Louisville Cement Co.

National Labor Relations Board - Board Decisions

May 5, 1965

152 N.L.R.B. 374 (N.L.R.B. 1965)

374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
Employees may communicate directly with the Board's Regional
Office, 500 Book Building, 1249 Washington Boulevard, Detroit, Mich-
igan, Telephone No. 226-3244, if they have any question concerning
this notice or compliance with its provisions.
Louisville Cement Company and United Cement, Lime and
Gypsum Workers International Union , AFL-CIO and Commit-
tee (Plant Interrelations Committee , Plant Grievance Com-
mittee, and/or Employee Problem Committee ), Party of
Interest . Case No. 25-CA-2021. May 5, 1965
DECISION AND ORDER
On February 1, 1965, Trial Examiner C. W. Whittemore issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion . Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision and a brief in support thereof. The General Counsel
also filed limited exceptions to the Trial Examiner's Decision, and
separate briefs in support of his exceptions, in support of the Decision,
and in reply to the Respondent's exceptions.
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 Jenkins].
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, the briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner as modified herein.'
'Although the Trial Examiner recommended that Respondent be ordered to cease and
desist from unlawfully Interrogating employees as to their own or other employees' union
activities, lie did not specify the Instances of Interrogation on which he relied we
find, as the basis for adopting his recommendation, that the questioning by Superintendent
Ridenour of Funderok, one of the members of the Committee, as to whether "he knew
who was trying to get the union in , or agitating . " was Interrogation which tends to
Interfere with, restrain , or coerce employees, In violation of Section 8(a) (1).
152 NLRB No. 32.
LOUISVILLE CEMENT COMPANY 375
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Order recommended by the Trial Examiner and orders that
the Respondent, Louisville Cement Company, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in the Trial Exam-
iner's Recommended Order, with the following modification :
Add the following after the first indented paragraph of the Appen-
dix attached to the Trial Examiner's Decision :
WE WILL NOT unlawfully interrogate our employees as to their
own or other employees' union activities.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed August 19, 1964, by the above-named labor organization the
General Counsel of the National Labor Relations Board on October 27, 1964, issued
his complaint and notice of hearing. Thereafter the Respondent filed an undated
answer. The complaint alleges and the answer denies that the Respondent has
engaged in and is engaging in unfair labor practices in violation of Section 8(a) (1),
(2), and (3) of the National Labor Relations Act, as amended. Pursuant to notice,
a hearing was held in Logansport, Indiana, on December 9 and 10, 1964, before
Trial Examiner C. W. Whittemore.
At the hearing all parties were represented and were afforded full opportunity to
present evidence pertinent to the issues, to argue orally, and to file briefs. Briefs
have been received from the Respondent and General Counsel.
Upon the record thus made, and from my observation of the witnesses, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Louisville Cement Company is a Kentucky corporation with places of business in
Louisville, Kentucky, and at Speed and Logansport, Indiana. It is engaged in the
business of producing cement and related products.
During the 12 months before the hearing the Respondent produced, sold, and
shipped from its Logansport plant finished products valued at more than $50,000
directly to points outside Indiana. Only the Logansport plant is here involved.
The Respondent is engaged in commerce within the meaning of the Act.
H. THE CHARGING UNION
United Cement , Lime and Gypsum Workers International Union, AFL-CIO, is a
labor organization admitting to membership employees at the Respondent 's Logans-
port plant.
III. THE UNFAIR LABOR PRACTICES
A. Chief issues
The chief issues involved here are (1) the alleged domination by the Respondent
of a committee of its employees in violation of Section 8(a) (2) of the Act; and (2)
the alleged discharge of one employee, William A. Strantz, to discourage membership
in the above-named Union and in violation of Section 8(a)(3).
There is no evidentiary dispute as to the facts that a company-dominated "com-
mittee" was in existence at material times and that Strantz was discharged on Au-
gust 7, 1964. (The answer merely denies all allegations of the complaint except those
relating to service of the charge and the nature of the Respondent's business.)
