Crockett-Bradley Inc.

CROCKETT-BRADLEY INC. 435 Crockett-Bradley Inc.; Concrete Sciences , Inc.; C B Materials, Inc.; and R. E. Holton, Inc. and Team- sters Union Local 769, affiliated with International Brotherhood of Teamsters , Chauffeurs, Warehouse- men and Helpers of America . Case 12-CA-5955 July 15, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On October 31, 1973, Administrative Law Judge Jennie M. Sarrica issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt her recommended Order.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge as modified, and hereby orders that the Respondent, Crockett- Bradley, Inc.; Concrete Sciences, Inc.; C B Materials, Inc.; and R E. Holton, Inc., its officers, agents, suc- cessors, and assigns, shall take the action set forth in the said recommended Order, as modified below. Delete paragraph 1(c), and reletter paragraph I(d) as 1(c). 1 Chairman Miller and Member Penello agree that a bargaining order is appropriate herein as a part of the remedy However, in accordance with the views they expressed in Steel-Fab. Inc, 212 NLRB No 41. they do not adopt the Administrative Law Judge's finding of an 8(a)(5) violation upon which she predicated the order They would instead rely solely on the serious and extensive 8(aXI) and (3) violations committed by the Respondent as the basis for such a bargaining order Member Fanning dissents to the dismissal of the 8(a)(5) finding of the Administrative Law Judge, for the reasons stated in his dissent in Steel-Fab. Inc, supra DECISION STATEMENT OF THE CASE JENNIE M. SARRICA, Administrative Law Judge: This is a proceeding, under Section 10(b) of the National Labor Re- lations Act, as amended (29 USC § 151, et seq.), hereinafter referred to as the Act. Based on charges filed on February 26, 1973,1 and amended charges filed on May 3, a complaint issued on May 31 presenting allegations that the named enterprises, collectively referred to as Respondent, commit- ted unfair labor practices within the meaning of Sections 8(a)(1), (3), and (5) and 2(6) and (7) of the Act. An answer was filed on behalf of the named business enterprises deny- ing, inter a/a, that they constitute a single employer for purposes of this proceeding; that they are subject to the jurisdiction of the Board; or, that the violations alleged were committed. Upon due notice the case was tried before me at Coral Gables, Florida, on July 9 through 13; July 16 through 20; and July 25 through 27, all inclusive. Representatives of all parties entered appearances and were given an opportunity to be present and participate in the hearing. The General Counsel argued orally on the record at the close of the hearing. Based on the entire record, including my observa- tion of witnesses, and after due consideration of the brief filed by Respondent, I make the following: FINDINGS AND CONCLUSIONS I THE RESPONDENT The four corporate enterprises named as the Respondent in this proceeding, each a Florida corporation, share the same general corporate office and mailing address at 619 N.W. 7th Avenue, Fort Lauderdale, Florida. Concrete Sci- ences is a holding company for the other three named cor- porations and functions basically as a management firm for the operating corporations. Loretta P. Liljestrand owns 40 percent of the stock of Concrete Sciences. Nicholas R. Sattee also owns 40 percent of that stock, while John Crockett owns 11 percent, Francis Elgrim owns 7 percent, and John Paradise owns the remain- ing 2 percent. Concrete Sciences owns all of the stock of Crockett-Bradley, C B Materials, and R. E. Holton. J. B. Liljestrand, husband of Loretta, is president of Con- crete Sciences, vice president of Crockett-Bradley, vice pres- ident of C B Materials, and a director of R. E. Holton. He has overall responsibility for the operations of the four com- panies. John Crockett is president of Crockett-Bradley and R. E. Holton, vice president of Concrete Sciences, and a director of C B Materials. He is also the general manager of Crockett-Bradley and C B Materials, and is in charge of sales, promotion, advertising, public relations, and overall production. Francis Elgrim 2 is directly in charge of produc- Unless otherwise indicated all dates are in 1973 2 It appears that Elgrim is an officer in one or more of the corporations here involved but the record is not clear as to what corporate title he presently holds with which corporation The names of several other corporations in this conglomerate are still carried on the office doors, equipment, and logos of the group. but apparent- ly these have been absorbed into the named corporations Thus, Daisy Mate- rials. Inc. a company which Crockett testified had been dissolved and of which Elgrim may have been president, previously employed the mixer driv- ers. who were reassigned to Crockett-Bradley, and more recently to C B Materials Also, the C W Brown operation which encompassed the grouting Continued 212 NLRB No. 61 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion for Crockett-Bradley and C B Materials John Paradise is an officer of R. E. Holton and runs that operation. Nich- olas Sattee is secretary-treasurer of Concrete Sciences and is generally in charge of the business management func- tions. A J. Kranich, secretary-treasurer of C B Materials, is a CPA and, at the offices of Concrete Sciences, he handles the financial matters for all four corporations. Sattee's of- fice is located at the 7th Avenue address. LilJestrand has offices at both 7th Avenue and in the trailer at 4205 Ravens- wood Road, Fort Lauderdale, Florida, where Crockett, El- grim, and Paradise have their offices. The four corporations utilize the same accounting firm for tax reports. All other matters are handled by Concrete Sciences at the 7th Avenue office. The services supplied for the operating companies include management, accounting, large purchases of equipment and supplies, banking, bill- ings, the administrative staff, and maintenance of equip- ment as well as payroll services. The four companies have a common payroll which is kept on a computer and they utilize a common account but separate identified checks. The four companies use a common general checking ac- count. The same insurance companies are used for vehicles and other types of insurance.' LilJestrand , Sattee , Crockett, and Elgrim, as well as Paradise, can sign checks for R. E. Holton. Any one of the first four named individuals can sign checks for Crockett-Bradley, Concrete Sciences, or C B Ma- terials, and the first two named can sign checks from the general checking account used for all four companies. The business of the operating corporations consists pri- marily of functions involving the uses of "gunnite" ° in vari- ous types of construction. Basically, R. E. Holton performs all "commercial" gunnite work, i.e , as a subcontractor per- forming the gunnite work involved in the construction of support columns for large buildings, bulkheads, and large swimming pools; Crockett-Bradley does pressure grouting and generally, as subcontractor, performs gunnite construc- tion work on private residence size swimming pools; C B Materials purchases, stores, processes, and supplies the ma- terials used in these operations; and Concrete Sciences, which as noted performs the management functions for the other three corporations, also provides the maintenance shop and mechanics to service the equipment. Employees of all four corporations work at, or out of, the yard and batching plant at Ravenswood Road where the material loading functions and storage are carried on. Sand and cement are received, prepared, and stored there, trucks are parked, cleaned, fueled, and loaded and the day-to-day scheduling and dispatching functions are performed in a trailer-style building which houses the offices. The job schedules for all of the crews are made up at the Ravenswood Road yard where the crew leader or foreman receives his assignment, picks up the equipped truck, and in functions has been absorbed by Crockett -Bradley Trucks bearing those names are operated by Crockett-Bradley crews and by C B Materials' mixer drivers Crockett-Bradley formerly performed the work now assigned to R E Holton J It appears that the health insurance policy held in the name of Concrete Sciences covers employees of all'four companies Gunnite essentially is pneumatically applied concrete which is mixed dry and applied under air pressure , hydrated out of a nozzle at which stage it becomes wet mix of a no-slump consistency the case of the grout crews, the needed material, and pro- ceeds to the jobsite. Mixer drivers of C B Materials are dispatched from the yard on a relay basis to the jobsites of both "commercial" and "pool" crews supplying them with the needed gunnite. After the initial morning run, these trucks are dispatched pursuant to radio requests from the crews for material. The labor policies of the four corpora- tions evolve through discussions among the named corpo- rate officials. It was stipulated at the hearing that Crockett-Bradley, C B Materials, and Concrete Sciences constitute a single employer for purposes of this proceeding. On the basis of the evidence presented, I find that R. E Holton is also a part of the single employer Respondent herein for all pur- poses. 11 JURISDICTION It was admitted in the answer or stipulated at the hearing that, in the course and conduct of its business operations during the year preceding issuance of the complaint herein, a representative period, Respondent provided services in an amount in excess of $50,000 for Rule Pools Co., a Florida corporation, which is engaged in the business of construct- ing swimming pools on both a residential and commercial basis and that Rule Pools Co. annually purchases and re- ceives goods and materials valued in excess of $50,000 di- rectly from suppliers located outside the State of Flonda. Additionally, the record establishes that during the past year Respondent's gross revenues were in excess of $4 mil- lion, and that it performed work on Fontainebleau Park for Trafalga Developers valued at approximately $750,000 on a project totaling in excess of $10 million. In the past year Respondent, through C B Materials, purchased in excess of $1 million in materials, $500,000 of this from Maule Indus- tries. Respondent also purchased in excess of $750,000 in equipment from various sources. Gunnite shooting equip- ment purchased outside the State of Florida alone totaled $25,000. Respondent is the exclusive distributor for the State of Florida for the Reed gun manufactured in Califor- nia and used to shoot gunnite. In the past year Respondent sold such equipment to companies located in Ohio and Louisiana with several units costing about $5,000 each. Six used mixer trucks worth approximately $4,000 each were purchased in the past year from a source in the State of New Jersey, and there were purchases of other trucks from local sources. Respondent operated 60 vehicles for which it pur- chased approximately $300,000 in fuel in the past year. The cost of repair parts during the same period was around $100,000. The foregoing commerce figures amply 5 establish that the Respondent herein is engaged in commerce within the 5 1 find it unnecessary to consider for purposes ofjurisdiction the evidence offered by the Union to show that Respondent, through R E Holton's collective-bargaining contracts, is a member of employer associations or multiemployer bargaining groups which collectively would establish that Respondent is subject to the Board's jurisdiction Although the Respondent refused to admit to the legal conclusion that it was subject to the jurisdiction of the National Labor Relations Act, and refused to comply with the Union's subpoena for financial records, in view of my finding herein I deem it unnecessary to determine whether adverse inferences are appropriate, as urged by the Union CROCKETT-BRADLEY INC. meaning of Section 2(6) and (7) of the Act. 111 THE LABOR ORGANIZATION Teamsters Union Local 769, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, hereinafter called the Union, is now, and has been during all times material herein, a labor organization within the meaning of Section 2(5) of the Act. IV THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The questions presented by the pleadings, argument, and brief are: I. Whether Respondent engaged in interference, re- straint, and coercion of its employees in violation of Section 8(a)(1) of the Act by interrogation, threats, and offers and promises of benefits; urging the formation of employee committees to deal with the employer; offering to negotiate a contract through the employees' lawyer; circulating and urging the employees to sign a petition to retrieve the cards and revoke the authorization of the Union for representa- tion ; telling employees that the plant was closing and to pick up their checks; and advising against honoring of a Board subpena. 