Wilson Concrete Co, Inc.

National Labor Relations Board - Board Decisions

Jan 7, 1965

150 N.L.R.B. 818 (N.L.R.B. 1965)

818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, we find that the following employees of the Employer
constitute a unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act:
All regular full-time and part-time nonselling employees employed
as stock, receiving, and marking department employees, transfer,
inside delivery, and return goods room employees, cashier-wrappers,
cashiers, packers, store runners, messengers, parcel collectors, linen
room stock employees, monogrammers, stock maintenance employees,
alteration inspectors, drycleaners, checker examiners, fitters, milli-
nery fitters and copyists, fur fitters, men's alteration fitters, seam-
stresses, corset sewers, fabric cutters, shoemakers, jewelry repairers,
sign printers, locksmiths, and handymen at the Employer's New
York City retail store at 424 Fifth Avenue, excluding all other em-
ployees, sales employees, office employees, plant clericals, buyers'
clericals, beauty salon employees, restaurant and cafeteria employees,
floor and furniture adjusters, merchandise, credit and bill adjust-
ment interviewers, information desk clericals, receptionists, secre-
taries, business machine operators, telephone order takers, compari-
son shoppers, head of proofroom, outgoing mail clerks and collec-
tors, librarians, nurses, switchboard operators, estimators, protection
department employees, fitting room attendants, guards and watch-
men, managerial employees, employees covered by existing collective-
bargaining agreements, and supervisors as • defined in the Act.
[Text of Direction of Election omitted from publication.]-.
MEMBER JENKINS, dissenting :
For the reasons stated in my dissents in Stern's, Paramus, 150
NLRB 799, and Arnold Constable, 150 NLRB 788, both decided today
also, I would dismiss this petition.
Wilson Concrete Company, Inc. and General Drivers and Helpers
Union Local No. 554, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America . Case No. 17-CA-2389. January 7, 1965
DECISION ,AND ORDER
On October 2, 1964, Trial Examiner Owsley Vose issued his Deci-
sion 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 cer-
tain affirmative action, as set forth in the attached Trial Examiner's
150 NLRB No. 74.
WILSON CONCRETE COMPANY, INC. 819
Decision. Trial Examiner further found Respondent had not en-
gaged in certain other unfair labor practices alleged in the complaint
and recommended that such allegations be dismissed. Thereafter,
Respondent filed exceptions to the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was made. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the Board adopts, as its Order, the Order recommended
by the Trial Examiner, and orders that Respondent, 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
Upon charges filed by the Charging Party on February 21 and April 28, 1964, the
General Counsel on April 29, 1964, issued a complaint against the Respondent. The
complaint , as amended , at the hearing, alleged that the Respondent , in violation of
Section 8 ( a) (3) of the Act, on or about February 20, 1964, laid off 17 employees
from its double T department , and from its I-beam department, and on May 11, 1964,
constructively discharged Robert Wilbern, all because said employees assisted the
Charging Party (hereinafter referred to as the Union ) and engaged in concerted activ-
ities for their mutual aid or protection . The complaint as amended further alleged
that the Respondent , by the foregoing conduct and by various other acts, including
threatening reprisals, questioning employees about union matters, and granting wage
increases to induce employees to refrain from becoming union members , had violated
Section 8(a) (1) of the Act . The Respondent filed an answer admitting certain allega-
tions of the complaint but denying that it had engaged in any unfair labor practices.
The case was heard before Trial Examiner Owsley Vose on June 9 and 10, 1964,
at Omaha, Nebraska . All parties were represented at the hearing and were afforded
a full opportunity to be heard , to examine and cross -examine witnesses , and to present
oral argument . Briefs have been filed by all parties, which have been carefully
considered.
Upon the entire record , and from my observation of the witnesses , I make the
following:
FINDINGS AND CONCLUSIONS
I. THE NATURE OF THE RESPONDENT'S BUSINESS
The Respondent is engaged at Omaha, Nebraska, among other places, in the manu-
facture of precast concrete products . In the course of its business the Respondent
annually purchases more than $ 50,000 worth of goods and materials from sources
outside of Nebraska and has them shipped directly to its Omaha plant . Upon these
facts, I find, as the Respondent admits, that it is engaged in commerce within the
meaning of-Section 2(6) and (7) of the Act, and that it will effectuate the policies
of the Act to assert jurisdiction herein.
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
General Drivers and Helpers Union Local No. 554, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a
labor organization within the meaning of Section 2(5) of the Act.
III, THE UNFAIR LABOR PRACTICES
A. Background; the Respondent's manufacturing-process,
,The Respondent's Omaha operations are carried on in. two main divisions, the
heavy construction division and the building division. Within the building division
are the mo sai department, the special cast department, and the double T department.
