Concrete Haulers, Inc.

690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD clerks, graphotype, multilith, stock records and merchandise department clerks, addressograph service clerks, credit clerks, collection clerks, stenographers, telephone operators, cashiers, file clerks, bookkeepers, tag clerks, and messengers, but excluding all other employees, professional and confiden- tial employees, and supervisors. [Text of Direction of Election omitted from publication.] CONCRETE HAULERS, INC., WAMIX , INC., AND RED - D-MIX, INC. and DALLAS GENERAL DRIVERS , WAREHOUSEMEN AND HELPERS , LOCAL UNION NO. 745 , AFL. Case No. 16-CA-408 . August 12, 1953 DECISION AND ORDER On November 17, 1952, Trial Examiner Louis Plost issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondents had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal of the complaint with respect to such allegations. Thereafter, the Respondents and the Union filed exceptions to the Intermediate Report and supporting briefs. On January 21, 1953, the Board issued an order reopening the record and on February 10, 1953, a corrected order re- opening the record, for the purpose of enabling the parties to present certain evidence deemed relevant to the issues in the case. Pursuant to these orders, a further hearing was held before Trial Examiner Plost. On May 15, 1953, the Trial Examiner issued his Supplemental Intermediate Report, a copy of which is attached hereto, recommending that the Board adopt in full the recommendations contained in the Intermediate Report. The Respondents filed exceptions to the Supplemental Inter- mediate Report and a supporting brief. The Board' has reviewed the rulings of the Trial Examiner made at the hearings and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the Supplemental Inter- mediate Report, the exceptions and briefs, and the entire rec- ord in the case, and hereby adopts the findings, conclusions, 1 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel. [ Members Murdock , Styles , and Peter- son). 106 NLRB No. 117. CONCRETE HAULERS, INC. 691 and recommendations of the Trial Examiner with the excep- tions, modifications, and additions noted below. 1. We find, contrary to the Respondents' contention, that the Respondents were engaged in commerce withinthe meaning of the Act. Moreover, in view of the fact that the Respondents furnished material valued in excess of $50,000 annually to enterprises engaged in performing services outside the State of Texas in the value of $25,000 annually, we find that it will effectuate the policies of the Act to assert jurisdiction herein.2 2. We agree with the Trial Examiner that the Respondents, in violation of Section 8 (a) (5) and (1) of the Act, refused to bargain with the Union on June 6, 1951, and thereafter,' although the Union was the exclusive bargaining representa- tive of the Respondents' truckdrivers. As more fully discussed in the Intermediate and Supple- mental Intermediate Reports, the Union on May 25, 1951, secured the uncoerced signatures of 8 of the Respondents' 14 truckdrivers. The next day Union Representatives Lamm and Wallace met with Respondents' President Thomas Amis. Lamm informed Amis that the Union represented a majority of the truckdrivers and that he desired to negotiate a contract cover- ing these drivers. In response to Lamm's offer to exhibit the signed cards of a majority of the truckdrivers, Amis stated that he did not doubt the Union's majority but asked for addi- tional time to consider the Union's bargaining request. At the next meeting on June 6, 1951,4 between Lamm and Thomas Amis, Amis declined to negotiate a contract for the asserted reason that his attorney had advised him that it was illegal to sign a contract. Although Lamm again offered to prove that the Union represented a majority of the drivers, Amis once more replied, according to Lamm's credited testimony, that he did not doubt that the Union "had the drivers, that wasn't the question, that his attorney said it was illegal to sign a con- tract." On the following morning before the drivers began work, Thomas Amis delivered a speech to them in which he reit- erated his belief, previously expressed to the Union, that he was under no legal obligation to enter into a contract with the Union, adding, for the first time, that he was not convinced 2 Hollow Tree Lumber Co., 91 NLRB 635; Hart Concrete Products Co., 94 NLRB 1565. In view of common stock ownership, the fact that the same officers administer a common labor policy, and the interdependent and integrated nature of their operations, we find that the Re- spondents, Concrete Haulers, Inc., and Wamix, Inc., constitute a single employer within the meaning of the Act. 3In different portions of the Intermediate Report, the Trial Examiner found that the Re- spondents unlawfully refused to bargain on June 6 and June 7, 1951. We agree that the Re- spondents unlawfully refused to bargain on both dates. 4 The Trial Examiner credited Lamm's testimony that there was a meeting between him and Thomas Amis on June 6. Although Amis denied that there was such a meeting on June 6, he did admit that he had spoken to Lamm on the telephone about a contract a few days before meeting with the union representatives on June 7, 1951. It is significant that in this conver- sation, Amis did not claim that he questioned the Union's majority status 322615 0 - 54 - 45 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the Union represented a majority and that it had not been certified . At the conclusion of the speech , Amis requested the drivers to go to work. All of the eight drivers, who had signed union-authorization cards, refused to do so, and later went on strike in protest against the Respondents ' refusal to bargain.5 The Respondents contend that they were justified in their refusal to bargain with the Union because of their good-faith doubt as to the Union ' s claim of majority in an appropriate unit . 6 However , it is clear from the foregoing that neither at the May 26 nor the June 6 meetings with the Union did the Respondents question thq Union ' s majority status despite the Union's offer to prove it . Indeed , the credited testimony dis- closes that at these two meetings the Respondents ' President Thomas Amis conceded that he entertained no doubt that the Union represented a majority of the drivers.' It appears that underlying the Respondents ' contention is the disagreement with the Trial Examiner ' s resolution of con- flicting testimony . As the Trial Examiner had the benefit of personal observation of the witnesses , and as his credibility findings are not inconsistent with the clear preponderance of all the relevant evidence , we see no reason to disturb these findings .' However, were we to accept the Respondents ' version of their June 7 meeting with the union representatives, where the Respondents , by their own admission, sought to raise the question of the Union ' s majority status for the first time, we would not be persuaded that they did so in good faith. For, not only do the Respondents not assert that they questioned the Union's majority at their earlier meetings or conversations with the Union , but also, if they had any such doubt , it should have been dispelled by the fact that a majority of their drivers had refused to heed President Amis' request to go to work following his speech to them. Accordingly , we find, as did the Trial Examiner, that the Respondents unlawfully refused to bargain with the Union in violation of Section 8 (a) (5) and ( 1) of the Act. Like the Trial Examiner, we further find that the Respondents ' unlawful refusal to bargain caused the strike herein, and that the strike therefore was an unfair labor practice strike.' 3. We agree with the Trial Examiner that the Respondents violated Section 8 ( a) (1) of the Act by interrogating employees 5 The dispatcher , Jessie Moor, also joined the drivers in their strike against the Respond- ents. 6 Like the Trial Examiner , we find, contrary to the Respondents ' further contention , that at all material times, the Union represented a majority of the drivers in an appropriate unit which the Respondents themselves acknowledged to be appropriate. TIt is also noted that Joseph S. Amis, the Respondents ' vice president and manager , testi- fied that before June 7, 1951, he "had heard" that the drivers had joined the Union. 8Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F . 2d 362 (C. A. 3); cf. N. L. R. B. v. Universal Camera Corp., 190 F. 2d 429 (C. A. 2), on remand from Universal Camera Corp. v. N. L. R. B , 340 U. S. 474. 9 We do not subscribe to the Trial Examiner 's statement in the Intermediate Report that the employees "had already been discriminated against." CONCRETE HAULERS, INC. 693 Tatum and Whatley. We also agree that the Respondents' letter of June 8 to each employee advising him that unless he returned to work the following morning, he would be replaced, also violated Section 8 (a) (1). However, in so doing, we rely on the fact that as the strike was caused by the Respondents' unfair labor practices and the strikers could not, therefore, be legally replaced, the Respondents' letter of June 8, threat- ening the strikers with loss of their jobs, was in itself an independent violation of Section 8 (a) (1) of the Act." The Remedy Having found that the Respondents have engaged in and are engaging in unfair labor practices in violation of Section 8 (a) (1) and (5) of the Act, we shall order them to cease and desist from their unlawful conduct and take certain affirmative action necessary to effectuate the policies of the Act. The violations of the Act which the Respondents committed are persuasively related to other unfair labor practices pro- scribed by the Act, and the danger of their commission in the future is to be anticipated from the Respondents' conduct in the past. The preventive purposes of the Act will be thwarted unless our order is coextensive with the threat. In order, therefore, to make more effective the interdependent guaran- tees of Section 7, to prevent a recurrence of unfair labor practices, and thereby minimize industrial strife which burdens and obstructs commerce, and thus effectuate the policies of the Act, we shall order the Respondents to cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. We have agreed with the Trial Examiner that the strike was caused and prolonged by the Respondents' unfair labor practices. At the time of the hearing, it appeared that only employees J. R. Tatum, Walter Cotton, Cecil R. Werley (drivers), and Jesse D. Moore (dispatcher), had not applied for reinstatement or been reinstated. As recommended by the Trial Examiner, we shall order the Respondents to offer re- instatement to these employees." However, the section of the Intermediate Report entitled "The Remedy" is modified in this manner: We shall order the Respondents to offer, upon ioReed & Prince Manufacturing Company, 96 NLRB 850, 860 , enfd. 205 F . 2d 131 (C.A 1). Although Thomas Amis' speech to the drivers on June 7 reveals a determination not to bar- gain with the Union , we, unlike the Trial Examiner , find it unnecessary to base an inde- pendent 8 (a) (5) and (1) finding on it. n Although Jesse B . Moore, as a dispatcher, is excluded from the unit of truckdrivers found appropriate herein , nevertheless as an employee of the Respondents who struck in sympathy or support of the unfair labor practice strikers , he is entitled to the same protec- tion and to the same reinstatement remedies as the striking employees who are directly and primarily aggrieved by the unfair labor practices causing the strike . See N. L. R. B. v. Biles Coleman Lumber Co., 98 F. 2d 18, 23 (C. A. 9); Ozark Dam Constructors, 99 NLRB 1031; Texas Foundries, Inc., 101 NLRB 1642. 