Texas Industries, Inc.

National Labor Relations Board - Board Decisions

May 19, 1969

175 N.L.R.B. 1093 (N.L.R.B. 1969)

TEXAS INDUSTRIES, INC. 1093
Texas Industries , -Inc. and International Union of
Operating Engineers; Local 819, AFL-CIO. Case
16-CA-3444
May 19, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND ZAGORIA
On March 13, 1969, Trial Examiner Lloyd S.
Greenidge issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. The
Trial Examiner further found that the Respondent
had not engaged in - certain other unfair labor
practices alleged in the complaint and recommended
that those allegations be dismissed. Thereafter the
Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Texas
Industries, Inc., Tarrant County, Texas, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LLOYD S. GREENIDGE, Trial Examiner: This
proceeding, under the National Labor Relations Act, as
amended (29 U.S.C. Sec. 151, et. seq.), herein called the
Act, brought on by a complaint issued by the General
Counsel of the, National Labor Relations Board on
November 29, 1968,' based upon original and amended
charges filed by International Union of Operating
Engineers, Local 819, AFL-CIO, herein called the Union,
against Texas Industries, Inc., herein called Respondent
and, at times, the Company, on October 8 and 28 and
November 27, was heard before me at Fort Worth, Texas,
on January 13, 1969. The case presents questions as to
whether Respondent (1) engaged in various acts of
interference, restraint, and coercion in violation of Section
8(a)(1), and (2) discharged one employee, issued a warning
slip to another, and refused to assign a newer truck to a
third because of their union activities in violation of
Section 8(a)(1) and (3).
All parties, appearing and participating throughout by
counsel or other representative, were afforded full
opportunity to present evidence and contentions and to file
briefs. After the close of the hearing, the General Counsel
and Respondent filed briefs. These have been carefully
considered.
Upon the entire record in the case, including my
evaluation of the reliability of the witnesses based upon
the evidence and my observation of their demeanor, I
make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT AND THE LABOR
ORGANIZATION INVOLVED
The complaint alleges, Respondent's answer admits,
and it is hereby found that, at all times material herein,
Respondent has been a corporation duly organized under
the laws of the State of Delaware, with its principal office
and places of business in Dallas, Texas, and other
facilities in the States of Texas, Louisiana, and
Oklahoma, where it manufactures, sells, and distributes
building materials, including ready-mix concrete, masonry
products, structural concrete, and related products. During
the 12-month period prior to issuance of the complaint,
Respondent's total sales exceeded $500,000, and products
valued at more than $50,000 were shipped from its Texas
facilities directly to points outside the State.
It is, therefore, found that Respondent is now, and at
all times material herein has been, an employer within the
meaning of Section 2(2), engaged in commerce and in a
business affecting commerce within the meaning of
Section 2(6) and (7) of the Act, and the jurisdictional
standards of the Board.
It is also found, on the basis of the pleadings herein,
that the Union is, and at all times material has been, a
labor organization within the meaning of Section 2(5) of
the Act.
II. BACKGROUND
The events with which we are here concerned had their
genesis in an effort by the Union, initiated in December
1967, to organize all production and maintenance
employees employed by the Respondent at its ready-mix
plants in Tarrant County, Texas, including all
truckdrivers, and culminated with the Union winning a
Board election on March 15 conducted pursuant to the
Regional Director's Decision and Direction of Election
issued on February 21. (Case 16-RC-4816.) Timely
objections to the election were filed by the Respondent
and were overruled on May 20 by the Regional Director
in a Supplemental Decision and Certification of
Representative. Thereafter, Respondent filed with the
Board a request for review of the Regional Director's
Supplemental Decision. On June 13, the request was
' Unless otherwise indicated , all dates herein refer to the year 1968.
175 NLRB No. 176
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
denied.
On July 12, the General Counsel issued a complaint
based on a charge filed by the Union alleging that the
Respondent had refused to bargain in the unit found
appropriate in Case 16 -RC-4816 in violation of Section
8(a)(1) and (5). (Case 16-CA-3365.) On August 5, counsel
for the General Counsel filed a motion for judgment on
the pleadings . The motion was granted by Trial Examiner
Charles W. Schneider in his Decision dated September 25
and his findings , conclusions , and recommendations were
adopted by the Board on November 29. (173 NLRB No.
