Tampa Sand & Material Co.

In the Matter of TAMPA SAND & MATERIAL COMPANY and UNITED STONE & ALLIED PRODUCTS WORKERS OF AMERICA, CIO Case No. 10-CA--L74.Decided October 10, 1950 DECISION AND ORDER On July 28, 1950,, Trial Examiner J. J. Fitzpatrick issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had engaged in and was engaging in certain unfair labor practices in violation of the Act, and recommending that 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 and a support- ing brief. The Board 1 has reviewed the rulings made by the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Re- port, the Respondent's exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommen- dations •of the Trial Examiner with the additions and modifications hereinafter set forth.2 1. The Respondent contends that the Board is without jurisdiction in this case because the Respondent's business is essentially local in character and that it would not effectuate the policies of the Act to as- sert jurisdiction over the. Respondent. We find no merit in this contention. At a prior stage of this proceeding,3 the Board held that the Re- spondent's business affected commerce within the meaning of the Act and that it would effectuate the policies of the Act to assert its juris- diction in this proceeding. On the basis of the facts as to commerce detailed in the Intermediate Report, we hereby adhere to our prior de- 1 Pursuant to the provisions of Section 3 (b) of the Act, as amended , the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Houston and Reynolds]. 2 The Respondent asserts that, at the time the charge. herein was filed, the Congress of Industrial Organizations , the parent of the charging union, and its officers , had not com- plied with the filing requirements of Section 9 of the Act, and therefore, the Board was without authority to issue the complaint . For the reasons stated in J. H. Rutter-Rem .Manufacturing Co., Inc., 90 NLRB 130, and Bethlehem Steel Company, 89 NLRB 1476, the Respondent's contention is rejected. 3 88 NLRB 861. . 91 NLRB No. 135. 868 TAMPA SAND & MATERIAL COMPANY' 869 termination that the Board has jurisdiction within the meaning of the Act. We also find, in accordance with the recently announced policy in Hollow Tree Lumber Company, 91 NLRB 635, that it will ef- fectuate the policies of the Act to assert jurisdiction'in this case.' 2. The Trial Examiner found that the Respondent discharged Lewis G. Burnside because of his union activities and that the Respondent's asserted reason for his discharge-negligence in the performance of his duties-was merely a pretext. - We agree. Although, as the Trial Examiner found, Burnside disobeyed instructions in permitting his truck engine to run for a short time while he stopped at a roadside stand for a soft drink, and was.negligent in not checking his gasoline supply before starting work on the morning of September 9, we are persuaded, as was the Trial Examiner, that these shortcomings did not motivate the Respondent in discharging Burnside. The record shows that no driver had ever been discharged "for running a truck motor, or for running out of gas, under similar circumstances. In- deed, Burnside had on two previous occasions run out of gas without receiving any criticism from his superiors. There was no damage to the equipment on either occasion. Burnside was regarded by his superiors as a competent driver who took good care of the equipment entrusted to him by the Respondent. His dismissal came without notice of any shortcoming on his part or any prior warning that he would be disciplined therefor. We are convinced, as was the Trial Examiner, that the Respondent discharged Burnside because of his union activities. Burnside was instrumental in introducing the Union among the Respondent's em- ployees. The Respondent had knowledge of Burnside's union activi- ties before his discharge. The Union's activities met with the Respondent's opposition. In statements to employees, the Respond- ent expressed hostility to the Union, questioned them concerning their union activities, and threatened to discharge any employee found to have been responsible for organizing the Respondent's employees in the Union, or to have joined the Union. Indeed, in June 1948, Poe, the Respondent's division superintendent, threatened to discharge Burnside "if he [the superintendent] could get anything on" Burn- side. Moreover, in September 1948, after Burnside's discharge, Poe admitted "that he had been after Burnside a - long time and finally 4 As found in the Intermediate Report , during 1948 and the first 5 months of 1949, the Respondent sold materials valued in excess of $3,000,000 , of which approximately 5 percent was sold to contractors and industrial concerns engaged in interstate commerce or in activities affecting interstate commerce , such as American Cynamid Company , Peninsular Teleplione Company, Stone and Webster , Contractors , Paul Smith Construction Company, Seaboard Railroad , Kraft Cheese Company, and California Packing Corporation. These contractors and industrial concerns include enterprises over whom the Board has asserted jurisdiction. 0 870 DECISIONS OF! NATIONAL LABOR RELATIONS BOARD got him." On the basis of the foregoing, we find that the Respondent discharged Burnside because of his union activities. Accordingly, we further find that the Respondent discriminated in regard to hire or tenure of employment to discourage membership in .the Union by discharging Lewis G. Burnside, in violation of Section 8 (a) (3) of the Act, thereby interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8 (a) (1) thereof. 3. Independently of the foregoing, we find, as did the Trial Exami- ner, that the Respondent interfered with, restrained, and coerced its employees in violation of Section 8 (a) (1) of the Act in the manner set forth in the section of the Intermediate Report captioned "Con- clusions as to interference, restraint, and coercion." 