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their applications, to J. R. Tatum, Walter Cotton, Cecil R. Werley, and Jesse D. Moore,' immediate and full reinstate- ment to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges. We shall order the Respondents to dismiss, if necessary, any persons hired on or after June 7, 1951, to provide places for the returning strikers. We shall also order the Respondents to make whole employees J. R. Tatum, Walter Cotton, Cecil R. Werley, and Jesse D. Moore, who have not previously been reinstated, for any loss of pay they may suffer by reason of the Respondents' refusal, if any, to reinstate them, by payment to each of them of a sum of money equal to that which he normally would earn as wages during the period from 5 days after the date on which the individual employee applies for reinstatement to the date of the Respondents' offer of reinstatement, less his net earnings during such period. Loss of pay to be computed in accordance with the formula prescribed in F. W. Woolworth Co., 90 NLRB 289. 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 Re- spondents, Concrete Haulers, Inc., and Wamix, Inc., Dallas, Texas, their officers , agents, successors , and assigns , shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Dallas General Drivers, Warehousemen and Helpers, Local Union No. 745, AFL, as the exclusive representative of all truckdrivers of the Respondents employed at the Dallas plants with respect to rates of pay, wages, hours of employment, and other conditions of employment. (b) Interrogating their employees concerning their union affiliation, threatening them with discharge unless they abandon strike activity, or in any other manner interfering with, restraining, or coercing their employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Dallas General Drivers, Warehousemen and Helpers, Local Union No. 745, AFL, or any other labor organi- zation, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement re- quiring 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: 12 in order to effectuate the policies of the Act, it is immaterial whether the unfair labor practice strikers had previously abandoned the strike. CONCRETE HAULERS, INC. 695 (a) Upon request, bargain collectively with Dallas General Drivers, Warehousemen and Helpers, Local Union No. 745, AFL, as the exclusive representative of the employees in the appropriate unit described above with respect to rates of pay, wages, hours of employment, and other conditions of employ- ment, and if any understanding is reached, embody such under- standing in a signed agreement. (b) Upon application, offer J. R. Tatum, Walter Cotton, Cecil R. Werley, and Jesse D. Moore, immediate and full reinstate- ment to their former or substantially equivalent positions without prejudice to their seniority or other rights and priv- ileges, dismissing , if necessary, any employees hired since June 7, 1951, to replace them. (c) Make whole J. R. Tatum, Walter Cotton, Cecil R. Werley, and Jesse D. Moore, who have not previously applied for re- instatement, for any loss of pay they may suffer by reason of the Respondents' refusal, if any, to reinstate them, by payment to each of them of a sum of money equal to that which he normally would earn as wages during the period from 5 days after the date on which the individual employee applies for reinstatement to the date of the Respondents' offer of reinstate- ment, less his net earnings during said period, in the manner set forth in "The Remedy" section of our decision. (d) On request, make available to the National Labor Rela- tions Board, or its agents , for examining and copying, all pay- roll records, social-security records, timecards, personnel records and reports, and all other records necessary for determination of the amounts of back pay due and the right of reinstatement under the terms of this Order. (e) Post at their plants in Dallas, Texas, copies of the notice attached hereto as an appendix." Copies of such notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by the Respondents' authorized representatives , be posted by the Respondents immediately upon receipt thereof and maintained by it for sixty (60) con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for the Sixteenth Region, in writing, within ten (10) days from the date of this Decision and Order as to what steps the Respondents have taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed , insofar as it alleges that the Respondents locked out or unlawfully discharged any of their employees. uIn 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." 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT interrogate our employees concerning their union membership or threaten them with discharge unless they abandon strike activity. WE WILL NOT in any like or related manner interfere with , restrain , or coerce our employees in the exercise of their right to self -organization , to form labor organi- zations, to join or assist Dallas General Drivers, Ware- housemen and Helpers, Local Union No. 745, AFL, or any other labor organization , to bargain collectively through representatives of their own choosing , to engage in con- certed 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 au- thorized in Section 8 (a) (3) of the Act. WE WILL bargain collectively, upon request, with Dallas General Drivers, Warehousemen and Helpers, Local Union No. 745, AFL, as the exclusive representative of all the employees in the bargaining unit described below, with respect to rates of pay, wages, hours of employment, and other conditions of employment and, if any understanding is reached, embody such understanding in a signed agree- ment. The bargaining unit is: All truckdrivers employed at our Dallas , Texas, plants, exclusive of office clerical employees , guards, and supervisors as defined in the National Labor Relations Act. WE WILL, upon application, reinstate J. R. Tatum, Walter Cotton, Cecil R. Werley, and Jesse D. Moore, to their former or substantially equivalent positions without prej- udice to their seniority or other rights and privileges, dismissing, if necessary, any employees hired since June 7, 1951, to replace them. All our employees are free to become, remain, or refrain from becoming members of the above -named union or any other labor organization , except to the extent that their right to refrain may be affected by a lawful agreement which requires CONCRETE HAULERS, INC. 697 membership in a labor organization as a condition of employ- ment. CONCRETE HAULERS, INC., Employer. Dated ................ By.................................................... (Representative) (Title) WAMIX, INC., 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 STATEMENT OF THE CASE Upon a charge duly filed on August 1, 1951, by and on behalf of Dallas General Drivers, Warehousemen and Helpers, Local Union No 745, AFL, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, herein called the Union, the General Counsel of the National Labor Relations Board, herein respectively called the General Counsel and the Board, by the Regional Director'for the Sixteenth Region (Fort Worth, Texas), issued a complaint, dated July 2, 1952, alleging that Concrete Haulers, Inc., Wamix Inc., and Red-D-Mix, Inc., herein called the Respondents, had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the complaint and the charge, together with a notice of hearing thereon, were duly served upon the Respondents and the Union With respect to the unfair labor practices, the complaint alleged in substance that the Re- spondents, (1) On July 7, 1951, discharged certain named employees in violation of the Act, and have since denied certain of them reinstatement; (2) on May 26, 1951, and at all times thereafter, refused to bargain collectively in respect to rates of pay, wages, hours of em- ployment, or other conditions of employment with the Union as the exclusive representative of all the employees of the Respondents in a unit appropriate for the purposes of collective bargaining though requested to do so by the Union; and (3) engaged in other specified conduct violative of the Act As hereinabove found the charge herein was filed August 1, 1951, and alleged specific unfair labor practices by Concrete Haulers, Inc., and Wamix, Inc The complaint issued July 2, 1952, names as Respondents, Concrete Haulers, Inc., Wamix, Inc., and Red-D-Mix, Inc. It is admitted by the General Counsel that no charge was filed against Red-D-Mix, Inc.; thus almost a year following a charge against two corporations the General Counsel issued his complaint against them and joined with them as a party respondent, a third corporation, Red-D-Mix, Inc., which had not been named in the charge On July 14, 1952, the Respondents Concrete Haulers, Inc., and Wamix, Inc., filed a motion to dismiss the complaint, with the Regional Director for the Sixteenth Region, and likewise on the same date Red-D-Mix, Inc , filed with said Regional Director a motion to dismiss as to it on the ground that no charge of unfair labor practice had been filed against it upon which a complaint could be issued 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Regional Director referred the motions to the Chief Trial Examiner for ruling. The Chief Trial Examiner duly designated Trial Examiner David London to act in the matter. On July 21, Trial Examiner London issued an order wherein the motions, including that of Red-D- Mix, Inc , were "denied without prejudice , however, toa renewal thereof at the hearing " At the opening of the hearing the Respondents , including Red-D-Mix, Inc., renewed their motions to dismiss the complaint The undersigned inquired of the General Counsel under what theory he claimed jurisdiction of Red-D-Mix, Inc The General Counsel stated in affect that as Concrete Haulers, Inc , Wamix, Inc , and Red-D-Mix, Inc , were owned by the same individuals, had common officers, and were engaged in an integrated enterprise , thecharge filed against Concrete Haulers, Inc., was sufficient to base a complaint jointly against Red-D-Mix, though not named in the charge. He argued that as a charge is not in the nature of a pleading the requirement of due process attaches not to the charge but to the complaint and adding another party as a respondent, although not named in the charge , does not prejudice the party so added provided an opportunity is later given to introduce a defense. In this colloquy with the General Counsel (on the record) the undersigned inquired if the General Counsel was conversant with the Hopwood Retinning case iand with Section 10 (b) of the Act , as a statute of limitation prohibiting the basing of a complaint "upon any unfair labor practice occurring more than six months prior to the filing of a charge ." The General Counsel was of the opinion that neither applied herein. The parties stipulated that Thomas L. Amis owns the majority of the votuig stock in each of the corporations , is the president of each of the corporations , and directs the operations of each 2 The undersigned granted the motion of Red-D-Mix , Inc , and dismissed the complaint as to Red-D-Mix, Inc , 3 for the reason that there was no authority to join Red-D Mix, Inc., as a party respondent in the complaint as based on the charge In so ruling the undersigned relied on Section 10 (b) of the Act and the language of the court in the Hopwood Retinning case where, in a similar situation, the Trial Examiner having permitted a complaint to be amended by adding as a respondent a corporation not named in the complaint , the court said: [the Act] provides that after the charge has been filed , the Regional Director shall cause to be served upon the respondent a formal complaint stating the charges and containing a notice of hearing This procedure is required as a prerequisite to the jurisdiction of the Board and the complaint issued and the subsequent hearing must be in accord with the charge in an attempt to prove or rebut such charges . The Board should be an im- partial administrator and must ascertain if there were unfair labor practices as charged The Board cannot use its own initiative in respect to charging unfair practices. Since the ultimate order to cease and desist was issued against Monarch as well as Hopwood , the former was entitled to a full fair trial consistent with procedure provided for by the provisions of the Act and the rules of the Board . These formalities were not followed as required . There was a service by way of amendment to the complaint on June 9th, although no charge had been filed or attached to the complaint , and the so-called amended charge of June 18th was merely filed with the Trial Examiner The Board, however , contended that Monarch was the alter ego of Hopwood and therefore the corpo- rate fiction should be disregarded Chicago Mill & Lumber Co. v. Boatmen 's Bank, 8 Cir , 234 F 41, 45, Mennen Co, v Federal Trade Comm., 2 Cir , 288 F. 774, 782, 30 A. L. R 1120; Metropolitan Holding Co. v. Snyder, 8 Cir., 79 F. 2d 263, 267. 