Illinois Concrete Pipe Co.

National Labor Relations Board - Board DecisionsApr 25, 1973

203 N.L.R.B. 223 (N.L.R.B. 1973)

ILLINOIS CONCRETE PIPE CO. 223 Illinois Concrete Pipe Company and Ray O. Davis. Case 13-CA-11691 April 25, 1973 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On February 16, 1973, Administrative Law Judge Milton Janus issued the attached Decision in this pro- ceeding. Thereafter, the Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER made statements concerning Davis and the Union which interfered with, restrained, and coerced Davis in his exercise of rights guaranteed in Section 7 of the Act. Respondent's answer denies these allegations. Upon the entire record, including my observation of the demeanor of the witnesses, and upon the briefs received from the General Counsel and the Respondent, I make the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT Respondent, an Illinois corporation, has its principal place of business at Hodgkins, Illinois, where it is engaged in the manufacture of concrete products. During a recent representative period, Respondent sold concrete products valued in excess of $390,000, of which in excess of $50,000 was sold to enterprises located in Illinois which annually ship goods valued in excess of $50,000 directly to places in other States. During the same period, Respondent also pur- chased materials valued in excess of $50,000 from suppliers located in Illinois which receive said goods directly from places in other States. On these facts I find that Respondent is an employer engaged in commerce within the meaning of the Act. Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, Illinois Concrete Pipe Com- pany, Franklin Park, Illinois, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the said recommended Order. t The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board 's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect . Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3). We have carefully examined the record and find no basis for reversing his findings DECISION STATEMENT OF THE CASE MILTON JANUS, Administrative Law Judge: This case was heard before me at Chicago, Illinois, on October 30 and 31, 1972, pursuant to a charge and an amended charge filed July 28 and September 27, 1972, respectively. A complaint based on these charges was issued on September 29, 1972. It alleges that Respondent terminated the employment of Ray O. Davis, the Charging Party, on or about July 24, 1972, in violation of Section 8(a)(3), because of his efforts on behalf of Construction and General Laborers' District Council of Chicago and Vicinity, and because he had en- gaged in other protected union and concerted activity; and that Respondent, through certain named supervisors, had II. THE LABOR ORGANIZATION INVOLVED Construction and General Laborers' District Council of Chicago and Vicinity is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES Background and Issues The Respondent (Illinois) is a subsidiary of National Concrete Pipe Company (National), organized in June 1972 to acquire by purchase and lease certain assets of Vulcan Material Corporation, an unrelated company. Vulcan's Concrete Materials Division, which Illinois acquired, was located at Hodgkins, Illinois, while National's plant was located at Franklin Park, both within the Chicago metropol- itan area, but about 20 miles apart. Vulcan ceased operations at Hodgkins as of June 30, 1972, and terminated all its production employees. Illinois began operations at Hodgkins on July 5, hiring all of Vulcan's laid-off employees on a probationary basis. The Union had been the bargaining representative of the Vulcan employees, as it also was of the National employees. Ray Davis, the Charging Party, had been an employee of Vulcan at the Hodgkins plant as well as the union steward there . He was among those hired by Illinois when it resumed operations there on July 5. After about a week, Davis and a few other former Vulcan employees were transferred to the National plant at Franklin Park, where Illinois was c'r- ganizing a second shift on which certain types of small pipe would be manufactured. On July 24, Davis was terminated. The General Counsel contends that Illinois discharged him because he had tried 203 NLRB No. 49 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to function as the Union 's steward for the former Vulcan employees who had been transferred to Franklin Park, or had otherwise engaged in concerted protected activities on their behalf . The Respondent contends in its brief that Da- vis was not terminated because of any activities on behalf of the employees or the Union (which it denies he was engaged in , in any event) but solely because it was dissatis- fied with his work performance , and because he had left work without permission one day and had failed to call in the next day. The allegations of the complaint relating to violations of Section 8(a)(1) refer to statements by Illinois officials alleg- edly made to Davis and to other employees to the effect that Davis was a troublemaker , that he had no authority in the plant as a union steward , that they would fire everyone to get to the troublemaker, and that there was no need for a union at the plant. Events Before July 13 Since the Union had represented the