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, Tampa Sand & Material Company, Tampa, Florida, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in United Stone & Allied Products Workers of America, CIO, or any other labor organization of its employees, by discharging or refusing to reinstate any of its employ- ees or by discriminating in any other manner with regard to the hire and tenure of their employment or any term or condition of employment ; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to organize, to form labor organizations, to join or assist United Stone & Allied Products Work- ers of America, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activity 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) Offer to Lewis G. Burnside immediate and full reinstatement to his former or substantially equivalent position, without prejudice 0 TAMPA SAND & MATERIAL COMPANY 871 to his seniority or other rights and privileges, and make him whole in the manner set forth in the section of the Intermediate Report entitled, The remedy," for any loss of pay which he may have suffered as a result of the Respondent's discrimination against him; (b) Upon request, make available to the Board or its agents, for examination and copy, all payroll records, social security payment records, time cards, personnel records and reports, and all other rec- ords necessary to analyze the amount of back pay due and the right of reinstatement under the terms of this Order; (c) Post immediately at its plant at Tampa, Florida, copies of the notice attached to the Intermediate Report and marked Appendix.5 Copies of such notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days there- after, 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; and (d) Notify the Regional Director for the Tenth Region, in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. INTERMEDIATE REPORT AND RECOMMENDED ORDER Messrs. Clarence D. Musser, T. Lowry Whittaker and Jerold B. Sindler, of Atlanta, Ga., for the General Counsel' Mr. LeRoy Allen, of Tampa, Fla., for the Respondent. Messrs. Charles L. Cowl and Charles Barranco , Jr., of Tampa, Fla., for the Union. STATEMENT OF THE CASE Upon charges filed by United Stone & Allied Products Workers of America, CIO, herein called the Union, the General Counsel of the National Labor Relations Board through the Regional Director for the Tenth Region ( Atlanta, Georgia) issued a complaint dated June 13, 1949, against Tampa Sand & Material Com- pany, Inc., of Tampa , Florida, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting S Said notice is hereby amended by deleting the words , "The Recommendations of a Trial Examiner," and substituting in lieu thereof , the words, "A Decision and Order." In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be inserted before the words, "A Decision and Order ," the words, "A Decree of the United States Court of Appeals Enforcing." ' As will hereafter appear, there were two preliminary hearings on commerce prior to the time the Board remanded the case for hearing on the merits . At the June 1949 hearing, Mr. Shollen O. Wise represented the General Counsel and at the December bearing following, Messrs. Clarence D . Musser and T. Lowry Whittaker appeared for the General Counsel. 872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD commerce within the meaning of Section 8 (a) '(1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. With respect to the unfair labor practices, the complaint alleges in substance that the Respondent (1) from about January 26, 1948, to the date of the com- plaint (a) interrogated its employees concerning their union membership, activities, and sympathies, (b) urged, persuaded, and warned employees to re- frain from assisting, becoming members, or remaining members of the Union, and (c) threatened employees with discharge and other reprisals in order to dis- courage union activity; and (2) on or about September 9, 1948, discharged Lewis G. Burnside and has since failed and refused to reinstate him because of his membership in and activity for the Union and his concerted activities with other employees for the purpose of collective bargaining and other mutual aid and protection. In its answer filed June 23, 1949, the Respondent denies that it was or is engaged in commerce within the meaning of the Act or the commission of the unfair labor practices alleged. The answer admits that Burnside was discharged about September 9, 1948, but alleges it was for cause and that since his discharge, Burnside has not sought reinstatement. Pursuant to notices, hearings were held at Tampa, Florida, on the following dates, June 28, December 2 and 5, 1949, and May 11, 15, and 16, 1950, before J. J. Fitzpatrick, the undersigned duly designated Trial Examiner. The Respondent and the General Counsel were represented by counsel ; the Union by two of its officials. Full opportunity to be heard, to examine and cross-examine witnessed, and to present pertinent evidence was afforded all parties. At the conclusion of the presentation of the testimony bearing on the nature and the extent of Respondent's business on June 28, 1949, I granted a motion to dismiss the com- plaint on the ground that the Respondent's business was substantially of the, same local character as in 1947, when the Board, in a representation proceed- ing,2 refused to assert jurisdiction. On October 19, 1949, pursuant to a request for a review of the above decision dismissing the complaint filed by the General Counsel and also by the Union, the Board ordered that additional evidence be taken on the nature of the Respondent's business, and a hearing was held on December 2 and 5, 1949. On February 28, 1950, the Board having