Texas Industries, Inc.

TEXAS INDUSTRIES 563 Texas Industries, Inc. and International Union of Operating Engineers, Local 819, AFL-CIO. Case 16-CA-3254 February 18, 1969 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZAGORIA On November 1, 1968, Trial Examiner Sydney S. Asher, Jr., 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. The Trial Examiner further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint, and recommended that those allegations be dismissed. Thereafter, the Respondent and the General Counsel each filed exceptions to the Trial Examiner's Decision and supporting briefs. 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 briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following modifications. The Trial Examiner concluded that the Respondent's disciplinary 1-week layoff of Olan Gasway did not violate Section 8(a)(3) of the Act. Consequently, the Trial Examiner also found that a letter of reprimand, issued to Gasway in conjunction with his layoff, did not violate Section 8(a)(1) of the Act. As more fully set forth in the attached Trial Examiner's Decision, the record reveals that Gasway was an active union protaganist. Shortly after the March 15, 1968, union election victory he began prominently displaying his prounion sentiments. The Trial Examiner found, and we agree, that it was at this time that Respondent became aware of Gasway°s union sympathies. On April 5, Gasway, while at work, received word that his in-laws in Oklahoma were ill. Near the close of his workday Gasway went to foreman J. B. Tate's office and informed him that his in-laws were ill and he could not report to work the next day. Tate did not reply. Gasway then left Tate's office, but returned a short time later. On this occasion Gasway noted that Tate had listed him as working the next day and again stated that he could not report as he had to go to Oklahoma. Tate replied that he was already short of personnel, but he erased Gasway's name from the list. Gasway left and next reported for work on Monday, April 8. On that Monday, Gasway discovered that his timecard had been removed from its usual place. He sought an explanation from Tate and was informed that he was being suspended from work for 1 week. Thereupon, Gasway left. When he reported on the following Monday, Gasway received a letter of reprimand. In essence, the letter stated that his suspension resulted from the fact that Gasway had told Tate he could not report to work on the Saturday in question instead of requesting the time off. The Trial Examiner based his dismissal of the allegations relating to Gasway's suspension primarily upon the testimony of another employee, Leroy Neally. In substance, Neally testified that on March 27 (approximately 2 weeks after the election) he notified Tate in writing that, due to a death in his family, he would not report to work on March 29. Accordingly, he did not report to work on that date and was never reprimanded. Neally further testified that he prominently displayed his union affiliation and, in fact, told the Respondent's management that he was a union adherent. The Trial Examiner reasoned that Neally, a strong union adherent, had not been disciplined for engaging in essentially the same conduct as Gasway - only a short time before Gasway's actions. Thus, the Trial Examiner concluded that the General Counsel had failed to meet his burden of proving that the disciplinary measures taken against Gasway were substantially related to Gasway's support of the Union. We do not agree. The matter of whether Neally was not disciplined for engaging in conduct essentially the same as Gasway's does not dispose of the issue presented by the Respondent's treatment of Gasway. The fact that another union adherent may not have been discriminated against, while it may have some relevance, is not determinative of whether the disciplinary measures taken against Gasway were substantially motivated by his union activities. The record in this case reveals the existence of several instances of interrogation, threats, and the withholding of benefits, which were correctly found by the Trial Examiner to constitute 8(a)(1) violations. In fact, two of these threats were uttered around the time of Gasway's suspension. One of the threats pertained to the fact that, since the Union had won the election, the Respondent would enforce its rules more stringently. That statement was made to an employee by foreman Tate's supervisor and in Tate's presence. The day of Gasway's suspension, as well as on previous occasions, Tate threatened employees with the loss of benefits because of the Union victory. Thus, through the commission of numerous 8(a)(l) violations before and after the election, Respondent has clearly demonstrated its 174 NL RB No. 83 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union animus. In reaching our decision herein, we also find significant an additional factor not noted by the Trial Examiner. In his testimony Tate admitted that he knew Gasway's in-laws in Oklahoma were ill and he had, before the election, granted Gasway time off. Thus, before the Respondent knew of Gasway's union affiliation, he encountered no difficulties in receiving time off to assist his in-laws. Although, on the occasion in question Tate appeared to grant his request, Gasway returned from Oklahoma to find that he was suspended for 1 week and, later, received a letter of reprimand. The disciplinary measures taken against Gasway, whose union sympathies had recently become known to the Respondent, must be viewed in the context of the demonstrated union animus evinced by the Respondent's commission of the numerous 8(a)(1) violations found herein. The strong prima facie case presented by the foregoing is not rebutted by the Respondent assertions that Gasway's suspension and the subsequent letter of reprimand resulted from the manner in which he sought time off. In view of the foregoing and the additional facts that foreman Tate was cognizant of Gasway's predicament, had granted necessary time off before the election, and appeared to do so at this time, we find the Respondent's defense of its disciplinary action herein to be without merit. Accordingly, we find that the Respondent's conduct in issuing Olan Gasway, a letter of reprimand and suspending him from work for 1 week was discriminatorily motivated and therefore in violation of Section 8(a)(1) and (3) of the Act. THE REMEDY Having found that the Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, we shall order the Respondent cease and desist therefrom and take certain affirmative action which we find necessary to remedy and remove the effects of the violation and to effectuate the policies of the Act. We have found that the Respondent unlawfully suspended employee Olan Gasway, thereby causing him to lose 1-week's employment. Therefore, we shall order that the Respondent make him whole for any loss of pay he may have suffered by payment to him of a sum of money equal to that which he normally would have earned during the period of his unlawful suspension less net earnings during said period, together with interest thereon at the rate of 6 percent per annum.' We have also found that, in conjunction with its unlawful suspension, the Respondent also unlawfully issued a letter of reprimand to employee Gasway. Therefore, we shall order that the Respondent rescind the illegal letter of reprimand. ' Isrs Plumbing & Heating Co., 138 NLRB 716. 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, as modified below, and hereby orders that the Respondent, Texas Industries Inc., Tarrant County, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified. 1. Insert the following paragraph as 1(d) of the Recommended Order and reletter the present paragraph 1(d) to 1(e); (d) Discourage membership in the above-named labor organization by discriminatorily suspending any of its employees or by issuing a letter of reprimand in conjunction with such a suspension. 