Idaho Concrete Products Co.

National Labor Relations Board - Board Decisions

Dec 16, 1958

122 N.L.R.B. 412 (N.L.R.B. 1958)

412 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
2. Indianapolis and Central Indiana District Council , United Brotherhood of
Carpenters and Joiners of America , AFL-CIO and Local 60 , United Brotherhood
of Carpenters and Joiners of America , AFL-CIO, are labor organizations within
the meaning of the Act.
3. By enforcing and maintaining an oral agreement and/or understanding and
practice with Mechanical Handling Systems , Incorporated, which contains and in-
volves terms and conditions of employment requiring clearance or referral of
certain applicants of employment by the labor organizations aforesaid before their
employment by Mechanical Handling Systems , Incorporated , the said Respondent
labor organizations have engaged in and are engaging in unfair labor practices
within the meaning of Section 8(b)(2) of the Act.
4. By interfering with , restraining , and coercing employees in the exercise of
the rights guaranteed in Section 7 of the Act, the said Respondents have engaged
in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
The Respondents have not engaged in any unfair labor practices alleged in the
complaint other than those specifically found herein.
The Respondent named in Case No. 35-CB-220, United Brotherhood of Car-
penters and Joiners of America , AFL-CIO, has not engaged in any of the unfair
labor practices alleged in the complaint.
[Recommendations omitted from publication.]
APPENDIX A
INTERNATIONAL AGREEMENT
Memorandum of Agreement between the firm of MECHANICAL HANDLING
SYSTEMS, INC., 4600 NANCY AVE., DETROIT 12, MICHIGAN, and the
United Brotherhood of Carpenters and Joiners of America
We, the firm of MECHANICAL HANDLING SYSTEMS, INC., AGREE to
recognize the jurisdiction claims of the United Brotherhood of Carpenters and
Joiners of America, to work the hours, pay the wages and abide by the rules and
regulations established or agreed upon by the United Brotherhood of Carpenters
and Joiners of America of the locality in which any work of our company is
being done, and employ members of the United Brotherhood of Carpenters and
Joiners.
No change to be made in the hours and wages in any locality, and no conditions
imposed other than are enforced on all Local firms.
In consideration of the foregoing , the United Brotherhood of Carpenters and
Joiners of America agree that no stoppage of work or any strike of its members,
either collectively or individually , shall be entered into pending any dispute being
investigated and all peaceable means taken to bring about a settlement.
MECHANICAL HANDLING SYSTEMS, INC.,
(Signed ) RALPH GRAY,
Asst . Director of Manufacturing.
For the United Brotherhood of Carpenters and Joiners of America.
(Signed ) M. A. HUTCHESON,
General President.
DATED 10 May 1956.
Idaho Concrete Products Co. and Teamsters, Chauffeurs, Ware-
housemen & Helpers Local Union No. 983. Case No. 19-CA-
1537. December 16, 1958
DECISION AND ORDER
On July 29, 1958, Trial Examiner Martin S. Bennett issued his
Intermediate Report in this proceeding, finding that the Respondent
had engaged in certain unfair labor practices and recommending that
122 NLRB No. 65.
IDAHO CONCRETE PRODUCTS CO. 413
it cease and desist therefrom and take certain affirmative action, as
set forth in the copy of the Intermediate Report attached hereto.
Thereafter, the Respondent filed exceptions to the Intermediate.
Report.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in con-
nection with this case to a three-member panel [Chairman Leedom
and Members Rodgers and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner.1
ORDER
Upon the entire record in this case and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National
Labor Relations Board hereby orders that the Respondent, Idaho
Concrete Products Co., Pocatello, Idaho, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively concerning rates of pay,
wages, hours of employment, and other conditions of employment
with Teamsters, Chauffeurs, Warehousemen & Helpers Local Union
No. 983 as the exclusive representative of its production, maintenance,
and transportation employees, but excluding outside salesmen, office
clericals, professional employees, guards, and supervisors.
(b) Unilaterally changing conditions of employment without no-
tice to or consultation with the Union.
(c) Discouraging membership of its employees in Teamsters,
Chauffeurs, Warehousemen & Helpers Local Union No. 983, or in
any other labor organization of its employees, by discriminating in
regard to hire or tenure of employment or any term or condition
thereof, except to the extent permitted by Section 8(a) (3) of the
Act.
(d) Threatening employees with economic reprisals in the event
of union organization of victory in representation elections and pre-
paring and sponsoring demands by employees for new representa-
tion elections.
(e) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist Teamsters, Chauffeurs,
' As no exceptions were filed to the Trial Examiner 's findings that the Respondent
violated Section 8 ( a) (1) of the Act by its threat of economic reprisal , and Section
8(a) (5) of the Act, we adopt them pro forma.
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Warehousemen & Helpers Local Union No. 983, or any other labor
organization, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection, or
to refrain from any or all such activities, except to the extent that
such right may be affected by an agreement requiring membership in
a labor organization as a condition of employment as authorized in
Section 8(a) (3) of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Upon request, bargain collectively with Teamsters, Chauf-
feurs, Warehousemen & Helpers Local Union No. 983 as the exclu-
sive representative of all employees in the aforesaid appropriate
unit, concerning rates of pay, wages, hours of employment, and
other conditions of employment, and if an understanding is reached,
,embody such understanding in a signed agreement.
(b) Offer to Glen Scheu immediate and full reinstatement to his
former or a substantially equivalent position, without prejudice to
his seniority or other rights and privileges and make him whole for
any loss of earnings he may have suffered by reason of the discrimi-
nation against him in the manner set forth in the section of the
Intermediate Report entitled "The Remedy."
(c) Preserve and make available to the Board or its agents, upon
request, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all other records necessary to determine the amount of back
pay due under the terms of this Order.
(d) Post at its plant at Pocatello, Idaho, copies of the notice at-
tached hereto marked "Appendix." 2 Copies of said notice, to be fur-
nished by the Regional Director for the Nineteenth Region, shall,
after being signed by Respondent's representative, be posted by Re-
spondent immediately upon receipt thereof and maintained by it for
a period of sixty (60) consecutive days thereafter in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any other ma-
terial.
(e) Notify the Regional Director for the Nineteenth Region in
writing, within ten (10) days from the date of this Order, as to
what steps the Respondent has taken to comply herewith.
2 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
-words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
IDAHO CONCRETE PRODUCTS CO.
APPENDIX
NOTICE TO ALL EMPLOYEES
415
Pursuant to a Decision and Order of the National Labor Rela-
tions Board, and in order to effectuate the policies of the National
Labor Relations Act, we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively concerning rates
of pay, wages, hours of employment, and other conditions of
employment with Teamsters, Chauffeurs, Warehousemen &
Helpers Local Union No. 983 as the exclusive representative of
our employees in the appropriate unit.
WE WILL NOT unilaterally change conditions of employment
without notice to or consultation with Teamsters, Chauffeurs,
Warehousemen & Helpers Local Union No. 983.
WE WILL, NOT discourage membership of our employees in
Teamsters, Chauffeurs, Warehousemen & Helpers Local Union
No. 983, or in any other labor organization of our employees,
by discriminating in regard to hire or tenure of employment or
any term or condition thereof, except to the extent permitted
by Section 8(a) (3) of the Act.
WE WILL NOT threaten employees with economic reprisal in
the event of union organization or victory in representation elec-
tions, nor will we prepare or sponsor demands by employees for
new representation elections.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-organ-
ization, to form labor organizations, to join or assist Teamsters,
Chauffeurs, Warehousemen & Helpers Local Union No. 983, or
any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any or
all such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor or-
ganization as a condition of employment as authorized in Sec-
tion 8 (a) (3) of the Act.