decided to assert jurisdiction, a hearing on the merits was held on May 11, 15, and 16, 1950, as above set forth. At the conclusion of the General Counsel's case, Respondent's motion was denied to dismiss the allegations of unfair labor practices for failure of proof. At the conclusion of the hearing, Respondent moved again to dismiss because of the inadequacy of proof to support the allegations of unfair labor practices. Ruling was reserved and the motion is disposed of as hereafter appears. The parties waived oral argument but were granted an opportunity to file a brief and/or proposed findings of fact and conclusions of law after the hearing closed. A brief has been received from the Respondent. Upon the entire record thus made, and from my observation of the witnesses, I make the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent, a Florida corporation, is engaged in Tampa, Hillsboro County, Florida,'in,the manufacture and sale, of concrete products, house piers, bases, 2 Tampa Sand h Material Company, Inc., 78 NLRB 629. . TAMPA SAND & MATERIAL COMPANY 873 joists, tile, drain tile, concrete blocks, stepping stones, concrete bricks, 'ready- mix cement, rock, sand, shell, and slag. It has approximately 160 employees. .The Respondent's facilities consist of a yard where its ready-mix plant is located, a block plant,;and an asphalt plant located on the outskirts of the city. With ,the exception. of the block plant, which is owned by Municipal Bond Mortgage Corporation, the Respondent owns all property which it uses in connection with its operations. During 1948 and the first 5 months of 1949, the Respondent purchased mate- rials and supplies valued at approximately $1,911,000. Of this amount, cement and gravel valued at approximately $58,450 (this figure includes purchases of .pozolith amounting to $21,414) and machinery and equipment valued at $9,000 were purchased and shipped to the Respondent from sources outside the State of Florida.' • Purchases of materials during this period from local dealers or concerns within the State of Florida, but originating outside the State, included .$56,500 for gasoline and oil, $26,000 for tires and tubes, and $24,000 for auto- motive parts. During 1948 and the first 5 months of 1949, the Respondent sold materials valued in excess of $3,000,000. All sales and deliveries were made ,to purchasers within the State of Florida for use in local projects within an area not more than 50 miles from Tampa .4 The Respondent supplied approxi- ;mately 60 percent of the concrete blocks and other concrete products used for construction purposes in the Tampa area, i In addition to its sand and gravel business, the Respondent also handles the sale of asphalt for the Mexican Petroleum Corporation and the Texas Company on a brokerage basis o . Under this brokerage arrangement, the Respondent's sale of asphalt is limited to the county of Hillsboro. Asphalt sold in this man- ner during the afore-mentioned period amounted to approximately $193,826, for which the Respondent received approximately $10,000 in brokerage fees. The record also shows that Cone Brothers Contracting Company, a Florida corporation, and the Respondent occupy the same offices together with Munici- pal Bond Mortgage Corporation. The Respondent and Cone Brothers pay rent on an equal basis to Municipal Bond which owns the office building. Cone Brothers has its own management officials and personnel, maintains its own payroll and bookkeeping system (although the paymaster employed by Cone Brothers also has authority to sign payroll checks for the Respondent), pur- chases its own supplies, uses its own equipment and materials, employs its own cashier, and does not commingle its funds with those of the Respondent. The 'facilities of Cone Brothers consist of a shop and warehouse, and, in addition, a dis- • 8 Purchase of cement and gravel from sources outside the State of Florida represented emergency purchases made when local supplies were not adequate or available. `Approximately 5 percent of such sales was made to contractors and industrial concerns engaged in interstate commerce or in activities affecting interstate commerce such as American Cynamid Company, Peninsular Telephone Company, Stone and Webster, Con- tractors, Paul Smith Construction Company, Seaboard Railroad, Kraft Cheese Company, and California Packing Corporation. 5 The asphalt is invoiced to the Respondent from the Mexican Petroleum Corporation and the Texas Company, and paid for by the Respondent, who in turn bills the purchasers. The asphalt' originates outside the State of Florida ; it is received by the purchasers withili the State directly from the facilities of the Mexican Petroleum Corporation and the Texas Company. No deliveries,or handling arrangements are made by the Respondent after the asphalt arrives in Tampa, and no employees of the Respondent have. any connection with such transactions other than clerical employees who make record entries and compute commissions. 