Hoskins Ready-Mix Concrete, Inc.

National Labor Relations Board - Board Decisions

Dec 5, 1966

161 N.L.R.B. 1492 (N.L.R.B. 1966)

1492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hoskins Ready -Mix Concrete , Inc., and Trinity Portland Cement
Division, General -Portland Cement Company 'ahd Dallas Gen-
eral Drivers, Warehousemen and Helpers Local Union No. 745,
affiliated with International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America . Case 16-CA-
2437. December 5, 1966
DECISION AND ORDER
On May 13,-1966, Trial Examiner Alvin Lieberman issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent, Hoskins Ready-Mix Concrete, Inc. (Hoskins), had engaged in
certain unfair labor practices within the meaning of the National
Labor Relations Act,' as amended, and recommending that it and
Trinity Portland Cement Division, General Portland Cement Com-
pany (General), cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Trial Examiner's Decision.
The Trial Examiner further found that Hoskins had not engaged in
certain other unfair labor practices alleged in the complaint, and
recommended that' those allegations be dismissed. Thereafter,
Respondents filed exceptions to the Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations' Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case-to a three-member
panel [Chairman McCulloch and Members Fanning and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings 'are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner, with the following additions and
modifications. ,
1. The Trial Examiner found, and we agree, that General and
Hoskins were, coemployers of Hoskins' employees, and that General
and Hoskins were both responsible for remedying Hoskins ' unfair
labor practices. As -described more fully in the Trial- Examiner's
Decision, General and Hoskins had entered into two agreements, a
leasing agreement and an operating agreement, enabling General to
enter the ready-mix concrete business in the Dallas area . Hoskins was
' Respondent Hoskins contends that the' Trial Examiner acted improperly in' crediting
the testimony of discharged - employee Wilson . It Is the Board' s established policy not to
overrule a Trial Examiner's resolutions as to credibility, insofar as they are b_ ased at'least
=partially on demeanor , unless the clear preponderance of alli the relevant evidence con-
vinces us[that they- are incorrect . Such a-conclusion is not,warranted here. Standard Dry
Well Products, Ino., 91 NLRB 544, 545, enfd . 188 F2d 362 (C.A. 3).
161 NLRB No. 132.
HOSKINS READY-MIX CONCRETE 1493
dealing in ready-mix concrete at the time the agreements ' were exe-
cuted; General was a national company dealing in cement and related
products. Under the lease agreement , Hoskins leases trucks and
equipment to General for five years. Under the operating agreement,
Hoskins continues to operate the leased equipment; receipts from
sales go to General, and General reimburses Hoskins for salaries and
all other operating expenses . Hoskins receives a commission which is
based on the amount of concrete sold. The operating agreement gives
General the power to control disbursement of the funds it furnishes
to Hoskins for payroll and expenses. General also retains the power
to require that Hoskins consult with it and obtain clearance before
changing pay rates or hiring new employees at a rate of more than
$7,500 a year. Further, the operating agreement gives General
authority to exercise "overall supervision and direction" over Hos-
kins' day-to-day operations. Since the operating agreement gives
General power to control basic aspects of the employment conditions
under which Hoskins' employees work, we find that General is a
coemployer of those employees.2 In reaching this conclusion, we rely
also on the fact that General is obligated under the operating agree-
ment to reimburse Hoskins for payroll expenses, and therefore Gen-
eral would be the ultimate source of any wage increases for Hoskins'
employees that might be negotiated with a union.
2. We also agree with the Trial Examiner that Hoskins violated
Section 8(a) (3) by discharging employee Wilson. Crediting Wilson's
version of the events on the morning of August 9, the Trial Exam-
iner found that Wilford Hoskins asked Wilson why he was not
cleaning his truck, Wilson said he was looking for a tool to chip off
the hardened concrete, Wilford Hoskins then told him to "use a
damn rock," at which point Wilson replied that he had never heard
of such a thing, and Wilford Hoskins then discharged him. Hoskins
made no effort to justify its discharge of Wilson, relying entirely on
its contention that Wilson had quit work. However, the Trial Exam-
iner discredited the testimony of Hoskins' witnesses and found that
Wilson was discharged. The record does not disclose any nondis-
criminatory business reason for Hoskins to discharge Wilson. In view
of these facts, and Hoskins' knowledge that Wilson had played a key
role in the union-organizing campaign, and the timing of the dis-
charge shortly after,the Union's demand for recognition, we agree
2In N.L.R.B. v . New Madrid Manufacturing Co., 215 F.2d 908 (C.A. 8, 1954), enfg. in
part 104 NLRB 117, 913, the court found that a test of coemployership was whether
"the contract , either expressly or by implication , purport[s] to give New Madrid any voice
whatsoever in the selection or discharging of Jones' employees , in the fixing of wages for
such employees , or in any other element of labor relations, conditions and policies in the
plant." The court said actual exercise of such power was a separate indicium of coem-
ployership. Since the record indicates that General had not exercised any day-to-day
supervision over Hoskins ' operations , we do not adopt the Trial Examiner ' s presumption
that General exercised such powers.
1494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the Trial Examiner that Hoskins discriminatorily discharged
Wilson because of his union activity, in violation of Section 8(a) (3)
and (1).3
3. The Trial Examiner found that Hoskins also violated Section
8(a) (3) by discharging employee Stanton. We do not agree.
The record establishes these basic facts : Stanton was hired by Hos-
kins on May 26, 1965, and was discharged August 9. He was absent
7 days during this 21/2 month period of employment. The final
absence that precipitated his discharge was on a Monday, August 9.
The preceding Saturday, August 7, Stanton left town on an auto
trip. He asked a neighbor to call Hoskins in case he did not return
in time for work Monday. Stanton returned 1 a.m. Monday, but did
not go to work. His neighbor called Hoskins Monday morning and
said that Stanton would not be in to work because he had driven all
the previous night. Hoskins then discharged Stanton.
The Trial Examiner found that Hoskins' stated reason for dis-
charging Stanton, excessive absenteeism, was a pretext. Concluding
that Stanton and Wilson were discharged the same day, the Trial
Examiner said Stanton's release "was, in my opinion, part and par-
cel of the same package" of antiunion action found in Wilson's
discharge.
The facts do not support the Trial Examiner's conclusion. Seven
absences during 21/2 months of Hoskins' busy season provided ample
cause for discharging Stanton. On August 9, Hoskins was given a
message indicating that Stanton was again absenting himself during
the busy season, allegedly because he was too tired from a weekend
trip to come to work. At that point, and in view of Stanton's other
absences, Hoskins had good reason to conclude that Stanton did not
care enough about his job to be a reliable employee. We do not believe
such a conclusion to be so clearly unfounded a basis for discharging
Stanton as to justify the theory that it was only a "transparent
pretext."
This is particularly true since the General Counsel offered no evi-
dence that Stanton was treated differently from other employees with
similar records. On the contrary, there was uncontradicted testimony
that Wilford Hoskins had discharged other employees for excessive
absenteeism.4 The Trial Examiner seems to rely solely on the coinci-
dence of Wilson's and Stanton's discharges. While we agree that Wil-
son was discriminatorily discharged, the circumstances of the two
8 In the absence of exception , we adopt pro forma the Trial Examiner 's finding that
Hoskins did not violate Section 8(a)(3) by discharging employee Aubrey France in
December 1965.
'Although the record is not clear whether Stanton gave Hoskins notice in connection
with each absence , Wilford Hoskins indicated that he would discharge employees for fre-
quent absences even if they had given notice.