Vulcan employees before their mass termination as of June 30, it was con- cerned about their status when Illinois took over Vulcan's operations . A week or so after Illinois started up at the Hodgkins plant , the business agent of Local 25 of the Union , Budack , called on Illinois officials to learn whether it would recognize the Union and bargain for a new agree- ment. The Company agreed that their new employees were still represented by the Union and that it would negotiate an agreement . It also informed Budack that it had hired the former Vulcan employees on a probationary basis , had re- duced their wages to the basic scale provided for in the old Vulcan agreement for the next 30 days, and that it planned to reduce its work force . Budack met again on July 21 with Illinois officials , and they reached agreement on the basic provisions for a new contract . Budack testified that he con- sidered the contract to be in effect , even though it had not yet been reduced to writing as of the date of the hearing, more than 3 months later. The Vulcan agreement had provided that the Union could appoint departmental stewards and, as noted above, Davis had held such a position as of the takeover date. When Budack reached oral agreement with Illinois on July 21, nothing was said about whether a similar provision was to be included in the contemplated written contract, but it is obvious that Budack considered that to be a noncontro- versial part of any contract , to be automatically included. National , the parent corporation of Illinois , also had an agreement with the Union , but no employee had been desig- nated to act as steward during this period . Employee com- plaints , if any, were handled by union officials who visited the National plant on a regular basis. On July 6, the second day of Illinois' operations at the Hodgkins plant , Esposito , vice president both of Illinois and National , told Davis (according to Davis) or asked him (according to Esposito ) to transfer to the Franklin Park plant the following Monday , July 10, when Illinois was to begin working a second shift , using National's facilities. Davis said he objected to transferring , since he lived near Hodgkins and would now have to drive a long distance to Franklin Park . He asked Esposito why he was being trans- ferred , since he was the steward and the former Vulcan employees wanted him to remain there . Esposito said he was transferring him because he had heard that he was a good man, that he didn ' t know what duties he could have as a union steward since there wasn 't one at Franklin Park. Es- posito also told him , according to Davis , to stay out of Esposito 's affairs , do his job , and they would get along fine. According to Esposito , Davis raised no objection to the transfer . Esposito also said that Davis had told him that he had been the steward at Vulcan , but he felt that one wasn't needed at the Franklin Park plant . He denied telling Davis to stay out of his affairs. What Davis testified to Esposito telling him is not alleged to be in violation of Section 8(a)(1); its significance is that Esposito now learned that Davis considered himself to be serving as steward. Budack, the business agent of the Union , testified that Davis had been the steward at Vulcan , but that his status applied only at the Hodgkins plant. He also said that no steward had been named for National 's plant at Franklin Park , although the contract allowed one there. According to Davis, he had spoken to Spears , the assist- ant business agent , about his status after it was learned that Vulcan had sold out to Illinois , and that Spears had told him to continue to act as steward , and had told the Vulcan employees the same thing. Davis also called Spears a few times after he began work- ing for Illinois . After he was transferred to Franklin Park on July 10 , he called Spears from the office phone which was located in the dispatcher's office . Davis said he had gotten permission to use the phone , once from the night shift fore- man, Schlesser , and once from Snider , the plant superinten- dent . One or the other of them was in the office with him when he called . Schlesser denied that he had given Davis permission to use the office phone , and had the office locked after he learned that Davis had used it without per- mission . Snider admitted that he had heard Davis call Spears from the office and ask him how the union meeting had gone that night . Snider said he had made no comment to Davis about his call. Schlesser was told by Davis that he was the steward, and had seen Davis leave his work to go to the kiln area to talk with the men there . He had to break up these meetings, and had told Snider that he had done so. July 13 1. The testimony for the General Counsel (a). Davis testified that on July 13, Esposito and Snider came up to him at work , and Esposito asked him if he was calling the Union every night. Davis said that if he had problems he did . Esposito then said that if the men had problems they should come to him , not to the Union; that Davis was nothing at the plant , and he would eventually fire every man there to get to the troublemaker ; that it seemed like what Davis was doing was making trouble and he would fire anyone , pointing directly at Davis . Esposito then walked away toward