874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tribution and storage warehouse where it does a small amount of commercial storage business. Title to, these facilities, is held by Municipal Bond. J. L. Cone is the majority stockholder of the Respondent, of Cone Brothers, and of Municipal Bond, the remaining stock in at least the first two named concerns being held by substantially the same persons. J. L. Cone is the president of all three corporations; the other corporate officers are also sub- stantially alike in each corporation. Cone Brothers is in the construction business; its projects include U. S. high- ways, sewers, bridges, and parking lots. It does not operate or ship material outside the State of Florida. During 1948 and the first 5 months of 1949, Cone Brothers purchased materials and supplies valued at approximately $744,687. Of'this amount approximately $86,018 represents purchases of materials (in- cluding asphalt) made from the Respondent. Purchases of materials by Cone Brothers during this period from local dealers or brokers within the State of Florida, but originating outside the State, amounted to approximately $92,931. For the same period, Cone Brothers did a gross contract business of. approxi- mately $3,030,063, of which $2,119,131 (69.9 percent) represents work done on Federal aid projects. Cone Brothers stipulated that it is engaged in interstate commerce. On the basis of the above facts, and as found by the Board in its Decision and Order Remanding the Case dated February 28, 1950, heretofore referred to, I find that the Respondent is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act and that it will effectuate the purposes and policy of the Act for the Board to assert jurisdiction in the matter. II. THE ORGANIZATION INVOLVED United Stone & Allied Products Workers of America, CIO, is a labor organiza- tion within the meaning of 'Section 2 (5) of the Act, admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Background and chronology of events There are some thirty-odd truck drivers whose principal job is to deliver fresh-mixed concrete from the Respondent's plant to customers of the latter located not only in Tampa and its environs, but also in the cities of St. Peters- burg, Clearwater, and nearby areas. Most of the trucks used for this purpose are attached to trailers equipped with concrete mixers. When an order is re- ceived for say 5 yards of fresh concrete, the appropriate proportions of sand, lime, and water are placed in the trailer mixer and a separate motor located on the mixer is started to turn the mixer. This mixing of the ingredients con- tinues as the truck is driven to its delivery destination. By the time the truck reaches the customers' premises, the "ready-mix" concrete normally is in con- dition for pouring. However, care has to be exercised by the driver to see that the mixer actually operates en route and that there are no undue delays, be- cause if the mixer motor stops for any considerable period of time the concrete may cake and harden on the blades and damage the mixer. Likewise, if the con- crete is mixed for too long a period, it will get hot or "set up" and may be rejected. TAMPA SAND & MATERIAL COMPANY 875 When a driver returns his truck and trailer to the Respondent' s premises, -where it is parked for the night, he first fills with gasoline the truck tank and also the separate tank for the mixer.'-.. In the morning, it is the driver's responsi- bility to see that the equipment is in working order before attempting any 'deliveries. The hours of work of these truck drivers is somewhat irregular. Most of them report for work about 7 o'clock in the morning but, because their driving is dependent on delivery orders, the time when they finish at night is irregular. Sometimes a driver may park his truck for the evening as early as 4 p. in., but often it is 6 or 7 p. in. or even later, especially if his last delivery is at some distance. Apparently, no attempt was made to organize these drivers until the summer of 1947. At that time, all or most of the drivers joined the Teamsters as they were concerned primarily about securing overtime pay because of their long hours. Becoming impatient with the delay in securing any results through the Teamsters, the drivers, led by driver Lewis G. Burnside, joined the charging Union the early part of January 1948. Thereafter, on April 5, 1948, a hearing was held on a representation petition filed by the Union e In the summer of •1948,'the Wage and Hour Division of the United States Department of Labor -investigated wage practices in the Respondent's plant as the result of a letter from Burnside stating that the Respondent's drivers were working more than 40 hours a week, but receiving no overtime pay. On September 9, 1948, Burnside was discharged and has not since been reinstated for alleged negligence in the performance of his duties. He has not since been rehired. B. Interference, restraint, and coercion The complaint specifically alleges, and the answer denies, facts of interference, restraint, and coercion of the Respondent by Superintendent Fred H. Poe and Foreman C. C. Baldree "from on or about January 26, 1948." Driver Charles F. Pitts testified credibly and without denial that in the "late summer" of 1947 Superintendent Poe questioned him about organizing activities in the plant, and stated that he would get rid of any employee who had anything to do with it, as he did not want any union among the drivers. This statement of Superin- tendent Poe is clearly violative of the Act. However, no unfair labor practice finding is based thereon in view of the date limits in the complaint. The evi- dence was received and the finding will be considered only as background. There is, however, considerable other testimony involving Poe and Baldree that if found true would constitute interference within the complaint allegations. Driver Hobart Trussell, who joined the Union in January 1948, testified to two conversations with Poe about 1 month or 2 after he joined the. Union. The first occasion, according to Trussell, occurred at the window of the superintend- ent's office as Trussell was picking up a load order or ticket, when Poe asked him if he knew of anyone trying to organize the plant, to which he replied in the negative. On the second occasion, Trussell testified, he was at the gasoline pump filling his truck tanks when Poe walked over and again inquired if he knew any drivers who were attempting to bring a union into the plant, adding if anybody on the job was trying to get up a union, he would "fire them." Harold Trussell (Hobart's son), also a driver, testified that "a few months" after January 16, 1948 (when he joined the Union), Poe asked him if he knew The Board on August 2, 1948, dismissed the petition for investigation and certification of representatives on jurisdictional grounds (78 NLRB. 629). 