B. The "Committee"
Although the complaint alleges that the Respondent initiated and formed a com-
mittee of employees to deal with it concerning grievances and other matters "on or
about February 19, 1964," the evidence shows that, whatever management' s part in
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forming it , the Committee was in existence and functioning long before the date
alleged. The testimony of employee Gifford is undisputed that when management
appointed him to serve on the Committee, in September 1963, it was already in
operation.
The following findings rest upon uncontradicted testimony:
(1) When appointed to this Committee Gifford and two other employee members
were told by management representatives that if employees could not settle grievances
directly with their supervisor they (the committee members) were to bring such
grievances before a meeting of management personnel.
(2) Pursuant to such instructions the Committee brought a number of grievances
to management at a number of meetings after February 1964 on time for which they
were paid. No limitation was placed by management upon the types of grievances
the Committee could submit to it at these meetings.
(3) Plant Manager Riggle presided at these meetings, attended both by other
management officials and the employee Committee.
(4) On July 29, 1964, top company officials and management representatives
assembled all employees, informed them concerning the "company's policy" for the
next year concerning wages and other matters, and announced a change in its method
of appointing employee members to their Committee. Management thereupon posted
three separate lists of employees, told employees to select one name from each list,
handed out slips of paper upon which such selections should be written, collected
them, and, apparently, announced who would be on the Committee for the next year.
The meeting and "election" was under the direction of Vice President Crowther, and
employees were paid for their time in attendance.
Upon the foregoing findings I conclude that the Respondent has dominated and
interfered with the administration of this Committee, its own creation. It is further
concluded that by its nature and function the Committee is a labor organization
within the meaning of Section 2(5) of the Act.' By dominating and interfering with
the administration of a labor organization the Respondent is violating Section 8 (a) (1)
and (2) of the Act.
C. The discharge of Strantz
Although the Respondent continued to dominate its own employee committee, set
up to deal with it concerning matters properly within the scope of collective bargain-
ing through a freely chosen representative, employee William A. Strantz, early in
April 1964, became an active leader in supporting an organizational campaign being
conducted at the plant by the Charging Union.
That top management at least by mid-June had become concerned with the
employee efforts to have their own bargaining agent is established by the testimony of
Superintendent Ridenour, who admitted that he then queried one Funderok, a
management-appointed committee member, and told him that he wanted "to know
what the rumble is, why employees seem to be dissatisfied, . . . who was the most
upset on the thing, and what the problems were in general with the employees." He
did not deny, but merely said, he did not recall asking Funderok, as the latter credibly
testified, if "he knew who was trying to get the union in, or agitating .... " 2
And that the same superintendent was made aware at or about the same time of
Strantz' union adherence is shown by the former's own testimony that on or about
June 10 Strantz approached him and Vice President Crowther, while the latter two
were dining at a local restaurant, and offered to tell them whatever they wanted to
know about the Union's organizing efforts.3
'Section 2(5) of the Act states: "The term `labor organization' means any organiza-
tion of any kind, or any agency or employee representation committee or plan, in which
employees participate and which exists for the purpose, in whole or in part, of dealing
with employers concerning grievances, labor disputes, wages, rates of pay, hours of em-
ployment , or conditions of work."
2 I cannot accord sufficient weight to the testimony of employee Wagoner, as urged
by General Counsel, to find that this employee was unlawfully interrogated by Foreman
Lewellen shortly before the above-described incident The statements in two affidavits,
one for a Board agent and one for the Respondent ' s counsel , are seriously inconsistent.
3I consider incredible Ridenour's further testimony that on this occasion Strantz also
stoutly and repeatedly denied being active or interested in the Union or that he had any
"connection" with it. The superintendent admitted that the only reply given Strantz,
after his offer of information, was that all they wanted was "eight hours ' work for eight
hours' pay." Strantz was not questioned as to why he made this strange proffer of
information about the Union . It may well be that Funderok had reported to him that
the superintendent had said he wanted to talk to the one who was "agitating " for the
Union and decided that he would declare himself openly , but no finding is made upon such
speculation.