WE WILL bargain collectively, upon request, with Teamsters,
Chauffeurs, Warehousemen & Helpers Local Union No. 983 as
the exclusive representative of all employees in the bargaining
unit described below with respect to rates of pay, wages, hours
of employment, and other conditions of employment , and if an
understanding is reached, embody such understanding in a
signed agreement. The bargaining unit is:
416 DECISIONS OF NATIONAL: LABOR RELATIONS BOARD
All production, lnaintenance`and transportation employees
employed at our Pocatello, Idaho, plant, excluding outside
salesmen, office clericals, professional employees, guards, and
supervisors as defined in the Act.
WAVE WILL offer Glen Scheu immediate and full reinstatement
to his former or substantially equivalent position, without
prejudice to seniority or other rights and privileges previously
enjoyed, and make him whole for any loss of pay suffered as a
result of our discrimination against him.
All 'our employees are free to become or remain, or refrain from
becoming or remaining, members of the above-named or any other
labor organization.
IDAHO CONCRETE PRODUCTS CO.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
The complaint alleges that Respondent, Idaho Concrete Products Co., has en-
gaged in conduct violative of Section 8(a)(1), (3), and (5) of the Act by (a) on
and after September 5, 1957, refusing to bargain with Teamsters, Chauffeurs,
Warehousemen & Helpers Local Union No. 983, herein called the Union, as the
representative of its employees in an appropriate unit and further by instituting
a unilateral wage increase; (b) on or about October 28, 1957, discharging Glen
Scheu because of his union membership and activities; and (c) engaging in various
acts of interference, restraint, and coercion subsequent to June If, 1957, including
a threat to reduce hours if the Union won an election and to raise wages if the
Union lost; preparation and sponsorship of a petition by employees to the Idaho
State Department of Labor protesting union victory in a representation election
and seeking another election; institution of a unilateral wage increase without con-
sultation with the Union; and threats to employees of layoffs and loss of work for
joining the Union and attending union meetings.
Respondent's answer denied the commission of any unfair labor practices, alleged
that the Union did not represent a majority of the employees in the appropriate
unit, and admitted that Respondent gave no notice to the Union of the granting
of a wage increase on October 21, 1957, allegedly promised prior thereto.
Pursuant to notice, a hearing was held before the duly designated Trial Examiner
at Pocatello, Idaho, on June 4 and 5, 1958. All parties were represented and
were afforded full opportunity to be heard, to examine and cross-examine wit-
nesses, and to introduce relevant evidence. A motion by Respondent to strike
from the complaint all allegations of interference, restraint and coercion not item-
ized in the charge as such was denied. N.L.R.B. v. Edwin D. Wemyss, d/b/a
Coca-Cola Bottling Company of Stockton, 212 F. 2d 465 (C.A. 9), and N.L.R.B.
v. Waterfront Employers of Washington,. 21.1 F. 2d 946 (C.A. 9). At the close
of the hearing, the parties were given an opportunity to argue orally and to submit
briefs. Oral argument was waived and a brief has been received from the General
Counsel.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following: '
IDAHO CONCRETE PRODUCTS CO. 417
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Respondent is an Idaho corporation with its plant and office located at Pocatello,
Idaho, where it is engaged in the manufacture and sale of concrete pipe and other
concrete products. During the fiscal year from April 1, 1957, through March 31,
1958, Respondent made the following sales and shipments of merchandise, inter
alia:
Idaho Concrete Pipe Company ------------------------------ $75,363.50
Clark Concrete Construction Corporation--------------------- 5,204.07
Rupert Sorenson Construction Company---------------------- 28,674.00
Jack Parson Construction Company----- --------------------- 10,110.08
Total --------------------------------------------- 119,351.65
The first three concerns named are Idaho companies, each of which ships mer-
chandise from or performs work outside the State of Idaho valued in excess of
$50,000 per annum . The last named, Jack Parson Construction Company, is a
Utah concern which, since the fall of 1957, has been employed on an Idaho con-
struction project whose contract price is in excess of $600,000. Whether the
figures of all four of these concerns are relied upon, or just the first three, the
totals meet the Board's standards for the assertion of jurisdiction based upon sales
to firms which make out-of-State sales or perform out-of-State services. Whippany
Motor Co., Inc., 115 NLRB 52.
While it is true that in a prior representation proceeding the Board refused to
assert jurisdiction over the operations of Respondent (Clark Concrete Construction
Corporation, et al., 116 NLRB 321), the figures there treated with were earlier,
differ from those presented herein, and constitute no bar to the assertion of juris-
diction in this proceeding. Orkin Exterminating Company, Inc., 115 NLRB 622,
626. Similarly, I deem it unnecessary to pass upon the General Counsel's alter-
nate contention, for which there is evidentiary support that Respondent and Clark
Concrete Construction Corporation, substantially controlled by the same persons,
constitute an integrated employer under the Act, contrary to the Board's holding
in the earlier decision , and his assertion that reliance should also be placed upon
the business operations of the latter concern. But cf. Concrete Joists & Products
Co., Inc., 120 NLRB 1542.
I find that the operations of Respondent affect commerce and that it will effec-
tuate the purposes of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Teamsters, Chauffeurs, Warehousemen & Helpers Local Union No. 983 is a
labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain
1. Majority representation in the appropriate unit
The complaint alleges that all production, maintenance , and transportation em-
ployees of Respondent at its Pocatello, Idaho, plant, excluding outside salesmen,
office clericals, professional employees, guards, and supervisors, constitute a unit
appropriate for the purposes of collective bargaining within the meaning of Sec-
tion 9(b) of the Act. Respondent's answer admits this allegation and I so find.
The complaint further alleges, and Respondent's answer denies, that since
August 26, 1957, the Union has been the duly designated bargaining representa-
tive of Respondent's employees in the aforesaid appropriate unit within the mean-
ing of Section 9(a) of the Act. The General Counsel relies herein primarily on
the Union's victory in an election conducted by the Idaho Department of Labor
among the employees of Respondent on September 4, 1957.
General Manager E. J. Moore, Jr., of Respondent, testified that the representa-
tives of the State Department of Labor, in preparation for the election , requested
that he furnish them with a, roster of personnel. Pursuant to such request, Moore
supplied the election officials with a list of 14 names which, according to Moore,
constituted a roster of the employees at the plant. The election was originally
scheduled for August 28 but was postponed 1 week until September 4, at Moore's
request, so that a number of men on vacation could return and vote.
505395-59-vol. 12 2-2 8
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The election was conducted on September 4, as scheduled, and on September 6
the State Commissioner of Labor issued a certification of election disclosing that
a majority of ballots was cast in favor of the Union which was "hereby certified
as the bargaining representative of all the employees of the Idaho' Concrete Com-
pany within said voting unit." The record elsewhere discloses that of 10 votes
cast, 7 were cast in favor of the Union and 3 against. There is also evidence
that the Union had 9 signed designation cards antedating the election from among
those in the unit.'
Respondent in effect has claimed that the election was conducted with such
irregularities that it ought not to be recognized herein. Initially, it is to be noted
that of the 14 employees on the list furnished by Respondent, 2, Mael and Doane,
the latter a card signer, had quit at the time of the election and did not vote.
This reduces the unit to 12 and no contention is made with respect to the elimi-
nation of these 2. Respondent urges, however, that two of those on the list who
voted, Harold Sturges and Rayo Scott, were temporary employees who should not
have voted and, further, that they were not production workers within the scope
of the unit. The record lends little support for this contention.
Moore testified that the notation "Temp." designating the word " temporary" was
placed beside the names of Sturges and Scott because they were temporary workers
hired to "construct our bins and elevators" and were not members of the unit.
