Dallas Concrete Co.

National Labor Relations Board - Board Decisions

Feb 11, 1953

102 N.L.R.B. 1292 (N.L.R.B. 1953)

1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees ; and that the Respondent thereafter met and discussed the matter with
the Union. Aside from the question of whether or not the Respondent was
obligated to bargain on the matter, the above facts disclose that the Union was
remiss by not answering the Respondent's letter before April 11, and that the
Respondent in fact did consult with the Union before taking final action.
Accordingly, the Respondent's motion to dismiss this allegation of the amended
complaint is granted.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in section III, above, occurring in
connection with the operations of the Respondent set forth in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, the
Trial Examiner will recommend that it cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. Chicago Stereotypers' Union, Local No. 4, International Stereotypers' and
Electrotypers' Union, AFL, is a labor organization within the meaning of Section
2 (5) of the Act.
2. By refusing on July 26, 1951, and thereafter, to bargain collectively with the
Union as the exclusive representative of all its employees in an appropriate unit,
the Respondent has engaged in unfair labor practices within the meaning of
Section 8 (a) (5) of the Act.
3. By the aforesaid refusal to bargain the Respondent has interfered with, re-
strained, and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act, and thereby has engaged in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
DALLAS CONCRETE COMPANY and DALLAS GENERAL DRIVERS, WARE-
IlOUSEMEN AND HELPERS , LOCAL UNION No . 745, AFL. Case No.
16-CA-407. February 11, 1953
Decision and Order
On August 5,1952, Trial Examiner James A. Shaw issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent and
102 NLRB No. 122.
DALLAS CONCRETE COMPANY 1293
the Union, the charging party herein, filed exceptions to the Inter-
mediate Report and supporting briefs. The Respondent also filed
a motion to reopen the record and take additional testimony.'
The Board 2 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the briefs of the parties, and the entire record
in the case, and hereby adopts the Trial Examiner's findings,
conclusions, and recommendations .3
Order
Upon the entire record in this case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Dallas Concrete Company,
Dallas, Texas, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively concerning wages, hours, and
other conditions of employment with Dallas General Drivers, Ware-
housemen and Helpers, Local Union No. 745, AFL, as the exclusive
representative of all ready-mix truckdrivers of Respondent employed
at its Dallas plant, exclusive of all others including supervisory
employees.
(b) Interrogating its employees concerning their union activities,
threatening to shut down the plant or other reprisals, and promising
them economic benefits to discourage their union affiliations and
activities; and in any other manner interfering with, restraining,
or coercing its employees in the exercise of the rights of self-organiza-
tion, to form labor organizations, to join or assist Dallas General
Drivers, Warehousemen and Helpers, Local Union No. 745, AFL,
1 The Respondent moved the Board to reopen the record for the purpose of showing that
of the 11 employees making up the Union's majority , only 3 remained in the Respondent's
employ, that of these 3 , 2 had, since the close of the hearing in this case on February 21,
1952, revoked their authorizations, and that 9 other truckdriver employees have in similar
manner indicated their desire not to be represented by the Union In view of our adoption
of the Trial Examiner's findings that the Respondent 's conduct, as detailed in the
Intermediate Report, constituted violations of Section 8 (a) (1) and (5) of the Act, we
find that any loss in the Union 's majority is to be attributed to the Respondent 's unfair
labor practices , and therefore that such loss of majority is not a bar to a remedial order
in this case . Franks Bros . Co. v. N. L. R. B., 321 U. S. 702; D. H. Holmes Co, Ltd. v.
N. L. R B., 179 F . 2d 876 ( C. A. 5), enfg. as mod. 81 NLRB 753. The motion to reopen
the record is therefore denied as the evidence sought to be introduced, could not, even if
proved, affect the Board ' s determination of this particular matter . L. Bonney & Sons
Furniture Manufacturing Co., 93 NLRB 1049.
9 Pursuant to the provisions of Section 3 (b) of the Act, the National Labor Relations
Board has delegated its powers in connection with this case to a three -member panel
[ Chairman Herzog and Members Murdock and Peterson].
8 We shall assert jurisdiction in this case , in view of the fact that the Respondent
furnishes materials valued in excess of $50 , 000, annually , to public utilities ; to State and
municipal governments for the construction , repair, and maintenance of essential public
highways ; and to enterprises engaged in producing or handling goods , destined for out-of-
State shipment , or performing services outside the State of Texas in the value of $25,000
annually.
1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or any other labor organization, to bargain collectively through rep-
resentatives of their own choosing, and to engage in concerted activ-
ities for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any or all of such activities except
to the extent that such right may be affected by an agreement requiring
membership in labor organizations as a condition of employment,
as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Upon request, bargain collectively concerning wages, hours,
and other conditions of employment with Dallas General Drivers,
Warehousemen and Helpers, Local Union No. 745, AFL, as the ex-
clusive representative of all employees in the aforesaid appropriate
unit and, if an understanding is reached, embody such understanding
in a signed agreement.
(b) Post at its plant in Dallas, Texas, copies of the notice attached
to the Intermediate Report and marked "Appendix C." 4 Copies
of such notice, to be furnished by the Regional Director for the Six-
teenth Region, shall, after being duly signed by the Respondent's
authorized representative, be posted by the Respondent immediately
upon receipt thereof, and maintained by it for sixty (60) consecutive
days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for the Sixteenth Region, in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
4 This notice , however, shall be, and it hereby is , amended by striking from the first
paragraph thereof the words "The Recommendations of a Trial Examiner" and substituting
in lieu thereof the words "A Decision and Order." In the event that this Order is
enforced by a decree of a United States Court of Appeals , there shall be substituted for
the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the
United States Court of Appeals , Enforcing an Order."
Intermediate Report
STATEMENT OF THE CASE
Upon a charge duly filed on July 26, 1951, by and on behalf of Dallas General
Drivers, Warehousemen and Helpers, Local Union No. 745, AFL, affiliated with
International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers
of America, AFL, herein called the Union, the General Counsel of the National
Labor Relations Board, herein respectively called the General Counsel and the
Board, by the Regional Director of the Sixteenth Region (Fort Worth, Texas),
issued his amended complaint dated January 25, 1952,1 alleging that Dallas Con-
1 The complaint as issued reads January 25 , 1951, and was corrected to read January 25,
1952, by motion of the General Counsel at the hearing herein.
DALLAS CONCRETE COMPANY 1295
crete Company, herein called the Respondent, had engaged in and was engag-
ing in unfair labor practices affecting commerce within the meaning of Section
S (a) (1) and (5), and Section 2 (6) and (7) of the National Labor Relations
Act, as amended, 61 Stat. 136, herein called the Act.
Copies of the complaint and the charge, together with notice of hearing
thereon, were duly served upon Rsepondent and the Union.
With respect to the unfair labor practices, the complaint alleged in substance
that Respondent : (1) Did on or about June 22, 1951, and at all times thereafter,
refuse to bargain collectively in respect to rates of pay, wages, hours of em-
ployment, or other conditions of employment with the Union as the exclusive
representative of all the employees of Respondent in the unit described herein
below, though requested to do so by the Union; (2) through its officers, agents,
and employees, Fred Fanning, J. L. Higgins, and Jack Williams did grant an
increase in pay on or about June 10, 1951; (3) on or about June 25, 1951, did
interrogate a number of employees as to their activity or union membership,
inquire about the union leadership, promise longer hours and more money, state
that the plant would never "go union," offer to give the amount of the initiation
fees and a bonus to its employees if they would resign from the Union, and
threaten to close its plant and discharge its employees if they continued with
the Union.
After the issuance of the complaint, and service made on the parties herein,
the Respondent filed the following motions with the Regional Director of the
Sixteenth Region, on or about January 28, 1952: (1) A motion to dismiss the
complaint on jurisdictional grounds, in that the Respondent was not engaged
in interstate commerce; and (2) a motion, which in substance is one for a
"more Definite Statement," or what is generally styled as a "Bill of Particulars."
The Regional Director of the Sixteenth Region referred said motions to the
Chief Trial Examiner, who in turn, referred them to the then duly designated
Trial Examiner, George A. Downing, who on or about February 1, 1952, denied
the "Motion to Dismiss," and granted in part the motion for a more definite
statement.
Respondent duly filed an answer in which it denied that it was engaged in
interstate commerce : (1) The commission of the alleged unfair labor practices;
(2) that if its agents, Fanning, Higgins, and Williams made the statements
attributed to them in the complaint, and that if anything was said by them to
the employees, then it was nothing more than a personal opinion and protected
as free speech under the provisions of Section 8 (c) of the Act; (3) that the
unit alleged in the complaint is inappropriate, and that hence since the Union
at no time represented a majority of all its employees, it had at no time refused
to bargain with the duly authorized agent of all its employees; and (4) under
all the facts stated, the complaint should be dismissed.
Pursuant to notice, a hearing was held at Dallas, Texas, on February 18, 19,
20, and 21, 1952, before the undersigned, the duly designated Trial Examiner.
The General Counsel, the Respondent, and the Union were represented by counsel
and participated in the hearing. Full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing upon the issues was
afforded all parties.
