McDonough Co.

National Labor Relations Board - Board Decisions

Nov 2, 1971

193 N.L.R.B. 1123 (N.L.R.B. 1971)

HOUSTON SHELL AND CONCRETE CO.
Houston Shell and Concrete Co., A Division of
McDonough Co. and International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America , General Drivers , Warehousemen
and Helpers Local Union No. 968
Houston Shell and Concrete Co., A Division of
McDonough Co. and Manuel A. Salazar. Cases
23-CA-3796, 23-RC-3523, and 23-CA-3886
November 2, 1971
DECISION, ORDER, AND
CERTIFICATION OF REPRESENTATIVE
By MEMBERS FANNING, JENKINS, AND
KENNEDY
An initial Decision containing a recommended
order, a copy of which is attached, was issued in this
proceeding by Trial Examiner Sidney J. Barban on
July 12, 1971. Exceptions and a supporting brief were
thereafter filed by Respondent.
Thereafter, pursuant to the provisions of Section
3(b) of the National Labor Relations Act, as amend-
ed, the National Labor Relations Board delegated its
authority in connection with this proceeding to a
three-member panel.
The Board has duly considered the record in this
proceeding and the Decision and recommended order
of the Trial Examiner in light of the exceptions and
brief and has decided to affirm the rulings, findings,
and conclusions of the Trial Examiner and adopt his
recommended order.I
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed order of the Trial Examiner and hereby orders that
Houston Shell and Concrete Co., A Division of
McDonough Co., Houston, Texas, its officers, agents,
successors, and assigns, shall take the action set forth
in the Trial Examiner's recommended order.
IT IS FURTHER ORDERED that the objections
to conduct affecting the results of the election held in
Case 23-RC-3523 on January 22, 1971, be, and they
hereby are, overruled.
IT IS HEREBY CERTIFIED that International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, General Drivers,
Warehousemen and Helpers Local Union No. 968,
has been designated and selected by a majority of the
employees of the Employer as their representative for
193 NLRB No. 171
1123
the purpose of collective bargaining in the unit found
appropriate in Case 23-RC-3523, and that pursuant
to Section 9(a) of the Act, the said labor organization
is the exclusive representative of all the employees in
such unit for the purpose of collective bargaining with
respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment.
I The Respondent has excepted to certain credibility findings made by
the Trial Examiner It is the Board 's established policy not to overrule a
Trial Examiner's resolutions with respect to credibility unless the clear
preponderance of all 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.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
SIDNEY J. BARBAN, Trial Examiner: This matter was
heard at Houston, Texas, on April 27, 28, and 29, 1971. The
complaint in Case 23-CA-3796 was issued on February 8,
1971, based on a charge filed October 30, 1970; the
complaint in Case 23-CA-3886 was issued on March 31,
1971, based on a charge filed on February 16, 1971. On
February 25, 1971, the Acting Regional Director issued an
order directing hearing on objections filed by the above-
named Employer' to the results of an election conducted
by the Regional Director in Case 23-RC-3523, and
consolidating Cases 23-CA-2796 and 23-RC-3523. On
March 31, 1971, the Regional Director issued an order
consolidating the three cases set forth in the caption.
The Company's answer denies the commission of any
unfair labor practices but admits allegations of the
complaint sufficient to justify the assertion of jurisdiction
under current standards of the Board ($50,000 direct
interstate inflow), and to support a finding that the Union is
a labor organization within the meaning of the Act.
Upon the entire record in this case, from observation of
the witnesses, and after due consideration of the briefs filed
by the General Counsel, the Company, and the Union, the
Trial Examiner makes the following:
FINDINGS AND CONCLUSIONS
I. THE ISSUES
1. The General Counsel asserts, and the Company
denies, that certain supervisors employed by the Company
interfered with, restrained, and coerced employees in the
exercise of rights under the Act by acts of interrogation, by
creating the impression of surveillance, by asking employ-
ees to report on union activities of others, by threats of
adverse consequences in respect to union activities of the
employees, and by stating that additional benefits would be
granted if employees withdrew support from the Union.
I For the purposes of this Decision the Respondent-Employer will be
referred to as the Company , the Charging Party-Petitioner will be referred
to as the Union ; the Charging Party-Individual will be referred to as
Manuel Salazar or Salazar
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. It is further contended that the Company discharged
employees Royce Sanford, Jessie M. Cervantes,2 and
Manuel A. Salazar because of their union or concerted
activities, in violation of Section 8(a)(1) and (3) of the Act.
The Company contends that they were discharged for
cause.
3. The Company asserts that the election held on
January 22, 1971, in which a majority of the votes were cast
for the Union, should be set aside, on the basis that the
Union allegedly made material misrepresentations con-
cerning a union bargaining agreement at another place,
made threats to the employees attending a union meeting,
and exhibited a Board notice of election marked in favor of
the Union. The Union denies these allegations.
11. THE ALLEGED UNFAIR LABOR PRACTICES
A. Preliminary
The Company is engaged in several plants in a number of
counties in Texas in the production, sale, and distribution
of ready-mixed concrete. During the period involved here,
the Company employed in excess of 240 production,
distribution, and maintenance employees, of which about
134 were drivers. The management and supervisory
hierarchy of the Company, insofar as relevant here is as
follows: E. B. Good, president of the Company; Edgar
Wingate, vice president and manager of operations; Paul
Robert Baugh, general superintendent; Herschell Riley,
dispatcher-driver coordinator; Donald Bell, plant
superintendent-plant 10; H. H. Pounds, dispatcher-driver
coordinator; Forest Halley, dispatcher-plant 10; George
T. Cole, dispatcher-plant 4, Miles Herschenhahn,
dispatcher-plant 1.
The record indicates that there had been previous
attempts to organize the Company's employees in prior
years, one of which involved the International Association
of Machinists. These had not been successful. In the
summer of 1970, certain employees of the Company sought
the assistance of the Union in another such organizational
effort. This drive became active about the last of September
or the first of October of that year The Company strongly
and vigorously opposed the unionization of its employees,
as set out in a series of communications to the employees,
dated from October 12, 1970, and continuing after the
election on January 22, 1971
B. Alleged Acts of Interference, Restraint, and
Coercion
1. The facts
Dispatcher George T Cole In the course of a conversation
between Cole and employee Royce Sanford, on the
morning of October 15, 1970 (discussed further hereinafter
in connection with the discharge of Sanford), the latter
testified that Cole asked him "if I knew anything about the
union or had any dealings with them," and "if I had any of
the cards and if I was attending any of the union meetings,"
2 Though spelled Jesse Cervantes in the complaint, it is clear that he
uses the spelling set out above See G C Exh 3 and 4
3 By letter dated September 25, 1970, the Company had advised the
to which Sanford states he replied in the negative. Sanford
further states that Cole told him "that the union wasn't any
good for him," and "that I could get fired for having
dealings with the Union." During this discussion, according
to Sanford, Cole said that the Company had more benefits
than the Union could offer the employees, and that the
Company had more benefits than in previous times, to
which Sanford responded that he did not see any more
benefits than when he began working for the Company 2
years previously; that the retirement benefits alluded to by
Cole were based on company statements alone .3 At this
point, Sanford states, Cole "told me what benefits we did
have, if we would go union they would take all the benefits
away from us."
On the other hand, Cole asserts that Sanford first began
to talk with two employees present in the office, Garner and
Henderson, about the benefits of the Union, before Cole
entered into the discussion. Cole asserts that when he spoke
up, stating "how about the retirement that's coming up that
we've got coming?," and that "we've got pretty good
benefits, starting now," Sanford stated his low opinion of
the company benefits. Cole specifically denied that he said
anything to Sanford about union cards, or asked if he was
attending union meetings, or stated that Sanford could be
fired for union activities, or that the Company would take
benefits away if the employees became unionized.
