Carolina Quality Concrete Co.

CAROLINA QUALITY CONCRETE CO. Carolina Quality Concrete Co. and J.C. Michael, Boyd Houck, Joseph Matherly, Ronald Mitchell. Cases 11-CA-4442-1, 11-CA-4442-2, 11-CA-4442-3, and 11-CA-4442-5 September 30, 1971 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On June 22, 1971, Trial Examiner Thomas F. Maher issued his Decision in this 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, the Respondent filed exceptions to the Trial Examiner's Decision with 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 these cases 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 proceeding, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. i ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that Respondent, Carolina Quality Concrete Co., Greens- boro, North Carolina, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. i The Respondent has excepted to certain credibility findings made by the Trial Examiner It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F.2d 362 (C A 3) We have carefully examined the record and find no basis for reversing his findings The Respondent has also excepted to the finding that dispatcher Tuttle is a supervisor We find it unnecessary to reach this issue, since a contrary finding would not alter our ultimate conclusions or require a change in the Remedy or Order TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE 463 THOMAS F. MAHER, Trial Examiner: Upon charges filed on January 11, 1971 by J. C. Michael, Boyd Houck, and Joseph Matherly and on January 20, 1971 by Ronald Mitchell against Carolina Quality Concrete Co., Respon- dent herein, the Regional Director for the Eleventh Region of the National Labor Relations Board, herein called the Board, issued a Complaint on behalf of the General Counsel of the Board on February 26, 1971 alleging violations of Section 8(a)(3) and (1) of the National Labor Relations Act, as amended (29 U.S.C., Sec. 151, et seq.), herein called the Act. In its duly filed Answer Respondent, while admitting certain allegations of the complaint, denied the commission of any unfair labor practice.' Pursuant to notice a trial was held before me in Greensboro, North Carolina, at which all parties were present, represented, and afforded a full opportunity to be heard, present oral argument, and file briefs. A brief was filed with me by Respondent on May 24, 1971. Upon consideration of the entire record, including the brief filed with me, and specifically upon my observation of each witness appearing before me,2 I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. THE NATURE OF THE RESPONDENT'S BUSINESS Carolina Quality Concrete Co., Respondent herein, is a North Carolina corporation engaged in the manufacture and sale of ready-mixed concrete. It owns and operates a plant located in Greensboro, North Carolina, where, during the 12-month period preceding the issuance of the complaint herein, it received products valued in excess of $50,000 directly from outside the State of North Carolina. Upon the foregoing admitted facts it is conceded, and I accordingly conclude and find, that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is admitted and I accordingly conclude and find that Chauffeurs, Teamsters and Helpers Local Union 391, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ISSUES 1. Interrogation of employees and advice to them that i Upon motion of counsel for the General Counsel the Complaint was amended at the trial to include a further allegation of interrogation of employees as interference, restraint, and coercion to which Respondent interposed its denial 2 Cf Bishop and Malco, Inc, 159 NLRB 1159, 1161. 193 NLRB No. 71 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD layoffs were caused by union activities as unlawful interference, restraint, and coercion. 2. Discriminatory nature of employee discharge and layoffs. IV. THE UNFAIR LABOR PRACTICES A. The Respondent's Business Operations The preparation and sale of ready-mixed concrete entails not only a specialized plant operation directed to loading mobile mixers with appropriate ingredients but it also requires a degree of precision and attention to send the correct number of trucks to the appropriate customers with a sufficient quantity of cement to insure a continual flow to the job and a full utilization of the mobile equipment. This is accomplished by a studied scheduling of jobs and a dispatching system utilizing, among other techniques, two- way radio communication. Donald L. Cockerham is vice president of the corpora- tion and, as manager of the concrete division, is responsible for its operation, including the hiring of its drivers. Curtis Laughlin, Jr. is the executive vice president in charge of sales and is the official who appears to be most conversant with the fluctuations of the business and the prospects for future operations in the community. The dispatching of trucks is handled by three dispatchers operating on a modified staggered schedule which requires one dispatcher to open the plant in the early morning and another to close it down at night. Included among the dispatchers is J.C. Tuttle, whose activities bear significance to the subject matter of this case and who, together with other dispatchers, is claimed by Respondent not to possess supervisory authority, an issue before me here. As previously noted, the dispatcher assigns drivers and trucks of specific size to jobs, in rotation, giving due attention to the size of the order to be filled, the driving distance and like factors. Dispatchers