At the onset of the hearing, the Respondent renewed its "Motion to Dismiss."
It was denied without prejudice by the undersigned. The General Counsel at the
opening of the hearing moved to amend paragraph 9 (b) to read from "On or
about June 1, 1951, to the latter part of July 1951," in order to comply to Trial
Examiner Downing's previous ruling on the "Motion ." The motion was granted
1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the undersigned without objection . At the same time the Respondent was
permitted to amend its answer accordingly . Thereafter at the close of the
General Counsel 's case-in-chief , the Respondent renewed its "Motion to Dismiss,"
it was again denied without prejudice by the undersigned . At the close of the
hearing the Respondent again renewed its "Motion to Dismiss ." Ruling thereon
was reserved . It is hereby denied . The General Counsel , at the close of the
hearing, moved to conform the pleadings to the proof as regards minor matters,
such as names, dates, and the like. The motion was granted by the undersigned.
Though given an opportunity to do so all parties waived oral argument.
In accordance with permission granted at the hearing herein, the Respondent
and the Union filed briefs with the undersigned on or about March 21, 1952.
At the onset of the hearing herein , counsel for the Union moved to amend
the complaint in the following respects :
MR. MonRis . We move that that numbered Paragraph 9 be amended by
adding a new paragraph in the following language :
On or about July 13, 1951 , Respondent , by its officers , agents and employees
terminated the employment of Emil Dwight Reid, a driver of a concrete-
mixer truck, because of his membership and activities in behalf of the Charg-
ing Union , a labor organization , and that at all times since such date,
Employer has refused and does now refuse to employ the above-named
employee.
We further move to amend the amended complaint by the addition of and
the following changes in numbered Paragraph 10:
The present Paragraph 10, be changed to 10a and the following paragraph
labeled 10b, be added: By the acts described above in the last paragraph,
numbered Paragraph 9, Respondent did engage in and is hereby engaging
in an unfair labor practice within the meaning of Section 8 (a) (3) of
the Act.
We further move to amend Paragraph numbered 13 of the complaint by the
addition of Subdivision 3 to the last sentence so that the entire paragraph
will read as follows :
The acts of Respondent , described above, constitute unfair labor practices
affecting commerce within the meaning of Section 8 (a), Subdivisions (1),
( 3), and ( 5), and Section 2, Subdivisions ( 6) and (7) of the Act.
After the above motion to amend was stated to the record , the undersigned
was advised by the General Counsel that prior to the hearing the Regional
Director had dismissed the 8 ( a) (3) allegation in the Union 's charge, and that
thereafter the Union filed a similar motion with the Regional Director, who
dismissed it. The Regional Director 's action was then appealed to the General
Counsel in Washington , D. C., who sustained the action of the Regional Director.
The undersigned then denied the motion to amend on the grounds that under
Section 3 (d) of the Act only the General Counsel "shall" issue a complaint,
and that consequently he alone has the power to amend it at a hearing.
Counsel for the Union objected to the undersigned 's ruling as regards his
motion to amend , and renewed it at the close of the General Counsel's case-in-
chief. It was again denied by the undersigned . Thereafter , counsel for the
Union renewed his motion to amend the complaint at the close of the hearing
herein. It was again denied by the undersigned . During the course of the
hearing counsel for the Union in support of his opposition to the undersigned's
ruling on his motion to amend , urged that the undersigned exercise the discre-
tion vested in the Board and its agents to amend complaints in Section 10 (b)
DALLAS CONCRETE COMPANY 1297
of the Acts The undersigned does not so interpret Section 10 (b), particularly
in view of the plain language of Section 3 (d) of the Acts
In his brief counsel for the Union again renews his motion to amend. It is
again denied. In the considered opinion of the undersigned the language of the
Board, in Sailor's Union of the Pacific, AFL (Moore Dry Dock Company), 92
NLRB 547 (1950) is controlling. In that case a similar situation was involved
[except that therein, the charging party was the Employer], and the Board
said :
Section 8 (a) and (b) of the Labor Management Relations Act create
public and not private rights (Phelps Dodge Corporation v. N. L. R. B., 313
U. S. 177). The protection of those rights is entrusted to public officials and
not to private parties. The General Counsel of the Board has "final au-
thority, on behalf of the Board in respect of the investigation of charges
and issuance of complaints under Section 10 and in respect of the prosecu-
tion of such complaints before the Board. . . ... Thus, the decision
whether to issue a complaint, the contents of the complaint, and the manage-
ment of the prosecution before the Board is entrusted to the sole discretion of
the General Counsel (See Haleston Drug Stores, Inc., 86 NLRB 1166). It
follows that only the General Counsel may move to amend a complaint to
allege an additional violation of the Act. Otherwise the management of
the cause would pro tanto be taken from the General Counsel and en-
trusted to a private party, which is contrary to the scheme of the statute
and the specific provision of Section 3 (d). As the General Counsel has
declined to join in the charging party's motion, it is hereby denied. The
similar ruling of the Trial Examiner is also affirmed. [Emphasis supplied.]
Upon the entire record in the case and from his observation of the witnesses
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Dallas Concrete Company is a Texas corporation, with its principal office
and place of business in Dallas, Texas. It is engaged in the manufacture, sale,
and distribution of ready-mixed concrete and related products.'
The complaint, inter alia, alleges that : "The Respondent is affiliated with or
a subsidiary of Gifford-Hill Company, Inc., a Texas corporation, which com-
pany on its own and through affiliated or subsidiary companies, including the
Respondent herein, is engaged in the building, and construction business and
in furnishing supplies, materials, and equipment to such business in the States of
Texas, Arkansas, and Louisiana. The combined gross income from said busi-
ness exceed $3,000,000, annually." The answer denies the allegations in the
complaint as regards Gifford-Hill Company, Inc., and alleges that ". . . It is
a separate and distinct corporation from Gifford-Hill Company, Inc., it can-
not be brought into interstate commerce because Gifford-Hill Company, Inc.,
might be in interstate commerce. It does not operate in Arkansas and Louisiana.
It is not a chain enterprise or part of any chain or industry operating in several
States. It has four plants, all operating in Dallas County, Texas, and its place
2 Though the undersigned denied the Union 's request to amend the complaint, he did
permit its counsel to make numerous offers of proof in support of his motion. All of
which were rejected by the undersigned.
S See Laundry Workers International Union , Local 221 v. N. L. R. B., 197, F. 2d 701
(C. A. 5).
4 That is concrete in various consistencies.
1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of business is in Dallas County, Texas, and it delivers locally in the confines of
Dallas County, Texas, all its products of ready-mixed concrete."
The record shows and the undersigned finds, that there is a close and intimate
relationship between the Respondent herein and the Gifford-Hill Company, Inc.
The proof in this regard is as set forth immediately below.
The stock of the Respondent Company is owned by the following : 50 percent
by the Southwest Construction & Materials Company, Inc., 41 percent by the
Gifford-Hill Company, Inc., and 9 percent by individual stockholders. The officers
of the Respondent are :
J. Rutledge Hill, President
H. M. Lacy, Vice President
P. B. Keller, Vice President
R. E. Winn, Secretary-Treasurer
Fred Fanning, General Manager
The Southwest Construction & Materials Company, Inc., is a Texas corpora-
tion with its principal offices and place of business in Dallas County, Texas. Its
stock is owned by the following : 50 percent by the Gifford-Hill Company, Inc.,
50 percent by individuals, of whom at least 25 percent own stock in the Gifford-
Hill Company, Inc. Its of eers are as follows :
J. Rutledge Hill, President
H. M. Lacy, Vice President
F. R. Gifford, Vice President
R. E. Winn, Secretary-Treasurer
The Southwest Construction & Materials Company, Inc., is engaged in the
sand and gravel business for the most part in Dallas County, Texas, and to
some extent in and around Waco, Texas. Its raw materials such as sand, gravel,
and aggregates, are purchased in the State of Texas, to a great extent from
operations around Ranger, Eastland County, Texas. Its annual sales are in ex-
cess of $1,500,000. Its purchases of operating equipment, such as trucks, etc.,
are purchased through local dealers for interstate companies in Dallas, Texas.
The value of its purchases of such equipment for the year 1951 was in excess
of $100,000. The Respondent herein purchases approximately 95 percent of its
raw materials from Southwest Construction & Materials Company, Inc.
As to the Gifford-Hill & Company, Inc., it is a Texas corporation with its
principal office and place of business in Dallas , Texas. Its operations are in
Texas, Louisiana, and Arkansas. The Board has previously asserted jurisdiction
over this Company in Gifford-Hill & Company, Inc., et al., 90 NLRB 428. For
this reason the undersigned deems it unnecessary to comment herein on its opera-
tions. Suffice it to say, however, that the officers of Gifford-Hill & Company,
Inc., are the same as the Respondent herein, except as to Fanning, the general
manager of the Respondent. He holds no office with Gifford-Hill & Company,
Inc.
