of his pocket, asked
Maine what he should do about it. Maine replied, "You
have to do whatever you have to do." McLellan asked, "Do
I have to go to the Board?" Maine told him that from his
own experience, "I don't think so, but I'm not sure." Maine
admitted he told McLellan " the way I looked at it, it was
not an indictable subpena and that they couldn ' t put him
in jail or anything if he didn ' t go." According to Maine,
McLellan said he would call a friend who is a lawyer in
Miami and Maisie told McLellan that if he wanted to call
a lawyer this was what Maine thought he should do. Mc-
Lellan came back later and said he had to go to the lawyer
because he had to answer the subpena , and Maine said
"O.K." Maine testified that McLellan parked his truck and
left. On cross-examination Maine testified that McLellan
told him he ' had talked to the Board attorney and was ad-
vised to come down to the Board office that very day;
McLellan asked whether he would be "on the clock" and
Maine told him he would not be. McLellan later reported
that , after he talked with the Board attorney , he was re-
leased from the subpena . Maine further testified that Mc-
Lellan did not tell him he in fact had never come to Miami
to talk with the Board attorney.
I credit King's testimony that he was present during at
least the part of the conversation he reported . The state-
ments made by Maine, both in that conversation and in
those related by Maine as having occurred with McLellan
without a witness , were clearly designed to encourage non-
compliance with a Board subpena. Such conduct interferes
with the vindications of employee 's rights under the Act and
is a violation of Section 8(a)(1).
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The refusal to bargain
(a) The demand and refusal
On February 8, Respondent received from the Union a
letter dated February 7, demanding recognition as collec-
tive-bargaining representative of Respondent's employees
in a unit consisting of all truckdrivers, helpers, batchers and
front-end loaders, excluding watchman, guards, profession-
al employees and supervisors. By letter dated February 19,
Respondent refused to extend recognition to the Union
stating "We doubt that you represent an uncoerced majority
of our employees. We suggest that you petition the National
Labor Relations Board for an election." At the hearing
herein Respondent challenged the appropriateness of the
unit claimed by the Union and set forth in the complaint,21
and the Union indicated its desire to represent any grouping
of Respondent's employees found appropriate which ex-
cluded the pool and commercial gunnite crews and the
grout crews.
(b) Function of the employees
Over half of Respondent's work involves swimming pool
construction on a subcontract basis, applying gunnite to
previously prepared swimming pools. Such preparation in-
cludes the excavation of the hole, the filling of it with prop-
erly placed reinforcing rods, the installation of all plumbing,
and the placing of appropriate screening lines When the
pool preparation at a given site has reached this stage it is
ready for the work which Respondent supplies and Elgrim
receives a notification to that effect. A field superintendent
is assigned to check the pool for readiness and to see that
the proper inspections have been performed as required by
the governing municipality. The pool is then placed on the
work schedule by Elgrim and assigned to one of the pool
crews to perform the gunnite construction work.
The pool crew, or gunnite crew, is made up of the nozzle-
man, the finisher, and one or two hole men. It is usually the
nozzleman who is designated foreman and who drives the
truck containing the gun, the compressor, and other equip-
ment to the assigned jobsite. His crew may leave with him
from the yard in the morning or may meet him at the jobsite,
at their option. The foreman keeps the record of the crew
members' working time. When the foreman arrives, he re-
checks the pool for readiness. His crew may have to pump
out excess accumulated water, repair a minor cavern, and/
or erect tarps to protect buildings or shrubbery. When he
has determined that the work can proceed, the foreman
gives the mixer driver a signal to commence mixing his load
When the load of mixed cement and sand is ready for
application the driver backs the mixer truck up to'the pool
crew truck which is equipped with a compressor and a hop-
21 The unit description is
All truck drivers , helpers. batchers and front-end loaders employed by
the Respondent at the Ravenswood Road location, excluding laborers.
mechanics , parts men , carpenters , dispatchers . trimmers, hole men. noz-
zlemen , carpenter 's helpers , mechanic's helpers. watchmen , office cleri-
cals, guards , professional employees and supervisors as defined in the
Act
per to the gun. The driver attaches his discharge chute to the
hopper which feeds the material into the high pressure hose.
This hose is also attached to the air compressor and leads
to the nozzle where water is inserted and the mixture is
applied by the nozzleman to form the configurations of the
pool. On signal from the foreman, the driver throws the
switch on the compressor and commences feeding his load
into the hopper by means of controls and levers on his truck.