HOSKINS READY-MIX CONCRETE 1495
discharges were different. Wilson was a prime mover of the Union's
organizational drive, Stanton was not; Wilson was singled out by
Supervisor Huffer as the union ringleader, Stanton was not; Wilson
was the man Huffer predicted would "hang himself" through union
activity, Stanton was not. The two discharges are not connected by
any objective facts.5 While one violation may raise a suspicion that
others also occurred, each violation must be proven by "the pre-
ponderance of the testimony." The General Counsel has not met this
burden of proof as to Stanton.
We therefore find that Stanton was discharged for cause, and,
accordingly, we shall dismiss those portions of the complaint alleging
that Stanton was discharged in violation of Section 8(a) (3) and (1).
4. The Trial Examiner found, and we agree, that a unit of Hos-
kins' drivers and mechanics is appropriate. We also agree with his
finding that the appropriate unit included 15 employees on July 16,
when the Union requested recognition, and that 11 of these employees
had signed cards authorizing the Union to represent theme As Hos-
kins subsequently engaged in serious violations of Section 8(a) (1)
and (3), we find that Hoskins' refusal to bargain with the Union
was in bad faith, and was designed to gain time in which to under-
mine the Union's majority status. We accordingly find that, by such
refusal, Hoskins violated Section 8(a) (5).7
[The Board adopted the Trial Examiner's Recommended Order
with the following modifications :
[1. Delete paragraph 2(a) and substitute the following:
[" (a) Offer to William David Wilson immediate and full rein-
statement to his former or substantially equivalent position, without
prejudice to his seniority or other rights and privileges, and jointly
and severally make him whole for any loss of earnings he may have
suffered as a result of the discrimination practices against him, in
the manner set forth in the section of the Trial Examiner's Decision
entitled `The remedy.' "
[2. In the first line of paragraph 2(b) change "employees" to
"employee," and in the second line of paragraph 2(b), change "their"
to "his," and make the same changes in the "Note" paragraph at the
bottom of the notice.
[3. In paragraph 2(d), delete "in the unit found herein to be
appropriate for the purposes of collective bargaining" and substitute
O The date of Stanton's discharge was controverted . The Trial Examiner found that
Hufer's reply to a question by Wilson about Stanton's status, on August 9, constituted
a discharge of Stanton.
G At the hearing, Hoskins claimed the unit should include two batch men , which would
have resulted in a 17-man unit, but the Union would still have had a clear majority in
the larger unit.
' Joy Silk Mills, Inc., 85 NLRB 1263, enfd. 185 F .2d 732 (C.A.D.C.).
1496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"in a unit of all truckdrivers and mechanics employed by Hoskins
Ready-Mix Concrete, Inc., excluding all batch plant employees, office
clerical employees, watchmen, and guards, and supervisors, as defined
in the Act."
[4. In the notice delete the paragraph beginning "WE WILL offer to
David Wilson ..." and substitute the following :
[WE WILL offer to William David Wilson immediate and full
reinstatement to his former or equivalent position, without
prejudice to his seniority or other rights and privileges, and
make him whole for any loss of earnings he may have suffered
as a result of the discrimination against him.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding, with all parties represented, was heard by Trial Examiner Alvin
Lieberman in Dallas, Texas, on February 9 and 10 and March 17, 1966,1 on com-
plaint a of the General Counsel and separate answers of Respondents Hoskins
Ready-Mix Concrete , Inc., and Trinity Portland Cement Division , General Port-
land Cement Company (herein respectively called Hoskins and General). The
issues litigated were whether Hoskins violated Section 8 (a)(1), (3), and (5) of the
National Labor Relations Act, as amended (herein called the Act) and, if so,
whether General is liable for Hoskins' violations . More particularly, the questions
for decision are as follows:
1. Did Hoskins violate Section 8(a)(1) of the Act by interrogating employees,
requesting an employee to inform it of the membership of other employees in, and
their attitudes and desires with respect to, the Union, and by informing an employee
that it was increasing the wages of another employee because he was withdrawing
from the Union .3
2. Did Hoskins violate Section 8(a)(3) and (1) of the Act by assigning an
arduous task . to an employee and thereafter discharging that employee and two
others.4
3. Was the unit for which the Union requested recognition from , and bargaining
with, Hoskins appropriate for those purposes.
4. Did the Union represent a majority of the employees in a unit appropriate for
the purpose of collective bargaining when the foregoing request was made.
5. Has Hoskins violated Section 8(a)(5) of the Act by refusing to bargain with
the Union.
'The hearing in this case was originally closed on February 10, 1966. The stenographic
record of the proceedings held on February 10, 1966, was however, stolen fioni the official
reporter. Accordingly, on motion of the General Counsel, consented to by all other parties,
the hearing was reopened for the purpose of receiving testimony from the witnesses who
testified on February 10, 1966, and for such other purposes as aaould appear to be just
and proper The reopened hearing was held on March 17, 1966 and the record in this
case was again closed on that day.
The complaint was issued upon charges filed by Dallas General Drivers, Warehouse-
men and Helpers Local Union No 745, affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America (herein called the Union)
3As originally issued, the complaint alleged that Hoskins also violated Section 8(a) (1)
of the Act by revoking employees' telephone privileges and limiting their access to its
office area This allegation nas, however, withdrawn during the hearing.
4 As originally issued, the complaint alleged that respondents had violated Section
8(a) (3) by, inter alga , discharging two employees At the hearing, however, a motion to
amend the complaint to allege that the discharge of a third emplovee, Aubrey C. France,
was also violative of Section 8(a) (3) was granted Originally, the complaint also alleged
as a further violation of Section 8(a) (3) the furnishing of less work to two employees
than they would normally have received During the heating, however, this allegation was
withdrawn.
HOSKINS READY-MIX CONCRETE 1497
6. Is respondent General, by reason of its relationship to Respondent Hoskins,
liable for unfair labor practices which may have been committed by Hoskins.
Upon the entire record, upon my observation of the witnesses and their demeanor
while testifying, and upon careful consideration of the briefs filed by all parties r, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENTS
Hoskins, a Texas corporation, is engaged at Duncanville, Texas, in the manu-
facture and sale of concrete .6
General, a Delaware corporation whose principal office and place of business is
located in Chicago, Illinois, is engaged there and in other cities throughout the
United States including Dallas, Texas, where its Trinity Portland Cement Division 'r
(herein called Trinity Portland) is located, in the processing, distribution, and sale
of cement and related products.
During the past 12 months, a representative period, Hoskins and General each
purchased and received directly from suppliers located outside the State of Texas
raw materials valued in excess of $50,000. Accordingly, I find that Hoskins and
General are engaged in commerce within the meaning of the Act and that the
Board's assertion of jurisdiction herein is warranted.
IL THE RELATIONSHIP BETWEEN . HOSKINS AND GENERAL
A. Facts as to the relationship between Hoskins and General
On July 8, 1964, Hoskins leased to General 8 for a period of 5 years all the real
and personal property used by the former in conducting its business. On the same
day Hoskins and General entered into an "Operating Agreement" whereby General
retained Hoskins to operate the leased property for General and to carry on for
General "a ready-mix concrete business . with the property so leased."
In pertinent part the operating agreement provides that Hoskins is to hire and
compensate all personnel; pay all workmen's compensation insurance and unemploy-
ment compensation taxes and withhold income taxes as required by law; 9 conduct
and supervise all manufacturing and sales operations; collect all accounts receivable
and deposit them directly to General's credit in a bank account maintained by Gen-
eral; 10 submit to General monthly estimates of cash operating requirements and
other reports as requested by General; and permit General's auditors or other rep-
resentatives to review and audit Hoskins' account books. In return General is obli-
gated to advance operating expenses and payroll funds to Hoskins which are to be
disbursed by Hoskins pursuant to General's authorization and to pay Hoskins, as
its fee for conducting General's business with the leased property, a specified sum
per month based upon the quantity of concrete sold by Hoskins.
