Gulf Concrete Co.

GULF CONCRETE CO. Gulf Concrete Company and General Drivers, Warehousemen & Helpers Local Union No. 968, affiliated with International Brother- hood of Teamsters, Chauffeurs , Warehouse- men & Helpers of America . Cases 23-CA- 2374 and 23-CA-2436. June 19, 1967 DECISION AND ORDER BY MEMBERS BROWN, JENKINS, AND ZAGORIA On March 14, 1967, Trial Examiner Eugene E. Dixon issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, and the General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner's findings,' conclusions, and recommendations. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent, Gulf Concrete Company, Victoria, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. ' In adopting the Trial Examiner's finding that Medrano is a supervisor within the meaning of the Act, we do not agree with his conclusion that Respondent is responsible for Medrano's conduct solely because he was used as a conduit for transmission of information or orders to employees Accordingly, we expressly disavow that portion of fn 5 of the Trial Examiner's Decision which so concludes. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE EUGENE E. DIXON, Trial Examiner: This proceeding, brought under Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the 627 Act, was heard before Trial Examiner Eugene E. Dixon at Victoria, Texas, on September 19 and 20, 1966, pursuant to due notice. The complaint, issued by the representative of the General Counsel for the National Labor Relations Board (herein called the General Counsel and the Board) on August 19, 1966, and based upon charges filed on April 28, May 5, and July 8, 1966, by General Drivers, Warehousemen & Helpers Local Union No. 968, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (herein called the Union or the Charging Party), alleged that Gulf Concrete Company, the Respondent herein, had engaged in unfair labor practices by (1) various specified acts which interfered with, restrained, and coerced its employees in the excerise of their rights guaranteed in Section 7 of the Act in violation of Section 8(a)(1); (2) reducing the hours of pay of certain named employees' because of their union activities or because they engaged in concerted activities for the purpose of collective bargaining or other mutual aid or protection, thus discriminating in regard to the hire or tenure or terms or conditions of employment of its employees, thereby discouraging membership in a labor organization, and thus violating Section 8(a)(3) of the Act; and (3) refusing to bargain collectively in good faith with the Union as the exclusive collective-bargaining representative of its employees in an appropriate unit by (a) reducing the hours and pay of its employees; (b) refusing to furnish the Union with data relating to the names, rates, hours, and classification of employees in the bargaining unit; (c) insisting that all negotations be conducted in Corpus Christi, Texas; (d) threatenting to blacklist employees and reduce their hours and pay for joining the Union; and (e) negotiating in had faith with no intention of entering into an agreement, all in violation of Section 8(a)(5) of the Act. In its duly filed answer, Respondent denied the commission of any unfair labor practices. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. RESPONDENT'S BUSINESS At all times material herein Respondent has been a corporation duly organized under and existing by virtue of the laws of the State of Texas, having its principal office and place of business in Victoria, Texas, and also maintaining places of business at Bloomington and Corpus Christi, Texas, where it is engaged in the production and sale of ready-mixed concrete. During the 12 months preceding the issuance of the complaint, which is a representative period, Respondent, in the course and conduct of its business operations, sold and distributed products of a value in excess of $50,000 from its. Victoria and Bloomington, Texas, plants to E. I. DuPont de Nemours & Company at certain of its Texas localities. E. 1. DuPont de Nemours & Company annually sells and ships goods and materials valued in excess of $50,000 from its Texas localities directly to points outside the State of Texas. During the same period of time Respondent purchased goods and materials valued in excess of $50,000 from Closner Equipment Company at San Antonio, Texas, ' Samuel Flores, Joe Garcia, Alex Martinez, Antonio Martinez, Nick Salazar, and Rosendo Vasquez 165 NLRB No. 91 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which goods and materials were received by said Closner Equipment Company or by Respondent from points directly outside the State of Texas. Respondent at all times material herein , has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION General Drivers, Warehousemen & Helpers Local Union No. 968, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Supervisory Status of Michael, Lowery, and Medrano According to Crow's testimony, as of January 1966 Respondent had a ready-mix concrete plant in Victoria, one in Port Lavaca, and one in Corpus Christi, Texas. At the Victoria plant Respondent had six transit mix drivers, two material truck (or dump truck) drivers, a loader operator, and a space mixer driver. In the latter part of February, Respondent opened another plant in Bloomington, Texas, and shortly thereafter sold its Port Lavaca plant.2 The Port Lavaca employees were given the opportunity of staying with the new owners at Port Lavaca or of transferring to Respondent's other operation. Two stayed at Port Lavaca and the balance transferred. This occurred about April 1. From January to April1 Respondent's employee compliment remained substantial- ly constant." Then, in addition to the transfers from Port Lavaca (so far as the record shows, a total of four employees transferred-Ralph Medrano, Antonio Martinez, Dennis Lowery, and Sylvester Martinez), Respondent hired a new driver, Joe Garcia, and a couple of weeks later added "some more men," some of whom did not survive the training or "break in" period. At all of the plants an essential function is that of batchman whose primary duty is to see that the trucks are loaded with the proper amounts and proportions of sand, gravel, cement, or other ingredients the customers' orders require. This is accomplished by him through the operation of the plant machinery which controls the amounts of ingredients the various batches call for. At the time the Port Lavaca operation was eliminated, Dennis Lowery was transferred to the Bloomington plant as batchman and Antonio Martinez was transferred with him as his helper to load materials. Except for the truckdrivers coming and going, Lowery and Martinez were the only ones working at the Bloomington plant. At the Victoria plant Fidel Medrano was the batchman, spelled sometimes by Robert Michael. At the Victoria location, however, Respondent maintains an office and Michael's duties were such that he "usually stayed in the office."3 It was at this location also that Carol Caldwell, the Victoria plant manager, was stationed. The testimony of several of the drivers (including Martinez) shows that they all were subject to orders from ' The Bloomington plant was located much closer to the DuPont project than the Port Lavaca plant and was opened primarily to supply the DuPont project needs which "started to pick up around the first of April " Lowery, Medrano, and Michael; that depending on which plant they were at, any one of the three directed them where to haul, what to do, when to come to work, when to service the machinery, and when to clean the plant or trucks. They also assigned the drivers other tasks when there was no hauling to be done. In addition to this general description of their relationship with the three in question, there were some specific undenied and credited examples given by the General Counsel's witnesses as follows: 1. Nick Salazar testified that a few weeks before his testimony he had been granted a few hours time off by Medrano for personal reasons. 