In the-double T department the Respondent manufactures precast prestressed floor and
roof'slabs of various cross-sections, including flat slabs of both solid and hollow core
construction, double T slabs, single T slabs, and Y ,slabs. All of the products manu-
factured in the double T department are made to special,orders received from the
Respondent's customers. The Respondent's slabs are made in plywood forms called
beds. At the time of the events here involved the Respondent had two 6-foot wide
beds for'the manufacture of double T slabs, one 310 feet long and the other 160
feet long, and two double T beds 4 feet wide, one 400 feet long and, the other 260
feet long. These beds are out in the open in the yard of the Respondent's plant. The
slabs are made in a wide variety of lengths, widths, depths, and cross-sections. Spe-
cial beds have to be made from time to time, or adjustments have to be made in the
double T beds, in order to have forms in which to make the flat slabs.
Extensive preparation is necessary before the beds are ready to receive the concrete.
The forms have to be cleaned, smoothed out, and oiled. Cables or rods have to be
cut, installed, and stretched. Dividers have to be set at the proper place for the
length of slab called for. Blocks have to be put in place for the cutouts specified
by the customers.
To operate the Respondent's double T department at full capacity 30 nonsupervisory
employees are required. Twenty such employees were working in the double T depart-
ment at the time,of the events involved in this case.
B. The sequence of events
1. The double•T employees decide to organize
On the morning of February 18, 1964, Jerry Bethel, a former member of the
Union, suggested to Robert Wilbern and Jack Mills, two of his fellow employees; as
they were working on the double T beds, that they should consider getting a union in
the plant. Wilbern and Mills agreed. At noon that day the three men went to
Avery's Bar where Bethel called Tom McFarland, recording secretary and business
agent of the Union,, and told him. that they would like to meet with him to secure
information about obtaining -union representation for the employees at the plant.
McFarland made an appointment to meet a group from the plaht at Big Joe's Drive-In
at 5 p.m. that day.
Bethel reported the results of his conversation with McFarland to Wilbern and
Mills who were eating their lunch at one, of the tables at Avery's. James Harrill,
the foreman of the Respondent's circle department, was eating lunch at the next
table while the three men were discussing the meeting which was scheduled- for
5 p.m. that day. - '
That afternoon Mills and Wilbern spread the word concerning the meeting among
their fellow workers in the double T department. Wilbern also approached one man
in the special cast department and two men in the'I-beam department. After work
that day Armando Gomez and Fred Martin, two of the Respondent's employees, were
having a beer with Foreman Harrill at Avery's Bar. Wilbern came in and announced
the meeting at 5 p.m. and said "if [they] were interested to come' down." Wilbern
then departed.
Between 15 and 20 employees attended the meeting which was held inside Big Joe's.
All those present worked in the double T department, except_one, Arthur Adams, who
was employed in the I-beam department. McFarland was accompanied to the meet-
ing by Donald Smith and Elmer Davis, two other union officials. McFarland informed
the employees of their rights to organize free of employer interference and explained
that 30 percent of the employees had to sign authorization cards in order to obtain
an election and that a majority vote was necessary to obtain exclusive bargaining
rights. After the meeting had been in progress about 15 minutes, Armando Gomez
and Fred Martin arrived with Foreman Harrill. - At this point Bethel commented to
McFarland, "Here comes a foreman." McFarland inquired whether he wanted the
WILSON CONCRETE COMPANY, INC. 821
foreman to attend. Bethel replied, "Yes, he's all right." Bethel requested McFarland
to summarize his earlier remarks for the latecomers. After McFarland concluded his
talk, authorization cards were passed among the employees. Foreman Harrill took a
union authorization card at this time also. Some of the employees signed cards then
and there and returned them to McFarland and his associates from the Union.
The day after the union meeting, Bethel,and Wilbern talked to their fellow workers
about signing authorization cards and succeeded in obtaining additional signatures.
Foreman Lindsey, one of the foremen in the double T department, found a union
authorization card in his lunch box at noon on February 19. Lindsey reported. this
fact to his superior, Norman Beccard, the general foreman over the entire double T
department. Beccard himself had observed union cards sticking out of the pockets
of some of the employees in his department. Beccard informed Lee Herting, the
production manager of the entire building products division, of the card circulation
that same day. Herting admittedly did not receive reports from supervisors in other
departments concerning the circulation of union cards.
The circulation of the union authorization cards was discussed at a special meeting
of the Respondent's supervisors held in the plant that same day, February 19. There-
after, Foreman Harrill reported to Gomez, one of his subordinates, that the foremen
had discussed the Union's "coming in" and that "there was no way to stop them."
2. The sudden layoff of the double T employees
On February 20, 1964, the men in the'double T department were performing their
usual duties at the plant. Wilbern and some of the others were working on the 400-
foot bed. Wilbern was wiping excess oil off the bed, Bethel was cutting wire and
putting in blocks for cutouts, and Lowell Osborne was grinding rough spots out of
the leg of the bed.