876 DECISIONS OF NATIONAL 'LABOR RELATIONS BOARD anything about a union; that when he replied that he did not, Poe stated that he "did not want a union in the plant and if any of the drivers joined it he would fire them." Poe testified that he did not "recall" asking either Hobart or Harold Trussell about the Union. He denied stating that if he found out who was responsible 'for the organizing he would fire them . It is difficult for me to believe that the superintendent of a plant in these days would have trouble in remembering ,whether he had queried certain employees about a union , especially during an organizational drive. . I therefore reject his denials and find that Poe asked the questions and made the statements substantially as testified to by the two •'Trussells. . Donald G. Anderson, discharged truck dispatcher,? and active with Burnside in the formation of the Union in the plant, testified that about June 3, 1949, he ,was visiting with Poe in the latter's car in front of Poe's office when Burnside, :whose discharge on September 9, 1948, is detailed hereafter, drove into the yard and Poe stated that if he could "get anything on" Burnside or Joe Martini (another driver), he would "fire them." Perry Ward testified that in the • "summer of 1948" while he and Joe Saboda were at the office window, Poe ,stated, "Well, boys, what do you think about the Union," that Ward responded, "What do you think about it?" Whereupon, Poe said, "I ain't got much to think about it,. the Union ain't going to come in and if I take a notion to fire a man, I'll fire him, the Unions can't tell me what to do." Poe, a stockholder in the Respondent Company as well as superintendent of its concrete division, admitted that he frequently talked to Anderson, but denied that he ever told Anderson that he would fire Burnside or Martini if he could get anything on them. He also denied the testimony of Ward. In view of Anderson's discharge by the Respondent, I have examined his testimony carefully ,for indications of animosity or pique. I find none. His testimony and my observation of him indicate a restrained and forthright witness. ' Also, there is nothing in the testimony or demeanor of Ward, still working for the Respondent at the time of the hearing, to raise doubts as to his integrity. I therefore credit Anderson and Ward and find that Poe made the statements substantially as testified to by each of them 8 C. C. Baldree worked under Superintendent Poe and was foreman over the concrete truck drivers. Driver Malcolm Thompson, who joined the Union in January 1948, testified that about 2 weeks thereafter, Baldree asked him if he was a union member, and that when he answered "no," the foreman urged him, to talk against the Union to driver Duane L. Casey, who lived with Thompson and was the latter's "buddy." Thompson further testified that Baldree also Anderson was discharged July 3, 1948 , for refusing to work Sundays without extra pay. Charles F. Pitts testified without denial that in November 1948 he borrowed $10 from the Respondent (as was not unusual for the drivers to do ) ; that at the time , Poe asked him about a rumor the drivers were going to strike ; that when he denied that there was any strike talk, Poe gave him the money but added , "If you all are going to cooperate with the Union , you should go to the Union to borrow money." Poe testified that he was con- cerned about lending Respondent 's money if the drivers were not going to work and, being -reassured on-that point , loaned the money. He did not testify or deny that he told Pitts .that if the drivers were going to "cooperate with the Union " they should go to that organ- ization for their loans. Assuming that Poe made such comment , it is reasonable to assume that he was referring to a. strike situation , and, in my judgment , it did not ' constitute a threat of disparity of treatment between union and nonunion drivers. TAMPA SAND & MATE!R.LAL COMPANY 877 stated that he had a: list of men on file and if the drivers went on strike, he would replace each of them. Duane Casey testified that in February of the 'same year, Baldree questioned him as to what he knew about the Union and that when he replied "nothing," Baldree added, "Well; don't fool with the Union; it is no good. We tried it before." Driver Anderson, heretofore referred to, -testified that several weeks before he left the Respondent on July 3, he heard Baldree say to "someone else" that the Union would never come into the yard. Harry L. Ward, also referred to heretofore and admittedly, friendly with Baldree, testified to a "discussion" about the Union between him and the foreman while 'Tiding home from work ; that after he had brought the subject of the Union up, ' Baldree said he "thought" the drivers were doing the "wrong thing" about bringing in a union; that J. L. Cone (principal official and who controlled the Respondent) was "too big a man" and would "fight the Union" ; that unioniza- tion in the plant had been tried before without results, and that Cone had copies of all the correspondence between Burnside and the Wage and Hour Division of the Department of Labor ; and that Cone knew all about the union meetings, and who attended them, and would "buy" the CIO out as he had previously bought out the AFL Teamsters. Baldree further stated, according to Anderson, that if the Union came in, the drivers would be reduced to 40 hours a week and get less money. Harold H. Trussell, heretofore referred to, testified that Baldree told him_ that he understood that some of the drivers were threatening to strike and that if he wanted to keep his job "he.better