103 A. L. R. 912 We may not consider Monarch a subsidiary it is a distinct and separate entity. The Union moved to amend its charge to include Red-D-Mix , Inc. The undersigned denied the motion 4 The Union then moved for an " adjournment of the hearing to permit the Union i N. L R. B. v. Hopwood Retinning Co., 98 F. 2d 97 (C. A 2). 2 The record also shows the same as to Red-D-Mix, Inc. 3 The undersigned stated on the record: Trial Examiner Plost Well, gentlemen, in view of Section 10 (b) and in view of the case I cited this morning, which was the Hopwood Retinning Case, I am not persuaded by your arguments and I will grant the respondent's motion to dismiss as to Red-D-Mix, Incorporated, which is, I believe, contained in 1-G. 4A charge must be filed with the Regional Director. Section 102.10, Rules and Regulations, Series 6. CONCRETE HAULERS, INC. 699 to file an amended charge with the Regional Office ' The undersigned denied the motion On the third day of the hearing the General Counsel moved to amend the complaint to in- clude Red-D-Mix, Inc , and Thomas Amis as parties respondent and further to adjourn the hearing for a sufficient time to enable the Respondents to answer the new issues so raised. The undersigned denied the motions.5 Together with the various motions herein mentioned the Respondents filed an answer on July 14, 1952, and an amended answer on August 25, 1952 , wherein the Respondents (a) denied the jurisdiction of the Board in the matter ; (b) denied that they had engaged in any of the unfair labor practices alleged in the complaint , including the unlawful discharges , (c) denied that the Union represented their employees and further that the unit claimed was appropriate; and (d) averred that they at all times in good faith doubted that the Union represented a majority of their employees , that an appropriate unit herein should consist only of truck- drivers, exclusive of "dispatchers and batchmen," and averred further that on June 8, 1951, they handed a letter to each of the employees who had ceased work which read in part On Thursday, June 7, you walked off your job This is to let you know that we have work for you and want you to go back to work for us now. Please report tomorrow (Saturday) at the regular place, at the regular hour, which as you know, is 7:30 a. m., for duty, or we will be forced to replace you As hereinbefore indicated, pursuant to notice a hearing was held at Dallas, Texas, on August 25-28, 1952, inclusive, before the undersigned Trial Examiner. The General Counsel, the Respondents, and the Union were represented by counsel, herein referred to in the names of their principals, all parties participated in the hearing, and full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded them The undersigned granted a motion by the General Counsel to amend the complaint by striking the "dispatcher and batchman" from the alleged appropriate unit and granted a motion by the Respondents to amend the answer to meet the issue so framed.6 Likewise the undersigned granted a motion by the General Counsel to add an additional allegation of 8 (a) (1) violation7 to the complaint At the opening of the hearing, at the close of the General Counsel's case-in-chief, and again at the close of the hearing, the Respondents renewed their motions to dismiss. The motions were granted in part and ruling was in part reserved All reserved rulings are dis- posed of by the findings and conclusions herein made At the close of the hearing the undersigned granted the General Counsel's unopposed motion to conform all the pleadings to the proof with respect to spellings, dates, and such minor variations, not substantive Though given an opportunity to argue orally on the record all parties waived oral argument and requested an opportunity to file briefs. Permission was granted to file briefs and/or proposed findings of fact and conclusions of law with the undersigned who has received briefs from the General Counsel and the Union No brief was received from the Respondents. Upon the entire record in the case and from his observation of the witnesses, the under- signed makes the following; FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Thomas L. Amts testified that at all times material herein he was president of Concrete Haulers, Inc , and Wanux, Inc., and directed their business operations including labor rela- tions policies; that both Concrete Haulers, Inc , and Wanux,. Inc., are Texas corporations whose operations are confined entirely to the State of Texas, that Wamix, Inc., is engaged in the manufacture and sale of prepared concrete; that prior to March 1951, Wamix, Inc., de- livered concrete in its own trucks to its customers but in March 1951, Concrete Haulers was 5 The amending of a complaint, after a hearing has opened, lies entirely within the dis- cretion of the Trial Examiner. See National Labor Relations Board Rules and Regulations, Series 6, 102.15. 6 The unit issue was fully litigated. 7 The names of the individuals involved were ordered to be furnished to the Respondents and were furnished by the General Counsel. 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD organized for the sole purpose of delivering concrete sold by Wamix, Inc , and Red-D-Mix, Inc , and Wamix' trucks were at that time transferred to Concrete Haulers, Inc., and the truckdrivers were thereafter carried on a Concrete Haulers, Inc., payroll and paid by Con- crete Haulers, Inc., check, that after 1 year's operation, on March 3, 1952, the trucks were transferred back to Wamix, Inc , and Red-D-Mix, Inc , the drivers also being transferred with the equipment; that at the time of the hearing, Concrete Haulers, Inc., was not operating but had not been dissolved as a corporate entity Amis' testimony was not denied and is credited by the undersigned. John Andrews testified that he is chief accountant of J. W. Bateson Company, Inc.; that this company's home office is in Dallas, Texas, that the company is a construction contractor at present operating in Alabama, Tennessee, and Kentucky, and among its operations it is now erecting an army camp for the United States Government at Fort Campbell, Kentucky. It is clear that J. W. Bateson Company, Inc., is engaged in operations which are considered affecting commerce within the meaning of the Act. The undersigned so finds The record discloses that during the period, April 1, 1951, to March 31, 1952, the Re- spondent Wamix, Inc , sold toJ. W. Bateson Company, Inc., concrete to the value of $ 66,838.14. All of this concrete was delivered for Wamix, Inc., to J. W. Bateson Company, Inc , by the Respondent Concrete Haulers, Inc Also among the customers of Wamix, Inc., is the Austin Company. The Board has taken jurisdiction of the Austin Company, as a multistate construction operation 8 During the period January 1, 1951, to December 31, 1951, the Respondent Wamix, Inc., sold concrete to the Austin Company valued at $76,205 92. This concrete was delivered by Concrete Haulers, Inc. All the concrete sold and delivered by the Respondents to the above-named companies was delivered in and used on construction in Dallas, Texas. The Board will assert jurisdiction over a local enterprise which furnishes goods or serv- ices to an enterprise engaged in commerce within the meaning of the Act, provided such goods or services are valued at $50,000 or more 9 The record is clear that the operations of Concrete Haulers, Inc., and Wamix, Inc , were integrated and interdependent during all times material herein. The undersigned so finds. IL THE ORGANIZATION INVOLVED Dallas General Drivers, Warehousemen and Helpers, Local Union No. 745, AFL, is a labor organization within the meaning of Section 2 (5) of the Act, which admits employees of the Respondents to membership. Ill. THE UNFAIR LABOR PRACTICES A. The refusal to bargain 1 The appropriate unit and the representation by the Union of a majority therein The complaint, as amended, alleges that a unit appropriate for the purposes of collective bargaining among certain of the Respondents' employees should consist of all truck drivers of respondent, employed at its plant, exclusive of office clerical em- ployees, guards and supervisory employees. The Respondents' answer contends that an appropriate unit should be confined to truck- drivers only On the entire record, considered as a whole, the undersigned is convinced and finds that a unit appropriate for the purposes of collective bargaining herein within the meaning of Section 9 (b) of the Act consists of the truckdrivers employed by the Respondents Concrete Haulers Inc , and Wamix, Inc , as above described. The record is clear that as of June 7, 1951, the Respondent Concrete Haulers had 14 truck- drivers in its employ and Wamix, Inc , had no truckdrivers but was serviced by the drivers BSee 70 NLRB 851, 77 NLRB 938. 911ollow Tree Lumber Company, 91 NLRB 632 CONCRETE HAULERS, INC. 701 employed for that purpose by Concrete Haulers, Inc. By May 25, 1951, 8 of these truck- drivers had made application for membership in the Union and each applicant had paid dues and initiation fees with his application 10 As above stated, Wamix had no truckdrivers at that time; however, 7 of the driver applicants stated on their applications that they were employed by Wamix, Inc. The undersigned considers the error natural due to the fact that prior to March 1951 the drivers were on the Wamix, Inc., payroll, and they at all times hauled from the Wamix, Inc., plant. Upon the entire record, the evidence considered as a whole, and all circumstances in the case, the undersigned finds that at all times material herein the Union represented the Re- spondents' employees within the appropriate unit as above described. 