2. Whether Respondent discriminated against employees in violation of Section 8(a)(3) of the Act by locking out and/or causing a loss of earnings to discourage union adherence. 3. Whether the Respondent violated Section 8(a)(5) of the Act by refusing to extend recognition to the Union as majority representative of its employees in an appropriate unit. B Background As previously indicated, with respect to Respondent's production, Crockett has overall responsibility, Elgrim is directly in charge of the operations at the yard and in the field, and Rod Maine has responsibility for the yard. Maine orders the material used, mainly cement and sand, and su- pervises the truckdrivers and the batch plant loading opera- tion. Supervising the crews in the field are four superintendents who are directly responsible for the opera- tions at the jobsites. Evidence was presented indicating that in October 1971, many of the same employees involved herein signed a peti- tion revoking their authorization of the Union herein to represent them. They called upon the union representative for return of their cards and since he had not yet submitted these to the National Labor Relations Board, he returned them to the men at their request. He subsequently received a copy of the employees' petition with a covering letter signed by "Brad" Liljestrand on the letterhead of Daisy Materials, Inc. "Brad" Liljestrand is one and the same indi- vidual as the "J. B. Liljestrand" involved in this proceeding, who acknowledged he had sent that letter to the Union. Liljestrand is also frequently referred to in the testimony as "Brad" or "Bradley. 437 C. The Union Activity Mixer drivers Charles McGovern and Robert Brangan visited the union hall on February 1 and obtained authori- zation cards on which they solicited signatures from fellow mixer drivers, tractor-trailer drivers, the front-end loader operator, and the batch plant operator. A substantial num- ber of these employees signed cards on February 2 and 5, which McGovern turned over to the Union representative on February 5. D. The Conduct Involved 1. The meeting and lockout , Early on February 6, Maine learned from the yard me- chanic at Ravenswood that the drivers were unhappy with their wages and that McGovern was their spokesman. Mc- Govern had been dispatched with his first load to the Miami area. While at thejobsite McGovern received from the crew foreman a message to report to the Miami plant and wait for a call McGovern went to the Miami plant where he was met by Maine and Elgrim, both of whom admittedly had gone to the Miami plant especially to talk to McGovern. They took him aside for a conversation. The testimony which I credit indicates that Maine asked McGovern why he had not come to Maine first before going to the Union. McGovern responded that he had done what the men wanted. Maine inquired of the nature of the drivers' problems and McGovern advised that the men had various complaints but basically it was money. Elgrim told Mc- Govern he would like a chance to talk with the men and try to iron out their differences before the union matter became final, and Maine asked McGovern if he had already turned in the union cards. McGovern indicated that he had Elgrim said he would still like to meet with the men and talk it over. McGovern would not commit the men to such a,meeting but said he would speak to them individually at the yard to ascertain their reaction to the suggestion for a.meeting with management. Elgrim instructed McGovern to return to the Ravenswood yard for this purpose and to let them know the results. Around 4 p.m., McGovern advised Maine the men were willing to meet with and listen to the -management officials.6 Crockett admitted that he was informed by Elgrim of the report of dissatisfaction among the drivers because of their 6 Driver. Randy Rogers aestified that dispatcher David Mizer told him about the meeting around 10 30 or .1 I a.m Driver Gus Ross learned of the meeting from Maine when he approached the latter to inquire about his promised uniform Driver Allen Keller testified that when he came back to the yard around noon, McGovern told him the Company had found out about the Union and that he, McGovern, was the ringleader, they sent someone to get him at the Miami plant and were going to have a meeting with the drivers Driver Bob Brangan recalled that when he returned to the yard about 1 30 p in that day he observed that none of the trucks were being loaded He asked the batcher. Aubrey Clinton, what was going on and was told that the Company was calling a meeting Mizer stated that because of statements by various drivers he walked over to the batch plant and into Maine's office to ask whether there was going to be a meeting, and that Maine told him there would be as far as he knew Mizer further testified that none of the crews called for more material after about 2 p in , and most of them returned to the yard by 4 p m 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pay scale, of the trip by Elgrim and Maine to the Miami plant that morning 1 to talk to McGovern, who was the employee spokesman, to find out what was going on; and of Elgrim's arrangement with McGovern for a meeting be- tween management and the drivers to see what could be worked out. Crockett told Elgrim, "Fine, we'll have the meeting today." I find that Respondent independently made the determination that it would hold the meeting with- out regard to employees' wishes and that it made this deci- sion long before it received any response from McGovern as to the desires of the employees. Around 4:30 p.m. the drivers assembled in the yard near the batch plant where truckdriver meetings are usually held, and at 5 p.m. management officials came over from the trailer-office. In addition to Maine and Elgrim, there were Paradise and Crockett and Sattee, whom Crockett had sum- moned from his 7th Avenue office earlier in the day for the purpose of attending the meeting with the drivers. There is general agreement among the witnesses that El- grim started the meeting by asking the drivers to state what their problems were and that this was followed by a long silence which caused Elgrim to state, "if there is a problem, let us hear about it." There is disagreement among the wit- nesses as to what was said next with General Counsel's witnesses testifying that one of the drivers stated they want- ed union representation, and Respondent's witnesses insist- ing that the interest of employees in the Union was not mentioned until about half or three-quarters through the meeting. The witnesses do agree, however, that various em- ployee complaints were brought up, that Crockett did most' of the talking, that Crockett had'a clipboard pad on which he was making notations, and that Crockett promised to change various conditions, to investigate the cost involved with respect to other suggestions, made some suggestions himself for the formation of employee committees, an- nounced an added holiday, and offered certain benefits, including a wage increase proposal Specifically, on the matter of drivers being required by the mechanics' supervisor at the 7th' Avenue shop to per- form certain mechanic work while their trucks were being repaired, the drivers were told by Crockett that this was not part of their job and that they were to do no more than operate levers, etc , from the cab of their truck. With respect to safety, Crockett directed Maine to substitute long han- dles for the short ones on the mallets used by drivers to free the drums of their trucks of "dead"- gunnite'before reload- ing. In addition, Crockett advised the drivers that Elgrim was the safety director for the Company and that Maine was the assistant director, information concerning which em- ployees had no prior knowledge, and suggested that em- ployees form a safety committee to bring unsafe matters to the attention of these,individuals.8 In response to their indi- cation that additional holidays were desired, Crockett ad- vised the men for the first time that the Company had already decided to give one additional holiday. Drivers reg- istered complaints about the delay in issuing uniforms and of the improper service those who had uniforms were receiv- ing. Employees were advised by Paradise, who handled such matters, that the Company was in the process of changing to another uniform supplier. The question of adding eye and dental care to the health insurance program was referred by Crockett to Sattee to ascertain the availability and feasibil- ity of such added benefits. On the subject of money, an employee asked Crockett what the Company had to offer in this respect and Crockett told the drivers that although Liljestrand was out of town they had previously discussed the matter of raises for the drivers and that he could offer them 25 cents now and 25 cents in 6 months.9 The drivers reminded Crockett that they had not received a raise since June or July of the previous year and had been passed over in December when the crews received raises. Crockett explained that the Company had only recently received price increases from the "trade," and that the Company was under price control and could not go back to the "trade" for more money. There was an indica- tion from one of the drivers that they wanted what concrete drivers at Mack and Lehigh were getting. It was generally understood that those drivers were represented by the Teamsters and were receiving union wage scales and follow- ing union work rules. According to Crockett, he responded that he did not see how the Company could continue to exist under those circumstances. He explained that the Company