At 2 p.m. Foreman'Lindsey notified the men to come to a meeting in the lunch-
room. General Foreman Beccard announced that the work was slowing down, that
the men whose names were on a list which he read were being laid off as of 2 p.m.,
and that they would be recalled when more work was available. Beccard had the
men give him their addresses and telephone numbers to facilitate the Respondent's
getting in touch with them when work picked up. The Respondent' s normal quitting
time was 4:30 or 5 p.m.
The list of the laid-off employees included 17 out of the 20 rank-and-file employees
in the double T department. The following employees were laid off at'this time:
Charles Argo Joe Leichleiter Lowell Osborne
Jerry Bethel Ed Leonard Fred Uzell '
Arthur Cates Fred Martin Robert Vanderpool
Richard Dickman Byron Meek 'Robert Wilbern
Richard Greenwalt Marvin Melby John Wilcoxson
Herman Harper Dale Mether
The three nonsupervisory employees retained in the double T department after the
layoff were Jack Mills, Kenneth Major, and Delmar Bohren. As Production Manager
Herting testified, the Respondent retained only key personnel having special skills.
Jack Mills, who was retained, was the senior employee in the department and was
the Respondent's only concrete patcher. Since the Respondent's products are fre-
quently used as finished ceilings in rooms, exposed to view; it is essential that the
Respondent have a man who can make patches which are not noticeable.
The decision to make the layoff in the double T department was admittedly reached
the same day that it was put into effect. However, it appears that discussions con-
cerning the necessity of a future layoff in the double T department (unless shop draw-
ings then in the hands of architects for approval were returned approved) were had
by Production Manager Herting with both General Foreman Beccard and Personnel
Director Amoura a week or so before the layoff. While employment normally fluc-
tuates considerably in the double T department, the February 20 layoff was by far
the most sweeping of any layoff in the past 2 years.
3. The wage increases granted in the other departments
After the layoff of the double T employees, meetings were held of the employees
of other departments of the Respondent at which they were advised of the fact of the
layoffs in the double T department and that they were due to a lack of work, that
there was presently, enough work in their departments, and that they were going to
receive a 10-cent-per-hour wage increase effective retroactively to the first of the
week. The laid-off employees did not share in the retroactive increase . However, the
few remaining double T employees did.
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The layoff of Arthur Adams
At 4:30 p.m. on February 20 Foreman Wolfe of the I-beam department informed
Arthur Adams and one other laborer in the I-beam department that he would have to
lay them off for lack of work. Adams and the other employee who was laid off
were the junior " employees in the I-beam department at that time . About March 1,
the Respondent hired John Overton to work as a laborer in the I-beam department.
Adams was not sent a letter about returning to work until-some unstated time after
April 9, 1964. Adams had obtained another job on April 9 and did not return to
the Respondent's plant.
5. The temporary assignment of employees to the
double T department after the layoff -
In the week after the layoff two employees from the special cast department worked
from 3 to 5 days in the double T department and the foremen and leadmen assisted
in the actual performance of the double T work to a greater extent than they
normally did.
6. The foremen's subsequent conversations with employees concerning the Union
Jack Mills struck up a conversation with Clifford Wolfe, the foreman of the
Respondent's I-beam department, on the morning after the layoffs. During this con-
versation he commented to Wolfe about the small number of employees remaining
in the double T department. Wolfe inquired whether Mills also had signed a union
card. When Mills admitted that he had, Wolfe commented, "Boy, those guys were
sure stupid."
The following Monday or Tuesday, Mills was eating lunch with Foreman Lindsey
of the double T department at a drive-in. There the following conversation took
place, according to Mill's credited and undenied testimony:
He asked me if anyone had ever approached me to sign a card, a union card,
really shut that up quick, didn't we?"
Two or three weeks after the layoff DeWitt Haley, an I-beam department employee,
mentioned to Foreman Wolfe, who was in charge of the I-beam department, that he
wished "the Union would get in here and straighten the place out." Wolfe replied
that he did not think "that the Union would ... do us any good if it got in."
7. The recall of the laid-off double T employees
On Thursday, February 27, the Respondent commenced recalling the laid-off
double T employees, calling back Greenwalt, Leonard, Uzell, and Wilcoxson on that
day. On the following Monday, March 2, Harper, Martin, Mether, Osborne, and
Vanderpool returned to the plant Argo, Cates, and Dickman received letters from
the Respondent inquiring about their availability for work on subsequent dates in
March and the three men all returned during March. Three of the laid-off double T
employees, Leichleiter, Meek, and Melby, apparently indicated to the Respondent
that they were not interested in returning to work.
The two remaining laid-off double T employees were Bethel and Wilbern, two of
the three original proponents of the Union. The Respondent did not communicate
with them about returning to work until May 7, after the issuance of the complaint
herein. Both Bethel and Wilbern commenced working on May 9, 1964. The circum-
stances of Wilbern's first day back at work are discussed below.
8. Wilbern's passing out of union cards at the plant gate on April 14
In the meantime, on April 14, 1964, while Wilbern was still laid off, Wilbern
appeared with three union representatives at the extreme north end of the plant,
the place where a majority of the employees leave the plant, and passed out union
handbills from 4 to 5:45 p.m. Foreman Wolfe, Templeton, and Harrill and Personnel
Director Amoura passed by as Wilbern was engaged in this activity.