142.)
In the interim , specifically on June 19, Respondent's
employees went out on strike . Our present concern is with
certain events that occurred subsequent to July 3, the date
the employees returned to work.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Interference, Restraint , and Coercion
The complaint, as amended at the hearing, alleges that
Respondent , through its agents and supervisors, R. P.
McDaniel, J. B. Tate, and Bill Glass, orally imposed
stricter rules on its employees who engaged in union
activities , threatened them with discharge and other
reprisals if they became or remained union members or
supported the Union, and warned them that their activities
on behalf of the Union were being kept under surveillance
by agents of the Respondent. The answer admits the
agency and supervisory status of McDaniel , Tate, and
Glass but denies that they committed any of the violations
alleged.
Because of certain personal problems, employee LeRoy
Neally, the known union leader in the plant, did not
return to work until July 8. According to the credited
testimony of Neally, Fleet Supervisor R. P. McDaniel
greeted him with the following remarks : "LeRoy, you are
welcome to come back to work but I want to tell you any
more of this union talk and we'll have to do something
about it." To Neally's reply that he will take care of his
job, McDaniel again told Neally that the Company will
definitely take action against him if there was any more
union talk on the job. Neally's testimony is corroborated
in all essential particulars by employee Don Orr who was
present at the time of the conversation. While not denying
the statements attributed to him by Neally, McDaniel
averred that he extended to Neally the same welcome he
had given the employees who returned on July 3 and, as in
the earlier instance, told Neally that the Company
expected a fair hour ' s work for an hour ' s pay. McDaniel
also testified that, in the same conversation , he directed
Neally, whom he had observed talking to Orr on company
time, to knock off the "horseplay" and go to work.
Both Neally and Orr testified, without contradiction,
that they were aware of no company rule that barred
solicitation during working hours, that solicitation at such
times was permitted for other causes such as collections
on behalf of sick and deceased employees and on behalf of
the United Fund. In fact, McDaniel admitted that
employees were free during working hours to engage in
conversations with each other . Since there was no rule
against solicitation and as general conversation during
working time was permitted , it is evident and I find that
by directing Neally, the union leader, not to engage other
employees in union talk , McDaniel imposed a stricter rule
upon Neally because of his known union activities. In so
doing, Respondent violated the Act.' Moreover,
considering the absence of any evidence that Neally was
ever told that his work was unsatisfactory, McDaniel's
statement that Neally's union talk on company time might
cause the Company to do something about it was a veiled
threat that because of Neally's support of the Union the
Company might look for an excuse to discharge him.
Several violations are assigned directly to Supervisor
Bill Glass. On or about August 26, while Neally was
working on his truck at the Lawnwood facility in Fort
Worth, Glass walked up to Neally and said that he was
sorry he had missed Neally in Dallas a few days ago.
Neally replied that he and one Chuck Gassett went to
Dallas to discuss union matters with Mac, an employee at
the Dallas plant, and that someone, not identified by
Neally, invited him into the garage . Neally, who was
stationed in Fort Worth, admitted that he had not
requested permission from the Company to enter the
Dallas premises . Glass told Neally that, due to the
isolation of the Dallas plant, the Company had had
problems with employees going on its property to drink or
to entertain women and , for this reason , had a rule
against loitering on or entering company property without
permission. According to the credited testimony of Glass,
Glass then instructed Neally to identify himself in the
future when he sought to enter the Dallas plant. First,
Neally disclaimed knowledge of the rule then asked if
Glass was referring to a rule he allegedly had "postdated"
to 1962, a period prior to Neally's employment. Neally
testified that, in the past, employees have gone on
company property to wash automobiles , to play dominoes
and to talk and, in support , cited an instance, prior to
December 1967, when he entered the Company's premises
to change the oil and to check the filter in his automobile.
Neally added , however , that , on the stated occasion, he
had sought and obtained permission from Shop Foreman
Bob Carter to enter the property. In the end, Glass told
Neally that he (Neally) knew what would happen to him if
he did not take care of his job.