Some months before the election Respondent transferred its personnel to a new
plant and apparently abandoned the old plant. The transferred personnel, how-
ever, were assigned to various construction tasks necessary to prepare the plant
for production and this situation existed for some months. Actual production
operations did not commence until late October or early November of 1957, sub-
sequent to the election, but certain construction operations were carried on by
plant personnel simultaneously therewith until December 20, 1957.
Sturges entered the employ of the Respondent in March of 1957 as a welder
and was laid off on January 9, 1958. He testified, and I find, that Moore and
another supervisor, Plant Superintendent Joseph Eastvold, told him at the time of
his hiring that he would be permanent the year round.2 They also informed
Sturges that he would perform maintenance work and welding at the new plant.
Sturges did do welding work primarily at the new plant as well as painting and
maintenance operations involving the setting up of new equipment. In late Sep-
tember or October, after the election, Sturges was transferred to the position of
truckdriver and remained in this post until his layoff in January of 1958. The
record discloses that no production work was performed by Sturges or anyone else
for that matter until after the election, commencing at approximately the time
Sturges became a truckdriver. Indeed, Moore conceded herein that at the time
of the election "all of them" were engaged on construction and nonproduction
operations in the plant.3
The position of the General Counsel that Sturges was not a temporary employee
is further supported by the uncontroverted testimony of Sturges concerning a con-
versation with Moore shortly prior to the election. That the election was impend-
ing is disclosed by the fact that Moore commented the men would be "better off
if they didn't go Union." During the conversation, Sturges asked if he would be
working "steadily" and Moore, according to Sturges, "assured me that I would be."
Moreover, when casting his ballot at the election Sturges noted the designation
"temporary" beside his name on the roster of personnel as placed there by Moore.
He asked Moore the meaning of this designation and Moore replied, according to
Sturges, and I find, "All the men are temporary until they have proven them-
selves." He went on to state that Sturges as a nonproduction man had no right
to vote and that there would be a new election . Sturges voted without challenge
by Respondent's observer Wilkie, who was a foreman and a supervisor, and pre-
sumably well aware of Sturges ' precise status in the plant . Wilkie did not testify
herein and the record does not disclose what instructions, if any, were given him
as an observer.
1 The State certificate describes the unit as "All production employees, excluding office
help, manager, supervisors, and guards." No contention is made herein that this unit
differs in any way from the unit described in the complaint. I find that they are in
substance the same unit. See Brewery and Beverage Drivers and Workers etc. v.
N.L.R.B. ( Washington Coca-Cola Bottling Works, Inc.), 257 F. 2d 194 (C.A., D.C.).
2 Neither Eastvold nor Moore testified concerning this conversation.
8 No contention is made that the unit at the time of the election was not representative
of the ultimate complement of personnel . To the contrary , it would seem that the unit
may have contracted slightly in the following months.
IDAHO CONCRETE PRODUCTS CO. 419
In addition , when Sturges was laid off in January by Office Manager Gene
Jacobsen the latter said nothing about Sturges being a temporary worker. Accord-
ing to Sturges , Jacobsen informed him that he had orders to cut down the number
of personnel to 10, that this situation would last fora couple of months, and that
as soon as production started up he would call Sturges back.4 The testimony of
other employees, none of them claimed by Respondent to be temporary workers,
is corroborative of that of Sturges. Richard Murray was employed from March
1957 through April or May of 1958. He shoveled gravel, worked as an offbearer
for 3 months, and was transferred to the new plant where he performed mainte-
nance work involving welding and the setting up of new machinery at the time
of the election; he did not perform production work. Richard Fordyce, an em-
ployee of 10 years' tenure who is still in Respondent's employ, testified that he
had been on maintenance work involving the repair of machinery and setting up
new equipment for 1 year prior to the instant hearing ( June 1958); obviously this
included the time of the election. Fordyce thereafter performed production work
only when Respondent was shorthanded.
Scott, the other alleged• temporary worker, did not testify herein but Sturges'
testimony discloses that Scott was engaged in the overhauling of Respondent's
trucks and not on production work. Respondent's contention with respect to
Scott is on the same plane as that with respect to Sturges and it would logically
follow that if the contention concerning Sturges lacks substance so also must that
with respect to Scott.
As for that facet of the contention that Sturges and Scott were not production
workers, it has already been demonstrated that there were no production workers
as such at the time of the election, and Respondent makes no such attack on the
remainder of the unit; indeed this was conceded by Moore. And, as noted,
Sturges was thereafter assigned to truckdriving, a task which apparently did come
within the definition of production work in Respondent's eyes. Moreover, the
votes of Sturges and Scott were not challenged by Respondent's observer, Wilkie,
a supervisor who certainly was fully familiar with their duties. I find, therefore,
on this record, that Sturges and Scott were not temporary workers at the time of
the election. I further find that they came within the scope of the unit. Respond-
ent's contention is accordingly rejected.
Respondent has further claimed that two employees, John Wall and Leman
Whited, were absent from the area at the time of the election and did not have
a chance to vote. The record discloses that these employees have a common
mother-in-law and that both left the area some 12 days prior to the election due
to her hospitalization in Kansas City. They returned to Pocatello on September 4
after the tally of ballots had been made.
Wall admitted herein that he knew an election was impending at the time of
his departure, apparently on or about Friday, August 23, for, as noted, the election
was originally scheduled for August 28 and was postponed I week at the request
of Respondent. Wall also testified that because of the family illness he was not
particularly concerned about voting in the election. The testimony of Whited dis-
closes only that he and Wall left together on their mission and returned together.
While it is conceivable that Wall and Whited might have voted against the
Union had they been present, this is truly speculative at best and moreover is
doubtful in view of the fact that both had previously signed union authorization
cards. The fact is, as the record well demonstrates, that election notices were
duly posted at the plant, the election was postponed at Respondent's request to
a date in which Respondent concurred, and Wall admittedly did not care to vote
under the circumstances . This is no different then from any election where a
portion of the electorate, for reasons best known to itself, chooses not to exercise
the franchise but becomes bound by the majority decision of those who do vote.
Respondent 's contention in this respect is deemed to lack merit. See National
Van Lines, 120 NLRB 1343. 1 find that there is no support for Respondent's
contention that the election was marked by irregularities.
The Supreme Court has held that in the case of a labor organization not in
compliance with Section 9(f), (g), and (h) of the Act, the Board may rely upon
the results of a State-conducted election to demonstrate a union majority . N.L.R.B.
Y. District 50, United Mine Workers of America, 355 U.S. 453. It would seem
A Jacobsen did not dispute this version. He testified that Sturges had been put on a
truck in order to give him winter work, was the youngest truckdriver, and that "The
slack time came and we didn't have any other truck and our deliveries were slow."
Jacobsen pegged this as a layoff caused by the advent of the slack season , and his testi-
mony was entirely silent as to Sturges being a temporary employee.
420 DECISIONS.OF NATIONAL LABOR RELATIONS BOARD
to follow logically that a labor organization which is in compliance. with those
sections of the Act, as is the Charging Party, is entitled at the very least to equal
stature or recognition. See Retail Associates, Inc., 120 NLRB 388.
The Board has held that a certification of a bargaining representative issued by
a State agency pursuant to a secret election conducted by that agency which is
unmarked by any irregularities of substance, must be honored by an employer for
1 year, precisely as he must honor a Board certification. I find that there are no
circumstances present warranting the suspension of this policy here.