It takes an average of approximately an hour to discharge
a full load in this fashion. During this time the mixer driver
is tending the flow of material from his truck. When the load
is nearly emptied, the driver signals the foreman, turns off
the compressor, retrieves the chute, obtains the foreman's
signature on his trip ticket, and returns to the yard for his
next load assignment.
The commercial crews, also referred to as the Holton or
Union crews, are made up of nozzlemen, trimmer, laborer,
and an operating engineer The mixer driver supplies the
commercial crews with the needed material in much the
same fashion as he does the pool crews, with one exception:
he does not handle the compressor switch, as jurisdiction of
this work goes to the operating engineer The driver handles
the controls governing the discharge of his load into the
hopper of the gun.
Mixer drivers do not supply the grout crews, who carry
their own material. Grout is hydraulically pumped concrete
used to stabilize soil The grout crews consist of a pipe man
and several laborers or mortar mixers and a pump man.
They, like the other crews, are dispatched from the Ravens-
wood Road yard, where they load their supply of material
at the batch plant. The grout crews perform pressure grout-
ing for both new construction and repair work. Roughly this
involves the placing of pipes into the ground at specified
places and depths according to 'engineering drawings and
the injection of a mixture of sludge and cement under pres-
sure, the purpose of which is to shore up walls or buildings,
prepare for foundations where the subsoil is not of sufficient
bearing quality to withstand the weight of construction; or
to prepare for pool construction.
The 12 or 14 mechanics work in the shop at the
Company's 7th Avenue location where they perform regular
and major repairs on all types of Respondent's equipment.
Two or three parts men purchase, keep stock and inventory,
and supply the shop with needed parts. A lead mechanic
and one or two helpers is assigned to the Ravenswood Road
yard to perform minor repair service on the spot when need-
ed for any of the trucks or equipment while at the yard..
They punch the timeclock used,for mixer drivers but remain
under the 'supervision of the shop superintendent at 7th
Avenue.
Also located at the yard 'is the batch plant where the
material is stored and dispensed 22 Two tractor-trailer` driv-
22 In February Respondent also operated a portable batch plant situated
in the South Miami area primarily to service the Fountainebleau Park con-
tract, but which was also used by drivers supplying pools in that area. The
large contract having been completed, the batch plant has since been dis-
posed of Also at that time Respondent employed a carpenter and an appren-
tice carpenter who were located at the Ravenswood Road yard The
experiment forwhich they were employed has since been abandoned That
new division involved home remodeling but most of the work performed by
the carpenters during the 3 months of their employment was on improve-
ments to Respondent 's property, and did not entail work related to the
I
CROCKETT-BRADLEY INC
ers haul sand to the yard A driver operates a front-end
loader for moving sand about the yard where it is spread to
dry and to the batch plant. The batcher operates the batch
plant where the mixer trucks are loaded in a rotating order.
A dispatcher gives the material requirements and their se-
quential order to the batcher who fills the mixer trucks to
those specifications. The driver then obtains his trip ticket
from the dispatcher and proceeds to the jobsite specified
(c) Function of mixer drivers
In its operations the Respondent utilizes approximately
65 pieces of heavy equipment, mostly specially fitted trucks,
of which 35 are mixer trucks. Mixer truckdrivers are hired
on the basis of their experience in handling heavy truck
equipment and are given about 3 days of training in the
operation of the Company's trucks and equipment. The
gunnite mixer drivers, together with the front-end loader
operator, the batcher, and two tractor-trailer drivers,. are
under the separate supervision of the yard superintendent.
These employees punch the timeclock located at the batcher
plant. Drivers check over their equipment, which is a con-
verted cement mixer truck,23 complete various driver logs
and reports, including one listing any mechanical malfunc-
tion of their unit which is placed in the mechanic's shack,
clean their drums of any clinging material from the preced-
ing load, participate in the loading on their turn at the batch
plant, transport the material to the job site, discharge the
load, and return to the yard and again prepare the truck
while waiting their turn to take out another load.
Specific trucks are assigned to each mixer driver If his
truck breaks down he is assigned another truck if one is
available. Otherwise he is given the option by the yard su-
pervisor of performing "fill in" work around the yard rather
than punch out on the timeclock. However, a driver is not
required to accept such work.