the kiln area. (b). What happened then in the kiln area was testified to by employees Roy Wooley and Robert and Lonnie Sellers, who are brothers. ILLINOIS CONCRETE PIPE CO. Wooley said Esposito, Snider, and Schlesser, the night foreman or pusher, came into the kiln area and Esposito called some of the employees who were working nearby over to him. Wooley said Esposito asked them if they had any problems, and that Robert Sellers had answered that the work was too hard, at which Esposito told him he could quit then. Lonnie Sellers then said that the pusher was yell- mg at them and driving them too hard, and that Esposito had then told Schlesser to cool it. Wooley said he also voiced a complaint against Schlesser. Esposito said he had been talking with Davis , and that it seemed some of the men had work problems; that if they did, they should consult with him about it; that he had never had any trouble with the Union and it wasn't going to start now; and that he would fire every one of them to get to the troublemaker. Just about then, Dennis (Bob) Spears, the yard foreman for Na- tional , and son of the Union's assistant business agent, came by. Esposito stopped Spears, saying, "Here's the Union man's son. We don't have any union problems around here, do we, Bob?" Spears said they didn't. Snider said, according to Wooley, that Davis could call himself a union steward if he wanted to, but around there he was nothing. Esposito then sent them back to work. Robert Sellers' testimony as to the same group conversa- tion with Esposito and Snider is that Esposito had said that Davis had come to him with complaints that the men were being pushed too hard, and he wanted to know what their problems were . Sellers told him what Schlesser was asking them to do. Just then Dennis Spears walked by, and Esposi- to said they hadn't had any union trouble, and they didn't want any to start now. Lonnie Sellers' testimony corroborated that of Wooley's and his brother's. In effect, it was that Esposito had asked the group if they had any complaints, and that Robert Sell- ers had said they were being worked too hard. Esposito invited them to quit if they thought they were working too hard, and then said Davis had told him he was the union steward. Snider then said that they had never had any trou- ble with the Union, and they wouldn't have any; that Davis was nothing but a troublemaker. Esposito added that he would fire anyone to get to the troublemaker. (c). After the meeting in the kiln area ended , Esposito and Snider walked back to talk to Davis again. Esposito said he had talked to the men, that it didn't seem they had any problems, and that it was Davis who was creating the prob- lem. He said that he wanted it stopped, that he would fire the whole bunch to get at the right man, and that he would fire on the spot any man going to the Union. (d). Later that evening, Esposito and Schlesser called Robert Sellers into the office. Esposito asked him about Davis, saying that he had heard that Davis wanted nothing but trouble. Esposito also asked him why he didn't come to work in his own car, instead of driving with Davis as he did. Esposito also told Sellers , according to the latter, that the men did not need a union steward in the plant. 2. The testimony for the Respondent As set out above, there were four allegedly significant incidents occurring on July 13: (a) the first conversation between Davis, Esposito, and Snider; (b) the meeting in the 225 kiln area between some of the company officials and a number of employees; (c) the second conversation with Davis , following the meeting in the kiln area ; and (d) a conversation between Robert Sellers , Esposito , and Schles- ser. Following is a summary by the various witnesses for the Respondent as to these incidents. (a) and (c). Esposito was asked whether he had ever told Davis not to call the Union, and denied that he had. Snider was asked if he and Esposito had had any discussion with Davis on July 13 concerning the Union, and he answered generally that he had never discussed the Union with any- one. Neither was asked anything about the other comments which Davis testified they made , and I therefore consider Davis' version of what happened then to be true. (b). The thrust of the testimony for the Respondent as to what took place in the kiln area is a denial that there was in fact a meeting called by Esposito of the employees work- ing there. According to Esposito, he was walking through the area when he noticed that the men were not coordinat- ing their efforts . He asked them what the problem was, and Robert Sellers replied that Davis had told them they didn't have to do certain jobs. Esposito said he told the men that Davis wasn't the boss there, and if they listened to him they'd get nothing but trouble. Sellers then asked him if that meant Davis wasn't their union steward , and Esposito an- swered that that was what he meant. Just then Spears walked in, and Esposito asked him as the son of the union man, if they had ever had any problems with the Union. Spears replied, predictably, that they hadn't. Esposito ex- plained his assertion that the men would get into trouble listening to Davis , as being called for by what he felt was Davis' intrusion into management affairs , that is, telling the men that they did not