It is found, therefore, that from September 4, 1957, the date of the election, as
well as from September 6, 1957, the date of the Idaho certification of election, the
Union has been and now is the majority representative of the employees in the
above-described appropriate unit pursuant to Section 9(a) of the Act. Dunkirk
Broadcasting Corporation, et al., 120 NLRB 1588; Bluefield Produce & Provision
Company, 117 NLRB 1660, 1663; Olin Mathieson Chemical Corporation, 115
NLRB 1501, 1502; and T-H Products Company, 113 NLRB 1246, 1247.
2. Attempts to bargain
Respondent's answer admits that the Union has requested Respondent to bargain
and that Respondent has refused on the ground that it did not believe the Union
represented a majority of the employees in the appropriate unit. The uncontro-
verted testimony of Rex Murdock, business agent and vice president of Local 983,
discloses that he called upon Moore on September 5 to lay the groundwork for
future bargaining. No request for actual bargaining was made on this occasion,
according to Murdock, but Moore pointed out that he, Moore, doubted that the
election was legal for the reasons previously stated herein and rejected.
The next contact was on September 20 when Secretary-Treasurer Lott of the
Union wrote to Moore, stated that the Union had been certified by the State Labor
Commission, and asked that Respondent contact the Union "for a satisfactory date
to commence negotiations."
There was no reply to the letter and on October 7 Murdock again visited Moore
and asked what Respondent's position was on the Union's request to commence
negotiations. Moore replied that Respondent's counsel herein, Louis Callister, had
been retained and that all correspondence should be directed to him. Moore added
that he had already discussed the matter with Callister and that the Union "should
be hearing from him in a few days."
However, no communication was received from Callister or from Moore and,
on November 1, Murdock wrote to Moore as set forth below. The letter indi-
cated that a copy was sent to Callister and, according to Murdock, a contract
proposal was in fact enclosed:
Enclosed please find copy of proposed agreement covering your employees
for wages and working conditions.
I refer you to letter of September 20, 1957, wherein Secretary Lott re-
quested that you contact our office and notify us of a satisfactory date to
commence negotiations. You will recall that I met with you at your office
on October 7, 1957 at which time you informed me that Mr. Callister would
be the company attorney, and copies of any correspondence should be sent to
him. Also that we should receive from Mr. Callister in the next few days,
a letter in reply to our requests of September 20, 1957 and October 7, 1957.
I am mailing a copy of the proposed agreement and as well a copy of this
letter with a further request that the company notify this office and Pocatello
office of a satisfactory date to commence negotiations. We would like to
meet with you at your earliest convenience.
No reply of any nature was received from Respondent or its counsel and there
has been no further contact between the parties. I find, in view of the foregoing,
that from September 20, 1957, on, Respondent has refused to meet with and bar-
gain with the Union.5
3. Conclusions
The Supreme Court has held that an employer is under a duty to bargain with
a certified union regardless of loss of majority shortly after the election. Ray
While. it could logically be contended that September 5 is the date of the violation in
view of the fact that Moore raised the alleged election irregularities on that date, it does
not appear that a request to bargain was made on this occasion. Murdock conceded that
the visit was one merely to make Moore's acquaintance and "pending certification we•
would be looking forward to meeting with the Company."
IDAHO CONCRETE PRODUCTS CO. 421
Brooks v. N.L.R.B., 348 U.S. 96. Accordingly, evidence contained in the record
that a group of employees petitioned the Idaho board on September 7, the day
after the election, for a new election is not material even if this was done with-
out employer sponsorship. Moreover, as will appear, there is direct evidence of
employer sponsorship of the petition to the State board which renders Respondent's
position even less tenable. Franks Bros. Company v. N.L.R.B., 321 U.S. 702;
Medo Photo Supply Corporation v. N.L.R.B., 321 U.S. 678; N.L.R.B. v. Parma
Water Lifter Co., 211 F. 2d 258 (C.A. 9); cert. den. 348 U.S. 829.; and N.L.R.B.
v. Idaho Egg Producers, Inc., 229 F. 2d 821 (C.A. 9).
I find that by refusing to bargain with the Union on and after September 20,
1957, Respondent evaded its responsibilities under the Act and has engaged in
unfair labor practices within the meaning of Section 8(a)(5) of the Act, thereby
interfering with, restraining, and coercing employees in the exercise of the rights
guaranteed under Section 7 and engaging in unfair labor practices within the mean-
ing of Section 8(a)(1) of the Act. N.L.R.B. v. The Proof Company, 242 F. 2d
560 (C.A. 7), cert. denied 355 U.S. 831; N.L.R.B. v. Reliance Clay Products
Company, 245 F. 2d 599 (C.A. 5); Old King Cole, Inc., 119 NLRB 837; and
California Date Growers Association, 118 NLRB 246.
4. The wage increase
The complaint further alleges that Respondent instituted a unilateral, across-the-
board wage increase and other changes in conditions of employment on or about
October 21, 1957, without consultation with or notice to the Union. Respondent's
answer admits that it failed to give any notice to the Union of the increases. This,
of course, would be consistent with Respondent's refusal to recognize the certifi-
cation of September 6, as set forth above.
In February 1957, shortly after Moore entered Respondent's employ, he met with
the employees and informed them that when Respondent moved to its new plant
and commenced production the question of wages would be taken up. According
to Moore, he stated that they would then hold a bargaining conference or else
go to the rate of "our sister plant," this being the Idaho Falls plant of Clark
Concrete Construction Company, discussed hereinabove in the section on com-
merce. According to several employees who testified herein, this promise, if it
may be called that, also included a preliminary condition that costs in the new
plant be reduced to a certain figure.
The move to the new plant was made and thereafter, in August, wage rates
were discussed in another meeting. The election was then imminent, and Moore
admittedly made reference to the Union, comparing wage receipts under Respond-
ent's scales based upon the customary overtime work with higher union scales at
the organized Idaho Falls plant where a shorter workweek was prevalent. Moore
claimed, however, that he promised the employees nothing at the August meeting
and that he did not mention the topic of wages between February and October.
Respondent apparently did not get into full production at the new plant until
December 20 when the construction program was completed. Production did
start late in October or early in November, but the construction program, carried
on by employees, continued simultaneously therewith. Nevertheless, on October 21,
a notice was posted setting forth new wage scales for the entire plant and this
resulted in wage increases for every classification. Moore was uncertain in his
testimony whether or not a provision in the notice for holiday pay on six holidays
involved a change or not. Although I find this lack of knowledge difficult to
accept, there is no evidence to the contrary and the findings that follow are predi-
cated upon the wage increases alone.
In sum , Respondent made a rather indefinite statement in February 1957 con-
taining a vague promise to consider the wage situation in the future. At an
August meeting no reference was made to the prior alleged promise and the meet-
ing was devoted solely to a comparison of conditions in Respondent' s nonorgan-
ized plant to those in its "sister" plant in Idaho Falls which was organized. The
Union succeeded in its organization of the plant and won the election of Septem-
ber 4. And, on October 7, Moore, as set forth above, was visited by Murdock
in an attempt to bargain, all to no avail. Two weeks later, on October 21, plant-
wide wage increases which were of some substance were posted without notifica-
tion of any nature to the Union.
For the purposes of this allegation of the complaint it suffices to point out that
the General Counsel has proven his case solely on the basis of the bypassing of
the Union. It is by now well established that an employer who unilaterally hands
out wage increases without notice to or consultation with the established bargain-
ing representative, as is the case here, acts in derogation of his responsibilities
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
under the Act. I find that by this unilateral change in working conditions, Re-
spondent bypassed the designated employee representative and failed to bargain in
good faith . I find that by such conduct Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(5) of the Act, and has thereby fur-
ther interfered with, restrained , and coerced its employees in the exercise of the
rights guaranteed by Section 7, within the meaning of Section 8(a)(1) of the Act.