2. When Alex Martinez, Jr., applied to Respondent for employment, he talked to Michael who had Marinez fill out an application blank. While Michael was going over the application, Respondent's president, Crow, came in. Michael told Crow that he was thinking of hiring Martinez as a dump truck driver. Crow said, "Okay" and made some suggestion about notifying Martinez' previous (current?) employer. About this matter Martinez credibly testified further as follows: And so in the conversation he told me, when I got through filling that application, he said "I know you get more an hour," because I was getting $1.40 where I was working, on 40 hours guarantee. And he said, "I am going to start you at $1.25," he said, "but I guarantee you, I can't guarantee you 40 hours, but I do guarantee you will work more than 40 hours because on a dump truck you will work about 60 or more hours a week because that is a regular job. It don't make no difference if it rains, you can haul to the stock pile, anyway." He said, "In about 4, 5 months," he said, "if I am satisfied with your work," he said, "you are doing fine," he said, "I am going to give you a raise." Respondent denies that the three employees in question are supervisors. Besides testifying that none of them have ever been granted any of the authority or attributes of a supervisor as defined in the Act, Respondent maintains that any directions they may have occasion to give the truckdrivers or other employees are not a manifestation of supervisory responsibility, but are merely the ministerial carrying out of directions formulated and transmitted to them by their supervisors. Notwithstanding that there may be somewhat less occasion in Respondent's operations for the manifestation of strong indicia of supervisory attributes by these three alleged foreman than may be demonstrated in other types of operations, I am convinced and find that the evidence establishes that Lowery, Medrano, and Michael are supervisors within the meaning of the Act. In addition to the foregoing, it appears that all three are on a salary basis as distinguished from the rest of the employees who are on an hourly basis. It also appears that Respondent issued on its letterhead, dated April 19, 1966, the following typed notice: TO: All Supervisory and Clerical Employees & Batchmen4 SUBJECT: Union Matters in our Company at Victoria and Bloomington I This is according to the undemed and credited testimony of Charles Eugene Johnson. 'The words "& Batchman" were added in writing. GULF CONCRETE CO. During the next few weeks you may be talking and working with employees who may be in a bargaining unit as a result of certain union activities now going on. To prevent any grounds for an unfair labor practice charge it is extremely important that the following statements be rigidly enforced. When talking with employees other than in a supervisory or clerical capacity DO NOT A. Make any threats B. Make any promises C. Coerce employees in any fashion D. Question employees about membership in a union nor about attendance at union meetings. 629 employees, office clerical employees, watchmen, guards, and supervisors as defined in the Act. On April 6, the Union also filed an RC petition (Case 23-RC-2678) with the Regional Office in connection with its effort to organize Respondent's employees. On this same date the Regional Office wrote Respondent notifying it of the Union's petition . On or about June 15 a Board election was held and on June 23 the Union was certified as the collective-bargaining representative of the employees in the described unit. The vote, apparently, had been 9 to 2 in favor of union representation. On June 24 Business Representative Whittle wrote Respondent President Bruce L. Crow requesting the following information. /s/ Bruce L. Crow 1. Names of employees in the bargaining units. Bruce Crow, President 2. Classification of the employees in the unit. Gulf Concrete Company 3. Rates of pay of the employees in the bargaining unit. This notice was signed by Bruce L. Crow at the place for his signature. In the lower left hand corner of the notice, it was also signed again by Bruce L. Crow as well as five additional employees-George Bihner (the Corpus Christi plant manager), Carol Caldwell, the Victoria plant manager, Robert L. Michael, Dennis Lowery, and another signature which is not distinguishable on the exhibit but was identified by the General Counsel on the record without objection as a Jean Porter. On the foregoing evidence I conclude and find that Michael, Lowery, and Medrano, in addition to being batchmen are also supervisors within the meaning of the Act.5 This does not necessarily mean that batchmen as such are supervisors and should thus be excluded from the unit.6 B. The Refusal to Bargain The Union began to organize Respondent's employees in the Victoria area about the middle of March 1966. To this end employee Sammie Flores was contacted by Union Business Representative E. F. Whittle who prevailed upon Flores to promote the Union among the other employees. This Flores did getting authorization cards signed by them and, in the process, being elected their leader. None of this activity, however, was conducted on Respondent's premises. By letter to Respondent dated April 6, the Union claimed to represent a majority of Respondent's employees in an appropriate bargaining unit and demanded recognition. The bargaining unit, as described in the letter, as alleged in the complaint , and as admitted in the answer to be appropriate, was comprised of all production and maintenance employees employed by Respondent at its Victoria and Bloomington area operations, including truckdrivers, deliverymen, transit mix drivers, and batch plant operators, excluding all other 4. Time and one-half after-hours weekly, etc. 5. Vacation policies. 6. Insurance provided and who paid for by and cost of same; also, a copy of policy, if one exists. 7. Number of paid holidays per year and hours paid for such holidays. On June 28 Whittle wired Crow as follows: Pursuant to NLRB certification of this Union as representative of certain of your employees as stipulated in NLRB Case Number 23-RC-2678 this Union wishes to meet with you at your earliest possible convenience for the purpose of negotiating a contract covering wages, hours and conditions of employment of those of your employees represented by this Union. Please contact the undersigned agent at 626 East 4- 1/2 Street or UN-94826 Houston, Texas in the very near future regarding setting up a time and place for this negotiation. In a telephone conversation with Crow on June 30 the latter, according to Whitter's testimony, indicated that he did not intend to supply the requested information-that "he didn't believe he had to."7 The following day Whittle wrote Crow as follows: This letter will confirm our telephone conversation of June 30, 1966, wherein you stated that you would not supply this Union with the information concerning present wages, hours and conditions of employment of your employees which we requested of you in our letter of June 24, 1966. We consider the information that we requested of you to be of considerable importance to all parties concerned, however, if we do not receive the requested information within the next few days, we will consider that your refusal is final and be governed accordingly. s That Medrano's signature does not appear on Respondent's April 19 memorandum of instructions does not in my opinion detract from this finding The record shows that some of the drivers had marginal ability in the use of English For this reason, Respondent states that Medrano was "frequently used . as a conduit for the transmission of information and/or orders to the other employees " On this basis alone I would find Medrano to have been held out to the employees as a supervisor or an agent of Respondent and that Respondent is thus chargeable with and responsible for Medrano's conduct in the course of his employment ° For example, one of the rank-and-file employees, Faustino Rodriguez, substitued as batchman for Medrano for 2 weeks while Medrano was' in the hospital This did not automatically make Rodriguez a supervisor Crow testified about this conversation as tollows He wanted to know if I was going to give him this information, and I told him no, that I was not at that time, that I would have to refer to my attorney and see what information I would give him . ' 299-352 0-70-41 