2. Insert the following paragraphs as 2(b), 2(c), and 2(d) in the Recommended Order, and reletter the present paragraphs 2(b) and 2(c) as 2(e) and 2(f): (b) Make whole employee Olan Gasway for any loss of pay which he may have suffered as a result of our discrimination against him, in the manner set forth in the section of the Board's Decision entitled "The Remedy." (c) Rescind the letter of reprimand issued to Olan Gasway in conjunction with his discriminatory suspension. (d) Preserve and, upon request, make available to authorized agents of the Board, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary or useful in computing the backpay due, or determining compliance with any provision hereof. 3. Insert after the third indented paragraph of the notice the following paragraph: WE WILL NOT discourage membership in the above-named union or any other union by discriminatorily suspending any of our employees nor by issuing a letter of reprimand in conjunction with such a suspension. 4. Insert after the fifth indented paragraph of the notice the following paragraphs: , WE WILL make whole Olan Gasway for any loss of pay he may have suffered by reason of the discrimination against him. WE WILL rescind the letter of reprimand issued to Olan Gasway in conjunction with his discriminatory suspension. WE WILL preserve and, upon request, make available to authorized agents of the Board, for examination and copying, our payroll records, personnel records and reports, social security payment records, and all other records necessary or useful in computing the backpay due, or determining compliance with the Board's order herein. TEXAS INDUSTRIES TRIAL EXAMINER'S DECISION SYDNEY S. ASHER, JR., Trial Examiner: On March 27, 1968, International Union of Operating Engineers, Local 819, AFL-CIO, Fort Worth, Texas, herein called the Union, filed charges against Texas Industries, Inc., Arlington, Texas, herein called the Respondent. After the filing of two amended charges, the General Counsel of the National Labor Relations Board issued a complaint on May 24, 1968 This alleges that since on or about December 1, 1967, the Respondent has interfered with, restrained, and coerced its employees by certain specified conduct, that since on or about March 1, 1968, it has withdrawn from its employees certain benefits by restricting the use of batch rooms; that since on or about March 15, 1968, it has withheld from its employees waste concrete, that from on or about April 8 to on or about April I5, 1968, it laid off employee Olan Gasway, and that the Respondent engaged in said conduct because its employees joined or assisted the Union or engaged in other concerted activities. It is alleged that this conduct violated Section 8(a)(1) and (3) of the National Labor Realtions Act, as amended (29 U.S.C. Sec 151, et seq.), herein called the Act. Thereafter the Respondent filed an answer admitting that it laid off Gasway from on or about April 8 to on or about April 15, 1968, but denying that it took this action because he joined or assisted the Union or engaged in other union activities. It denied all other conduct alleged, and denied the commission of any unfair labor practices. Upon due notice a hearing was held before me on June 27 and 28, 1968, in Dallas, Texas. All parties were represented and participated fully in the hearing. After the close of the hearing the General Counsel and the Respondent filed briefs. These have been duly considered. Upon the entire record in this case, and from my observation of the witnesses, I make the following. FINDINGS OF FACT The complaint alleges, the answer admits, and it is found that the Respondent is, and at all material times has been, an employer engaged in commerce as defined in the Act, and its operations meet the Board's jurisdictional standards;' and that the Union is and at all material times has been, a labor organization as defined in the Act. A. The Setting The Respondent's facilities in Tarrant County, Texas, include a number of ready-mix plants. In mid-December 1967 the Union began to organize the employees in these plants. On January 3, 1968, the Union filed with the Board a petition seeking to represent the Respondent's production and maintenance employees in Tarrant County, including, among others, all truckdrivers employed at the Tarrant County ready-mix plants (Case 16-RC-4816). On February 21,2 the Regional Director issued a Decision and Direction of Election. The election 'The Respondent is, and at all material times has been, a Delaware corporation with its principal office and place of business in Dallas, Texas, and other facilities in the States of Texas, Louisiana, and Oklahoma, where it manufactures, sells, and distributes building materials , including ready-mix concrete, masonry products, structual concrete, and related products. During the 12 months prior to May 24, 1968, the Respondent's total sales exceeded $500,000, and products valued at more than $50,000 were shipped from its Texas facilities directly to destinations outside the State of Texas. 565 was held on March 15 and resulted in a victory for the Union. On May 20 (after the filing of the charges herein) the Regional Director certified the Union as the exclusive bargaining representative of the employees in the unit.' This case is concerned with employees within the unit, and with events which occurred in the months immediately before the election and the months immediately afterward. B. Interference, Restraint, and Coercion 1. Interrogation a. Contentions of the parties The complaint alleges that on or about March 1 and again on or about March 12 R. P McDaniels, a supervisor and agent of the Respondent, interrogated the Respondent's employees "concerning their union membership, activities, and desires." It further alleges that Jack McKee, another supervisor and agent of the Respondent, engaged in similar conduct on or about March 12. The answer admits the supervisory status and agency of McDaniels and McKee, but denies that they engaged in activity violative of the Act. b. By McDaniels Approximately 2 weeks before the election of March 15 truckdrivers Hubert B. Cole and Clyde Underwood were at Plant 13 when McDaniels, fleet superintendent of the Respondent's North Central Texas Concrete Division, came in. After some preliminary conversation, McDaniels asked the drivers "how [they] thought the election was going to come out." Cole replied: "I think it is going to come out all right." McDaniels remarked: "Well, now, if you wanted to work for a Union place why didn't you go somewhere else and go to work? I think it is a conniving deal that you came back over here and go to work4 and push the Union like you have. Have you come back to organize and start the Union?" Cole replied: "No, sir, the Union was already started when I came back," adding that he was sorry McDaniel felt that way about it., The remainder of the conversation is described hereafter. I conclude that by asking Cole if he had returned to the Respondent's plant to organize the Union, coupled with the intimation that if he wanted the Union he should work elsewhere6 - especially in the context of other unfair labor practices found hereafter - McDaniels illegally interrogated Cole in violation of Section 8(a)(1) of the Act. On March 13 or 14 McDaniels spoke to truckdriver Eamon Willis Behrens at the Arlington plant. McDaniels asked 'Behrens how he was going to vote in the forthcoming election. Behrens replied that he "was going for the Union this time." McDaniels remarked: "I hope you see to vote right."' That was the end of the 'All dates hereafter refer to the year 1968 unless otherwise noted. 'These findings are based on the record in Case 16-RC-4816, of which I take official notice. The procedural steps leading up to the certification, and those following the certification , are set forth in more detail in the Trial Examiner's Decision in Case 16-CA-3365 (TXD-568-68, issued September 25, 1968). 'Cole had previously quit, but had returned to the Respondent 's employ in January 'These findings are based upon Cole's testimony, substantially corroborated by that of McDaniels Underwood did not testify "Compare Stewart & Stevenson Services, Inc., 164 NLRB No 100. 