The undersigned is convinced that upon the foregoing alone, he would be
justified in finding without more anon, that the Respondent herein is engaged in
interstate commerce for precisely the same reasons that the Board found that
"Grand Prairie" and "Evangeline" were so engaged in the Gifford-Hill case
cited above. There the Board said :
... Although Grand Prairie and Evangeline may be considered as separate
legal entities, we are satisfied from the evidence of interlocking directorates,
common executive officers, stock ownership, and the other indicia of co-
ordinate activity alluded to herein that they are so intimately related to
DALLAS CONCRETE COMPANY 1299
Gifford-Hill as to warrant the conclusion that they constitute an integral
part of the multistate operations of that corporation . Accordingly, as
Gifford-Hill is clearly engaged in interstate commerce , we find that the
operations of Grand Prairie and Evangeline affect commerce within the
meaning of Section 2 ( 6) and ( 7) of the Act, and also that it would effectu-
ate the purposes and policies of the Act to assert jurisdiction in this case.
Since, however , the record herein sets forth in considerable detail the business
of the Respondent , the undersigned is convinced that it alone should be the
basis for a finding as to the question of commerce . By this means all parties
will have before them the facts , as the undersigned finds them from the record,
and their relationship to his ultimate findings as regards the effect the Respond-
ent's activities has upon commerce as defined and set forth in Section 2 (6) and
(7) of the Act.
From August 30, 1950, to August 30 , 1951, the Respondent purchased from
local ( Dallas, Texas ) dealers for nationally know enterprises , whose manu-
facturing plants are located in States other than the State of Texas, materials
and supplies , valued in excess of $100,000. Such equipment consisting for the
most part of automobiles , trucks, and equipment for its four plants in Dallas,
Texas, as set forth and described in Appendix A attached hereto. During this
same period of time the value of Respondent's sales of its services and materials
was approximately $1,750,000. Representative of its business operations is a
list of jobs which the Respondent was "currently" furnishing materials to on
August 23 , 1951, which is attached hereto and marked "Appendix B"
An examination of the jobs set forth in Appendix B shows that at times
material herein the Respondent furnished materials to the Austin Building
Company, for construction of facilities for the Dallas Power and Light
Company in the amount of $59,417 .50. The Board has previously asserted
jurisdiction over Dallas Power & Light Company, 60 NLRB 1089.
In addition to the foregoing , the Respondent furnished materials to various
construction companies retained by the city and county of Dallas , Texas for the
construction of bridges , overpasses , storm sewers , highways , streets, and other
similar projects in the amount of $222,160.°
During th i s same period of time the Respondent furnished materials to
various companies for use in the construction of facilities for the following
nationally known business organizations over whom the Board has asserted
jurisdiction : The Austin Company,' for the construction of buildings for the
Ford Motor Car Company in the amount of $89,800; 8 materials for construction
of retail stores for Sears Roebuck & Company, $4 ,550;9 for the Grinnell Corpora-
tion ( Sprinkling Systems ), $6,233; '° for the Ruberoid Company, $6 ,825; 11 for
Stokely Foods , Inc., $18,200.12
5 Appendixes A and B are copies of statements furnished the General Counsel by the
Respondent prior to the heaiing herein , and admitted in evidence without objection as
General Counsel 's Exhibits Nos. 2A and 2B
s Th.e ficure does not include materials furnished to general contractors for use in the
construction of schools , hospitals , housing projects , and recreational facilities for the
citizens of Dallas, which are well in excess of $200,000.
7 See The Austin Company , 70 NLRB 351 , enforced 765 F. 2d 592 ( C. A. 7) ; also 77
NLRB 938
8 Ford Motor Company , 92 NLRB 188
9 See Scars-Roebuck h Co., 82 NLRB 985; 90 NLRB No. 152, and 91 NLRB 1411.
10 See Gunnell Corporation, 72 NLRB 1177
11 See The Ruberosd Co , 71 NLRB 1420
12 See Stokely Foods , Inc., 78 NLRB 842 (1948 ) ; 81 NLRB 1103 ( 1949 ) ; 83 NLRB 795
(1949) . 91 NLRB No. 29 (1950)
1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record also shows that the operations of the Respondent are served by the
Texas & Pacific Railroad Company, particularly at its West Commerce Street,
Dallas, Texas, plant. Moreover, the Respondent at times material herein fur-
nished materials to the Burgher Construction Company in the amount of $18,200,
for the construction of a warehouse for the Texas & Pacific Railroad Company.
From all the above, the undersigned finds that the Respondent furnished
materials, that is ready-mixed concrete (or mixed the ingredients thereof at
the job sites by means of its mixer-mobile equipment), for concerns engaged
in interstate commerce valued in excess of $300,000.
It is well settled that the Board will assert jurisdiction over enterprises which
affect commerce "by virtue of the fact that they furnish goods or services neces-
sary to the operations of other employers engaged in commerce, without regard
to other factors, where goods or services are valued at $50,000 per annum or
more, and are sold to: (a) public utilities or transit systems; (b) companies
which function as instrumentalities and channels of interstate and foreign com-
merce and their essential links; or (c) enterprises engaged in producing or
handling goods destined for out-of-State shipment, or performing services out-
side the State, in the value of $25,000 per annum or more. This standard reflects,
in large measure, the results reached in the Board's past decisions disposing
of similar jurisdictional issues." n
In view of the foregoing and upon the record as a whole, the undersigned
finds that the Respondent herein, Dallas Concrete Company, Dallas, Texas, is
engaged in interstate commerce within the meaning of section 2 (6) and (7)
of the Act.
Since the undersigned has found above that the business of the Respondent
is of such a nature as to affect interstate commerce on the theory that it services
enterprises operating on a multistate basis, "and which enterprises perform
services outside the State of Texas valued in excess of $25,000, annually and
to hich enterprises furnish said products to establishments in Texas which pro-
duce or handle goods destined for out-of-State shipment valued in excess of
$25,000, annually,"'` he deems it unnecessary to determine the value of the
materials furnished by the Respondent by such multistate enterprises as the
General Portland Cement Company, Trinity Division, and the Lone Star Cement
Corporation, which furnish the Respondent with its cement."
II. THE LABOR ORGANIZATIONS INVOLVED
Dallas General Drivers, Warehousemen and Helpers, Local Union No. 745,
AFL, is a labor organization within the meaning of Section 2 (5) of the Act.
A. Interference with, restraint, and coercion
The Respondent in the course and conduct of its business in Dallas, Texas,
operates 4 plants. The main plant is located on West Commerce Street. The
other 3 plants are much smaller and are located at strategic points in the Dallas
Metropolitan area. For the most part the events with which we are concerned
herein occurred at the main plant.
Sometime in the late spring of 1951, the truckdrivers at the "Wamix" com-
pany, a competitor of the Respondent, engaged in a strike. From what the
is See Hollow Tree Lumber Company , 91 NLRB 635 See also the Board 's Sixteenth
Annual Report , and cases cited therein on pages 30, 3i , and 32, under subheading ( 5) Con-
cerns Serving Interstate Enterprises.
's Quoted portion from the complaint.
15 See Lone Star Cement Corporation, 88 NLRB 408.
DALLAS CONCRETE COMPANY 1301
undersigned can glean from the record herein, the strike was engendered with
considerable bitterness which resulted in a court action against certain partici-
pants in the strike . It was in the light of this atmosphere that the events
with which we are concerned occurred.
While t4e employees at "Wamix" were on strike , several of the Respondent's
mixer truckdrivers decided to affiliate with the Union . Sometime in the early
part of June 1951, some few of them went to the Union's office in Dallas and
expressed their interest in becoming members of the Union to J. C. Stewart,
secretary-treasurer of Local No . 745 and business agent for the Union . Stewart
.in turn turned the matter over to one of the union organizers , Mr. Jesse Wallace.
Thereafter , Wallace worked with the employees and on the night of June 21,
1951, met with those employees who were interested in joining the Union at
Cantrell's Cafe, located on Harvey Hines Boulevard about 5 miles north of
Dallas. At this meeting 11 of the Respondent 's 18 mixer truckdrivers signed
application for membership and authorization cards in which they expressed
their desire to join the union.
On the next day, June 22 , 1951 , Wallace turned the signed application for
membership cards over to Stewart , who in turn wrote the Respondent the
following letter :
DALLAS GENERAL DRIVERS, WAREHOUSEMEN AND HELPERS
LOCAL UNION NO. 745
1727 Young Street Dallas, Texas
June 22, 1951.
Mr. Fred Fanning,
Dallas Concrete Company,
123 Commerce Street,
Dallas, Texas
Dear Mr. Fanning :
Please accept this as official notice that a majority of your Ready-Mix
Drivers have designated Local Union No. 745, that is Dallas General Drivers,
Warehousemen and Helpers Local Union No. 745, affiliated with the Inter-
national Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers
of America, A. F. of L., as exclusive bargaining agent for them and have
authorized said Local Union, and its officers, to represent them in all matters
concerning their working conditions and wages.
We hereby officially request a meeting between you and/or the company
official with your company who has the authority to deal with the Union
in such matters and that such authorized officials of the Company and
officials of this Local Union do meet and discuss arrangements whereby
the Union may be recognized as such bargaining agent for said employees.