2. The refusal to bargain Edward J. Lamm testified that as a business agent for the Union, he, on May 25, 1951, received the applications of 9 of the Respondents' employees, 8 of them truckdrivers and 1 a dispatcher, however, he did not have any personal knowledge of their individual jobs at the time 11 Lamm's testimony with respect to the union applications being signed by the employees was corroborated by Walter Cotton Lamm testified that the following morning, May 26, he, accompanied by Jesse Wallace, called at the plant of the Respondent Wamix Inc., where he and Wallace met with Thomas Amis. Lamm testified- I told Mr Amis that I represented the majority of his drivers, was willing to sit down and negotiate a contract covering these drivers, and he said that he would like to have a ten-day extension, that I should come back in ten days According to Lamm, he agreed to the 10-day delay, told Amis he had the application cards with him and offered to show them to Amis as proof that the Union represented a majority but the question of the unit was not discussed because Lamm "just asked for recognition of the drivers," and Amis replied that he did not doubt the Union represented a majority The cards were not shown to Amis at this or any subsequent time. Lamm testified that during the discussions he showed Amis a printed contract between the Union and an employer in the area under the following circumstances: My testimony on that book is that at the time he told me it was illegal to sign a con- tract in the State of Texas or sit down and negotiate one I showed him a contract that I had in the file and asked him if he would like to see it, and he took it and looked at it and handed it back, and at no time did I ask to sign it, because that blue contract is a freight contract, it is not relative for any part of a ready-mix company deal. It is just an example to show him that other people have signed contracts in the State of Texas, and that it was not illegal to sign a contract. Amis' version of the May 26 meeting was somewhat different than Lamm's. Amts admitted the meeting and the agreement to postpone any further action for 10 days but testified that Lamm gave him the form contract and indicated he was to sign it. Amis intimated Lamni left the contract form with him. However, he admitted that the contract was not one that was drawn to cover his business and although he testified the "contract" was turned over by him to the Respondents' attorneys, it was produced. On all the evidence the undersigned is persuaded that Lamm's version of the meeting on May 26 is the more accurate and credits his testimony. Lamm further testified that on June 6 he called alone on Amts at the Wamix, Inc., office. According to Lamm: 10 Together with these eight drivers, one Jesse D. Moore applied for membership. Moore was not a truckdriver but was a "dispatcher" for Wamix. The parties agreed on the record that Moore was not to be counted within the appropriate unit. Accordingly, the undersigned finds that Moore was not within the appropriate unit and does not consider him in fixing the unit. ii The nine applicants were J D. Whatley, J R. Tatum, Utah Orvil Werley, Walter Cotton, J. D. June11, Cecil Ray Werley, Sidney H. Tyree, Chester Neal Dillard, all truckdrivers, and Jesse D. Moore, dispatcher. 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I told him that I had came back after the 10 -day extension to sit down and negotiate a contract covering his drivers He stated at thwt time that his attorney advised him that it was illegal to sign a contract and he would not sit down and negotiate a contract cover- ing his drivers Lamm further testified- Well, I told him again that I had the cards, that I would gladly show him that we repre- sented the majority of his drivers, and he said at that time that he did not doubt that we had the drivers, that wasn't the question, thathis attorney said it was illegal to sign a contract, and he would not sit down and negotiate a contract covering his drivers. Amis flatly denied that Lamm called on him or that he had any meeting with Lamm on June 6 On the entire record considered as a whole the undersigned credits Lanim's testimony with respect to the meeting between Amis and himself on June 6. i2 As will appear later herein, on the following morning, June 7 , 1951 , Anus addressed the Respondents' employees , who in turn did not go to work after Amis' talk but called the Union's representatives to the Wamix Inc., office. Lamm, James Stewart, and other local labor representatives then came to the office of Respondent Wamix, Inc., and met with Atnis. The testimony is conflicting as to how much time was spent in discussing the attitude of the Respondents' employees . Amis' talk , various other alleged unfair labor practices, etc., but there can be no doubt that the Union , in this meeting , offered to negotiate a contract with the Respondents who refused to do so. Thus Lamm testified: Mr. Stewart said that he was willing to sit down and negotiate a contract , that that was what he was here for, that he figured that he could dissolve trouble by sitting down and negotiating a contract covering these drivers , and then while he was doing that he opened up his brief case and took the applications out and said that he would show them to Mr Amts, that he would, if anything happened to these employees that he would , hold him responsible for discharging, or whatever it might be for showing him the applications k e a a Q. All right, anything else said there that morning? Did Mr. Amis make any response to this last remark on the part of Mr Stewart? A. Yes, he did He stated that , again that , his lawyer advised him it was illegal to sign a contract and that he will not sit down and negotiate a contract covering his-- Amis testified Then they-- let's see. I don't remember exactly the rest of it excepting the fact that they continued about the signing up with them or talking to them about the working con- ditions and the pay of our men, and I said , " Well, I tried to read you the letter from our attorneys and that gives our position and if you want to hear it, that is all I can do at this time It is admitted that the eight applications for membership in the Union were never actually shown to the Respondents ; however on all the evidence the undersigned is persuaded that the union officials offered to do so. Moreover , Joseph S. Anus , the Respondents ' active manager, testified that prior to June 7 he "had heard" that the men had joined the Union. It is also clear that the Union at no time filed a petition with the Board seeking a deter- mination of a bargaining unit . However, there was not, as contended by the Respondents, any obligation on the Union ' s part, under the circumstances here presented , to file a representa- tion petition in order to obtain bargaining rights. i3 Accordingly , the undersigned concludes and finds that on June 6, 1951 , and at all times thereafter , the Respondents have refused to bargain with the Union as the exclusive repre- 12 Support for this finding will appear later herein. i3Louisville Container Corp., 99 NLRB 81, and cases there cited, footnote 4. CONCRETE HAULING, INC. 703 sentative of all their employees in the appropriate unit, and that by such refusal have inter- fered with, restrained , and coerced employees in the exercise of the rights guaranteed them by virtue of Section 7 of the Act B. Interference , restraint , and coercion Walter S. Cotton testified that when he reported for work at his regular job of truckdriver at the plant of the Respondent Wamix, Inc , on June 7, 1951, he was told by Joseph S. Anus, the manager of both Wamix, Inc., and Concrete Haulers, Inc , not to "punch in" on the tune clock until Thomas Amis had arrived and had spoken to the employees Cotton testified that he did not "punch" his timecard through the clock that morning At about 8 a ni Thomas Amis arrived, all the employees were then assembled in front of the office, and were addressed by him With respect to Amis' talk, Cotton testified: Well, he said, he told us that he had paid as much or more than anybody to that kind of work and that he furnished our uniforms for us and that he thought that we weren't doing him right and that he--that we should go back in there and go to work--no, this was-- this was after this talk, but he told us that he did not recognize the union, that lie didn't want to go sign a contract, and that he would give us 15 minutes to go back in there to turn our uniforms in That was the way it was Ile said that the union officials were strangers to him, that he didn't know them, that he had declared an open shop and that if we hadn' t wanted to work in an open shop , if we wanted to belong to the union, we didn't have to come there in the first place Cotton further testified Q. (By Mr. Rhea) Now, I am not clear about the statement that you made about check- ing in the uniforms Would you tell us just the full statement that Mr. Thomas Amts said about checking in uniforms. A. Well, sir, lie said , " If you all don't want to work and don't want to go back in there under the--under the same circumstances we have been working in ," he said, " every- thing will be the saute as it was," and he said , " If you don't want to do that and want to belong to the union," he says, "you can go and turn your uniforms in and punch--" I mean not punch out, becaused we hadn't punched in, or I hadn't, and he told us we could either go on and go to work or turn our uniforms in Following Amis' talk the employees notified their union official of the occurrence and according to Cotton " stayed there on the premises and we were waiting until the union officials came out and advised us what to do ." It is clear that none of those employees who had joined the Union worked that morning As herein found the Union's officials arrived and conferred with Anus, following which the eight union-member drivers , accompanied by Moore, the dispatcher , left the premises A picket line was established. Cotton testified that he served on the picket line for the next 3 months On cross-examination , in answer to questions by the Respondent, Cotton testified: Q. I will ask you if he said this, "This is an open shop and according to the laws of Texas you have to be open shop, you cannot maintain a closed shop under Texas laws I don't know whether you know that or not, but you can't. It is against the law to have a closed shop I can't hire or fire anybody simply because they belong or do not belong to some organization " Now, do you recall Mr Amts saying that or substantially that? A. No, sir, I don' t recall him saying anything about hiring or firing anybody or whether he could or whether he couldn't It seemed like he did say something about it was against the law to strike or have a closed shop or something of the sort. Q. Did Mr Amis say, "Now we have got concrete to go today and we have got it to go for the next 50 years as far as I am concerned"? A. Yes, sir. Q. Did he say , " If you are not satisfied here you are perfectly free to go"? A. Yes, sir, he said that 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. Did he say, " But we do have concrete to get out. Those who wish to stay , if they will let us know, those who wish to stay and those who wish to go, if they will let us know within the next 15 minutes or so we'll appreciate it " Did he say that9 A. Those that wish to stay and those that wish to go in the next 15 minutes, we will appreciate it; seemed like the statement was made something similar to that. J. R. Tatum testified that he did not "punch in" through the time clock on the morning of June 7 that he was in the group of employees addressed by Amts that morning ; that Amts said inter alia "that he had an open shop and that he intended to keep it that way"; that he also stated "that he would make the concrete go" and closed his talk with the statement that "we could turn in the uniforms , either punch the clock and go back to work or turn in the uniform and go," and further that "he would give us 15 minutes to do it." Joseph S. Amis, vice president and manager of both Respondent Companies , testified that on the night of Juiie 6 he was told by Thomas Amis "not to load concrete until he [Thomas Anus) had talked" to the