Sometime during the first week in September, Neally
was called to Tate's office in Lawnwood where Glass told
Neally he was checking a "rumor " that Neally was telling
employees they must have a union card to work for the
Company. Neally denied the accusation and then related a
conversation he had had with one Little, the employee
who, apparently, reported the matter to Glass. After a full
recitation of the conversation, Glass, according to the
uncontroverted and credited testimony of Neally, stated,
"LeRoy, you know we have stooges in these jobs." Neally
remarked that he was aware of the fact but was surprised
that Glass had admitted it. Glass then affirmed his
previous statement asserting , "Well, that' s what they are,
you know it and I know it and everyone else knows it."
And, as he had done before, Glass reminded Neally that
he knew what would happen to him if he did not take care
of his job. Glass did not flatly deny the statements
charged to him by Neally, testifying only that the subject
of Neally tending to his job came up in connection with a
general discussion of the obligation an employee owes to
his employer vis-a-vis a union during a strike . In this
regard, Glass told Neally that they "better not hit the
same job at the same time" because he believed an
employee's obligation to his "job" required that he cross a
picket line . Neally disagreed and, according to the
credited testimony of Glass, expressed an "aversion"
towards employees who crossed picket lines.
'See Imperial Laundry and Cleaners . Inc., 165 NLRB No. 37.
TEXAS INDUSTRIES, INC. 1095
From the above incidents , the General Counsel deduced
that the Respondent , by its agent Glass , orally imposed
stricter rules on employees who engaged in union
activities , threatened them with discharge and other
reprisals if they became or remained members of the
Union or gave any support to it, and warned them that
their activities were being kept under surveillance.
Glass' direction to Neally to identify himself before
going on company property was not a disparate
application of the rule which generally barred access to
the Company 's facilities , presumably during nonworking
hours and at a time when there was no legitimate reason
to enter. Apparently, the rule was in effect before the
inception of the Union' s campaign as Neally himself
recognized, in 1966 or 1967, the need to obtain clearance
in advance of entry on company property. Accordingly, I
cannot find , from the single instance relied on by the
General Counsel, that the rule was more strictly enforced
against employees who engaged in union activities. I
agree, however, that Glass' repeated statements to Neally
that he (Neatly) knew what would happen if he did not
take care of his job were veiled threats that Neally would
be without a job if he continued his union activities, there
being no evidence that Neally was, at anytime , inattentive
to his duties . And, finally, I also agree that Glass'
statements that the Company had stooges on the job were
warnings that it was engaged in surveillance of employees'
union activities and, thus, were intimidatory in character.
I, therefore, conclude and find that the Respondent
violated Section 8(a)(1) of the Act by (1) McDaniel's
statements to Neally that he would definitely take action
against him if he engaged employees in union talk on
company time which statements were implied threats of
discharge or reprisal for union activities and his
imposition of stricter rules on employees who engaged in
such activities , (2) Glass' reminders to Neally that he
knew what would happen to him if he did not take care of
his job which remarks were veiled threats of discharge or
reprisal . for union activities, and (3 ) Glass' comments to
Neally that management has stooges on the jobs which
comments clearly carried the coercive implication that
Respondent engaged in surveillance of union activities.
B. The Discharge of LeRoy Neally
Neally commenced his employment with Respondent on
February 14, 1966, as a truckdriver assigned to its plant
at Fort Worth. He was the prime mover in the Union's
organizational campaign and the most active and ardent
supporter of its cause to the knowledge of the
Respondent . It was Neally who contacted a union
representative on December 15, 1967, for the purpose of
unionizing the Company' s employees . Further, Neally
gave testimony in, proceedings before the Board (174
NLRB No. 83) and in the Federal district court (Civil
Action 32762), in each of which Respondent was a party.
During the June 19 to July 3 strike, Neally prepared and
distributed picket signs, assigned . picket captains and
helpers, and supervised their performances . He also
picketed.
Neally was discharged on October 4. The events that
led up to the discharge are not in substantial dispute and
what follows is a synthesis of the testimony.