Although the operating agreement states that Hoskins "will carry on the day-to-
day operations" for General at the leased premises with the leased property, Gen-
eral has retained the right to exercise "such overall supervision and direction" as
General "deemed appropriate." In addition, the agreement provides that Hoskins
"shall consult concerning and clear with [General] changes in compensation for
salaried employees or in the hourly rate schedules for hourly paid employees;
changes in salesmen's commissions . . . source and price of material purchases;
credit extension ; the hiring of any person at a salary rate in excess of $7,500 per
year and changes in prices of products sold."
Notwithstanding the provisions of the operating agreement in these respects, it
appears undisputed that in actual practice General has never given instructions to
Hoskins as to the disbursement of the money which it received from General to
5 The parties waived oral argument at the conclusion of the hearing.
The product manufactured and sold by Iloskins is commonly known as ready-mix con-
crete and from time-to-time will be referred to as such in this Decision.
7 Trinity Portland is not a separate corporation, but an integrated operating division
of General.
s Hoskins and General are separate corporations having no stockholders, officers, or di-
rectors in common.
0 The operating agreement provides further in this respect that General will reimburse
Hoskins for any expenses incurred by it in complying with this term of the Agreement.
11 Hoskins has no authority to make withdrawals from this account.
1498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
defray payroll and operating expenses, never exercised any supervision over Hos-
kins' operation of the leased premises, has never told Hoskins how to sell or
deliver concrete, has never required Hoskins to consult with it with respect to the
hiring or discharging of employees, has never given instructions or directions to
Hoskins concerning Hoskins' labor problems or policies, nor has Hoskins ever con-
sulted with General in regard to increases or decreases which Hoskins made in the
wages or salaries of its employees Hoskins is required, however, to purchase all
the cement used by it from General
General has entered into agreements similar to those described above with other
companies engaged in the concrete business in the Dallas area Also, during the fall
of 1965, General organized a separate corporation known as Trinity Concrete Prod-
ucts Company (herein called TCPC) ii for the purpose of manufacturing and sell-
mg, inter alia, ready-mix concrete, the same product sold by Hoskins and the other
companies in the Dallas area of which General is lessee All the officers of TCPC
are also officers of General and all the corporate stock of TCPC is owned by Gen-
eral W A Fleming, a vice president of General and TCPC, and one of the per-
sons who, on behalf of General, negotiated the agreements between General and
Hoskins testified that General's purposes in entering into the agreements with Hos-
kins and like agreements with other concrete companies and in forming TCPC was
to promote the sale of cement which it manufactured 12 and to diversify its busi-
ness As Fleming pithily testified in this regard, General's relationship with Hoskins
and like companies "puts [General] in the ready-mix business "
Although organized earlier, TCPC did not commence actual business operations
until about the middle of January 1966 While General was in the process of
organizing TCPC and before its actual incorporation General hired personnel,
including salesmen, who were later transferred to TCPC's payroll, and purchased
trucks, which were later "sold" by General to TCPC
Prior to, and since, the incorporation of TCPC trucks owned by General were,
and are being, used by Hoskins In addition, from time to time salesmen employed
by General and later by TCPC, General's wholly owned subsidiary, solicited orders
for concrete which were turned over to, filled and delivered by, Hoskins is And
during the vacation of Hoskins' dispatcher in the summer of 1965, his substitute
was furnished by General Upon TCPC's incorporation this substitute dispatcher
was shifted by General to TCPC's payroll
B Concluding findings as to the relationship
between Hoskins and General
In opposition to the allegations of the complaint that Hoskins and General con-
stitute a "single integrated enterprise" Respondents contend, piincipally because
there is no control exercised by General over Hoskins' day-to-day operations, its
labor relations policies, employment practices , or the means or methods by which
Hoskins performed its work for General, that the relationship between Hoskins to
General is that of one independent contractor to another I do not agree
I find that Hoskins' relationship to General is not that of a completely inde-
pendent lessor dealing at arms length with its lessee First of all, Hoskins ' "day to
day operations" are not completely unfettered Such operations are, pursuant to the
operating agreement , "subject to the right of General to exercise such overall
supervision and direction as shall be deemed appropriate by General " And
in the absence of evidence to the contrary it will be presumed that in some
respects General does exercise supervision and direction over Hoskins' day-to-day
operations
u TCPC is referred to in the record as a wholly owned subsidiary of General
12 The present transcript does not contain any testimony as to this purpose It Is the
Trial Examiner 's recollection however that during the session of the hearing which was
held on February 10, 1966, the stenographic record of which was stolen from the official
reporter (see footnote 1, above), Fleming testified that one of Generals purposes in enter
ing into agreements with Hoskins and other concrete companies and in organizing TCPC
was to promote the sale of its cement
13 Fleming, a vice president of General and of TCPC testified, without contradiction that
since the commencement of business by TCPC this practice has been followed when Hoskins'
plant or the plants of other lessors of General in the Dallas area to which orders
solicited by TCPC's salesmen are turned over are closer to the point of deli\ery than is
TCPC's plant
HOSKINS READY-MIX CONCRETE 1499
In further assessing the relationship between Hoskins and General, General's
motives in forming that relationship must be taken into account. With respect
to this Fleming, a vice president of General, testified that General entered into
the lease with Hoskins for the same reasons that it organized TCPC, its wholly
owned subsidiary; namely, to promote the sale of its cement and to diversify its
business. In this connection, Hoskins is required to purchase all its cement from
General; and, as provided in the operating agreement, to consult and clear with
General concerning, the source and price of other materials which it purchases, the
extension of credit to customers, changes in prices of the products sold, and to
deposit all money received directly to General's credit in a bank account main-
tained by General. Moreover, although General has never exercised its full power
under the operating agreement, it is not precluded from at any time asserting its
right thereunder to control Hoskins' disbursement of the money furnished it by
General to cover Hoskins' operating and payroll expenses, nor from at any time
requiring Hoskins to comply with the terms of this agreement concerning consulta-
tion and clearance with General in regard to changes in employees' compensation
and the hiring of any employee at a salary rate of more than $7,500 a year.
Furthermore, when Hoskins' dispatcher was on vacation his substitute was supplied
by General; General has furnished trucks for Hoskins' use; and salesmen employed
by General and later by TCPC, its wholly owned subsidiary, solicit orders which
are turned over to Hoskins to be filled.
Upon the foregoing, it appears that Hoskins in carrying on a ready-mix concrete
business for General at the premises it leased to General is not doing so as an
independent contractor. Rather, I find that Hoskins is doing so as though it were
an integrated operating division of General, as is Trinity Portland, or as though
it were a wholly owned subsidiary of General, as is TCPC. In view of the fore-
going, I further find, insofar as the Hoskins employees are concerned, that General
and Hoskins constitute coemployers for the purposes, and within the meaning, of
the Act. Cf. General Steel Products Inc. et al., 157 NLRB 636; Robert Casebeer &
Herman Foland, d/bla Casebeer & Foland, 149 NLRB 742; United Fruit Com-
pany, 134 NLRB 287. Accordingly, I conclude that if Hoskins committed any of
the unfair labor practices alleged in the complaint liability therefor attaches not
only to Hoskins, but also to General.
III. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2(5) of the Act.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts relating to the asserted independent violation of
Section 8(a) (1) of the Act
The Union began organizing Hoskins' employees during the early part of July
1965.14 On Friday, July 16, Hoskins received a letter from the Union, in which the
Union stated that it represented a majority of Hoskins' drivers and demanded
recognition as their collective-bargaining representative.15 On the day this letter
was received several drivers began to wear union buttons.