About 10 days later Wilbern encountered Foreman Wolfe in a bar. Wolfe brought
up the subject of the Union and in the course of his remarks stated in effect that those
who had signed cards "had done a pretty good job" of doing themselves "out of a
job."
and I said no, and then he wondered if I had heard anything about the union,
what they were doing, and I said yes. He wondered if I had heard any talk
around the plant among the men about it and I said yes and he said, "Well, we
WILSON CONCRETE COMPANY, INC. 823
9. The Respondent 's treatment of Wilbern on his first day back at work
As indicated above, Wilbern received a letter from the Respondent on Friday
evening, May 8, notifying him to contact the personnel department if he were inter-
ested in returning to work. Wilbern called the personnel office on Saturday morning
and was instructed to report to the personnel office at 8 a.m. the following Monday.
When he arrived there the following Monday, Don Fahleson , one of the personnel
men, directed Wilbern to report to Clifford Wolfe, the foreman of the I-beam
department.
Wilbern had been working in the double T department when he was laid off. Wil-
bern had worked for the Respondent since July 1960, with the exception of a 7-month
break in late 1962 and early 1963. For most of this time he had worked in the
double T department.. He had never received any complaint about the quality of his
work . Wilbern had not previously worked in the I-beam department , to which he
was assigned upon his return to work on May 9. It will be recalled that shortly
after Wilbern's layoff on February 20, the Respondent had hired John Overton to
work in the I-beam department . When Wilbern reported to Foreman Wolfe, the
latter commented , "Well, it looks like I 'm struck with you." Wolfe turned Wilbern
over to Gene Loeffler , another foreman in the I-beam department . Loeffler gave Wil-
bern a short-handled shovel, a pick, and a bar, and directed him to break up a lengthy
concrete slab which was over an old steam line which the Respondent wished to
replace with a new water line.
After Wilbern started to work, Foreman Loeffler came over and instructed him, as
follows, as Wilbern testified without contradiction:
... If I wanted to go to the bathroom I was to ask him and I wasn 't to talk
to anybody and I wasn't to look up . I was to stay right there and keep chopping
on that cement.
After Wilbern worked about 2 hours breaking up concrete and removing the old
steam line, Foreman Wolfe came over to Wilbern and said, "As long as you 've only
got 30 minutes' work done in the last two hours I am going to put a man here to
show you what I want done ." With this remark Wolfe brought over John Overton,
the new man hued in the I-beam department shortly after Wilbern 's layoff . Overton
helped Wilbern load the broken-up concrete on a pickup truck until shortly before
lunchtime. I
At this time Foreman Wolfe brought over a compressor and a 90 -pound airhammer
and told Wilbern to use the airhammer to break up the heavier concrete . An air-
hammer with 90 pounds of pressure is a fairly heavy hammer and it is strenuous work
to handle one, even for a husky individual , as Foreman Wolfe in effect admitted.
Wilbern is a lightly built man weighing about 125 pounds . Wilbern continued to
operate the airhammer during the afternoon , with Overton occasionally relieving him
for 2 or 3 minutes at a time. As Wilbern credibly testified , "'Every time I'd get a
little sweat in my eyes and hesitate a minute,' Overton would say, `Here, I will show
you how it is done .' " On one occasion while Overton was relieving Wilbern, Fore-
man Wolfe came over and said , "Pick up that shovel ... I don't want to see you
standing here without something in your hands and working all the time."
About 4 p.m., after Wilbern had unsuccessfully sought to obtain a lighter hammer,
explaining that a lighter hammer was adequate for the job at hand, the heavier hammer
got away from him. At that point, as Wilbern testified, "I just had all I could take.
I was sick and I told him (Wolfe ) I was sick ." Wilbern went to the Respondent's
doctor, who told him to get some rest . Wilbern laid down in the doctor's office for
a while and then went on home . As Wilbern explained , "I thought it over during the
night and I thought I saw what the deal was going to be so. I didn't go back."
C. The Respondent's contentions concerning the double T layoffs; the evidence
relating to work on hand at the time of the layoffs; conclusions
In support of its contention that the layoffis in the double T department were not
discriminatorily motivated , the Respondent asserts that there was a definite slowdown
of incoming work in the double T department at the time of the layoffs ; that no new
employees were hired in the department during the layoffs ; that all of the double T
employees, with the exception of certain specifically skilled employees, were laid off;
and that employees were called back within several weeks when production picked up.
With respect to the Respondent 's assertion concerning the lack of work in the
double T department , which is the central prop in the Respondent 's defense, the
Respondent relies on Production Manager Herting 's general testimony to the effect
that by February 15 to 17, the Respondent was "For the most part finishing up" the
work on which they had received back approved shop drawings . Herting further
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified that the Respondent "had a couple of jobs that we had drawings out, had
difficulty getting the shop drawings back, but pretty much we were coming to the end
of our backlog."