LOUISVILLE CEMENT COMPANY 377
At a June 11 union meeting, Strantz spoke openly for the organization and, among
other things, declared his belief that he had not been properly paid for 2 hours' work
on one occasion. From the reluctantly given testimony of employee Gifford, a
member of the company-dominated Committee, it appears that he told Ridenour of
Strantz' remark at the union meeting about his alleged short pay. In any event,
whether learning about it from Gifford or some other employee, the superintendent,
a few days later, according to his own testimony, reprimanded Strantz in the mill
office for "spreading stories like this." According to the employee's credible account,
the superintendent asked what he "meant by rousing the men up at the meeting."
The foregoing facts, in my opinion, amply support the conclusion, here made, that
management was well aware of, and resented, Strantz' union leadership before his
discharge.
And that management, at the time of Ridenour's reprimand to Strantz, was pre-
paring to discharge him is reasonably inferred from the testimony of Plant Manager
Riggle, who admitted that at a Committee meeting, fixed by one of its members as
having been held shortly after the June 11 union meeting, he informed his appointed
Committee that "one man" in the plant would be dismissed it he did not perform his
work better. Riggle admitted that he had Strantz in mind at the time.
Strantz was hired in 1962 as a maintenance employee. That his 11/2 years of serv-
ice was satisfactory to management in December 1963 was reluctantly admitted by
Riggle, who admitted that he then promoted the employee to serve, in addition to his
repair duties, as an extra crane operator on weekends, bringing him added pay. He
completed his 30-day training period on this equipment to the full satisfaction of
management, apparently, since he was then placed on regular weekend duty.
Strantz was summarily discharged by Riggle on August 7, 1964. Their testimony
is in substantial accord to the effect that all the manager said on this occasion was
that he had, some time in the past, warned Strantz that he had one more chance, and
"This is it. We're letting you go."
According to Riggle, he had decided to fire Strantz on August 4, while the employee
was still, by doctor's orders, on "light duty," as a result of an industrial accident
suffered several days earlier. The manager said that his decision was based upon a
report from Strantz' foreman, one Lewis, who had assigned the employee to help lift
a section of air-slide, to the effect that after the job was completed another employee,
one Pugh, had approached Lewis and said he would not work with Strantz any more.
Since this incident of August 4 constitutes the basis for Riggle's asserted reason for
deciding to discharge Strantz, the evidence concerning it warrants scrutiny. It is
apparent from the manager's own testimony that he made no personal investigation of
it. Pugh was not called as a witness. Lewis, a witness for the Respondent, said that
he had Strantz helping two other employees reassemble the air-slide section that day,
and testified as to no fault he found with Strantz' performance. He said. "As the job
was being completed, I came on the job to see how they were getting along, and Joe
Pugh came to me at that time and said, `I don't want to work with Bill Strantz any
more.' " Strantz' testimony is undisputed to the effect that Lewis said nothing to him
regarding his work on this occasion, and that he "put the bolts in around the edge of
this air slide while the other men held it up, because I wasn't supposed to lift any-
thing." There is no dispute that, as a fact, Strantz was then under doctor's orders to
be kept on light duty because of the injury received from overlifting.
I am convinced, and find, that Riggle's claimed reason for deciding upon the dis-
charge is without merit. His failure to make even the slightest inquiry into the inci-
dent warrants the reasonable inference that he designedly accepted the hearsay report
as a ready pretext for discharging this known union "trouble" maker.
It is considered unnecessary, here, to set out in detail Riggle's other testimony,
extravagantly exaggerated, as to claimed minor derelictions occurring previous to
the August 4 incident. I can rely upon no part of it. The fact is that Strantz had
not been discharged before, nor laid off, nor even given a written warning, as had
at least one other employee
Further support for the conclusion that the discharge was discriminatory is revealed
by events immediately following the discharge. After dismissing Strantz, Riggle
called his employee Committee together and told them of his action. Although, as
found, this group was under management's domination, they protested the severity
of such discipline, even upon Riggle's unilateral explanation. He remained adamant,
however, but agreed to set up, thereafter, a system whereby employees would first
receive a written warning, next be given "time off without pay, possibly uo to one
week," and finally would be "considered" for discharge. Notice to this effect was
posted a few days after Strantz' dismissal, with the preliminary statement that "We
want to clarify the Company's position on working rules and regulations " If,
indeed, as thus announced the specific procedure set out was actually mere "clarifica-
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion" of an already existing policy, then plainly the Respondent discriminated in
the application of its policy in the case of Strantz , for he had been given neither a
written warning nor disciplinary time off.