have no authority to grant time off to the drivers nor to excuse absences. They do, however, have authority to adjust a driver's timecard to reflect that he was being paid for a lunch period during which he was required to work. Also, according to Cockerham, "in the event that there is no concrete to be hauled, and there are some jobs that need to be done outside, the dispatchers would quite often ask a man to do it, and most generally they help him with it." When pressed to explain the force of a dispatcher's "suggestion" in this respect Cockerham conceded that the work was expected to be done.3 While it does not appear from the testimony that dispatchers generally have authority to grant time off or to hire or recommend hiring Employee Charles Cox credibly testified that Tuttle had given him time off to attend a funeral. And employee Boyd Houck credibly testified that before he was hired Tuttle had asked him if he would be interested in working for Respondent and thereafter got in touch with him to report to work, and upon reporting explained the wage structure to him. Over and above the foregoing record details which clearly 3 Employee J C. Michael credibly testified that Dispatcher Tuttle assigned him such tasks as loading and unloading freight cars and the taking of stock inventory describe authority comparable to that required to meet the statutory standards for supervisor, as described in Section 2(11) of the Act, there is in the record the findings and conclusions in Case 1 I-RC-3270, a representation proceed- ing initiated by a petition filed in February 1971, which concerns the same bargaining unit in which the Union had lost the election in February 1970. At a hearing on this most recent petition, held on February 25, 1971, it was stated in behalf of Respondent as follows: The Company's position is that while these dispatchers may specifically have all the supervisory qualifications as normally used by the Board in determining a supervisor, they act in Mr. Cockerham's absence, they have certain recommending authority which is listened to very carefully, and we consider them more a part of management than a part of the regular employee group. From the operational stand-point we would not want to have them incorporated in a contract covering our general employees. I would agree with the Union's position in their initial position that they should be excluded. Thereafter in the Decision and Direction of Election issued by the Regional Director dispatchers were excluded from the bargaining unit with the specific statement that: The parties also agreed to the exclusion of three dispatchers, apparently on the basis of their functions as supervisors within the meaning of the Act. According to the Employer the dispatchers act in the absence of Vice President Cockerham, make recommendations which are carefully considered, and are regarded as being more a part of management than the regular employee group. Upon the findings I have made based upon the testimony adduced at the trial before me and detailed above, supplemented by the previous findings made by a Regional Director on March 4, 1971 in his Decision and Direction of Election in Case 1 I-RC-3270, as quoted above, I conclude and find that Respondent's dispatchers, including J. C. Tuttle, are supervisors within the meaning of Section 2(11) of the Act.4 B. Union Activity and Respondent's Interest in it Union interest at Respondent's plant prior to the fall of 1970 was not, as we can see from the foregoing, a new phenomenon. An organizing campaign a year earlier had culminated in the filing of the representation petition in Case 11-RC-3059 on February 5, 1970. In the election thereafter conducted the Union lost by a vote of 4 to 16. Following this defeat and in view of the Board's requirement that a new election may not be held for a year thereafter, no organizing activity occurred until mid- December when Employees Boyd Houck, Joseph Matherly, and Ronald Mitchell appeared at the headquarters of the Union and asked R. H. Hogan, the Union's organizer, for union cards with which to sign up the employees at Respondent's plant. Reminding the three employees that the required year had not yet elapsed Hogan suggested that they restrict their organizing efforts to obtaining the names 4 Amalgamated Clothing Workers v N L R.B (Sagamore Shirt Co.), 365 F 2d 898 (C A D C., 1966) CAROLINA QUALITY CONCRETE CO. 465 of interested employees, and they would be signed up later. On or about December 27, 1970, employee Houck returned to Hogan with the list of names Respondent had already expressed an interest in the plans of the Union even before the drivers set about to revive the campaign. As early as March 1970, following the first election, when employee Joseph Matherly was hired, he was asked by an unidentified official6 how he felt about the Union When he replied that he thought it was "pretty good" he was told that if another vote came up he might feel free to vote as he saw fit. In early October, as a number of the drivers were delivering cement to a construction job at the local Sears project, employee J C. Michael and other drivers had occasion to visit briefly with a union official of Michael's acquaintance who happened to be at thejobsite. Upon their return to the plant employee Hanner, who was one of the drivers in the Sears delivery group and had observed the conversation but had not participated in it, asked Michael what the union official had to say Shortly thereafter, prior to leaving for the evening, Michael went into the plant