not strike." Baldree specifically denied the testimony of Thompson,. Casey, Anderson, and Harold Trussell. He admitted discussing the. Union with Ward but denied that he made any derogatory statements about it or referred to Cone or union meetings. Although he denied that he talked about the Union to Thompson or Casey, Baldree testified that he heard Thompson, "on several occasions," discuss the Union, and that "several" of the employees asked his (Baldree's) opinion about it. Although Baldree, a former truck driver and at one time a member of the AFL Teamsters, may, as he testified, have been personally neutral as to the Union, it is reasonable to infer that he was influenced to some extent by the antiunion attitude of his superior, Superintendent Poe. From the record as a whole, and under all the circumstances, I am convinced and find that he not only questioned. Thompson and Casey about the Union, but also disparaged unionization and stated that any striking employees would be replaced. Like- wise, I find that the foreman in effect threatened Harold Trussell with discharge in the event he participated in the strike, and contrary to Baldree's version, when Ward asked for his opinion about the Union, be advised against joining that organization giving reasons why he thought it would not be successful in the Respondent's plant. Taken in its context, however, this expression of opinion, solicited by Ward, even though definitely antiunion, is privileged under Section 8 (c) of the Act.' As Anderson was unable to identify in any way the "someone" he claims to have overheard Baldree tell that the Union would never come into the yard, and there was no corroboration, I accept Baldree's fiat denial of Anderson's testimony. 0In my judgment, the testimony of G. T. Wells, not recalled by Baldree, that in late 1947 as he and Baldree were riding together "chatting" about the Union , Baldree observed that .the Union had been tried before without success and he did not believe it.would succeed in organizing the drivers, is also privileged under Section 8 (c). In any event , this testimony, which is credited, was received only as background. 878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Conclusions as to Interference, Restraint, and Coercion I find that the-Respondent, by Superintendent Poe's questioning of Hobart, Harold Trussell , and Perry Ward about organizational and union activities, his statement to Anderson that if he could get "anything on" Burnside or Joe Martini, he would fire them ," and his comment to Harold Trussell that he did not want the Union in the plant and would fire any drivers joining it ; and Fore- man Baldree's questioning of Thompson and Casey about the Union , his request that Thompson disparage the Union to Casey, and his warning to Casey not to "fool with the Union," has interfered with, restrained , and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and in violation of Section 8 ( a) (1) thereof. C. The discharge of Burnside Lewis G. Burnside came to work for the Respondent as a truck driver in April 1946. The great preponderance of the testimony discloses , and I find, that he was a good driver and kept his truck : and cement mixer in good condition. In fact, for about a year prior to his discharge , Burnside had been operating one of the Respondent's largest and most expensive truck-trailers, a 10-wheel "auto- car." 11 As heretofore found, Burnside not only took the lead in bringing the'Union into the plant in early 1948 and in securing members thereto, but also initiated an inquiry as to whether the Respondent was in compliance with the Fair Labor Standards Act. The record shows, and I find, that the Respondent was aware of most, if not all , of these activities of Burnside. The immediate events that brought about Burnside 's discharge on September 9 are as follows : About 3 weeks before that date, Burnside was returning, to the yard after delivering a load of concrete . Before picking up another load, he stopped for a soft drink at a stand on the highway within-a block of Poe 's office, as had often been his custom as well as that of other drivers. He had not delivered all the concrete in the mixer to the previous customer so he left his mixer motor run- ning to prevent the concrete from caking , as he was supposed to do. Contrary to normal instructions, however, he also left his truck motor running. He testi- fied that he left the latter motor running because the one battery in the truck which operated both motors was low, and .he was afraid that if he shut the truck motor off he would be unable to start it again 12 While in the drink stand, Burnside saw Cone drive past on the highway. After from 5 to 10 minutes at the stand Burnside drove over to the "batch bin" (located near Poe 's office ) for his next order. Cone was at or near the batch bin and asked Burnside if it was his 10 As heretofore found , Burnside had initiated and was the leader of union activity in the plant. Although the record does not disclose any union activity by driver Martini, it does indicate that most, if not all , of the drivers became union members in the early spring of 1948 at the latest. It was certainly not an accident that Poe associated Martini with Burnside , the leader in the union movement. 11 Compared with smaller 6-wheel Ford and Chevrolet truck -trailers included in the Respondent's equipment. 