As between Sanford and Cole, from observation of the
two witnesses, and consideration of their testimony in light
of the whole record, I find Sanford the more credible. In
this case, however, the Company presented the testimony of
employee Albert Garner in support of Cole's testimony. But
upon analysis, it is clear that Garner's account of the
situation weakens rather than supports Cole's version. On
direct examination, Garner was asked merely whether he
heard Cole question Sanford about attending union
meetings, or signing cards, or getting other employees to
sign cards, or that the Company would take away benefits,
or that Sanford would be fired for union activities. This he
denied. On cross-examination, however, he testified,
contrary to Cole, that, when he came into the office, Cole
and Sanford were already in the midst of an argument.
Obviously, Garner was in no position to state whether or
not the statements in issue here occurred. On cross-
examination, after looking at a written statement he had
given an agent for the General Counsel, Garner recalled
that Cole asked Sanford "was he for the Union," "who was
for the union," "what union is it," and stated that "he knew
everybody that is for the union at Houston Shell." In
respect to this conversation in general, as in other matters
discussed hereinafter, I do not find Garner to be a reliable
witness. In the circumstances Sanford's testimony set forth
above is credited.
About this same time, or a little earlier, Cole also
questioned employee Manuel Salazar concerning the
Union and Salazar's activities in connection with the
Union. Cole told Salazar that unions had tried and lost at
the Company several times before. Salazar suggested that
employees of the institution of a retirement plan together with increases in
the hourly wage rate and the Group Insurance plan
HOUSTON SHELL AND CONCRETE CO. 1125
Cole sign a card and, when the latter said he could not
because he was a dispatcher, Salazar suggested that Cole
"keep his mouth shut, about the Union then." Neither Cole
nor Garner, who was present at this conversation also, gave
testimony concerning this incident, and Salazar's testimony
is credited.
At the conclusion of this conversation, Cole ordered
Salazar to go out and clean off his truck. When Salazar
replied that his truck was clean and disputed Cole's
authority to give him such orders, Cole called Chief
Dispatcher Pounds at plant 1, to have Pounds tell Salazar
"that he was boss at that plant." When the telephone was
turned over to Salazar, Pounds told him that Pounds was
aware "that Cole was pushing the drivers too hard," and
that Salazar should get in touch with Supervisor Herschell
Riley about this. Salazar stated that he did nothing about
this because he thought it unimportant.4
Plant Superintendent Donald Bell. Before Jessie Cervantes
was fired, he and G. J. Hernandez worked together under
the supervision of Bell. The day after Cervantes was
discharged, Hernandez asked Bell, "I wish I knew what was
going on," to which Bell responded, "You mean about what
happened to Jessie, yesterday?" When Hernandez said,
"yes," Bell took the employee in a separate room, where the
following occurred, in the words of Hernandez, "Mr. Bell
asked me if I ever signed a union card. I said no. And he
said, I heard you did. I said No, I didn't sign a card. [This
was not true. Hernandez had in fact signed a Union card.]
And he asked me, did you attend that meeting Sunday) I
said, yes. He said, well, I knew you had. And he asked-he
told me that as long as I didn't fool around with the union I
wouldn't have to worry about a fob... . He asked me if it
was not against my principles to look out for the company,
to inform them as to the union's activities. . . . I said I
didn't mind. . . . He also told me that that was not the
reason that they fired Cervantes, on account of the union.
And he also mentioned that if I was to tell this to anybody
else, it would be a lie, that we had never discussed nothing
about it." Though Bell testified, he did not deny
Hernandez' version of the above conversation. The
Company suggests that Hernandez should not be credited
because he lied to Bell. However, based on Hernandez'
demeanor as a witness, as well as the character of his
testimony, I see no reason to discredit him, and his
uncontroverted testimony is credited.
Vice President and Operations Manager Edgar Wingate:
About 2 weeks prior to the time Salazar and some others
signed union cards (October 4, 1970), and at a time when
there were rumors of union activities around the Compa-
ny's operations, Salazar received instructions to contact
Wingate with whom he had been friendly for years. When
he called Wingate, the latter asked if he had heard anything
about union cards at the plant. When Salazar said that he
knew nothing about this, Wingate asked if Salazar would
inform him when union cards were signed. Salazar agreed
that he would do so, and Wingate urged him to let Wingate
know as soon as possible. Salazar never contacted Wingate
concerning the Union. Salazar's testimony concerning this
conversation is undenied and is credited.
Dispatcher-Driver Coordinator Herschell Riley: About a
week and a half or two weeks after the above incident,
Salazar met Riley at plant 1. According to the undenied
testimony of Salazar, Riley asked him what he knew about
the Union. Salazar indicated some lack of specific
information, but advised Riley that he had union cards
which he was trying to get the employees to sign. Salazar
told Riley that, in fact, two employees were angry at him
concerning the subject. Riley told Salazar that the
Company "didn't want no union," and questioned what
Salazar expected to accomplish if the Union were able to
obtain as many as half of the men on cards. Salazar replied
that "we will just have to go farther down and see what we
can do about it." Riley drove off as if in a state of
disturbance or hurry. Salazar's testimony as to the incident
is credited.
Dispatcher-Driver Coordinator H. H. Pounds: Shortly after
Salazar's conversation with Dispatcher Cole, set forth
above, Salazar was called into Pounds' office at plant 1.
There Pounds told Salazar that he had been hearing rumors
about the Union and asked Salazar, "how is everything
going on with the union?" He further queried Salazar as to
whether he was "one of the irritators." Salazar answered
that "I don't know what you call irritators. Business is
business." Pounds replied that was all he wanted to know
and terminated the conversation. Salazar's testimony
concerning this is not denied and is credited.
Dispatcher Forest Hailey: According to the uncontrovert-
ed testimony of employee Frankie Lee Dowell, about the
last of October 1970, Dispatcher Hailey spoke to him and
two other employees in Hailey's office at plant 6, as
follows: "he said that there was several things going on, you
know, with the drivers that they thought he didn't know
about," "[h]e said he has his ways of finding out things,"
" .. he said he could bet ten dollars that he could call the
name of everyone that was pushing the union and getting
cards signed," "... that he knew who was doing it and the
ones that was pushing the thing better-better walk a tight
line, because the first time they made a mistake, they would
be fired," "... he said that the drivers thought they could
vote a union in and get a-get some kind of monstrous raise
in pay, and it wasn't possible because the margin of profit
on a yard of concrete wasn't that much...." Hailey also
asked Dowell if he had signed a union card. Although he
had done so, Dowell denied that he had signed a card,
telling Hailey that he could not afford to do so unless he
was sure that the Union would be of benefit to him.
2. Conclusions
The Company contends in its brief that these matters
involve only "isolated remarks" made to a very small
number of employees, which in the circumstances do not
have a reasonable tendency to interfere with or restrain
employees in the exercise of rights under the Act. To the
contrary, the facts show that the activities involved a broad
spectrum of the Company's supervisors, who were clearly
carrying out the Company's determination to defeat the
Union's organizational drive. In addition to the employees
4 From observation, Cole is a young man, apparently only recently
made a dispatcher Salazar is a mature and impressive man who has been
employed by the Company for many years
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who testified, other employees are identified as being
present when some of the remarks and questions were
uttered. Nor, in the circumstances of this record, is it to be
assumed that these activities, or knowledge of them, was
limited to the employees named. Further, though it is the
reasonable tendency of the remarks to restrain, and not
whether they succeeded, that is the test to be applied, the
various instances of employee equivocation and untruth to
supervisors in these conversations , as shown by the record,
are indicative of the personal apprehensions of the
employees involved.
On the basis of the record considered as a whole, it is
found that the Company, by interrogating employees
concerning union membership and activities, threatening
employees with reprisals because of union membership and
activities, creating an impression of surveillance of
employee union activities , threatening to take away
company benefits from employees unless they withdraw
from union activities, and by soliciting employees to report
to the Company on union activities and membership of
other employees, interfered with, restrained, and coerced
employees in the exercise of rights guaranteed by the Act,
in violation of Section 8(a)(1) of the Act.
C. Alleged Acts of Discrimination
1. The facts
The discharge of Royce Sanford. Sanford first went to
work for the Company in July 1968. He quit in February
1970, but at the solicitation of a member of management,
Sanford returned to the employ of the Company about the
first of September 1970. He was discharged on October 15,
1970. Sanford attended the union meeting on October 4,
1970, at which the union drive appears to have actively
gotten underway. He signed a card at that meeting, and
thereafter distributed a number of cards to a friend who
undertook to secure employee signatures to them.