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On July 1 Crow wrote Whittle in reply to the letter's telegram of June 28 as follows: In answer to your wire of the 28th. I will be available to meet with you in Corpus Christi anytime Wednesday, July 6th. I suggest we meet at Head and James office, 702 Wilson Tower. Please advise time. Pursuant to Respondent's suggestion Whittle met with Respondent on July 6 at the office of Respondent's counsel in Corpus Christi. There, according to Whittle's undenied and credited testimony, he presented the Company, from notes, with a verbal contract proposal in places lacking, specifics because he did not have the information from Respondent that he had asked for. The Company's only comment was that the Union's offer would be taken "under advisement." At the end of the meeting the company representatives (Crow and Attorney James) indicated that "They had urgent business that was going to tie them up for the next couple of weeks" and wanted to schedule the next meeting for July 21. Whittle objected to this as being "too long a time between meetings" but was unable to prevail in his contention. A dispute also arose as to where negotiations should take place. Respondent's representatives insisted at this time that the next meeting be held in Corpus Christi,8 while Whittle insisted on Victoria which was where the bargaining unit was located. Whittle also pointed out (as another reason for holding negotiations in Victoria) that Sammie Flores had been elected to participate in the negotiations and "requested that they arrange to have time off for him." The Company's response was that "they could see no reason for Sammie Flores sitting in on the negotiations, that they could negotiate a contract with [Whittle]." No definite date for the next meeting was agreed upon at this time. Accordingly, on July 15, Whittle wrote Respondent as follows: This is to request another meeting for the purpose of attempting to negotiate a contract covering terms and conditions of employment of your employees in the appropriate collective bargaining unit. We request that such a meeting be held in Victoria, Texas, on any date during the week of July 18, 1966. If you do not wish to use the Company's offices in Victoria for this meeting, the Union will make arrangements to provide some other meeting place in Victoria which is mutually agreeable. Please advise me at your earliest opportunity as to when you will be available for such a meeting next week. Unless you contact me next week, we will assume that you are refusing to meet with the Union on this subject. On July 20 Attorney James replied to Whittle's July 15 letter as follows: Mr. Bruce Crow of Gulf Concrete Company has asked that we reply to your letter of July 15, 1966. At the conclusion of our initial meeting on July 6, it was agreed that our next meeting would take place during the week of July 25. Mr. Crow is still prepared to meet with you at this agreed time. A representative of the National Labor Relations Board has requested that Mr. Crow make himself available on the 27th, 28th and 29th of July for purposes of investigating impeding unfair labor practice charges filed by the union against the company. We are now trying to arrange to limit the meeting with the N.L.R.B. representative through the afternoon of the 27th and the full day of the 28th, in which event both Mr. Crow and I will be available to meet with you on the morning of the 29th. If a meeting at this time is satisfactory to you, please advise, and we will confirm it as soon as our arrangements with the N.L.R.B. are final. However, at our meeting on the 6th you agreed to furnish the company a written outline and summary of the various points which the union desires to negotiate. We have not received this information, and we consider its receipt and a reasonable period of time to study the same an essential prerequisite to our second meeting. It will be necessary that this next meeting be in Corpus Christi. Mr. Crow is not willing to pay expenses for any employee to travel from Victoria to Corpus to attend this meeting. In conclusion, I would say that it seems quite presumptuous for you to assume the authority to write a letter dated Friday of one week demanding that the Company contact you the next week, in the absence of which you "will assume that you are refusing to meet with the Union on the subject." We would prefer that any declarations or findings in these matters be made by the duly constituted authorities as to the conduct of both the union and the company, rather than the officials or representatives of either the company or the union. To this letter Whittle replied, on July 22, as follows: I have received your letter of July 20, 1966, and must say I am unable to understand fully your intentions with regard to further meeting with the Union. First of all, I do not recall any agreement at our prior meeting that the next meeting would take place during the week of July 25th. Nevertheless, in the interest of meeting at the earliest possible time, we are agreeable to meeting with you on July 29th as you propose. Secondly, I do not agree that any further meeting would be conducted on the advanced submission of a written summary of the Union's proposals. I did say I thought the negotiations would benefit from each party submitting their various proposals in writing and that I would attempt to reduce the Union's proposals which were made at our first meeting to writing and present them at our next meeting. Since you have requested the proposal, however, and as a matter of expedience, I have reduced our proposal to writing, and am enclosing same herewith. It should be 8 Corpus Christi is about 100 miles from Victoria GULF CONCRETE CO. noted that these proposals are not in final form and are subject to revision in certain areas. I also request that you submit any proposals you have so that we may give them careful consideration in advance of our next meeting. Thirdly, as I advised you at our initial meeting, we believe the negotiations should be conducted in Victoria where most of the employees work and live. The only reason you have given for refusing to meet in Victoria is that by meeting in Corpus Christi the Company can save the expense of you and Mr. Crow traveling to Victoria. We do not accept this argument since it is no more inconvenient for you and Mr. Crow to come to Victoria than it is for the employees on the bargaining unit to come to Corpus Christi. Since you are refusing to meet in Victoria, however, and again in the interest of making some progress toward the negotiations on a contract, we are agreeing to meet with you in Corpus Christi on July 29, 1966, and suggest that the meeting be scheduled for 10 a.m. I emphasize that we are not in any way waving what we believe is our right to conduct the negotiations in Victoria. I am sure you realize that little or no progress was made at our first meeting. As to the numerous proposals the Union made, you indicated you would want to take all of them under consideration. I assume you have now carefully considered all of our proposals and you will be prepared to enter into meaningful discussion of those proposals at our next meeting and present proposals of your own as you desire to do so. Please advise me as soon as possible as to whether we will be able to meet on the 29th as proposed. In this connection, we hereby request that if such a meeting is agreeable that arrangements be made for Sammie Flores, the employee representative on the negotiating committee, to be off work on that date so he may attend the meeting. The next meeting was held in Corpus Christi on July 28. rather than July 29. This time Flores accompanied Whittle. The meeting started at 10 o'clock. Having previously received the Union's written proposal, the negotiatiors "got right into the discussion of some of the clauses of contract." The first clause the Company wanted to discuss was on union dues checkoff. The Company did not want any part of a checkoff. They said it would cost the Company and it was not the responsibility of the Company to collect dues for the Union. There is a right-to-work law in Texas and the Union had proposed a "pre-negotiated" clause or offered as an alternative a reopening of the contract if the law was changed. The Company's attitude on this was the same as on the checkoff. The Company would not agree to the grievance procedure the Union proposed. Nor did the Company want the Union's recognition clause. The Company wanted a clause specifying that it recognized that the Board had certified the Union as the bargaining representative but did not, apparently, want wording that would bind the Company at anytime that it determined that the Union had lost its majority standing. There were no counterproposals made by the Company. 