men; that at 7:45 or 7:50 a m of June 7, employee "Cecil Werley 14 came to me and asked if Tom were coming down that morning and I said that we would not load concrete , that he was coming down, we would not load concrete until he got there and talked to them" that he spoke to no employee , other than Werley, regarding this arrange- ment but that no concrete was prepared prior to Thomas Amis arrival ; and that all employees had already "punched in" at the time clock before he spoke to Werley The clockcards of the eight union-member drivers were properly identified , offered, and accepted in evidence They indicate that all were rung in through the time clock prior to 7.45 on the morning of June 7, but that none of these cards was "rung out " through the clock an that day Each card was closed with a penciled notation showing a quitting time of 11:15 a. m. Joseph Amts testified that he made these penciled notations and that each man was paid up to 11 15 of June 7 Considering the cards, the further fact that employee Utah Werley, one of the drivers, testified that he "punched in" on June 7 , all the circumstances in the case , and the record considered in its entirety , the undersigned is persuaded and finds despite the contrary testi- mony of Cotton and Tatum that all those nien whose names appear on the timecards admitted in evidence did on the morning of June 7 , 1951, ring their timecards through the time clock before 7:45 a m , the time when according to Joseph Amis' undisputed through the time clock employee Cecil Werley no concrete would be loaded until after Thomas Amts had arrived With respect to his talk to the Respondents' employees , Thomas Amts testified that He told them, in effect , the laws of the State prohibited the signing of a contract with the Union, the Respondents would not sign a contract with the Union , no employee would be discharged or discriminated against because of membership or nonmembership in a union ; there was con- crete to go and he would appreciate the employees ' answer within 15 minutes as to whether they intended to work 15 It is quite clear that Amis told the employees the Respondents would not deal with the Union This in itself is a violation of Section 8 (a) (5) and therefore also a violation of Section 8 (a) (1) of the Act. The only serious conflict with respect to the "speech" is with respect to the 15-minute time limit statement. Anus testified that he said "we do want to get the concrete going ... I would appreciate it if they would let me know something within the next 15 minutes Cotton testified- that he would give us 15 minutes to go back in there to turn our uniforms in. i4 There is testimony to the effect that Cecil Werley acted as union steward. is Amis testified he decided to address the employees because Cecil Wer ley had asked him for a meeting together with the union officials for that day. Amis also testified that Lamm had not spoken to him on June 6 It appears to the undersigned that Werley's request alone could not have precipitated Amis' speech to the men , or have given him such concern. It seems clear that someone had discussed signing a contract with Amis Werley did not. It must have been Lamm Therefore in Amis' decision to address the Respondents' employees the undersigned finds corroboration of Lanim's testimony regarding a meeting between Lamm and Amis on June 6. CONCRETE HAULERS, INC. 705 Tatum testified. . . right towards the last of it, why, he said that, we could either go back to work or turn in our uniforms and he would give us 15 minutes to do it The General Counsel's theory is that the Respondents locked out their employees. The Union argues the same theory in its brief and maintains that Amts ' statement, as contained in the version of the General Counsel's witnesses, Cotton and Tatum, must be read as the final statement of the act of a lockout. The Union's theory is that by not permittingtheir employees to "punch in" the Respondents locked them out; by telling them they would not sign a contract with the Union the Respondents disclosed the reason for the lockout; by setting the 15-minute "deadline" to start work or " turn in their uniforms," the act of discharge was made final. The undersigned cannot agree that the Respondents by any of the above conduct discharged their employees, either actually or constructively. The undersigned has found that the employees were not prohibited from t'punching in" on the morning of June 7, 1951. The Respondents told their employees not to work until after Amis had addressed them They had a clear right to do so They also had a clear right to address their employees through Amis They engaged in conduct violative of the Act by Amis' statements to the effect that the Re- spondents would not sign a contract with the Union. At that time, as herein found, the Union was the representative of certain of the employees within an appropriate unit. Amis' statements constituted not only an announcement by the Respondents of an intent not to bargain with the Union, but in view of their later conduct as hereinabove found, the Re- spondents at that time illegally refused to bargain with the Union through and by Amis' talk to the employees Therefore Amis' speech, as found, constituted a violation of Section 8 (a) (5) and also Section 8 (a) (1) of the Act. The undersigned so finds In the opinion of the under- signed it is clar that Amis' intention in speaking to the Respondents' employees was to inform them that the Respondents would not recognize the union of their choice and having done so, it was logical for Amis to inform the employees that employment would continue "under the same circumstances " and to ask them to begin work within 15 minutes or indicate an un- willingness to do so The undersigned on all the evidence considered as a whole credits Thomas Amis' testi- mony as to his statements with respect to the 15 -minute "deadline," and accepts his version thereof as the more accurate. In so doing, the undersigned does not credit the testimony of either Cotton or Tatum with respect to Amis' statement with respect to returning to work within 15 minutes or turning in their uniforms In making this finding, the undersigned is mindful of Amis wholly undenied testimony, which the undersigned credits, to the effect that during the meeting with the union officials which followed his talk to the employees, as herein found, he was accused by the union officials of locking out the men, which accusation he denied at the time stating that the employees "should be working right now" and further stating. If you think I locked these men out, Cecil Werley, go get on your truck and deliver some concrete, if you think I locked your men out and I will tell the other men to get on their trucks and get on the concrete In the opinion of the undersigned it is not shown by this record that the Respondents locked out or discharged their employees either before Amis' talk on June 7, by not permitting them to "punch in," or by Amis' talk or anything said therein, or during the Respondents' con- ference with the union's officials following Amis' talk to the men. The undersigned so finds. At the close of Amis' talk the union member employees had been told that the Respondents would not recognize the Union, told to continue "under the same circumstances," and told they would not be discriminated against in their employment. The employees knew that despite this promise of "no discrimination" they had already been discriminated against, and that the Respondents had engaged in an unfair labor practice against their Union The employees and their bargaining representative had open to them the processes of the Board through the filing of an appropriate charge They could continue in their jobs while the Board ' s Regional Office took the proper action. However , as has been found herein, they chose a test of economic strength, left the premises and established a picket line. In making 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this choice they did not in any manner cease to be the Respondents' employees, they merely became striking employees and as their action was occasioned by the unfair labor practices of their employers they became "unfair practice strikers" with all the rights and obligations of such employees. The undersigned therefore finds under all the circumstances herein that, at about 11 a.m. June 7, 1951, the Respondents' employees, J. D. Whately, J. R. Tatum, Utah Werley, Walter Cotton, J. D. June11, Cecil R Werley, Sidney H. Tyree, Chester N. Dillard, and Jesse D. Moore, struck the Respondents and thereafter engaged in an "unfair labor practice strike" against them. The following day, June 8, was the regular payday. The men who had gone on strike the preceding day came to the office for their pay Together with their checks, which included in each instance payment to 11:15 a.m June 7, each employee involved was handed a letter signed by Thomas Amis, president, Concrete Haulers, Inc , which read in part. On Thursday, June 7, you walked off your job. This is to let you know that we have work for you and we want you to go back to work for us now. Please report tomorrow (Saturday) at the regular place, at the regular hour, which, as you know, is 7:30 A.M. for duty, or we will be forced to replace you. It is well established that a strike does not terminate the existing employer -employee re- lationship. Therefore, inasmuch as the Respondents could not discharge their striking em- ployees, the phrase "we will be forced to replace you" in the opinion of the undersigned can- not be read as a discharge or even as a threat of discharge. The Respondents had a clear right to continue their business and could carryon with replacements whose jobs were secure only until such time as the strikers, who in this case were unfair labor practice strikers, made an unconditional offer to return. Such strikers' rights to their jobs on such an offer has long been established In addressing their employees the Respondents of course had a right to threaten to do that which they had a legal right to do They did no more. However, inasmuch as the Respondents' letters were addressed to individuals and not to the Union, they constituted individual solicitation of the strikers to abandon the strike and were clearly calculated to demonstrate that the Respondents sought individual and not collective bargaining and therefore intended to undercut the Union.16 The undersigned is convinced and finds that the letters must be viewed as an integral part of the pattern of illegal opposition to the purposes of the Act evidenced by the Respondents' entire conduct and as a part of such conduct constituted a violation of the rights guaranteed in Section 7 of the Act. 17 There is no dispute that the following named strikers applied for reinstatement on the dates shown and were reinstated by the Respondents on the date of application: Utah 0 Werley ---------------------- June 11, 1951 J D. Whately ------------------------ July 9, 1951 Chester N Dillard -------------------- July 9, 1951 J. D. Junell ------------------------- July 9, 1951 Sidney H Tyree ---------------------- August 30, 1951 The remaining men within the unit who went on strike, namely, J. R. Tatum, Walter Cotton, and Cecil R Werley, drivers, have not applied for reinstatement. Employee Jesse D. Moore, dispatcher, likewise has not asked for reinstatement. C. Additional interference , restraint , and coercion J. P. Tatum testified that a few days following the employees applications for membership in the Union, but before June 7, Joseph Amis asked J. D. Whately and Tatum "what was this card or paper" they had signed, and they told him it was an application for union member- ship; thereupon Amis asked, "Well, what do you think you will get out of it?" Amis denied the incident. The undersigned credits Tatum. 