'These findings are based upon a synthesis of the testimony of both 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conversation . By inquiring how Behrens intended to vote, in the context of other contempraneous unfair labor practices , McDaniels engaged in illegal interrogation violative of Section 8(a)(1) of the Act.' c. By McKee A day or two before the election Jack McKee, batch plant foreman of the Respondent, had a conversation with E. G. Rooke, a truckdriver in the Respondents' employ, as follows: McKee: What do you think about how the election is going to go? Rooke: I believe it will go to the Union this time. McKee: What makes you think it will go Union? Has the company ever done anything against you or anything? Rooke. No. I agree with the General Counsel that this constituted an additional "incident of interrogation violative of Section 8(a)(1) of the Act."9 2. Threats a. Contentions of the parties The complaint alleges that McDaniels on or about March 1 and April 8 orally threatened the Respondent's employees "with discharge or other reprisals if they .. . gave any assistance or support to" the Union, and that on or about March 13 J. B. Tate, another supervisor and agent of the Respondent, engaged in similar conduct. The answer admits the agency and supervisory status of McDaniel and Tate, but denies the alleged conduct. b. By McDaniels The first part of the March 1 conversation between McDaniels and drivers Cole and Underwood has already been related. According to Cole, after Cole had stated that the Union was already started when he returned to work, and he was sorry that McDaniels "felt that way about it," McDaniels asked: "Do you know how long it would take us to lay you off?" When Cole replied: "No, sir," McDaniels stated: "Two days." Cole then remarked: "You are talking about now," to which McDaniels responded: "No, I am talking about if the Union comes in." McDaniels, while substantially corroborating Cole's version of the previous part of the conversation, flatly denied making this statement regarding layoff. Underwood did not testify. '" I credit Cole's version. Accordingly, it is concluded that upon the occasion in question McDaniels threatened to lay off Cole if Cole persisted in supporting the Union. participants When the testimony conflicts , I credit that of Behrens as more accurate than that of McDaniels. 'Webb Tractor and Equipment Company, 167 NLRB No 46, Brandenburg Telephone Company, 164 NLRB No. 26; and Marsh Supermarkets, Inc., 140 NLRB 899, 901, enfd as modified 327 F 2d 109, 112 (C A 7), cert. denied 377 U.S. 944. 'Springfield Garment Manufacturing Company, 152 NLRB 1043, 1046. "Cole testified that Underwood left before the conversation was completed; McDaniels that Underwood was present to the end I do not deem it necessary to resolve this conflict . The Respondent points out in its brief "General Counsel did not call this `fellow employee' in rebuttal," and apparently contends that this creates an inference that Cole was untruthful The short answer is that the Respondent did not call Underwood, either As Underwood was equally available to each side, yet On about April 8 (after the filing of charges herein) J. B. Tate, truck foreman at the Longwood plant (in Tarrant County) in his office, asked truckdriver Gene Paul McLemore "how come [McLemore] had stopped so many times." McLemore explained his stops, left Tate's office briefly, and returned to find McDaniels had joined Tate. According to McLemore's undenied testimony, which I credit: I asked him [McDaniels] why they wanted to know how many times I had stopped ... And he [McDaniels] said because they were keeping a record of it. I asked him why they started doing this when they had never done it before the election, and ... Mr. McDaniels told me we didn't like the way the company was running things and we voted the Union in so they were going to enforce the rules strictly . I kept asking him why they had started doing all this stuff since the election when they had never said nothing about it before, and he said that the rules had been there all the time, the Union didn't have anything to do with it. By warning employees that company rules which "had been there all the time" were going to be enforced "strictly" because the employees had "voted the Union in," McDaniels threatened the employees with more stringent working conditions in reprisal for their support of the Union It is found that this conduct was coercive, in violation of Section 8(a)(1) of the Act." c. By Tate According to Behrens' testimony, on about March 13 he was standing near a gasoline pump discussing the Union with Mr. Rock, an employee of the Respondent who filled the trucks with gasoline (not to be confused with truckdriver E. G. Rooke). Tate approached them and, after a preliminary remark, stated: "Boys, if it does go Union, the man said there would possibly be some new faces."" The employees did not reply and Tate left. Behrens also testified that "the man" referred to McDaniels. Herman Roy Holbrook, a truckdriver in the Respondent's employ, testified that Tate refers to McDaniels as "the man." Tate flatly denied he had ever told Behrens that if the Union came in the man said there would be some new faces, but did not relate his version of the March 13 conversation with Behrens and Rock. When asked if he had ever used the expression "the man" when talking to employees, Tate answered: "I don't believe so," then added: "I may have." Rock did not testify." In view of Tate's failure to describe his recollection of his talk with Behrens and Rock, and my observation of Behrens and Tate while testifying, I credit Behrens' version. It is therefore found that on about March 13 Tate threatened Behrens and Rock with possible replacement should the Union be successful in the forthcoming election. This was a potent form of coercion. It is concluded that the Respondent thereby violated Section 8(a)(1) of the Act. neither called him, no inference is justified one way or the other "Hoffman-Taff, Inc., 135 NLRB 1319, 1325. "On direct examination, Behrens used the word "will" instead of "would possibly" the latter being taken from his testimony on cross-examination I do not deem the difference to be substantially significant. "The Respondent states in its brief. "the General Counsel had the means at hand to corroborate his witness' s [Behrens'] testimony by that of a fellow employee, Mr. Rock. He did not choose to do so." But neither did the Respondent choose to call Rock to corroborate Tate' s testimony. I accordingly decline to draw any inference based upon the failure of both TEXAS INDUSTRIES 3. Letters of reprimand a. Contentions of the parties The complaint alleges that on or about March 29 McDaniels "issued . . . letters of reprimand to certain of [the Respondent's] employees . . . in reprisal for and to discourage their activities . . on behalf of the Union." It is also alleged that Tate engaged in similar conduct on about March 20 and April 5 The answer admits that McDaniels and Tate are, and have been, supervisors and agents of the Respondent, but denies that they engaged in the alleged conduct DESCRIPTION OF EVENT AND DISCUSSION What was it about? Who was present? Show date, time, place, what was said and done. 567 Mr. Holbrook was in the batch room when he didn't have any business in there. He had been told to stay out of the batch rooms unless on official business . And also there is a notice of this on the bulletin board. Mr. R. P. McDaniel [sic] was at the Rdiglea Friday 2/16/68 on or about 10:30 a.m. and Mr. Holbrook was in the batch room. And Mr. McDaniel [sic] warned him about being in there. b Background In 1962 Wendell P. Logan, the Respondent's vice-president for personnel, originated a form headed "Record of Special Contact," to be used as a record when a supervisor contacted an employee by instructions, warning, or reprimand. It is to be made out in- triplicate: the original for the central personnel office, the first copy for the department manager, and the second copy for the employee concerned. The procedure recommended by Logan (but apparently not always followed) is that the involved employee is asked to sign the original. Since its inception, the form has been used in Tarrant County 30 times for reprimand; in 6 instances the employee signed the original 14 During the same period, 44 such written reprimands were made up for employees of the Respondent in neighboring Dallas County. c. By McDaniels On February 16," Holbrook had been in the batch room of the Ridglea plant for 7 to 10 minutes, using the telephone. McDaniels and McKee entered. McDamels told Holbrook: "You know, Roy, the rule is to stay out of the batch room. This is a warning. You are supposed to stay out. You read the notice.' 