Texas Industries, Inc.

National Labor Relations Board - Board Decisions

Apr 5, 1974

209 N.L.R.B. 1137 (N.L.R.B. 1974)

UNITED CEMENT CO.
United Cement Company, a Wholly Owned Subsid-
iary of Texas Industries , Inc. and William C.
Harmon. Case 26-CA-4776
April 5, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On December 18, 1973, Administrative Law Judge
Marion C. Ladwig issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, and the General
Counsel filed a motion to strike certain of 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions I and
briefs and has decided to affirm the rulings,
findings,2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
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 Administrative Law Judge and
hereby orders that the Respondent, United Cement
Company, a Wholly Owned Subsidiary of Texas
Industries, Inc., Artesia, Mississippi, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
1 Counsel for the General Counsel filed a motion to stoke the last 2 of
Respondent's 17 exceptions on the grounds that those 2 exceptions do not
comply with Section 102 .46(b) of the Board's Rules and Regulations We
have examined those exceptions in light of Respondent 's brief in support of
its exceptions and conclude that Respondent has substantially complied
with the specificity requirements of Section 102 46(b) when the two
exceptions are considered in context with the Respondent 's brief to which
the exceptions refer. In these circumstances, we shall deny the General
Counsel 's motion to stoke
2 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board 's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect Standard Dry Wall Products,
Inc, 91 NLRB 544, enfd 188 F 2d 362 (C.A 3, 1951) We have carefully
examined the record and find no basis for reversing his findings.
209 NLRB No. 180
DECISION
STATEMENT OF THE CASE
1137
MARION C. LADWIG, Administrative Law Judge: This
case was tried at West Point, Mississippi, on October 30,
1973.1 The charge was filed by an individual, William
Harmon, on June 20 (amended August 17), and the
complaint was issued on August 17. The primary issues are
whether the Company, the Respondent (a) unlawfully
interrogated employee Harmon about organizing for the
Union, and coerced Harmon and other carpenters by
telling them that if they were not satisfied with working
conditions on the nonunion or open-shop job, to seek
employment elsewhere, (b) induced one of the nonunion
carpenters to attend the union meeting at which Harmon
was sworn in as a member "to see what was going on," and
(c) on the morning after Harmon joined the Union,
summarily and discriminatorily discharged him, in viola-
tion of Section 8(a)(1) and (3) of the National Labor
Relations Act.
Upon the entire record,2 including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and the Company, I
make the following:
FINDINGS OF FACT
1. JURISDICTION
The Company, a corporation, is engaged in the construc-
tion of a cement plant near Artesia, Mississippi , where it
annually receives products valued in excess of $50,000
directly from outside the State . The Company admits, and
I find, that it is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act, and that
United Brotherhood of Carpenters and Joiners of America,
Local No. 387, herein called the Union , is a labor
organization within the meaning of Section 2 (5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Although the Company has some union subcontractors
on the cement-plant construction job, it follows its
customary policy of hiring its own employees (carpenters,
operators, utility men, laborers, etc.) on an "open shop" or
nonunion basis. Under this policy, it hires both union and
nonunion employees, upon the understanding that they
will work under the Company's conditions, without
reference to strict craft lines , on "Whatever they are
qualified to do."
On one occasion, as the 2 1/2-year construction job
(which began about November 1972) progressed, Con-
struction Superintendent Francis Mires explained to
I All dates are in 1973 unless otherwise stated
2 By agreement of the parties, the employee attendance records
submitted after the close of the trial are received as Joint Exhibit 1-I
through 1-138.
1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carpenters Union Business Agent Marvin Taylor, "I have
no objection to hiring your [union members ] and your [$51
scale is okay, but these Iron Workers now has got an $8 or
$9 per hour scale and, if we [operate as a union
contractor], we would have to take them and we can't
afford that."
Thus, the Company was willing to, and did, employ some
union carpenters, but it vigorously opposed signing a union
contract and working under union rules along craft lines.
Superintendent Mires admittedly told the employees that
the job was an open shop, and it was going to stay that
way.