N.L.R.B. v. Crompton-Highland Mills, Inc., 337 U.S. 217; May Department Stores
v. N.L.R.B., 326 U.S. 376; N.L.R.B. v. The Proof Company , 242 F. 2d 560
(C.A. 7), cert. denied 355 U.S. 831; and Lloyd A. Fry Roofing Company v.
N.L.R.B., 216 F. 2d 273, as amended 220 F. 2d 432 (C.A. 9).
B. Interference, restraint, and coercion
(1) As noted, Moore addressed the employees of Respondent in August when
the election was imminent. Testimony by a number of those present is in sub-
stantial agreement as to his remarks. It is clear that Moore started out by stating
his neutrality on the question of unionization. He then contrasted wage receipts
in Respondent's plant with those in the "sister" plant in Idaho Falls which was.
organized and under a union contract. He attempted to demonstrate that gross.
receipts by employees at Respondent's lower wage rates based upon a 50-hour week
were greater than the gross receipts at the Idaho Falls plant which had higher
wage rates but a shorter workweek. Up to this point I find that Moore engaged
in expressions of opinion and statements of fact which did not go beyond the
limits of Section 8(c) of the Act. However, although the testimony is less than
precise, Moore went further.
According to John Wall, an employee in the group asked Moore at this point
whether Respondent would reduce its workweek to 40 hours if the rates were
raised to the higher scale. Moore replied, "Not entirely, but when your wages
get that high you have to cut down as much as possible." According to Harold
Sturges, the meeting took place approximately 2 weeks before the election and
Moore stated his neutrality. He then contrasted the gross wage receipts in the
two plants. While Moore did not flatly say they would be cut to 40 hours he did
state that "with a higher scale, why, we no doubt probably would be cut to forty
hours." Employee Leman Whited also testified that Moore compared the two
wage scales. An employee then asked whether this would involve a reduction in
hours at the plant of Respondent. Moore replied that if they would be "making
that much money the hours would probably be cut as much as possible."
I credit the foregoing testimony by the witnesses for the General Counsel.
Against the background of a union organizational campaign of several months'
duration, with an election in the offing, and with admitted knowledge that the
Idaho Falls plant was operating under a union contract, Moore proceeded to con-
trast gross wage receipts of the employees under Respondent's lower scales with
a longer week with receipts at the higher scales for a shorter week existing in the
organized Idaho Falls plant; the record does not disclose the actual figures. Moore
then informed the employees that if their wages were raised up to or close to the
union scales existing at the Idaho Falls plant there was a strong possibility that
their workweek would be reduced with a resultant loss of income. Although
Moore expressed his neutrality on the question of union organization, he never-
theless put forth the distinct possibility that if higher wages were obtained through
union organization, the results would be a reduction in the workweek. Signifi-
cantly, the reduction in hours was not correlated to a union demand for such but
rather to Respondent's counteraction in response to the Union obtaining a wage
increase to the higher scale. I find that this constituted a threat of economic
reprisal by Respondent in the event of a union victory.6
(2) The General Counsel has urged that one Bill Wade made statements viola-
tive of Section 8(a)(1) of the Act. Reliance is placed on the testimony of one
Ronnie Swanson who worked for Respondent for 2 months subsequent to October
1957. Not only was Swanson a witness whose testimony was marked by vague-
ness, but more particularly, a preponderance of the evidence will not support a
finding that Wall was a supervisor at the time of the alleged statements in the
fall of 1957.
e Moore denied that he threatened to reduce the employees to a 40-hour week if they
became organized. His testimony is not accepted where in conflict with the witnesses for
the General Counsel whose testimony was in agreement for the most part and impressed
me as reflecting more accurately what took place.
IDAHO CONCRETE PRODUCTS CO. 423
Wall's own testimony discloses that he had been a foreman but was relieved
of his duties in March or April 1957 at his own request; he then alternated be-
tween work on • machines and truckdriving. While Plant Superintendent Eastvold
referred to Wall as a leadman, this is not of itself indicative of supervisory status
under the Act. Swanson's testimony that Wall discharged him is explained by
Wall as the relaying of a decision by his, Wall's, superiors.
The General Counsel also relies on the testimony of several employees that when
a new supervisor, one Smith, entered the employ of Respondent in 1958, Moore
stated that Smith was not there to replace Eastvold or Wall. This, however, is as
consistent with the filling of a long vacated position as it is the replacement of
an existing foreman. Furthermore, according to Richard Murray, whose testimony
has heretofore been credited, he, Murray, entered Respondent's employ in March
of 1957 and Wall remained as a foreman for about 1 month thereafter until they
moved to the new plant. Wall was then replaced by Wilkie who left after the
election. Finally, Glen Scheu, whose discharge is discussed hereafter, testified that
Wilkie replaced Wall as a foreman sometime before the move to the new plant,
approximately in March 1957, and that Wall was not a foreman when he, Scheu,
was discharged on October 28, 1957. This is supported by the fact that Wall's
hourly rate of pay was reduced at the time Wilkie replaced him. Accordingly,
I make no finding adverse to Respondent based upon conduct by Wall.
(3) Swanson also attributed a statement to Office Manager Gene Jacobsen at an
undisclosed date before Christmas 1957 when a group of men were discussing
attendance of a union meeting that night. He testified that Jacobsen stated "you
fellows better think this over, before we get involved in plant layoffs." Jacobsen
went on to say that the Union would not help the men because Respondent was
already paying as much as it would pay, presumably a reference to the union
scale, and that the men already had as many benefits as they could obtain through
the Union. This, as 1 view it, constituted an expression of opinion save for the
prior threat of potential layoffs. Jacobsen denied the statement and although I
hereinafter do not accept Jacobsen's testimony on an other aspect of the case, I
credit it in this instance where it is in conflict with the testimony of Swanson
which is not corroborated by any of the other persons identified as present.
(4) On September 7, 1957, the following letter signed by Foreman Dean F.
Wilkie as "Acting Observer for Idaho Concrete Products Co." was sent to the
Idaho Department of Labor. Wilkie was the observer designated by Respondent
for the election and it is undisputed that he was a supervisory employee; as noted,
he did not testify herein. The letter reads as follows:
Upon returning to work the two employees who were absent at the time
the election was held, felt they should have a voice in this matter and re-
quested I have the enclosed letter written, on which they obtained the signa-
tures of a majority of the employees eligible to vote and ask (sic) me to
submit it to you for consideration.
The enclosure addressed to the same agency was signed by the "EMPLOYEES
OF IDAHO CONCRETE PRODUCTS CO." and contained six signatures includ-
ing Leman Whited, John D. Wall, Reed Eck, Richard Fordyce, George Anderson,
and Bill Wall. The enclosure reads as follows:
We, the undersigned employees of Idaho Concrete Products Co. of Poca-
tello, Idaho, being a majority of the employees employed by the said com-
pany, wish to protest the election that was held at our plant September 4, 1957.
In the election of that date, as the record shows, 7 voted for affiliation with
the Union and 3 voted against it. However, there were three of the eligible
employees who were not present and should have had a vote, and there were
2 men who were not eligible to vote who did vote. We feel that we should
have a voice in what we should do regarding this matter, and that the two
men who did vote and were not eligible should not be counted.
In view of the irregularity of this vote we feel that it was not fair to all
concerned, therefore, we request a new election.
Your immediate reply would be appreciated.?
It can be readily demonstrated that the letter signed by Wilkie contains several
untruths. But initially it is in order to point out that Wilkie in contacting the
State Board was not ostensibly acting in any capacity as Respondent's observer at
7 As is apparent this letter, unlike the covering letter, claims that there were three
absentees and also raises the question of the alleged temporary employees heretofore
treated.