In short, I conclude , and find, that Strantz was discharged unlawfully in order to
discourage union membership and activity , and that by such discrimination and by
Ridenour 's query of Funderok as to the identity of the employee trying to "get the
union in," the Respondent interfered with, restrained , and coerced employees in the
exercise of rights guaranteed by Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with the operations of the Respondent described 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 commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices I will
recommend that it cease and desist therefrom and take certain affirmative action to
effectuate the policies of the Act.
It will be recommended that the Respondent offer employee Strantz immediate and
full reinstatement to his former or substantially equivalent position , without preju-
dice to his seniority or other rights and privileges , and make him whole for any loss
of earnings he may have suffered by reason of the discrimination against him, by
payment to him of a sum of money equal to that which he would normally have
earned as wages, absent the discrimination , from the date of discharge to the date of
offer of full reinstatement , in the manner prescribed by the Board in F. W. Wool-
worth Company , 90 NLRB 289, and with interest as prescribed in Isis Plumbing &
Heating Co, 138 NLRB 716.
It will also be recommended that the Respondent disestablish and cease to recog-
nize the Committee , described herein, as the representative of any of its employees
in dealing with it regarding wages, hours of employment , grievances , or any term or
condition of employment.
In view of the serious and extended nature of the Respondent 's unfair labor prac-
tices , it will be recommended that it cease and desist from in any manner infringing
upon the rights of employees guaranteed by Section 7 of the Act.
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. United Cement , Lime and Gypsum Workers International Union, AFL-CIO,
is a labor organization within the meaning of Section 2(5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of employee
Strantz, as described herein, to discourage membership in and activity on behalf of
the above-named labor organization, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)(3) of the Act.
3. By dominating, assisting , and interfering with the administration of the Com-
mittee, described herein, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 ( a) (2) of the Act.
4. By interfering with, restraining, and coercing employees in the exercise of rights
guaranteed in Section 7 of the Act , the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 ( a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law, and upon the
entire record in the case, and pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended , I recommend that the Respondent, Louisville Cement Com-
pany, its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in and activity on behalf of United Cement, Lime
and Gypsum Workers International Union, AFL-CIO, or in any other labor organi-
zation , by discharging , laying off, or refusing to reinstate any of its employees because
of their union membership or activities, or in any other manner discriminating in
regard to hire or tenure of employment , or any term or condition of employment.
LOUISVILLE CEMENT COMPANY 379
(b) Recognizing or dealing with the Committee as the representative of any of
its employees for purposes of collective bargaining regarding grievances or any term
or condition of employment.
(c) Dominating, assisting, or interfering with the formation or administration of
any labor organization.
(d) Unlawfully interrogating employees as to their own or other employees' union
activities.
(e) In any other manner interfering with, restraining, or coercing employees in the
exercise of rights guaranteed by Section 7 of the Act.
2 Take the following affirmative action necessary to effectuate the policies of the
Act:
(a) Offer employee Strantz immediate and full reinstatement to his former or
substantially equivalent position, without prejudice to his seniority or other rights
and privileges, and make him whole for any loss of pay he may have suffered by
reason of the discrimination against him, in the manner set forth, above, in the sec-
tion entitled "The Remedy."
(b) Disestablish the Committee as the representative of any of its employees in
dealing with it regarding grievances, hours of employment, or any term or condition
of employment.
(c) Preserve and, upon request, make available to the Board or its agents all
records necessary to determine the amount of backpay due and the right of reinstate-
ment under terms of this Recommended Order.
(d) Notify employee Strantz if presently serving in the Armed Forces of the
United States of his right to full reinstatement upon application in accordance with
the Selective Service Act and the Universal Military Training and Service Act of
1948, as amended, after discharge from the Armed Forces.