116 A few days later Tate handed Holbrook a form which read: RECORD OF SPECIAL CONTACT NAME H . R. Holbrook EMPLOYEE NO. 1426 LOCATION Ridglea Plant DATE 2/ 1 6/68_ parties to call Rock "In Tarrant County four such written reprimands were made out in 1967, none of which were signed by the employee. In the first half of 1968, there were eight such reprimands issued, of which five were signed by the employee "Holbrook testified that the incident occurred "possibly three or four days" before the election held March 15. McDaniels testified that it took place on February 16. The written reprimand is dated February 16 and therefore supports McDaniels' testimony as to the date , which I credit This does not mean, however, that there was a fatal variance between the date alleged and the date proven Haynes Stelhte Company, Division of Union Carbide Corporation , 136 NLRB 95, 98, enforcement denied 310 F 2d 844 (C.A 6). "These findings are based upon McDaniels' credited testimony, corroborated in substantial measure by that of Holbrook. Contact by J. B. Tate Date 2/16/68 Concur Tate asked Holbrook to sign it. Holbrook complied, explaining that he had been using the telephone in the batch room and "had heard several state that you still could use the telephone in the batch rooms." Tate replied that "he didn't know about that. That the man said for him to give [Holbrook] that letter and have [Holbrook] sign it." In determining whether the issuance of the letter of reprimand to Holbrook at the time and under the circumstances in which it occurred was illegally motivated, several factors stand out. The form itself had been initiated and was in use long before the advent of the Union; the form was used not only in Tarrant County but also in Dallas County where there was no union activity; the rule which Holbrook was accused of violating was well publicized and was valid, as hereafter described; and Holbrook admitted that he had violated it. Moreover, there is no showing that Holbrook was a union adherent, or that the Union was mentioned in connection with the incident. Accordingly, I find that the General Counsel has failed to produce any convincing evidence linking the issuance of the letter to union activities, or otherwise indicating its discriminatory nature." d. By Tate On about March 25 Cole drove his truck to the Arlington shop, then left to dump waste concrete. While doing so he ran out of gas and had to walk back to the shop to get more. This delay caused him to be late reporting at the Longwood shop. About 2 days later Tate stated to Cole that McDaniels had seen Cole at Arlington "and the time [Cole] checked out was too long a time " A day or so later McDaniels asked Cole about the same situation, and Cole explained his predicament. In Cole's presence, McDaniels told Tate: "Make a note of this. If it happens again we will have to lay him off." On March 28 Cole received a written reprimand which read: RECORD OF SPECIAL CONTACT NAME H. B. Cole EMPLOYEE NO 3054 LOCATION 3601 Lawnwood (sic) St. Fort Worth Tex. DATE 3 28 68 "Wellington Mills Division West Point Manufacturing Company, 141 NLRB 819, 831-2, enfd. in part 330 F.2d 579 (C.A 4), cert. denied 379 U.S. 882 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DESCRIPTION OF EVENT AND DISCUSSION What was it about? Who was present? Show date, time, place, what was said and done. MR. HUEY: Not only were they not required to sign them, but it would not be our position the numbers increased too. In his brief the General Counsel similarly states- To [sic] much time from Arlington Tex. to Shop. On the 3/25/68 Mi. R P. McDaniels saw this Driver at 5:10 p.m. and he did not arrive at Shop an [sic] punch out untill [sic] 19:00 p.m. Mr. McDaniel (sic) warned him if he caught him taking to [sic] much time again he would lay him off. Contact by J. B. Tate Date 3/28/68 Concur It does not appear that Cole was asked to sign the letter. Cole admitted on cross-examination that on the occasion in question he had stopped for a cup of coffee. But even assuming, without deciding, that the reprimand might have been harsh or even unjustified, it does not necessarily follow that the Act has been violated. Bearing in mind the General Counsel's burden of proof, while the matter is not entirely free from doubt, I find that the record is insufficient to justify a conclusion that Cole's written reprimand was discriminatorily motivated. The third letter of reprimand referred to in the complaint was issued by Tate to truckdriver Olan Gasway on April 8 (after the filing of the charges herein) in connection with a 1-week disciplinary layoff of Gasway, under circumstances described below. As the layoff itself is alleged to have been discriminatory, and the written reprimand forms an integral part of the incident, the entire matter, including the written reprimand, will hereafter be considered together as a single event. d Scope of the issue At the hearing, after all sides had rested, the General Counsel, speaking of written reprimands, stated: It is our contention ... [the Respondent] started issuing the forms after the Union came in and they increased in number . . . . we contend when the Union came in the [Respondent] started enforcing the rules more strictly .. . and that this is shared [sic] . . . in the increase in the number of reprimand letters ... it would be our further contention that there was no showing here that the employees were issued these letters prior to the Union coming in, but each of our men testified they were called in and talked to and given a copy of the reprimand letter and asked to sign it after the Union came in. The following colloquy ensued: TRIAL EXAMINER: . . . YOU and different procedure. MR. HuEY: Yes, sir. are saying this was a new * * TRIAL EXAMINER: I thought you [sic] position was these printed forms were never used until the Union came in. MR. HUEY: Let me say our position has changed and progressed. TRIAL EXAMINER: . You are saying people were not required to sign it before the Union came in. Respondent violated Section 8(a)(1) of the Act by its actions, after the advent of the Union, whereby it initiated a new procedure with respect to the issuance of such reprimand letters and whereby it substantially increased the issuance of such reprimand letters . Respondent changed its practice after the advent of the Union by requiring its employees to sign their reprimand letters. In short, the General Counsel now seeks to enlarge the matters at issue beyond the three specific reprimand letters to which the complaint is confined. And his intention to do so was first clearly enunciated at the close of the hearing, after all parties had rested. The Respondent contends in its brief that "the General Counsel is necessarily tied to the allegation in his Complaint." I agree. In my opinion, the belated attempt to expand the issues failed to provide the Respondent with timely and adequate notice of the nature of the charges against it. I conclude that the alleged discriminatory nature of the increase in the number of written warnings and the change in procedure (requesting the employee to sign) were not encompassed within the allegations of the complaint, were not fully litigated at the hearing, and are not properly before me for decision. C. Restricting the Use of Batch Rooms 1. Facts All the Respondent's ready-mix plants contain batch rooms about 8 feet by 10 feet in size, which are the work stations for employees known as batch men. Each such batch room is equipped with a telephone Often in the past truckdrivers awaiting loading of their trucks or further orders had spent this time in the batch rooms. In November 1967 a notice was posted on the bulletin board in various ready-mix plants which read. DATE: November 2, 1967 TO: All Ready-Mix Drivers and Batch Plant City: Personnel-Dallas and Tarrant County FROM: C. C. Spraggins City: SUBJECT: Batch Plant Procedure CARBONS TO: R. P. McDaniel (sic) Bob Foley In order to avoid congestion and overcrowding in the concrete plant batch houses, which at times have caused TEXAS INDUSTRIES problems, it is necessary that all truck drivers stay out of the batch houses and wait for loading in their trucks or in the truck drivers waiting room. The only exception will be for the drivers in the hole, waiting next in line for loading, and for the drivers required in the batch houses for business; such as, picking up tickets or telephone calls. To assure good communication between the Distribution Department personnel and the batch plant operators, it is necessary that the batchmen stay out of the truck drivers waiting rooms and stay in their immediate work area at all times. All drivers and batchmen are requested to follow this procedure immediately. /s/ C. C Spraggins C. C. Spraggins In addition, around December 1967,18 a handwritten notice signed by Tate was posted over the timeclock in at least one plant. It read: "All drivers are requested to stay out of the batch room unless on official business."" Despite these notices, some truckdrivers continued to go into the batch rooms while waiting for their trucks to be loaded. As mentioned above, on February 16 Holbrook spent firom 7 to 10 minutes in the batch room of the Ridglea plant, and this was observed by management. Holbrook was orally reprimanded and warned on the spot, and soon thereafter issued a letter of reprimand. 