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the 'election, although he referred to himself as such. The content of the letter
pegs Wilkie's action upon purported requests from "two employees who were
absent at the time the election was held." The simple fact is that Wilkie, a
supervisory employee, purported to be acting in behalf of employees and not as
Respondent's observer.
This presents for consideration the manifest untruths in the letter. Firstly, the
two employees referred to as absent were John Wall and Leman Whited; the
circumstance of their absence has been heretofore discussed. Each uncontro-
vertedly testified and I find that he had made no request to Wilkie that the let-
ter be written. Secondly, each uncontrovertedly testified, and I find, that con-
trary to the content of the letter he had nothing to do with obtaining the signa-
tures attached to the enclosure, although each affixed his own.8
A preponderance of the evidence warrants the conclusion that the letter was a
creature of Respondent. The actual typing was performed by Jean Ogden, a sec-
retary in Respondent's office, who was excluded from the unit and who clearly
disclosed herein her opposition to the Union. While General Manager Moore
admitted herein that he knew Ogden sent the letter to the State Department of
Labor and that he had seen it on his desk, he claimed that he had nothing to
do with its preparation and did not know how it happened to be in his office.
The record discloses that this was not a full disclosure on Moore's part for Ogden
testified that Moore was aware of the fact that "they were being written." And
as appears below, he participated actively in obtaining signatures to the letter.
The testimony of John Wall and Leman Whited is illuminating herein. Two
or three days after the election, according to Wall, he, his brother Bill Wall, and
Moore held a conversation in which Moore stated that the men "could protest
the election, if we didn't like the way it had turned out. . . He said he thought
we could protest it, if we wanted to." Wall claimed that he did not bring up
the subject matter but did not recall whether his brother or Moore introduced
the subject. Moore also provided an incentive for supporting the petition by
stating his fear "if we did get the Union in that we would be cut for the most
part to forty hours per week." 9
Whited testified that several days after the election he was one of a group
assembled near the timeclock. Moore told them, on this occasion, that if they
-did not like the way the election went they "could protest it if we wanted to .. .
if we wanted to protest we could, and if we didn't want to ... we didn't have to,
it was up to us."
However, neither Wall not Whited initiated the protest. It is true that Ogden,
a nonsupervisor, was personally interested in keeping the Union out of the plant
and offered to compose the letter, but it is clear that the idea originated with
Wilkie. For, as Ogden testified ". . . Mr. Wilkie said if I would compose what
their general idea was that they [the men] wanted that he would sign it." Ogden
.also testified that Wilkie "told me the boys wanted one, wanted a petition, and
he did not know what to write." I find it was then that Ogden offered to com-
pose the letter and that although there had been some conversation among the
men concerning a protest, Wilkie initiated the fabrication of the letter. As will
appear, he approved and ratified the final draft.
Ogden prepared both the letter and the enclosure in rough draft at the same
time and displayed them to Wilkie. She testified both that she read the contents
to Wilkie and that he read them personally. She admittedly asked Wilkie if the
documents were "what they wanted." Wilkie, I find, perused both rough drafts
and returned them to Ogden who on the same day typed them in final draft.
Wilkie then signed the September 7 letter. I find that he thereby approved and
authorized its transmission to the Idaho Department of Labor.
At this point, Moore and Wilkie took steps to obtain signatures to the docu-
ment. Moore spoke to a group including Whited, as the latter testified, and
stated that "the paper was there and if we wanted to protest it we could sign it."
Whited went to the office that night, asked Ogden or Office Manager Jacobsen
B There is also a possible third question as to the veracity of the claim that the six
-constituted a majority of the eligibles . There were at least 12 and possibly 13 eligible
voters and 6 employees , therefore , did not constitute a majority.
91n effect , Moore partially admitted the incident . He was asked if he had discussed
the petition with John Wall. Moore replied only that one of the men had asked what
,could be done and that he, Moore , stated that it was out of his hands and up to the men
to do whatever they wished . Wall's testimony is also corroborated by the credited
testimony of Whited and Fordyce , set forth below . Accordingly, I have credited Wall's
testimony herein.
IDAHO CONCRETE PRODUCTS CO. 425
for the paper, and was the first to sign.'° Wilkie approached John Wall and told
him that the petition was ready in the office if he wanted to sign. Wall promptly
went to the office, asked Ogden for the petition and signed it. Fordyce testified,
and I find, that he first learned of the letter from Moore 2 or 3 days after the
election. Moore stopped him in the plant and stated, "There's a letter up at the
office. I would like to have you stop and read it." Moore continued to say that
any action Fordyce took after reading the letter would be his "own." That eve-
ning, Fordyce went to the office, asked Ogden for the letter, and signed it.
I find, therefore, as alleged in the complaint, that Respondent, through its super-
visory staff, instigated, prepared, and forwarded to the State Department of Labor
a petition protesting the election and requesting a new election. I further find
that Respondent induced its employees to sign this petition so that it would osten-
sibly reflect employee rather than employer action.
In sum, the employees had selected a bargaining representative and Respondent
immediately undertook a counteroffensive to eliminate the Union from the plant.
This was consistent with its conduct heretofore set forth wherein it unlawfully
evaded its responsibilities and refused to bargain with the Union. The simple fact
here is that the letters were the creature of management and not of the employees.
This conduct, therefore, together with the threat to Wall of a cut in the workweek
should the Union enter the plant, constituted an unwarranted and improper intru-
sion into the organizational rights of the employees who under Section 7 of the
Act are guaranteed the right to bargain collectively "through representatives of
their own choosing." N.L.R.B. v. Parma Water Lifter Co., supra; N.L.R.B. v.
Idaho Egg Producers, supra; N.L.R.B. v. United Biscuit Company, etc., 208 F. 2d
52 (C.A. 8), cert. denied 347 U.S. 934; Keil Company, 117 NLRB 828; and Linn
Mills Company, 116 NLRB 96.
I find that by threatening employees with economic reprisals in the event of
union victory in the election and by instigating, preparing, inducing employees to
sign, and forwarding the purported demands by employees for a new election to
the Idaho Department of Labor, Respondent has interfered with, restrained, and
coerced employees in the exercise of the rights guaranteed under Section 7 of
the Act, thereby engaging in unfair labor practices in violation of Section 8(a)(1)
of the Act.
C. The discharge of Glen Scheu
1. Sequence of events
Glen Scheu was discharged by Respondent on October 28, 1957, after more
than 10 years of employment. His position was that of offbearer, although from
time to time he would perform other tasks. The job of the offbearer is to re-
move pipe after its manufacture from the pipe form and then wheel it to the
curing room. Scheu had been under the general supervision of General Manager
Moore since September 1956 when Moore entered Respondent's employ. He had
been under the direct supervision of Plant Superintendent Joseph Eastvold since
March 1957 and although Eastvold was not aware of Scheu's precise tenure he
admittedly knew that Scheu had been an employee "for some time."
The General Counsel relies herein on the fact that Scheu was the designated
observer for the Union at the September 4 election and apparently the only one.
He stresses the fact that Scheu was discharged but I week after Respondent moved
to undercut the Union's position by the unilateral wage increase of October 21
and during the time that Respondent was avoiding good-faith collective bargaining
with the Union and seeking a new election. According to Eastvold, Scheu was
discharged on October 28 because of his derelictions of duty on October 23, 24,
and 25.
Scheu uncontrovertedly testified that his work had never been criticized during
his entire tenure and that he received no reprimands. He specifically denied re-
ceiving any reprimands for failure to work overtime or to clean out the cement
mixer, the latter allegedly bearing upon his discharge. Scheu also uncontrovertedly
testified that Moore complimented him on his work at times and that shortly
after Moore entered Respondent's employ he referred to Scheu "as the best man
he had." I find on this record that prior to the incident allegedly resulting in his
discharge, Scheu had an exemplary work record of some 10 years' duration, that
it was free of warnings or criticism, and that subsequent to Moore's entry into
10 Moore denied that he suggested Whited sign the paper and testified that he never
mentioned it to anyone ; this testimony is not credited . With respect to Fordyce whose
testimony appears below and is in the same vein , Moore did "not remember " speaking
With him.