On the morning of October 15, 1970, Sanford was
directed to report to plant 4, from which he was to be
dispatched for work that day. As noted above, he became
involved in a conversation with George Cole, the dispatcher
at that plant, in which Cole questioned Sanford about his
union activities, stated that the Union would not be good
for Sanford, and that he could be fired for "having dealings
with the Union," as well as praising the benefits which the
Company had given the employees, and asserting that these
would be taken away if the employees should "go union."
Sanford, on his part, during this discussion, was vigorously
insisting on the benefits which the Union would bring the
employees, and, when Cole extolled the company benefits,
Sanford disparaged them. In this conversation, Sanford
also accused the Company of unfairly firing an employee
named Williams (and possibly others), which he apparently
indicated showed the need for a union . Sanford further said
that Cole, who had collected cards for the International
Association of Machinists in a prior unsuccessful organiza-
5 This expression, on which the Company relies as the basis for the
discharge of Sanford, is a veiled, rather esoteric, allusion Thus, though it
was stated to the Trial Examiner , off the record , that the witnesses would
not wish to explain the expression in the presence of the female court
reporter , neither the witnesses nor counsel evidenced any discomfort in
tional attempt, had secured his promotion to dispatcher, as
well as a new car and boat, by turning union cards in to the
Company. Cole told Sanford during this discussion,
according to the credited testimony of the latter, that
Sanford was "kissing . . . Mr. Pounds' [a senior dispatcher]
ass" to secure favors in work assignments, to which Sanford
states he replied that "at least I wasn ' t kissing Mr. Good's
[the company president] ass to keep the job I had." (On
cross-examination, Sanford further testified that he used
another vulgarism, susceptible of an obscene interpretation,
in accusing Cole of currying favor with Good.)5 Cole
retorted that he would "kiss anybody's ass" to secure
advancement and seniority. Sanford told Cole that he
(Sanford) "didn't have to kiss anybody's ass around the
company as long as I did my work right." At the close of the
conversation, some of which was carried on in the presence
of two other employees, Cole dispatched Sanford to a job.
The general effect of Cole's testimony is that Sanford
used the obscene and vulgar expressions to which Sanford
testified, but that Cole did not use any such language. Cole
admits that such language is common among the men and
used in conversations in his office in which Cole takes part.
However, even as to those conversations, he tended to leave
the impression that he does not use such languages Cole
recalled Sanford's reference to the discharge of Williams,
and to the accusation that Cole had benefited by turning
union cards in to the Company.
As previously noted, employee Garner was presented in
support of Dispatcher Cole. He impressed me as having a
convenient and not very reliable memory. His direct
testimony leaves the distinct impression that he was present
during the entire conversation between Sanford and Cole;
certainly there is no indication to the contrary. On cross-
examination, however, faced with the necessity of disavow-
ing certain statements attributed to Cole in Garner's own
previous written statement, Garner suddenly asserted that
Sanford and Cole "was arguing when I got in the office."
(Cole, however, insists that Sanford was talking to Garner
and another employee in favor of the Union on this
occasion before Cole entered into the discussion.) Though
Garner stated that Sanford and Cole were involved in this
conversation for 30 minutes, on direct examination he
could recall only one specific statement made by Cole
during this time, and, with difficulty, only a few other
statements on cross-examination. Although Garner's
written statement made shortly after the event, attributes
vulgar statements to both Cole and Sanford during this
conversation, he now recalls only that Sanford made such
statements, and states that he heard of Cole's remarks only
from Sanford immediately after the argument. As previous-
ly noted, I do not find Garner a credible witness . Sanford's
version of this conversation is credited.
After Sanford left Cole's office for the job to which he
had been dispatched, Cole called Supervisor Riley and
reported that, in the course of the conversation between
Sanford and himself in which Sanford had been talking for
the Union and the benefits the Union could get for the
using the expression during the hearing , or in using the more common
expression set forth in the text above.
B Thus, when questioned about such language being used by the men
when he was present, Cole three times replied , "Amongst themselves,"
seeming to exclude himself.
HOUSTON SHELL AND CONCRETE CO.
employees, Sanford had referred to the relationship of Cole
and Company President Good by means of the vulgar and
obscene phrase referred to in footnote 5, above. According
to Cole, he recommended that Sanford be terminated;
according to Riley, however, Cole made no statement "as to
what his attitude was toward Sanford." Riley reported the
incident to Vice President Wingate, who said he had no
immediate instructions for Riley. Later that day, Wingate
instructed Riley to secure a written statement from Cole,
which Riley did. According to Riley, the purpose of the
statement was to secure in writing that Sanford had used
the vulgar and obscene phrase which Cole had earlier, over
the telephone, advised Riley had been made by Sanford.
That afternoon, Riley and General Manager Robert Baugh
met with Sanford. They asked if he had made the
statements attributed to him by Cole. Sanford admitted
that he had, but that he had done so in response to "a few
things said to me." Sanford stated that he had meant no
offense , that the language was that used around the plant
"all the time ." Sanford offered to apologize. Baugh told
Sanford, ". . . we just can't tolerate this kind of comment
made to one of our supervisors or anyone else about the
president of our company, and because you admit making
this comment , I'm going to have to let you go." 7 Sanford
was then given his final check, which had been previously
prepared.
Cole testified without contradiction that after Sanford
was discharged, the latter called Cole on the telephone and
told him what a "sorry" person he was, and cursed him,
asking whether Cole was going to take care of Sanford's
wife and family. Cole did not reply, and Sanford said he
was going "to get" Cole, to which Cole suggested that
Sanford meet him outside the company gate at 5 p.m.;
Sanford said he would not meet Cole there, but would get
him.
The discharge of Jessie M. Cervantes: Cervantes had
begun work with the Company in August 1965, as a
truckdriver. When he was discharged, on October 26, 1970,
he was classified as a leaderman mechanic. Prior to that
date, so far as this record shows, there had been no
complaints about Cervantes or his work. Cervantes was one
of the employees who attended the union meeting of
October 4, and signed a union card. He thereafter attended
other meetings and secured the signatures of other
employees to union cards.
At the time of his discharge, Cervantes was working on
the night shift at plant 10. Cervantes, and his helper, G. J.
Hernandez , who was apparently classified as a second class
mechanic , would normally come in at 5 p.m. As a normal
practice, they could work until the day crew came on at 6
a.m., if there was work to do. Since their immediate
supervisor, Plant Superintendent Donald Bell, usually left
the plant soon after their arrival, these men , together with
Isidoro Morales, a truck greaser and watchman, worked at
the plant alone.
On October 23, the Friday before Cervantes was
t Baugh states that Sanford said he was "kidding" Baugh also asserts
that when questioned as to whether he would make this kind of a comment
to a fellow driver , Sanford said he didn't "guess f would."
8 This is based on the credited testimony of Cervantes, supported to
some extent by Hernandez To the extent inconsistent , Morales' testimony
is not credited . While Morales stated that he did not ask Cervantes to stay
1127
terminated, there was an unusually heavy rainstorm in the
Houston area. Some streets were flooded and the
employees had difficulty in getting to and from work that
evening. Instructions were issued by the management of the
Company that the mechanics were to work only 8 hours
that evening. There is a dispute as to when Cervantes first
learned of these instructions, but it is clear that he knew of
them before his 8 hours had expired that evening. There is
also a dispute as to whether Bell, over the telephone, gave
Cervantes permission to finish some pending work
notwithstanding that it would require Cervantes and
Hernandez to remain more than 8 hours. It is unnecessary
to resolve these disputes. Cervantes and Hernandez did
finish the work in question. Hernandez then left the plant at
3:30 p.m. Because Morales objected that he did not want to
be left alone because it was dangerous, and because
Morales would require help with equipment he was working
on, Cervantes did not leave, but remained with Morales
until about 6 a.m.8
The following Monday evening, when Cervantes came in
to work, he was discharged by General Manager Robert
Baugh. According to Cervantes, he was questioned by
Baugh as to his reasons for working until nearly 6 a.m., the
preceding Saturday; and he informed Baugh that he had
permission from Bell to work overtime to finish up part of
the work, and that he remained thereafter at the request of
Morales who did not want to be alone and needed
assistance, and that he had worked on through "like every
night, all working nights." Baugh and Bell recalled that on
this occasion Cervantes said that he had worked overtime,
though he was aware of the instruction to work 8 hours,
because of the request of Morales. Both denied that
Cervantes claimed that he had been given permission by
Bell to work some of those hours to complete some work.