631 The meeting ended at noon and the Company wanted a 2- week interim before the next meeting. This was because Crow had to go to Minnesota on business; and he could not continue negotiating that afternoon because he had to rush to Victoria on business. Whittle proposed that meetings be held close together or even continuously and the company position was, "absolutely no." The Company contended that its time had been taken up on unfair labor practice charges or that otherwise it might have had more time for negotiations. In addition to this, the Company was hardly gracious about Flores' presence at the negotiations claiming that "equipment was probably tied up in Victoria," because of the absence of Flores. Apparently it was agreed at this time to have the next meeting on August 10 at Corpus Christi. This was over Whittle's objection that the proper place for the meetings was in Victoria. On August 4, Whittle wrote Respondent concerning this meeting as follows: This letter will confirm our verbal agreement at our last meeting to meet again for contract negotiations on Wednesday, August 10, 1966, at 9 a.m . in the offices of Head & James in Corpus Christi. I sincerely hope that this coming meeting will be more meaningful than our other two meetings were, and that future meetings may be of longer duration, more frequent scheduling, and in a location more convenient to the employees involved than has been the past practice. This is in line with objections that I made at our last meeting to the pattern which the Company has insisted on following in these negotiations. We also request that arrangements be made for Sammie Flores to be off from work on the day of this coming meeting so that he may participate in said meeting. He is the employee representative on the negotiating committee. Apparently some progress was made at the August 10 meeting. They achieved "some degree of understanding" on the grievance procedure. The Company "wanted limitations between the various steps and rather than use the mediation service list to select an arbitrator, they wanted to use a list formulated by ... a local judge ...." Before adjourning it was agreed that the next meeting would be held on August 16, again in Corpus Christi. About this meeting Whittle wrote Respondent on August 12 in part as follows: As previously stipulated, I am agreeing to these meetings in Corpus Christi under protest and will continue to insist that the proper place for the meetings is in Victoria, Texas, for reasons with which you are acquainted. At the August 16 meeting Whittle asked the Company if there was any clause that they could agree on. The Company's reply was that they could agree on the no- strike, no-lockout clause. So this clause was marked "agreed." However, according to Whittle's further testimony, at a future date Respondent repudiated this agreement. At this meeting Whittle also proposed to a hiring hall clause which he claimed was "legal again in Texas." Crow was concerned about it and Attorney James told him, "Bruce, this hiring hall clause, we have to discuss it now. It is a majority subject of bargaining, but it's like the rest of this contract, we just have to talk about it, we don't have to agree on it." 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The next meeting was held on August 19 at Corpus Christi where the Union agreed to meet again under protest. At this meeting, Attorney James indicated that the Union's request of June 24 for information had been discussed and that the Company would "probably" supply it. In a letter to the Union dated the same day, the Company stated: In confirmation of the advice given you at our meeting this morning, please be advised that the information requested in your letter dated June 24, 1966 is being mailed to your office. On the following day the Company again wrote the Union supplying substantially the information requested on June 24 by the Union. t" Thereafter two bargaining sessions were held in Victoria. Their dates are not revealed in the record but it would appear that they were held after service of the complaint on Respondent. In these sessions agreement was apparently reached on some contractual provisions. Conclusions on Refusal To Bargain On the foregoing evidence, I agree with the allegations of the complaint that by insisting on meeting in Corpus Christi rather than in Victoria, from July 6 through August 19, and by failing from June 30 to August 20 to produce the payroll data requested by the Union, Respondent refused to bargain within the meaning of Section 8(a)(5) of the Act. Whether or not in their telephone conversation of June 30 Crow told Whittle that he was going to discuss the Union's request with counsel (which in effect would be a denial of Whittle's testimony that he had bluntly indicated that he would not furnish the information sought by the Union) in my opinion is immaterial and thus unnecessary to decide. The fact is that although Respondent met with the Union several times during this month-and-a-half period after the request had been made, it did not produce the information sought and at no time made any attempt to explain its failure to do so. It is clear that the Union was entitled to this information as a matter of law and without showing any specific need for it. N.L.R.B. v. Truitt Mfg. Co., 351 U.S. 149; Curtiss-Wright Corp., Wright Aeronautical Division v. N.L.R.B., 347 F.2d 61 (C.A. 3). That the Union made only one request and did not repeat it is hardly justification for Respondent's failure to comply with its obligation under the Act. I also find, as alleged in the complaint (and as shown below), that by its threats of reprisals against the employees for supporting the Union or selecting it as their bargaining agent and by discriminatorily reducing their hours of work and thus their pay, Respondent engaged in conduct which further violated Section 8(a)(5) of the Act. Moreover, on this evidence and considering the record as a whole, I further find that at no time in its negotiations with the Union did Respondent bargain in good faith and with the intention of entering into a collective-bargaining agreement. 0 Whittle's word 10 In his testimony Whittle claimed that he did not get all the information he had requested " Flores and several other witnesses called by the General Counsel testified about various comments made to them by both C. Interference, Restraint, and Coercion On Good Friday, April 8, 1966, Flores had a conversation with Plant Manager Caldwell at the Victoria plant about which he testified as follows: He came and asked me if I knew anything about the Union, and I told him I didn't, and then he says, "Well, you are the person that ought to know because you had a phone call came here to the office and Miss Porter, the secretary, took it," and I said Yes, sir, that I had an application at the DuPont plant, and I put the Company's phone number, which I didn't have none at the house, and they called me there to see about a job, but that it was at DuPont, I told him exactly, it was a union, labor organization. ... he said that the Union requested, that they had 30 percent of the men, and he would like to know which the 30 percent were, and he wanted to see who they were because by law he couldn't fire any people that were on union activities, and he said, "this is a free country. You all boys can join any organization you all wish, but I would think twice before I would join the Union." A few hours later, according to Flores' undenied and credited testimony, he had a conversation with Fidel Medrano in the shop." Medrano "was pretty disgusted about" his having tried to get Medrano's brother, Ralph, to sign a union