was essentially part of the swimming pool industry sup- plying gunnite and, that if they had to work under concrete truckdriver pay scales and work rules, this would throw their costs into chaos and force them to raise their prices so high it would throw them out of competition. Although Crockett stated he did not believe he had "come on that strong," I credit the testimony of various witnesses that Crockett also said that union wages would cause the Com- pany to go bankrupt and put them out of business. Paradise, who is in charge of Holton operation where employees have union contracts, told the drivers that under union rules drivers normally work only 40 hours to week whereas the drivers involved regularly worked overtime, and that he did not think they would make as much money with union pay scales and work rules as they were then making. He also stated that there is no job security in unions, and that as long as a driver is doing a good job he would have a job. According to Crockett, at this point he was getting ques- tions from several areas, but he had the impression the drivers felt they needed 'security both with respect to the money 10 and with respect to the job. He was displeased At another point in his testimony Crockett said he told the drivers that this offer would have to be approved by Liljesirand who was out of town Although this is consistent with Maine's testimony, the accepted version is consistent with the testimony of other persons present and'with Crockett'sti' later assertion that he made a firm offer 7 At first Crockett indicated he knew nothing of these matters until just before the meeting, and that Elgrim was in the yard all day On the other hand, Mizer, who shares Elgrim's office , testified that Elgrim was out in the field all day 8 Maine denied that Crockett suggested the men form a safety-committee but said only that a couple of drivers could be added to the committee consisting of him and Elgrim This is contrary to the testimony of Crockett and most of the other witnesses 10 It was asserted by one of the drivers who had been with the Company longer than others that the preceding year when employees signed cards-and retrieved them from the Union on the Company's promise of benefits and wage increases, the employees did not receive all of the raises promised, and that the promised increases made at this meeting should be put in writing At first Maine testified he had no recollection of any mention of that com- ment, but on further examination he recalled that the employees did say they wanted any wage increase promise in writing and that it was brought out at CROCKETT-BRADLEY INC. 439 about the degree of focus on union wages and conditions, and "got off the union thing dust as quickly as I possibly could. I didn't want to discuss it any further." 11 Crockett told the drivers that the Company had not been too successful; it was dust beginning to show a profit of approximately 6 percent and an increase in wages of the magnitude suggested would throw it into a "losing situa- tion." One of the employees, who admittedly had been drinking," began arguing about the 6-percent figure and when he persisted Crockett assertedly threw up his hands and said, "Look, I've heard your gripes. I don't even want to discuss any part of what we're talking about." He stated he did not want to discuss union scale and union rules; they were there to talk about gripes and he had made them an offer as far as money was concerned. Now he would like to suggest that the employees form a committee of three who would take employee gripes and talk to management at any time, but for purposes of the immediate problem, the em- ployees should consider the matters that had been dis- cussed, and form a committee of three who could sit down with management to iron out their differences and de- termine whether they and the Company could arrive at an agreement. Brangan indicated the drivers would disucss the matter among themselves and let Crockett know their decision the next day. Crockett stated he would rather receive their an- swer that night. It was decided that members of manage- ment would take a walk and the employees would have their response to Crockett's proposal in 30 to 45 minutes. When company officials left, the employees began their discussion. Someone stated that they were no better off than they had been before the meeting, and that in view of their prior experience, employees could not rely on the promises made at the meeting. To avoid a lengthy debate a vote was called for, with all employees desiring representation by the Union rather than accept Crockett's committee proposal directed to go to a designated spot. Everyone present walked over to the designated spot, thus affirming their the meeting that the last time a 25-cent raise was promised employees they did not receive it Maine also insisted he had no recollection of Paradise speaking at all at the meeting , and his testimony with respect to the various statements at the meeting is frequently inconsistent with that of Crockett and other witnesses I find his testimony frequently unreliable and have therefore credited most of the testimony of Crockett and other witnesses on the content of the meeting it McGovern testified he told Crockett that the men had no job security and he would like some recourse for the men Someone stated that Maine fired so many drivers (assertedly 14 within the preceding 90 days). that the drivers just did not know whether they would have a job from day to day Maine then took over the meeting pointing out each driver and listing his offenses or derelictions of duty for which each could have been fired, and indicating other drivers whom he had fired and rehired It was in this context that, according to Respondent's witnesses, employee Rogers demanded to know of Maine "Who told you about the Union Rod"' Crockett testified this was the first time in the meeting he heard the Union mentioned and that he said "Hey, I don't know where this came from but you are getting into talking about Union-this is a horse of a different color Now what are we talking about here Are we talking about gripes and money and problems that we have or are we talking about Union9 We are not here to discuss the Union " 12 For this reason, and because his demeanor as a witness as well as certain characteristics of his testimony were so unacceptable. I have placed no reliance on the testimony of Terry McGurr choice of union representation. Brangan , McGovern, and King went to tell the management officials of the employ- ees' decision. Not more than 5 minutes had passed when Crockett saw the three drivers approaching him. Crockett testified that when he saw there were three he thought they had taken his advice and chosen a committee to represent the employees. Followed closely by Maine, Crockett walked to meet them and asked what the employees had decided. McGovern told him of the employees' choice.13 Crockett testified that he responded by throwing up his hands and telling McGovern, "I can't see how we can operate like this" and walked away.14 The three dnvers testified that Crockett stated the plant was closing down and to tell the men they could pick up their checks in the morning at 8 a.m. This is denied by Crockett The three returned to where the men were waiting and McGovern reported that Crockett said the plant was closing and they could pick up their checks at 8 a.m. Mc- Govern suggested that some of the men report at the gate at their regular 6 a in. scheduled time to see whether their trucks were being driven out of the yard. Shortly before 6 a.m. on February 7, the drivers be- gan arriving at the gate . Between 7 and 7.30 a.m. Maine, who was moving sand about in the yard, advised Crockett, who assertedly had come in early because of the employee unrest and because he was interested to see dust what the situation would be, that the men were standing outside the gate.ls Crockett, with Elgrim, Paradise, and Maine, went to 13 Crockett and Maine testified that McGovern said "the employees decid- ed they wanted a 100 percent union deal " McGovern, Brangan and King testified McGovern said the employees had "voted 100 percent Union " The testimony of the three employees most accurately reflects what had occured among the drivers and I credit their version However, for purposes of de- termining the issues in this case, I find no significant distinction between the two version; 14 Although Maine was so close behind Crockett that they almost collided when Crockett turned around. Maine testified he heard what McGovern said but could not hear Crockett's reply 15 Much of the testimony regarding the early morning events of the 7th preceding the confrontation between company officials and the men has significance only with respect to credibility of the various witnesses It may be noted that Mizer testified he arrived at 5 30 a in and found the gate open, whereas Maine testified he arrived at 5 45 and unlocked the gate Maine also testified tha t he had the lights in the yard and plant set to go off automatically at 6 30 on February 7, in contrast to Crockett's testimony that he arrived at the plant at 6 15 a m and noticed nothing unusual . although it was dark, the lights were out at the hatching plant and he could not see if there were any drivers in the area He further testified that he did not see any cars parked outside the gate where some cars are normally parked A number of drivers, who parked their cars outside the gate and remained there. arrived at the gate between 5 50 a in and 6 15 a in None of them testified they saw Crockett arrive Maine further testified that when he went to operate the front-end loader he noticed that two tractor-trailer drivers were checking their equipment and that two trainees were there He drove the front-end loader out into the yard and noticed the men at the gate He then came back to the hatching plant where the tractor-trailer drivers told him they did not think they were going to work that day He told them to do what they thought best The two trainees asked him what to do and he said he had no one for them to work with and to go home and report at 8 a in the following day Maine then returned to the operation of the front-end loader from which he observed that more men were congregating at the gate He then called and advised the office of their presence and saw Elgrim and Crockett go to the gate He drove over to the gate on the loader If, as Maine testified, he had not heard what Crockett told the men the night before and had not spoken to Crockett after that confronta- tion until he reported the men congregating, there is no indication how he knew what the tractor-trailer driver was referring to which would account for Continued 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the gate where Crockett engaged McGovern in a discussion. Crockett's verson of what occurred at this point may be summarized as follows- He asked McGovern what was going on and was asked "What is your offer this morning?" He replied that it was the same as the day before without change, and said "let's go to work." McGovern said "You have locked us out." Crockett responded, "What do you mean, the gate is open." A driver from the crowd asked Crockett to repeat "the