2. Contentions of the parties The complaint alleges and the answer denies that since on or about March 1 the Respondent "withdrew from its employees certain privileges and benefits by promulgating and maintaining a rule restricting the use of the batch rooms,"' because the "employees joined or assisted the Union or engaged in other . . . concerted activities." In his brief the General Counsel contends that "the . . . rule was not enforced until after the advent of the Union and it was done . at that time to interfere with, restrain, and coerce [the] employees." Speaking of Holbrook's violation of the rule, the General Counsel urges that this incident "presented" McDaniels with an "opportunity" to "penalize Respondent's employees by withdrawing a privilege from them which they had formerly enjoyed in an attempt to discourage their membership in the Union." The Respondent in its brief argues that the restriction upon the use of batch rooms was a "rune of necessity" promulgated for sound business reasons, "long before the union organizing activities began," and that in any event 'the General Counsel totally failed to show that it was a benefit' to the drivers" to be allowed to use the batch rooms. 3. Conclusions With reference to the allegation that the rule restricting the use of the batch rooms was promulgated on or about March Il for discriminatory reasons, this is without factual "The funding that the second notice was posted "around December" is based on McDaniels' testimony Holbrook placed it as occurring "somewhere about the time we had our Union election" I credit McDaniels ' testimony as more precise and accurate on this point than that of Holbrook. "McDaniels also testified that about this time at a monthly safety meeting the truck supervisor announced to the drivers that they should "stop going in the batch room" But as this testimony was vague as to date and was hearsay, I base no finding thereon 569 foundation. The record shows clearly that the rule was adopted at least as early as November 1967 - before the Union appeared on the scene.20 Moreover, on its face the notice of November 2, 1967, applied equally to facilities in Dallas County, where there was no union activity. In addition, the batch men are key employees. Clyde C. Spraggins, an official of the Respondent who signed the notice of November 2, 1967, testified that "anything that tends to take away their attention from their job can be very costly." According to McDaniels' undenied testimony: There was so many complaints from the batch men that they were being annoyed and could not keep their mind on their business . . . There was too much confusion in the batch room, We had numerous complaints on that. In order to relieve this situation, the Respondent in mid-1966 "started a real dedicated program" of installing a drivers' waiting room in each batch plant." This project was completed, for all practical purposes, by either July or early November 1967. Therefore the notice of November 2 was posted between completion of the drivers' waiting rooms and the advent of the Union. I am convinced, and find, that the restriction on drivers' use of batch rooms had its genesis in a sound business need, and was not motivated by the drivers' union activities. We turn, then, to the rule' s implementation . It is true that Holbrook's reprimand and warning, described above, occurred after the Union's appearance. And it apparenuy was the only time sanctions were invoked against an individual worker who violated the rule.22 The reason for this may well be that the record reveals no other incident in which a driver was apprehended violating the rule.23 I conclude that there is nothing in the evidence to justify an inference that, absent the Union, the rule would have been enforced or maintained any differently. It follows, and I find, that the General Counsel has failed to establish that the restriction on the use of batch rooms was maintained in substantial part because of the truckdrivers' union activities. 24 D. Withholding Waste Concrete and Sand 1. Background The Respondent's mixer trucks transport concrete in a "Indeed Holbrook, a witness for the General Counsel, testified that the rule was first promulgated "several years ago," that is , more than 6 months before service of the charges herein. However, I need not and do not, decide whether the rule was in existence prior to November 1967. "These have no telephones, However, drivers may use the telephones in the batch rooms "for business purposes and emergencies." "Behrens, a truckdriver, testified that in about September 1967 he was told drivers "were not to go into the batch plants unless on official business" - an admonition which he heeded thereafter . Behrens received this communication from Mr. Louis, batch man at the Arlington plant. The incident is mentioned in the Respondent's brief Clearly, this was a discussion between two rank-and-file employees at which no supervisor was present and therefore is immaterial "Olan Gasway, a truckdriver, testified that prior to the election the drivers were "in and out of the batch rooms quite a bit," but that they "have not been allowed in the batch rooms since the election " Leroy Neatly, another truckdriver, testified that drivers went into batch rooms "until recently." The testimony of neither demonstrates, however, that after November 1967 violations , when they did occur, came to the attention of any supervisor. "In this posture of the case, I do not reach the Respondent's additional defense that the use of the batch rooms by the drivers did not constitute a "privilege" or "benefit," as those words are used in the complaint. Compare American Freightways Co, Inc, 124 NLRB 146, 147. 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD semi-liquid form from the Respondent's facilities to jobsites where it is poured. At times there is concrete left over after the completion of the pouring, or at the close of the workday If allowed to remain in the truck too long, it will harden, causing difficulties. Accordingly, all leftover concrete is removed from the truck (often dumped at a designated spot) and the truck is washed out before the driver punches out at the end of the workday. For years, with some exceptions, the Respondent has permitted its employees to transport this excess concrete, in the Respondent's trucks, to their homes for their personal use, without cost.23 This was of value to the employees.26 The last time this benefit was granted, so far as the record shows, was "about a week before the elections" when McLemore, with Tate's permission, took home three loads of concrete. 2. Facts "Just before the Union election sometime " possibly around March 1 - Rooke asked Tate for some waste sand . " Tate replied : "Since this Union deal, I don't know." Rooke then left 28 On March 18 Holbrook went to Tate's office and asked him for concrete left over on another truck that was due to come in. Tate did not answer, and Holbrook left. Shortly thereafter, Tate called Holbrook to his office and stated that Holbrook "had better not take the concrete home, but the man said he was going to make some other arrangement." 