(d) Employment conditions
Except for annual outings, the Company conducts sepa-
rate meetings for the driver and yard employees and for
crew members. The commercial crews are covered by the
several area bargaining agreements of the different con-
operation of the drivers or the crews
23
The Company presently has a prototype of specially designed equipment
which will be mounted on the trucks in the place of the mixer drums, and
is taking bids for the building of such equipment and the conversion of the
trucks It is anticipated that this will be accomplished in approximately I
year Assertedly this will enable the Company to assign the material supply
truck and driver to the gunnite crew and will require only one truck. instead
of the present minimum of two , to service a crew , because the prototype is
designed to carry sand and cement in separate compartments and to carry
a small mixer which enables the mixing of smaller quantities as demanded
by the material flow requirements thus eliminating loss from spoilage of a
load caused by its setting reaction within 2 hours after the cement and sand
are mixed The evidence presented does not show why this change in mixing
procedure suggests the possibility of assigning the driver and his equipment
to the crew or why one such truckload is sufficient to replace the two and
more per pool now used Moreover, Respondent also supplies various jobs
with loads mixed at the hatching plant both dry and wet, depending upon
the requirements and the distance I conclude that the effect of the antici-
pated equipment conversion is speculative, and the time factor involved too
remote to affect the issues raised herein
447
struction unions, and their conditions of employment and
benefits accord with the governing labor agreement. All
other employees receive the same vacation, holiday, and
insurance benefits. Drivers and pool crew members, but not
grout crews or mechanics, receive 2-hour showup time
Drivers and mechanics receive free uniforms. Others, if they
use them, pay for their uniforms.
There have been permanent transfers of employees from
driving to crew work In such cases the individual is usually
trying to train for a higher paying job and the assignment
is made on a trial basis during which time the employee is
paid at the rate of his former job There is no real inter-
change of job assignments between drivers and crew mem-
bers Although there was considerable testimony regarding
cleanup assistance to crews and shoveling performed by
drivers, the record establishes that most of the shoveling is
done to retrieve spillage at the hopper caused by new drivers
running the hopper over, and even this shoveling is not ajob
requirement. Any cleanup assistance to the crews is very
infrequent and is on a voluntary basis, permitted only at the
end of the driver's last load of the day. Drivers have specific
instructions to hurry back to the yard at other times to take
out their next load.
Although the discharge of the material requires the driver
to work in close coordination with the nozzleman of the
crew for only about an hour with each load, he spends
approximately 50 percent of his working time at the con-
struction site This includes time consumed in waiting to
discharge his load either because the pool crew has not
arrived or is not ready, or because there is another truck
ahead of him still discharging a load These are faults of
dispatch timing not related to his job function. The driver
also spends a substantial amount of his working time wait-
ing at the yard for his turn for loading at the batching plant.
Drivers have fairly frequent contact with the yard me-
chanics. Their contact with the mechanics at the shop is
limited to those times when a driver takes his truck to the
shop for repair and thejob is sufficiently minor to warrant
his waiting for its completion He also has occasion to deal
with a shop mechanic if his truck breaks down on the road
and cannot be brought in under its own power. The shop
mechanics go out on such emergency calls.
Trucks, appropriately equipped, are assigned to the
crews A member of the crew and/or the foreman drives
such trucks to the jobsite. Crew trucks are used primarily to
move the needed construction equipment and are incidental
to the primary function of the crew which is the construc-
tion work, whereas the primary function of the mixer driver
is the transporting of material In these circumstances, I do
not view the use of trucks by the crews as diminishing the
separate identifiable function of the mixer drivers.
All employees have ultimate common supervision, and all
except the Holton crews, who work under the terms of their
respective collective-bargaining agreements, have the same
holidays, vacation plan, and insurance benefits.
(e) Appropriateness of the unit requested
Respondent asserts that only a unit of all production and
maintenance employees excluding all Holton employees is
appropriate In support of its contention Respondent urges
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the application of Board precedent involving craft sever-
ance, and those dealing with functional integration into the
production process or where drivers spend a substantial part
of their time in duties not related to their distinct function 24
Respondent concedes, however, that if the drivers qualify
for representation apart from the pool crews, then the me-
chanics should be excluded from the unit Emphasis is
placed on the driver's functional relation to the whole crew
during the "unloading" process This, it is argued, demon-
strates that the mixer driver is primarily a production em-
ployee and that his driving is only incidental to that
function.