deal" and he restated what he had offered the employees at the meeting the evening before. Someone asked whether he would put it in writing and he responded that he would, "once we agree on what we are going to do." He told them that the group they designated could sign the written agreement, they could use the Company's lawyer or get their own lawyer, and the Compa- ny would pay for the lawyer, they could pay him, or "we could split the cost." McGovern stated the employees were going to negotiate through the Union, and Crockett told him "we are not here to talk about negotiations. We are here to talk about what I proposed yesterday." McGovern said, "you won't negotiate with the Union?" and Crockett replied he was not talking about negotiating with any union-"let's go to work." McGovern said that the men did not want to work under those conditions, and told Crockett they were going home, turned around, and walked away Crockett said, "OX, you can pick up your checks at 10." He then returned to his office. There are numerous variations as to the content of this conversation in the testimony of the various employees. McGovern testified that to Crockett's initial query he stated the men were there waiting for their checks and Crockett told him the checks were not there yet. Then Crockett asked him if there was any change from the night before and McGovern told him there was none; that the men still want- ed to go union. McGovern, like Crockett, recalled that Crockett had repeated in detail the offer he had made the evening before, had engaged in the discussion of how a signed contract between the Company and the employees could be negotiated, and had indicated his complete flexi- bility as to who would pay the lawyer. McGovern also testi- fied that in response to his inquiry about negotiating with the Union, Crockett asserted he wanted nothing to do with it. McGovern denied he told Crockett the men would not go back to work and asserted that Crockett did not tell him the men could go to work. Other witnesses were able to testify only with respect to portions of the conversation. After Crockett and the other company officials left, Mc- Govern and other drivers concluded they needed some guidance as to what they should do under these circum- stances and decided to go to the union hall to consult with the union representative. At the union hall McGovern ex- plained what had occurred the night before and during that morning. The union representative placed some telephone calls, then told McGovern to get the rest of the men and his own response. or how he knew he would have no driver to assign the trainees to that day 1 regard these matters as insufficiently litigated to make any determinations thereon at this stage of the proceeding I find, however, that McGovern and Keller did not enter the plant or punch their timecards that morning bring them to the union hall. When the employees all ar- rived at the hall the union representative was on the tele- phone, so McGovern obtained additional authorization cards and solicited signatures from any of the employees who had not signed previously. He turned those cards over to the union representative, who came into the hall and told the men he had been informed that the lockout decision had not been made by top management and that if they reported back to the yard they would be put back to work The employees then returned to the yard Maine came and told Crockett the men were assembling at the gate again. Crockett, Elgrim, and Maine went to the gate. Crockett asked McGovern what was happening now and McGovern told him the union representative said he received a call for the men to report back to the yard and they would be put back to work. Crockett said that he did not know anything about this 16 but, if that was what the men had been told, they could come into the yard, get their trucks ready, and see Maine about their schedule for the next morning. Crockett explained that it was too late to go to work that day as the crews had all gone home.17 Crockett admitted that in a telephone conversation on February 7 he was told by Andy Sattee, a vice president of Maule Industries and a brother of Nicholas Sattee, that Andy had called the Teamsters union hall and was advised the Union had instructed the men to report back to work. Crockett testified that he did not know how Andy knew to call the Teamsters but that there had been conversations between Nick Sattee and Andy earlier in the day and that it was generally understood where the men had gone. Maine testified that some time after Crockett spoke with the men at the gate, a contractor who had made a delivery told Maine he would not be able to make another delivery that day because the men had asked him not to. The union business agent, Tony Cannestro, testified he received a call from Andy Sattee who claimed he had cement deliveries to make to Crockett-Bradley and understood they were not working arid that it had something to do with the Teamsters organizing. He advised Sattee he understood the Company had locked the employees out. Sattee asked him what he intended to do. He replied he could go to the National Labor Relations Board or he could hit them with pickets. Sattee told him to hold off for a call. When Andy Sattee called back he said he talked to somebody at Crockett- Bradley and that top management did not go along with the lockout action and to tell the men to go back to work. Sattee refused to identify the person he had talked to but assured the union representative that his was a reliable source. Crockett testified that he later learned the trucks had not been loaded the night of February 6 as they normally would be in preparation for the drivers who leave at 6 a.m. This failure to prepare for normal operations on the 7th was attributed to confusion caused by the holding of the meet- 16 King heard Crockett say he had not heard anything about such a call, but at that point someone from the trailer came over and spoke to Crockett, whereupon Crockett said, all right, you men can come back and we will settle our difference, in another way 17 The grout crews, which did not depend upon the drivers for their supply of material, had worked at their respective jobsites that day However, the other crews had mingled with the drivers at the gate or worked at cleaning their equipment until after Crockett had spoken to the drivers that morning They were then dismissed for the day by Crockett CROCKETT-BRADLEY i[NC. mg. I do not find this a cogent explanation for the failure of the night hatcher, who normally loaded the trucks after the drivers had left for the day, to perform his usual duties and must infer that he received instructions not to load the trucks. Crockett asserted that Elgrim did not tell him that Elgrim and Maine had mentioned anything to McGovern about the Union on the morning of the 6th; that it was not mentioned during the meeting of the 6th that employees had signed union cards or that they wanted to be represented by the Union; and that the only indication he had that the men were interested in being represented by the Union before he received the demand letter on February 8, was when the employees said they were going to the union hall on the morning of the 7th (contrast his testimony-McGovern said they were going home); that on the 7th or 8th, Maine told him he had heard that union cards had been signed. He further stated that no one in the Company had indicated to him prior to the 7th that they had any knowledge of union activity, and that during the meeting on the 6th, union scale and union work rules came up but no specific union was named. Maine denied he told Crockett on February 7 that union cards had been signed . He also denied that at the meeting with McGovern at the Miami plant McGovern mentioned that the men wanted a union or that they had signed union cards. Maine asserted that he had no knowledge that the men had signed cards until about a week later in a conversa- tion with one of the drivers who is his nephew. However, at another point in his testimony the following appears: Q. Did you ever tell Mr. Crockett on either the 7th or 8th that you knew that the guys had been signing cards? A. Yes, I believe I did. Q. What did you say to him? A. I believe I told Mr. Crockett on the afternoon of the 7th that Scott King asked me to sign a card. Q. Is that all you said to him? A. I believe so.. . Q. At that point did you know that the men were signing cards? A. At that point I did, yes Maine also testified that on the afternoon of the 7th after the men came back McGovern told him what had gone on at the union hall. I do not credit Maine's asserted lack of knowledge before the February 6 meeting that the employees had signed union authorization cards. His testimony in many respects has been shown to be unreliable and in this specific respect is clearly self-contradictory. Moreover, Maine's conduct, immediately after he received information from the yard mechanic that there was dissatisfaction among the drivers, convincingly demonstrates that, in fact, on the morning of the 6th, he learned of the union activity, and specifically of McGovern's activity. Thus, although Maine's area of re- sponsibility focused on yard activities, and Elgrim would not normally have left the Ravenswood scheduling and dis- patching office, the two promptly departed together for the 441 Miami batch plant where McGovern had been instructed to go, specifically to see the driver whom they labeled the employee spokesman although at that stage McGovern was merely the most active card solicitor. Further, I credit Mc- Govern's testimony as to the content of the conversation with Maine and Elgnm at the Miami batch plant. Accord- ingly, I find that Maine and Elgrim engaged in unlawful interrogation of McGovern in violation of Section 8(a)(1) of the Act by such conduct. I further find that both Maine and Elgrim at that time knew the employees had signed union authorization cards and that those cards had been turned over to the designated Union. Such knowledge is attribut- able to the Respondent. I am also convinced, and find, that Maine or Elgrim relayed to Crockett the information they had obtained and that this information entered into Crockett's prompt decision that a meeting with the drivers should be held that evening, and into his later insistence that the employees respond to his proposals that night rather than give their answer the next day. The total response of the officials involved, the precipitousness of their actions, and the readiness with which they responded favorably to almost every employee problem mentioned at the meeting, either with change orders or offers, demonstrates, and I find, that the Respondent's sole purpose of the meeting was to crush the union activity and to interfere with the exercise of rights guaranteed employees under Section 7 of the Act. Therefore, it is immaterial whether it was stated at the very beginning of the meeting, or indeed at any time during the meeting, that the employees wanted to be represented by a union; that no particular union was named; or that their discussion was in terms of union wage scales and union work rules. It follows, and I find, that Respondent violated Section 8(a)(1) of the Act by announcing an