B. Alleged Coercion
Sometime in March, as carpenter Harmon credibly
testified, he was talking at the job about the Union with
four or five other employees. The following afternoon,
Superintendent Mires stopped him on the job and said, "I
hear you are not satisfied with your job." Mires then said
he understood that Harmon had been talking about the
Union and saying that the electricians were drawing more
money than the carpenters were. Mires added, "We don't
have a umon job and are not going to have a union job,"
and "If you are not satisfied with your job, you can leave."
(Carpenter Wesley Turnage credibly testified that he
recalled hearing Mires tell Harmon that he heard that
Harmon had been complaining about the electricians being
union and making more money. Mires denied ever having
any conversation with Harmon concerning the electricians
getting more money, but Mires did not impress me as being
a candid witness, and I discredit the denial.) The next day,
Mires went up to Harmon and "said that he had found out
who the agitator was and that he had found out it wasn't
me . . . and told me not to worry about it." I find that this
interrogation of Harmon about his umon activity, and the
statement that Harmon could leave if he was not satisfied
with his job, were coercive and violated Section 8(a)(1) of
the Act. The subsequent assurance, that Harmon should
not worry about it because Mires had found that someone
else was the "agitator," did not of course dispel the
interference with Harmon's lawful participation in union
activity, but instead, I find, has some bearing upon the
Company's motivation for summarily discharging Harmon
on the morning after he was sworn in at the union meeting.
On Friday, April 20, when Harmon was off work with
the flu, Superintendent Mires met with 10 to 15 of the
carpenters, and again showed his vigorous opposition to
the union organizational effort. As credibly testified by
carpenter Billy Sloan, Mires stated that some agitators
were trying to make the guys unhappy with their jobs and
"he wanted to tell them that if they weren't satisfied with
their job, to get them another one," and that the job started
nonunion (or open-shop) and it was going to stay that way.
As recalled by carpenter Wesley Turnage, Mires said that
he had heard that there had been some agitators on the job
who were dissatisfied and were trying to get the Union in,
but the job started out as a nonunion (or "open") job and it
was going to stay that way. Carpenter John Brown, a
defense witness, testified that he did not recall the exact
words used at the April meeting, but Mires said "that the
people that wasn't satisfied with what they was making and
wasn't satisfied with their job, the best thing to do was to
pick up their tool box and he'd pay them off." (Mires
testified that he made the speech after employees in the
plant told him "they had been requested to join the umon."
Although he claimed he was concerned about production
and about employees being pressured into joining a union,
and denied that he ever used the word agitator or referred
to the job as nonunion , he admitted telling the employees
that "we had started this job as an open shop job and we
had built several more [plants] the same way," and "If any
of you are not happy with your job, then my judgment
would be for you to get you a job you like better.") I credit
Sloan's testimony that Mires told this group of carpenters
(like he had told Harmon earlier) that if they were not
satisfied working on the (nonunion or open -shop) job, they
could go elsewhere to work . I find that this statement was
coercive , and unlawfully interfered with the employees'
union activity , in violation of Section 8(aXl) of the Act.
The following Tuesday, April 24, when carpenter
Harmon and several other carpenters were planning to
attend the regular Tuesday evening meeting of the Union
at Columbus, Harmon overheard Superintendent Mires
ask carpenter Brown "was he going to the union meeting."
(When called as a defense witness, Brown acknowledged
that Harmon had invited him to attend the meeting and join
the Union.) Harmon heard Brown reply to Mires that "he
didn't know . . . he didn't want to lose his job." Mires said
Brown would not lose his job, "that he had a job there just
as long as he wanted it, to go on over to the union meeting
and see what was going on." (Carpenters Wesley Tumage
and Jerry Nolan saw Mires talking to Brown, but only
Harmon was close enough to overhear what was said. I
discredit Mires' denial that he recalled mentioning a union
meeting to Brown on April 24, and his denial that he ever
asked an employee to attend a union meeting . I consider
Brown 's testimony later .) Before going into the meeting
that evening, Harmon heard Union Business Agent Taylor
ask Brown (who arrived early) if he wanted to join the
Union. Brown said he did not know, but wanted to go to
the meeting. Upon learning that he could not enter unless
he became a member , Brown wrote out a check , entered
the meeting, and joined the Union with Harmon and
others. When appearing as a reluctant defense witness, as
discussed later , Brown acknowledged that he later told
Mires that he had joined the Union, explaining , "I didn't
want no misunderstanding."