16See Sam'l Bingham's Son Mfg. Co., 80 NLRB 1612; Hart Cotton Mills, Inc., 91 NLRB 728; cf. J. I. Cane v. N. L. R. B., 321 U. S. 322; Medo Photo Supply Corp. v. N. L. R B., 321 U. S. 678. 17See The Cincinnati Steel Castings Co., 86 NLRB 572. CONCRETE HAULERS, INC. 707 Inasmuch as the questions put by Amts to Tatum clearly are connected with the subsequent unfair labor practices of the Respondents, the undersigned finds that by Amts' inquiry re- garding their signing applications for union membership, the Respondents have engaged in conduct violative of Section 7 of the Act D. Concluding findings On the basis of the facts set forth hereinabove, the undersigned concludes and finds that the unit described in section III, A, 1, above, constitutes a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act It is concluded and found, on the basis of the entire record, that since May 25, 1951, the Union has been, and now is, the exclusive representative of all the employees in said unit for the purposes of collective bargaining. On the basis of facts set forth above, the undersigned further concludes and finds that on June 7, 1951, and at all times since that date, the Respondents have refused to bargain in good faith with the Union It is further concluded and found that: (1) The Respondents did not discharge or lock out any of their employees as alleged in the complaint, therefore the undersigned will recom- mend that the complaint be dismissed insofar as it so alleges; (2) certain of the Respondent's employees went on strike on June 7, 1951, the strike being caused by the Respondents' refusal to bargain with the Union, (3) the speech made by Thomas Amis to the Respondents' employees constituted derivative 8 (a) (1) from being 8 (a) (3), (4) the letters given the em- ployees on June 8, as herein found, and the inquiry made by Joseph Amis to employees J. R. Tatum and J. D. Whateley are violative of Section 7 of the Act, and (5) the strike entered up- on on June 8, 1951, has not been abandoned by the Union, therefore the undersigned will rec- ommend that those of the Respondents' employees still on strike 19 be reinstated to their for- mer or substantially equivalent jobs19 upon their unconditional offer to return to work, without loss of seniority or other rights and privileges, dismissing, if necessary to provide employ- ment for such strikers, any employees hired after June 7, 1951. Back pay to be tolled only from the time sah unconditional offers to return to work are made. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents, set forth in section II, above, occurring in connection with the operations of the Respondents 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 of commerce. V. THE REMEDY Having found that the Respondents have engaged in unfair labor practices, the undersigned will recommend that they cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. Since it has been found that the Respondents have refused to bargain collectively with the Union, the statutory representative of their employees in an appropriate unit , it will be rec- ommended that the Respondents bargain collectively with the Union and embody any under- standing reached in a signed agreement. Since it has been found that the strike has not been abandoned, it will be recommended that the Respondents reinstate those striking employees who offer unconditionally to return to work as set forth in section III, D, above Back pay, if any, to be tolled after such offers are made. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. Dallas General Drivers , Warehousemen and Helpers , Local Union No 745, AFL, is a labor organization within the meaning of Section 9 (b) of the Act. Is Meaning employees Cotton, Cecil Werley, Tatum, and Moore. 19 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. 322615 0 - 54 - 46 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2 Concrete Haulers, Inc , and Wamix, Inc., are engaged in interstate commerce within the meaning of Section 2 (6) and (7) of the Act 3 All truckdrivers of Respondents employed at their Dallas plants , exclusive of office clerical employees , guards, and supervisory employees , constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 4. By refusing on June 7, 1951, and at all times thereafter , to bargain collectively with Dallas General Drivers , Warehousemen and Helpers , Local Union No 745, AFL, as the ex- clusive representative of its employees in the appropriate unit, the Respondents have engaged and are engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By interfering with , restraining , and coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act 6 The aforesaid labor practices are unfair labor practices within the meaning of Section 2 (6) and (7) of the Act 7 The Respondents have not engaged in unfair labor practices by lockout or discharge of any of their employees [Recommendations omitted from publication3 Supplemental Intermediate Report On August 25-28, 1952, the undersigned conducted a hearing in the above-entitled matter and thereafter, on November 17, issued his report therein, making certain findings, con- clusions, and recommendations. During the course of the original hearing the Respondents called a notary public who identified his jurat on a document which the Respondents then offered in evidence as the affidavit of one J. D. Junell, made February 18, 1952, as being probative evidence that Junell's application for membership in the Union was obtained by fraud, threats, and coer- cion. Junell was not called, the Respondents stated that June11 was presently serving in the Armed Forces of the United States but offered no explanation as to why he was unavailable nor why his testimony had not been taken by deposition. The undersigned refused to admit the affidavit or to permit it to be included in a file of rejected exhibits Likewise, during the course of the original hearing the Respondents sought to read into the record an excerpt from the testimony of one Utah O. Werley taken in a case heard June 22, 1951, in the Forty-fourth Judicial Circuit in Dallas County, Texas, Werley being on the stand when the proffer was made The undersigned sustained an objection to reading the testimony into the record. The Respondents then made offer of proof with respect to the testimony taken in the Dallas County court above mentioned. The offer and its rejection as reflected in the record is as follows. Mr Harris: Before we call another witness respondent's attorneys at this time would like to make a proffer of evidence in the form of a question put to Mr Werley who just testified and his answer as taken from the proceedings in the mentioned case, Dallas County Construction Employers' Association versus General Drivers-- TRIAL EXAMINER PLOST: You want to make an offer of proof? MR HARRIS Yes, Sir "Question--" MR. MORRIS: May I ask what page you are reading from? MR. HARRIS: Page 40. Question to Mr. Werley: "Was anything said there about what was going to happen if you did not join the union? " Answer: "Well, he said if we did not join the union, in case they did go union, they would get union operators driving a truck and other things." Question: "And what did that mean as far as your job was con- cerned'? " Answer: "That would mean I would have to get me another job." TRIAL EXAMINER PLOST: It will be rejected In its brief to the Board, on objections to the report issued by the undersigned- Respondents except to the action of the Examiner in sustaining the opposing counsel's objections, as shown by the record, and refusing to permit Respondents to offer evidence in each instance where same occurred and overruling Respondent's offers of proof CONCRETE HAULERS, INC. 709 Thereafter on January 21, 1953, the Board issued an order reopening the record and on February 10, 1953, a corrected order reopening the record in the proceeding wherein the Board stated: IT IS HEREBY ORDERED that the record herein be, and it hereby is, reopened and that a further hearing be held before the Trial Examiner, Louis Plost, for the purpose of enabling the parties to present evidence relating to the Respondent's offer to prove that the Union did not represent an uncoerced majority of employees in a unit appro- priate for purposes of collective bargaining, and that the Trial Examiner issue a Supple- mental Intermediate Report making findings of fact, conclusions of law and recommen- dations. Pursuant to the Board's order and upon due notice, a hearing limited to the Board's order was held at Dallas, Texas, on March 3, 1953, before the undersigned Trial Examiner. The General Counsel, the Respondents, and the Union were represented by counsel and partici- pated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded them. A date was set for the filing of briefs with the undersigned. No briefs have been received. After the close of the hearing the Respondents moved to correct certain typographical errors in the transcript. The General Counsel did not file objection The motion was granted. Upon the record in the case as so made and from his observation of the witnesses, the undersigned makes the following findings, conclusions, and recommendations. The Alleged Coerced Majority 1. The rejected affidavit of J. D. Junell At the reopened hearing the Respondents, as in the original hearing, did not produce J. D. June11, offer his deposition, or offer any evidence as to his unavailability The record of the reopened hearing reflects only the following: Mr. Neely: At this time, Mr Examiner, it appears that the witness J. D. Junell is still in the army and is not available We would offer at this time, reoffer in evidence the affidavit dared February 18, 1952, by J. D. Junell which was marked for identification at the prior hearing as Respondent's Exhibit 6. TRIAL EXAMINER PLOST: And was identified only by the man taking the jurat, is that right? MR NEELY: That's right TRIAL EXAMINER PLOST: At which time I rejected it and refused to let it go into a file of rejected exhibits, is that right? MR NEELY: That's right TRIAL EXAMINER PLOST I will reject it, but it may be placed in a file of rejected exhibits. 