Baugh testified that he told Cervantes that he was going to
have to let Cervantes go "because of insubordination,
especially because you are the leaderman in this shop and
supposed to be setting an example for the other men. I just
can't tolerate that." Cervantes was paid off and told to get
his tools out of the plant. I find it unnecessary to resolve the
dispute as to whether on this occasion Cervantes claimed to
have permission from Bell to complete certain work that
evening requiring him to remain more than 8 hours, since
Cervantes clearly admitted that he worked beyond the
period for which it is claimed Bell had given permission.
There is considerable testimony in the record as to
whether the Company has a "policy" of restricting
mechanics, and drivers, from working more than 8 hours in
periods of bad weather such as that occurring on October
23, 1970. Though Baugh asserted that such instructions had
been issued 25-30 times in the past 2 years, he was generally
vague and unspecific as to the occasions. Bell's testimony
on the subject was hardly more enlightening. I am
persuaded that referring to this as a "policy" is an
exaggeration. Parts Man Edwin Buckner, who also worked
in plant 10, under the supervision of Plant Manager Bell,
that night because it was dangerous , Morales admitted that it was
dangerous for him to be there alone, and that the men had discussed this
on that night . Morales agreed that he asked Cervantes to help him with his
work, but asserts this was only after Cervantes was going to stay a little
while anyway.
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
indicated his observation that the practice was dependent
on the work to be done.
Baugh stated the reasons for the "policy" as follows- 1)
Since these men work so much overtime , this gives them
more time off to be home with their families, and 2) since
the Company is unlikely to be able to deliver and pour
concrete at the site for 2 or 3 days after a bad rain, the
Company can use those days to repair the trucks with
mechanics working no more than 8-hour shifts. Baugh
agreed that at the time the Company was not working on
Saturday and Sunday, and it would appear that the
Company was operating normally on Monday, when
Cervantes was discharged , although Baugh was somewhat
vague on the point.
Hernandez ' conversation with Plant Superintendent Bell
concerning Cervantes' discharge has been considered
above.
The discharge of Manuel A Salazar Salazar, though
poorly educated, presented a particularly attractive person-
ality and manner . At the time he was discharged, on
February 15, 1971, he had been employed by the Company
for more than 17 years. He drove a ready-mix concrete
truck . Salazar attended union meetings , signed a card, and
engaged in other activities on behalf of the Union,
including acting as one of the union observers at the
election conducted by the Board on January 22, 1971, at
which a majority of the employees voted for the Union. Up
to that point there is no indication that Salazar or his work
had been the subject of complaint . Indeed , the indications
are that he was highly regarded.
The incidents leading up to Salazar's discharge appear to
have begun on the previous week . Early that week , Salazar
needed to dump about 300 gallons of water used to clean
out the ready-mix tank on his truck, which appears to be a
regular task . Salazar had previously cleaned out the tank at
the jobsite , and it is indicated that this was an extra effort at
cleaning the truck . The Company maintains an area,
enclosed by a locked fence, off a short unpaved street, in
which such water and waste materials may be dumped.
Before going to this area , Salazar was informed that
someone was there with the key. When he arrived, the gate
was locked, and another employee was dumping wastes
through the gate . Salazar deposited the water from his tank
along the road . There is some conflict between the
testimony of Baugh and Salazar as to the composition of
the road , and whether the water dumped was clear or left
noticeable particles of cement on the road. These matters
are not very significant , other than to show that Salazar was
not willfully careless in his actions. If necessary to resolve
the disputes , I would credit Salazar.
Salazar discussed what he had done with a foreman and
the incident came to the attention of General Manager
Baugh . The day following the incident, Baugh spoke to
Salazar about this. Baugh asked why Salazar had put the
water on the road , asserting that this was against company
rules , could cause damage , and someone might sue the
Company. Salazar said that he did not think that what he
had done "was not any big problem that I can cause suing
the company or damage to anything," and that "when he
asked me about that water, if I knew it was against the
company, I said , well, I don't think so. It was just 300
gallons of water . What is it going to hurt on a gravel road
like that?" Salazar stated that he would not do this again.
Baugh told Salazar that he was going to have to follow
company rules , regulations , and policies "just like the rest
of us," and threatened to fire him if he did not . Salazar
stated that he would rather quit than be discharged.
As Salazar was leaving this conference with Baugh a
fellow employee asked him, apparently in a kidding
manner , who was being fired , to which Salazar answered
that he was. When Baugh heard of this , he called Salazar in
and upbraided him for telling employees that he was being
fired when Baugh had not fired him.
The following day, Baugh was informed that one of the
Company's customers had called in , concerned that Salazar
was being discharged . Baugh again called Salazar in and
reprimanded him for telling the customer that he was being
fired. Though Salazar at first did not recall the incident,
when reminded that he had made a delivery to that
customer on the same day that Baugh had criticized him for
dumping the waste water , he recalled that he had spoken
with the customer that day, that the customer was an old
friend,9 that he spoke to the customer because he had been
threatened with discharge over the mistake he had made,
and he had not thought that this would be so " important to
the man or to the company." As Salazar testified, Baugh
told him that ". . . everybody likes you, ... but you have
been changing your attitude lately, that I don't know what
to do with you. You are working against the company."
Salazar said that he "was just talking to a friend of mine,"
Baugh said, "[W ]ell, we don' t want that no more."
On Friday of that same week , Baugh received informa-
tion that a customer , Bellows Construction Company, was
having difficulty with Salazar on ajobsite and did not want
him to be sent back to the job again. Baugh and Riley
immediately went to the job and spoke with the project
superintendent , who informed them that Salazar had had a
heated verbal altercation on two occasions with the laborer
on the job who was giving Salazar instructions on where to
drive his truck and how the concrete was to be poured. The
language used was not adapted to polite society. The
project superintendent stated that he had no trouble with
any of the other company drivers , and requested that
Salazar not be returned to the job . Baugh proceeded to take
a written statement from the job superintendent. He
reported his findings to Vice President Wingate, who said
he would talk to Salazar on Monday.
On Monday, February 15, Salazar was called into
Wingate' s office , where he met with Wingate and
Supervisor Herschell Riley. Only Salazar gave testimony
concerning this meeting . Wingate told Salazar that it
looked like he was going to have to fire him . Wingate
referred to the water dumping incident , the customer
calling concerning Salazar being discharged , and the
problem at Bellows Construction. Salazar protested , "[Y Jou
mean , just for the little nustakes I made, you are going to let
me go , and all the time I have been serving the company,
eighteen years?" Wingate responded that Salazar's attitude
9 Salazar testified that the customer had been induced to do business
with the Company because of Salazar
HOUSTON SHELL AND CONCRETE CO.
had changed, that he had "been working against us," that
"everything is against the company, including your
attitude." 10 Wingate suggested that Salazar quit, as he had
indicated to Baugh, but Salazar said that Wingate would
have to fire him. Wingate did so, but, in the words of
Salazar, "he told me in that last part that if I changed my
attitude I can come and see them again and I might have
the chance to go to work with them "
2. Conclusions
The Company asserts that it had cause for the discharge
of each of these men. The General Counsel, on the other
hand, contends that the reasons given were pretexts, and
that Sanford, Cervantes, and Salazar were fired for their
union or other protected activities. As Judge Parker stated
in Hartsell Mills Co. v. N. L. R. B., Ill F.2d 291, 293 (C.A. 4),
"It must be remembered, . . . that the question involved is
a pure question of fact; that passing upon it, the Board may
give consideration to circumstantial evidence as well as to
that which is direct; that direct evidence of a purpose to
violate the statute is rarely obtainable; and that where the
finding of the Board is supported by circumstances from
which the conclusion of discriminatory discharge may
legitimately be drawn, it is binding... .