29 On the same date, March 18, Behrens telephoned Tate at his home and requested some waste concrete . According to Behrens' testimony , Tate replied- "the man said for him [Tate ] not to give any more concrete out until this mess was settled.", On about March 25, Cole asked Tate for some waste concrete . Tate replied that "he would have to wait and see." Cole never received the concrete 31 About 3 weeks after the election McLemore asked Tate to let him have some waste concrete . Tate replied that "since the Union election, the Company was not going to let us have any more." McLemore also asked McDaniels, after the election, if the Respondent were going "to stop "'This practice was stopped in 1962 because some employees "were selling concrete, giving it away to other people and not using it for their own use." It was stopped again in 1965 because some employees "got into the contracting business with it " The General Counsel in his brief contends that these were temporary , while the March 1968 change was permanent. I decline to decide whether such a description is warranted ".It was used by employees for driveways, porches, walks, etc , at their own homes "'Waste sand is sand which has been used for sandblasting paint off pots It is normally thrown away after use In the past, Rooke had been allowed to have some for his personal use. "'This finding is based on Rooke's testimony Tate testified that the conversation concerned waste concrete, admitted he turned down Rooke's request, and testified he told Rooke "we were not going to let any more concrete go until we worked out something . because it was getting out of hand " He denied mentioning the Union I credit Rooke 's version as more accurate than that of Tate .This finding is based on Holbrook 's testimony Tate, when questioned about this conversation , responded " I may have said it " "Tate related a somewhat different version of his reply to Behrens According to Tate, "I told Mr Behrens due to the way things are running right now that Mr. McDaniels had requested me to stop concrete from leaving the plants, it was getting out of hand, and some boys were even taking it home without permission to take it " I credit Behrens' testimony as more accurate than that of Tate "'This finding is based on Cole's undenied and credited testimony Tate recalled Cole's request but, when asked what he replied to Cole, answered "I don't exactly remember " letting [the employees] have concrete on account of the election." McDaniels responded that "he didn't know, we would have to wait and see "32 Since these events, waste concrete in Tarrant County has all been dumped 3 Position of the parties The complaint alleges, and the answer denies, that on March 18 and 24 and on April 1 and 8 Tate "orally threatened . to withdraw from its employees their privilege to pick up and utilize surplus or waste concrete and to withhold other benefits if they became or remained members of the Union or gave any assistance or support to it," in violation of Section 8(a)(1) of the Act It is also alleged in the complaint and denied in the answer that since on or about March 15 the Respondent "withheld from its employees surplus or waste concrete," because the employees "joined or assisted the, Union or engaged in other union activity," in violation of Section 8(a)(l) and (3) of the Act. The Respondent, in its brief, maintains that "this . . fair and economic decision" of ceasing to give away waste concrete was based on several factors. 1. "In November of 1967 (before union activity in Tarrant County) . . a new and meaningful policy for all employees in the entire North Texas Region," . (allowing the purchase of all Company products at a large discount) was adopted. This was announced to the employees on December 5, 1967. 2 "In January of 1968, top management gave its approval to the construction of a reclaimer in Tarrant County by which . waste or surplus concrete could be reclaimed for further . . . use"" 3. "In March, Mr. McDaniel (sic) determined that the policy was being abused in that the drivers were taking the concrete home without asking permission from their supervisors, and he had a suspicion that some of the drivers were selling it." 4. Conclusions as to the statements In reply to Rooke's request for waste sand, Tate stated: "Since this Union deal, I don't know." A little later Tate told Behrens that he had been ordered not to give out any more waste concrete to the employees "until this mess was settled." The words "this mess," in the context in which they were uttered, undoubtedly referred to the Union's selection as bargaining agent.3d A third reference tying the change of policy to union activity was Tate's reply to McLemore's request, namely, that "since the Union election, the [Respondent] was not going to let [the employees] have any more" waste concrete By these three remarks, Tate clearly advised the employees that the Respondent was withholding from them benefits previously enjoyed, in retaliation for their selection of the Union as their bargaining agent. Such statements were coercive and violated Section 8(a)(1) of the Act 5. Conclusions as to the withholding of benefits Tate allowed McLemore to take home waste concrete ""The findings regarding these two conversations are based on McLemore ' s undenied testimony "A reclaimer is a machine through which waste concrete is sent It washes out the cement and adds mixtures and re-grains the aggregate The aggregate is recovered and reused 14Wellington Mill Division West Point Manufacturing Company, supra, 835, fn 47 0 TEXAS INDUSTRIES only a week before the election, yet the Monday following the election denied the same privilege to Holbrook and Behrens. The timing gives rise to the presumption that the sudden about face was related to the election results. This presumption becomes a prima facie case of such relationship when we consider the Respondent's union animus (demonstrated by conduct described above) and Tate's remarks to Rooke, Behrens and McLemore. Therefore we turn to the Respondent's three contentions, stated above, to see whether there is a valid defense to the prima facie case of interference which the General Counsel has established. The discount policy announced on December 5, 1967, applied to all employees in the North Texas Region, including both Tarrant and Dallas Counties. It set a standard price for the sale of products (such as masonry products, ready-mix concrete, aggregates, etc.) to employees. But, of course, it referred to dry cement, in bags, not to waste cement in the semi-liquid state. Nor does it on its face appear to cover waste sand. Indeed, it tends to indicate that waste concrete (unless reclaimed, as related below) and waste sand were unsalable and virtually valueless to the Respondent. In any event, I am convinced, and find, that this discount policy announced in December 1967 was unrelated to the abrupt change in the policy concerning waste products which came about approximately 3 months later. I am unable to perceive any relationship between the two matters. So far as the reclaimer is cone rned, one had been in operation in the Dallas area fo l 1/2 years. As a result the drivers in Dallas Count had less opportunity to receive waste concrete free of charge than did the Tarrant County drivers. In January 1968 when the Respondent decided to install a reclaimer in Tarrant County, according to McDaniels' testimony, "we felt we would get repercussions from drivers in. Dallas if we were giving the drivers here in [Tarrant County] the stuff." Therefore, argues the Respondent in its brief, "instead of being discriminatory, the policy (denying waste concrete to Tarrant County drivers) placed all employees in the North Texas region upon an equal basis as regards the . allowance of surplus concrete." I cannot agree. There are gaps in this defense. 1. McDaniels admitted it was possible that some of the waste concrete in Dallas County that did not go into the reclaimer was being taken home by Dallas County drivers. 2. The reclaimer in Tarrant County is not yet in operation. 