Sometime in the afternoon on October 4, Neally
parked his truck at Respondent 's Hurst plant and walked
into the bullpen to wait for loading tickets . Before he
entered the bullpen , however, employees Calvin Cox, Doc
Green , and E . W. Behrens were engaging in light banter
among themselves. Employee Dewey E. Clay, who was
also present, did not join in the levity. Cox, hired during
the strike as a truckdriver, was Tate' s son-in-law and a
nonunion supporter. At one point, Cox chided Green and
Behrens about not keeping their trucks in proper working
condition and they, in turn, ribbed Cox about the
sunglasses he had set on the top of his head stating that
he wore them in a manner common among "queers."
When Neally appeared some of the banter was transferred
to him. In the meantime, Cox had received his loading
tickets and went outside to pull his truck under the mixing
machine. Shortly after this, Cox returned to the bullpen
and walked over to the water fountain. Neally who had
also walked out and back in again, was standing in a
corner. About this point, Behrens said to Cox: "There's
your daddy; you better hug his neck." According to
Neally, Cox frowned and replied; "Well, I wouldn't hug
that queer [a foul and obscene remark]' neck." As to this
point , Behrens , corroborates Neally's version but only to
the extent that he heard Cox call Neally an obscene name.
At various times in his testimony, Behrens reported a
name different from the one Neally allegedly had heard.
Neally who was 2 to 4 feet away from Cox, then said,
"What did you call me, Hoss?" stepped forward, and
slapped Cox with a gloved hand on the right side of his
face. Neally's account continues as follows:
Cox: Don't do that, don't you do that to me.
Neally: Hoss, don't mess with me, don't talk to me. I
don't talk with you and I don't want you calling me
these names.
Cox: I'll call you anything I want to.
Neally: Don't do it, Hoss; put a zipper on your mouth
and don't mess with me.
Cox denied having directed any obscenities towards
Neally and averred that his only response to Behrens'
invitation to hug Neally's neck was to declare that Neally
wasn't his daddy and he wouldn't hug him. In this
connection, Cox testified that Neally slapped him in the
face,4 that the blow made a gash on the inside of his
mouth and knocked his sunglasses and a cigarette to the
floor and that, immediately thereafter, the following
exchange took place:
Neally: What did you call me?
Cox: I didn't call you nothing. What do you think I
called you?
Neally: Don't call me that again.
Cox: What?
Shortly after the incident, Neally asked Doc Green and
Dewey Clay if they heard what Cox had called him.
Green, who was not called as a witness, allegedly told
Neally he heard the remark; and Clay, who appeared and
testified, said he did not hear it and would prefer to be
left out of the matter adding, "You fellows shouldn't have
done a thing like that." To this statement, Neally
pointedly replied, "I know we shouldn't [have done it]."
After the affray, the participants returned to work.
However, before leaving on his rounds, Cox reported the
incident to Robert Van Slyke, the dispatcher. Van Slyke
called Tate and told him that Neally had slapped Cox.
'The exact quotation and kindred expressions are liberally dispersed
throughout the transcript. Examples may be found at pages 37, 40, 53, and
66.
'At one point , Cox testified that Neally struck him with an open fist, at
another with a clenched fist. Whether opened or closed , it is clear from the
record that Neally struck Cox with a gloved hand and that the blow was
sufficiently severe to have cut the inside of his mouth.
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tate relayed the report to McDaniel who directed Tate to
go to the Hurst plant and find out what had happened.
Tate first talked to Cox whom he had intercepted about
one block from the plant. Asked to relate what had
occurred, Cox stated that Neatly had slapped him after he
told Behrens he wouldn't hug Neally's neck and that he
had said or done nothing to have provoked the assault.
After this Tate talked to Neally in the plant. Neally
related that Cox had called him a foul name and that he
had slapped him adding significantly the comment, "I
know I shouldn't have done it but I did." Tate reported
his findings to McDaniel at once.' After hearing the
report, McDaniel said , "Well, if that's the case, since they
both have been involved in a fight, I think we should
terminate both of them, let them both go." Tate then told
Neally that McDaniel had instructed him to "let them
both go" and, when Cox returned to the plant later that
day, advised him to the same effect.
It is the General Counsel's position that Neally was
discharged because of his union activity. Respondent, on
the other hand, contends that the discharge was brought
about because Neally had engaged in a fight in violation
of a published rule barring such conduct.