card and told Flores that "if he wasn't on company grounds, he would fight" Flores. Medrano also said "that even his little boy that was only 2 years old knew better than to have anything to do with the [Union]." Medrano further told him that after the Company got notice of the R petition "that he was looking for three witnesses so that he could talk to the boss, Mr. Crow, and have me fired, since I was the one that had started all this union activity. After he couldn't find the three witnesses, he said he was sorry, he didn't mean no harm, just forget it." About the end of April, Flores had another conversation with Caldwell about the Union. According to his testimony this occurred in the office where he had been called to be given some information about his income tax deduction. After Caldwell finished the business at hand, he asked Flores if he knew anything about the 30 percent of the men who were involved in union activities and also asked Flores if he had signed a union card. Flores said that he had not. Caldwell went on to tell Flores that if the Union won the election, the hours would be cut from 56 to 60 they were currently working to 30 or 35 a week. About this same time according to Flores' undenied and credited testimony, Medrano asked him to talk to the employees and try to "get their minds off the Union, that he would ask Crow to give ... a 25 cent raise and that nobody would be hurt. And that nobody would no who started it or anything like that." In April (or on a week after he had only put in 27 hours), according to his undenied and credited testimony, Flores went to Robert Michael and asked him what had happened Fidel Medrano and Robert Michael Since neither of these two were called as witnesses and were not shown to have been unavailable , the General Counsel's testimony stands undenied in the record and is credited GULF CONCRETE CO. to his 40-hour guarantee.12 Michael said, "Ever since you all started with this b-s-with the Union, Mr. Crow told me to cut you off to just the hours you worked, that is all you get paid for." According to Flores' further testimony (substantially corroborated by the testimony of Faustino Rodriguez and Nick Salazar), in late June a couple of weeks after the election and on a day that Business Representative Whittle had been in to talk to Caldwell, the latter came into the shop and addressed himself to Flores and several of the other employees. He told Flores disgustedly that he had "no seniority whatsoever." He also said to them, "You boys brought this up among yourselves. We didn't bring it up to you all ... there will be a lot of you boys losing your homes, your automobiles . ." He told them that there would be no work in town for them and that they would have to move out of town to get work-that he would "see to that." He also said that he was going to their homes and talk to their wives to "see what they thought about this deal that's going on."13 In his testimony Caldwell admitted the interrogation of Flores on Good Friday about the Union as well as his similar interrogation of Flores in late April. But in the latter conversation he denied making any threats regarding a decrease in the hours. As for the remarks attributed to him in late June to the employees, there was no specific denial of the General Counsel' s witnesses and there were enough admissions in his own version of what he said on that occasion to warrant my crediting (which I do) the foregoing testimony of the General Counsel's witnesses including that about Caldwell's threat of lower hours if the Union won the election. Faustino Rodriguez testified that right after receiving the representation petition, Caldwell (in the office) asked him if any of the union men had been in contact with him. In view of Caldwell's admitted interrogation of other employees, I credit Rodriguez. About a week later (in the office again), according to Rodriguez' undenied and credited testimony, Fidel Medrano asked Rodriguez if he knew "who was the one started the union deal." Later on Medrano again asked who the union instigator was and Rodriguez maintained that he did not know. Medrano said, "Well, I know you know," and added, ". . . I can make it hard on you." "When all that stuff about the Union started," according to Rosendo Vasquez' undenied and credited testimony, Fidel Medrano asked him if he "had signed one of those cards"-if he knew anything about the Union. Vasquez told him "no." Nick Salazar also testified without denial that on Monday following Easter Sunday, Medrano asked him if he knew anything about the Union. When he protested that he knew nothing about it Medrano said, "Yes, I know you know, but you just don't want to tell me." Salazar again denied any knowledge of the Union and said that maybe the other employees might be able to tell him something. About mid-April, according to Charles Eugene Johnson's undenied and credited testimony, just after he had dumped a load at the DuPont plant, Michael came up and got on the truck to talk about something. Then Michael asked Johnson if he had "heard any of the drivers 2 When he had been hired , according to Flores' further undenied and credited testimony , Michael had told him that he was a lucky man-that the Company guaranteed 40 hours a week saying "We never work under 40 hours a week " 633 say anything about joining the Union or bringing it in... Johnson answered in the negative. About a week or so later in the office late one afternoon punching in for some extra work, Johnson encountered Caldwell and Michael talking together. They asked what he was back on the job for and he explained that Medrano had called him to haul a few extra loads. The remarks then turned to the Union. They proceeded to "discuss the Union in general, initiation fees, how much it cost you ... your dues and strikes, and how much time you lose fiom work...." Caldwell was doing most of the talking but periodically Michael would "butt in" with comments such as, "Well, if the Union does come in we are going to cut your vacations out, cut your uniforms out, going to put two men on a truck, cut ... down to 20-5 hours a week...." About this conversation, Caldwell testified as follows: Robert and I were just discussing instances of unions of a different nature that had recently been brought out in local newspapers about what was being asked and what had been accomplished. This was a conversation between Robert and I. And I made the comment to him, "I wonder what happened with reference to vacations or pay and all of these things that I mentioned in items in the paper." Johnson, to the best of my knowledge, was only there for a short while, came in to punch out his card, and I don't recall that Johnson personally joined in the conversation, himself. I think he was listening more than anything. Johnson was not a talking man. I credit Johnson here. Alex Martinez, Jr., testified as to certain incidents credibly and without denial as follows: 1. Soon after he had signed a union card in late March, Fidel Medrano asked him if he had heard anything about the Union. Martinez said he did not know anything about it. Medrano said, "Well, the Company got a letter notifying them about 30 percent or more, that they were trying to get the Union in. I would like to find out who it was. I've got a pretty good idea, but I can't be sure until ... if I could get two or three witnesses, maybe I could do something about it, but just me ... I can't do nothing about it." 2. About 2 weeks before the election, Michael asked to ride with Martinez to the scale house at the Bloomington plant, telling him he wanted to talk about the Union. About this conversation, Martinez testified further as follows: He said, "we know for sure that you are for the Union." I said, "You do? How come?" "Well," he said, "The reason we know is because the manager of All Star Lumber Company called Mr. Caldwell and told him about it, that you were in favor of the Union." I said, "Is that right?" He said, "Yeah, Mr. Caldwell," he said, "and Mr. Crow," he said, "were pretty upset about it." He said they had had my truck in the shop fixing it up and they had painted it and everything he said, "Do you remember that?" I said, "Yeah." "Well," he said, "Mr. Crow wanted to sell