I cannot accept this view of the mixer driver's job in light
of the clear separability of the similar Holton crews from the
mixer drivers who service them. Further, I am convinced
that the cases governing construction crafts urged by the
General Counsel are applicable to truckdrivers occupied in
hauling material to construction crews, and I view
Respondent's operation as falling within the construction
industry.25
Because of the work relationship and community of inter-
est between mixer drivers and other drivers who handle the
material supply process carried on in the Ravenswood Road
yard, I find that a unit of mixer drivers should include the
front-end loader operators, the tractor-trailer drivers, and
the batchers. When the Miami plant was in operation the
employees assigned there performed the same functions as
those at Ravenswood Road and all drivers sent to the Mi-
ami area used that plant for a second load I find that those
employees were part of the appropriate unit in February
1973. I find, however, that although the carpenters worked
at the Ravenswood Yard in February, they had no particu-
lar functional relationship or community of interest with
drivers and I shall not count them as part of the unit. Simi-
larly, the dispatcher who is directly supervised by Elgrim,
and sharing his office, performs a function which is quite
distinct from that of drivers but which is related more spe-
cifically to the operating crews' needs. Accordingly, the
dispatcher should be excluded.
Accordingly, I find that the unit urged by the General
Counsel is, and has been at all times material herein, appro-
priate.
(f) The Union's majority status
The General Counsel presented 34 authorization cards
signed by employees of Respondent designating the Union
as their collective-bargaining representative . Of these, 18
were signed on February 2, one was signed on February 4,
4 on February 5, and 5 on February 7, totaling 28 cards
executed before the Union's demand for recognition. Three
more cards were signed on February 9, one on February 12,
one on February 17, and one on February 20, which the
General Counsel has presented as proof of a continuing
24 Mallinckrodt Chemical Works, Uranium Division, 162 NLRB 387, Kala-
mazoo Paper Box Corporation, 136 NLRB 134, and related cases
25 See R B Butler, Inc, 160 NLRB 1595, 1598-99 and cited cases, Hydro
Constructors Incorporated, 168 NLRB 105, Sydney Faulks and Oliver Faulks
d/b/a Faulks Brothers Construction Co, 176 NLRB 324 Also see Graver
Construction Company. 118 NLRB 1050
interest in union representation
The payroll record of February 7 submitted by Respon-
dent shows that there were 37 employees in job categories
falling within the unit hereinabove found appropriate Ac-
cordingly, I find that the Union represented a clear majority
of the Respondent's employees in the unit for which it pre-
sented its demand.
It is established by the foregoing that the unit covered by
the Union's recognition request is appropriate for collective
bargaining purposes and that the Union represented a ma-
jority of Respondent's employees in that unit when it de-
manded recognition and bargaining in its February 7 letter
to Respondent. There remains, however, the question of
whether, in the circumstances of this case, considering par-
ticularly the Respondent's other unfair labor practices, a
finding of an 8(a)(5) violation and a remedial bargaining
order are warranted under the principles declared in
N L R B. v Gissel Packing Co., 395 U S. 575 (1969) Al-
though, in its letter of February 19 refusing to extend recog-
nition, Respondent questioned that the Union's majority
was uncoerced, no evidence was submitted to support any
such claim and this contention was not presented at the
hearing or in the Respondent's brief I therefore regard such
argument as having been abandoned I also regard the rais-
ing of that question as having been made in bad faith in light
of Respondent's other conduct.
As has been found supra, Respondent engaged in an in-
tensive campaign and course of conduct which was de-
signed to interfere with, restrain, and coerce its employees
from the very first day it learned of the interest in union
organization, and discriminated against them in their condi-
tions of employment for the purpose of depriving employees
of rights guaranteed by Section 7 of the Act. Even after
employees had demonstrated their unanimous desire for
union representation both on the evening of the 6th and the
day of the 7th, Respondent continued its campaign with
daily incidents of unlawful conduct, withholding its re-
sponse to the Union demand until the day the circulation
of a petition to revoke union authorizations began. Such
conduct clearly establishes Respondent's rejection of the
very principle of collective bargaining from the very begin-
ning I further find that the unlawful interrogation, threats,
warnings, promises, offers, and the ultimatum that the em-
ployees deal with Respondent through a committee or attor-
ney rather than their union representative, enforced by
locking out employees, and followed by further interroga-
tion and threats culminating in open support of the petition
to revoke union authorization and increased offers of bene-
fits if the leading union adherent could obtain the return of
the authorization cards from the Union, created an atmo-
sphere which effectively destroyed any possibility of an op-
portunity for the exercise of a free choice by employees.