have to do all the work assigned them. He denied telling them that they didn't need a union. According to Spears, Esposito was explaining to the group how they should be working together, when someone said that Davis had told them something which he did not remember, and that Esposito had replied by telling them not to listen to Davis, that he was not a boss around there, and that it was he , Snider , and Schlesser who would tell them what to do. Spears' testimony would make it appear that there had been no earlier reference to the Union before Esposito asked him if the Company had ever had any trou- ble with the Union. He said he heard no complaints from any of the men about the pusher pushing them too hard, nor did he hear Esposito or Snider threaten that people would be fired to get at the troublemaker. However, he did remem- ber Esposito telling the men that they should not listen to Davis and that he was getting them into trouble. Snider testified that he and Esposito had not gone to the kiln area to call a meeting of the employees at work there, although it appears that most of them were drawn into a group as Esposito began talking. Snider said that Wooley came in later , and that Spears was there almost from the beginning. He said Esposito had noticed some of the men standing around unoccupied while a pallet was being oiled, but does not remember much of the conversation that en- sued when Esposito remonstrated with them . He did not recall Esposito saying anything about Davis, union stew- ards, or troublemakers , nor did he hear Esposito threatening to fire anyone. 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d). As to the conversation later that evening with Robert Sellers, Schlesser testified that Esposito had told Sellers that he didn't want him to think that Davis had any authority, or that he should listen to him . Esposito also told Sellers that rather than go to Davis with his problems , he should talk to a company official . Schlesser said he did not remember Esposito referring to Davis as a troublemaker , or saying that the employees did not need a union in the plant, or that Sellers should not ride with Davis. July 14 to 24 The next day, July 14, Davis testified that he told Snider that some of the men thought they had been shorted in their pay and had asked him to take it up with Snider . Snider then told Davis that if the men had problems they should come directly to him, and that Davis should relay that message to them . Snider denied that Davis had spoken to him about anyone's shortage but his own, but said that two other men, Johnson and Wooley, had each come to him individually about his own claimed shortage in pay, that he had checked it out and had corrected Johnson 's pay, the only one of the three where a mistake had occurred. The following Thursday, July 20, Davis complained to Schlesser that he was feeling ill. Schlesser sent him to Snider who told him , according to Davis, to go home if he was ill and to come back when he felt better . Snider's version is that Davis had come to him to say that he and Lonnie Sellers were ill and wanted to go home , and that he had told Davis he should have said something about it before the concrete mixing machine had been started up , because now he could not let it run without a full crew . Snider said that Davis then offered to stay if he wasn 't pushed and if the machines could be slowed down. Snider said it could not be done , that he had to get the concrete out of the machine once it is delivered to the mixer. He said he then told Davis that if he was sick and could not work , he should go on home . Davis and Lonnie Sellers then punched out about 6 p.m. Neither came in to work the following day. Robert Sellers told Snider that his brother was sick, and would bring a doctor's excuse in on Monday , the next working day . Snider said he asked him about Davis , and that Sellers said he did not know about Davis' condition . Davis testified that he called Friday to report that he was still sick , but that no one answered the phone. Snider claimed that there was always someone in the office to answer the phone from 6 a.m. to 6 p.m., and that Davis should have been able to reach someone at the plant before the scheduled start of his shift at 3:30 p.m. When Davis and Lonnie Sellers came back to work on Monday, July 24 , their timecards were not in the rack. Sni- der then told Davis that he was discharged for not letting him know that he would not be in on Friday, claiming that he had lost 2 days' production because of the absences. Lonnie Sellers either quit or was discharged at the same time. His termination is not in issue here. Respondent 's Reasons for Discharging Davis Davis brought his discharge to the Union 's attention, and the Union inquired of Esposito on his behalf. On July 27, Esposito wrote a letter (G.C. Exh. 2) to the Union , giving the reasons for Davis' dismissal . It states that Davis had missed 2 complete days of work, had refused to do work assigned to him , and had caused unrest with all the men associated with him. The second paragraph also states that Davis gave the Company only a minimal amount of work when he was there. In its answer to the complaint , received by the Regional Director on October 13, Respondent offered the following explanation for the