There can be no question on this record but that the
Company was determined to defeat the union organization-
al attempt, and was prepared to take such action, including
discharge of employees, which would serve that purpose so
long as it had at hand a reason which it felt would justify
that action. The Company made it plain to the employees
that they did not want a union. Dispatcher Hailey told
employee Dowell that the ones pushing the Union had
"better walk a tight line, because the first time they made a
mistake, they would be fired." Plant Superintendent Bell
informed employee Hernandez, who was inquiring as to the
reason for Cervantes' discharge, that as long as Hernandez
did not "fool around with the union [he] wouldn't have to
worry about a job." Dispatcher Cole told Sanford that his
"dealings with the Union" would imperil his job, a
prophetic prediction.
The discharge of Sanford: Sanford had recently been
solicited by the Company to return to work after he had
voluntarily quit some months previously. There are no
indications that he was other than a satisfactory employee.
On the morning of the day of his discharge, Sanford was
engaged in an argument with Dispatcher Cole in which
Sanford hotly asserted the necessity of a union in the
Company operations and the benefits it would bring, with
Cole vigorously taking the opposite viewpoint. During the
course of this argument, each accused the other of currying
favor with various management officials to obtain prefer-
ment . Sanford stated that Cole was currying favor with
Good, the company president, employing a vulgar and
obscene expression to describe the relationship between
Cole and Good. The language used was common among
the men and not unknown to Cole. During the same
conversation, he used similar expressions describing
Sanford's relationship with other management officials.
10 On cross-examination , Salazar was asked, and he agreed, that
Wingate said to him that his "attitude of the past few months had not been
what it should have been " Nevertheless , no specific complaint against
1129
According to General Manager Baugh, Sanford was
discharged solely for using the company president's name
in connection with the obscene statement, agreeing that
Sanford probably would not have been fired if he had used
some more moderate phrase, like "apple polishing."
Upon consideration of the whole record, I am convinced
that the reason asserted for the discharge of Sanford is
pretextuous. The Company is shown to be strongly opposed
to the unionization of its employees and determined to
defeat it. Considering the intensive campaign of interroga-
tion and information gathering upon which the Company
was embarked, management was undoubtedly aware of the
progress of the -union drive. Sanford's open and vigorous
advocacy of the Union was further evidence of the
immediate threat to the Company's purpose. It is clear that
Sanford was not accusing the company president of any
actual improper relationship with Cole. It is also clear that
the management of the Company was well aware the
language used was the sort habitually employed among the
men. It is admitted that no other disciplinary action has
been taken against an employee because of use of such
language among themselves. Significantly, in the present
case, the comments were not made in the presence of
outsiders.
Upon consideration of all the facts, including the other
activities of the Company found herein to have violated the
Act, I am convinced and find that the Company seized
upon this incident and discharged Sanford in an attempt to
blunt the union drive and to discourage membership in the
Union in violation of Section 8(a)(3) and (1) of the Act.
It is further plain that Sanford in asserting the benefits of
the Union to Cole and the other employees, and contesting
Cole's arguments against unionization, in these circum-
stances, was engaging in activities in furtherance of the
employees' rights "to self-organization, to form, join, [and]
assist labor organizations," which activities are protected
by Section 7 of the Act. See Leece-Neville Company, 159
NLRB 293, enfd. 396 F.2d 773 (C.A. 5); Boaz Spinning Co.,
165 NLRB 1019, reversed on a different point, 395 F.2d 512
(C.A. 5). Sanford's statements which are here attacked were
an integral part of these activities as the Company was
aware. In such circumstances, as the Court of Appeals for
the Fifth Circuit affirmed in Crown Central Petroleum Corp.
v. N.L.R.B., 430 F.2d 724, 729, "it is the tendency of
employer's conduct to interfere with the rights of his
employees protected by Section 8(a)(1)" of the Act that is
controlling, "rather than his motives." As the court further
noted, "As long as the activities engaged in are lawful and
the character of the conflict is not indefensible in the context
of the [matter ] involved, the employees are protected under
Section 7 of the Act." See 430 F.2d at 731.
Sanford's remarks involved in this matter were far from
"indefensible." They -were, indeed, provoked by the
Company's supervisor, Cole. Here also, as the court stated
in N.L.R.B. v. Leece-Neville, supra at 774, "The record
makes out nothing more than a rather heated response
between protagonists in the heat of a union campaign." See
also, N.L. R.B. v. Thor Power Tool Company, 351 F.2d 584,
Salazar other than the three mentioned appears in the record Baugh
indicated one other, but if it occurred, its timing and nature are not shown
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
587 (C.A. 7), ("The employee' s right to engage in concerted
activity may permit some leeway for impulsive behavior,
which must be balanced against the employer 's right to
maintain order and respect" ); Union Carbide Corporation,
171 NLRB No. 199, ("where , as here , the conduct in issue is
closely intertwined with protected activity, the protection is
not lost unless the impropriety is egregious . . . . A frank,
and not always complimentary , exchange of views must be
expected during the heat of an organizing campaign.").In
each of these cases , the remarks found protected were
strong, direct , personal criticisms of specific management
individuals or the company . In the present situation,
Sanford 's vulgarism was clearly in disparagement of only
Cole, who had himself provoked the comment by a similar
statement of his own. In these circumstances , it is found
that the vulgarities expressed by Sanford in his argument
with Cole concerning the Union were not so egregious as to
remove his otherwise protected conduct from protection of
Section 7 of the Act. It is therefore found that in
discharging Sanford for making these remarks in the course
of his argument with Cole, Respondent interfered with,
restrained , and coerced its employees in their exercise of
rights guaranteed in Section 7 of the Act and violated
Section 8(a)(1) of the Act.
The discharge of Cervantes: At the time Cervantes was
discharged , on October 26, 1970, he had been employed by
the Company for over 5 years . During this period, he had
advanced from truckdriver to leaderman mechanic. There
is no evidence of any prior complaint or warning as to
Cervantes ' work or conduct . He was one of the early card
signers and was active in the union drive.
As of the time he was discharged , Cervantes was working
a night shift with one helper , Hernandez , and a grease man,
Morales . Although the Company normally permitted
Cervantes to work until 6 a.m., when there was work to be
performed , on this night orders were issued that Cervantes
and his helper only work 8 hours . Though he sent his helper
home , Cervantes disregarded this order and continued to
work because the grease man, Morales , stated that he was
afraid to stay alone that night since he (Morales) felt it was
dangerous , and also in order to assist Morales with work
that he could not ordinarily do alone . There is no claim that
Cervantes did not perform his normal work that evening.
Cervantes left the next morning at his normal time.
General Manager Baugh contends that the order to work
8 hours was issued because of a heavy rainfall that evening
which would prevent its trucks from going out for 2 or 3
days , and that , therefore , there would be plenty of time
during that period , normally, to catch up on repair and
maintenance of the trucks without the mechanics working
more than 8 hours that night . It is also contended that the
order was for the benefit of the mechanics to give them
more time at home with their families . It is further
contended that Cervantes ' disregard of orders constituted
insubordination which could not be tolerated in a
leaderman . These reasons do not bear analysis . In asserting
the basis for the 8-hour order , Baugh clearly forgot that the
evening Cervantes worked was Friday night and Saturday
morning . Since the Company does not normally work on
Saturday and Sunday , no maintenance would be performed
on those days . It is further clear that the Company was in
full operation on the following Monday. It is most difficult
to ascertain how the Company was hurt by Cervantes'
action . The claim of intolerable insubordination, in the
circumstances , seems also a makeweight . While Cervantes,
like other employees , should obey the Company 's legiti-
mate orders , there were only two others with whom he
regularly worked , and they were well aware of the
reasonable basis for his action.
The real reason for Cervantes ' discharge is easily gleaned
from the conversation between Hernandez and Plant
Superintendent Bell, the day after Cervantes ' discharge.