As already found, Respondent committed certain unfair
labor practices and Neally, the avowed and known union
leader, testified in a Board proceeding brought on by an
8(a)(1) and (3) charge filed by the Union against the
Respondent. (174 NLRB No. 83) Further, his activities
during the strike were extensive and pervasive and he had
openly affirmed his support of the Union in a
conversation with Supervisor Bill Glass. The General
Counsel's case amounts to little more than that but that is
enough to make out a prima facie violation.
The Respondent established, however, that, as early as
February 8, 1967, it had posted on the employees' bulletin
board at its Lawnwood facility, a memorandum on
company rules which forbade, among other things,
fighting and horseplay' and provided for the immediate
discharge of any employee found guilty of an infraction
thereof. The text of the memorandum reads as follows:
TEXAS INDUSTRIES, INC.
INTER-OFFICE MEMORANDUM
DATE: February 8, 1967
TO: All Employees
CITY:
FROM: R. P. McDaniel
CITY:
SUBJECT: Company Rules
CARBONS TO:
It has come to my attention that certain long
established Company Rules are being broken . In order
to be completely fair , we hereby publish some of the
rules so that there may be no misunderstanding later.
This list in no way is intended to preclude other
'Tate made no attempt to contact witnesses to the altercation before
reporting to McDaniel although the means to do so, in the form of
two-way radio systems in each truck , were readily available
`Neatly testified that , sometime after the election, the company posted a
rule forbidding horseplay , the inference being that the restriction was
limited to this activity I do not credit this testimony as it is clear from the
memorandum that " fighting and horseplay " were both prohibited . Further,
no evidence of any rule other than the one reported above was offered.
Accordingly , I find that, at all times material here , Neatly had actual and
constructive notice of the rule barring fighting and horseplay
additional rules and regulations.
1. Drinking or having possession of alcoholic liquor
on Company premises or in Company vehicles is
prohibited.
2. Reporting for work under the influence of alcohol
or drugs is forbidden.
3. Gambling is forbidden on Company property.
4. Fighting and horseplay is forbidden.
5. Falsification of records including punching another
employee's time card is prohibited.
6. Theft of Company property including
manufactured products is prohibited.
7. Insubordination (refusal to follow a supervisor's
orders) will not be tolerated.
Anyone guilty of breaking any of the above rules will be
subject to immediate discharge. If there are any
questions concerning the above memorandum, contact
your immediate supervisor at once.
/s/ R. P. McDaniel
R. P. McDaniel
Fleet Superintendent
RPM/baw
Respondent's response to this infraction of its rules was
immediate and summary. And, as the response, included
the nonunion participant, who was also a son-in-law of a
supervisor, it was, on the surface at least, evenhanded as
well.
The General Counsel argues, however, that the assault
was provoked by an obscene name-calling remark by Cox
and, therefore, the infraction was only a pretext to conceal
a discriminatory motive. It is unreasonable to believe that
Neatly, who appeared to be a rational individual, would
deliberately have struck Cox without cause. It does not
follow, however, that the assault was provoked by an
obscenity from Cox. Of the three witnesses to the affray,
Doc Green was not called, Dewey Clay did not hear the
remark, and E. W. Behrens, not a disinterested witness as
he is an alleged discriminates in the case, vacillated and
was uncertain as to what Cox had said. There is,
therefore, no firm corroboration of this aspect of Neally's
controverted testimony and I do not accept his naked
assertion that Cox called him a foul name . Thus, I find no
credible evidence in the record to support the claimed
provocation. This finding is based on the following
considerations: (1) Prior to the attack, Neatly asked Cox
what he had called him. It is reasonable to infer from the
question that Neatly did not hear or was uncertain as to
what Cox had said. (2) Immediately after striking Cox
and while still in the throes of the affray, Neatly reminded
Cox that he did not talk to him. Considered in context,
the statement suggests that what really provoked Neatly
was simply the fact that Cox, a nonunion man hired
during the strike and son-in-law of a supervisor, indirectly
addressed Neatly, the union leader with strong views
about employees who crossed picket lines , when he
declined Behrens ' invitation to hug Neally's neck. (3)
Again, shortly after the assault Neatly told Clay and later
Tate that he knew he shouldn't have struck Cox, the
inference here being that Neatly realized that whatever he
thought Cox had called him was insufficient in fact to
have justified the attack.