office where he met Vice President Cockerham. Cockerham asked him what the union man had had to say. To which Michael replied that it was a usual conversation and then, seeking to defend himself from what he appears to have viewed as a slight, replied to Cockerham, "If somebody came in and told you I'm an agitator and trying to organize the Union again, they're telling you a G-d--lie " To which Cockerham replied, "They've got to have something to talk about," thus suggesting that such was the import of a conversation with a then otherwise unidentified individual whom I assume to have been Hanner. Sometime thereafter, in mid-December, shortly before the layoff of employees, which will be considered in detail hereafter, employee Hanner was in one of the plant offices when Cockerham came in and asked Hanner "who he thought was nagging the Union on." Hanner told him it was Houck and Mitchell He also told Cockerham that Employee Matherly had a part-time job, a fact that has been conclusively determined elsewhere in the record Cockerham's response to Hanner was for him "to keep listening." 7 D The Reduction of Driver Personnel 1. The discharge of J C Michael Employee J. C. Michael was a driver with 3-1/2 years seniority at the time of his discharge on October 19, 1970. He was the brother of David Michael whose employment as a driver had been terminated 10 months earlier and who had been active in the affairs of the Union in the organizing campaign prior to the first election The reasons for this termination are not in issue in this proceeding. It was Driver J. C. Michael, however, who had been questioned by Cockerham about his conversation with the union repre- sentative a week prior to the events detailed hereafter (supra). 5 The credited testimony of R H Hogan 6 This incident was not alleged in the complaint as a violation of the Act and it is considered at this point only for purposes of background ° I do not credit Cockerham's denials of the conversations attributed to him To fully understand the significance of Michael's discharge it is necessary to recount Vice President Cockerham's version of it. This is not to be misunderstood as reliance upon Cockerham's testimony but rather as an explication of Respondent's motivation in the matter. So, on October 15, in the mid-afternoon, according to Cockerham: I was in the office upstairs looking for some papers, and I noticed out the window that Mr. Michael's truck, which at that time was, I believe, truck No. 80, which he was in the process of washing out, he pulled around to the place where he parked, and from that position I observed him messing with the inspection sticker on the truck. Another truck in the same process of washing out came around, then Mr. Michael got out of his truck, and I went back over to the concrete hatching office. The driver that observed the same thing that I observed came in and called my attention to it. Cockerham identified his informant as driver Dewey Hanner, the same driver who several months later at Cockerham's request, identified the ones "nagging the Union on," and was told to keep listening (supra). Cockerham checked the state inspection sticker on Michael's truck later that same day and found two-thirds of it to have been loose from the window pane.8 Cockerham checked Michael's truck again early the next morning, October 16, and found the sticker intact. He checked the truck for a third time in mid-afternoon after Michael had left and found the sticker missing. On the following workday, Monday, October 19, Cockerham confronted Michael with the fact that the inspection sticker on his truck was missing Michael told him he knew nothing about the sticker and specifically denied having removed one. Then, again according to Cockerham, not being satisfied with Michael's reply he drove him home (Michael was without a car that day) and told him he wanted to think about it. That was Michael's last day at work and it does not appear from Cockerham's testimony how Michael was notified that he was through. Michael was more specific about his termination and, I find, more credible. Thus he testified that after Cockerham confronted him with the sticker loss and they had searched the truck cab for it Cockerham then said, "I am going to have to have another sticker put on there and you can't have it (the truck) today." Whereupon Cockerham took Michael home and told him to call the next day. Michael did so asking Cockerham when he wanted him to come back Cockerham said, "I've decided to leave it like it is," and hung up. Since then Michael has tried on five or six occasions to get a layoff slip from Cockerham but the latter either avoided him or was unable to find the layoff slip which he claimed to have had prepared. And on one occasion when Michael asked if he was being fired or laid off and if he were being accused of tearing off the inspection sticker Cockerham stated he was not so accusing Michael and that he would not give him information on his termination, saying simply, "I don't need you anymore." 8 The significance of the removal of a state vehicle inspection sticker appears to be its resale value for illicit use on a vehicle that could not pass state inspection There is neither evidence nor implication by anyone that Employee Michael was involved in such a practice , and nothing stated herein is to be deemed as suggesting such a charge 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cockerham testified, however, that when Michael asked him for a layoff slip he refused to give it to him, explaining in his testimony that he did not intend to put in writing that he was letting a man go for stealing an inspection sticker, and thus give himself another legal problem - the possibility of a libel suit. When specifically asked at the trial why he had discharged Michael on October 19, Cockerham affirmed that it was because he had illegally removed the sticker from the truck. 