On the next work day, Monday, July 19, Hoskins' drivers were called to a meet-
ing which was held in the office of Wilford Hoskins, the president of Respondent
Hoskins. Many of the drivers who attended this meeting wore union buttons. Some
did not. At this meeting Wilford Hoskins told the drivers that he did not approve
of the Union and asked them to vote against the Union should an election be
held.16 A week later Wilford Hoskins sent each driver a letter in which he again
expressed his opposition to, and disapproval of, the Union.I7
After the meeting in Hoskins' office, Bob Huffer, Hoskins' dispatcher and an
admitted supervisor, gave Hoskins' bookkeeper a penciled list of employees which
14A11 dates mentioned hereafter refer to 1965, unless otherwise designated.
15 A second letter of similar Import was received by Hoskins on July 23.
I$ A representation petition was filed by the Union on July 20, 1965. This petition was
withdrawn on February 10, 1966.
17 It is not alleged in the complaint nor contended by the General Counsel that Hoskins'
statements at the meeting or the contents of the letter violated the Act. Accordingly, no
finding will be made in this respect.
1500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
indicated those,who were in favor of the Union, i.e'., those who wore union buttons,
and'those' who were against the Union; i.e. those who did not wear union buttons.
Huffer told the bookkeeper to make a typewritten copy of the list placing the
names of those employees who favored the Union at the top and the names of
those who did not at the bottom. The names of eleven employees, all drivers,
appeared at the top of the list. Included among the drivers whose names appeared
at the top of the list were William David Wilson, J. T. Stanton, and Aubrey C.
France, alleged by the General Counsel to have been discriminated against in
violation of Section (8)(a)(3).
At the same time Huffer asked the bookkeeper if she knew who had initiated
the union activity among the employees.18 She suggested that it was- Marieri, a
driver whose name also appeared at the top of the list. Huffer, apparently dis-
agreed and said it was Wilson. Huffer went on to say that he did not think Wilson
was "smart enough to . get a Union organized and give him enough rope and
he'd hang himself." '
During the week following Hoskins' receipt of the Union's first request for
recognition Wilford'Hoskins told its bookkeeper that the "Union doings had upset
him," asked her whether she knew anything about the Union and requested that
she report to him anything she saw or heard in that regard.is
On Wednesday, July 28, Cameron R. Ponder applied to Hoskins for employ-
ment as a truckdriver. He was interviewed by Huffer who told Ponder that he
could start work the following Friday, July 30. On Thursday, July 29, after
resigning from the job which he then held, Ponder returned to Hoskins' premises
and asked Huffer whether everything was in readiness for him to commence work-
ing the next day. At this time Huffer told Ponder that "Mr. Hoskins had it pretty
well fixed like he wanted it" and asker Ponder "how [he] felt about the Union."
Ponder replied that he did not "figure" that his attitude toward the Union was
"any of [Huffer's] business." 20 At the conclusion of this conversation Huffer
again told Ponder to -report for work the next day, Friday, July 30. Notwithstand-
ing that Ponder had been sought out by Huffer and although; as 'requested by
Huffer, Ponder called at Hoskins' premises not only on July 30, but also on Au-
gust 2, 3, and 4, he was not employed by Hoskins at any time during this period.
On August 9, Huffer, suffering from a shortage of drivers, finally sent word to
Ponder that he could actually start to work. By this time, however, Ponder had
obtained employment elsewhere.
On July 29, Jim Reel, a Hoskins driver whose name appeared on the upper
portion of the list typed by the bookkeeper, as set forth above, received a wage
increase of 10 cents an hour. The bookkeeper credibly testified that when she
queried Huffer about the reason for this, Huffer replied that Reel had been given
the raise because he was withdrawing from the Union.
ie Huffer admitted asking the bookkeeper these questions.
ie Wilford Hoskins denied this conversation with the bookkeeper However, I credit the
bookkeeper's testimony in this and in all other respects This is so not only because of her
demeanor and attitude while testifying, but also because at the time she appeared as a
witness in this case she had long since left Hoskins' employ, and there is nothing to in:
dicate that her departure was not amicable Furthermore, while employed by Hoskins she
was not asked to join the Union, nor was she included within the classification' of em-
ployees on whose behalf the Union sought recognition. She, therefore, was a completely
disinterested witness having nothing to gain or lose by her testimony
2.Although Huffer could not recall the exact words spoken, he did not deny his con-
versation with Ponder concerning the Union He testified, however, that he merely advised
Ponder, as he did all applicants for employment at about that time, as a matter of fair-
ness, not only about salary and vacations, but also that there was a union 6rganizational
drive at the plant. In addition, Huffer denied that Ponder stated that his attitude to'.vard
the Union was not any of his "business." In view of Huffer's general demeanor while
testifying, his admitted inability to recall the exact words exchanged during leis conveiisa-
tion with Ponder, and the change in his testimony concerning events which led up to the
termination of Wilson's employment, as Rill be discussed below, for which reason- I have
not credited Huffer's testimony in any regard unless it has been corroborated by _other
credible evidence, I do not believe Huffer's version of this Incident. It should also be noted
that Ponder's account of his conversation with Buffer Is in large part corroborated by
Hoskins' bookkeeper whom I have already found to be a highly credible' disinterested
witness.
HOSKINS READY-MIX CONCRETE 1501
B. Concluding findings as to the alleged independent violations
of Section 8(a)(1) of the Act
The General Counsel contends , and I agree, that Hoskins independently vio-
lated Section 8(a)(1) of the Act by inquiring of one employee concerning other
employees ' union membership , activities , and desires , by requesting this employee
to report what she saw and heard in this regard, by interrogating an applicant for
employment as to his attitude toward the Union and by informing an employee
that another employee had received a wage raise because he was withdrawing from
the Union.
I find that the request of Hoskins ' bookkeeper by its president , Wilford Hoskins,
in essence , to act as a spy and report to him anything she saw or heard about the
union activitity of Hoskins ' employees and the almost simultaneous questioning of
the bookkeeper by Huffer, Hoskins' dispatcher, as to who initiated that activity
among Hoskins' employees interfered with, and restrained , Hoskins' employees in
the exercise of rights guaranteed in Section 7 of the Act.21
I further find , in view of Wilford Hoskins' announced disapproval of, and oppo-
sition to , the Union, that Huffer's interrogation of Ponder concerning his member-
ship in the Union was coercive . 22 The fact that Ponder, at the time in question,
may not have been an actual employee of Hoskins is not controlling , for it is well
settled, in this connection , that an applicant for employment is an employee within
the meaning of the Act. Phelps Dodge Corporation v. N.L.R.B., 313 U.S. 717. See
also Section 2(3) of the Act.
Finally, I find that Huffer's representation to Hoskin 's bookkeeper that Reel, a
Hoskins employee , was being given a wage increase because he was withdrawing
from the Union also constitutes a prohibited infringement upon rights guaranteed to
employees by Section 7 of the Act . It needs no citation of authority to support the
well-established proposition that an employer who offers an employee an economic
benefit for rejecting a union interferes with that employee's Section 7 right freely
to choose his bargaining representative . It follows, therefore , that when an employer
tells one employee that another employee has been given a wage raise because he
is withdrawing from a union such a statement , even if untrue , is in itself a pro-
scribed inducement to employees to follow the same course ; i.e. reject the Union.
Accordingly , I conclude that by the conduct set forth above Hoskins committed
unfair labor practices within the meaning of Section 8(a)(1) of the Act.
C. Facts relating to the alleged violations of Section 8(a) (3) of the Act
William David Wilson, J. T. Stanton, and Aubrey C. France were employed by
Hoskins as truckdrivers . 23 All three had signed union application cards, and wore
union buttons. I find that Hoskins knew of their adherence to the Union.