Having credited Harmon's testimony that he overheard
Superintendent Mires induce carpenter Brown to attend
the union meeting on April 24 and "see what was going
on" (Mires thereby suggesting that Brown should report
back to him what company employees were supporting or
participating in the union organizational drive ), I find that
the Company in so doing coerced the employees and
interfered with their union activity in violation of Section
8(a)(1) of the Act. I find that this conduct was particularly
coercive in view of the summary discharge of Harmon the
following Wednesday morning , after Brown had seen him
join the Union at the Tuesday evening meeting, and in
view of the earlier statement by Mires to Harmon that he
should not worry because Mires had learned that he was
not the "agitator" on the job (for the Union).
UNITED CEMENT CO. 1139
C. Discharge of Harmon
1. Reasons asserted
Carpenter Harmon was employed on January 9. Both
Superintendent Mires and Construction Foreman Braun
(the only company supervisors on the job) agreed at the
trial that Harmon did satisfactory work.
On Wednesday morning, April 25, Harmon was sum-
marily discharged by the Company without any prior
warning. As found above, Superintendent Mires had
earlier suspected him of being a union agitator, but had
then heard that the "agitator" was someone else. Thereaf-
ter, Harmon had invited carpenter Brown to attend the
Union's regular Tuesday evening membership meeting in
Columbus on April 24, and during that day Mires had
also spoken to Brown and told him to go to the meeting
and "see what was going on." Harmon joined the Union
that evening. Thus, the sudden discharge occurred within a
few hours after Brown observed Harmon being sworn into
the Union.
In its brief, the Company contends that the decision to
discharge Harmon had been made the afternoon before
Harmon joined the Union, that "there is not one iota of
testimony that Harmon was involved in any efforts on
behalf of the Union prior to his discharge," and "There is
no testimony whatever from which it can be inferred that
any of Respondent's supervisors knew or even suspected
that Harmon was engaged in union activity when he was
discharged." The Company contends that Harmon "was
discharged because of his record of absenteeism which
would occur without advance notice being furnished to
Respondent, because he lied to Respondent concerning
illness and because he disobeyed the orders of his
immediate supervisor directing employees to remain on the
job."
However, following the discharge, Superintendent Mires
indicated on two different occasions that the real reason
for Hannon's discharge was Harmon's activity as a union
organizer or "agitator."
About a week after the discharge, Union Business Agent
Taylor went to the construction site to confer with a
representative of a union subcontractor. While there, he
talked with Superintendent Mires about Harmon. As
Taylor credibly testified, Mires "told me that he had had to
let Mr. Harmon go, that he was causing trouble on the job
... an uproar among the people, that he . . . was an
agitator and a troublemaker as far as the union was
concerned." Mires also said that Harmon "had been
involved in some trouble or union activity of some sort
over at Lee Mall in Columbus." (Harmon, who was also a
union electrician-a member of IBEW-had worked on
that shopping center, where there had been a strike during
the construction.) I note that without explanation, Taylor
did not pursue the organizational activity after the
Company refused to go to a card count in May, and did
not file the charge herein on Harmon's behalf. (Mires
denied that he ever talked to Taylor about Harmon, and
testified, "As far as I'm concerned, he didn't even know
Billy Harmon, to my knowledge." I discredit the denials.)
Similarly on May 30, when carpenter Jerry Nolan quit
because of pain from an earlier accident, he was talking
with Superintendent Mires about what had happened to
Harmon. Clearly referring to Harmon's union activity,
Mires said "he just couldn't have none of that kind of stuff
and he didn't think Billy would ever do him like that," that
he "heard that Billy got in some union trouble on some
other job" and "I just can't have none of that kind of
stuff."
Neither of these comments by Mires after Harmon's
discharge could have referred to the asserted reasons for
the discharge. I now consider those assigned reasons.
2. The circumstances
a. Sick leave
On Thursday, April 19, after working 9 1/2 hours,
Harmon admittedly advised both Foreman Braun and
Superintendent Mires that he was sick and had to go to a
doctor. Mires gave him permission to leave. As Harmon
credibly testified, Mires had told the employees that day
that "everybody didn't have to work that Saturday," April
21, because Sunday was a holiday (Easter).