2. The layoffs Late in November 1970 a meeting of Respondent's top echelon was held at the home of President Robert Dinkel where the economic conditions of the enterprise were surveyed, the prospects of future business considered, and the decision made to lay off six drivers. Present with President Dinkel were Vice Presidents Cockerham and Laughlin. It was determined that only those who had less than a year's seniority would be considered for layoffs; and there were 12 drivers in this category. Regardless of the selection, it was decided, no announcement would be made until after Christmas. In determining the drivers to be selected for layoff there were, according to Cockerham, a number of factors to be considered . Among these were the family situation of the men, marital 'status, the employees' probability of remain- ing with the Company, care of trucks, driving habits, and attendance record. Upon consideration of the 12 who were in the category of being employed for less than a year, 6 were selected for layoff and notified on December 30, 1970, of their termination . Among these were Boyd Houck, Joseph Matherly, and Ronald Mitchell, as to each of whom it is alleged that the selection for layoff was not for the reasons assigned by Respondent but because of their union membership and activities . An analysis of specific reasons assigned for the selection of each follows: Boyd Houck was the only driver as to whom Respondent raised a specific reason for selection. Thus President Dinkel testified that during July and August 1970 he had frequently observed a driver recklessly driving his truck into and around the plant yard and he became very disturbed at this practice, particularly as the Company's insurance rating was already in jeopardy. In a burst of concern for the safety of the trucks and the men Dinkel asked W.A. Dennison, the Company's official in charge of truck maintenance, to identify the driver for him. Dennison, according to Dinkel, identified Houck to him and told him that Houck had the reputation of a reckless driver.9 And, still in August, Dinkel resolved to rectify the situation. He continued to observe Houck's reckless handling of his truck throughout October and early November and testified that during this same period he was even more conscious of the insurance problems that continued to plague the Company. Finally, when Dinkel met with Cockerham and Laughlin in late November and they were confronted with the necessity of laying off drivers Dinkel insisted that Houck must go. 9 Dennison was called as a witness for Respondent but was not asked to corroborate Dinkel's account of Houck 's driving propensities nor indeed was he questioned about this incident at all Houck credibly denied that he A consideration of the entire record compels me to reject Dinkel's account of the selection of Houck for layoff and Respondent's reliance upon it. Upon my observation of Dinkel I find it incredible that a responsible businessman, admitting to his serious concern for safety and for a tenuous insurance rate, would sit at his desk and observe, with continuing frequency over 4 or 5 months, the reckless driving he attributed to Houck and yet not convey to Houck one word of reprimand or caution; and finally, still without so advising him of the true reason for his selection, include the man on a list of economic layoffs. Because this testimony so defies the reality of the total situation I do not rely upon it in any respect. On the contrary, I have Vice President Cockerham's assertion before me when he urged the economic reasons for layoff that he would not have laid off Houck for driving too fast around the yard. However, I will reserve until elsewhere in my decision further analysis of Houck's layoff as it relates to the other drivers laid off with him. Joseph Matherly was hired on March 9, 1970. When he was laid off on December 30 Cockerham did so by calling him into the office where he explained that they had lost a couple of big jobs and the layoff would be necessary. He went on to say that he understood the men were going to be leaving the Company anyway so that laying them off would not hurt their families. He assured Matherly that he had done a good job. Several days later when Matherly returned to the plant with Houck the latter engaged Cockerham in conversation, asking him why they had been selected. Cockerham simply said to Houck, "Because of lack of driving experience," and turning to Matherly, said, "Truck cleanliness." Matherly had not previously been reprimanded for a lack of truck cleanliness or anything else. According to Cockerham he had had two accidents, one involving damage caused by backing into a customer's driveway and the other being the hitting of a bus from the rear. Matherly credibly denied the backing-up incident, suggesting that it may well have occurred when another driver had been assigned the use of his truck, no. 40. He admitted to the bus accident but the extent of the injuries credibly described by him was considerably less than Cockerham described in the record. In any event the subject of the accident was not pursued by Respondent in its defense and Cockerham conceded that