Byron Freeby, the engineer in charge of the Respondent's drafting department,
gave more specific testimony concerning the work on hand at the time of the layoffs
in the double T department. The shop drawings from which the Respondent's finished
products are manufactured are prepared under the supervision of Engineer Freeby.
These shop drawings, after being prepared in the drafting department, are' first 'sub-
mitted to the customer's architect or contractor for approval. After being received
back from the architect sometimes changes or corrections must be made -before the
drawings can be submitted to Production Manager Herting for fabrication.
Freeby testified as to the various dates on which he released to Herting the final
shop drawings, after all changes and corrections had been made and approved by the
customer. Freeby also- testified as to the number of items involved and gave his
estimate of the length of time it would take to fabricate these items in the double T
department. Freeby's testimony is summarized in the following table:
Release Job Items - Days to
date Complete
2- 7-64______ Southwest Plaza____________ 40 6' TTs, 40' long____________________________ 7
2-12-64______ Bell Telephone______________ 200 4' TTs, 20' long______ _____________________ 12
2-17-64______ Iowa-Mo. Walnut_ _ _ 6 Hollow core and 2 beams___________________
2-20-64______ Zion Church________________ 150 lineal feet 6' TTs_________________________ 34
2-24-64______ Fire Station_________________ 3 6' TTs, 45' long--------------------------- 34
2-27-64______ Southwest Plaza____________ TTs and Hollow core_____________________ 30
With respect to the last item on the above table, Freeby testified that onFebru-
ary 14, 1964, the architect for Southwest Plaza had approved the drawings for these
items, which represented 75 percent of the items to be furnished by the Respondent
on this large 3-story project, and that it had taken his office until February 27 to
complete the final shop drawings for delivery to Production Manager Herting.
Engineer Freeby further testified that "about the middle of February" the Respond-
ent released one of the two draftsmen under his supervision to help the laborers in the
yard. This was done, according to Freeby, because "we didn't have anything for him
to do" and to give him "experience of seeing the product made." Neither Freeby nor
any other official of the Respondent attempted to explain why this draftsman could
not have assisted in the preparation of the drawings for the double T's and the hollow
core for the Southwest Plaza project which, when completed, would have provided
ample work for the men in the double T department. The Respondent's transfer of
one of the draftsmen to the yard at a time when it had a lot of drafting work to be
done in connection with the Southwest Plaza project is all the more inexplicable in
light of the fact, as Freeby admitted, that the Southwest Plaza was "pushing" the
Respondent to complete these drawings. _
From Freeby's testimony above summarized it appears that when the Respondent
laid off the men on February 20 at 2 p.m. it had on hand almost another week's work
for at least the crews manning the 4-foot wide double T beds. If the Respondent could
abruptly lay off the men on February 20, without a moment's advance notice, it could
have taken the same action later on, when the orders on hand were completed, if no
new approved shop drawings were received in the meantime. However, the Respond-
ent knew, for it had received approval from the customer of the shop drawings on a
large order of double T's and hollow core for the Southwest Plaza on February 14,
that a large volume of work on this one order lay ahead, and that the commencement
of the work awaited only the release of the final shop drawings by its own drafting
department. These drawings were in fact released on February 27,-and might have
been released earlier had not the Respondent chosen to dispense with the drafting
services of one of its two draftsmen at this particular time. Hence, it is not quite
accurate to say, as did Production Manager Herting on the witness stand, that at this
time "pretty much we were coming to the end of our backlog."
Upon all of the facts of the case, I conclude that the record does not sustain the
Respondent's contention that the low volume of work on hand justified the sweeping
layoff in the double T department at the particular time it was put into effect. Rather,
in my opinion, the facts of the case as a whole support the General Counsel's conten-
tion that the layoffs were motivated by antiunion considerations.
WILSON CONCRETE COMPANY, INC. 825
The layoffs occurred just a day or two after almost all of the double T employees had
attended a union meeting. One of the Respondent's foremen attended the meeting and
hence the Respondent had an opportunity to inform itself that the organizational effort
was largely confined to the double T employees.1 The record also shows, as found
above, that Production Manager Herting. had received reports of cards circulating in
the double T department and that he had not received such reports from other depart-
ments. Reports of union activities were the subject of discussion at a special super-
visors' meeting held on February 19.
The suddenness with which the decision to lay off the double T employees was
reached and the fact that employees were laid off in the middle of the workday with
their work unfinished 2 suggests that other than normal business considerations lay
behind the layoff at this time.,
The granting of the retroactive wage increase to the remaining employees, who were
largely uninvolved in the union activity, stands in contrast to the Respondent's treat-
ment of the employees in the one department in which the organizational activity was
concentrated. While the Respondent informed the employees in the other departments
that the layoffs in the double T department were due to a lack of work, actions speak
louder than words. The union sympathizers were out of jobs, temporarily at least,
and the other employees who had not shown an interest in the Union were given a
wage increase.