your truck when we had it over there in Port Lavaca having it painted and everything like that but," he said, "we finally convinced him not to sell it 11 According to the testimony of Rodriguez, Caldwell also said that Crow could make a living in Corpus Christi and could close the Victoria plant 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because we needed you to haul the material," he said, "but in case the Union get in here, well, Mr. Crow is going to sell, is going to have to sell the truck because it will be costing too much money to run it," he said. He said, "In other words," he said, "if the Union get in here," he said, "Well, I guess Mr. Crow is going to have to sell the truck and you will probably be out of a job," he said. And on the conversation, when we got to the plant, I parked the truck and he stood there with me and told me, he said, "Before everything, all this union talk, got in here," he said, "About this union," he said, "we were supposed to have got a raise," he said, "but since you all brought up all this union, well, Mr. Crow decided not to give you all a raise," he said. "But I am pretty sure," he said, "if you all voted not for the Union, he said, "I am pretty sure Mr. Crow is going to give you all a raise. I ain't promising you anything, but I am pretty sure he will give you a raise." ' So I told him I appreciated him giving me all this, telling me all this, and I said, "When the election come, well, I make my decision, what I am going to do." He said, "Well, I guess for the best thing for you to do, Alex, is just vote for the Company." I said, "Well, I will think about it and when the election day come up I will see what I will do about it." In late April, according to the undenied and credited testimony of Antonio Martinez, Fidel Medrano asked him, "Tony, if that Union would come into this company ... which side are you going to be on?" Martinez replied that he could not tell at that time. On the basis of the foregoing evidence I find that Respondent violated Section 8(a)(1) of the Act by (1) coercively interrogating its employees; to (2) threatening its employees with reprisals if they joined or voted for the Union or the Union won the election;", and (3) promising them benefits to reject the Union. 16 D. Discrimination The complaint alleges that "on or about April 7, 1966, and thereafter" Respondent discriminatorily reduced the hours and pay of Samuel Flores, Joe Garcia, Alex Martinez, Antonio Martinez, Nick Salazar, and Rosendo Vasquez. There is no evidence to support a finding that beginning as of April? the hours of the employees in question were reduced in comparison to the hours they had been working before that date." The evidence does show, however, that for the 11 weeks following the election on June 15 the named employees averaged considerably less hours per week than they had been averaging prior to the election. Thus, for the period covering payrolls ending January 8 to August 27, 1966, the figures show the following average hours worked per week by these employees before the election and after the election: Before Election After Election Flores 47.5 24.72 Vasquez 59.5 40. Salazar 54. 39.5 Garcia 50. 33. A. Martinez 58. 39. Antonio Martinez 48. 30. From the first part of January (the earliest date that payroll data was produced) to the end of March 1966 Respondent's employment rolls remained constant showing the same nine employees working all during this period. None of these employees during this period of time worked less than 40 hours in any week. The lowest average number of hours worked for any 1 week during this period was 44 and the highest average hours worked for any week was 63-with the average for all weeks worked during this period being 55.5. As indicated, by the first part of April Respondent began adding transferees from the Port Lavaca plant to the Victoria payroll. Besides these transferees, Respondent also added several new hires to the payroll so that by early July it showed 13 employees on the roster which compliment remained fairly constant through August, beyond which no data was produced. From the first part of April (when Respondent began to increase its employment compliment) to the date of the union election (June 15) the average number of hours worked per man per week for the entire work force as compared to the period before that time remained relatively unchanged, dropping from an average of 55.5 to 52 per week. After the election and up to the end of August, however, the average number of hours per man per week for the entire work force dropped to 38. Turning to data on the number of yards of concrete delivered (or poured) by Respondent from the first part of March to the week ending August 20 (the only data put in evidence) we find that for the period of March 5 through 26 (when the number of employees was at its original figure of nine) the weekly average number of yards of concrete poured was 732. For the period of June 25 (the payroll period immediately following the one in which the election occurred) through August 20 (during the most part of which the compliment of employees was 13) the average number of yards poured was 916. Thus we see that after the election Respondent was employing approximately 45 percent more help than it was employing up to the end of March but was only pouring about 25 percent more concrete with the bigger crew. These figures are particularly interesting in view of Crow's testimony that with the opening of the Bloomington plant in February to service the DuPont project the haul to DuPont was reduced "from a 10 or 12 mile haul, through 11 Caldwell's interrogation of Flores on April 8 and at the end of April, of Rodriguez right after receipt of the R petition, of Johnson in mid-April, and Medrano's numerous interrogations 15 Caldwell to Flores at the end of April of a cut in hours if the Union won the election, to Flores and other employees in late June of a loss of homes and cars with the statement that "You brought this on yourselves" (See Standard Electric Co , Inc , 162 NLRB 1045), and his threat to blacklist the employees, Caldwell and Michael to Johnson in late April that if the Union came in there would he a cut in vacations, uniforms, and hours, and Michael to Alex Martinez 2 weeks before the election of loss of his job if the Union won the election 16 Michael to Alex Martinez 2 weeks before the election of a wage increase if the employees voted against the Union, and Medrano to Flores of a raise if he could get the employees' minds off the Union. 17 Indeed, Joe Garcia was not hired until the first part of April and Ralph Medrano and Antonio Martinez (who transfered from the Port Lavaca plant) appear on the payroll for the first time in the first part of April GULF CONCRETE CO. traffic ... to a quarter of a mile haul, with no traffic ..." which on an ordinary day might cut Respondent's need for six to eight trucks down to two trucks. This, explained Crow, would reduce the number of hours worked even though there was no corresponding reduction in the amount of concrete hauled. Very true. But it does not explain the need, then, to have increased the number of men on the payroll by almost 50 percent.' e On the foregoing evidence and particularly considering that Respondent's promises (before the appearance of the Union) of 40 hours of work or more a week had proven true and that its subsequent threats to cut the hours and take- home pay if the employees chose the Union as their collective-bargaining agent had also come to pass, it is clear that a strong prime facie case has been made for a finding that immediately following the election Respondent embarked on a program of discriminatorily reducing the hours and pay of those named as discriminatees. Furthermore, a comparison of the hours worked after the election by the discriminatees with the hours worked by several of the newly hired employees strengthens this prima facie case. Thus, for the period starting immediately after the election and running through August 27, we find Flores averaging 26 hours a week, Antonio Martinez averaging 30, Garcia averaging 32, and Salazar, Vasquez, and Alex Martinez averaging 38. For the same period we find newly hired employees McNary, McCradius, and