When Hernandez sought the reason for Cervantes'
termination , Bell carefully took Hernandez aside, where
they could not be overheard , questioned Hernandez
concerning his union activities , asked Hernandez to report
on the union activities of others , told him that "as long as
[he] didn't fool around with the union , [he] wouldn't have
to worry about a job." Though it does not appear that Bell
gave Hernandez the reason for Cervantes ' discharge, Bell
did volunteer that Cervantes had not been fired because of
the Union . Bell finally admonished Hernandez that, if the
latter disclosed the conversation , Bell would brand it a lie.
The Company argues that there is no evidence that the
Company knew of Cervantes' union activity. However, the
record is persuasive that the Company , by means of
interrogation and information gathering , was well informed
as to those who favored the Union . Bell's statements to
Hernandez the following day support the finding that the
Company was well aware of Cervantes ' union activities and
discharged him for that reason. It is found that the
Company by its discharge of Jessie Cervantes discouraged
membership in and activities for the Union by discrimina-
tion against employees and violated Section 8 (a)(3) and (1)
of the Act.
The discharge of Salazar: At the time of his discharge,
Salazar had been employed by the Company for over 17
years as a truckdriver . At the outset of the union activity,
probably because of his long tenure , he was solicited by
Vice President Wingate to report on the union activities. He
was interrogated as to such activities by other supervisors
also, and there is an indication , as in the conversation with
Senior Dispatcher Pounds , of surprise at his advocacy of
the Union . On January 22, 1971 , Salazar was an observer
for the Union in the representation election at which the
Union received the majority of the votes cast . Up to that
point there is no probative evidence of any complaint or
criticism of Salazar or his work . To the contrary, the
indication is that he was well liked and respected . Within 3
weeks after the election , Salazar was thrice reprimanded by
Baugh, and on February 15, 1971, he was discharged.
The first of these reprimands occurred during the
workweek beginning February 8 . Salazar dumped 300
gallons of water on a small , graveled , side street, in
admitted violation of company rules . The following day,
Baugh admonished Salazar for this action , after hearing
Salazar's explanation . Baugh took a very hard tone in the
circumstances , threatening Salazar with discharge if he
violated company policies further . This was rather
unsettling for Salazar . As he left for work he was asked by a
fellow employee what had gone on and he mentioned the
threat to discharge him. At the jobsite, he told the customer,
HOUSTON SHELL AND CONCRETE CO.
who was an old personal friend, of the possibility of his
discharge. The customer called the Company to protest the
action. Baugh was informed of each of these incidents and
immediately sought out Salazar to reprimand him for
saying that Baugh intended to discharge him. On this
occasion, Baugh told Salazar, " . . everybody likes you
. but you have been changing your attitude lately, that I
don't know what to do with you. You are working against
the company."
On Friday of that week, Salazar had two incidents in
which he used short four letter vulgarities to a laborer on a
jobsite who was directing him as to the maneuvering of his
truck and the pouring of the concrete. Thejob superintend-
ent on the site called the Company and stated that he no
longer wanted Salazar to deliver to the site. Baugh
immediately visited the site and spoke to the job
superintendent, who detailed the situation. The job
superintendent confirmed that, although there was no
problem with other drivers who were delivenng to the site,
the job superintendent did not want Salazar to be returned
to the site. Baugh then took a written statement from the
job superintendent, and, upon returning to the plant,
informed Vice President Wingate of his findings.
On the following Monday, Wingate called Salazar in and
discharged him, after speaking of the events of the week
previous. Wingate told Salazar that, notwithstanding his
long tenure with the Company, in the past few months his
attitude had not been satisfactory, that his attitude had
changed, that Salazar had "been working against us," that
"everything is against the Company, including your
attitude." Significantly, Wingate told Salazar that if he
"changed [his] attitude, [Salazar could] come and see them
again and [he] might have the chance to go to work with
them."
In considering the basis for Salazar's discharge, and for
the repnmands which immediately preceded it, it becomes
readily apparent that what really concerned both Wingate
and Baugh, and persuaded Wingate to disregard Salazar's
better than 17 years' service with the Company, was
Salazar's asserted change in attitude, which Wingate said
had been of concern to the Company for months. Both
made a particular point that Salazar had been "working
against us ," or "working against the Company." However,
no evidence appears which would support this wide-
sweeping accusation except for Salazar's advocacy of the
Union and his activities in support of it. Nor would
Salazar's derelictions of the prior week seem to warrant the
accusation. In fact, one of the three incidents rather
indicates the Company's asserted concern that anyone
should think that the Company would discharge Salazar
after such long tenure, which concern was rather short
lived. And, of course, these were not of the duration
indicated by Wingate. On the basis of the whole record, it is
found that both Baugh and Wingate in accusing Salazar in
working against the Company had reference to his union
activities. ii It is further clear that, except for his "attitude,"
the Company did not consider that his errors of the
previous week rendered him unfit for further service. Thus
ii The Company's opposition to the Union clearly did not abate after
the election as shown by its letter to the employees dated January 26, in
which the Company emphatically advised the employees that
1131
Wingate told Salazar that if he "changed his attitude," the
Company would consider hiring him. It is noted that the
job superintendent who asked that Salazar not be sent back
to his jobsite did not ask that he be discharged. This is not a
case in which such a complaint would destroy Salazar's
usefulness to the Company. It had 134 drivers and other
customers, many of whom Salazar had been apparently
serving for years without complaint.
On the basis of the above and the record as a whole it is
found that by the discharge of Manuel Salazar the
Company discriminated against employees discouraging
membership in and activities for the Union and thereby
violated Section 8(a)(3) and (1) of the Act.
III. THE OBJECTIONS TO THE ELECTION
On January 22, 1971, pursuant to a Decision and
Direction of Election issued by the Regional Director, a
secret ballot election was conducted in Case 23-RC-3523,
in an appropriate unit of employees of the Company. Of
approximately 246 eligible voters, 237 cast valid votes, of
which 122 were for the Union, 115 were against the Union,
and I ballot was challenged. On January 29, 1971, the
Company filed timely objections to the election reading as
follows:
1.
That immediately preceding the election in the above
captioned case, the Union made material misrepresen-
tations as to wage rates and other terms and conditions
of employment in a collective bargaining agreement
which the said Union has in the Beaumont-Orange,
Texas area with another employer and such information
related by the Union to employees of the Employer as
to such wage rates and other terms and conditions of
employment was false and misleading and such was
known to the Union to be false and misleading and was
intended to and did, deceive the employees of the
Employer.
II.
That immediately preceding the election in the
captioned case, the Union made material misrepresen-
tations pertaining to a collective bargaining agreement
which the Union has in the Galveston-Texas City,
Texas area with another employer and that such
matenal nusrepresentations and deviation from the
facts that were related to employees of the Employer
were false and as such was known to the Union to be
false, was intended to and did, deceive the employees of
the Employer as to the true wage rates being paid by
another employer in the Galveston-Texas City, Texas
area.
That preceding the election in the above captioned
case, the Union coerced, intimated and directed threats
(notwithstanding the election results) they still did not have to join the
Union.
1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to employees of the Employer so as to totally preclude
their free and untrammeled choice at the polls.
The above enumerated acts of material misrepresen-
tation were deliberate and exceeded the legitimate
limits of campaign propaganda and lowered the
standards of campaigning to the point where it may be
said that the uninhibited desires of the employees of the
Employer were not and could not have been determined
in the election held on January 22, 1971.
The above enumerated acts of threatening and
coercive conduct by the Union so impaired the
laboratory conditions required for the conduct of an
election that the desires of the employees of the
Employer were not and could not be uncoercively
determined at the election.
Having determined, as a result of investigation of the
objections to the election, that "substantial and material
issues of fact and credibility" were raised in respect to the
objections, the Acting Regional Director ordered that "a
hearing be conducted in Case 23-RC-3523 for the purpose
of taking testimony on the issues raised by the Employer's
objections," which hearing was consolidated with the
hearing on the complaints issued against the Company in
this proceeding.