- That the Respondent intended by its contrasting treatment of the two groups to pose
an object lesson regarding the adverse consequences of joining a union is implicit in
the Respondent's entire course of conduct from the time it first became aware of the
double T employees' interest in the Union. That this was the Respondent's purpose
was made explicit by the Respondent's foremen.
Thus Foreman Wolfe, the day after the layoffs, commented to Jack Mills regarding
the employees who had signed union cards, as follows: "Boy, those guys were sure
stupid." In a similar vein is Foreman Lindsay's comment to Mills a few days after
the layoffs regarding union talk at the plant, "Well, we really shut that up quick, didn't
we?" Subsequently, as found above, Foreman Wolfe, in a conversation with Wilbern
again attributed the layoffs to the card signing activity going on in the yard at the time
of the layoffs.
• Another circumstance casting light on the Respondent's motives throughout is the
fact that two of the three original instigators of the Union, Wilbern and Behel, were
the last to be recalled to work. In fact they' 'were not recalled to work until after.the
complaint was issued herein, almost 2 months after the rest of the men had been sent
letters about returning to work. Wilbern and Bethel had more prominent roles than
the other employees at the union meeting on February 18 which was attended by Fore-
man Harrill. And when Wilbern and Bethel were put back to work, they were not put
in the double T department, but were assigned to the I-beam department in which a
brand new man, John Overton, had been hired about March 1.
Upon all of the facts of the case, I conclude and find that the Respondent would not
have laid off any of the double T employees at 2 p.m. on February 20, 1964, but for a
desire to impress upon the employees as a whole the risks involved in engaging in
union activity. This does not mean that the Respondent's workload might not have
justified it in laying off some double T employees in the days which followed. How-
ever, the layoffs, coming at the time they did and being prompted by antiunion con-
siderations, constituted an illegal act of discrimination against all of the employees
laid off, even though some of them might not have been union sympathizers.
D. Conclusions concerning the layoff of Arthur Adams
As found above,,Arthur Adams and one other laborer in the I-beam department
were laid off at 4:30 p.m., on February 20, the same day as the double T employees
were laid off. The complaint alleges that Adams' layoff was discriminatorily moti-
vated. Adams was the only employee outside of the double T department who attended
the union meeting on February 18. This was the union meeting which Foreman
Harrill attended. Although the Respondent told Adams that his layoff was due to lack
i While I find that the foreman who attended the meeting, James Harrill, did so at
the invitation of the employees , and that hence his presence should not be regarded as an
act of unlawful surveillance, the record, in-my opinion, does not warrant the conclusion
that Harrill was so allied in sympathies with the employees.that his knowledge that the
union movement was largely confined to the doube T employees should not be imputed
to the Respondent.
2It will be recalled that Wilbern was wiping excess oil off the bed at the time of the
layoff. The record shows that unless the concrete is poured before dust has had a chance
to collect, the quality of the slab is adversely affected.
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of work, the record does not reveal what the workload situation was in the I-beam
department on February 20. It does show, however, that the Respondent hired a new
employee in the I-beam department about March 1, without calling Adams back to
work. The Respondent does not treat Adams' case individually in its brief and con-
sequently I am not informed as to the evidence upon which the Respondent is relying
in Adams' case. Under all the circumstances, including Adams' attendance at the
February 18 union meeting along with most of the double T employees, the Respond-
ent's abrupt layoff of almost the entire double T department 2 days later, and Foreman
Harrill's attendance at the February 18 union meeting which gave the Respondent an
opportunity to inform itself as to Adams' interest in the Union, I infer and find that
Adams' layoff was motivated by the same antiunion considerations as lay behind the
Respondent's layoff of the double T employees, and that Adams' layoff therefore
violated Section 8(a) (3) of the Act.
E. Conclusions concerning the Respondent's constructive discharge of
Robert Wilbern on May 11
As found above, when Wilbern was called back to work on May 11, he was assigned
not to the double T department, in which he had worked for about 3 years, but to the
I-beam department. Wolfe, the foreman of the I-beam department had been out-
spoken in his opposition to the Union and was well aware of Wilbern's union sym-
pathies. Upon Wilbern's arrival in the I-beam department, Wolfe at once expressed
dissatisfaction with Wilbern's transfer to his department. The job to which Wilbern
was assigned in the I-beam department was not part of the regular work of- the
department, and for most of the time Wilbern was required to operate an airham-
mer which was very arduous work for a man of his slight build, even with some relief
from another laborer in the I-beam department. The foremen in the department
introduced restrictions on Wilbern's use of toilet facilities, kept after Wilbern-about
working every minute , and caustically criticized him for not getting the work done.
Previously, he had not been criticized about the way in which he performed his work.