The General Counsel also argues that there was a
disparate application of the rules barring fighting as
employee Olen Gasway was involved in a fight in 1964
outside the bullpen for which he received only a 1-week
layoff. The argument is devoid of merit since it is
perfectly clear from the record that the Gasway incident
TEXAS INDUSTRIES, INC.
took place about 3 years before the rules, under
consideration here, were posted.
Finally, the General Counsel contends that the rules
were "tightened up" in order to provide an excuse to get
rid of the union "ringleader ." It is quite possible that the
Company seized on the episode as a pretext to discharge
Neally and that it would have handled the matter
differently, perhaps-by a layoff for a reasonable period,
but for Neally's espousal of the Union. The termination of
Neally was sudden and precipitate yet not inconsistent
with the requirements of the Company's rules which
mandate the immediate discharge of any employee found
guilty of an infraction thereof. It is argued that the
inclusion of Cox, who now appears to have been an
innocent victim , in the Company 's response to the
violation reveals an awareness that the Neally discharge
might be open to question . The argument can not be
pursued to its logical conclusion , however , for it can not
be that Neally' s union activities rendered him immune
from discharge or provided him with a license to abuse his
coworkers at will.
It is not without significance , as I have found, that
Respondent 's acts of unlawful interference , restraint, and
coercion occurred in a period of from 1 to 3 months prior
to the discharge.
Upon the totality of the foregoing considerations, I am
convinced that the Respondent has successfully rebutted
the prima facie case and that the General Counsel has
failed to sustain the burden of proof that Neally's
discharge was the result of his union activities . I so find
and conclude.'
C. Issuance of a Warning Slip to E. W. Behrens
Behrens was initially hired by the Respondent in 1945.
He quit in 1963 and returned in 1967. At all times
material , Behrens was employed as a truckdriver.
As related above , Behrens was a witness to the
Neally-Cox affray. The morning after the terminations,
McDaniel directed Tate to investigate further because
"there might be more to it and I wanted to be sure we
were right on who was right and who was wrong and what
caused all this . . . ." McDaniel also ordered the personnel
department to look into the matter.
On October 9, Tate called Behrens to his office and
handed him a form which read as follows:
RECORD OF SPECIAL CONTACT
NAME: E. W. Behrens
EMPLOYEE NO.: 3495
LOCATION: 3601 Lawnwood - Fort Worth
DATE: 10-9-68
DESCRIPTION OF EVENT AND DISCUSSION
What was it about? Who was present? Show date,
time, place , what was said and done.
Friday, October 4, an incident occurred at the Hurst
driver's waiting room which resulted in the termination
of two of our drivers - Calvin Cox and Leroy Neally.
The incident was caused by horse play and provocation.
'In the earlier proceeding (174 NLRB No. 83), it was found that Neally
was not disciplined by the Respondent for having engaged "in essentially
the same conduct as Gasway," the discriminatee therein , which finding
appears to further negate the claim that the Respondent was looking for an
excuse to get rid of Neally because of his union activities.
1097
You have been told on previous occasions that horse
play would not be tolerated by any of our employees.
You were involved in this situation, and contributed to
the provocation. For this reason, you are advised that
behavior of this type cannot be tolerated, and should it
happen again, you will be subject to immediate
discipline, including discharge.
Contact by
Date
Concur
Tate told Behrens to read and sign it. Behrens refused,
stating, "If you want to fire me, why, go ahead but I do
not sign no more papers." Tate then signed the form and
gave Behrens a copy.
The General Counsel argues that issuance of the
warning slip was an act of reprisal against Behrens for
having supported the case of Neally. Respondent denies
the commission of the alleged offense.
There is no claim and no proof that the issuance of the
warning slip was contrary to company policy or
discriminatory per se. Behrens' statement to Cox set in
motion a chain of events culminating in the assault by
Neally. The "support" Behrens rendered Neally was aid
in the performance of an unprotected act. It is axiomatic,
therefore, that as the act was not protected, the statement
in support thereof was also not protected. Accordingly, I
find that the General Counsel has failed to link the
issuance of the warning slip to protected union activities
or to establish its discriminatory nature!