(e) Post at its Logansport, Indiana, plant copies of the attached notice marked
"Appendix." 4 Copies of said notice, to be furnished by the Regional Director for
Region 25, shall, after being signed by the Respondent's authorized representative,
be posted by it immediately upon receipt thereof, and be maintained by it for a period
of 60 consecutive days, in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken to insure that
such notices are not altered, defaced, or covered by any material
(f) Notify the said Regional Director, in writing, within 20 days from the receipt
of the Trial Examiner's Decision, what steps it has taken to comply herewith.5
4In 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 the Board's Order be en-
forced by a decree of a United States Court of Appeals, the words "a Decree of the
United States Court of Appeals, Enforcing an Order," shall be substituted for the words
"a Decision and Order"
5In the event that this Recommended Order is adopted by the Board, this provision
shall read, "Notify the said Regional Director, In writing, within 10 , days from the date
of this Order, what steps the Respondent has 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 conduct our labor relations in compliance with the
National Labor Relations Act, we notify you that:
WE WILL NOT unlawfully discourage you from being members of United
Cement, Lime and Gypsum Workers International Union, AFL-CIO, or any
other union.
WE WILL NOT recognize the Committee as the representative of any of you
in dealing with us concerning grievances or any term of your employment.
WE WILL NOT violate any of the rights you have under the National Labor
Relations Act to join a union of your own choice or not to engage in union
activities.
WE WILL offer reinstatement to William A. Strantz, and will give him backpay
from the time of his discharge.
LOUISVILLE CEMENT COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NOTE.-We will notify Strantz if presently serving in the Armed Forces of the
United States of his right to full reinstatement upon application in accordance with
the Selective Service Act and the Universal Military Training and Service Act of 1948,
as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 614 ISTA
Center, 150 West Market Street, Indianapolis, Indiana, Telephone No. Melrose
3-8921, if they have any questions concerning this notice or compliance with its
provisions.
J. Ziak & Sons, Inc. and Al Cantu
Milk Drivers ' Union , Local 753, International Brotherhood of
Teamsters, Chauffeurs , Warehousemen & Helpers of America
(J. Ziak & Sons, Inc. ) and Al Cantu
Local No. 753, Milk Wagon Drivers ' Union , International Brother-
hood of Teamsters (Rueter's Dairy ) and Peter J. Farrell
Local No. 753, Milk Wagon Drivers' Union, International Brother-
hood of Teamsters , Thomas J. Haggerty , Secretary-Treasurer
(Hawthorn -Mellody Farms Dairy ) and Irving Sherman. Cases
Nos. 13-CA-6056, 13-CB-1573, 13-CB-1540, and 13-CB-1547.
May 5,1965
DECISION AND ORDER
On September 21, 1964, Trial Examiner George J. Bott issued his
Decision in the above-entitled proceeding, finding that the Respondents
had engaged in and were engaging in certain unfair labor practices
within the meaning of the Act, and recommending that they cease and
desist therefrom and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, the Respondent
Union filed exceptions to the Trial Examiner's Decision' and a sup-
porting brief, the Respondent Employer filed exceptions, and the
General Counsel filed a brief in support of the Trial Examiner's De-
cision, an addendum to this brief, and a brief in answer to the Re-
spondent Union's exceptions.
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 these cases to a three-member
panel [Members Fanning, Brown, and Jenkins].
' The Respondent Union has excepted to the Trial Examiner's credibility resolutions,
but the clear preponderance of all the relevant evidence does not persuade us that the
Trial Examiner's credibility findings were incorrect. Standard Dry Wall Products, Inc.,
91 NLRB 544, enfd. 188 F. 2d 362 (C.A. 3). We also find no merit in the Respondent
Union's claim of bias and prejudice by the Trial Examiner nor in its exception to the
Trial Examiner's refusal to sever. See Rules and Regulations of the National Labor
Relations Board, Series 8, as amended , Sections 102.33 and 102.26.
152 NLRB No. 31.