In this connection on July 12, Wilson was instrumental in obtaining signed
union application cards not only from Stanton and France , but also from many
other employees of Hoskins . Wilson was the Union 's principal organizer among
Hoskins' employees and I find that Hoskins was aware of this fact.24
Hoskins truckdrivers , who wear uniforms furnished by Hoskins for which they
are required to make a cash deposit, deliver concrete to Hoskins ' customers. Hos-
kins' trucks are equipped with drums into which concrete manufactured by Hoskins
is poured . While in transit to the place of delivery the drums revolve thereby
maintaining the concrete in a semi -fluid state . Should the drums, for any reason,
stop turning while containing concrete , the concrete will harden (set up ). When this
occurs the concrete has to be removed from the drum before the truck can again
be used. It is undisputed that Hoskins' drivers are required to remove hardened con-
crete from the drums of their trucks and to keep their trucks clean.
21N.L.R .B. v. Duval Engineering .f Contracting Co., 311 F .2d 291 , 292 (C .A. 5), enfg.
132 NLRB 852 ; cf. C. A. Fuller Super Markets, Inc., 152 NLRB. 217.
23 Lindaag Newspapers , Inc., 130 NLRB 650.
23 The complaint alleges that Hoskins violated Section 8(a) (3) of the Act by assigning
Wilson to perform "more arduous or less agreeable job tasks" ; i.e., removing hardened
concrete from the drum of his truck with inadequate tools, and by subsequently discharging
Wilson, Stanton , and France.
24 It will be remembered, in this regard , that Huffer stated to Hoskins ' bookkeeper on
July 19, that Wilson had initiated the union activity among Hoskins ' employees.
1502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
William David Wilson: On July 9,25 a quantity of concrete, estimated by Wilson
to have been about 2 yards, hardened in the drum of his truck.26 After an effort to
remove the concrete by another method failed, Wilson was directed to remove the
concrete manually. Although Wilson, on several occasions requested that Hoskins
obtain an air hammer for his use in performing this task, Wilson's requests were
denied and he was required to go inside, the drum and chip out the hardened
concrete using only a hand hammer and chisel. In this regard, the record clearly
shows that never in the past had Hoskins provided an air hammer for the removal
of hardened concrete from the drum of a truck when the amount involved was
less than 31/2 yards.
From July 19, until July 30, during which interval the temperature sometimes
rose above 90 degrees, Wilson, with occasional help from other Hoskins employees,
worked in the drum of his truck with a hand hammer and chisel chipping out the
hardened concrete. While so engaged Wilson stated on two or three occasions that
rather than chip out the concrete he should quit. The fact is, however, that he did
not do so.
Wilson did not work continuously at this project. Hoskins' records show, and I
find, that in this period Wilson made a substantial number of deliveries for
Hoskins 27
By July 30, Wilson had removed the hardened concrete from the drum of his
truck. He soon, however, became involved in another concrete removal incident
which resulted in the termination of his employment at Hoskins.
Early on August 9, there being no other work for the drivers to do, they were
cleaning their trucks. While working on the cab of his truck, Wilson was directed
by Huffer to chip off some concrete which had hardened on the outside end of his
truck.28 In compliance with this order Wilson began to look for an implement with
which to do this. While so engaged Wilford Hoskins, Hoskins' president, asked
Wilson why he was not cleaning the back of his truck. When Wilson said that he
"was looking for something to knock the concrete off with," Hoskins told him to
"use a damn rock." Upon Wilson's rejoinder that he had "never heard of such a
thing," Hoskins discharged Wilson and directed him to bring his extra uniforms
into the office where Huffer, Hoskins' dispatcher, would "write [his] time up."
The findings set forth in the last paragraph are based upon Wilson's testimony.
Hoskins' testimony as to the events which lead up to the termination of Wilson's
employment is in substantial agreement with that given by Wilson. Hoskins, how-
ever, testified that he did not discharge Wilson, but that when he directed Wilson
to remove the concrete which hardened on the back of his truck with a rock, Wil-
son quit. Huffer also testified that Wilson quit.
I have already concluded that Wilson was, generally, a credible witness. I believe
him specifically in this instance and do not believe the contrary testimony that he
quit given by Hoskins and Huffer. I base my refusal to believe Hoskins and Huffer
in this regard not only on their attitude and demeanor while testifying, but also
because Huffer, at the session of the trial which was held on February 10, 1966, the
stenographic record of which is not available,29 gave a different version of the
events which preceded the termination of Wilson's employment 30
2 The findings as to dates respecting this phase of the case are based upon a synthesis
of the testimony of Wilson , Wilford Hoskins , and Huffer and Hoskins' pertinent business
records which were received in evidence
2 Wilford Hoskins and Huffer testified that Wilson had informed them that only about
three-fourths of a yard of concrete had hardened . In view of my ultimate conclusion with
respect to this matter , I find it unnecessary to resolve ' this conflict.
zT Wilson testified that he made no deliveries at all while chipping concrete . Although
Wilson's attitude and demeanor while testifying lead me to conclude that he was generally
a credible witness, I am unable , in view of Hoskins ' records, to believe him in this regard.
This is not to say , however , that because I do not credit Wilson on this point I am required
to or will, as urged by Hoskins 'counsel, discredit him in all other respects . As was aptly
stated in this regard by Judge Learned Hand in N L R B. v. Universal Camera Corporation,
179 F 2d 749 , 754 (C.A. 2)
It is no reason for refusing to accept everything a witness says; because you do not
believe all of it ; nothing is more common in all kinds of judicial decisions than'to
believe some and not all.
28 This is not to be confused with the earlier incident in which concrete had• hardened
inside the drum of Wilson 's truck.
28 See footnote 1.
2U At that time Huffer testified that Wilson quit rather than obey an order to continue
to chip concrete out of the drum of his truck.
HOSKINS READY-MIX CONCRETE-, 1503
On March 17, 1966, the day on which' the reported, hearing ' was held, the tran-
script of the proceedings had on,February 9, 1966, on which day Wilford Hoskins
originally testified with respect to the termination of Wilson's employment, 31,-was
already in typewritten form and in possession of the parties. Having been informed
of, or having read , the testimony given by Wilford Hoskins' on February 9, 1965,
Huffer hastened to change his testimony to conform to Wilford Hoskins'. This
becomes apparent when Huffer's statement prefatory to his testimony given on
March 17, 1966, with respect to the events on the day Wilson's employment was
terminated is read. At that time Huffer said: "
I'd like to say now, this is going to be different from what I made last time. I
did make an error that David Wilson was in his truck that last day. He was
cleaning the outside of it. I've discovered that after talking to some of the men
since, and then I recalled that he had been in his truck and was on the outside.
But I was honest when I gave that statement.
To paraphrase Shakespeare, I think Huffer protested too much.
In its brief Hoskins argues that it should be concluded that Wilson quit on Au-
gust 9 , because he had earlier stated, while chipping the hardened concrete out of
the inside of the drum of his truck, that he should do so rather than continue to
perform that work. Such a conclusion however would be implausible. It is not
probable, in my opinion, that Wilson should have withstood the rigors of working
inside the drum of a truck in temperatures which ranged upward of 90 degrees only
to quit when directed to perform the relatively easy task of removing concrete
from the outside of his truck.
Accordingly, I conclude, upon consideration of all of the testimony, that Wilson
was discharged on August 9.
J. T. Stanton: Stanton began to work for Hoskins on May 26, 1965. From the
time of the commencement of his employment until its termination Stanton was
absent on six occasions, June 17, 18, and 25, and July 27, 28, and 29. On Satur-
day, August 7, Stanton went to Houston, Texas, to visit his brother. Before he left
home he arranged with a neighbor to call Hoskins in the event that he returned
too late to report for work on August 9. This eventuality occurred and at about
8 a.m. on Monday, August 9, Stanton's neighbor called Hoskins and stated that
Stanton would not be in to work that day. While Wilson was waiting for his check
in Huffer's office following his discharge he inquired as to whether Stanton was
coming to work. Huffer replied that it "wouldn't do him no good because he was
laid off too" and that "his check would be waiting for him when he got there." 3a
That evening Wilson told Stanton that he (Stanton ) had been discharged.