Harmon had the flu. He had been out sick twice in
January (on January 16 and 20), once in February (on
February 21), none in March, and twice in April (on April
2 and 5), a total of 5 days in 3 1 /2 months. He went to the
doctor on Friday morning, April 20, and stayed in bed
most of that Friday and Saturday. He was out of the house
on Saturday for only about 30 minutes , when he drove his
pickup truck to pick up his wife from work about 5 or 5:30
p.m., and stopped at a service station on the way back
home, to give his brother two tires he was hauling.
Superintendent Mires happened to pass by, and saw
Harmon at the service station.
Harmon reported back to work on Monday, April 23. As
he credibly testified, Superintendent Mires asked him
where he was on Saturday; Harmon said he was sick, and
asked if Mires wanted him to bring the doctor' s excuse.
Mires said, "No, I don't need one." That was all the
conversation. (Although the Company vigorously attacks
Harmon's credibility, Harmon as a witness on the stand
impressed me as being an honest , forthright witness.)
According to Superintendent Mires, he did give Harmon
permission to leave Thursday afternoon, but he claimed
that he told Harmon, "I want you to know that we are
going to work . . . Friday and Saturday . . . and I'm going
to expect you here if you are not sick." He testified that he
saw Hannon at the service station on Saturday, but
claimed it was around 10:30 a.m. (instead of between 5 and
5:30 p.m.). He testified that on Monday morning, April 23,
he asked Hannon why he did not come to work, and that
Harmon said he was still sick in bed.
Q. Did he offer you a doctor's excuse at that time?
A. Well, yes, he says, "I've got a-
Mires then hesitated, changed his answer, and denied that
Harmon offered him a doctor's excuse that morning. He
testified that his one question and Harmon's one answer
were the entire conversation; that he did not mention
seeing Harmon on Saturday; that "I just went on about my
business," and never checked to see if Harmon had been to
1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a doctor. (Foreman Braun , also, admitted never checking
on Harmon's visit to the doctor.) Thus, according to this
version, Mires told Harmon to be at work Saturday if
Harmon was able; then he saw Harmon at a service station
on Saturday morning (instead of being at work); yet he
dropped the matter on Monday morning when Harmon
claimed to be still sick on Saturday-without conducting
any investigation. (I note that the employee attendance
records appear to indicate that the Saturday before Easter
was an optional day of work for the carpenters. A total of
six carpenters, including a lead carpenter, did not work
that Saturday; one carpenter worked only 5 hours; and the
remaining carpenters worked 8 hours, instead of the
customary 9 to 1 l hours on nonrainy days.)
I find Mires' version to be implausible, and discredit his
testimony that he told Harmon to be at work on Saturday
if he could and that it was about 10:30 Saturday morning
when he saw Harmon at the service station, and his denial
that he told Harmon he did not need a doctor's excuse to
prove the illness. (As witnesses, both Mires and Foreman
Braun appeared to be less than candid, and willing to
fabricate testimony in an effort to support the Company's
cause.) I also discredit the testimony given by Braun (and
not mentioned by Mires) that Braun and Mires on that
Monday talked about Harmon lying and whether they
should "talk to him and see if we can't improve on his work
record . . . and see if we can get this man to come a good,
productive worker, because his work is satisfactory."
Braun appeared to be fabricating the purported conversa-
tion as he went. (Although Harmon worked that Monday
and Tuesday, neither supervisor questioned his being sick
or seeing a doctor, or accused him of lying-until the
morning after he joined the Union Tuesday evening.)
b. Leaving work on Tuesday
It began raining hard on Tuesday afternoon after lunch.
The carpenters and other employees took shelter in the
crew shed (which was divided in three separate parts) and
in the saw shed . It continued to rain.
Harmon was waiting with carpenters Wesley and W. F.
Turnage in one part of the crew shed with Foreman Braun.