This is to further officially advise that the Union stands ready to prove
its claim of majority designated representation covering such employees.
May we hear from you at an early date.
Yours very truly,
/s/ J. C. Stewart
J. C. STEWART
Secretary-Treasurer and Business Manager.
The above letter was sent by registered mail, return receipt requested. On
June 25, 1951, the letter was received by the Respondent. The return receipt card
for "Registered Article, No. 209424," shows that it was addressed to "Fred Fan-
ning," and signed and receipted for by "J. L. Higgins." on June 25, 1951. After
250983-vol . 102-53-83
1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
receiving the letter Fred Fanning, the Respondent' s general manager , delivered it
in person to Vice-President H. M. Lacy, who in turn gave it to President J. Rut-
ledge Hill. The Respondent never answered the letter.
Upon receipt of the above letter, the Respondent through its key officials, took
immediate and direct action to thwart the concerted activities of its mixer truck-
drivers, and to stop the organization efforts of the Union amongst its employees.
Particularly active in this regard were General Manager Fred Fanning, Plant
Superintendent J. L. Higgins, and Yard Foreman E. E. "Jack" Williams.
According to the credible testimony of Jack J. Murphy, a mixer truckdriver,
Fred Fanning, on the morning of June 25, 1951, asked him if he had joined the
Union and he told him that he had. Fanning then told him that the Respond-
ent was a "pretty big outfit" and that President Hill would close the plant down
before he "went union." Fanning admitted querying Murphy concerning his
union activities but denied that he told him that the Respondent would close
down the plant if it went union. While in the main Fanning impressed the un-
dersigned as an honest witness especially when his demeanor is considered in
the light of that of Higgins and Williams, nevertheless there were times when
he seemed reluctant to give a complete account of incidents attributed to him by
witnesses called by the General Counsel18 Hence, under all the circumstances
and a consideration of his entire testimony in the light of the record as a whole,
the undersigned is persuaded that he did not give a complete and accurate
account of what transpired in the course of his conversation with Murphy. The
latter impressed the undersigned as an honest and forthright witness, conse-
quently the undersigned finds that Fanning made the remarks attributed to him
by Murphy.
Kermit V. Gilreath, a mixer truckdriver for the Respondent for the past 6 years,
testified that on or about June 25, 1951, Superintendent Higgins asked him if
he knew anything about the Union and if he had joined it. Gilreath told him
that he had. Higgins then queried him about the extent of the Union's organiza-
tion efforts, and he told him that all but 4 or 5 of the mixer truckdrivers had
"signed up" with the Union. Higgins then asked him if he knew who was re-
sponsible for the Union's organizational efforts and he told him that "he would
find out." A few days later Higgins again interrogated him about the Union
and who started it. In the course of this conversation, Higgins told him that
the Company would close down before they "went union" and that then "we
will all be out of a job."
James E. Hill, a mixer truckdriver for the Respondent, at all times material
herein, testified in substance that on or about June 25, 1951, Higgins asked him
if he belonged to the Union. He told Higgins that he did. Higgins then asked
him how many of the drivers had done so and he told him "practically all of
them." Higgins then said that the drivers shouldn't have joined the Union and
that the Company would never go Union. Shortly thereafter, Hill went into the
office and at that time the following occurred :
Q. Did you have another conversation with him in there?
A. Well, I went inside the office and Mr. Higgins and Mr. Fanning, the
superintendent, Dallas Concrete Company, was in there, and Mr. Fanning
asked me about the union.
Q. What did he say to you?
A. Wanted to know if I belonged to it. I told him yes sir, I did, and Mr.
'$ It is well settled that a trier-of-the-facts may credit a portion of a witness' testimony
and discredit the remainder either in part or in the whole. See Universal Camera Company,.
340 U. S. 474.
DALLAS CONCRETE COMPANY 1303
Fanning wanted to know if I didn't know what the wage was down there
before I came back to work. I had worked there before. I told him yes air,
I did. And -
Q. Now, at the time you signed up with the union you had only been work-
ing back there a short time, hadn't you?
A. Yes, air, I had.
Q. All right, go ahead and tell us what Mr. Fanning said.
A. Well, he asked me if I didn't know what the union was-I mean what
the company was paying. I told him I did. He said why in the hell did I
want to come back there and mess the company up then for and get a union
in on it when I knew damned well it wouldn't go union . I says, "Well, I
don't know that, Mr. Fanning. I believe they will."
A few days later Hill had the following conversation with Higgins :
Q. Now, about three or four days after this did you have another con-
versation with Mr. Higgins?
A. Yes, sir.
Q. Where did that take place?
A. That was on the lot out in front of the company there where the trucks
are parked.
Q. Who was present?
A Just Mr. Higgins and myself.
Q. What was said?
A. I started to load my truck. He asked me how the union was coming
along, if we were getting anywhere. I told him, "Well, I don't know."
He said, "Why don't you guys just let this thing drop, let it go like it is, just
like we were?" He said, "You are getting something started here I think
is going to ruin a good job. It only cost you guys about $6 to get in the
union, so I think maybe we can get that back for you and maybe a little bit
more , a little bonus or something to just let it go." I told him no, I thought
we had gone a little too far to do that now, so we would just let it go like
it was.
He said 0. K., he hoped we knew what we was doing, so he went ahead.
A few days after the above conversation occurred, Higgins again interrogated
Hill at the Respondent's #3 plant on Mockingbird Lane. At this time Higgins
reiterated his promise that the Respondent would refund to the employees who
had joined the Union their $6 initiation fees if they withdrew [from the Union].
According to the credible testimony of Victor M. Beardon, a mixer truck-
driver for the Respondent for approximately 4 years, he had several conversations
with Higgins about the Union both before June 25, 1951, and thereafter. The
first such conversation occurred around June 1, 1951, in the presence of Marvin
Ferris, the foreman of the Respondent's repair shop. At the time he and Ferris
were discussing "something about trucks," when Higgins came up to them and
asked him if he had heard anymore about the Union. Beardon told him that
he hadn't and Higgins then walked away. A few days later around about June 9
or 10, 1951, Higgins again came to him and said, "If you boys will forget about
this Union, I am working on you a raise," and that "I am pretty sure it will go
through."
It is significant that the Respondent did grant the employees a wage increase on
or about June 13, 1951, which was retroactive to June 3, 1951. The mixer truck-
drivers were given a raise of 5 cents per hour.
Beardon further testified that on another occasion he had a conversation with
Higgins out at plant #3, which was located on Mockingbird Lane. Since this
1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conversation was typical of the technique employed by the Respondent ( through
its plant superintendent , Higgins ) to thwart the efforts of its employees in their
attempt to exercise the rights guaranteed them by Section 7 of the Act, the under-
signed deems it desirable to set forth below an excerpt from Beardon's testimony
in this regard.
Q. (By Mr. Latimer) Now, do you recall having a conversation with Mr.
Higgins out at Plant No. 3?
A. That was three days after they started talking to everybody concerning
the union after they received a letter from the union.
Q. I didn't hear that.
A. That was three days after questioning everybody about the union. They
had already received the letter from the union stating they had signed.
Q. The company had received a letter?
A. Yes.
Q. And it was after that you had this conversation?
A. It was after that. It was on Thursday, Thursday evening.
Q. That was out at No. 3 Plant?
A. Yes, sir.
Q. Who was present at that time?
A. Stephens and I was the two drivers out there hauling-I don't remember
where we were hauling to-but Higgins and Fred drove up while I was
loading the truck.
Q. Who is Fred?
A. Fred Fanning, the superintendent.
Q. All right.
A. And Higgins said, "Vic, I have talked to everybody but you and
Stephens and I want to see what you all think about the Union.
I told him that I was with the rest of them and would stay with them.
And he said, "You got a good job here and dont's mess it up." Says, "The
union can't hurt us in any way." I asked him what he was worried about
then and he said he didn't want to lose good drivers and he went on to
say that the company could cover up the plant and close it down and they'd
never miss it. Said it would never go union.
Q. What else was said.
A. Well, I asked him about the Wamix at that time. At the time Wamix
was in court on that charge and he said they had one of their union, had
one of their drivers up testifying against them and I asked him if that
was the one that they had been talking about that had been paid to testify
for Wamix, and he said he didn't know anything about that and turned
around and left.
Beardon later on in his testimony on direct examination as regards the above
incident at the Respondent's #3 plant, implemented it to the extent set forth
below :
Q. Do you recall any other conversation with Mr. Higgins : Trial Ex-
aminer Shaw: What was your answer?
The Witness : On the day that he was out at No. 3 Plant I forgot to
mention while ago he did say that for me to talk to two or three of the
other drivers and see if I could get them to withdraw from the union ; that
he talked to Fred and he was pretty sure he would give us our six dollars
back plus a bonus if we withdrew from the union.
E. D. Chappell, a mixer truckdriver for the Respondent for more than 3 years
also testified that Higgins queried him about the Union and at the time told him
DALLAS CONCRETE COMPANY 1305
to forget about the Union , "... we-are going to get a raise in two or three weeks."