he would not have laid off Matherly for the accident, absent the alleged economic justification in December. Cockerham's concession in this respect is indeed borne out by his later testimony. Thus he admitted that three more senior drivers, Faulkner, Dalton, and Suggs, had had serious accidents, the first two having turned over their trucks and the latter having hit a bus. All three are still employed. Cockerham placed considerable stress upon information he had received to the effect that Matherly was one of the drivers, with Employee Mabe, who had planned to take other employment. Cockerham's sources of information as to the men's expected departure were claimed to be a customer and a secretary in the office, Mrs. Helen Smith. had ever been reprimanded for fast driving or that he had had ever been given the nickname "cowboy," as claimed by Respondent CAROLINA QUALITY CONCRETE CO. 467 The customer was never identified nor his information explicated. Mrs. Smith's account of the intelligence she supplied leaves much to be desired. Thus she recounts Driver Mabe coming into the office on routine business. In the course of a conversation which followed Mabe, she claimed, told her that he and Matherly had been talking about leaving and that on the following Monday they and several other drivers were going to work for the Coca-Cola Bottling Co.10 She made a record notation of all the names but threw it away shortly thereafter and cannot remember who else was mentioned. She reported the conversation to Cockerham the following day, but there is no indication that this report was ever followed up by Cockerham. The fact is that none of the men ever did leave for other jobs regardless of what may or may not have been told Mrs. Smith, and what she may or may not have told Cockerham. Nor did Cockerham ever confront Matherly or the other drivers with the information supposedly supplied him. And finally, Matherly credibly denied ever having any intention to leave, testifying instead that he was then working at a part-time fob. One final consideration of Matherly's situation was his family situation in the light of the criteria that Respondent claims to have used in its selection for layoff. Matherly was married and had four children. Ronald Mitchell was hired as a driver on August 1970 and credibly testified that at that time he inquired if layoffs were contemplated because he had a family to consider. Cockerham replied that "they did not have any layoffs from work, for the fact that there was always something for the drivers to do." Three or four weeks prior to his layoff (and presumably at a time when the layoffs were being considered, supra, Mitchell went to Cockerham to obtain a wage advance. In requesting it Mitchell told Cockerham he "had to have forty hours of work a week to make a living, because I had a wife and three kids." To which Cockerham replied, "Well, as long as you're here I'll see that you get forty hours, I guarantee it." During Mitchell's employment he had a good driving record with no accidents. Mitchell's credited account of his notification of layoff follows: The day of the layoff, Mr. Cockerham, after he named the men, I went up and asked him why, I told him, I said, "Mr. Cockerham, I've got three children, I live from week to week, I don't have any money saved up," and I said, all my bills are due and some of them are past due now. You are putting me in a bind." I said, "Why?" I said, "I worked on Thanksgiving day when you asked me to, I worked on Saturdays when you asked me to I've worked every time you asked me to." And I said, "Why')" And he hung his head down, he said there was some other reasons on it, and he told me he considered the family status of all of them, you know, the same stuff he told the first time, and then he hung his head down and said there were other reasons, and he walked off. There is no dispute that among the drivers with less than a 10 Mahe was not called as a witness year of employment who were not laid off there were men either unmarried or without families. In addition to the foregoing there are facts which apply in common to the three men who were laid off. These are the men who were observed conversing with the union organizer at the Sears job, and Houck and Mitchell were the ones reported by driver Hanner to Cockerham as "nagging on" the Union (supra,). An event of particular significance to the fortunes of Mitchell and Matherly occurred several days before their layoff. The two were seated in the drivers' room awaiting assignment and were engaged in a conversation concerning the Union. As they were talking they heard a distinct click on the speaker element of the plant intercom system, followed by a low humming or buzzing sound. The intercommunication system at the plant involved a master set located on the dispatcher's desk with units in the various other areas of the plant, including the drivers' room. From descriptions supplied by the record it appears that two-way communication can only be initiated in the dispatcher's office at the master unit. The system is activated there by pressing a specific key for the station to be called. This activation of the system then establishes two-way voice communication and listening as well. Thus the key would be pressed, the dispatcher would speak to someone in the drivers' room, for example, and anyone in that room within calling distance of the unit on the wall could hear the dispatcher's voice, could reply from where he was seated, and could be heard in the dispatcher's room. In the