(Carpenter Sloan, a General Counsel witness, was in
another section of the crew shed and did not see Harmon
and the Turnages.) After waiting for about 30 minutes with
Braun, Harmon and Wesley Turnage (as they credibly
testified) began joking, or "kind of arguing," over who
would go out in the rain and get the car for Harmon and
the Turnages to leave. Braun said, "I guess we are going to
knock everybody off," and told them, "Well, there's no
need of coming back in the morning if it looks like it's
going to rain." (Employees were not given show-up time,
but were paid only if the Company required them to wait.)
Harmon and the Turnages were among the first to leave.
Both Superintendent Mires and Foreman Braun, when
testifying about what happened that Tuesday, appeared to
be giving fabricated accounts. When called as an adverse
witness by the General Counsel, Mires first pretended that
Harmon left alone . Mires testified that Braun "came in and
told me that he . . . instructed them all to stay there, that
all of them . . . stayed except Harmon, and he says,
`Harmon went and got in his car and left,' and I said,
`Well, we can 't have this going on all the time.' [Mires later
admitted that this was the first time it ever happened.] I
asked Braun what he wanted to do , and he says , `I'm going
to recommend terminating him.' . . . I said , `Okay. I will
get his check up.' " (Emphasis supplied .) Mires testified
that this was their entire conversation about discharging
Harmon.
When later exanuned by the company counsel, not only
did Superintendent Mires change his story and testified
about two persons leaving together (whereas , in fact, there
were three-Harmon and the two Turnages), but also
Mires included in his purported conversation with Fore-
man Braun all the Company's asserted reasons for
discharging Harmon . Despite the fact that he had earlier
testified that he and Braun had talked only about Harmon
leaving alone , against instructions , plus his comment to
Braun "we can't have this going on all the time," his
inquiring about what Braun recommended , and Braun's
answer, this time Mires testified that all the employees
obeyed Braun's instructions to stay except two, Harmon
and Wesley Turnage, and that he and Braun:
reached a decision that afternoon that [Harmon] had
been absent so much and did not notify us at any time,
and he didn't tell us the truth about why he laid off. He
said he was sick and I saw him down in town. We
decided [that afternoon] the best thing to do was go
ahead and terminate him ... .
Foreman Braun had a third, inconsistent , version of the
purported conversation that Tuesday afternoon between
himself and Superintendent Mires . Braun testified that he
checked and found that Harmon and Wesley Turnage had
left without permission and, reporting this to Mires, said,
"Frank, the only way that I can control this, keep this
construction business going and be the boss , is that we
terminate Billy Harmon." Thereupon Mires "said he felt
this was the best action that we could take," that "We had
to control our people in some way, otherwise , we would
just throw open the gates and let people come and go as
they wanted to."
Foreman Braun denied that he had given Harmon and
Wesley Turnage permission to leave that afternoon, and
claimed (contrary to their testimony) that he did not see
them leave . Yet, Braun testified that when he discharged
Harmon the next morning , telling him that he "left work
yesterday afternoon," Harmon responded, "Well, you gave
me permission." Moreover, the documentary evidence,
introduced by agreement after the close of trial, belies
some of Braun 's testimony. The employee attendance
records for April 24 show that 13 of the carpenters, as well
as Harmon and the two Turnages, were paid for 6 hours of
work that day (presumably for 5 hours from 7 o'clock until
noon, and 1 hour from 12:30 until 1:30 p.m. when Harmon
and the others began leaving). However, according to
Braun , about "another hour had gone by" he thought
before he told the others "they could leave and go home."
Undoubtedly the Company would not have paid Harmon
and either of the Turnages for the full time Braun held the
other employees waiting if they had left an hour earlier.
Other testimony also suggests that no decision was made
to discharge Harmon that Tuesday afternoon (before he
UNITED CEMENT CO.
joined the Union that evening), and that these conflicting
versions of the purported Tuesday afternoon conversation
between Superintendent Mires and Foreman Braun were
fabricated . While still testifying as an adverse witness,
Mires claimed that before 7 o'clock on Wednesday
morning, April 25, he talked with Braun about Harmon:
Q. And what happened in that conversation?
A. He told me he would like to discharge him and I
said, "Okay," I said, "That's-
Q. (Interposing) Now wait a minute . I thought you
had already testified that the decision had been made
the day before.