The following day, Tuesday, August 10, Stanton went to Hoskins' plant and
told Huffer that he understood he had been discharged and had come to get his
check, which, it appeared, in corroboration of Wilson's testimony in this regard,
had already been written. Huffer said "that's right," but told Stanton that before
he could pick up his -check he would have to turn in his uniforms. Stanton then
went home and returned to the plant with his uniforms. Upon his return there was
no one to count them. Stanton, thereupon, came back to the plant on Wednesday,
August 10, on which day his uniforms were finally counted and he was given his
uniform deposit.33
Wilford Hoskins and Huffer both testified that Stanton was discharged on Wednes-
day, August 11, because of his excessive absenteeism. In addition Wilford Hoskins
testified that while he made the decision to "release" Stanton on Wednesday, which
would have been August 11, notice of his "release" was actually given to Stanton
by Huffer. Wilford Hoskins further testified that he did not know how or when
Huffer did this.
I have already found that Huffer's testimony in this regard is unworthy of belief,
and, in view of Wilford Hoskins' admitted lack of knowledge as to how or when
m Wilford Hoskins gave furher testimony on this point on March 17, 1936.
s2 Huffer did not deny this conversation with Wilson concerning Stanton He testified,
merely, that he did not remember if. Huffer'further testified, in this regard, that had
Stanton come to work on Tuesday, August 10, "he would not have been terminated "--This,
I do not believe, in view of the corroboration of Wilson's foregoing testimony, as'appears
below, Huffer's failure to deny that testimony, and my general conclusion that Huffer was
not a credible witness. '
33 In addition to Wilson's testimony,'the findings 'with respect to Stanton's employment
by Hoskins and its termination are based on' Hoskins" business records 'and: Stanton's
testimony which, because of Stanton's demeanor while testifying, I credit.
1504 DECISIONS; OF NATIONAL LABOR RELATIONS BOARD
Huffer actually discharged Stanton , I find that Wilford Hoskins ' testimony on this
point lacks probative value . I conclude , therefore , that Stanton was discharged on
Monday, August 9.
Aubrey C. France: Although it developed on December 31 that- Hoskins' plant
was open during the entire day, it had been decided, because the next day was a
holiday, to close at noon, if possible. While making a delivery during the morning
of that day, France's truck broke down and had to be towed back to the plant.
Upon the truck's arrival at the plant at about 11:30 a.m., Huffer, Hoskins' dis-
patcher, told France that he had been instructed by Wilford Hoskins, Hoskins' pres-
ident , to direct, him to go home and stay home until Hoskins' mechanic found out
what was wrong with the 'truck.
France began to drive trucks for Hoskins in October 1964. Since that time he had
several breakdowns, including one which occurred on September 13, 1965. Wilford
Hoskins testified however that France's previous breakdowns were not taken into
account when he decided to send France home on December 31.
Although neither Wilford Hoskins nor Huffer had told France that he had been
discharged, France, on Monday, January 3, 1966, called Huffer on the telephone
and said to' him that having been "fired [he'] might as well come and get [his]
check and turn in [his] uniforms." Huffer replied that the check would be ready
when France got to the plant. The check which France received on January 3, 1966,
covered not only the time France had actually worked the previous week, but also
his holiday pay for January 1, 1966, on which day France did not work.
Early-in January 1966, Huffer told France that he could obtain employment at
another plant whose foreman was Huffer's brother- in-law .34 Concerning France's
further employment, it was stipulated that .France went back to work for Hoskins
on February 11, 1966.35
D. Concluding findings as to the alleged violations of
Section 8(a)(3) of the Act
The General' Counsel contends that by assigning Wilson to perform the onerous
task of removing the hardened concrete from the drum of his truck with inadequate
tools, i.e., without furnishing Wilson with an air hammer despite his requests there-
for, and by subsequently discharging Wilson, Stanton, and France, Hoskins violated
Section 8(a)(3) of the Act. I agree with these contentions only insofar as they
relate to the discharges of Wilson and Stanton.
It isi undisputed, and I have found, that the duties of Hoskins' drivers included
the removal of hardened concrete from the drums of their trucks. I have further
found that never in the past had Hoskins provided an air hammer for the removal
of, hardened concrete from, the drum of a truck where the amount involved was
less than 3'h yards. Accordingly, even if the amount of hardened concrete in the
drum of Wilson's truck had been 2 yards, as he testified, Hoskins' refusal to furnish
him with an air hammer for its removal was not a departure from Hoskins' usual
practice . Furthermore, Wilson was not required to work alone in removing the
hardened concrete, nor did he work exclusively on this project. In this regard, I
have found that he received help from other Hoskins employees and that during
the period in question he made a substantial number of deliveries.
While I agree that Wilson's work inside the drum of his truck in temperatures
which ranged upward of 90 degrees was indeed arduous, onerous, and disagreeable,
more must be shown to establish that Hoskins' assignment of Wilson to perform
such work violated Section 8(a)(3). It must be found that the assignment was dis-
criminatory.36 On the record of this case I am unable to make such a finding. I
conclude, therefore, that the General Counsel has not sustained his burden of prov-
ing by 'a preponderance of the evidenpe that Hoskins violated Section 8 (a) (3) of
the Act in this regard. Accordingly, I dismiss paragraph 11(a) and the relating por-
tion of paragraph 12 of the complaint.
Hoskins admits that Stanton was discharged, albeit claiming that the reason for
his discharge was his absenteeism, and I have found, contrary to Hoskins ' conten-
tion, that Wilson was discharged. Both were adherents of the Union, Wilson being
a+ The record is silent with respect to whether France ever communicated with Huffer's
brother -in-law or whether France ever obtained employment at this other plant.
35 The findings with respect to the termination of France's employment are based upon
the testimony of France and Wilford Hoskins and Huffer's testimony insofar as it was cor-
roborated by the credited testimony of France and Hoskins.
88 Lipman Bros . Inc., et at., 147 NLRB 1342, 1344.
HOSKINS READY-MIX CONCRETE 1505
the Union's prime mover: in Hoskins ' employ and I have found that Hoskins was
aware of these facts.
Shortly after Hoskins had received the Union' s first request for recognition and
immediately following a meeting at which Wilford Hoskins expressed his disapproval
of the Union, Huffer, correctly identified Wilson as being the employee who was
"trying to get a Union" and prophesied that given "enough rope . . he'd hang
himself." In fruition of this prophecy Wilson was discharged. He had, in essence,
hanged himself.
Stanton's discharge on the same day was, in my opinion, part and parcel of the
same package. Having seized upon Wilson's questioning of Wilford Hoskins' judg-
ment in telling Wilson to clean the concrete off his truck with a rock as an oppor-
tunity to discharge him because of his adherence to the Union, Hoskins, I find, dis-
charged Stanton for the same reason, latching onto Stanton's record of absenteeism
as a transparent pretext for this action.
Accordingly, I conclude that by discharging Wilson and Stanton on August 9,
Hoskins violated Section 8(a)(3) and (1) of the Act.
Unlike the discharge of Wilson and Stanton which came hard on the heels of the
opening of the Union's organization drive and its requests for recognition, France's
discharge, if he was indeed discharged,37 occurred 5 months later.