Thereafter , on several occasions Higgins engaged Chappell in conversations con-
cerning the Union , particularly his activities therein , and sought from him infor-
mation as to who instigated and was responsible for the Union 's organizational
activities among the mixer truckdrivers . On one such occasion , Higgins advised
Chappell to get out of the "Union " and that if he did he would see that he
(Chappell ) got his "money back," which the undersigned finds from all the
surrounding circumstances to mean the return of his $6 initiation fee.
The record is replete with testimony of employees of the Respondent other than
those referred to above, as regards the activities of Superintendent Higgins
during the times material herein . Since the testimony of these employees is of a
cumulative nature , the undersigned is convinced that it would unnecessarily
burden this report to set forth herein each and every bit of testimony that con-
cerns the conduct of Higgins. Suffice it to say however, that the remarks
attributed to Higgins by these witnesses, J. D. Gregg, Lester M. Crawford, J. W.
Beardon, and Emil Dwight Reid, are found by the undersigned to have been
uttered by Higgins in the mode and manner described by them in their testimony
before the undersigned. Further resolution of their testimony and that of the
witnesses which has been set forth herein, together with the undersigned's
evaluation of that of Higgins, will be set forth immediately herein below.
Higgins, on direct examination, specifically and categorically denied each and
every incident and statement attributed to him by the witnesses called on behalf
of the General Counsel . An examination of his testimony on cross-examination
discloses a labyrinth of reluctant admissions, denials, and outright contradic-
tions. His demeanor while testifying was far from satisfactory. Quite frankly,
he impressed the undersigned as a wilfully dishonest witness. Other than his
conduct while testifying, there are other factors that have persuaded the under-
signed in his appraisal of Higgins as a witness. For example, he testified,
inter alia , on cross-examination as regards his knowledge of the Union 's organi-
zational efforts in the following language :
Q. Was it before or after the company received this letter from the Union
asking recognition?
A. I don't know about that; I didn't even know they received the letter.
Q. When did you first learn they had received the letter?
A. When this-this lawyer there showed it to me awhile ago.
Q. Mr. Seay?
A. Mr. Seay , yes, sir.
Q. That is the first time you heard about it?
A. Yes.
Q. You hadn't talked to anybody about it until he talked to you about it?
A. I talked to the lawyers about it, yes, sir.
Q. When did you talk to them about it?
A. Just around the case here , they have asked me.
Q. When did they talk to you about it?
A. Yesterday and today.
Q. Then you knew about it yesterday, didn't you?
A. Yes, I knew about it yesterday.
Q. But you didn't know about it before yesterday?
A. No, sir , I didn 't know at the time this all was going on.
Q. Yesterday was the first time you knew that the Union had asked the
Company for recognition , is that correct?
A. Well, I wouldn 't say-I might have known it before yesterday, yes,
I knew it before yesterday , but I didn't know it at the time.
1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. When did you first learn about it? When did you first learn about it?
A. When this case started up, I imagine.
Q. You don't remember, is that correct?
A. I don't remember the exact date on it, no, I wouldn't commit myself.
I didn't know it at the time they received it.
Q. Pardon.
A. I didn't know it when we received the letter, or they received it.
The documentary evidence in the record, as well as that of General Manager
Fanning, belie his testimony in this regard. Higgins himself received the Union's
letter from the postman and signed the return receipt for it, and personally laid
it on Fanning's desk. Fanning's testimony as regards this incident set forth
below :
Q. Now, when was the first time that you knew any union, this union
claimed to represent any of your employees?
A. That was the latter part of June. It was on Monday morning. I
believe it was the 25th of June, I believe.
Q. Well-
A. 1951.
Q. Well, there has been a letter introduced in evidence which is dated
June 22, 1951, and there is a return receipt in evidence as GC-4A showing
the date of receipt June 25, 1951. Would you please look at the letter, which
is General Counsel's 4, and the return receipt, which is General Counsel's
4A, and testify whether or not that's your signature on the return receipt?
A. No, sir, it's not my signature. Higgins generally picks up the mail.
He probably signed for it and brought it. The letter was on my desk when
I got to work. I don't know whether this was the letter, but there was a
letter on my desk when I got to work.
Q. Does that look like the letter?
A. Yes, sir.
Q. It is addressed there to Mr. Fred Fanning, and that was on Monday
June 25?
A. Yes, sir.
It is not only inconceivable but contrary to the nature of human experience
and conduct to expect any person to believe Higgins' testimony as regards the
circumstances surrounding the letter containing the Union's request for recog-
nition and for a meeting with the Respondent's responsible officials to dis-
cuss the matter. This is especially true in view of the fact that Higgins and
Fanning occupied the same office space, a room (according to Higgins himself)
10' x 12', with desks back to back and arranged so that they would face each
other day in and day out when both were in the office. One would have to be most
naive to believe that the general manager of a concern as large as the Re-
spondent would remain silent under such circumstances and never inform his
general superintendent who was in actual charge of operations , with 3 fore-
men and approximately 50 additional employees under his direct supervision,
concerning the letter from the Union, especially in view of Fanning's openly
expressed and readily admitted animus toward the unionization of the Respond-
ent's employees and labor organizations in general.
Again, Higgins' testimony that the first knowledge he had of the union or con-
certed activities of the employees under his supervision was when Lloyd Daven-
port, a mixer truckdriver, informed him is likewise unworthy of belief when con-
sidered in the light of the circumstances described above.
A further example of Higgins' total disregard for the truth is his testimony
concerning the wage increase granted by the Respondent in June 1951. As
DALLAS CONCRETE COMPANY 1307
regards this incident, Higgins testified that he was without knowledge of the
fact that the Respondent was either contemplating a wage increase or had in
fact granted one until the employees concerned came to him and told him
about it. Here again, the testimony of General Manager Fanning belies Hig-
gins' testimony in this regard. According to Fanning, he personally ". . . told
the guys that we were giving them five cents raise and laborers three cents raise."
Here again, as above, one would have to be not only naive but most ingenious
as well to accept Higgins' testimony in this regard, since it likewise is indicative
of his veracity as a witness in general. In other words his testimony as regards
the circumstances surrounding the wage increase granted by the Respondent
in June of 1951 is so palpably false that it is unworthy of belief. Moreover,
it is inconceivable that General Manager Fanning would inform the employees
of the wage increase without discussing the matter with his general superin-
tendent either before or after the Respondent has decided to take such action.
Upon all of the foregoing, the undersigned credits the testimony of the wit-
nesses called on behalf of the General Counsel as regards the conduct of Higgins
and finds that he made the statements and engaged in the conduct attributed
to him by them in their testimony at the hearing herein 17
Numerous witnesses called on behalf of the General Counsel testified that on
and after June 25, 1951, General Manager Fred Fanning interrogated them as
regards their union affiliations. Fanning admitted that he engaged in such
conduct. Consequently, the undersigned finds that Fanning engaged in the con-
duct described above.
In addition to the above-described activities of Higgins and Fanning, the record
shows that E. F. "Jack" Williams, the Respondent's yard foreman, engaged
in a similar course of conduct during the time material herein , particularly after
the Respondent received the letter from the Union on or about June 25, 1951.
Typical of Williams' activity is best expressed in the testimony of J. W. Beardon,
a mixer truckdriver with 4 years' service with the Respondent at the time of
the hearing herein. An excerpt from Beardon 's testimony follows below ;
Q. (By Mr. Latimer) Now, you spoke a moment ago right after the com-
pany received the letter from the union. Shortly after that, did you have
another conversation with Mr. Williams?
A. That was along later on in the evening. I believe it was to the best I can
remember right now. He came up to me again and said Mr. Fred Fanning
was offering the six dollars back and tear up the card and tell them what
they could do with it.
Q. Did he tell you that twice?
A. Yes, sir, he said this was going to be the last chance.
The undersigned finds that the $6 referred to in Beardon's testimony was the
amount he paid the Union as an "initiation fee.""
In addition to Beardon, employees Jack J. Murphy and J. D. Gregg also testi-
fied as regards Williams' conduct during the times material herein. For the
most part, Williams' conduct was akin to that of Higgins, in that he used threat-
ening and coercive language in his interrogation of the employees as regards
their union affiliations and activities.
Williams, like Higgins, specifically and categorically denied each and every
utterance attributed to him by the General Counsel's witness. From his de-
meanor on the stand while testifying and upon the record as a whole, the under-
signed is convinced that he was not a truthful witness. The witnesses Beardon,
17 See N. L. R. B. v. Pittsburgh Steamship Company, 337 U. S. 656, 655-660.
18 See above in re Higgins ' activities in this regard.
1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gregg, and Murphy impressed him otherwise. Consequently, he credits their
testimony, and discredits that of Williams in its entirety.