A. Yeah, we made the decision the day before, but
he come the next morning and asked me if we were
going to still discharge him and I said , "Yes. I 've got his
check made out."
Thus , Mires' first version was that Braun said that
Wednesday morning that "he would like" to discharge
Harmon . His second version was that Braun "asked me if
we were going to still discharge him." Again , Braun had a
third, inconsistent , version. When called as a defense
witness , Braun testified that he went to the office about
6:30 or 6 : 45 that morning, and Mires asked , "Are you
[Braun] going to terminate him?" and Braun purportedly
answered, "Yes, I am going to give him his check."
c. Belated claim of excessive absenteeism
Although the testimony by Harmon , Superintendent
Mires, and Foreman Braun concerning what transpired on
Wednesday morning is conflicting , all three witnesses (plus
carpenter Wesley Turnage , who reported for work with
Harmon that morning and overheard the discharge
conversation) all agreed that nothing was mentioned that
Wednesday morning about absenteeism being a reason for
Harmon's discharge . Braun, who informed Harmon of his
discharge , mentioned only Harmon 's leaving without
permission the day before , and Braun 's supposed belief
that Harmon had lied about being ill and going to a doctor
the previous week. (Braun testified that Harmon , concern-
ing the illness , responded, "Well, I've got a doctor's
certificate to prove that I was sick," whereupon Braun
stated , "Well, if you have a certificate , that's fine. . . . I
cannot put you back to work.") Neither Braun nor Mires
said anything to Harmon about excessive absenteeism.
Harmon's attendance record, which the Company
introduced into evidence , shows that Harmon was absent a
total of 26 times (excluding Sundays) during the 3 1/2
months of his employment , from January 9 to April 25. An
analysis of the other carpenter attendance records, now in
evidence, reveals that these 26 days of absences include 10
Saturdays when the carpenters were off (January 13 and
27, February 10 and 24, March 10, 17, 24, and 31, and
April 7 and 14); 2 Saturdays when only a partial crew
worked (February 3 when 9 carpenters were off, and April
21, the day before Easter , when a lead carpenter and five
other carpenters were off-and, as found above , Superin-
tendent Mires advised that everybody did not have to
work); 2 rainy days when no work was done (February 1
and March 16); and 6 rainy days when only a partial crew
1141
worked (January 26 when 18 carpenters did not work and 4
worked from I to 2 hours , February 8 when 21 carpenters
did not work and 4 worked 2 to 2 1 /2 hours, February 13
when 19 carpenters did not work and 6 worked 2 hours,
March 2 when 9 did not work and 19 worked 3 hours,
April 16 when 6 did not work and 16 worked 1 1/2 or 2
hours , and April 18 when 4 did not work and 16 worked 1
hour). Thus, 20 of the 26 days on which Harmon was
absent were Saturdays or rainy days which were either
nonworkdays or partial workdays. On the remaining 6 days
(and the Saturday partial workday before Easter ), Harmon
was off sick.
At the trial, Superintendent Mires testified that Harmon
was absent 14 days in 15 weeks of employment . However,
on cross-examination , he admitted that he "couldn't
answer . . . right now" how many of those days it rained,
"I would have to look at the records . I don't know if we
have got a record or not on the days it rained . The only
way you can tell is look at the records and see if anybody
else worked on those days."
Harmon credibly testified , and Superintendent Mires
and Foreman Braun admitted , that neither Mires nor
Braun had ever talked to him about absenteeism or his
attendance record . When Braun was asked on cross-
examination if he followed the practice of talking to
employees who had an attendance problem, Braun
answered that he did . Yet, he positively denied that he had
ever, at any time, talked to Harmon about his attendance
record . Then he testified:
Q. (By Mr . Irby) Before that Friday and Saturday
he missed [April 20 and 21 ] how was his attendance
record?
A. As best as I remember , it was bad.
Q. Bad?
A. Yes, sir.
Q. But you didn 't talk to him about it , even before
that?
A. No, sir.
Q. It wasn 't bad enough to get your attention that
much?
A. (No response.)
JUDGE LADWIG : What is you answer?
THE Wrr.Ess: Pardon. Was that directed as a
question?