D. Denial of a Benefit to Raymond Nordin
Nordin, another truckdriver, has been employed by the
Respondent for more than 17 years. Sometime during the
evening on the day of the Board election, McDaniel
commented to Nordin, "Well, Raymond, we lost."
Nordin replied, "it's owing on which side you were on
whether you lost." During the strike, Nordin was a picket
captain.
For many years, the Company has followed the practice
of assigning trucks, new and used, on the basis of
seniority. In this regard, Tate prepares a list of all
available trucks then calls in the drivers by seniority and
lets them take their pick. According to Nordin, whose
testimony was corroborated by Tate, a truck is not put on
the available list until the day the operator leaves the
Company's employ or he is assigned a new truck.
Nordin credibly testified that, on or about July 25 or
26, 'fate told him trucks numbered 17, 19, 27, and 29
were available. Nordin selected number 17. Tate testified
that he did not tell Nordin truck number 17 had been
severely damaged in an accident because it was sitting in
the back of the shop "turned over" and, consequently,
Nordin must have known of its condition at the time he
selected it. I do not accept this testimony as it is
unreasonable to believe that Nordin, or anyone else for
that matter, would, without question, consciously select a
nonserviceable motor vehicle for operation.
Nordin started his vacation near the end of July. He
returned about August 15 and, 1 week later, told Tate
that he had changed his mind about truck number 17 and
would wait for another explaining that, while on vacation,
someone had turned over number 17 causing severe
damage to the cab, catwalks, and possibly throwing the
'Wellington Mill Division West Point Manufacturing Company, 141
NLRB 319, 831 -832, enfd in part and set aside in part 330 F 2d 579 (C A.
4), cert . denied 379 U S 882.
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
entire vehicle out of line. And , although Nordin knew that
employee Jeff Wilmoth was going to retire in September,
he did not tell Tate , at that time , that he wanted
Wilmoth ' s truck number 24 because of the Company's
policy and practice that trucks are not available for
reassignment until after the driver leaves.
Wilmoth retired on September 28 and the following
Monday Nordin asked Tate for truck number 24. Tate
replied that he had already assigned the truck to employee
Kenneth Little . Nordin protested stating that he had more
seniority than Little. Tate rejoined that number 24 was on
the list before and Nordin said that it was not made
available to him at the time he selected number 17.
Tate testified that Little asked for number 24 a few
days after Nordin had selected number 17 and that he had
agreed to give it to Little with the understanding that he
would continue to drive his old truck until Wilmoth
retired . The net result of the Tate-Little arrangement was
the commitment of a truck in late July or early August
when , under the Company 's policy and past practice, it
would not have been available for reassignment until
sometime after September 28. This meant, of course, that
Nordin, a senior employee, had no opportunity to bid for
it.
The General Counsel contends that Respondent denied
Nordin a benefit previously enjoyed by employees,
namely, an opportunity to select a truck on the basis of
seniority. The Respondent denies the allegation.
The Company's practice of allowing employees to
choose available trucks on the basis of seniority was a
benefit of considerable value to them as newer trucks are
less vulnerable to breakdowns with the attendant loss of
overtime. Since Nordin was senior to Little he was
entitled to bid for truck number 24 ahead of Little.
Number 24 would have been available for reassignment on
and after September 28, under the Company's established
practice. The commitment of this vehicle to Little in July
or August , although contrary to past practice , was not
discriminatory as there is no showing that the action was
motivated by union considerations . The subsequent denial
of the truck to Nordin either compounded the original
violation of company policy and practice or was
independently discriminatory.
Respondent undoubtedly knew of Nordin ' s prounion
sympathies . His statement to McDaniel that whether the
election was lost depended on the position one had taken
on the issue can reasonably be construed to mean that
Nordin did not share McDaniel ' s feelings of remorse at
the outcome . Further, Nordin served as a picket captain
at the time of the strike . Beyond this, there is no evidence
of union participation , espousal, or support by Nordin.