Such substantial, pervasive, and extensive unlawful conduct
is so egregious as to require a finding, under Gissel, that a
bargaining order is the only effective remedy
Accordingly, I find that by failing and refusing, since
February 7, 1973, to recognize the Union as the majority
representative of its employees in the aforesaid appropriate
unit, and bargain with it as requested, the Respondent vio-
lated Section 8(a)(5) and (1) of the Act, and that, to effectu-
ate the policies of the Act, a bargaining order is necessary
I
CROCKETT-BRADLEY INC 449
not only to remedy that violation, but also to remedy the
Respondent's independent 8(a)(3) and (1) violations
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2) and (6) of the Act.
2. Teamsters Union Local 769, affiliated with interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, is a labor organization within
the meaning of Section 2(5) of the Act.
3 All truckdrivers, helpers, batchers and front-end load-
ers employed by Respondent at the Ravenswood Road lo-
cation, excluding laborers, mechanics, parts men,
carpenters, dispatchers, trimmers, hole men, nozzlemen,
carpenter's helpers, watchmen, office clericals, guards, pro-
fessional employees and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act
4 The Union at all times since February 7, 1973, has
been and now is the exclusive representative of all the em-
ployees in the aforesaid unit for the purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
5 By failing and refusing to recognize and bargain col-
lectively with the Union as the exclusive bargaining repre-
sentative of the employees in the appropriate unit set forth
above, on and after February 8, 1973, Respondent engaged
in, and in engaging in, unfair labor practices within the
meaning of Section 8(a)(5) and (I) of the Act.
6. By acts of interrogation, threats, offers of benefits,
urging the formation of employee committees to deal with
the Respondent, offering to negotiate a contract through an
employee committee or their attorney, supporting the
Union card withdrawal petition, and telling employees the
plant was closed and to pick up their checks the next morn-
ing, all in order to induce employees to refrain from union
activity and to revoke their designation of the Union as their
bargaining representative, and by interfering with the vindi-
cation of employees rights under the Act, Respondent en-
gaged in unfair labor practices within the meaning of
Section 8(a)(l) of the Act.
7. By discriminating against those employees by locking
them out and depriving them of work opportunities and
wages to force employees to deal with Respondent through
committees or an attorney rather than the Union, Respon-
dent engaged in unfair labor practices within the meaning
of Section 8(a)(3) and (1) of the Act.
8 The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
loss of earnings or other monetary loss they may have suf-
fered as a result of such discrimination, with interest there-
on, to be computed in the manner usually prescribed by the
Board.
Having found that the Union represented a majority of
the employees in an appropriate unit, and that, for the rea-
sons stated above, a bargaining order is required, it will be
recommended that the Respondent recognize and bargain
with the Union upon request
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended.
ORDER 27
The Respondent, Crockett-Bradley, Inc ; Concrete Sci-
ences, Inc., C B Materials, Inc , and R E Holton, Inc., its
officers, agents, successors, and assigns, shall-
I Cease and desist from
(a) Interrogating, threatening, offering benefits, urging
the formation of employee committees to deal with the
Company, offering to negotiate a contract through an em-
ployee committee or their attorney, supporting a union-card
withdrawal petition, telling employees the plant was closed
and to pick up their checks, or interfering with the vindica-
tion of employees' Section 7 rights
(b) Locking out its employees and depriving them of
work opportunities and wages, to force them to deal with
the Company through employee committees rather than
through a Union, or in any other manner discriminating
against employees in regard to hire or tenure of employment
or any term or condition of employment to discourage
membership in Teamsters Union Local 769, affiliated with
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, or any other labor orga-
nization.
(c) Refusing to bargain collectively with Teamsters
Union Local 769, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, as the exclusive bargaining representative of the
employees in the following appropriate unit*
All truckdrivers, helpers, batchers and front-end load-
ers employed by Respondent at the Ravenswood Road
location, excluding laborers, mechanics, parts men,
carpenters, dispatchers, trimmers, hole men, nozzle-
men, carpenter's helpers, watchmen, office clericals,
guards, professional employees and supervisors as de-
fined in the Act
THE REMEDY
Having found that Respondent engaged in and is engag-
ing in certain unfair labor practices it will be recommended
that it cease and desist therefrom and take certain affirma-
tive action necessary to effectuate the policies of the Act.