operation of this two-way system two features were noted: When the system was activated a click could be heard, indicating that the key switch had been depressed on the master set; and while this system remained activated and the line open, a buzz or similar distinctive background hum could be detected, and voices could be heard over the system. On the occasion noted above, two drivers, Matherly and Mitchell, were, as previously stated, discussing the Union. At a point in their conversation they heard a click on the speaker, an indication to them that someone was about to talk to the drivers' room. The background hum was heard by both of them as they waited for the message that inevitably would follow. Nothing followed. The men then took up their conversation, fully aware that they could be heard at the other end of the line. Matherly spoke up and said, "Well I'm going to vote for it twice. I want them to come in and I'll vote for it twice." Mitchell then contributed, "Well, I'm certainly going to vote for it." At one point Mitchell said to Matherly, "Joe, the speaker's on," to which Matherly replied, "I don't give a damn if it is." Ten or fifteen minutes later the two drivers went into the dispatcher's office where Cockerham and Tuttle were at work. Mitchell, whose account of this incident I have relied upon as it is corroborated by Matherly, credibly testified that on past occasions he had gone into the dispatcher's office and observed Dispatcher Tuttle listening to the conversations of men in the drivers' room.ii As the laid off employees were notified of their him I do not credit Cockerham's denials upon my observation of him as a 1i Tuttle was not called as a witness to refute the conduct attributed to witness. 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD termination on December 30 they were given their final checks. When Employee Houck received his he noted an error and called it to Vice President Laughlin's attention asking him at the time for a layoff slip. Laughlin referred Houck to Cockerham who was then out of the office. Houck, while waiting for Cockerham to return, engaged Tuttle in conversation, asking why he was laid off. Houck's undenied and credited account of Tuttle's reply was: He said, "Well, all I can say is, it comes down to one thing." I said, "What?" He said, "Union " He said, "That's all it can be, it's union activity " 12 Periodic meetings of drivers were held by Respondent. One such meeting was held in January 1971, several days after the December 30 layoffs. On this occasion President Dinkel spoke to the men. He told them they were going to get a raise because they had done better in November and December 1970 than in the same months of the previous year. He told them, however, not to expect the raise until March. 13 Later in February 1971 employee Cox requested a loan of Cockerham, following past company policy. Cockerham suggested that it would be better that he be given an advance on his vacation pay. By way of explaining the reason for this Cockerham said that Vice President Laughlin wanted to check out the whole arrangement with their lawyer, inasmuch as the Union had filed a petition. He continued, "You know all about the Union coming in." When Cox replied that he did Cockerham continued, "Well; that's the reason we let three of the guys go. You know who I'm talking about." He concluded the conversa- tion by adding that it be kept confidential. 14 E Analysis and Conclusions The record abounds in figures, estimates, and computa- tions calculated to establish for the General Counsel that Respondent's 1970-71 business prospects were good, and for the Respondent that they were bad. Whatever conclusions are reached in this respect it is the selection of drivers for layoff and not necessarily the layoff itself that is of primary significance to the allegations of discrimination in this matter. Suffice it to say that out of all this welter of economic data President Dinkel has put the issue to rest by his January 1971 announcement that November and Decem- ber 1970 had been better than the previous year (supra,). I am not, therefore, disposed to belabor Respondent's economic condition at the expense of more basic considera- tions, namely its motive for selecting three known union protagonists for layoff and its earlier discharge of a union adherent on a contrived excuse. Respondent had been quite conscious of the Union. This it has manifested by the interest it showed in its employees' membership and activity. Thus when Matherly was hired he was asked how he felt about the Union.15 When it was learned that employee Michael had been conversing with a 12 Tuttle was not called as a witness 13 The credited testimony of employee Cox who also credibly testified to receiving a considerable amount of overtime during November of 1970 Dinkel did not comment on Houck's testimony when called as a witness in Respondent's behalf 14 Cockerham admits the conversation took place with Cox and that the union organizer at the Sears Job in October, in the company of Houck, Matherly , and others, Cockerham had asked him what the union organizer had to say . This questioning, it is to be noted , preceded the questioning of Hanner by Cockerham, when he learned the names of Houck and Mitchell as those most active in the Union, when he inquired of Hanner as to who he thought was "nagging on" the Union With such a manifestation of interest in the Union it becomes more understandable why employee Michael was discharged for the unexplained loss of a dangling inspection