Accordingly , I do not believe that the evidence , considered
in its totality , preponderates in the form of a finding that
Nordin was denied truck number 24 because of his
prounion sympathies and activities . The denial of the
truck to Nordin was a violation of an established
company policy and practice but the record does not show
a casual connection between the violation and Nordin's
union activities.
Upon the basis of the above findings of fact and upon
the entire record in this case , I make the following:
CONCLUSIONS OF LAW
1. Texas Industries , Inc., is, and at times material
herein has been, an employer engaged in commerce and in
a business affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. International Union of Operating Engineers, Local
819, AFL-CIO, is, and at all times material herein, has
been , a labor organization within the meaning of Section
2(5) of the Act.
3. By imposing stricter rules on employees who engaged
in union talk , threatening its employees with discharge
and other reprisals if they continued to support the Union,
and warning its employees that their activities on behalf of
the Union were being kept under surveillance by agents of
the Respondent , thereby interfering with, restraining, and
coercing its employees in the exercise of rights guaranteed
in Section 7 of the Act, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. The above-described unfair labor practices tend to
lead to labor disputes burdening and obstructing
commerce and the free flow of commerce and constitute
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
5. The General Counsel has failed to establish by a
preponderance of the evidence that, by discharging LeRoy
Neally, issuing a warning slip to E . W. Behrens, and
refusing to assign to Raymond Nordin a newer truck to
which he was entitled under Respondent 's past practices,
Respondent has engaged in and is engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (3) of
the Act.
THE REMEDY
I shall recommend that the Respondent cease and desist
from the unfair labor practices found above, or from
infringing upon the rights guaranteed to its employees in
Section 7 of the Act.
Accordingly, upon the foregoing findings of 'fact and
conclusions of law, and upon the entire record in this case,
I make the following:
RECOMMENDED ORDER
Texas Industries, Inc., Tarrant County, Texas, its
officers, agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Imposing stricter rules on any employee because he
engaged in union talk.
(b) Threatening any employee with discharge or other
reprisals because .of his membership in and support of the
Union.
(c) Warning any employee that his activities on behalf
of the Union were being kept under surveillance by agents
of Respondent.
(d) In any like or related manner interfering with,
restraining , or coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Post at its plants in Tarrant County, Texas, copies
of the attached notice marked "Append"ix."' Copies of
said notice , on forms provided by the Regional Director
for Region 16, after being duly signed by the
Respondent's representative , shall be posted by it
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
'In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
TEXAS INDUSTRIES, INC. 1099
customarily posted . Reasonabl6 steps shall be taken by the
Respondent to insure that said - notice 's are not altered,
defaced , or covered by any other material.
(b) Notify said Regional Director , in writing, within 20
days from the receipt . of this Decision , what steps have
been taken to comply herewith.'*
IT IS FURTHER RECOMMENDED that the complaint herein
be dismissed insofar as it alleges that the Respondent
discriminated against LeRoy Neally, E. W. Behrens, and
Raymond Nordin or committed any other violation not
herein found.
Recommended Order of a Trial Examiner" in the notice . In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals , the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith."
membership in or support of International Union of
Operating Engineers, Local 819, AFL-CIO, or any
other union.
WE WILL NOT warn any of our employees that their
activities on behalf of the above-named Union, or any
other union , are being kept under surveillance by our
agents.
WE WILL NOT in any like or related manner interfere
with , restrain , or coerce our employees in the exercise
of their rights to self-organization, to form labor
organizations, to join or assist International Union of
Operating Engineers , Local 819 , AFL-CIO, or any
other union , to bargain collectively through
representatives of their own choosing , or to engage in
other concerted activities for the purposes of collective
bargaining or other mutual aid or protection or to
refrain from any or all such activities.
TEXAS INDUSTRIES, INC.
(Employer)
APPENDIX
NOTICE TO ALL EMPLOYEES Dated By
(Representative) (Title)
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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Room 8A24,
Federal Office Building, 819 Taylor Street, Fort Worth,
Texas 76102, Telephone 817-334-2921.
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our
emplo ees that:
WE WILL NOT impose stricter rules on any of our
employees because they engage in union talk.
WE WILL NOT threaten any of our employees with
discharge or other reprisals because of their