3. The decision purportedly made in January 1968 (to disallow waste concrete to Tarrant County drivers) was not communicated to Tate until March, and McDaniels' excuse for not being more prompt is unconvincing. Accordingly, it is found that the decision was not made until after the Union began its campaign; 4. McDaniels told 'Tate that the decision was based upon suspected abuse by the drivers. He did not mention that in January it had been decided to install a reclaimer in Tarrant County. 5. Tate's statements to employees mentioned the Union, not the anticipated installation of a reclaimer, and 6. Rooke was denied waste sand, and the reclaimer was apparently used to reclaim concrete. Finally, there is a suggestion in the Respondent's brief that McDaniels "discovered" the privilege was being abused. Clyde C. Spraggins, Production Manager of the North Texas Division of the Respondent, McDaniels' superior, testified about the change of policy regarding waste concrete, but did not mention suspected or known abuse as a factor considered in making the change. McDaniels described the meeting at which it was decided 571 to withhold waste concrete, and the reasons Spraggins gave McDaniels for the change. He testified: TRIAL EXAMINER: I refer to this meeting . in December, 1967, at 1:00 in the afternoon in which Mr. Spraggins gave you certain instructions. Did he say anything at all about the privilege of employees taking back waste concrete, to their home was being abused? THE wrrNESS: In December he did not. We didn't discuss that. We discussed the reclaimer in December. I conclude that the alleged abuse was not discussed between Spraggins and McDaniels, and that it was not a factor in the decision to withhold waste concrete. In sum, I find all the Respondent's defenses flimsy. However, even if, contrary to the above, there had also been valid economic reasons dictating the change, the result would be the same. For one substantial motivating factor was union activity. This is shown by the Respondent's union animus demonstrated in the interrogation and threats described above, the timing of the change, and the remarks of Tate to the employees. I conclude that a substantial motivating factor behind the withholding of this benefit was the Respondent's determination to punish the employees for selecting the Union as their bargaining agent.35 This constitutes a violation of Section 8(a)(1) of the Act. As it would not affect the Order hereafter recommended, I do not find it necessary to determine whether the conduct in question also violated Section 8(a)(3) of the Act.3' E. Gasway's Layoff 1. Facts Olan Gasway has been employed by the Respondent as a truckdriver for about 6 years. He works out of various plants operated by the Respondent in Tarrant County. In December 1967 Gasway "talked to the boys throughout the plant ... most all of them" about the Union, and was the first employee to contact the Union's representatives. He was one of the three most active union protagonists. After the Union's victory in the election, Gasway wore a union decal ("Go Union") on his hard helmet "most all the time" while at work. He also placed AFL-CIO stickers on both bumpers of his car and on the window of his truck, which he drove to and from work each day. On Friday, April 5, Gasway came to work in the morning., At about noon he received word that his father-in-law in Oklahoma was seriously ill and his mother-in-law was also sick. Between 2 and 2:30 p.m. he went to Tate's office and stated: "I have got to be off tomorrow," explaining about the illness in his family. Tate did not reply. Gasway then left Tate's office but returned at 2:30 p.m., when he punched out for the day. At that time he called Tate's attention to the fact that Tate had put his truck number on a list of trucks to work the next day, Saturday. Gasway stated: "I can't work tomorrow, I'm going to Oklahoma." Tate responded "that he was short two trucks and needed all he could get." Tate then erased Gasway's truck number from the list.3' Gasway left and did not report for work again until 7 a.m. on Monday, April 8. He found his timecard had been "Hoffman-Taff, Inc, supra "Hudson Transit Lines, Inc, 173 NLRB No. 13, fn. 2. "Tate at first set the time of this April 5 conversation as 5 30 to 6 p in He later testified he could have been mistaken Gasway's timecard shows he punched out much earlier. I conclude that Tate was confused as to the time 57 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "pulled." Accompanied by two or three fellow workers, Gasway went to Tate's office and asked where his card was. Tate responded that he had pulled it Gasway asked: "For how long?" and Tate replied for one week. Gasway answered "Okay" and left. Tate followed him out and said: "Now, Olan, if you think you can come back - " to which Gasway replied: "You said you pulled my timecard, didn't you?" Tate answered affirmatively and both men walked away." Gasway next reported for work on Monday, April 15 Tate called him into the office and handed Gasway a letter which read: RECORD OF SPECIAL CONTACT NAME Mr. 0. 0. Gasway EMPLOYEE NO. 1818 LOCATION 360 Lawnwood St. Fort Worth Tex. DATE-4-8-68 DESCRIPTION OF EVENT AND DISCUSSION What was it about? Who was present" Show date, time, place, what was said and done. Working on Saturday Mr. 0. 0. Gasway and J. B. Tate I received the truck list from the dispatcher on the 4-5-68 which called for all the truck (sic) for Saturday 4-6-68. And I had Mr. Gasway on the list to work at the Arlington plant. And he told me that he could not work that he was going to Oklahoma. Now if Mr. Gasway knew he had to go to Oklahoma Friday afternoon when he got off I am reasonable (sic) sure he knew it Friday morning. Which I think he should have called and made some arrangements to get off or at least ask to get off instead of telling me what he was going to do. So I pulled his card. And Monday Mr. Gasway ask (sic) me if I pulled his card and I told him I did and he wanted to know for how long and I told him for one week. And I tried to tell Mr. Gasway why t pulled his card and he walked out of the office and got in his pickup and left. Contact by J. B. Tate Date 4/8/68 Concur Tate told Gasway he was reasonably sure that when he (Gasway) came to work Friday morning he knew he had to go to Oklahoma Friday night. Gasway replied that he did not know it until late in the morning. Gasway then returned to work, and has been working ever since. He has never been paid for the week during which he was laid off. 2. Positions of the parties The complaint alleges, and the answer denies, that the Respondent violated Section 8(a)(1) of the Act by issuing the above-quoted letter of reprimand to Gasway "to discourage [his] activities and assistance on behalf of the 3"The findings of the Tate-Gasway conversations are based upon a synthesis of the testimony of Tate and Gasway. The testimony of each contains serious errors and I consider neither of them to be a particularly accurate or reliable witness. Union " The complaint further alleges that the Respondent violated Section 8(a)(l) and (3) of the Act by laying Gasway off from on about April 8 to on about April 15 because he "joined or assisted the Union or engaged in other ... concerted activities " In his brief the General Counsel contends that the Respondent harbored animus against the Union; that "Respondent's position in dealing with other employees on matters much more serious than that of Gasway had not resulted in layoffs," that Gasway would not have been laid off "had he not been one of the Union's principal organizers," and that the Respondent "seized on" this incident "in an attempt to justify its unlawful motive." The Respondent, in its answer, admits that it meted out a disciplinary one-week layoff to Gasway, but denies any discriminatory motive. In its brief it argues that "there is absolutely no evidence that . . . any . . . supervisor ever saw or took note" of the pro-union decals on Gasway's helmet, car or truck It adds that "the fact that an employee was engaged in union activity at the time of his suspension, taken alone, is not substantial evidence of a suspension for engaging in union activities . . . the General Counsel has totally failed to prove a violation of Section 8(a)(3) of the Act by ... substantial evidence " 3. Conclusions So far as the Respondent's knowledge of Gasway's