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent 's employ, and after observing Scheu 's work, Moore had complimented
him on it; indeed , Respondent makes no claim of unsatisfactory performance of
duties by Scheu prior to October 23.
When Scheu reported for work on Monday, October 28, Eastvold told him,
.according to Scheu, that he was discharged because on Friday "You went home
and I told you not to." Eastvold did not dispute this, testifying that he told
Scheu on October 28 that he was discharged because he had left "something un-
done for somebody else to do." Scheu uncontrovertedly testified, and I find, that
he immediately approached Moore, Eastvold's superior, and expressed surprise and
resentment over his termination. Moore, who had previously approved the dis-
charge when allegedly contacted by Eastvold on October 25, replied that Eastvold
was the "boss" and refused to intervene.
Turning to the reason assigned by Respondent for Scheu's discharge it is im-
mediately apparent that there is a conflict of testimony concerning what Scheu
did or did not do during the workweek ending Friday October 25. Eastvold
claimed that Scheu went home at or near the usual punch- out time on October
23 without helping the rest of the crew clean up. This has reference to the fact
that from time to time, in addition to his regular duties as offbearer, Scheu would
work with two or three other employees in the operation of a cement mixer in
the company yard. On these occasions Scheu operated the mixer and was known
as the mixer man. It was his job then to insert the ingredients, mix them, and
dump the mixture into a conveyance. Significantly, and this plays a crucial part
herein, it is the task of the mixer man to wash out the mixer with a hose after
-the operation is complete, so as to prevent any residue of cement from remaining
in the mixer and hardening. The claim that Scheu left without "cleaning it up,"
is a reference, I assume, to washing out the mixer.
On the following afternoon, October 24, Eastvold allegedly passed by the time-
,clock as Scheu was punching out and asked Scheu if the men in the yard were
,all through. Scheu's reply is not disclosed, but Eastvold claimed that the re-
mainder of the crew was not through work and that he forthwith told Scheu that
he had done this the previous afternoon, that he did not want it to happen again,
and that the mixer had to be cleaned before Scheu left.
On October 25, according to Eastvold, Scheu left work and Eastvold did not
note his departure. Eastvold claimed that employee Fordyce had to remain and
-clean up the mixer in lieu of Scheu. Respondent's records disclose that Scheu
punched out at 5:29 p.m., Fordyce at 7:21 p.m., and Anderson, a third member
of the crew, at 6:10. However, as will appear, there is evidence that Scheu re-
-turned to work on this occasion and the testimony of Fordyce and Anderson, both
,still in Respondent's employ, is diametrically opposed to that of Eastvold.
Returning to Eastvold's story, he spoke with Moore on.Friday evening, October
25, and told him that "I had to fire Scheu." Moore replied this was up to
'Eastvold and both his testimony and that of Eastvold are silent concerning Moore
ever asking why Eastvold was discharging Scheu, despite the fact that Moore, on
this record, had experienced no prior difficulty with Scheu. As set forth, when
Scheu reported for work on Monday, October 28, Eastvold discharged him. Ac-
cording to Eastvold, he told Scheu that Respondent could not have these condi-
tions with Scheu leaving work behind for someone else to perform. According
to Scheu, Eastvold stated that he, Scheu, had gone home after Eastvold had told
him not to.11
Scheu testified that he had received no criticism that week prior to October 25
from Eastvold or anyone else about any derelictions on his part. His best recol-
lection was that he had been working as offbearer all that week, that he had not
worked on the mixer prior to October 25, and that someone else had run the
mixer prior to that date.
It is undisputed that on October 25, Scheu worked as offbearer until mid-after-
noon. At 4:30 p.m. Eastvold assigned Scheu, together with employees Fordyce
and Anderson, to run the mixer so as to prepare and pour concrete. for a septic
tank as well as a comb which is part of a manhole. I find that Scheu did func-
tion as mixer man for the remainder of that afternoon and it was his responsi-
bility to wash the concrete residue or mud from the mixer after the concrete had
been poured therefrom; this latter operation involved some 10 or 15 minutes of
work.
n Scheu testified that Moore came upon the scene, learned of the discharge, and replied
that Respondent was "keeping the men who stick by us in a pinch." Moore denied
making the statement, and Eastvold testified that he did not hear any such statement by
Moore. I deem it unnecessary to resolve this conflict because, as will appear, the evidence
preponderates in favor of the General Counsel independently of this statement.
IDAHO CONCRETE PRODUCTS CO. 427
At approximately 5:30 p.m., the usual quitting time, all the mud had been
poured and Scheu punched out at 5:29 p.m. He admittedly had not washed out
the mixer on this occasion because he felt that the other men on the crew could
do it.12 Scheu went to get his coat after punching out and encountered Eastvold
who told him that, as Scheu testified "You are not going home before you clean
.up." Although Scheu did not punch back in, he immediately returned to the mixer,
took the hose, and washed it out. It was then close to 6 p.m. and Anderson was
.finishing the troweling of the septic tank. Believing then that Anderson and Fordyce
could finish the job. Scheu left; he placed Eastvold on the scene as he washed out
the mixer.
The testimony of Fordyce, also an employee of some 10 years' tenure, is sub-
stantially corroborative of that of Scheu. He testified, as did Scheu, that Scheu
worked on the mixer briefly that night with the last batch of cement for the day.
He observed Scheu leave the plant yard around quitting time at 5:30, return within
10 minutes and then proceed to wash out the mixer, consistent with his responsi-
bility. Fordyce and Anderson remained to help finish the forms and Fordyce tes-
tified that he knew of nothing else for Scheu to perform that evening after wash-
.ing out the mixer. He was in error to the extent that he thought he and Ander-
left at the same time because Fordyce left work somewhat later than he did.
The testimony of Anderson, the other man on the crew, and still in Respond-
ent's employ, is also substantially corroborative of that of Scheu. He testified for
the General Counsel that when Scheu left the plant that evening all the concrete
In the mixer had been used up and that no further batches were made. Ander-
son did not wash out the mixer and "assumed Glen [Scheu] did, I thought he
took care of it, being as he was there." He initially remembered that Fordyce did
not wash out the mixer because Fordyce was engaged in work on the septic tank.
On cross-examination, he testified that it was "Very doubtful" that Fordyce cleaned
it out, and conceded that it was possible. Of course, as set forth above, Fordyce
.testified that he did not wash it out and in fact saw Schew perform this task.
This presents for consideration Eastvold's testimony that Scheu left on Friday,
October 25, without washing out the mixer. As noted, he claimed that he was
certain Fordyce washed out the mixer that night. Needless to say, there is a
marked conflict in the two versions. Fordyce and Anderson were members of the
crew directly working with Scheu and it would seem that they would well remem-
ber Scheu's failure to perform the menial task of washing out the mixer. Fordyce,
.an intelligent witness of tenure equal to that of Scheu, would in all probability
recall an evasion of duty as this by Scheu. Both he and in large measure Ander-
son, gave a flat denial to Eastvold's testimony, and their versions impress me as
the more reliable. Moreover, Scheu was a forthright witness with a good recol-
lection of these incidents, who impressed me as telling the truth. Accordingly, I
have credited the testimony of Scheu, Fordyce, and Anderson herein concerning
events on October 25, and further find that Scheu received no criticism or warning
from Eastvold prior to October 25.