As developed at the hearing, the Company's objections
relate only to certain alleged occurrences at a union
meeting held on January 18, 1971, at the union hall,
attended by 300 employees, and conducted by Business
Agents Raymond Reeves and Dempsey Merida.12 The
company witnesses to these events were Albert Garner, to
whom reference has been made hereinabove, and Timothy
Matthews, another employee of the Company.
A. The Ballot Issue
At the outset it must be determined whether the company
claim that Reeves exhibited a copy of a Board notice of
election with the ballot contained thereon marked with an
"X" in the "yes" box is within the Acting Regional
Director's order directing a hearing on the objections.13
Notwithstanding the fact that this matter is not specified as
an objection in the document filed with the Regional
Director, I held at the hearing that I considered it to be
within the issues which I should determine. Upon
reconsideration, I am convinced that this decision was
correct. The Board has long held that its Regional Directors
are not limited to the precise issues raised by the parties in
investigating objections to elections. See Northlake Conva-
lescent Hospital, 173 NLRB 992. It is further clear that this
matter was under investigation by the Regional Director
prior to the order setting these objection issues down for
hearing. In the circumstances, it is found that the ballot
issue is properly before me for decision.
Both Garner and Matthews testified that Reeves
displayed a Board notice of election at the union meeting
with the specimen ballot thereon marked in the "yes" box,
Business Agent Reeves testified that in the process of
12 No evidence was adduced at the hearing concerning Objection 1,
above.
13 Under well-established Board precedent , the distribution to
employees by any party of a specimen Board ballot on which a choice has
been marked may be grounds for setting the election aside , on the basis
explaining the procedures of a Board election to those in
attendance he did display a copy of the Board's Notice of
Election, but denied that the ballot was marked. The Union
placed in evidence the unmarked notice of election which
Reeves identified as the notice shown that evening. Reeves
testified that he did show the participants a separate slip of
paper, such as he regularly uses for this purpose, which was
marked. However, this slip in no way resembles the Board
ballot. The Company distributed a similar, though more
effectively presented, ballot to the employees, marked "no."
Garner's testimony concerning this meeting does not
appear any more reliable than that previously considered. It
is clear that he does not even have a clear recollection of the
room in which the meeting took place. Further, his original
testimony, before his attention was specifically directed to a
form Board notice of election, was that Reeves showed the
employees at the meeting "a slip" in connection with
"telling us about if we wanted a union and how to vote."
When shown a notice of election, Garner identified it as the
document used by Reeves. However, the Board notice of
election cannot by any stretch of the imagination be
characterized as a "slip."
Matthews testified that he reported the events of the
Union meeting to Vice President Wingate after the
conclusion of the election, and on February 4, 1971, gave a
written statement to Wingate on these events. On neither
occasion did he mention the asserted marked ballot.
However, at a later time, when interviewed in company
counsel's office, in answer to a specific inquiry by a Board
agent, Matthews asserted that the ballot on the Board
notice of election was marked.
Reeves made a quite favorable impression as a witness.
His testimony was forthright and detailed. It is difficult to
believe that Reeves, a very experienced union agent in
handling such matters, would have deliberately violated
such a simple and well-known rule of the Board as this. On
the other hand, both Garner and Matthews did not impress
me as having so sharp or as reliable recollection of the
events involved. Reeves' testimony that the notice of
election displayed at this meeting was unmarked is
credited. It is therefore unnecessary to consider whether, if
marked, such limited display would have violated the
Board's rule. Cf. Burnside Steel Foundry Company, supra.
B. The Galveston Texas City Contract
In its literature distributed to the employees, designed to
induce them to vote against the Union, the Company
asserted that the Union had a contract with an employer in
the Galveston-Texas City, Texas, area containing specified
inferior rates and conditions. It is indicated that Company
President Good also discussed these matters with the
employees at meetings . According to Garner, at the
January I8 union meeting, after a discussion as to whether
the employees might expect to receive the rates in the
Union's Beaumont-Port Arthur contract if the Union
won-to which the union representative replied that he
that such action tends to materially mislead the voters into assuming that
the marked ballot has the Board 's approval . See Arlen House and Arlen
House West, 187 NLRB No, 139 ; cf. Burnside Steel Foundry Company 178
NLRB No. 32.
HOUSTON SHELL AND CONCRETE CO. 1133
could "guarantee no definite price that we would be
getting"-the union representatives were then asked why
drivers at Galveston-Texas City had a lower rate than those
at Beaumont-Port Arthur Garner states that the union
representative replied that the Union did not have a
contract in Galveston-Texas City, and that, when an
employee asserted that Good had so stated, the union
representative called Good "a lying so and so." Matthews
testified in substantial accord.
Business Agent Reeves testified that he recalled the
question, but that both he and Business Agent Merida
advised the employees that they did not know about the
contract at Texas City, that this area came under the
jurisdiction of another business agent, who has his office in
that area, and whom Reeves and Merida normally see only
once a week. Reeves denied that the employees were told
that the Union did not have a contract at Galveston-Texas
City, but were told that the agents were unaware of such
contract and that the employees should "ask Mr. Good,
maybe he has one." 14 Reeves admitted that Merida, in
another connection, called Gocd "a lying son-of-a-bitch."
I am satisfied that Reeves' account of the matter is the
more reliable. As previously noted, I have no confidence in
the recollection of Garner and Matthews as to these events.
It is therefore found that the Union did not deny the
existence of the Galveston-Texas City contract, nor made
any attempt to mislead the employees on this point.
Garner and Matthews testified to two other incidents at
the union meeting of January 18. During the meeting, a
question was raised as to whether the Company would
negotiate a contract with the Union-Matthews states that
"someone said that Mr. Good had said that he would not
negotiate a contract if the Teamsters won." Each recalled
that Business Agent Merida said that the Federal law, or
the Government, would require the Company to negotiate,
and that the Union had other means. According to
Matthews, these were described as "picket lines at the job
.. . and that a dragline could accidentally drop a bucket of
sand or gravel on the cab of a truck, or loads could be
ruined on the way to the job." Garner gave similar
testimony, though he did not mention any reference to
picket lines specifically.
The second instance both employees recalled that, when
Merida was asked from the floor how the employees could
learn the results of the election, he replied that the
employees could come to the hall that evening and get the
results , but, if the Union lost, anyone who came to the hall
for that purpose, who was known to be against the Union,
"wouldn't leave the hall."
Reeves testified that, as to the question of getting the
Company to negotiate, the query was answered by both
Merida and himself. Merida stated that the Government
would force the Company to negotiate in good faith, and
Reeves said that there were also "other methods like if we
had to we could put up a lawful picket line or something of
that nature." Reeves denied that anything was said by
either Merida or himself concerning loads being dropped
14 There is, in fact , such a contract A copy, apparently produced by the
Union , was placed in evidence The Union did not distribute any literature
to the employees denying Good' s statements concerning this contract.
15 Matthews called Vice President Wingate for the results after he was
unable to find another management representative at home According to
on trucks or materials being messed up. Reeves further
denied that Merida said that employees opposing the
Union who came to the hall for election results would not
leave the hall.
In considering the conflict of testimony with respect to
these last two incidents, as in the previous matters, I have
given careful consideration to the fact that Union
Representative Merida, though present at the hearing, was
not called to testify. There is of course, no necessary
adverse inference to be drawn from the failure to call
merely corroborative witnesses, or from failure to present
cumulative evidence. See 2 Wigmore, Evidence § 287 (1940
and 1970 supplement). Were I more in doubt concerning
the reliability of the witnesses presented, this factor might
be decisive. However, because I am satisfied as to the
substantial reliability of Reeves and have a corresponding
lack of confidence in Matthews' and Garner's recollection,
I credit Reeves' denial of their accounts as to these two final
incidents also. Indeed, the nature of the remarks themselves
does not seem to support the claims made. Assuming these
remarks were made, they hardly seem designed to coerce
any employee to vote for the Union at the election. In fact,
the contrary. Thus, unless an employee favored the Union
(and opposed the Company's position) in any event, the
testimony as to what would happen to the Company and its
operations after the election if it should refuse to bargain
would have a tendency to induce the employee to Vote
against the Union, rather than for it. Further, the idea that
the union representatives would be concerned that known
antiunion employees wouldjoin the union supporters at the
union hall to learn of the union defeat does not command
credit. Those opposed to the Union would undoubtedly
seek their information from other sources as did
Matthews.15 In any event, at most, the alleged remark
would indicate an intent to discourage those who opposed
the Union from coming to the union hall to participate in
the Union's discomfiture, if the Union lost.