Q. (By Mr . Irby) If his record was bad, why didn't
you talk to him before?
A. Well, I think I did talk to him once about it.
[Emphasis supplied.]
Thus , after positively denying twice that he had talked to
Harmon about his attendance record , he changed his
testimony and claimed , "I think I did ... once." (Again,
he appeared not to be a candid witness , and I discredit this
belated claim.)
The Company did have a problem with absenteeism. The
carpenter attendance records show that during I week in
February, on 3 nonrainy days (when other employees were
working 9 hours a day), there were 7, 10, and 12 carpenters
absent (on February 14, 16, and 17). It was evidently at
that time that Superintendent Mires called a meeting and
impressed the importance of regular attendance . However,
1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it is clear that this speech was not directed to Harmon. He
had not at that time been absent that month on any
nonrainy day.
Harmon's six absences on full workdays (plus the
absence on the Saturday before Easter) compared favora-
bly with the absences of a number of other employees
during the same period of time. As examples, carpenter J.
C. McGee (who is still employed) had 10 such absences;
and utility men Harris Lucas, James Mosley, and J. A.
Rogers (all still employed) also had 10 such absences (and
Mosley was also absent, like Harmon, on the Saturday
before Easter). Moreover, the Company admittedly was in
need of carpenters, and had not discharged any carpenter
for absenteeism before discharging Harmon. The only
employees it had discharged purportedly for absenteeism
were J. E. Brabham, an unclassified employee (Joint Exh.
1-12); laborers S. G. Clark, Jr. (1-29), J. S. Simmons
(1-109), A. C. Smith (1-116), and J. A. Tate (1-123); and
carpenter helper D. A. Anderson (1-2). The attendance
records show that these unskilled employees were dis-
charged while absent, and not from the job as Harmon
was. Also, they were either absent for a long time, or were
irregular, short-term employees, whereas Harmon was a
regular, full-time employee for 3 1/2 months.
The Company, in its brief, contends that Harmon
"persisted in refusing to report in advance as to when he
would be absent." However, if this had happened,
undoubtedly Superintendent Mires or Foreman Braun
would have discussed it with Harmon, and neither did.
Harmon credibly testified that he would tell Braun when
he would not be in, or would call the office, and talk to the
guard in the absence of the secretary. He recalled sending
word once by employee Turnage (contrary to his pretrial
affidavit that "I never had to send word by other
employees"). He never notified Mires, as Mires confirmed.
When Harmon was sick and left work, he would notify
Braun who would tell him to return when he felt better.
(Mires claimed that no employee or supervisor ever
informed him that Harmon had reported being absent, and
Braun testified, "I don't recall" ever having prior knowl-
edge that Harmon was not going to be there; "I do not
keep a record" of word being sent in.) I find that the
contention that Harmon refused to report his absences in
advance is a mere afterthought.
3. Company knowledge
The evidence shows that the Company first suspected
Harmon of being a union "agitator," and then heard that
someone else was doing the union organizing. The
evidence also shows that the Company was vigorously
opposed to its nonunion (and some union) carpenters
seeking union representation and a union contract, which
the Company feared would limit its assignment of
employees on a noncraft basis. Its concern over the
prospects of union organization was clearly shown by its
calling of a meeting of carpenters on April 20 and its telling
them that the job started nonunion or open-shop and
would stay that way and "if they weren't satisfied with
their job, to get them another one," and by its inducing
nonunion carpenter Brown to attend the Tuesday evening,
April 24 union meeting to "see what was going on."
The evidence also shows that on the morning after
carpenter Brown observed Harmon being sworn in at the
Tuesday evening meeting, the Company acted as if it had
learned that its original suspicion about Harmon was
correct : that he was a union "agitator." Without prior
warning, it summarily discharged Harmon . At the time, it
falsely (as found above) accused Harmon of leaving work
without permission the afternoon before, and of lying
about being sick and seeing a doctor the preceding week.
Later, as an afterthought, it accused him of excessive
absenteeism and not calling in , although admitting that it
was not aware of how many of his absences were on days
when it rained and admitting that it had never discussed
his attendance record with him. Then, thereafter, the
Company made statements to the union business agent and
a quitting employee , indicating that Harmon's union
activity was the real reason for the discharge.