12 Apparently , the small motor used to run the concrete mixer did not have a generator attached ' thereto. TAMPA SAND & MATERIAL COMPANY 879 truck he had passed at the soft drink stand with both motors running. Burnside replied in the affirmative and Cone, without further comment , drove away a I find that Burnside disobeyed instructions under the circumstances ; that if the truck battery was low, he should have first taken it to the Respondent's shop for recharging , rather than to permit his truck engine to run while he stopped for a drink. According to Burnside's credited testimony , about 9 o'clock in the morning of September 9, he had just taken on his second load of concrete and was driving down Platt Street in Tampa when he noticed that the mixer had stopped turn- ing. He immediately drew up to the curb and unsuccessfully tried to start the mixer motor. He then drove to the Respondent 's shop and told Shop Foreman Doolittle of his difficulty . Doolittle called a mechanic who also used the;starter but was unable to get the motor running. At the mechanic's suggestion , Burnside checked the mixer motor tank and discovered there was no gasoline therein. When the tank was filled, the starter would not turn the motor over as the battery had run down. The evidence discloses that at this point it was also discovered that the carbu- retor was dirty." After the carburetor had been cleaned and the dead battery replaced , the mixer motor started and functioned without further difficulty. However, before the motor was actually put in operation, Cone appeared on the scene and , on learning what had happened , telephoned Superintendent Poe to send over another driver and instructed Foreman Doolittle to tell Burnside he could get his pay. Cone did not talk to Burnside but the latter was informed by Doolittle that another driver was replacing him and that he was discharged 16 13 In addition to his work in the yard , part of Foreman Baldree's time was spent on the road with, or following, one or more of the 30 -odd truck drivers employer by the Respondent , to see that the orders were delivered properly, that the equipment was not abused or that the drivers did not waste too much time . Baldree did not testify as to the above incident and as will later appear , had nothing to do with Burnside 's discharge although he was his immediate supervisor . Cone, who as - above,appears , had a number of other interests in addition to that of the Respondent , also kept track as well as he could of the truck drivers . He did not know many of the drivers by name but , of course, knew the trucks . It is his estimate that the above incident occurred 2 or 3 days before September 9 when Burnside was discharged. He testified that he saw the truck as he drove past the drink stand on his way to Poe 's office, and that after being in the office from 5 to 8 "or maybe 10" minutes , as he drove away he saw the truck leaving the drink stand. Cone did not recall questioning Baldree at the office . Cone further testified that the incident occurred about 3 o 'clock in the afternoon , whereas Burnside testified that it was about 10 o 'clock in the morning. Burnside did not specifically testify as to the duration of his stay at the drink stand but estimated that normally he did not stop on such occasions for more than 3 minutes at a time . In other fespects , Burnside's testimony as to the occurrence was specific and detailed . On the other hand, Cone's testimony was more general and a little vague as to details. As the one most concerned, I credit Burn- side 's.version that the incident happened in the morning about 3 weeks before his discharge and that Cone discussed thhe•occurrence -with him. 14 According to credible testimony, this frequently happens when a gasoline tank runs dry, as sediment that may have accumulated in the bottom of the .tank is sucked into the carburetor by the action of the starter. 15 The above findings as to what happened at the Respondent's shop is based on a recon- ciliation of the testimony of Burnside and Doolittle . Although Burnside made no mention of a dirty carburetor and Doolittle 's testimony in that respect conflicts with his previously sworn statement to a Board Field Examiner , I am satisfied from the record that the carburetor was dirty . In fact, Burnside admitted that "sometimes " water, sand, and "trash" would get into the carburetor, necessitating its being cleaned. 880 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD Neither at that time nor later in the morning when he collected his pay from the Respondent was Burnside told the reason for his discharge, nor did he inquire.: However, he understood that-he was fired because he was out of gasoline and gave that as the reason for his dismissal when he applied for unemployment compensa- tion. Cone testified that when he found that Burnside had run out of gasoline, the battery dead, and his carburetor dirty-and because it was the same driver he "caught" at the soft drink stand "a couple of days" before with both motors running-he got "mad" and caused his discharge. The record discloses that the mixer tanks on the trucks held enough gasoline to. run the small mixer motors for a full day without refilling. Burnside had filled the mixer tank the night before but did not check his gasoline supply in the- morning before he started on the job, although he knew that there had been some pilfering of gasoline from the parked trucks and there was no lock on his mixer tank " I find, under the circumstances, that Burnside was negligent in not checking his. gasoline supply before he started hauling concrete the morning of September 9. While it was not his job to recharge the battery or clean the carburetor, it was his responsibility, as he admitted, to see that his equipment was in running order; and,the short gas supply caused the suction of sediment from the tank into the carburetor, as well as the weakening of his battery. Did the fact that Burnside ran his truck motor, contrary to instructions while he was at the soft drink stand in August, rather than bother about having the battery renewed, combined with his failure to check his gasoline tank the follow- ing September 9, warrant the Respondent in summarily discharging him without prior warning; or was this a