additional holiday, promising other changes in working conditions, warning employees that Teamster wages and working conditions would force the Respondent out of business, offering em- ployees an immediate wage increase and another in 6 months, telling employees they could have their own safety and grievance committees to deal with management at any time, warning employees that union scale and work rules would cause loss of jobs by putting the Company out of business, threatening loss of overtime if the employees were represented by a union, and urging employees to establish a bargaining committee to represent them in dealing with the Respondent to see if they could not reach an agreement, all for the purpose of causing them to relinquish their inter- est in union representation , thus interfering with their Sec- tion 7 rights. With respect to the statement by Crockett to McGovern after the men had caucussed on and rejected his suggestion that they deal with Respondent through a committee and discuss contract proposals, I credit the three drivers and find that Crockett did say the plant was closing down and the men should pick up their checks the next morning. I base this holding in part upon the subsequent conduct of those involved including the failure of the night dispatcher to load the mixer trucks and Crockett's unusually early arrival the next morning which he attributed to the "unrest " Accordingly, I find that Respondent, by stating that it was closing the plant, in effect announced an ultimatum that 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD drivers give up their desire for union representation or lose their jobs, which option violated Section 8(a)(I). Again on February 7, Respondent violated Section 8(a)(1) by repeating the offers of benefits it had made on the 6th and offering to pay for an attorney to provide them with a written contract, and by insisting upon the same condition stated the previous evening that employees deal with the Respondent through a committee or attorney and give up their preference for representation by a union. It is alleged that Respondent, by the foregoing conduct, unlawfully locked its employees out or caused them to lose work opportunities and wages Respondent asserts that the gate was open and that the employees were not locked out but instead engaged in a strike or walkout. In view of the position taken both on the evening of the 6th and the morn- ing of the 7th requiring employees to accept its committee bargaining proposal instead of seeking union representa- tion , I find that Respondent imposed an illegal condition to the drivers' working, amounting to an ultimatum, which caused a loss of work and wages for that day. In so doing, Respondent discriminated against the drivers because of their union activity and thereby violated Section 8(a)(3) and (1) of the Act. See Ra-Rich Mfg. Corp, 120 NLRB 503, enfd. 276 F.2d 451 (C.A. 2, 1960); North Country Motors, Ltd., 133 NLRB 1479. 2. Other incidents Guss Ross testified that around 11:30 on the 6th of Feb- ruary, he approached Maine to inquire about the uniform he had been promised because no one had arranged to have his measurements taken . Maine said he had just learned that morning the men had signed cards for a union , and there would be no uniforms for Ross or the men . Maine asked Ross if he had signed a card and Ross replied that he had Maine denied having any such conversation with Ross on February 6, or any other time thereafter, assertedly "be- cause I was instructed to not even mention any kind of union activity," and because Ross was not eligible for a uniform until the end of February . Maine also denied he asked Ross whether he had signed a card. I have not found Maine's testimony generally credible and his stated reasons why he would not engage in such conduct are not convinc- ing I credit Ross and find that Respondent thereby violated Section 8(a)(1) by interrogation and threat of loss of bene- fits. On February 13, McGovern had occasion to go into Maine's office. Maine told McGovern the Company had a proposal they would like to present to the men, and that he was not supposed to mention it but the Company would give employees 50 cents retroactive to when the Union start- ed and 25 cents every 6 months for a period of 3 years, an extra holiday, July 4, and would discuss a dental plan. Mc- Govern told Maine he did not think much of this proposal but would find out what the men wanted to do. I do not credit Maine's denial of this conversation with McGovern, and find this new proposal, designed to discourage union activity, a violation of Section 8(a)(1). On February 15, McGovern was in the yard waiting to load his truck when Elgrim drove up near Maine's office at the batching plant McGovern had information that four or five men had gone to the office where Elgrim had explained to them the new proposal before McGovern had had a chance to speak with them. McGovern walked over to Elgrim's car and told Elgrim he thought Elgrim had acted improperly by making the proposal to the individual em- ployees without waiting until all of the men were present. Elgrim explained that the four had come in and asked him to tell them what the proposal was. McGovern testified that at that point Elgrim restated the proposal previously men- tioned by Maine. McGovern told Elgrim he thought 3 years was too long to go on a contract and Elgrim said this could be negotiated. McGovern advised Elgrim that since he had spoken to the four or five individuals, McGovern felt it was out of his hands and he would not even discuss it any further Elgrim testified that on the occasion mentioned , McGov- ern came to his car and said , "You've got a hell of a nerve asking those people to come over and talk to you." He told McGovern i.he employees had come to him and asked, then he turned and walked away because he thought McGovern was being arrogant. Elgrim insisted he did not tell Mc- Govern who he had talked to or repeated any of their con- versation and that he did not state any offer with regard to money or retroactive pay to McGovern. McGovern was a candid witness and throughout his testi- mony gave the impression of one who was careful to adhere to the truth. Although Elgrim had been ill and his testimony was confined to only a few matters, he did not exercise such care for accurate detail. Notably, in this situation, it is not clear how Elgrim "walked away" from this conversation which took place while he was in his car. I credit McGovern over Elgrim and find that he repeated the offer mentioned to McGovern by Maine, thereby violat- ing Section 8(a)(I) of the Act. While McGovern was at a pool site on February 16, Crockett came and engaged him in conversation . McGov- ern testified that Crockett asked him what he thought of the proposal the. Company was making to the men. McGovern responded that there were so many stories going around that he did not really know what the proposal was. Crockett told him it was 50 cents retroactive-but McGovern could not recall whether Crockett said it was to February 6 or to when employees started with the Union . He testified that Crockett also mentioned the other conditions stated by Maine and Elgrim and added that the employees could have their own lawyer in their negotiations . Crockett asked Mc- Govern how he thought the men felt about the offer. Mc- Govern told Crockett the men were having a meeting on Saturday and he would ask them. Crockett told McGovern he thought the men on the negotiating committee should get a little more in hourly pay. Crockett testified that he was spot-checking crews on his way to call on a pool company and stopped by a project where McGovern happened to be unloading his truck. He walked with McGovern away from the noise, leaving the controls of the truck in the hands of a trainee who was with McGovern that day. He testified that they talked about the job and the trainee and that he did not ask McGovern what he thought of the Company's offer. Crockett denied that he CROCKETT-BRADLEY INC 443 mentioned retroactive increases or anything about employ- ees having a negotiating committee of their own or that he made any reference whatsoever to the Company's offer. because he knew that McGovern was "the key man," or "ringleader" and he had been told not to say anything. Here, again, I do not find the reason given for avoiding such an incident convincing. The officials knew from the beginning of McGovern's central involvement in the union activity and admittedly attempted to use this to get the men to the February 6 meeting. Nor did the officials, by their conduct, demonstrate that they were following any instruc- tions to remain aloof from the employee union activity. It is also noted that Crockett did not deny that such a new and improved wage increase proposal had been formulated. I credit McGovern's testimony with respect to this incident and find that Respondent violated Section 8(a)(1) by this conduct. The employees held a meeting at Brangan's home on Saturday, February 17, at which they selected a steward, an assistant steward, and a secretary-treasurer. McGovern had posted a notice of the meeting on the bulletin board beside the timeclock Friday. McGovern, Rogers, and Clinton were elected to the respective posts. Rogers testified that on the following Monday morning his truck broke down and, as was the practice in such cir- cumstances, he went to Maine to ask whether there was fill-in work for him to do or whether he should clock out and go home. Some of the other drivers were present when he approached Maine. Maine asked if Rogers was the spokes- man for "these guys" and stated "I'm the boss." Rogers replied he knew Maine was the boss and he was merely asking for himself. Maine said he knew Rogers was the steward and that in the future when a truck broke down the drivers would be laid off automatically and the Company would call the union hall for a new driver when the truck was repaired; that this was what the men wanted if they wanted a union. Maine testified that he knew Rogers was a steward be- cause McGovern advised him of this on Monday morning, and he also knew of the meeting as he saw the posted notice. Maine denied telling Rogers that in the future when a truck broke down the driver would be laid off. He admitted, however, that he had told someone of the drivers-and it may have been Rogers-of his experience up north with a unionized company wherein the driver went home when his truck broke down and when the truck was repaired the Company called the union hall for another driver I credit Rogers and find that the statements by Maine constituted a threat of changed working conditions which violated Section 8(a)(1). Dispatcher David Mizer, who attended the meeting at Brangan's home, immediately thereafter drew up a petition requesting the Union to return the signed authorization cards and stating that the signatories to the petition did not desire union representation Although Mizer was salaried and did not stand to gain from the Company's various offers, Mizer testified he had prepared and signed the peti- tion the preceding year as well as the current one because he felt the Company had more to offer the men than the Union could. Mizer solicited and obtained signatures on the petition