discharge: (a) that on Thursday, July 20, Davis left the plant without explanation or cause, about 3 hours before the end of his shift , causing it to lose a substantial amount of production time, in that four other employees were unable to perform their duties; and (b) that the next day, Davis did not appear for work without expla- nation or cause , again causing it to lose a substantial amount of production time plus other losses in wages and material. In its brief to me after the hearing, Respondent argues that Snider alone was responsible for discharging Davis, and that his reasons were that Davis was a probationary employee who could be dismissed even without adequate cause; but that, in any event, he was discharged for leaving work on Thursday and for not calling in on Friday, without proper excuse or explanation , and because of his poor work performance from the date he was hired. It will be noted that neither the answer nor the brief mentions the charge made in Esposito's letter to the Union of July 27, almost contemporaneous with Davis' discharge, that Davis had been causing some sort of undefined unrest among the other employees; and that the answer relies sole- ly on Davis' leaving work early on Thursday and not ap- pearing the next day "without explanation or cause," without mentioning his alleged incompetence. The evidence , in my view, does not sustain Respondent's contention that Davis left work on Thursday when he claimed to be ill, without adequate cause or explanation. Snider himself testified that Davis had offered to stay even though he felt ill, if production was slowed down, that Sni- der rejected the offer because the concrete had already been mixed , and that he told Davis to go on home if he was too sick to work at the expected production rate. This certainly constitutes what I would find to be an adequate explanation of why Davis could not work, as well as a release to leave work early by the proper authority at the plant. Snider may well have been unhappy about losing the services of two men after the production process had been started, but it is clear that they left with his knowledge and with his grudging consent. Davis said that he tried to phone in the next day but was unable to reach anyone in the office . I find that hard to believe , particularly in view of other testimony of his that the practice at Vulcan had been not to call in every day of an illness , implying thereby that he considered the same procedure was to be followed at Illinois . In any event, Davis did not get in touch with Snider or Schlesser to let them know that he would not be coming in on Friday, and Snider had good reason to be upset at the loss of another day's production. During most of his short period of employment for Illi- ILLINOIS CONCRETE PIPE CO. 227 nois, Davis was assigned to making wire cages which were inserted into the forms in which concrete was poured to make pipe . His job consisted in unrolling wire mesh , cutting it to the proper size, and tack-welding the ends to form a cylindrical cage. Davis had done that work at Vulcan during his 3 years of employment there, as well as other types of work. As to his competence and proficiency while working for Illinois, there is a wide disparity of opinion . The witness- es for the General Counsel who worked with Davis de- scribed him as turning out sufficient cages to keep ahead of the production of pipe , while the Respondent 's witnesses uniformly described him as slow, lackadaisical, and below average in the quality of his work. In the absence of any objective data on Davis' production or that of other cage makers, it is difficult to determine the adequacy of his work. It is perhaps sufficient to say that I believe Respondent's contention that he was wholly incom- petent to be grossly overdrawn, particularly the testimony that Snider and Esposito had to be called in some nights to assist in making cages so that the production of pipe would not be delayed. Analysis and Conclusions National and its chief officials , Esposito and Snider, had enjoyed a tranquil relationship with the Union for many years . It negotiated and signed union agreements , permitted the Union 's business agents to come onto the premises and talk to the employees , mainly for the purpose of collecting moneys owed it, but otherwise heard little from the Union. There was no union steward at National 's plant at Franklin Park and, in Esposito's phrase, there had never been any union trouble there, which he apparently equated with an absence of employee grievances. This equable state of affairs was threatened when Davis and the other former Vulcan employees were assigned to the Franklin Park plant to work for Illinois. Davis claimed to be the union steward , and whether in fact his official status as steward continued ' is, in my opinion , immaterial, since he regarded himself as representing the employees on behalf of the Union, and had never been told otherwise by any union official. Davis' testimony, which I credit where it conflicts with that of Respondent 's witnesses , was that he had told Esposi- to on July 6, that he was the union steward, and that Esposi- to had immediately retorted that he didn't know what duties he could have at Franklin Park since there was no steward there . Snider and Schlesser also