France's discharge took place when he returned to Hoskins' plant with his dis-
abled truck at 11:30 a.m. on a day when Hoskins was trying to close early. Although
Hoskins knew that France favored the Union and although France had signed a
union membership application card and had worn a union button, he was not, like
Wilson, otherwise active in the support of the Union. Furthermore, notwithstanding
his separation from Hoskins' employ on December 31, he received holiday pay for
January 1, 1966, Huffer, Hoskins' dispatcher, suggested to France, after his dis-
charge, that he seek employment at a place where Huffer's brother=in-law was fore-
man, and France was reemployed by Hoskins on February 11, 1966.
The General Counsel suggests that France's discharge on December 31, because
his truck had broken down was a pretext to mask a discharge for union activity.
Had Hoskins, however, been seeking such an excuse it would not have had to wait
until December 31. Such a reason could have been found when a truck driven by
France broke down on September 13, a date much closer to the commencement of
the Union' s organizing drive among Hoskins' employees.
The mere discharge of a union adherent is not per se violative of Section 8(a) (3).
It must be found that the discharge was discriminatory. 38 On the record of this case,
I am unable to make such a finding. I conclude, therefore, that the General Counsel
has not sustained his burden of proving by a preponderance of the evidence that
Hoskins violated Section 8(a).(3) of the Act by discharging France. Accordingly,
paragraph 11(d) and the relating portion of paragraph 12 of the complaint 39 will
be dismissed.
E. Facts with respect to the alleged violation of Section 8(a) (5) of the Act
As noted above, on July 16 Hoskins received a letter from the Union dated
July 15; in which the Union stated that it represented a majority of Hoskins' employ-
ees "in an appropriate unit" which was described as "All Ready Mix Truck Drivers,
excluding, All Yard Employees, Batch Plant Employees, Office Clerical, Watchmen,
Guards and Supervisors, as defined in the Act. . . ." In this letter the Union
requested recognition from Hoskins as the collective -bargaining representative of
the employees in the foregoing unit, asked that Hoskins meet and bargain with it on
behalf of those employees , and offered to prove that it represented a majority of
the employees in question by submitting to an "impartial third person" cards signed
by the employees authorizing the Union to bargain for them.
37 As set forth above, at no time was France told he had been discharged. He had been
merely Instructed on December 31, to go home and stay home until the cause of his
truck's breakdown could be ascertained. It was France, himself., who characterized these
instructions as a discharge. For the purpose of this decision, however, I will assume that
France had been discharged.
33 Metals Engineering Corporation , 148 NLRB 88, 90; Chance Vought Aircraft Division,
etc., 85 NLRB 183, 188-189.
-Paragraph 11(d) was added to the complaint and paragraph 12 of the complaint was
amended to refer to paragraph 11(d) on motion of the General Counsel at the outset of
the hearing.
264-188-67-vol. 161-96
1506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Not having received a reply to the foregoing letter, the Union, on July 20, filed
a representation petition (16-RC-3985) The unit description in the petition was
the same as that contained in the Union's recognition demand On July 22, the
Union again wrote to Hoskins In this letter the Union renewed its request for
recognition and its offer to prove its majority "notwithstanding the fact that the
National Labor Relations Board election procedures have been invoked and are now
in progress " It does not appear from the record that Hoskins made any response
to this letter
On August 1, a hearing was held on the Union's petition at which the appropn-
ateness of the unit for which the Union sought certification as the collective-
bargaining representative was litigated 40 No decision was made on this petition and
on February 10, 1966, the Regional Director permitted its withdrawal
On July 16, the date Hoskins received its first request for recognition from the
Union, there were in Hoskins employ 13 drivers, 2 mechanics, and 2 batch plant
men Although the batch plant men on occasion move trucks from one position in
Hoskins' yard to another, they do not, like the drivers, make deliveries for Hoskins
or drive the trucks on highways One of the mechanics spends more than 50 per-
cent of his working time performing the same duties as the drivers The other
mechanic does so in the summer months, Hoskins' busy season
Prior to the date of the Union's first recognition demand 11 drivers employed
by Hoskins had signed documents entitled APPLICATION AND AUTHORIZA-
TION BLANK which contained the following recital 41
I, [name of signer] (Member's Signature) Desiring to become a member of
the above Union of the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers I hereby make application for admission to
membership
F Concluding findings as to its alleged violation of Section 8(a) (5) of the Act
The only ground asserted by Hoskins to justify its failure to recognize the Union
is, as stated by it at the opening of the hearing herein, that the unit alleged by the
Union as being appropriate was in fact and law inappropriate If, therefore, it is
found that the unit for which the Union sought recognition is proper, or substan-
tially so, for the purposes of collective bargaining then the refusal of Hoskins to
recognize and bargain with the Union because it thought otherwise constitutes a
violation of Section 8(a) (5) of the Act 42
I find that the batch plant men employed by Hoskins, who do no driving do not
share a community of interest with the drivers and the mechanics, who as a group
spend all, or substantially all, of their time driving trucks on deliveries for Hoskins
Accordingly, I find that Hoskins' drivers and mechanics constitute a unit appropri-
ate for collective-bargaining purposes 43 As the unit for which the Unit sought
recognition was substantially appropriate even though it did not include Hoskins'
mechanics and as the Union represented a majority of the employees in this unit at
the time it requested that Hoskins recognize and bargain with it, I find that Hoskins
was bound, under the Act, to comply with this request and that by failing to do so
it unlawfully refused to bargain with the Union 44 Moreover, even if it were to be
concluded that a unit which included not only the drivers and mechanics, but also
the batch plant men was appropriate, as Hoskins contends, Hoskins would still have
40 The instant record does not disclose what position Hoskins took in the represents
tion proceeding with respect to the appropriateness of the unit In its opening statement
in the instant case Hoskins contended that the appropriate unit consists not only of the
drivers, but also the mechanics and batch plant men in its employ
41 This application for membership in the Union does not specifically authorize the
Union to bargain for the applicant However, "an application for union membership im
plies authority to bargain " N L R B v Consolidated Machine Tool Corporation, 163 F 2d
376, 378 (C A 2), cert denied 332 U S 824 Accordingly, I conclude that the applications
signed by Hoskins' drivers sufficiently authorized the Union to bargain on their behalf
42 Oklahoma Sheraton Corporation, 156 NLRB 681, footnote 1 , Southland Paint Com-
pany, Inc, 156 NLRB 22
43 E H Koester Baking Co Inc, 136 NLRB 1006, 1011-12
"Ash, Mrs Homer E and Bill H B Williams, a co partnership d/b/a Ash Market and
Gasoline 130 NLRB 641, 642, Priced Less Discount Foods, Inc d/b/a Payless, 157 NLRB
1145, footnote 11
HOSKINS 'READY-MIX CONCRETE 1507
been required to bargain with the
-
Union
•r
, for even in that situation the Union would
have represented a majority of the employees concerned. The record shows, in this
connection, that on the critical date Hoskins employed 17 people in the unit which
it urges is appropriate and 11 of them had signed applications for membership in
the Union.
I conclude, therefore, that by failing and refusing • to bargain with the Union in
accordance with its request Hoskins violated Section 8(a)(5) and (1) of the Act.
V. THE'EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Hoskins set forth in section IV, above, occurring in connection
with the operations.of Hoskins and General as set forth in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States'and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
VI. THE REMEDY
Having found that General is liable for Hoskins' unfair labor practices, and
having found that Hoskins engaged in the unfair labor practices set forth above,
the Recommended Order will direct both Hoskins and General to cease and desist
therefrom and to take the afirmative action normally required in such cases in
order to effectuate the policies of the Act. Any -backpay found to be due to Wilson
and Stanton shall be computed in accordance with the formula set forth in F. W.
Woolworth Company, 90 NLRB 289, and shall include interest in the amount and
manner provided for in Isis Plumbing & Heating Co., 138 NLRB 716. As the
Union has at all times material herein represented a majority of the employees in
an appropriate unit the Recommended Order will require that Hoskins and General
bargain with the Union on request and if, as a result of such bargaining, an under-
standing is reached , embody such understanding in a signed agreement.