subterfuge to get rid of him because of his union and concerted activities? The record shows that drivers had previously been discharged for seriously damaging their motors or other equipment, and also for reckless driving. No driver had ever been discharged for running the truck motor a few minutes longer than necessary, or for running out of gasoline while on the road. In the two incidents with which we are here concerned, there was no damage to the equip- ment. It is true that on September 9, if the mixer motor had remained idle much longer, the fresh concrete might have hardened and required costly cleaning of the mixer blades but Burnside apparently noticed the trouble almost immediately after the mixer stopped turning. When he could not get the mixer motor started himself, he promptly took the truck to the shop where the employees were familiar with and presumably experts in motor trouble. In the short period that inter- vened at the shop before the mechanic located the trouble, he exhausted the battery and no doubt pulled additional sediment into the carburetor in attempting to start the motor with a dry tank. Burnside had run out of gasoline in his mixer tank on two previous occasions, according to his undenied and credited testimony, and had not been criticized therefor by management. From the entire record, I am satisfied and find that Burnside was discharged by the Respondent because of his known union and concerted activities, and the September 9 gas incident combined with the previously comparatively unimportant 36 Burnside , explaining his empty tank, testified that he "thought" the gasoline may have been stolen the night before. TAMPA SAND & MATERIAL COMPANY 881. occurrence at the soft drink stand , presented a convenient but hardly convincing pretext for his release from employment17 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III, above , occurring in connection with the operations of the Respondent, described in Section I, above, have a close, intimate, and substantial relationship 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 the Respondent has engaged in certain unfair labor , practices, it will be recommended that it cease and desist therefrom and take certain affirma- tive action designed to effectuate the policies of the Act. It has been found that the Respondent discriminated with respect to the hire and tenure of employment of Lewis G . Burnside, by discharging him because of his 'union and concerted activities . It will, therefore, be recommended that Respondent offer Burnside immediate and full reinstatement ' to his former or substantially equivalent position 's without prejudice to his seniority or other rights and privileges and make him whole by payment to him of a sum of money equal to that which he normally would have earned as wages from the date of discrimination to the date of the Respondent 's offer of reinstatement , less his net earnings." Inasmuch as the discharge of employees for union or concerted'activity is re- garded by the Board and the courts as one of the most effective methods of de- feating the exercise by employees of their right to self-organization , there is danger that the commission of unfair labor practices generally is to be anticipated from Respondent's unlawful conduct in the past. It will, therefore , be recom- mended that Respondent cease and desist from in any manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 17 This finding that Burnside was discriminatorily discharged is further buttressed by the denied but credited testimony of driver Malcolm Thompson. that about the end of September 1948, having missed Burnside about the yard , he asked Superintendent Poe where Burnside was and Poe replied that he had been discharged , "that he had been after Burnside a long time and finally .got him." It is also noted that on November 4, 1948, the Florida Industrial Commission rejected the contention that Burnside was discharged for "misconduct connected with his work." 11 In accordance with the Board's consistent interpretation of the term , the expression "former or substantially equivalent position " is intended to mean "former position wher- ever possible and if such position `is no longer in existence then tq a substantially equivalent possition." See The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827; Crossett Lumber Co., 8 NLRB 440; Republic Steel Corporation V. N. L. R. B., 311 U. S. 7;'F. W. Woolworth Company, 90 NLRB 289. 11 Consistent with the policy of the Board the loss of pay shall be computed on the basis of each separate calendar quarter or portion thereof during the period from Respondent's discriminatory action to the date of a proper offer of reinstatement. The quarterly periods, hereafter called "quarters," shall begin with the first day of January , April, July, and October. It will be further recommended that Respondent make available to the Board upon request payroll and other records to facilitate the checking of the amount of back pay due. 882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the foregoing findings of fact, and upon the entire record in, the case, I make the following : CONCLUSIONS OF LAW 1. United Stone & Allied Products Workers of America, CIO, is a labor organi- zation within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining , and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act , the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 3. By, discriminating with - regard to the hire and tenure of employment of Lewis G. Burnside , thereby discouraging membership in United Stone & Allied Products Workers of America, CIO , a labor organization, Respondent has en- gaged in, and is engaging in, unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and ( 7) of the Act. [Recommended Order omitted from publication in this volume.]