2. Additional evidence Utah O, Werley, who testified on behalf of the Respondents in the original hearing, was recalled at the reopened hearing by the Respondents. Werley testified that he had no present recollection of the events surrounding the organization of the Union. The record discloses that as to questions put to him regarding the crucial events in the union organization in which he participated, as well as the statements made by others during the time, his almost unvarying answer was "I don't remember." Thus, although Werley testified his brother, Cecil, first broached the idea of union organi- zation among the employees, he "did not remember" when his brother, with whom he lived, first talked to him about the Union, or what his brother said about the Union. Werley did recall that the first meeting for organization was held at Kelley's Cafe in Dallas;i that he attended this meeting in order "to join the union", that Organizer Edward J. Lamm there met with the employees but Werley further testified he "didn't remember" what Lamm said except that "he just wanted us to join the union." i It has been found that this meeting took place May 25, 1951 7 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Werley testified further that after Lamm and the employees had concluded their meeting, which was conducted in two adjacent booths in the open cafe, the participants went outside together where Lamm distributed union application cards which were then signed, Lamm's car being used as a support for the cards so being signed , the cards being returned to Lamm by each signer together with the amount of the fee required by the Union. Werley "did not remember" what Lamm said, if anything, at the time he gave them the cards He testified that during the course of the evening Lamm did not say anything to him that "the rest of the boys" could not hear Werley testified he joined the strike and participated in the picketing because "we was all more or less buddies and just more or less trying to stick together." According to Werley's testimony, as well as the testimony of all others testifying regard- ing the same subject matter, the only meeting for organization was at the Kelley Cafe where cards were signed and where Lamm , the first and in fact only union representative to meet the employees regarding organization, talked to them and accepted their applications and initiation fees. Following Werley' s unvarying replies of "I don't remember" to various questions relating to Lamm's statements at the organizational meeting, the Respondents questioned Werley about a proceeding in a State court, evidently the case heard by the Forty-fourth Judicial Circuit, Dallas County, herein-before referred to. The questions and answers are as follows: Q. (By Mr. Neely) Mr. Werley, do you recall testifying in an injunction suit down at the court house here in Dallas in June 1951? A. Yes, sir, I remember Q, Now, I will ask you if you did not say in that suit, I will ask you if a question was not asked you as follows: "Was anything said there about what was going to happen if you did not join the union?" And I will ask you if you didn't reply to that question, "Well, he said if we didn't join the union, in case they did go union they would get union opera- tors driving a truck and other things " Now, was that question asked in that injunction suit, and did you make that reply? A. Yes, sir, I guess I did. TRIAL EXAMINER PLOST: You guess you did Did you or didn't you? MR WERLEY: Yes, sir, I did. TRIAL EXAMINER PLOST• All right Q. (By Mr Neely) Was this question asked you, "And what did that mean as far as your job was concerned?" And did you reply, "That would mean I would have to get me another job." Now, was that question asked you at that suit, and did you make that reply? A. I did, yes, sir Q. All right. Then you signed a card which Mr Lamm had. A. Yes, sir When cross-examined on the above admissions by the General Counsel, Werley testified that Lamm told the gathering. The best I remember, he said we, if we didn't join, you know, why we and the Wamix went union, they would get union operators Immediately thereafter Werley added that he was "pretty sure" Lamm made this state- ment but "I wouldn't want to take an oath on it." The undersigned finds that Werley adopted the quoted testimony, as read to him, to be his present testimony Following Werley's direct testimony regarding the State court case the Respondents then questioned Werley with respect to two affidavits, which the Respondents did not at the time produce, show to the witness, or offer in evidence. The questions so put to Werley by the Respondents and Werley's answers were as follows: Q. Mr. Werley, do you recall making an affidavit in May of 1952 up in Mr. Dick Holt's office' A. Yes, sir. That was the other attorney, wasn't it? Q. In the Republic Bank Building. A. Yes, sir. Q. I will ask you if you said in that affidavit, "In the latter part of May some of the representatives of Teamsters Local Union 745 told me that the Wamix Truck Drivers CONCRETE HAULERS, INC. 711 were all going to join the union and the plant was going union and if anybody did not join he would lose his job." Did you say that in that affidavit? A. Yes, sir. Q. I will ask you if you made another affidavit in February of 1952 where you said, "In May, 1951, someone from Teamsters Local Union No. 745 approached me about joining that union and told me that I had better join because I would get better wages, that the company was going union and all the drivers would be union men and those who did not join the union would not have a job;"-- MR RHEA: Just a minute before you go on. MR. NEELY: --" so I joined thatunionand signed a card authorizing the union to repre- sent me, but I would not have joined or signed the card if the union man had not told me I would have to be in the union to drive a truck." TRIAL EXAMINER PLOST• Don't answer that question MR RHEA: Just a minute I want to take this witness on voir dire. On voir dire Werley testified that he made the affidavits that he did not know when he made them ; who asked him to make them , or where he made them As to the latter he testified: TRIAL EXAMINER PLOST: Didn' t you testify it was taken in some building before somebody awhile ago? A. Yes, sir TRIAL EXAMINER PLOST: Then you do know where it was made . in whose office? A. I don't remember. Werley recalled the name of the attorney in whose office the affidavit was executed but "did not remember who sent him to this office, or asked him to execute it. At this point in his testimony Werley announced ," I feel like I'm going to faint ." The under- signed immediately stopped the examination which was resumed within a short time upon Werley's request to be permitted to finish his testimohy and his assurance that he now felt quite normal Upon the witness again taking the stand the Respondents had had two affidavits marked for identification, and examination on voir dire by the General Counsel continued. With respect to "the first affidavit" Werley testified: Q. Did Dick Holt write that down , what you told him to write down at that time? Do you remember A. No, sir, I don't remember Q. Do you remember whether this was drafted and then submitted to you and you were asked to sign it Do you remember? A. Yes, sir, I believe that' s the way it was Q. You remember that? A. I believe that's right. I know I signed it Q. You think that's the way it was. Did they ask you first what the information should be to place in the affidavit? A. I beg your pardon. Q. Did anyone ask you first , before an affidavit was drawn, as to what the facts were about it? A. I don't remember. As to " the other" affidavit , Werley did not " remember exactly where" he was when he signed it. He further testified: Q. Are you real certain that if an affidavit were read to you today that it would recall to you what you said at that particular time? A. No, sir On continued direct examination by the Respondents , Werley identified the 2 affidavits and further testified that after having read the 2 documents he still could not recall what Lamm said at the Kelley Cafe meeting ; " did not remember " if Lamm told him "the company was 7 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD going union", and "did not remember" if Lamm had said that all drivers would be union men and those who did not join the union would lose their jobs " At this point the undersigned again halted the examination and made the following statement on the record: Let the record show that the witness in the chair is now trembling and highly nervous, that one point prior to this statement he had to leave the stand for several minutes because of his condition, that the Trial Examiner thinks that unless the witness is per- mitted now to rest and get his emotions --and get over his apparent emotional state, we are subjecting him to undue, really what amounts to punishment. I will therefore declare the hearing adjourned until 1:00 p. m. this afternoon, and I will ask the witness during this time to do his best to compose himself between now and then and to remember that nobody here wants to put him in a box, or in any way get him into trouble. All we want you to do is compose yourself and answer the questions to the best of your ability. If you don't know, just say so. Upon the hearing being resumed the Respondents offered the two affidavits as past rec- ollection of the witness and alternatively for thepurpose of impeaching the witness." 2 The undersigned admitted the documents 3over the objection of the General Counsel. 4 Werley then testified on cross-examination that: He went to the Kelley Cafe meeting in order to join the Union, he felt under compulsion to join because of fear of losing his job by reason of Lamm's statements, Lamm is the only person who could have made such state- ments to him he saw Lamm for the first time at the Kelley Cafe meeting, Lamm said nothing to him the others could not have heard; he joined the Union and participated in the strike, and further testified as follows: Q. Did somebody force you to participate in the strike? A. No, sir, they didn' t force me to carry the picket and all that. Q. No one forcing you at all? A. No, sir. Q. You did that of your own free will? A. You know, after we all got together and everything, I figured I wanted to share my part , you know Q. You wanted to share your part? A. Yes Q. In other words, you were interested like the other boys were in the union activity, is that right? A. Yes, sir. J. D. Whatley, called by the Respondent , testified that he attended the Kelley Cafe meeting, that all the discussions among the employees regardingthe Union took place within the course of "two days" before the meeting; that he did not know Lamm would be at the cafe , that at the Kelley Cafe the following statements were made by Lamm: Q. At this time do you have an independent recollection of what was said by Lamm to you or in your presence on May 25, 19519 A. Well, he said if we would join the union , plant go union, get better wages , working conditions. 2 As the witness was called by the Respondent obviously the Respondents could not impeach him under the circumstances. 3 The affidavits appear in footnotes 5 and 6. 4The Respondent then offered "a portion of the testimony which was transcribed in the proceeding styled 'Dallas County Construction Employer's Association versus General Drivers, Warehousemen and Helpers, Local No. 745, et al' " to show Werley's "past recollection of what transpired at Kelley's Cafe and alternately to impeach his testimony of not being able to recall it at this time." The undersigned refused to admit the offered testimony stating that it was merely repetitive of matter already in the record. The Respondents made an offer of proof as to this testimony. At the request of the undersigned the Respondents read the testimony referred to into the record as part of its offer to prove. The offer was rejected. CONCRETE HAULERS, INC 713 Q. What else did he say? A. The ones that didn't, when the plant went union, the ones that didn't join the union, wouldn't have no job at that plant. Q. Did that have anything to do with your signing the union authorization card9 A. Well, I knew the rest was going to sign, so I did, too. TRIAL EXAMINER PLOST: You haven't answered the question. Answer the question. Whatley then further testifted- TRIAL EXAMINER PLOST• Why did you sign the card , tell me? THE WITNESS: Well, he just promised to get more money , better working conditions and, if you didn' t sign it , you wouldn' t be there no-how TRIAL EXAMINER PLOST• That's why you signed it? THE WITNESS: Yes, sir. The parties stipulated that Whatley was a witness at the State court hearing referred to herein , and that the record of this hearing disclosed that Whatley on questions put by the Respondent testified as follows: Q. (by Respondent' s attorney) He [Lamm] told you of course, the plant was going union you boys were going to join the union or you would be out of a job A. No. Q. You would have to do it, down the line they were going to organize the batch men, didn't