Upon all of the above and upon the record as a whole, the undersigned finds
that the Respondent was well aware of the concerted activities of its mixer truck-
drivers from the beginning which he finds to have been in the early part of June
1951. The mere fact that they did not formally affiliate with the Union until on
or about June 21, 1951, is of no moment, since the Act fully protects concerted
activities of employees, as well as those on behalf of a union. Having learned of
the unrest among its mixer truckdrivers, the Respondent then embarked upon a
campaign to thwart their concerted activities by granting them the wage increase
described above. That this was its purpose is well illustrated by the admonitions
and promises of Higgins to the employees that if they would abandon their
concerted activities they would be rewarded by an increase in wages. Under
such circumstances, such conduct by an employer is violative of the Act. It
matters not a whit whether or not Higgins had authority to grant the wage in-
crease to the employees, the fact remains that he did make such a promise to
them at a time when he occupied a position in the top echelon of management.
Accordingly, the undersigned finds that by the granting of the wage increase
under the circumstances as described above, the Respondent interfered with, re-
strained, and coerced its employees in the exercise of the rights guaranteed them
by Section 7 of the Act and thereby violated Section 8 (a) (1) thereof 19
The undersigned also finds that the interrogation of the employees as regards
their union affiliations, by General Manager Fred Fanning, was likewise viola-
tive of the Act, particularly when this conduct is considered in the light of the
host of illegal acts committed by Higgins and Williams, when they likewise not
only interrogated the employees along the same lines , but coupled their inter-
rogation with threats of reprisal and promises of benefits as described above.
Such threats of reprisal and promises of benefits being Higgins' statements to
the employees in the mode and manner described above, that the Respondent
would not go "union," and would close down the plant before it did so, and that
if the employees would forget about the Union, the Respondent would refund to
them the $6 initiation fee which they had paid the Union. Such conduct is so
clearly violative of the Act that the undersigned deems it unnecessary to burden
this report with countless citations of and excerpts from the host of reported
decisions of the Board and the courts in this regard. Suffice it to say that even
a cursory appraisal of the record herein reveals that the Respondent through
the top hierachy of its managerial and supervisory staff ran the gamut of unlaw-
ful interference ranging from widespread interrogation of the union activities
and sympathies of its mixer truckdrivers to threats designed to frustrate their
organizational efforts and inducements calculated to bring about abandonment
of those efforts29 Consequently, the undersigned finds that by the above-
described conduct the Respondent likewise violated Section 8 (a) 1) of the Act.
B. The refusal to bargain
1. The appropriate unit
As noted above, the Union in its letter to the Respondent, stated in substance
that it represented and had been designated as the exclusive representative for
19 See Metropolitan Markets , 83 NLRB 1106; Jackson Daily News, 90 NLRB 565.
21 See N. L. R. B. v. Hoppes Mfg. Co., 170 F . 2d 962, 963 (C . A. 6) ; Peoples Motor
Express, Inc., v. N. L. R. B., 165 F. 2d 903, 904 (C. A. 4) ; N. L. R. B. v. Franks Bros., 137
F. 2d 989, 992 (C . A. 1), affd 321 U. S. 702; Joy Silk Malls , Inc. v . N. L. R. B., 185 F. 2d
732, 740 (C. A. D. C.), certiorari denied 341 U. S 914; N . L. R. B. v. Harris-Woodsen Co.,
162 F. 2d 97 , 100 (C. A. 4). (Questioning employees.)
DALLAS CONCRETE COMPANY 1309
the purposes of collective bargaining by a majority of its ready-mix truck-
drivers.' The complaint alleges that this group constitutes a unit for the pur-
poses of collective bargaining. The exact language of the complaint being,
. . all ready-mix truckdrivers of Respondent employed at its Dallas plant,
exclusive of all others including supervisory employees, constitute a unit appro-
priate for the purposes of collective bargaining within the meaning of Section 9,
subdivision (b) of the Act."
The Respondent takes a contrary view. Its position being that aside from
the jurisdictional question and the existence of a valid request and refusal
thereof to bargain with the Union, that the appropriate unit should be plantwide.
It predicates its position on the premise that since all employees are under
common supervision, and all participate in the creation of the ultimate product,
ready-mixed concrete, it therefore follows that under such circumstances a unit
of its mixer truckdrivers is inappropriate.
The answer to the issue as regards the unit is of course the record, and the
application of the facts to the law as expressed by the Board in its decisions and
orders.
In the considered opinion of the undersigned, the record clearly shows that
the mixer truckdrivers constitute an appropriate unit for the purposes of col-
lective bargaining. As among themselves they have a common interest and the
same problems as regards their working conditions. This is particularly evi-
denced by the host of testimony in the record as regards overtime. The record
clearly shows without contradiction that the truckdrivers are deeply and vitally
concerned as to whom amongst them is allotted overtime. Their interest in
this phase of their working conditions is of course economic, since it affects their
pocketbooks, that is "take-home" pay. The Respondent clearly recognizes this
situation and has attempted to see that such overtime is honestly and fairly
allotted to the respective drivers. Much of the unrest amongst the mixer
truckdrivers, in fact one of their major grievances, centered around this issue.
That the question of the allotment of overtime to the mixer truckdrivers was
of major importance and recognized as such by the Respondent is best illustrated
by the following testimony of A. R. Kimbell.
Q. Now, Mr. Kimbell, as dispatcher there during the summer of 1951, at
the Dallas Concrete Company, did you have or not have charge of getting
up a list of the overtime to be given to truckdrivers, that is, who would work
overtime?
A. Yes ; to a certain extent, yes.
Q. Now, would you please explain to the Examiner how your list of who
would be called for overtime work would be gotten up.
A. Well, we had an overtime roster and the men 's names were kept on it,
and we went as near possible due to working conditions down the line.
Occasionally there were men that would work maybe two nights in a row
or two afternoons, or something like that, in a row . Then we went as near
down the list as possible and kept as near order as possible and tried to get
equal overtime if it was possible. Like I say, if one man was out at 6: 00
o'clock on another run and overtime come up and it is his time to work,
naturally he couldn't work it, or if a man didn't want to work that night
maybe one would work two nights in a row.
Q. Did you make the list up?
A. Most of the time, yes.
s Sometimes referred to in this report and throughout the record as mixer truckdrivers,
as distinguished from the mixer -mobile operators , of which more anon hereinafter.
1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. When you were making the list up , did whether or not a man was a
member of a union have anything to do with whether or not he was called
on the list?
A. None whatsoever , because I didn 't even know in the first place who was
union or who wasn't.
Q. Had you or not received any instructions that you were to discriminate
against union men from any of your superiors?
A. No.
Q. At any time?
A. No.
Mr. Seay : That's all.
CROSS-EXAMINATION
Q. (By Mr. Latimer.) What instructions were you given to make up this
overtime?
A. To make it up as equally as I could and go down the list.
Q. Who told you that?
A. Mr. Higgins, and I imagine Mr. Fanning at times ; I don't know.
Q. How long did you work there as dispatcher?
A. Close to five years.
Q. Did you recently resign from over here?
A. Yes, the 15th of December.
There is some evidence in the record that on occasion the mixer truckdrivers
work as mechanics in the shop, and at times at other jobs around the plant.
The record clearly shows that this is the exception rather than the rule. Sig-
nificantly, they are paid their regular hourly rate while so engaged . Again,
when they do work in the shop it is usually upon their own trucks, which of
course is to their individual interest.
As far as supervision is concerned the record clearly indicates that the mixer
truckdrivers are primarily subject to the orders of Higgins and Williams. Since
Higgins' job is that of general superintendent, there is nothing unusual as regards
his authority to direct the work of the mixer truckdrivers. The same reasoning is
applicable to Williams, who is described in the record as yard foreman, and it
is reasonable to infer from the record that his duties also consist of general
supervision of all employees particularly during the absence of Higgins. As a
matter of fact he is referred to in the record by the Respondent's witnesses as
an assistant to Higgins.
The record also shows that the Respondent, for convenience and in furtherance
of the efficient operation of its business, classifies its employees in accordance
with the duties that they perform. This is evidenced by the payroll lists of
employees introduced by the parties at the hearing herein. An examination of
the payroll list of employees for the payroll period June 18 through June 24,
1951, shows, inter alia , the following :
4-mixer mobile operators
2-batchermen
18-truckdrivers
15-laborers
That the Respondent is cognizant of the fact that groups of its employees do
constitute what are commonly described as "craft" groups is the fact that since
1946 it has recognized Local 714 of the Operating Engineers, AFL, as the exclu-
sive bargaining representative for its mixer mobile operators. The fact that this
agreement is verbal, or in other words an "understanding" is of no moment
DALLAS CONCRETE COMPANY 1311
insofar as the issues herein are concerned . The fact remains that such an
agreement does exist . Nor does the further fact that its "agreement" with the
Operating Engineers was entered into on a "that or else" basis of any impor-
tance insofar as the issues herein are concerned a
The undersigned has carefully considered the cases cited by the Respondent
in its brief in support of its contention that the unit contended for by the General
Counsel is inappropriate, and is convinced that they are not controlling herein.
In the first place the factual situations are not the same. For example, in the
Burton Lingo Lumber Company case, 91 NLRB 12, cited by the Respondent, the
facts are entirely different. There the truckdrivers, 3 in all, spent about 50 per-
cent of their time as laborers in the yard, along with the 5 warehousemen or
"yardmen," and only engaged in truck driving when delivering materials, at
which time a yardman accompanied them. In other words they worked as a
team. No such situation exists here.