Respondent attempted to buttress the testimony of Eastvold with that of Office
Manager Jacobsen, who also dispatches trucks and, so far as the record indicates,
has no duties in the plant. This testimony, as heretofore indicated, I am unable
to credit. Jacobsen testified that on the morning of October 25 he promised a
customer delivery of a septic tank the following morning; this is the septic tank
heretofore adverted to. At 4:45 p.m., a telephone call came in for a comb, a
portion of a manhole. Instead of telephoning Eastvold, as is his practice, he
decided to go to the plant proper in person not only to inform him of this new
order, but also to ascertain the progress on the septic tank. He went to the yard,
encountered Scheu, and informed Scheu of the order for the comb.
Jacobsen left the area to attend to other duties. He passed by again at 5:30
p.m. and allegedly saw the forms for the comb set with the men getting ready
to pour concrete. He allegedly noticed the absence of the mixer man, Scheu,
and asked Eastvold as to his whereabouts. Eastvold checked at 5:30 p.m. and
reported to Jacobsen that Scheu had punched out. Jacobsen claimed that he
remained in the yard from 5:30 p.m. until 6 or 6:15 p.m. while the concrete was
poured for the septic tank and the comb; that he would have seen Scheu wash
out the mixer had he done so; and that Scheu did not. He claimed that he
remained in the yard for this period while Eastvold was trying to make certain
12 As is apparent, work beyond 5 :30 p.m. constitutes overtime work for all of the crew.
The crux of Respondent's position is not that it incurred additional expense by Schen's
attempted departure, but rather that the remainder of the crew performed more overtime
work, and Scheu less than would have been the case.
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
repairs. There is no claim that Jacobsen did anything other than observe on this
occasion.
As Jacobsen conceded, his testimony is obviously in disagreement with that of
Fordyce. Indeed, unlike Eastvold, Jacobsen in his testimony provided no candi-
date for the chore of washing out the mixer. One is immediately struck by the
fact that the testimony of Jacobsen who has office responsibili ties and duties in-
volving the dispatching of trucks, places him at the crucial site doing precisely
nothing for 30 or 45 minutes. His only justification for being in the yard origi-
nally was to check on the progress of the septic tank, which he did at 4:45 p.m.
From 5:30 until after 6 p.m. he allegedly stood by and did nothing while East-
vold endeavored to repair a faulty steam line.
I deem this testimony by Jacobsen to be singularly unimpressive in the face
of the consistent testimony of Scheu, Fordyce, and Anderson, for not even East-
vold placed Jacobsen on the scene. I find in view of the foregoing that Scheu
did return to work on October 25 and cleaned up the mixer. I further find
that the reason assigned by Respondent was not the true reason for his discharge.
2. Conclusions
In placing Scheu 's discharge in perspective , it is immediately apparent that this
was a hasty discharge of a veteran employee whose record was blameless for 10
years. In looking for the true cause for the discharge, one immediately notes its
timing in relation to Respondent 's unhappy relations with the Union . Scheu was
the observer for the Union at the election of September 4; Respondent evidently
considered this an important post because it designated a supervisor , Wilkie, as its
observer. Thereafter, Respondent sponsored a petition to bring about repudiation
of the Union by the employees. It ignored attempts by the Union to bargain
on October 7 and, on October 21, but 1 week prior to the discharge, Respondent
unilaterally installed plantwide wage increases . Scheu was discharged on Octo-
ber 28 and 3 days later, on November 1, the Union's last demand for bargaining
was received by Respondent and also ignored.
I conclude on a preponderance of the evidence that the true purpose behind
Scheu's discharge was not the disciplining of an employee who did not complete
a task on October 25, but rather an intent to discharge a prominent union adher-
ent and thereby exert pressure toward an antiunion majority in the election for
which Respondent was then pressing as well as to coerce employees in the exer-
cise of their union activities.
I find that by discharging Glen Scheu on October 28, 1957, Respondent has
discriminated with respect to his hire and tenure of employment in order to dis-
courage union activities, thereby engaging in unfair labor practices within the mean-
ing of Section 8(a)(3) of the Act. I further find that by such conduct, Respondent
has interfered with, restrained, and coerced its employees in the exercise of the
rights guaranteed by Section 7 of the Act, thereby engaging in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent, set forth in section III, above, occurring in con-
nection with its operations set forth in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and obstructing commerce and the
free flow thereof.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices , I shall rec-
ommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
It has been found that Respondent has discriminated with respect to the hire
and tenure of employment of Glen Scheu. I shall, therefore, recommend that
Respondent offer him immediate and full reinstatement to his former position with-
out prejudice to 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.
I shall further recommend that Respondent make him whole for any loss of pay
suffered by reason of the discrimination against him. Said loss of pay, based upon
earnings which he normally would have earned from the date of the discrimination,
October 28, 1957, to the date of the offer of reinstatement, less net earnings, shall
be computed in the manner established by the Board in F. W. Woolworth Co.,
90 NLRB 289. See N.L.R.B. v. Seven-Up Bottling Co., 344 U.S. 344.
fiHE MULTI-COLOR COMPANY 429
Since the violations of the Act which Respondent has committed are related to
other unfair labor practices proscribed by the Act, and the danger of their com-
mission in the future may reasonably be anticipated from its past conduct, the
preventive purposes of the Act may be thwarted unless the recommendations are
coextensive with the threat. To effectuate the policies of the Act , therefore, it
will be recommended that Respondent cease and desist from infringing in any
manner upon the rights guaranteed . by Section 7 of the Act. .
On' the basis of the foregoing findings of fact , and upon the entire record in
the case , I make the following:
CONCLUSIONS OF LAW
1. Teamsters, Chauffeurs, Warehousemen & Helpers Local Union No. 983 is
a labor organization within the meaning of Section 2(5) of the Act.
2. Idaho Concrete Products Co. is an employer within the meaning of Section
2(2) of the Act.
3. All production, maintenance, and transportation employees of Respondent at
its Pocatello , Idaho, plant, excluding outside salesmen, office clericals, profes-
sional employees, guards, and supervisors , constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b) of the Act.
4. Teamsters, Chauffeurs, Warehousemen & Helpers Local Union No . 983 was
on September 6, 1957, and at all times thereafter has been and now is the ex-
clusive representative of all employees in the aforesaid appropriate unit for the
purposes of collective bargaining within the meaning of Section 9(a) of the Act.
5. By refusing on September 20, 1957, and thereafter to bargain collectively
with Teamsters , Chauffeurs, 'Warehousemen & Helpers Local Union No. 983 as
the exclusive representative of its employees in the aforesaid appropriate unit,
and by unilaterally changing conditions of employment , Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8(a)(5)
of the Act.
6. By the aforesaid refusal to bargain, by threatening employees with economic
reprisals in the event of union organization or victory in a representation election,
and by preparing and sponsoring demands by employees for a new election, Re-
spondent has interfered with , restrained , and coerced its employees in the exer-
cise of the rights guaranteed by Section 7 of the Act and has thereby engaged in
unfair labor practices within the meaning of Section 8 (a)(1) of the Act.
7. By discriminating in regard to the hire and tenure of employment of Glen
Scheu, thereby discouraging membership in a labor organization , Respondent has
engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
The Multi-Color Company and Truck Drivers Local Union No.
299, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America and "Grievance Com-
mittee." Case No. 7-CA-16299. December 16, 1958
DECISION AND ORDER
On August 7, 1958, Trial Examiner Earl S. Bellman issued his
Intermediate Report 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 there-
from and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto. The Trial Examiner
also found that the Respondent had not engaged in certain other
unfair labor practices as alleged in the complaint and recommended
122 NLRB No. 71.