sticker. Michael was the brother of the driver known to be most active in the previous union campaign and who was thereafter discharged . It was Michael whose conversation with the union organizer was noted and questioned . Absent these two facts and Respondent's inordinate interest in union activity the missing sticker incident could simply be catalogued as a pecularity of management . Under the circumstances here, however, it becomes further evidence of union antipathy , inflicting as it does termination for union activity by a contrived means. A review of the facts surrounding Michael's accusation and discharge discloses an exercise in pure fantasy. All that Cockerham saw, and that from a distance, was Michael "messing" with the sticker on his truck windshield and, after twice thereafter observing the sticker in its proper place, found it to be missing . The driver who supposedly reported that Michael was trying to pry it off, Hanner, testified at the hearing and was available for corroboration of the incident. He was never asked about it . The sticker was never located; no one else observed anything untoward; and to cap it all, Michael credibly denied having removed the sticker or knowing anything of its removal. The termination itself was as fantastic as was the accusation . Cockerham never came to the point of telling Michael why he was being terminated ; he was never available when Michael sought to speak to him about it; and he refused to provide Michael a layoff slip stating the reason for the discharge . Finally, when he did give his reason at the trial as being the removal of the inspection sticker, Cockerham stated that he refused to put this in writing for fear of the legal complication of libel. In essence, Cockerham appears to have been fearful and unwilling to give in writing what he would have me or the Board state to be the reason for Michael 's termination. I understand his reluctance , for I too am not disposed to consider the sticker incident to be the reason. On the contrary , upon all the facts and circumstances detailed herein I conclude and find that employee J . C. Michael was not terminated for removing the inspection sticker. I deem this reason to have been contrived by Respondent as a pretext to remove from its employ a driver whose union interest and sentiments were known to it and displeasing This I further conclude and find discriminates against Michael in violation of Section 8(a)(3) of the Act and interfers with , restrains, and coerces him and his fellow vacation pay advance was checked with their attorney because of the pendency of the Union's petition He denied that he made any reference to the layoff of the three drivers I do not credit this denial 11 This incident has been cited only to establish a background for what I find to be antipathy towards the Union (supra) CAROLINA QUALITY CONCRETE CO. 469 employees in the exercise of their statutory rights in violation of Section 8(a)(1) The pattern which Respondent followed in eliminating Houck, Mitchell, and Matherly is equally evident. At the outset, in the face of President Dinkel's comment upon the profitable business period just past, it is not necessary to consider whether these three men's layoffs were economi- cally motivated, even in part. Of the 12 available for layoff, their respective selections and the reasons advanced for them cannot withstand the test of candor. Here we have criterion which favored the retention of family men and two fathers of children are selected; the criterion of accident records is cited and Suggs, Dalton, and Faulkner, all with accident records, are retained over Matherly who denied one reported accident and credibly minimized the other; the criterion of retaining men who plan to stay with the Company and letting Matherly and Mitchell go without even verifying the alleged rumor that they were taking other employment, a rumor scotched by their continuance on the job long after they were reported to be leaving. And finally the criterion of a poor driving record as it applies to Houck, when he was supposedly observed driving in reckless fashion over a period of five months and laid off. This man, never told of his fault, was laid off 4 days after it was learned that he was one of those "nagging on" the Union. Finally, added to the inconsistencies noted above we must consider the highly suspicious use of the plant's intercom system to monitor the drivers' union conversa- tions several days before their layoff; an incident which corroborates the credited testimony which quotes dispatch- er J. C. Tuttle and Vice President Cockerham as stating that these men were laid off because of the Union. Upon the foregoing circumstances and inconsistencies and upon Cockerham's and Tuttle's quoted remarks I conclude and find that Boyd Houck, Joseph Matherly, and Ronald Mitchell were each selected for layoff because of their union membership and activity, thereby discriminat- ing against them in violation of Section 8(a)(3) of the Act and interfering with, restraining, and coercing them and their fellow employees in the exercise of their statutory rights in violation of Section 8(a)(1). Independently, I conclude and find that by the interrogation of employees by Cockerham and Tuttle enumerated above and by their respective statements to employees that Houck, Mitchell, and Matherly were laid off because of the Union Respondent thereby additionally interfered with, restrained, and coerced its employees in violation of Section 8(a)(1) of the Act. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section IV, above, occurring in connection with its business operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes i6 Isis Plumbing & Heating Co, 138 NLRB 716 'r In the event no exceptions are filed as provided by Section 10246 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , and Recommended Order herein shall, as provided burdening and obstructing commerce and the free flow of commerce. VI. THE REMEDY It has been found that Respondent has violated the Act in several respects. I will accordingly recommend that an order issue requiring it to cease and desist therefrom; and because the nature of the unfair labor practices committed here are of such gravity as to present a threat of future violations of the Act I shall recommend that Respondent cease and desist from in any other manner interfering with, restraining, or coercing its employees in the exercise of their statutory rights. Affirmatively I shall recommend that Respondent offer employment to J. C. Michael, Boyd Houck, Joseph Matherly, and Ronald Mitchell with backpay to each of them from the date upon which their respective employment was terminated, such backpay to be computed in the customary manner with interest at the rate of 6 percent per annum,16 and that it post appropriate notice of compliance with such order as the Board issue. Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby issue the following recommended: 17 ORDER Carolina Quality Concrete Co., its officers, agents, successors, and assigns shall: 1. Cease and desist from: (a) Unlawfully interrogating its employees concerning their union membership, sentiment, and activity. (b) Discouraging membership in Chauffeurs, Teamsters and Helpers Local Union 391, affiliated with the Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, or any other labor organization by terminating the employment of its employees and thereafter failing and refusing to reinstate them because they engaged in concerted union activities and by stating to its employees that the termination of employment was for such purposes. (c) In any other manner interfering with, restraining, or coercing its employees or unlawfully discriminating against them in the exercise of rights guaranteed them by Section 7 of the Act. 2 Take the following affirmative action which it is deemed will effectuate the policies of the Act: (a) Offer reinstatement to J. C. Michael, Boyd Houck, Joseph Matherly, and Ronald Mitchell whom it terminated and thereafter failed and refused to reinstate , dismissing, if necessary, individuals hired since the date of their respective terminations. (b) Make whole the aforesaid employees in the manner set forth in "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, in Section 102 48 of the Rules and Regulations be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waive for all purposes 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this order. (d) Notify immediately the above-named employees, if presently serving in the Armed Forces of the United States, of their right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. (e) Post at its Greensboro, North Carolina, facility the notice attached hereto as "Appendix " 18 Copies of said notice, on forms provided by the Regional Director for Region I I shall, after being duly signed by the Respondent, be posted immediately upon receipt thereof in conspicuous places and will be maintained for a period of 60 consecutive days. Reasonable steps shall be taken to insure that said notices are not altered, defaced or covered by any other material. (f) Notify the said Regional Director in writing, within 20 days from the receipt of the Trial Examiner's Decision, what steps it has taken to comply herewith.19 18 In the event that the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board." 19 In the event that this recommended Order is approved by the Board after exceptions have been filed, this provision shall be modified to read. "Notify the Regional Director for Region 11, in writing within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in Chauffeurs, Teamsters, and Helpers Local Union 391, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America or any other labor organization by discharging or laying off employees or thereafter failing or refusing to reinstate them because they engaged in union or concerted activities, or by stating to our other employees that employees had been laid off for such reasons. WE WILL NOT question you concerning your membership, activities , or sentiments concerning the aforementioned Union or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of your rights guaranteed by the National Labor Relations Act. WE WILL offer reinstatement to J. C. Michael, Boyd Houck, Joseph Matherly, and Ronald Mitchell to their former or substantially equivalent jobs, dismissing, if necessary, any employee hired since the date of their respective terminations. WE WILL make whole J. C. Michael, Boyd Houck, Joseph Matherly, and Ronald Mitchell for any loss of pay incurred by them since the date of their termina- tion. All of you, our employees, are free to remain, or become, to withdraw from, or refrain from becoming, members of Chauffeurs, Teamsters, Helpers Local Union 391, affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, or any other labor organization. Dated By CAROLINA QUALITY COMPANY (Employer) (Representative ) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, 1624 Wachovia Building, 301 North Main Street, Winston- Salem, North Carolina, Telephone 919-732-2300.