he? A. No, sir. Whatley testified that he had no present recollection of his testimony at the State court hearing He further testified: Q. Did Lamm have any separate conversation with you that he didn't have with the rest of the group? A. No, sir Cecil Werley , called by the General Counsel testified that he first advanced the proposal to the Respondent's employees that they join a union and at their request he called the Union's office. Cecil Werley testified: After I found the number , I called Mr. Lamm's office . He was out of town at the time and I left word with his secretary that as soon as he came in , I would like to see him, that we would like to see him , the truck drivers, and she said to keep calling back and, as son as he came in, she would let him know I was wanting him. Cecil Werley further testified he first contacted Lamm the day of the Kelley Cafe meeting and first saw him at that meeting ; that at the meeting he acted as spokesman for the groups and "told Lamm what we wanted, why we had called him out there." According to Cecil Werley, Lamm told the group what the Union had to offer and after going outside application cards were signed by all and dues paid because "we were all willing or we wouldn't have been out there." Werley further testified: Q. (By Mr. Rhea) All right, at Kelley's Barbeque you have mentioned Lamm said something about what the union had to offer A. Yes, sir. Q. Do you remember what he said in that respect9 A. At that time, sir, he didn't know just exactly what the pay rate would be, but he said that if we did go union, he would try to get Mr. Amis, Joe and Tom Amis to build us a wash ramp out there where we could wash our trucks Q. All right, was there anything said about jobs or employees losing their jobs or anything of that sort? A. If there was, sir, I didn't hear it. Jesse Moore testified that he went to the Kelley Cafe meeting with Whatley; that he first learned of the Union that day, having been told by Whatley about the meeting being arranged 7 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "to meet with them and join the union " As to Lamm' s statements to the gathering, Moore testified: Q. Tell us in your own words what Lamm said during this evening at Kelley's Barbeque while you were there? A. All right. He told us that he had been contacted to represent the boys, all of us, and that he had come out there, the boys had asked him for better working conditions and better pay and he was there to try to help us get it; said, "I don't know what the pay will be, basic pay will be, but," he said , " it will be better and working conditions will be better." He said , " I will try to get you a ramp to wash those trucks on instead of wading in the mud." Conclusion Utah Werley was extremely nervous during his testimony at the reopened hearing. It seemed to the undersigned that Werley was not in fear of any physical harm but that his nervousness was psychological and he took refuge in an amazing loss of memory because he was torn between a desire to appear " loyal" to his employer, the import of his former testi- mony, and his recollection of the contents of his two affidavits (which he testified he had not seen prior to the instant hearing), all of these matters being also influenced by his oath and the fact that he was testifying in the presence of his brother who was the original proponent of the union organization Utah Werley's testimony in the State court proceeding, June 22, 1951, must be evaluated here in connection with his affidavits of February 20, 1952, and May 3, 1952. In his former testimony , which he adopted here, despite the amazing lapse of memory which completely obliterated any present recollection, Werley stated that he joined the Union in fear because Lamm had "said if we didn 't join the union, in case they did go union they would get union operators driving a truck and other things " J. D. Whatley, called to corroborate Werley, in the instant hearing testified that Lamm told the Respondent's employees at the Kelley Cafe meeting, "when the plant went union, the ones that didn' t join the union , wouldn' t have no job at that plant " At the State court proceeding, hereinbefore referred to, Whatley categorically denied that Lamm had made any statements to the effect that the employees "were going to have to join the union in order to keep their jobs " In the opinion of the undersigned, on the entire record considered as a whole as well as his observation of Utah Werley and Whatley while testifying, any probative value of their testi- mony with respect to any statements made by Lamm at the Kelley Cafe meeting has been completely destroyed It is quite clear that neither Utah Werley nor Whatley spoke to any union representative prior to the Kelley Cafe meeting and that Lamm who was the only union representative present did not say anything to either of them out of the presence of the other men. In his affidavit of February 20, 1952.5 Werley avers that- . . someone from Teamsters' Local Union No 745, approached me about joining that union and told me ... those who didn't join the union would not have a job. [Emphasis supplied.] s State of Texas County of Dallas Before me, the undersigned authority, on this day appeared the undersigned in person, who after being by me duly sworn on oath deposes and says: My name is Utah Werley. I work for Concrete Haulers, Inc , and was working for that same company as a truck driver in May, 1951, when someone from Teamsters' Local Union No. 745, approached me about joining that union and told me that I had better join because I would get better wages, that the company was going union and all the drivers would be union men and those who didn't join the union would not have a job So I joined that union and signed a card authorizing the union to represent me but I would not have joined or signed the card if the union man had not told me I would have to be in the union to drive a truck. /s/ Utah Werley CONCRETE HAULERS, INC. 715 In his affidavit of May 3, 1952,6 Werley avers: .. some of the representatives of Teamsters Local Union 745 told me ... if anybody did not join he would lose his job [Emphasis supplied] It is clear that no representative of the Union other than Lamm " approached" Werley prior to his joining It is surprising that these documents drawn by attorneys representing the Re- spondents, who had access to the transcript of the State court proceeding and must have known Lamm's name and the date of the Kelley Cafe meeting , did not seek to perpetuate the actual facts of an actual occurrence as well as a vital statement with particularity . Why these documents are so drawn that they do not say what is claimed for them, namely that a certain person at a certain time made a certain statement, is not explained but does throw light on Utah Werley' s nervousness. Under all the circumstances herein the undersigned finds that this record does not contain probative evidence to the effect that Union Representative Lamm, or any othe representa- Sworn to and subscribed before me, this 20th day of February, 1952, to certify which witness my hand and seal of office. /s/ C. C Thomason Notary Public, Dallas Cuonty, Texas 6 THE STATE OF TEXAS) COUNTY OF DALLAS BEFORE ME, the undersigned authority, on this day personally appeared UTAH WERLEY, who, after being by me duly sworn, on oath deposes and says: My name is Utah Werley, and I live on the Valley View Road, Farmers Branch, Texas. I started to work as a truck driver delivering ready mixed concrete from the Wamix plant in Dallas, about September 1950 and have been driving a truck delivering concrete from that plant ever since, with the exception of about a week or two during June 1951 when I went out on strike. In the latter part of May or the first part of June 1951, some of the representatives of Teamsters Local Union 745 told me that the Wamix truck drivers were all going to join the Union and the plant was going union, and if anybody did not join he would lose his job. I paid the initiation dues, about $6.00, but was never actually initiated, and never received a union card, and never took an oath, or anything like that, so I don't figure I ever was actually a member of the Union. On the date the strike started which I believe was June 7, 1951, one of the Union representatives told us to go ahead and walk out off the job, but not to punch out on the time clock. Later that day picket lines were set up, and I carried a picket sign for about a week, picketing most of the time in front of the Wamix plant in the Trinity Industrial district, in Dallas, Texas. During that week the Union paid me $35 00 to carry the picket sign, but after the week was up I decided I would go back to work, and went back to work for Concrete Haulers, Inc. I decided thatIdid not want the Union to represent me and that I did not want to have to pay dues and I decided also that the Union people had misrepre- sented a lot of facts to me. Ever since that time I have been working for Concrete Haulers, Inc., delivering concrete from the Wamix plant, and have been satisfied with my job and I am satisfied now, and I do not have any dispute about working conditions, about wages, or hours or anything else, and I do not want the Teamsters Union 745 to represent me in any manner, and I do not want to be a party to any lawsuit between the Teamsters Union and the Dallas Contractors' Association, and I don't want the Union to prosecute any such lawsuit for me. /s/ Utah Werley UTAH WERLEY SWORN AND SUBSCRIBED TO, before me, by Utah Werley, on this, the 3rd day of May, 1952, to certify which witness my hand and seal of office. /s/ Ollie S. Reilly Ollie S. Reilly Notary Public Dallas County, Texas 7 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tive of the Union, make fraudulent, threatening, or coercive statements to either Utah Werley or J. D. Whatley. On the entire record, the evidence considered as a whole, and from his observation of the witnesses, the undersigned credits the testimony of Cecil Werley and Jesse Moore and finds that their account of the Kelley Cafe meeting and the statements made by Lamm thereat represents the accurate version thereof. The undersigned does not credit the testimony of Utah Werley and J. D. Whatley with respect to the statements made by Lamm at the Kelley Cafe meeting. The undersigned therefore finds that neither Utah Werley, J. D. Whatley, nor any of the employees of the Respondents were induced to join the Union by reason of threats, fraud, or coercion. The undersigned finds that the Union at all times material herein represented an uncoerced majority of the Respondents' employees in a unit appropriate for the purposes. of collective bargaining. [Recommendations omitted from publication.] KEARFOTT COMPANY, INC., and INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, (UAW-CIO), Peti- tioner. Case No. 2-RC- 5866. August 12, 1953 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Aaron Weissman, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Styles, and Peterson]. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The Petitioner seeks a unit confined to employees in the Employer's plant 1, excluding all engineering division em- ployees employed in plant 1 other than inspectors, salaried, professional, and office clerical employees, guards, and supervisors. The Petitioner contends that the employees in plant 1 whom it seeks to represent in a separate unit have interests apart from those in the Employer's four other plants because plant 1 is devoted to production work, whereas the other plants are devoted to engineering and research work. The Employer contends that the only appropriate unit is one 106 NLRB No. 120.