Having found that Respondent locked out its employees
and thereby caused a loss of work opportunities and wages
in violation of Section 8(a)(3) of the Act, it will be recom-
mended that Respondent make those employees 26 for their
26 Such group shall include the two trainees sent home by Maine Although
there is no real explanation in this record how the timecards of McGovern
and Keller happened to be punched. I find that neither of these drivers
entered the yard and they are covered by the Order herein I do not view the
status of the tractor-trailer driver as sufficiently litigated at the hearing and
shall defer his entitlement to backpay to the compliance stage of this proceed-
in
In the event no exceptions are filed as provided by Section 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Section
102 48 of the Rules and Regulations, he adopted by the Board and become
its findings, conclusions, and Order and all objections thereto shall be
deemed waived for all purposes
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-
organization, to form, join, or assist the Union, or any other
labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted
activities for the purposes of collective bargaining or other
mutual aid or protection, or to refrain from any and all such
activities.
2 Take the following affirmative action which is neces-
sary to effectuate the policies of the Act-
(a) Upon request, bargain with the Union named above
as the exclusive representative of the employees in the ap-
propriate unit described herein with respect to rates of pay,
wages, hours of employment, and other terms and condi-
tions of employment, and if an understanding is reached,
embody such understanding in a signed agreement.
(b) Make the employees whole for any loss of earnings
suffered by them, due to the February 7, 1973, lockout of
employees, in the manner set forth in the section hereof
entitled "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, person-
nel records, and all other records necessary for determina-
tion of the amount of backpay due and the rights of
reinstatement under the terms of this Order.
(d) Post at its place of business in Fort Lauderdale, Flori-
da, copies of the attached notice marked "Appendix " 28
Copies of such notice on forms provided by the Regional
Director for Region 12, after being signed by an authorized
representative of Respondent, shall be posted by Respon-
dent immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director for Region 12, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
28 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 "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Holton, Inc., have violated the National Labor Relations
Act and we have been ordered to post this notice.
The National Labor Relations Act gives you, as employ-
ees, certain rights including the right to support and join a
labor union and to bargain through your representative,
without fear of any interference, restraint, coercion, or dis-
crimination.
Accordingly, we give you these assurances:
WE WILL bargain, upon request, with Teamsters
Union Local 769, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive bargaining repre-
sentative of all employees in the unit consisting of;
All truck drivers, helpers, batchers and front-end
loaders employer by the Company at the Ravens-
wood Road location, excluding laborers, mechanics,
parts men, carpenter's helpers, watchmen, office
clericals, guards, professional employees and super-
visors as defined in the Act.
with respect to rates of pay, wages, hours of employ-
ment, and other terms and conditions of employment,
and if an understanding is reached, embody such un-
derstanding in a signed agreement.
WE WILL make our employees whole for any loss of
pay, with interest, suffered by them by reason of the
lockout on February 7, 1973.
WE WILL NOT discourage membership in Teamsters
Union Local 769, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other union , by locking out
our employees because of their union activities.
WE WILL NOT interfere with the exercise of employees'
rights by interrogation, threats, offers of benefits, urg-
ing the formation of employee committees to deal with
the Company, offering to negotiate a contract through
an employee committee or their attorney, supporting
the union-card withdrawal petition, and telling em-
ployees the plant is closed and to pick up their checks,
or interfere with the vindication of those rights
WE WILL NOT in any manner interfere with, restrain,
or coerce our employees in the exercise of their rights
to self-organization, to form labor organizations, to
join or assist the above-named Union or any other
labor organization, to bargain collectively through rep-
resentatives of their own choosing and to engage in
other concerted activities for the purposes of collective
bargaining or other mutual aid or protection, or to
refrain from any or all such activities
After a trial at which all sides had the chance to give evi-
dence , it has been decided-that we, Crockett-Bradley, Inc., Dated By
Concrete Sciences, Inc., C B Materials , Inc., and R. E.
CROCKETT- BRADLEY, INC, CON.
CRETE SCIENCES , INC, C B MA.
TERIALS, INC, AND R. E.
HOLTON, INC
(Employer)
(Representative ) (Title)
CROCKETT-BRADLEY INC. 451
This is an official notice and must not be defaced by or covered by any other material. Any questions concerning
anyone this notice or compliance with its provisions may be direct-
This notice must remain posted for 60 consecutive days ed to the Board 's Office, Madruga Building Suite 410, 1570
from the date of posting and must not be altered, defaced , Madruga Avenue, Coral Gables, Florida 33146 , Telephone
305-350-5391.