from the employees involved,18 both at the dispatcher's office and at the batch plant. The General Counsel asserts that Mizer is a supervisor and that Respondent violated the Act by his conduct in drawing up and circulating the petition. The record fails to establish that during February Mizer was a supervisor,19 or that he was acting at the behest of and as an agent of the Respondent in connection with the petition. The evidence does establish, however, that Respondent's officials had knowledge of the petition at the beginning of its circulation and demonstrated to the employees their support and ap- proval of it by various statements and conduct set forth herein. Cornelius Warran testified that he was asked by Mizer to sign the petition on the morning of February 19, but re- fused. Later that morning when Warran was at the dispatch- er window to pick up his trip ticket Mizer again asked him to sign the petition, and he said no. Crockett was in the dispatcher's office. Crockett said to Warran, "you are a fool." Warran replied, "that may well be" but he still was not going to sign. Crockett told him that he would be sorry. Crockett testified he is frequently in the dispatch room and that he knew the petition was for the purpose of recall- ing the cards from the Union was being circulated, but did not know its source. He also recalled that this petitioning by employees for recall of authorization cards happened once before. He denied, however, that he ever witnessed Warran, or any employee, sign the petition or that he ever spoke to any employee about the petition. I credit Crockett's testimo- ny in this respect. Both in this respect and in relation to other events, Warran demonstrated a propensity for exces- sive elaboration and did not impress me as giving an accu- rate recollection of the actual events. When Mizer first approached Rogers to sign the petition, Rogers said that he would think it over. He did sign it later at the dispatcher's office when it appeared that a majority of the mien had signed. Crockett, Liljestrand and Maine were there in the office. As he was leaving, Maine said "thank you." I do not view this comment even in the context 19 Four employees working at the Miami plant came to the Fort Lau- derdale plant from Miami specifically to sign the petition Mizer testified he did not know who told them to do so and assumed that they had signed cards None of the Miami plant employees had been solicited to sign cards Mizer also left the petition in the office at the Ravenswood batch plant for I day so employees in that area could sign it 9 Mizer was later promoted to field superintendent, a supervisory position However. as dispatcher, he had no authority to hire employees or effectively recommend such action Because of his location in the office, Mizer or another office employee handed out job applications when Elgrim or Maine were not immediately available and, at such time, he provided information as to the prevailing terms of employment and job requirements for drivers or crew members Mizer had no authority to discharge a driver or effectively recommend such action I find that the instructions given by Mizer as dis- patcher, bosh to the batcher as to the type and amount of material to be loaded on the next truck in and to the drivers when handing out the trip ticket for the load in helping a driver in person, by telephone. or by radio to locate ajobsite. or in giving other instructions, taking mechanical breakdown calls. and advising drivers whether to return to the yard or go to the shop, arranging for the shop to send a mechanic, and the many other situations in which the dispatcher played a part. did not constitute responsible direction of employ- ees Rather, these were routing implementations of the established work schedule and procedures and the relaying and coordinating of operative information. I conclude that Mizer had no supervisory authority 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sufficiently significant to warrant finding an 8(a)(1) viola- tion. Brangan testified that at 6:30 on February 20, Mizer was sitting in his truck near the hatching plant and Maine was leaning against his front fender. Brangan punched in and was going toward his own truck when Mizer called him over and asked him to sign the petition. Mizer told Brangan that once they got the cards back the Company could give the employees an offer and if they were not satisfied the Union would always give them cards to sign. Brangan refused to sign. Mizer had also called Robinson over and Robinson was immediately behind Brangan. Mizer told Robinson to sign the petition and added they had just received the insur- ance papers on his accident. Robinson became angered by the reference to the accident and refused to sign. Maine noticed that Brangan was staying near and, although Bran- gan was a half-hour early for his work schedule, Maine ordered him to go to his truck and get started. Brangan did so. I find Maine's conduct in this situation an endorsement by Respondent of the petition signature solicitation being carried on by Mizer, and that it was coercive in violation of Section 8(a)(1) of the Act. On February 20, Keller was digging a sump pump hole beside the batch plant with O'Donnell. Maine approached Keller and asked him whether he had signed the petition yet. Keller replied, that he had not and that he could not do that because it was against his principles.20 Mizer then drove up in his truck and Maine left the men and sat in the truck with Mizer. They called O'Donnell over to the truck. When O'Donnell returned he told Keller he had signed the petition and that he felt bad about it. Maine testified he was talking with O'Donnell and Keller when Mizer drove up in his truck and motioned to O'Don- nell to come over. Keller asked Maine what was going on, and he replied he did not know-"Dave was there with a paper or something." Keller suggested it might be the peti- tion. Maine further testified he said, "Well, didn't you sign it?" and walked away. Maine admitted he knew Mizer had the petition because he had seen Mizer around the plant and at the dispatcher window getting the men to sign it. He asserted that Mizer later told him they had taken the peti- tion to the union hall but it did no good; and that only a few weeks before the hearing herein, Mizer, for the first time, explained what the petition was for. Mizer testified that on the occasion when he asked O'Donnell and Keller to sign the petition, Maine was not in his truck. Rather, Maine was talking with the two men when Mizer arrived and went into the batch plant office. On his way back to his truck Mizer spoke to Maine who then walked toward his office and Mizer asked the two men over to his truck. I do not credit Mizer's version of this event. The testimo- ny of both Maine and Keller establish that Maine interro- gated Keller as to whether he had signed the petition. I find that both men knew what petition was referred to. Such 20 Keller testified that Maine did not state what petition he had reference to but Keller understood what Maine was asking because he had been nearby earlier when Mizer approached Ross at the hatcher's shack to sign, and Keller had stood at the doorway saying "intimidation, intimidation " interrogation is unlawful under Section 8(a)(I) of the Act. Also on February 20, William Norris entered Elgrim's office. Maine was there. Norris stated he had heard of the new increased offer by the Company and Elgrim confirmed the proposal. Norris also said he had heard about a petition being passed around and asked who had it. Elgrim told him Mizer had it at the batch plant. He found Mizer there and signed the petition. Elgrim testified that Norris came to him on February 20 inquiring about the petition and what offers had been made. He told Norris he knew a petition was around but had not seen it and that no offers had been made other than those made at the February 6 meeting. Elgrim testified that he did not state the particulars of that offer. I credit Norris and find that by his conduct, Elgrim fur- thered the dissemination of the wage offers of Respondent as well as the solicitation of signatures on the petition to retrieve the union authorization cards. Even if Elgrim, as he claimed, referred only to the February 6 offer, this was a reaffirmation of previous unlawful conduct and violative of Section 8(a)(1) McGovern learned from several other drivers on Febru- ary 19 that David Mizer was obtaining signatures from employees at the yard on a petition similar to the one em- ployees had signed to reject the union the year before. When he came to work on February 20 McGovern accepted the petition offered to him by Mizer, read it, and returned it. McGovern then tried to reach the union representative but was not successful in doing so until that afternoon, at which time he was told that three men had already been at the union hall with the petition and demanded the return of the cards. When McGovern returned to the yard at 4:30 or 5, he asked Clinton if the latter would go with him to the trailer to find out what was going on. Clinton said he would meet McGovern at the trailer. While McGovern was waiting for Clinton, Liljestrand came out of the trailer and asked whether McGovern wished to speak to him. McGovern replied that he did, but was waiting for Clinton tojoin them. Liljestrand told McGovern that if he wanted to talk, Liljest- rand would speak only to him and alone. At Liljestrand's suggestion, the two went to a bar about two miles from the yard, arriving between 5 and 6 p.m. According to McGovern, in the conversation that ensued, Liljestrand told McGovern that he would never let the Company go Union if he could avoid it because he did not want a third party telling him how to run his Company and, financially, the Company could not afford the union scales and would go under. Liljestrand told McGovern the Union would not give employees representation and could not protect theirjobs. McGovern replied they had no represen- tation now and employees had no recourse from Maine's propensity to discharge them Liljestrand told McGovern that employees could always come to him or Crockett. Mc- Govern responded that he had worked there 10 months and had not even met Liljestrand before Liljestrand restated the Company's latest wage proposal and indicated the employ- ees could have their own lawyer, etc. He also told Mc- Govern that if employees could get their cards back they might be able to negotiate more money. McGovern advised Liljestrand that he had spoken to the union representative and that there was no way they could get the cards back. CROCKETT-BRADLEY INC. LilJestrand asked why McGovern did not offer the Union representative something McGovern stated he doubted that this would be successful. LilJestrand testified that someone told him Brangan and McGovern wanted to talk with him and he said "no." He did not recall Clinton's name being mentioned . He agreed to see McGovern only, went out to meet him , and suggested that they go to a bar to talk . LilJestrand further testified that McGovern asked him about various wage and other bene- fits offered by Crockett when the "problem first started" and that he reaffirmed those offers and most of what Crock- ett had said . LilJestrand indicated he believed it was 25 or 50 cents and a reoccurance of these increases over future years. He talked about the fact that the pool industry in the South of Florida was basically nonunion and it would be very difficult to remain competitive with Teamster rates. LilJestrand testified he believed he spoke of the rates paid by companies working on union scale and discussed how these would effect their Company if they had to pay union scale. He asked McGovern what the real problems of em- ployees were that caused the situation to arise . LilJestrand recalled that McGovern mentioned certain individuals in the Company who created difficulties for the men on the job, and of other problems such as safety and the need to be able to handle problems as they came up. Liljestrand asked McGovern why he thought they needed a third party to discuss things like these matters and McGovern referred to his past experience in working under a union contract in the North, and being accustomed to having a third party speak for him on grievances, etc. LilJestrand admitted say- ing they employees did not need a representative because they could always come to him . LilJestrand denied offering McGovern 50 cents an hour to drop the Union . He denied saying that if McGovern could get the cards back the Com- pany would offer more money, or telling McGovern to offer the Union money to get the cards back . LilJestrand admit- ted talking about the petition that some of the drivers had circulated and that they discussed whether it was going to be effective in getting the cards back but he could not remember specifically what he said. Both versons of this conversation disclose unlawful inter- rogation , threats, and offers of benefit by Respondent, made for the purpose of interfering with the union activities of employees, which constitute violations of Section 8(a)(I) of the Act. Rogers testified that several days. after the petition inci- dent, while he was at a jobsite in Del Ray, Crockett came by and engaged him in conversation Crockett stated he did not want the men to think the Union was a piece ,of cake, adding that you could lose a job whether you were Union or not. Crockett then asked Rogers whether he was afraid for his job. Rogers testified that although he was afraid, he told Crockett he was not. Crockett denied having any conversation with Rogers subsequent to February 7, and specifically denied asking Rogers what he thought in reference to the Union or telling Rogers he could lose his job , Union or no Union. Roger's central role in the discussion of job security at the meeting of February 6, including the fact that he had been specifically singled out by Maine as one who had been discharged several times and who was particularly vulnera- 445 ble to discharge, lends credibility to the incident he de- scribed . In addition Crockett knew he had been selected by fellow employees as a steward and Respondent was still actively trying to destroy interest in union representation; I am convinced that Rogers accurately reported this conver- sation . I find the statements made coercive and in violation of Section 8(a)(1). At the hearing, the General Counsel amended the com- plaint to add an allegation of an 8(a)(1) violation based on the following incident. King testified that he was present on July 2 when McLellan , who had received the General Counsel's subpena, went to Maine's office and showed the subpena to Maine . Bob Vogt was inside Maine's office at the time of the conversation and King was at the watercool- er beside the office door , standing about 3 inches away from McLellan . When McLellan showed the subpena to Maine, the latter told him "Forget it, you don't have to go." King injected the comment "what do you mean , he doesn't have to go, that is a subpena ." Maine said that the Company lawyer told them the men did not have to show up "unless it goes to a higher court ." King replied "Baloney , it is just like a traffic citation . If you get one to go to court , you had better show up . If you don't go somebody is going to serve a bench warrant on you ." At that point McLellan went out to make a phone call. Maine testified that McLellan said he wanted to see him in private and that he, thereupon , dismissed all others pre- sent in his office . He asserted that none of their conversa- tion was overheard . Maine related that conversation as follows: McLellan told him of the receipt of the subpena from the N.L.R.B and, taking it out of his pocket, asked Maine what he should do about it. Maine replied, "You have to do whatever you have to do." McLellan asked, "Do I have to go to the Board?" Maine told him that from his own experience, "I don't think so, but I'm not sure." Maine admitted he told McLellan "the way I looked at it, it was not an indictable subpena and that they couldn't put him in jail or anything if he didn 't go." According to Maine, McLellan said he would call a friend who is a lawyer in Miami and Maisie told McLellan that if he wanted to call a lawyer this was what Maine thought he should do. Mc- Lellan came back later and said he had to go to the lawyer because he had to answer the subpena, and Maine said "O.K." Maine testified that McLellan parked his truck and left. On cross-examination Maine testified that McLellan told him he ' had talked to the Board attorney and was ad- vised to come down to the Board office that very day; McLellan asked whether he would be "on the clock" and Maine told him he would not be. McLellan later reported that, after he talked with the Board attorney, he was re- leased from the subpena . Maine further testified that Mc- Lellan did not tell him he in fact had never come to Miami to talk with the Board attorney. I credit King's testimony that he was present during at least the part of the conversation he reported . The state- ments made by Maine, both in that conversation and in those related by Maine as having occurred with McLellan without a witness , were clearly designed to encourage non- compliance with a Board subpena. Such conduct interferes with the vindications of employee 's rights under the Act and is a violation of Section 8(a)(1). 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The refusal to bargain (a) The demand and refusal On February 8, Respondent received from the Union a letter dated February 7, demanding recognition as collec- tive-bargaining representative of Respondent's employees in a unit consisting of all truckdrivers, helpers, batchers and front-end loaders, excluding watchman, guards, profession- al employees and supervisors. By letter dated February 19, Respondent refused to extend recognition to the Union stating "We doubt that you represent an uncoerced majority of our employees. We suggest that you petition the National Labor Relations Board for an election." At the hearing herein Respondent challenged the appropriateness of the unit claimed by the Union and set forth in the complaint,21 and the Union indicated its desire to represent any grouping of Respondent's employees found appropriate which ex- cluded the pool and commercial gunnite crews and the grout crews. (b) Function of the employees Over half of Respondent's work involves swimming pool construction on a subcontract basis, applying gunnite to previously prepared swimming pools. Such preparation in- cludes the excavation of the hole, the filling of it with prop- erly placed reinforcing rods, the installation of all plumbing, and the placing of appropriate screening lines When the pool preparation at a given site has reached this stage it is ready for the work which Respondent supplies and Elgrim receives a notification to that effect. A field superintendent is assigned to check the pool for readiness and to see that the proper inspections have been performed as required by the governing municipality. The pool is then placed on the work schedule by Elgrim and assigned to one of the pool crews to perform the gunnite construction work. The pool crew, or gunnite crew, is made up of the nozzle- man, the finisher, and one or two hole men. It is usually the nozzleman who is designated foreman and who drives the truck containing the gun, the compressor, and other equip- ment to the assigned jobsite. His crew may leave with him from the yard in the morning or may meet him at the jobsite, at their option. The foreman keeps the record of the crew members' working time. When the foreman arrives, he re- checks the pool for readiness. His crew may have to pump out excess accumulated water, repair a minor cavern, and/ or erect tarps to protect buildings or shrubbery. When he has determined that the work can proceed, the foreman gives the mixer driver a signal to commence mixing his load When the load of mixed cement and sand is ready for application the driver backs the mixer truck up to'the pool crew truck which is equipped with a compressor and a hop- 21 The unit description is All truck drivers, helpers. batchers and front-end loaders employed by the Respondent at the Ravenswood Road location, excluding laborers. mechanics , parts men, carpenters , dispatchers. trimmers, hole men. noz- zlemen , carpenter's helpers , mechanic's helpers. watchmen , office cleri- cals, guards, professional employees and supervisors as defined in the Act per to the gun. The driver attaches his discharge chute to the hopper which feeds the material into the high pressure hose. This hose is also attached to the air compressor and leads to the nozzle where water is inserted and the mixture is applied by the nozzleman to form the configurations of the pool. On signal from the foreman, the driver throws the switch on the compressor and commences feeding his load into the hopper by means of controls and levers on his truck. It takes an average of approximately an hour to discharge a full load in this fashion. During this time the mixer driver is tending the flow of material from his truck. When the load is nearly emptied, the driver signals the foreman, turns off the compressor, retrieves the chute, obtains the foreman's signature on his trip ticket, and returns to the yard for his next load assignment. The commercial crews, also referred to as the Holton or Union crews, are made up of nozzlemen, trimmer, laborer, and an operating engineer The mixer driver supplies the commercial crews with the needed material in much the same fashion as he does the pool crews, with one exception: he does not handle the compressor switch, as jurisdiction of this work goes to the operating engineer The driver handles the controls governing the discharge of his load into the hopper of the gun. Mixer drivers do not supply the grout crews, who carry their own material. Grout is hydraulically pumped concrete used to stabilize soil The grout crews consist of a pipe man and several laborers or mortar mixers and a pump man. They, like the other crews, are dispatched from the Ravens- wood Road yard, where they load their supply of material at the batch plant. The grout crews perform pressure grout- ing for both new construction and repair work. Roughly this involves the placing of pipes into the ground at specified places and depths according to 'engineering drawings and the injection of a mixture of sludge and cement under pres- sure, the purpose of which is