Yet, the Company vigorously denied that it even
suspected Harmon's union activity, and introduced car-
penter Brown as a defense witness , who denied that the
Company asked him to attend the union meeting and
denied that he reported back anything to the Compa-
ny-except that he reported, after Harmon's discharge,
that Brown himself had joined the Union that evening.
Brown was still employed by the Company, and he
impressed me as being a reluctant witness, who was fearful
for his job. I do not accept, as convincing testimony,
Brown 's denials.
After weighing all the evidence, I find that the Company
did have knowledge of Harmon's union activity at the time
it summarily discharged him on the morning after he
joined the Union, that it reached the decision to discharge
Harmon after receiving confirmation of its earlier suspi-
cion that he was a union "agitator," that the asserted
reasons for the discharge were pretextual, and that, as
contended by the General Counsel, Superintendent Mires
utilized the discharge as "the most efficient means at hand
for squelching any organizational desires of his employ-
ees." I therefore find that the Company discriminatorily
discharged Harmon in violation of Section 8(aX3) and (1)
of the Act.
CONCLUSIONS OF LAW
1. By discharging William Harmon on April 25, 1973,
because of his union activity, the Company engaged in
unfair labor practices affecting commerce within the
meaning of Section 8(aX3) and (1) and Section 2(6) and (7)
of the Act.
2. By coercively interrogating an employee and by
telling employees that if they were not satisfied working on
a nonunion or open-shop job they could leave and go
elsewhere to work, the Company violated Section 8(a)(1) of
the Act.
3. By inducing an employee to engage in surveillance of
a union meeting, the Company also violated Section 8(a)(1)
of the Act.
REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, I find it necessary to order
UNITED CEMENT CO.
the Respondent to cease and desist therefrom and to take
certain affirmative action designed to effectuate the
policies of the Act.
The Respondent having discriminatorily discharged an
employee, I find it necessary to order the Respondent to
offer him full reinstatement, with backpay computed on a
quarterly basis plus interest at 6 percent per annum as
prescribed in F. W. Woolworth Company, 90 NLRB 289
(1950), and Isis Plumbing & Healing Co., 138 NLRB 716
(1962), from date of discharge to date reinstatement is
offered.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDERS
Respondent, United Cement Company, a wholly owned
subsidiary of Texas Industries, Inc., Artesia, Mississippi, its
officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against any
employee for joining or supporting Carpenters Local 387,
or any other union.
(b) Coercively interrogating any employee about union
support or union activity.
(c) Informing any employee that if he is not satisfied
working on a nonunion or open-shop job he can leave and
work elsewhere.
(d) Asking any employee to engage in surveillance of a
union meeting.
(e) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer William C. Harmon immediate and full
reinstatement to his former job or, if his job no longer
exists , to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges, and
make him whole for his lost earnings in the manner set
forth in the "Remedy" section of this Decision.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this recommended Order.
(c) Post at its plant near Artesia, Mississippi, copies of
the attached notice marked "Appendix."4 Copies of the
notice, on forms provided by the Regional Director for
Region 26, after being duly signed by Respondent's
authorized representative, shall be posted by the Respon-
dent immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
1143
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 26, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
3 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
4 In the event the Board 's Order is enforced by a Judgment of the United
States Court of Appeals , the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found, after
trial, that we violated Federal law by discharging an
employee for supporting a union and by otherwise
interfering with our employees' right to join and support a
union:
WE WILL offer William Harmon full reinstatement,
with backpay plus 6-percent interest.
WE WILL NOT discharge any of you for joining or
supporting Carpenters Local 387 or any other union.
WE WILL NOT tell any of you that if you are not
satisfied working on a nonunion or open-shop job you
can leave and work elsewhere.
WE WILL NOT ask any of you to attend any union
meeting to report back to us who attended or what took
place.
WE WILL NOT unlawfully interfere with your union
activity in any similar manner.
UNITED CEMENT COMPANY
(Employer)
Dated By
(Representative) (Title)
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,
Clifford Davis Federal Building, Room 746, 167 North
Main Street, Memphis, Tennessee 38103, Telephone
901-534-3161.