union sympathies are concerned, the General Counsel is not always required to prove this factor by direct evidence. From the testimony of Gasway regarding the wearing of union decals it is reasonable to assume, and I find, that the Respondent became aware, shortly after the election, that Gasway was a supporter of the Union. Coupled with the timing of the layoff soon after the Union's election victory, and the Respondent's antagonism toward the Union, suspicions are aroused that Gasway's known prounion sentiments played a substantial part in Tate's decision to discipline Gasway. One fact, however, detracts significantly from the General Counsel's case. The General Counsel produced evidence of other similar instances in which employees had simply told Tate they would be absent, rather than asking his permission, and indeed some had completely failed to mention their planned absence in advance. In some instances the culprit got off "Scot free" but in others he received a disciplinary one-week layoff There does not appear to have beers any particular pattern. Disparate treatment there was, but was it based in substantial measure on union activities? An answer seems to be found in the testimony of truckdriver Leroy Neally, a witness for the General Counsel. On redirect examination, Neally testified that on March 27 he notified Tate in writing that due to the death of Neally's uncle, Neally would not come in to work on March 29; he accordingly did not report for work on March 29 and was never reprimanded. On recross-examination, Neally testified that he wore union decals on his helmet and on his car, and in fact told the Respondent's management that he was a union adherent I am unable to find that the disparate treatment accorded Neally only a few days before Gasman's one-week disciplinary layoff for essentially the same conduct was due to Gasman's known pro-union sympathy, as Neally appears to have been equally known as favorably inclined toward the Union. While the matter is not entirely free from doubt, I conclude that the General Counsel has failed to establish by a preponderance of evidence that the disciplinary measures taken against Gasway early in April TEXAS INDUSTRIES were in substantial part related to his support of the Union." Upon the basis of the above findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Texas Industries, Inc., is, and at all material times has been, an employer within the meaning of Section 2(2) of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union of Operating Engineers, Local 819, AFL-CIO, is, and at all material times has been, a labor organization within the meaning of Section 2(5) of the Act. 3. By interrogating its employees concerning their union activities, threatening its employees with reprisal if they selected a labor organization as their bargaining agent, informing its employees that it was withdrawing benefits previously granted because the employees chose union representation, and withholding from its employees the privilege previously enjoyed by them to take home, free of charge, waste concrete and waste sand, in reprisal for the Union's victory in the election, thereby interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The above-described unfair labor practices tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce, and constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 5. It is not necessary to rule upon the contention that, by withholding from its employees the privilege they previously enjoyed to take home, free of charge, waste concrete and waste sand, the Respondent has engaged in or is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 6. The General Counsel has failed to establish by a preponderance of evidence that, by limiting its drivers' use of its batch rooms for discriminatory reasons, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act, or that the Respondent discriminated against Olan Gasway within the meaning of Section 8(a)(1) or (3) of the Act. THE REMEDY It will be recommended that the Respondent cease and desist from the unfair labor practices found above, or from infringing upon the rights guaranteed to its employees in Section 7 of the Act by any like or related conduct. Affirmatively, it will be recommended that the Respondent forthwith restore to its employees the privilege which they previously enjoyed to take home, free of charge, waste concrete and waste sand. Nothing contained herein shall, however, be construed as prohibiting the Respondent from changing its pre-election policy regarding waste concrete and waste sand for nondiscriminatory reasons, such as the placing in operation of a reclaimer in Tarrant County. Upon the basis of the above findings of fact and conclusions of law, and upon the entire record in this case, "Compare S H. Lynch and Company, Inc., 167 NLRB No 67. I make the following. RECOMMENDED ORDER 573 Texas Industries, Inc., Tarrant County, Texas, its officers, agents, successors, and assigns, shall- 1. Cease and desist from: (a) Interrogating its employees with regard to their union membership, sympathies, or activities, or that of their fellow employees, in a manner constituting interference, restraint, or coercion. (b) Threatening its employees with reprisal if they should aid or support the above-named labor organization, or any other labor organization. (c) Withdrawing or threatening to withdraw any privilege previously granted to its employees in retaliation for their selection of the above-named labor organization, or any other labor organization, as their collective-bargaining agent. (d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Forthwith restore to its employees the privilege they previously enjoyed to take home, free of charge, waste concrete or waste sand. (b) Post at its plants in Tarrant County, Texas, copies of the attached notice marked "Appendix .1140 Copies of said notice, on forms provided by the Regional Director for Region 16, after being duly signed by the Respondent's representative, shall be posted by it 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 these notices are not altered, defaced or covered by any other material. (c) Notify the said Regional Director, in writing, within 20 days from the receipt of this decision, what steps it has taken to comply herewith." IT IS FURTHER RECOMMENDED that the complaint herein be dismissed, insofar as it alleges that the Respondent limited the use of batch rooms for discriminatory reasons, or discriminated against Olan Gasway "Should the Recommended Order be adopted by the Board , the words "the Recommended Order of a Trial Examiner" shall be stricken from the notice, and the words "a Decision and Order" shall be substituted therefor. Should the Board's Order be enforced by a decree of a United States Court of Appeals the words "a Decision and" shall be stricken from the notice and the words "a Decree of the United States Court of Appeals Enforcing an" shall be substituted therefor. "Should this Recommended Order be adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order what steps 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 NOT question our employees about their union membership, sympathies, or activities, or those of 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their fellow employees, in a manner constituting interference, restraint or coercion. WE WILL NOT threaten our employees with reprisal if they support International Union of Operating Engineers, Local 819, AFL-CIO, or any other union. WE WILL NOT withdraw or threaten to withdraw any privilege previously granted to our employees in retaliation for their selection of the above-named union, or any other union, as their bargaining agent. 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, join, or assist any union, to bargain collectively through representatives of their own choosing, or to engage in other mutual aid or protection, or to refrain from such activities. WE WILL immediately restore to our employees the privilege they previously enjoyed to take home waste concrete or waste sand free of charge. Dated By TEXAS INDUSTRIES, INC. (Employer) (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, 8A24 Federal Office Building, 819 Taylor St., Fort Worth, Texas 76102, Telephone 817-334-3921