Upon this record, and for the reasons stated, it is
recommended that the objections to the election in Case
23-RC-3523 be dismissed.
In accordance with the order of the Acting Regional
Director in Case 23-RC-3523, that case is hereby
transferred and continued before the Board with the
recommendation that the objections to the election be
dismissed and the Union be certified, pursuant to Section
9(a) of the Act, as the exclusive bargaimng representative of
the employees in the unit in which the election was
conducted.
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By acts of interrogation, threats , creating an impres-
sion of surveillance of union activities , and Solicitation of
Matthews on that occasion, for the first time , he informed the Company of
what had gone on at the union meeting of January 18. Company counsel
sought to have Matthews also testify as to his conclusions as to why the
other employees voted as they did Upon objection this was excluded. See
Tyler Pipe Industries, Inc. v. N.LR B, 447 F 2d 1136 (C.A. 5).
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees to report on union activities of others, as found
herein , the Company engaged in unfair labor practices in
violation of Section 8 (a)(l) of the Act, and by the discharge
of Royce Sanford , Jessie M. Cervantes, and Manuel A.
Salazar, as found herein , the Company engaged in unfair
labor practices in violation of Section 8 (a)(1) and (3) of the
Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It having been found that the Company has engaged in
unfair labor practices in violation of Section 8(a)(1) and (3)
of the Act, it will be recommended that the Company cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
It will be recommended that the Company offer Royce
Sanford, Jessie M. Cervantes, and Manuel A. Salazar
immediate and full reinstatement to their former jobs, or, if
such jobs no longer exist, to substantially equivalent jobs,
without prejudice to their seniority and other rights,
privileges, or working conditions, and make them whole for
any loss of earnings suffered by reason of such discrimina-
tion , by paying each of them a sum of money equal to the
amount each would have earned from the date of the
discrimination against him, to the date of the Company's
offer to reinstate him as aforesaid , less his net earnings
during that period, in accordance with the Board's formula
set forth in F. W. Woolworth Company, 90 NLRB 289, with
interest thereon at the rate of 6 percent per annum, as set
forth in Isis Plumbing & Heating Co., 138 NLRB 716.16
As the unfair labor practices committed by the Company
are of a character striking at the root of employee rights
safeguarded by the Act, it will be recommended that the
Company be ordered to cease and desist from infringing in
any manner upon the rights guaranteed in Section 7 of the
Act. See Brads Machine Products, Inc., 191 NLRB No. 15.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I issue the following recommended: 17
ORDER
Houston Shell and Concrete Co., A Division of
McDonough Co., the Respondent herein, its officers,
agents , successors, and assigns , shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against
employees in order to discourage membership in or support
of International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, General Drivers,
Warehousemen & Helpers Local Union No. 968, or any
16 Although no suggestion has been made that Sanford 's telephone call
to Cole after his discharge (accusing Cole of depriving him of the means of
supporting his family and threatening to "get" Cole) might disqualify
Sanford from employment , this has been considered. However, Cole's
supervision over Sanford would appear minimal, there is very little
indication that the Company, indeed , was concerned , in discharging
Sanford , with his relationship to Cole as a supervisor (Baugh does not
assert that Sanford was discharged for "insubordination" to Cole), and
Sanford had considerable provocation for his resentment In the
circumstances , it is found that Sanford was not disqualified for
reinstatement
other labor organization, or because such employees
engage in activities protected under the Act.
(b) Threatening to discharge or otherwise harm employ-
ees for joining a union or engaging in union activities.
(c) Threatening to take away benefits currently enjoyed
by employees because of their membership in or support of
a union.
(d) Interrogating employees concerning union member-
ship or activities in a manner interfering with, restraining,
or coercing employees in the exercise of their rights under
Section 7 of the Act.
(e) Engaging in conduct creating the impression of
surveillance of union activities of employees.
(f) Soliciting employees to report to the Respondent on
union membership and activities.
(g) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action which it is
found will effectuate the purposes of the Act:
(a) Offer Royce Sanford, Jessie M. Cervantes, and
Manuel A. Salazar immediate and full reinstatement to
their former jobs, or, if those jobs no longer exist, to
substantially equivalent jobs, and make them whole for any
loss of earnings or benefits they may have suffered by
reason of the discrimination against them, in accordance
with provisions of the section entitled "The Remedy,"
above.
(b) Preserve and make available to the Board, or its agent,
upon request, payroll and other records to facilitate the
effectuation of the order herein.
(c) Notify immediately the above-named individuals, if
presently serving in the Armed Forces of the United States,
of the right to full reinstatement, upon application after
discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act.
(d) Post at its plants in and about Houston, Texas, which
are involved in the proceeding in Case 23-RC-3523, copies
of the attached notice marked "Appendix." 18 Copies of
said notice, on forms provided by the Regional Director for
Region 23, after being duly signed by Respondent's
authorized representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it 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
ensure that said notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director for Region 23, in
17 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
Section 102.48 of the Rules and Regulations , be adopted by the Board and
become its findings, conclusions , and Order, and all objections thereto
shall be deemed waived for all purposes.
is In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted pursuant to a Judgment of the United States Court of Appeals
enforcing an Order of the National Labor Relations Board."
HOUSTON SHELL AND CONCRETE CO. 1135
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.19
Except to the extent found herein, the allegations of the
complaints in this proceeding that Respondent violated the
Act are dismissed.
19 In the event that this recommended Order is adopted by the Board
after exceptions have been filed , this provision shall be modified to read.
"Notify the Regional Director for Region 23, in writing, within 20 days
from the date of this Order, what steps 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
The law states that employees shall have the right:
To self-organization, to form, join, or assist labor
organizations
To bargain collectively through representatives of their
own choosing
To engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or
protection
And shall also have the right to refrain from any or all
of such activities except to the extent that such right
may be affected by an agreement requiring membership
in a labor organization as a condition of employment by
law.
WE WILL NOT discharge or discriminate against our
employees because they join or help International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, General Drivers, Warehouse-
men & Helpers Local Union No. 968, or any other labor
organization, or because they engage in activities
protected by law.
WE WILL NOT threaten to discharge or otherwise
harm our employees because they join or help a union,
or otherwise engage in activities protected by law.
WE WILL NOT threaten to take away benefits which
our employees have if they join or help a union or select
a union as their bargaining representative.
WE WILL NOT question our employees concerning
union membership or union activities in a way that
interferes with their right to engage in activities
protected by the law.
WE WILL NOT engage in conduct giving employees
the impression that we are seeking out information
about employees' union membership or activities, or
that we are spying on employees' union activities, and
we will not ask employees to report on union
membership and activities.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of rights
protected by law.
WE WILL offer Royce Sanford, Jessie M. Cervantes,
and Manuel A. Salazar immediate and full reinstate-
ment to their former jobs or, if those jobs no longer
exist, to substantially equivalent jobs, without prejudice
to their seniority or other rights, privileges, or working
conditions, and we will make each of them whole for
any loss of pay or benefits suffered by them as a result
of the discrimination against them.
Dated By
HOUSTON SHELL AND
CONCRETE Co., A DIVISION
OF MCDONOUGH CO.
(Employer)
(Representative) (Title)
WE WILL NOTIFY immediately the above-named individu-
als, if presently serving in the Armed Forces of the United
States, of the right to full reinstatement , upon application
after discharge from the Armed Forces, in accordance with
the Selective Service Act and the Universal Military
Training and Service Act.
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance with
its provisions, may be directed to the Board's Office,
Dallas-Brazos Bldg., 1125 Brazos Street, Houston, Texas
77002, Telephone 713-226-4296