learned from Davis that he considered himself as having some union function to play at his new employment, while Schlesser had seen Davis holding meetings with the men during working hours. Davis had made at least two calls to the Union from the office phone between July 10 and 13, and these served as the occasion for Esposito to talk to him about it the evening of July 13. Davis testified that Esposito had asked him if he was calling the Union every night, while Esposito said that he had never told Davis not to call the Union. I do not know 1 Budack , the business agent , considered his status as steward to be limited to the Hodgkins plant , while Spears , the assistant business agent , had told him to continue to act as steward at Franklin Park. if Esposito thought he was thereby contradicting Davis' testimony, but in any event, I credit Davis. I also credit Davis as to what Esposito told him in their first conversation on July 13, that if the men had problems they should come to him and not to the Union; that Davis was nothing at the plant, and he would eventually fire every man there to get at the troublemaker ; and that it seemed that Davis was making trouble. Esposito did not deny any of this . In their conversation that same evening , Esposito accused Davis of creating problems in the plant . That these problems related to the Union is made clear by Esposito's following statement that he would fire on the spot any man going to the Union. As for the conversation in the kiln area between Esposito, Wooley, and the two Sellers brothers that same evening, I credit the versions of the employees testifying for the Gener- al Counsel . I find that Esposito went into the area to meet with the employees whom he assembled around him in or- der to emphasize that they were not to regard Davis as their spokesman or representative, and that if they listened to him they would be in trouble . I find that Esposito was concerned that the employees were listening to Davis and that they might object to the way their work was organized at the plant , and was determined there would be no questioning of his arrangements . Although Davis had not said or done anything yet about the working conditions at Franklin Park, I am satisified that Esposito resented that Davis was show- ing signs of concern about the employees ' interests , and that he regarded such concern as "trouble ." And later that eve- ning, Esposito told Robert Sellers that the men did not need a union steward in the plant. I credit Davis' testimony that he approached Snider the next day as the spokesman for some employees who thought they had been shorted on their paychecks. This was the first overt sign that Davis intended to represent any fellow em- ployees who had a grievance. I find, based on the foregoing summary and on the fuller recitation of the testimony set out previously, that Esposito was opposed to the Illinois employees acting concertedly for their mutual aid or protection, and particularly to Davis' assumption of a role as their representative. I also find that Esposito and Snider seized on Davis' unexcused absence on Friday, July 21, as a pretext to dis- charge him. I have already noted that Davis left early the day before with Snider's knowledge and consent, so that Respondent's argument that Davis was away "without ex- planation or cause" on Thursday weakens its argument that it terminated him for his 2-day absence. Davis was at fault for not calling in on Friday but, under all the circumstances, I find that he would not have been discharged for that reason alone. I base this on the fact that Esposito told the Union, just 3 days after the discharge, that one of the rea- sons for letting him go was that he was causing unrest among the men. In the light of Esposito's freedom from any union constraint at Franklin Park before Davis and the other Illinois employees arrived there on July 10, I am satis- fied that "unrest" and "trouble" were synonymous to him with the first indications of a more independent attitude on the part of employees than he was accustomed to. I conclude from the foregoing findings of fact and the inferences I have drawn from them that Esposito and Snider 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD knew that Davis was talking and acting as if he were a union steward and that he intended to act on behalf of the Illinois employees in the presentation of grievances; that they dis- charged him, in whole or in part, because they were opposed to his assumption of such a role and in order to discourage union participation and further activities for the mutual aid or protection of the employees; and that they threatened and interrogated Davis, Wooley, and Robert and Lonnie Sellers in the exercise of rights guaranteed them in Section 7 of the Act. IV. THE REMEDY In order to effectuate the policies of the Act , I find it necessary that the Respondent be ordered to cease and desist from the unfair labor practices found and from other invasions of the Section 7 rights of the employees; to take certain affirmative action, including the offer of reinstate- ment to Ray Davis, with backpay computed on a quarterly basis from the date of his discharge to the date on which the Respondent offers him reinstatement , as prescribed in F. W. Woolworth Company, 90 NLRB 289, plus interest