From all of the above and upon the record as a whole, the undersigned is con-
vinced and finds that the Respondent's mixer truckdrivers constitute a clearly
identifiable and homogeneous group with a common interest distinguishable from
that of the Respondent's other employees. The mere fact that they may on occa-
sion perform duties in a common pursuit with other of the Respondent's em-
ployees does not destroy their identity as a separate "craft" group, since such
duties constitute a mere fraction of their regular duties as mixer truckdrivers.u
Consequently the undersigned finds that the following constitutes an appropriate
group for the purposes of collective bargaining within the meaning of Section 9
(b) of the Act:
All ready-mix truckdrivers of the Respondent employed at its Dallas plant,
exclusive of all others including supervisory employees.
2. The Union's majority
As indicated above 11 of the Respondent's 18 mixer truckdrivers met with a,
representative of the Union on the night of June 21, 1951, and at that time signed
authorization and application for membership cards. As of the date of the hear-
ing herein none of the employees who signed such cards have revoked their au-
thorization of the Union as their representative for the purposes of collective
bargaining. While it is true that the record indicates some turnover of employees
in the unit found appropriate above, nevertheless this is of no moment since the
status of the parties became fixed as of the date the Union requested the Respond-
ent to recognize it as the exclusive representative of the employees in said unit
on June 22,1951. Consequently, in view of the findings made above as regards the
conduct of the Respondent, and those which will be made hereinafter the under-
signed finds that as of June 22, 1951, and at all times material herein the Union
represented a clear majority of all the Respondent's employees in the unit found
appropriate hereinabove.
3. The refusal to bargain
As noted above the Union formally notified the Respondent by letter, dated
June 22, 1951, that it represented a majority of the employees in the appropriate
unit and requested a meeting with some responsible member of management to
29 From the testimony of Tom Drennan, a witness called by Counsel for the Union.
T' See Pacific Coast Shipbuilders and Ship Repairers, et al., 98 NLRB 196; Southern
Paperboard Corporation, 80 NLRB 1456.
1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dismiss the matter. This letter was received by the Respondent on June 25, 1951,
under the circumstances described above. The Respondent has never replied to
the Union's letter , nor has any agent of the Union since that date, made any
effort to again contact the Respondent.
President J. Rutledge Hill, who formulates the labor policies of the Respondent,
readily admitted that he did not reply to the Union's letter. According to Hill
he did not answer the Union's letter for the following reasons : (1) The letter on
its face did not merit any consideration because it was obviously a "form" letter
and signed by the business agent's secretary, thus leading him to believe that the
Union was not serious in its request; (2) he had no knowledge of any union activ-
ities amongst the employees ; that he seriously doubted then and does now that
it ever represented a majority of the employees ; and that if the Union was serious
about its claim it would have made further effort to see him. The Respondent in
the main contends that under such circumstances it was not required to answer
the Union's letter, and since the ". . . record falls far short of showing any
actual anti-union conduct or bias on the part of the Respondent," it follows that
Respondent did not refuse to bargain with the Union, and hence it did not violate
Section 8 (a) (5) of the Act2`
The undersigned finds no merit in the Respondent's contention. In the first
place, Hill's theories as regards the Union's letter are frivolous. There is nothing
in the Act, or in its interpretations by either the Board or the courts, that re-
quires that such letters conform to any particular ritual, or be drafted in accord-
ance with the niceties required by rigid protocol. Nor was the Union required
to make repeated formal demands upon the Respondent for recognition, in view
of the illegal conduct of the Respondent which for the most part began on the
very day that the Respondent received the Union's letter. Under such circum-
stances it would have served no useful purpose for the Union to reiterate its
demand for recognition. It is axiomatic that equity will not require the doing
of a vain or useless thing.
In summation the undersigned finds that the Respondent not only disregarded
the Union's formal request but, as found above, immediately upon the receipt
of such request resorted to unfair labor practices calculated to undermine and
destroy the Union's status as bargaining representative. Respondent's conduct
in this regard, even apart from its failure to answer the Union's letter of June
22, 1951, manifested, as clearly as any formal reply could have done, its complete
unwillingness to honor that request for collective bargaining. The Board with
the approval of the courts in a long line of decisions too numerous to encumber
this report with citations and excerpts therefrom have consistently held that
where as here, an employer, following a union's request for collective bargain-
ing, resorts to the unfair labor practices found above in and of itself evidences
a refusal to bargain"
Accordingly, the undersigned concludes and finds that on June 22, 1951, and
at all times thereafter, the Respondent has refused to bargain with the Union
as the exclusive representative of all its employees in the appropriate unit, and
that by such refusal it has interefered with, restrained, and coerced its employees
in the exercise of the rights guaranteed them by virtue of Section 7 of the Act, and
hence specifically violative of Section 8 (a) (5) and (1) of the Act.
24 Quoted portion from Respondent 's brief.
N To cite a few : N. L. R. B. v. Reed .G Prince Mfg. Co., 118 F . 2d 874 , 884-885 ( C. A. 1),
certiorari denied 313 U . S. 595 ; N. L. R. B . v. Crown Can Co ., 138 F . 2d 263 , 266-267
( C. A. 8), certiorari denied 321 U. S. 769.
DALLAS CONCRETE COMPANY 1313
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section II, above, occurring in
^onnection with the operations of the Respondent set forth in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States , and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
IV. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, the
Trial Examiner will recommend that it cease and desist therefrom and take cer-
tain affirmative action to effectuate the policies of the Act.
Since it has been found that the Respondent has refused to bargain collectively
with the Union, the statutory representative of all employees in an appropriate
unit, it will be recommended that the Respondent bargain collectively with the
Union and embody any understanding reached in a signed agreement.
The character and scope of the unfair labor practices engaged in indicate an
intent to defeat self-organization of the employees. It will therefore be recom-
mended that the Respondent cease and desist from in any manner interfering
with , restraining , or coercing its employees in the evercise of rights guaranteed
by the Act.
CONCLUSIONS OF LAW
1. Dallas General Drivers, Warehousemen and Helpers, Local Union No. 745,
AFL, is a labor organization within the meaning of Section 2 (5) of the Act.
2. The Dallas Concrete Company is engaged in interstate commerce within the
meaning of Section 2 (6) and (7) of the Act.
3. All ready-mix truckdrivers of Respondent employed at its Dallas plant,
exclusive of all others including supervisory employees, constitute a unit appro-
priate for the purposes of collective bargaining within the meaning of Section 9
(b) of the Act.
4. By refusing on or about June 22, 1951, and at all times thereafter, to bargain
collectively with Dallas General Drivers, Warehousemen and Helpers, Local
Union No. 745, AFL, as the exclusive representative of its employees in the appro-
priate unit, the Respondent has engaged and is engaging in unfair labor practices
within the meaning of Section 8 (a) (5) of the Act.
5. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
6. The aforesaid labor practices are unfair labor practices within the meaning
of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appendix A
DALLAS CONCRETE COMPANY
"Dallas' Finest Concrete"
P. O. Box 388 Phone R-8621
Dallas, Texas
Following equipment was purchased by this company from August 31, 1950
through August 30, 1951:
Date bought Equipment Purchased from Purchase
price
Aug. 31, 1950 1 Chevrolet sedan ------------ Johnson Bros Chev. Co., 1901 Ross_________ $1,907.09
Sept. 15,1950 1 Car scoop__________________ J. W. Bartholow Mchy. Co., 1221 S. Lamar- 3 250.00
Sept. 25, 1950
Oct. 1, 1950
3 Mack trucks_______________
3 Blaw Knox mixers---------
Mack Motor Company 9018 . Akard St____
Coastal Plains Supply 60 1631 Dra on St
.
20, 068.65
13 785 00
Oct. 31,19.50 2 Mack trucks_______________
., g __
Mack Motor Company, 901 S. Akard St_____
, .
15 231.60
June 5,1951 1 Mixermobile_______________ Aarons & Tauber, Pub. Auct. 1000 W. E,150. 00
Commerce.
Nov. 1, 1950 1 Kerrick steam cleaner------ Beard & Stone Electric Co., 3909 Live Oak__ 530.00
Mar. 16 1951 1 Link belt dragline__________ Coastal Plains Supply Co., 1631 Dragon St__ 23 654.60
Mar. 31, 1951 1 Johnson batcher bin________ Coastal Plains Supply, 1631 Dragon St______
,
3,473.80
Apr. 1, 1951 1 Underwood typewriter----- Underwood Corp., 1310 N. Ind. Blvd_______ 146 95
Apr. 1, 1951 1 Cement bin________________ Coastal Plains Supply Co., 1631 Dragon St__ 10 838.60
Aug. 9, 1961 1 GMC pickup truck________ Cliff Motor Trk. Co., 1526 Ft. Worth Ave
,
1,000.00
Appendix B
DALLAS CONORETE COMPANY
JOBS CURRENTLY BEING FURNISHED
August 23, 1951.