Wilbern continued to operate the heavy airhammer until 4 p.m. when he became so
fatigued that the airhammer got away from him Wilbern then reported to the fore-
man that he was sick and was going to see the company doctor. The doctor advised
Wilbern to rest, which he did for awhile and then went home. That evening Wilbem
decided that he could not stand working under the conditions to which he had been
subjected, and did not thereafter return to the Company.
The General Counsel contends that the evidence summarized above warrants the
conclusion that the Respondent intentionally subjected Wilbern to harassment in an
effort to get him to quit and that it was motivated in so doing by its desire to get rid
of this prominent union supporter. I agree and find that the Respondent, by its actions
on May 11, 1964, constructively discharged Wilbern in violation of Section 8(a)(3)
of the Act. Cf. Southern Materials Company, Incorporated, of Norfolk, 145 NLRB-28.
F. Conclusions concerning the Respondent's violations of Section 8(a) (1)
of the Act
As found above, the same day the Respondent laid off the double T employees it
granted a retroactive wage increase to the remaining employees. Since virtually the
only employees interested in the Union at this time were the double T employees, the
Respondent's contrasting treatment of the remaining employees could not have
escaped their attention. The evidence summarized below with respect to the Respond-
ent's threats and questioning of employees demonstrates the Respondent's antipathy
for the Union. Under all the circumstances, I conclude that the Respondent's grant of
the wage increase on February 20, 1964, was part and parcel of its efforts to discourage
the unionization of its employees, and constituted interference, restraint, and coercion
in violation of Section 8(a) (1) of the Act. See N.L.R.B. v. Exchange Parts Company,
375 U.S. 405, 409-410.
As found above, Foreman Wolfe questioned Jack Mills about signing a union card
the morning after the layoff of the double T employees, and then commented, "Boy,
those guys were sure stupid." In the context in which this comment was made it
clearly implied that the layoffs were due to union activity and was hence coercive.
Under all the circumstances, Wolfe's questioning of Mills on this occasion about sign-
ing a union card was also coercive and in violation of Section 8(a) (1) of the Act.
Similarly violative of Section 8 (a) (1) is Foreman Lindsey's action early the follow-
ing week in questioning Mills about organizational activities and at the same time
WILSON CONCRETE COMPANY, INC. 827
commenting , with reference to the union activities in the double T department , "Well,
we really shut that up quick, didn 't we?" Foreman Wolfe's later comment to laid-off
employee Wilbern that the union card signers had done "a pretty good job" of doing
themselves "out of a job" also constituted a violation of Section 8 (a) (1) of the Act.
The General Counsel argues that Foreman Harrill 's questioning of employee Gomez
on March 12 , 1964, about visiting a Board investigator also constituted a violation of
Section 8(a)(1) of the Act. The record does not disclose the background of this
conversation , and I find the record too cryptic and fragmentary for me to base an
adverse finding upon this incident . As indicated above, I do not regard Foreman
Harrill 's attendance at the union meeting on February 18, 1964, as constituting unlaw-
ful'surveillance because of the fact that Harrill attended the meeting at the invitation
of the employees and without objection from the union representatives who were con-
ducting the meeting.
CONCLUSIONS OF LAW
1. By laying off the 17 double T department employees named in the Recommended
Order below on February 20, 1964, and by laying off Arthur Adams on the same day
in order to discourage membership in the Union, the Respondent has engaged in
discrimination against these 18 employees in violation of Section 8(a) (3) of the Act.
2. By constructively discharging Robert Wilbern on May 11 , 1964, because of his
support of the Union , the Respondent has engaged in discrimination in violation of
Section 8 (a) (3) of the Act.
3. By granting a wage increase for the purpose of inducing the employees to reject
the Union 's organizational efforts, the Respondent has engaged in interference,
restraint , and coercion in violation of Section 8(a) (1) of the Act.
4. By coercively questioning employees concerning union matters, making veiled
threats of reprisals against employees because of their union activities , and by engag-
ing in acts of discrimination against employees in order to discourage membership in
the Union , the Respondent has further interfered with , restrained , and coerced
employees in violation of Section 8 (a) (1) of the Act.
5. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2 ( 6) and (7) of the Act.
THE REMEDY
My Recommended Order will contain the conventional remedial provisions for the
unfair labor practices found; namely, that the Respondent cease and desist from its
unfair labor practices, and that it reinstate the employees found to have been unlaw-
fully laid off or discharged to their former positions if available , and if not, to sub-
stantially equivalent positions , without loss of seniority or other rights and privileges.
See The Chase National Bank of the City of New York, San Juan, Puerto Rico,
Branch, 65 NLRB 827, 828-829 . My Recommended Order will also direct the
Respondent to make whole the employees for their losses, with interest , in accord-
ance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289,
291-293, and Isis Plumbing & Heating Co ., 138 NLRB 716. I recognize that the
employees found herein to have been unlawfully discriminated against have been
recalled to work. Insofar as any of these employees have been reinstated or prop-
erly offered reinstatement to their former or substantially equivalent positions in
accordance with the requirements of my Recommended Order, the Respondent
need not make a further offer of reinstatement . The record does not afford an
adequate basis for determining the legal sufficiency of the Respondent 's reinstate-
ment efforts. Such matters may be left to the compliance stage of the proceedings.