at 6 percent per annum; and to post appropriate notices. Upon the basis of the foregoing findings of fact and upon the entire record in the case , I make the following: CONCLUSIONS OF LAW 1. Illinois Concrete Pipe Company is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Construction and General Laborers' District Council of Chicago and Vicinity is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminatorily discharging Ray Davis on July 24, 1972, thereby discouraging membership or participation in the Union and activities for the mutual aid or protection of its employees, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. By telling its employees that the union steward had no authority in the plant, that the steward was a troublemaker, that they would fire everyone to get at the troublemaker, and that a union was not needed in the plant, the Respon- dent has engaged in unfair labor practices within the mean- ing of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 2 2 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board , the findings. conclusions , and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions , and Order, and all objections thereto shall be deemed waived for all purposes. ORDER Respondent Illinois Concrete Pipe Company, its officers, agents , successors , and assigns , shall: 1. Cease and desist from: (a) Discouraging membership in, or participation in ac- tivities on behalf of, Construction and General Laborers' District Council of Chicago and Vicinity, or in any other labor organization of its employees, or discouraging em- ployees from acting concertedly for their mutual aid or protection by discriminatorily discharging, or in any other manner discriminating against any employee in regard to hire, tenure, or any other term or condition of employment. (b) Interfering with, restraining, or coercing its employ- ees by telling them that the Union was not needed in the plant, that the union steward had no authority and was a troublemaker, and that it would fire everyone to get at the troublemaker. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization , to form labor organizations, to join or assist the above-named labor organization or any other labor or- ganization, to bargain collectively through representatives of their own choosing, to engage in other concerted activi- ties for the purpose of mutual aid or protection as guaran- teed in Section 7 of the Act, or to refrain from any or all such activities. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Offer to Ray Davis immediate and full reinstatement to his former job at the Respondent's plant at Franklin Park, Illinois, or, if that job no longer exists, to a substantial- ly equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings suffered by reason of Respondent's discrimina- tion against him, in the manner set forth in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, person- nel records and reports, and all other reports necessary to analyze the amount of backpay due and the right to rein- statement. (c) Post at its plants at Franklin Park and Hodgkins, Illinois, copies of the attached notice marked "Appendix. "3 Copies of the notice, on forms provided by the Regional Director for Region 13, after being duly signed by an au- thorized representative of the Respondent, shall be posted immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced or covered by any other material. (d) Notify the Regional Director for Region 13, in writ- ing, within 20 days from the date of this Order, what steps 3 In the event the Board 's Order is enforced by a Judgment of the United States Court of Appeals , the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " ILLINOIS CONCRETE PIPE CO. 229 the Respondent has taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in or participa- tion in activities on behalf of Construction and General Laborers' District Council of Chicago and Vicinity, or in any other labor organization , or discourage employ- ees from acting concertedly for their mutual aid or protection , by discharging , or in any other manner dis- criminating against any of'our "employees in regard to hire, tenure, or any other term or condition of employ- ment. WE WILL NOT tell our employees that the Union was not needed in the plant, that the union steward had no authority or that he was a troublemaker , or that we will fire everyone to get at the troublemaker. WE WILL NOT in any other manner interfere with, re- strain, or coerce our employees in the exercise of the rights guaranteed by Section 7 of the Act. WE WILL offer Ray O . Davis immediate and full rein- statement to his former job at our plant at Franklin Park, Illinois, or , if that job no longer exists, to a sub- stantially equivalent position , without prejudice to his seniority or other rights and privileges , and we will make him whole for any loss of earnings suffered by reason of the discrimination practiced against him. Dated By ILLINOIS CONCRETE PIPE COM- PANY (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consectuve days from the date of posting and must not be altered , defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board 's Office , Everett McKinley Dirksen Building, Room 881, 219 South Dear- born Street , Chicago , Illinois 60604 , Telephone 312-353- 7572.