Because of the nature of the unfair labor practices and the relatively small com-
plement of employees in the plant involved, thereby magnifying the effect of the
unlawful conduct,: my Recommended Order will contain broad cease-and-desist
provisions.
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Respondents are employers within the meaning of Section 2(2) of the Act,
and are engaged in commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Respondent Hoskins and Respondent General are jointly and severally liable
for the unfair labor practices engaged in by Respondent Hoskins.
3. The Union is a labor organization within the meaning of Section 2(5) of the
Act. ,
4. By the conduct set forth in sections IV, A and IV, B above Respondent Hos-
kins has engaged - in, and is engaging in, unfair labor practices within the meaning
of Section 8(a)(1), of the Act.
5. By discharging William David Wilson and J. T. Stanton because of their mem-
bership in, and activities on behalf of, ,the, Union Respondent Hoskins has engaged
in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(3)
and (1 ) of the Act. -
6. All truckdrivers- and mechanics employed by Respondent Hoskins, excluding
all batch plant employees, office clerical employees; watchmen, guards, and super-
visors as defined in the Act, constitute a unit appropriate for collective bargaining
within the meaning of Section 9(b) of the Act. '
7. At all times material herein the Union has represented a majority of the
employees in the unit set forth in Conclusion of Law 6, above.
8. By failing and refusing to recognize and bargain with the Union as the
collective-bargaining representative of the employees in the unit set forth in Conclu-
sion of Law 6, above, Respondent Hoskins has engaged in, and is engaging in,
unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act.
9. Respondent Hoskins did not violate Section 8(a)(3) and (1) of the Act by
requiring William David Wilson to perform an arduous, onerous, and disagreeable
task or, by discharging Aubrey C.. France, as alleged in the complaint.
1508 DECISIONS. OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Upon the foregoing findings bf fact and conclusions of law and upon the entire rec-
ord in this case I recommend that Respondent Hoskins Ready-Mix Concrete, Inc.,
and Trinity Portland Cement Division, General Portland Cement Company, their
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning their attitude toward any'
labor organization, requesting employees to furnish information to them concern-
ing the attitudes and desires of other employees toward any labor organization,.
informing employees that other employees had received, or will receive, wage
increases because they withdrew from any labor organization.
(b) Discouraging membership in Dallas General Drivers, Warehousemen and'
Helpers Local Union No. 745, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any other labor organization, by dis-
criminating against employees of Hoskins Ready-Mix Concrete, Inc., in regard to
hire or tenure of employment or any term or condition of employment.
(c) Failing or refusing to recognize or bargain collectively with the aforesaid'
labor organization as the exclusive bargaining representative of the employees of
Hoskins Ready-Mix Concrete, Inc., in the unit found herein to be appropriate for-
the purposes of collective bargaining.
(d) In any other manner interfering with, restraining, or coercing employees
in the exercise of their right to self-organization, to form, join, or assist labor-
organizations, to bargain collectively through representatives of their own choos-
ing, or to engage in other concerted activities for the purpose of collective bar--
gaining or other mutual aid or protection as guaranteed in Section 7 of the Act,.
or to refrain from any or all such activities.
2. Take the following affirmative action which, it is found, will effectuate the
policies of the Act.
(a) Offer to William David Wilson and J. T. Stanton immediate and full rein-
statement to their former or substantially equivalent positions, without prejudice-
to their seniority or other rights and privileges, and jointly and severally make-
them whole for any loss of earnings they may have suffered as a result . of the dis-
crimination practiced against them, in the manner set forth in the section of this
Decision entitled "The Remedy."
(b) Notify the above-named employees if presently serving in the Armed Forces
of the United States of their right to full reinstatement upon application in accord-
ance with the Selective Service Act and the Universal Military Training and Serv-
ice Act, as amended, after discharge from the Armed Forces.
(c) Preserve and, upon request, make available to the National Labor Rela-
tions Board and its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports, and all other
records necessary or useful to determine the rights of reinstatement and backpay,.
if any, due under the terms of this Recommended Order.
(d) Upon request, recognize and bargain collectively with Dallas General Driv-
ers, Warehousemen and Helpers Local Union No. 745, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America as the exclu-
sive bargaining representative of the employees of Hoskins Ready Mix Concrete..
Inc., in the unit found herein to be appropriate for the purposes of collective bar-
gaining, and if an understanding is reached embody such understanding in a,
signed agreement.
(e) Post at the premises of Hoskins Ready-Mix Concrete, Inc., copies of the
attached notice marked "Appendix." 45 Copies of said notice to be furnished by
the Regional Director for the Region 16 of the National Labor Relations Board'
(Fort Worth, Texas), after being signed by authorized agents of Respondents shall
be posted immediately upon receipt thereof and be maintained for a period of 60,
consecutive days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall be taken to
insure that said notices are not altered, defaced, or covered by any other material..
In the event that this Recommended Order is adopted by the Board', the words, "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" In the notice. In the further event that this Order is enforced by a
decree of a United States Court of Appeals, the notice shall be further amended by sub-
stituting for the words "a Decision and Order" the words, "a Decree of the United States,
Court of Appeals Enforcing an Order."
HOSKINS READY-MIX CONCRETE 1509
(f) Notify the aforesaid Regional Director , in writing , within 20 days from
the date of receipt of this Decision , what steps they have taken to comply herewith.46
^ In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read : "Notify the aforesaid Regional Director, in writing, within
:10 days from the date of this Order, what steps they have taken to comply herewith."
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WELL NOT coercively interrogate our employees regarding their mem-
bership in, views about, attitudes and desires toward, or activities on behalf
of, any union.
WE WILL NOT request employees to furnish information to us concerning
other employees ' membership in, views about, attitudes, and desires toward,
or activities on behalf of, any union.
WE WILL NOT inform employees that other employees had received, or will
receive, wage increases because they withdrew from any union.
WE WILL NOT in any other way interfere with, restrain, or coerce employees
=in the exercise of the rights guaranteed them by the National Labor Rela-
tions Act, as amended.
WE WILL NOT discourage membership in any union by discharging, or lay-
ing off, any employee or by discriminating against any employee in any other
manner in regard to their hire and tenure of employment or any term or
condition of employment.
WE WILL NOT in any other manner interfere with , restrain , or coerce
employees in the exercise of their rights guaranteed in Section 7 of the
National Labor Relations Act.
WE WILL offer to William David Wilson and J . T. Stanton immediate and
full reinstatement to their former or substantially equivalent positions, with-
out prejudice to their seniority or other rights and privileges, and make them
whole for any loss of earnings they may have suffered as a result of the
discrimination against them.
Upon request, we will recognize and bargain collectively with Dallas Gen-
eral Drivers, Warehousemen and Helpers Local Union No. 245, International
Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of Amer-
ica, as the exclusive representative for the purposes of collective bargaining of
our employees in a unit appropriate for the purposes of collective bargain-
ing. Said unit is:
All truckdrivers and mechanics employed by Hoskins Ready-Mix, Inc.,
excluding all batch plant employees, office clerical employees, watchmen,
guards, and supervisors as defined in the National Labor Relations Act.
HOSKINS READY-MIX, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
TRINITY PORTLAND CEMENT DIVISION, GENERAL
PORTLAND CEMENT COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify, the above-named employees if presently serving in the
Armed Forces of the United States of their rights to full reinstatement upon
application in accordance with the Selective Service Act and the Universal Mili-
tary Training and Service Act, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of post-
ing, and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board' s Regional Office, Sixth
Floor, Meacham Building, 110 West Fifth Street, Fort Worth, Texas 76102, Tele-
phone 335-4211, Extension 2145.