Cisneros averaging 49, 46, and 43 hours, respectively. Or, to focus on the picture in a more revealing manner, for the three payroll periods immediately following the election we find that Flores worked approximately 12 hours a week, Alex Martinez 29, Vasquez 31, Salazar 32, Antonio Martinez 25, and Garcia 19. For the same 3-week period McNary worked an average of approximately 47 hours per week, McCradius 41, and Cisneros 39. It would take well documented, plausible, and convincing evidence to override the General Counsel's prima facie case. In my opinion, Respondent has failed to produce such evidence.'" As for the discrepancy in the hours worked by the new employees as compared to the older employees Respondent's only explanation was "that it was company policy to get a new man oriented to the use of all the mechanical features of his truck as quickly as possible and ... the Company knew of no other way of doing it than an on-the-job training process." More specifically, Respondent would defend its actions as follows: With respect to Flores, in addition to attempting to hide behind the several days Flores lost because of Respondent's illegal refusal to meet in Victoria, Respondent claims that Flores' reduced hours, right after the election, was caused by the inability of Respondent "for the better part of three weeks" to get an alternator to replace a faulty one on Flores' truck. In this era of automotive economics this claim is almost incredible on its face. In his testimony Flores claimed that the alternator was working properly the night he put his truck up prior to being told the following morning that the alternator was bad. He also testified that Respondent had taken his properly functioning alternator and installed it on truck 62 driven by new employee George Cisneros. According to " As indicated, Respondent gave the Port Lavaca employees the privilege of transferring to the Victoria operation and this would explain their being added to the payroll But the addition of 635 Caldwell's admission Business Representative Whittle had offered to get Respondent a replacement alternator for Flores' truck within an hour but his offer was not accepted. Whatever the truth here, I am unable to accept Caldwell's uncorroborated and unsupported testimony that the alternator was the real reason for the small number of hours worked by Flores during this 3-week period. With respect to Alex Martinez, Crow testified that Respondent originally had two trucks to haul materials to its Port Lavaca and Victoria plants. When they sold the Port Lavaca plant they found that they had too much equipment for their material needs (Crow made no mention of the addition of the Bloomington plant) in Victoria. Also, apparently simultaneously, it was discovered that they needed additional material-hauling capacity in the Corpus Christi plant. Accordingly, Respondent transferred the larger of its two material trucks to Corpus Christi and began the practice of bringing it back to Victoria for a day or two at a time as needed there. As indicated, at the time he was hired Michael had told Alex Martinez that he would be working "about 60 or more hours a week" because even if it rained he could "haul to the stockpile, anyway." According to Martinez's further credited and undenied tesitmony about June 25 his brakes on his truck locked and the mechanic Juan Pena found that a bolt holding the springs to the brakeshoe had broken. So at 2 p.m. Martinez was told to go home. When he came back to work the next working day he asked Pena if the truck had been fixed. Pena told him that it had not because they had been unable to get the part for it. Martinez suggested that they didn't need the part that all they had to do was weld the part. For 2 more days Martinez' truck was laid up. Finally by the end of the week it was ready and he found that all that had been done was to weld the part as he had suggested. When he saw this he told Pena, "Man, it took you all about a week to fix that thing?" Pena said, "Well, each time I was going to start working on your truck Robert [Michael] would come and take me off and take me to do something else...." According to Martinez' further undenied and credited testimony, somewhere around July 9, he had been cut off for the day around 11:30 in the morning because it had started raining. The rain stopped shortly thereafter and when Martinez went back at 2 p.m. to get his check he saw new employee Charles Taylor driving his truck. At this time Michael told him to report for work the following morning at 8 o'clock. The next day, when he reported as directed, Michael told him that because of the rain the day before they had no concrete to pour and he should come in the following day. Martinez protested, "Oh, come on, Robert.... I can haul today. I can haul to the stockpile today.... I can haul down there today, tomorrow and all this week." Michael replied, "No, we will leave it to tomorrow." So Martinez went home and it was the same thing the following day. He finally worked all day the following Friday. But then, because Respondent did not have enough material stockpiled it had to hire a contract hauler to assist in meeting the day's demands for material. According to Martinez' further undenied and credited testimony, it is the Respondent's practice to keep a others to the payroll is hard to understand in the light of Crow's testimony " Crow's promise of documentary support of some of his oral testimony was not fulfilled 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stockpile of sand and gravel available. On days they are pouring he dumps material in the ramp going into the hopper and when they are not pouring he dumps it on the stockpile. They need the stockpile because, among other reasons, sometimes they pour so fast that he cannot supply their needs directly from his truck and thus in between his loads they are supplied from the stockpile by a front-end loader. Other than Crow's testimony as shown above, the only explanation of Martinez' hours was given by Caldwell as follows: Alex was hired in the capacity to haul material, and when our material is up to what we feel is par, we can't just continue to haul material and pile it on the ground, so-called stockpile it, if the stockpiles were full. As for the rest of the discriminatees' hours, Caldwell attributed much lost time of Antonio Martinez and Joe Garcia to personal and family problems, of Salazar to an injury and subsequent medical attention,20 and in general to Respondent's policy of rotating the hours of work among the employees as much as possible. While these explanations may be valid enough as far as they go they do not, in my opinion overcome the basic contrast between the picture of Respondent's operations before the election and after it. I am convinced and find that beginning with the payroll period after the election, Respondent, in accordance with its previous threats, began to cut down on the hours of the named discriminatees in retaliation for the employees having selected the Union as their bargaining agent. That Respondent was well aware of Flores' union support long prior to the election is apparent notwithstanding Caldwell's attempt to claim he had no knowledge of the union sympathy of any of the employees prior to August. And it would also appear from Michael's comments to Alex Martinez that Respondent was likewise aware of his union adherence. Whether Respondent had any idea about the attitudes of the other named discriminatees21 or indeed whether they in fact were in sympathy with the Union is immaterial since the discrimination here (as pointed out by Respondent) was directed against the employees as a group for having voted to be represented by the Union. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations described in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommed that it cease and desist -" Although not testifying when it took place, he claimed that Salazar took off the day of the injury and (on basis of a leading question) the following day plus a half day on four or five occasions Later, testifying on his own he reduced the half day absences to three or four occasions therefrom and take certain affirmative steps to effectuate the policies of the Act. Having found that Respondent unlawfully reduced the hours and pay of its employees in violation of Section 8(a)(3) and (1) of the Act, I shall recommend that the Respondent make such employees whole for any loss of earnings they may have suffered by reason of the unlawful discrimination against them by payment to each of them of a sum of money equal to the amount which the employee would normally have earned as wages from the date of the discrimination against them, less the employee' s earnings during said period. Backpay shall be computed in the manner provided in F. W. Woolworth Company, 90 NLRB 289, with interest as directed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716. Having found that Respondent refused to bargain in violation of the Act, it will be recommended that, upon request, Respondent bargain collectively with the Union and if an understanding is reached, such understanding be embodied in a signed agreement. As the conduct in discriminatorily reducing the employees' hours of work and pay goes "to the very heart of the act," I shall also recommend that Respondent cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4). Upon the basis of the foregoing findings of fact and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. Gulf Concrete Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. General Drivers, Warehousemen & Helpers Local Union No. 968, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is a labor organization as defined in Section 2(5) of the Act. 3. All production and maintenance employees employed by Respondent at its Victoria and Bloomington area operations, including truckdrivers, deliverymen, transit mix drivers and batch plant operators, excluding all other employees, office clerical employees, watchmen, guards, and supervisors as defined in the Act, constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. The Union at all material times herein has been, and now is, the exclusive representative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By failing and refusing to bargain collectively with the Union as the exclusive representative of the employees in the aforesaid appropriate unit, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By discriminatorily reducing the working hours and pay of its employees, Respondent has engaged in unfair labor practices in violation of Section 8(a)(3) of the Act. 7. By interfering with, restraining, and coercing its d1 As will be noted, the six discnmmatees were the only ones, but for the employee Ralph Medrano , who were on the payroll in the early stages of the union campaign The failure to have included Medrano in the reduced hours program of Respondent could be explained on the basis of nepotism-since it appears that Medrano was related to Supervisor Fidel Medrano GULF CONCRETE CO. employees in the exercise of rights guaranteed in the Act, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and pursuant to Section 10(c) of the Act, I recommend that Gulf Concrete Company, Victoria, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning wages, rates of pay, hours of employment, and other conditions of employment with General Drivers, Warehousemen & Helpers Local Union No. 968, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, as the exclusive representative of all its employees in the following appropriate unit: All production and maintenance employees employed by Respondent at its Victoria and Bloomington area operations, including truckdrivers, deliverymen, transit mix drivers, and batch plant operators, excluding all other employees, office clerical employees, watchmen, guards, and supervisors as defined in the Act. (b) Discouraging membership in and activity on behalf of the above-named Union, or any other labor organization of its employees, by reducing the hours of work and pay of the employees named in the Appendix, or otherwise discriminating against them or any of their employees in regard to their hire or tenure of employment or any term or condition of employment. (c) Interrogating employees about their union membership, activities, or sympathies in a manner constituting interference, restraint, or coercion within the meaning of Section 8(a)(1) of the Act. (d) Threatening employees with blacklisting, loss of employment, or reduction in hours and pay, or any other reprisals, if General Drivers, Warehousemen & Helpers Local Union No. 968, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, or any other labor organization, should become their collective-bargaining agent. (e) Promising a wage increase or any other benefits for rejecting or voting against General Drivers, Warehousemen & Helpers Local Union No. 968, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, or any other labor organization. (f) In any other manner interfering with, restraining, or coercing its employees in the excerise of the rights guaranteed to them in Section 7 of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Upon request, bargain collectively concerning wages, rates of pay, hours of employment, and other conditions of employment with General Drivers, Warehousemen & Helpers Local Union No. 968, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, as the exclusive representative of all employees in the above-described unit and, if an understanding is reached, embody such understanding in a signed agreement. (b) Make Samuel Flores, Joe Garcia, Alex Martinez, Jr., 637 Antonio Martinez, Nick Salazar, and Rosendo Vasquez whole for any loss of pay they may have suffered by reason of Respondent's discrimination against them, together with interest at the rate of 6 percent per annum, in the manner set forth in the section of this Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (d) Post at its plants at Victoria and Bloomington, Texas, copies of the attached notice marked "Appendix."22 Copies of said notice, to be furnished by the Regional Director for Region 23, after being duly signed by the Respondent's representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.23 IT IS FURTHER RECOMMENDED that unless on or before 20 days from the date of the receipt of this Trial Examiner's Decision, the Respondent notifies the said Regional Director in writing, that it will comply with the above Recommended Order, the National Labor Relations Board issue an Order requiring it to take such action. 2-1 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " LS In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL, upon request, bargain with General Drivers, Warehousemen & Helpers Local Union No. 968, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, as the exclusive representative of all the employees in the bargaining unit described below with respect to wages, rates of pay, hours of employment and other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All production and maintenance employees employed by Respondent at its Victoria and Bloomington area operations , including truckdrivers , deliverymen , transit mix drivers, and batch plant operators , excluding all other employees , office clerical employees , watchmen, guards, and supervisors as defined in the Act. WE WILL make the employees named below whole for any loss of pay they may have suffered as a result of our discrimination against them : Samuel Flores, Joe Garcia , Alex Martinez , Jr., Antonio Martinez, Nick Salazar, and Rosendo Vasquez. WE WILL NOT discourage membership in the above- named Union , or any other labor organization, by reducing hours and pay or otherwise discriminating against our employees in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT interrogate our employees about their union membership , activities , or sympathies in a manner constituting interference , restraint, or coercion within the meaning of Section 8 (a)(1) of the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the excerise of the rights guaranteed to them in Section 7 of the Act. All our employees are free to become and remain or to refrain from becoming or remaining members of the above-named Union or any other union. GULF CONCRETE COMPANY (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 6617 Federal Office Building, 515 Rusk Avenue, Houston, Texas 77002, Telephone 713-228-0611.