In view of the serious nature of the Respondent 's unfair labor practices , including
abruptly laying off 18 employees in order to pose an object lesson concerning the
adverse consequences of supporting a union , a broad cease-and-desist order is
necessary to guard against further violations of the Act by the Respondent in the
future.
RECOMMENDED ORDER
Upon the foregoing findings and conclusions and the entire record , and pursuant
to Section 10(c) of the Act, I hereby recommend that the Respondent , Wilson Con-
crete Company, Inc., Omaha , Nebraska , its officers , agents, successors , and assigns,
shall:
1. Cease and desist from:
( a) Discouraging membership in General Drivers and Helpers Union Local No.
554, affiliated with International Brotherhood of Teamsters , Chauffeurs , Warehouse-
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
men and Helpers of America , or any other labor organization , by laying off or dis-
charging employees, or by discrimination in any other manner in regard to their hire
or tenure of employment or any term or condition of employment.
(b) Granting employees benefits in order to discourage union activities, threaten-
ing employees with reprisals because of their union activities , coercively questioning
employees about union matters , and in any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act:
(a) Offer immediate and full reinstatement to their former or substantially equiva-
lent positions, without prejudice to their seniority or other rights and privileges, to the
employees named below and make each of them whole for any loss of pay they may
have suffered as a result of its unfair labor practices , in the manner set forth herein
in the section entitled "The Remedy."
Arthur Adams Herman Harper Dale Mether '
Charles Argo Joe Leichleiter Lowell Osborne
Jerry Bethel Ed Leonard Fred Uzell
Arthur Cates Fred Martin Robert Vanderpool
Richard'Dickman Byron Meek Robert Wilbern
Richard Greenwalt Marvin Melby John Wilcoxson
(b) Notify the above-named employees if presently serving in the Armed Forces of
the United States of their right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military Training and Service Act of
1948, as amended, after discharge from the Armed Forces.
(c) Preserve and , upon request , make available to the Board or its agents, for
examination and copying , all payroll records , social security payment , records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amounts of backpay due. -
(d) Post at its Omaha, Nebraska, plant, copies of the attached notice marked
"Appendix." 3 Copies of said notice, to be furnished by the Regional Director for
Region 17, shall, after being duly signed by an authorized representative of the
Respondent , be posted by the Respondent immediately upon receipt thereof, and be
maintained by it for a period of 60 consecutive days thereafter , in conspicuous places,
including all places where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that said notices are -not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 17, in writing, within 20 days from
the receipt of this Decision, what steps it has taken to comply herewith .4
In the event that this Recommended Order be adopted by the Board , the words "a
Decision and Order" shall be substituted for the words "a Recommended Order of a Trial
Examiner" in the notice . In the further event that the Board 's Order be 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 be 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 the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT lay off or discharge any employee because he is a member of
General Drivers and Helpers Union Local No. 554, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
or any other labor union.
WE WILL NOT grant employees benefits in order to discourage union activities,
threaten employees with reprisals because of their union activities , or coercively
question employees about union matters.
WE WILL, if we have not already done so, offer immediate and full reinstate-
ment to each of the employees named below, to his former position, if available,
GENERAL ELECTRIC CO., AUTOMATIC BLANKET PLANT 829
or if not, to a substantially equivalent position, without prejudice to his seniority
or other rights and privileges, and will reimburse each of them for any loss of pay
he may have suffered as a result of being laid off or discharged.
Arthur Adams Herman Harper Dale Mether
Charles Argo Joe Leichleiter Lowell Osborne
Jerry Bethel Ed Leonard Fred Uzell
Arthur Cates Fred Martin Robert Vanderpool
Richard Dickman Byron Meek Robert Wilbern
Richard Greenwalt Marvin Melby John Wilcoxson
All our employees have the right to form, join, or assist any labor union, or
not to do so.
WE WILL NOT interfere with, restrain, or coerce our employees in the exercise
of these rights.
WILSON CONCRETE COMPANY, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 1200 Rialto
Building, 906 Grand Avenue, Kansas City, Missouri, Telephone No. Baltimore 1-7000,
Extension 731, if they have any question concerning this notice or compliance with
its provisions.
General Electric Company, Automatic Blanket Plant and Inter-
national Union of Electrical, Radio and Machine Workers,
AFL-CIO. Case No. 11-CA-2260. January 7, 1065
DECISION AND ORDER
On September 2, 1964, Trial Examiner James V. Constantine
issued his Decision in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor Relations Act,
and recommending that it cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. He also found that the Respondent had not engaged in
other unfair labor practices alleged in the complaint and recom-
mended dismissal of those allegations. Thereafter, the General
Counsel, the Charging Party, and the Respondent filed exceptions
to the Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Fanning and
Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
150 NLRB No. 75.