AUSTIN BUILDING COMPANY :
Parkdale Plant-Dallas Power & Light Company--------------- $55,550.00
1000 Singleton Blvd-Shop Building--------------------------- 2,275.00
Griffin Street Sub-Station-Dallas Power & Light Co----------- 1, 592.50
AUSTIN BRIDGE COMPANY :
Wall and Alma Streets Overpass, City of Dallas---------------- 25, 935.00
Forest Avenue Bridge-County of Dallas--------------------- 40, 500.00
AUSTIN COMPANY :
Ford Motor Company-Parts Depot--------------------------- 54, 000.00
Ford Motor Company-Assembly Plant------------------------ 35, 800.00
J. W. BATESON COMPANY:
Preston & Normandy-Y. M. C. A---------------------------- 18, 200.00
3115 Raydell-School---------------------------------------- 26,390.00
2514 Munger-School Addition------------------------------- 1, 820.00
HENRY C. BECK COMPANY :
Adolphus Hotel---------------------------------------------- 4,550.00
A. Harris & Company-Department Store---------------------- 6, 825.00
BUCK CONSTRUCTION COMPANY :
3000 S. Ewing-School Addition------------------------------ 1, 820.00
918 Powhatan-School Addition------------------------------ 1, 365.00
Burbank & Monawk-School Addition------------------------- 910.00
THOS . P. BRENNAN, INC.:
Loma Alto and Fairway-Hotel and Apartments--------------- 63, 700. 00
BURGHER CONSTRUCTION COMPANY:
Pacific and Good Streets-T&P Warehouse-------------------- 18, 200.00
6612 Denton Drive-Otis Pressure Control Co---------------- 4, 095.00
DALLAS CONCRETE COMPANY 1315
BUSBY & PORTER:
Central Expressway-Lighting System_______________________ $2, 730.00
COWDIN BROS.:
' Gaston and Oakland-Retail Store---------------------------- 9,100.00
CRISP & VAUGHAN :
Glenfield Street-Warehouse --------------------------------- 22,750.00
Slocum & Howell Streets-Warehouse ------------------------ 9,100.00
Murral Company-Addition ---------------------------------- 6,370.00
Maple Avenue-Warehouse (Complete)
CULLIN & WHITTLE :
Lemmon Avenue and Inwood-Storm Sewer-County of Dallas__ 38,060-00
HAL C. DYER :
Marsalis and Overton-School -------------------------------- 42,300.00
HENGER CONSTRUCTION COMPANY:
2626 N. Haskell-Neiman-Marcus Warehouse------------------ 36, 400.00
Commerce & Ervay-Neiman-Marcus Department Store -------- 13, 650.00
Bryan and Haskell-Telephone Exchange____________________ 27, 300.00
J. W. HUMPHREY :
700 Hillburn-Housing Project________________________________ 3,185.00
INGE-HAYMAN CONSTRUCTION COMPANY :
Federal and Akard Streets-United Fidelity Life Insurance Com-
pany Building-------------------------------------------- 86,450.00
Madison and Centre Streets-Bank ---------------------------- 1, 820.00
Ervay and San Jacinto Streets-Baptist Book Store and Church__ 68, 250.00
250 W. Jefferson-Sears Retail Store-------------------------- 1,365.00
INWOOD CONSTRUCTION COMPANY :
250 W. Jefferson-Sears Retail Store_________________________ 3,185.00
LANTEX CONSTRUCTION COMPANY:
Glenfield Street-Warehouse (Stokeley Company) ------------- 18, 200.00
MAYHEW MACHINERY COMPANY :
Hatcher and Scyene Streets-Machine Shop____________________ 14,100.00
MEERS CONSTRUCTION COMPANY :
Mockingbird Lane and Delmar-School ----------------------- 8,190.00
Skillman and Vanderbilt-Church ----------------------------- 13, 650.00
Jim Miller Road and Military Drive-School ------------------ 10, 340.00
MILLER & NORTON :
Peak and Junius Streets-Church ----------------------------- 2, 730.00
Lake Highland and Tiffany Drive-Doctor's Office______________ 1,137.50
The Murray Company-Addition ------------------------------ 6,370.00
H. B. MOBLEY :
Adolphus Hotel---------------------------------------------- 13,000.00
Lake June Road and Buckner-Shopping Village_______________ 13,000.00
Marsalis and Overton Streets-School ------------------------- 4,700.00
Irving and Harvester Streets-Warehouse-McDonald Plumb-
ing Company---------------------------------------------- 3,185.00
Preston Road and Northwest Highway-Neiman-Marcus Retail
Store ----------------------------------------------------- 2,275.00
Preston Road and Normandy-Y. M. C. A______________________ 18,200.00
J. E. MORGAN & SONS:
Baker Hotel------------------------------------------------ 45,500.00
4703 Ross Avenue-Insurance Company Building_______________ 5,460.00
4000 Commerce Street-Cabell Milk Company-Office and Cream-
ery------------------------------------------------------- 20, 200.00
1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CHAS. S. MUNN:
2306 Welborn Street-Hospital---------------------------- $7,280.00
E. V. MoCRIGHT :
Preston and Arcady Streets-House-------------------------- 4,550 00
MCFADDEN AND MILLER :
Fordyce and Irving Streets-Shedd-Bartush Warehouse-------- 16, 380.00
Turtle Creek-Collins Radio Company Warehouse------------- 6,825.00
O'ROURKE CONSTRUCTION COMPANY:
4311 Belmont Street-Harman Electric Company, Office and
Warehouse------------------------------------------------ 1,392.30
1827 Greenville Avenue-Bank------------------------------- 6,233.50
1402 Pacific Avenue-First National Bank Garage----------- 54, 600.00
155 Glass Street-Grinnell Sprinkler Company----------------- 6,233.50
East Grand Avenue and Henderson Streets-Skillern Retail Drug
Store---------------------------------------------------- 3,265.25
1700 W. Commerce-O'Rourke Construction Co., Warehouse---- 8,463.00
B. F. O'ROURKE CONSTRUCTION COMPANY :
2200 S. Edgefield Street-School----------------------------- 11,648.00
Rosewood and Welborn Streets-Hospital--------------------- 5,460.00
Pittsburg and Levee Streets- Square D Electric Supplies------ 10,465.00
Cora and Preston Streets-Film Exchange-------------------- 4,732. 0&
PETERSON CONSTRUCTION COMPANY:
Ruberoid Roofing Company-Addition------------------------ 6,825.00
J. L. O'ROURKE CONSTRUCTION COMPANY :
Dal-Hi Stadium-------------------------------------------- 2,047.50
TEXAS BITULITHIC COMPANY:
Coit Road and Yale Streets-Storm Sewer--------------------- 23, 660.00
A. J. RIFE :
Troy Street-Housing Project-City of Dallas---------------- 50, 750.00
TEXAS MEAT & PROVISION COMPANY :
5919 2nd Avenue-Meat Warehouse-------------------------- 3,200.00
WATSON-FORT WORTH HOUSE MOVING COMPANY:
Hampton Road-Bridge-Dallas County---------------------- 19, 530.00
WORRELL & WATKINS :
Hampton Road-Bridge-Dallas County---------------------- 41, 850.00
L. H. LACY COMPANY :
McMillan Street-Paving-City of Dallas--------------------- 32,625. 0&
T. C. BATESON COMPANY:
Gaston and Adair Streets-Research Laboratory-------------- 7,735. 0&
Appendix C
NOTIOE To ALL EMPLOYEES
1, 271, 620.06
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in DALLAS GENERAL DRIVERS, WARE-
HOUSEMEN AND HELPERS , LocAL UNION No. 745, AFL, or in any labor organiza-
tion of our employees, by refusing to hire, by discharging or demoting any
THE DEVILBISS COMPANY 1317
of our employees or in any other manner discriminating In regard to their
hire or tenure of employment , or any term or condition of their employment.
WE WILL NOT interrogate our employees concerning their union activities,
threaten to shut down the plant or other reprisals, promise economic benefits
to discourage union affiliation and activities ; or in any other manner inter-
fere with, restrain , or coerce our employees in the exercise of their right to
self-organization , to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to refrain from
any or all such activities.
WE WILL bargain collectively upon request with the above-named labor
organization as the exclusive representative of all employees in the
bargaining unit described herein with respect to rates of pay, hours of
employment, or otlier conditions of employment, and if an understanding
is reached, embody such understanding in a signed agreement. The bar-
gaining unit is :
All ready-mix truckdrivers of Respondent employed at its Dallas plant,
exclusive of all others including supervisory employees.
All our employees are free to become, remain, or refrain from becoming
members of the above-named union, or any other organization except to the
extent that this right may be affected by an agreement in conformity with
Section 8 (a) (3) of the Act.
DALLAS CONCRETE COMPANY,
Employer.
By ---------------------------------
Dated-----------------------------
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.
THE DEVILBISS COMPANY and INTERNATIONAL UNION, UNITED AUTO-
MOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF
AMERICA, CIO. Case No. 6-CA-501. February 12,1953
Decision and Order
On October 15, 1952, Trial Examiner Ralph Winkler issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report, and a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
102 NLRB No. 133.
250983-vol. 102-53-84