to shore up walls or buildings, prepare for foundations where the subsoil is not of sufficient bearing quality to withstand the weight of construction; or to prepare for pool construction. The 12 or 14 mechanics work in the shop at the Company's 7th Avenue location where they perform regular and major repairs on all types of Respondent's equipment. Two or three parts men purchase, keep stock and inventory, and supply the shop with needed parts. A lead mechanic and one or two helpers is assigned to the Ravenswood Road yard to perform minor repair service on the spot when need- ed for any of the trucks or equipment while at the yard.. They punch the timeclock used,for mixer drivers but remain under the 'supervision of the shop superintendent at 7th Avenue. Also located at the yard 'is the batch plant where the material is stored and dispensed 22 Two tractor-trailer` driv- 22 In February Respondent also operated a portable batch plant situated in the South Miami area primarily to service the Fountainebleau Park con- tract, but which was also used by drivers supplying pools in that area. The large contract having been completed, the batch plant has since been dis- posed of Also at that time Respondent employed a carpenter and an appren- tice carpenter who were located at the Ravenswood Road yard The experiment forwhich they were employed has since been abandoned That new division involved home remodeling but most of the work performed by the carpenters during the 3 months of their employment was on improve- ments to Respondent's property, and did not entail work related to the I CROCKETT-BRADLEY INC ers haul sand to the yard A driver operates a front-end loader for moving sand about the yard where it is spread to dry and to the batch plant. The batcher operates the batch plant where the mixer trucks are loaded in a rotating order. A dispatcher gives the material requirements and their se- quential order to the batcher who fills the mixer trucks to those specifications. The driver then obtains his trip ticket from the dispatcher and proceeds to the jobsite specified (c) Function of mixer drivers In its operations the Respondent utilizes approximately 65 pieces of heavy equipment, mostly specially fitted trucks, of which 35 are mixer trucks. Mixer truckdrivers are hired on the basis of their experience in handling heavy truck equipment and are given about 3 days of training in the operation of the Company's trucks and equipment. The gunnite mixer drivers, together with the front-end loader operator, the batcher, and two tractor-trailer drivers,. are under the separate supervision of the yard superintendent. These employees punch the timeclock located at the batcher plant. Drivers check over their equipment, which is a con- verted cement mixer truck,23 complete various driver logs and reports, including one listing any mechanical malfunc- tion of their unit which is placed in the mechanic's shack, clean their drums of any clinging material from the preced- ing load, participate in the loading on their turn at the batch plant, transport the material to the job site, discharge the load, and return to the yard and again prepare the truck while waiting their turn to take out another load. Specific trucks are assigned to each mixer driver If his truck breaks down he is assigned another truck if one is available. Otherwise he is given the option by the yard su- pervisor of performing "fill in" work around the yard rather than punch out on the timeclock. However, a driver is not required to accept such work. (d) Employment conditions Except for annual outings, the Company conducts sepa- rate meetings for the driver and yard employees and for crew members. The commercial crews are covered by the several area bargaining agreements of the different con- operation of the drivers or the crews 23 The Company presently has a prototype of specially designed equipment which will be mounted on the trucks in the place of the mixer drums, and is taking bids for the building of such equipment and the conversion of the trucks It is anticipated that this will be accomplished in approximately I year Assertedly this will enable the Company to assign the material supply truck and driver to the gunnite crew and will require only one truck. instead of the present minimum of two , to service a crew , because the prototype is designed to carry sand and cement in separate compartments and to carry a small mixer which enables the mixing of smaller quantities as demanded by the material flow requirements thus eliminating loss from spoilage of a load caused by its setting reaction within 2 hours after the cement and sand are mixed The evidence presented does not show why this change in mixing procedure suggests the possibility of assigning the driver and his equipment to the crew or why one such truckload is sufficient to replace the two and more per pool now used Moreover, Respondent also supplies various jobs with loads mixed at the hatching plant both dry and wet, depending upon the requirements and the distance I conclude that the effect of the antici- pated equipment conversion is speculative, and the time factor involved too remote to affect the issues raised herein 447 struction unions, and their conditions of employment and benefits accord with the governing labor agreement. All other employees receive the same vacation, holiday, and insurance benefits. Drivers and pool crew members, but not grout crews or mechanics, receive 2-hour showup time Drivers and mechanics receive free uniforms. Others, if they use them, pay for their uniforms. There have been permanent transfers of employees from driving to crew work In such cases the individual is usually trying to train for a higher paying job and the assignment is made on a trial basis during which time the employee is paid at the rate of his former job There is no real inter- change of job assignments between drivers and crew mem- bers Although there was considerable testimony regarding cleanup assistance to crews and shoveling performed by drivers, the record establishes that most of the shoveling is done to retrieve spillage at the hopper caused by new drivers running the hopper over, and even this shoveling is not ajob requirement. Any cleanup assistance to the crews is very infrequent and is on a voluntary basis, permitted only at the end of the driver's last load of the day. Drivers have specific instructions to hurry back to the yard at other times to take out their next load. Although the discharge of the material requires the driver to work in close coordination with the nozzleman of the crew for only about an hour with each load, he spends approximately 50 percent of his working time at the con- struction site This includes time consumed in waiting to discharge his load either because the pool crew has not arrived or is not ready, or because there is another truck ahead of him still discharging a load These are faults of dispatch timing not related to his job function. The driver also spends a substantial amount of his working time wait- ing at the yard for his turn for loading at the batching plant. Drivers have fairly frequent contact with the yard me- chanics. Their contact with the mechanics at the shop is limited to those times when a driver takes his truck to the shop for repair and thejob is sufficiently minor to warrant his waiting for its completion He also has occasion to deal with a shop mechanic if his truck breaks down on the road and cannot be brought in under its own power. The shop mechanics go out on such emergency calls. Trucks, appropriately equipped, are assigned to the crews A member of the crew and/or the foreman drives such trucks to the jobsite. Crew trucks are used primarily to move the needed construction equipment and are incidental to the primary function of the crew which is the construc- tion work, whereas the primary function of the mixer driver is the transporting of material In these circumstances, I do not view the use of trucks by the crews as diminishing the separate identifiable function of the mixer drivers. All employees have ultimate common supervision, and all except the Holton crews, who work under the terms of their respective collective-bargaining agreements, have the same holidays, vacation plan, and insurance benefits. (e) Appropriateness of the unit requested Respondent asserts that only a unit of all production and maintenance employees excluding all Holton employees is appropriate In support of its contention Respondent urges 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the application of Board precedent involving craft sever- ance, and those dealing with functional integration into the production process or where drivers spend a substantial part of their time in duties not related to their distinct function 24 Respondent concedes, however, that if the drivers qualify for representation apart from the pool crews, then the me- chanics should be excluded from the unit Emphasis is placed on the driver's functional relation to the whole crew during the "unloading" process This, it is argued, demon- strates that the mixer driver is primarily a production em- ployee and that his driving is only incidental to that function. I cannot accept this view of the mixer driver's job in light of the clear separability of the similar Holton crews from the mixer drivers who service them. Further, I am convinced that the cases governing construction crafts urged by the General Counsel are applicable to truckdrivers occupied in hauling material to construction crews, and I view Respondent's operation as falling within the construction industry.25 Because of the work relationship and community of inter- est between mixer drivers and other drivers who handle the material supply process carried on in the Ravenswood Road yard, I find that a unit of mixer drivers should include the front-end loader operators, the tractor-trailer drivers, and the batchers. When the Miami plant was in operation the employees assigned there performed the same functions as those at Ravenswood Road and all drivers sent to the Mi- ami area used that plant for a second load I find that those employees were part of the appropriate unit in February 1973. I find, however, that although the carpenters worked at the Ravenswood Yard in February, they had no particu- lar functional relationship or community of interest with drivers and I shall not count them as part of the unit. Simi- larly, the dispatcher who is directly supervised by Elgrim, and sharing his office, performs a function which is quite distinct from that of drivers but which is related more spe- cifically to the operating crews' needs. Accordingly, the dispatcher should be excluded. Accordingly, I find that the unit urged by the General Counsel is, and has been at all times material herein, appro- priate. (f) The Union's majority status The General Counsel presented 34 authorization cards signed by employees of Respondent designating the Union as their collective-bargaining representative . Of these, 18 were signed on February 2, one was signed on February 4, 4 on February 5, and 5 on February 7, totaling 28 cards executed before the Union's demand for recognition. Three more cards were signed on February 9, one on February 12, one on February 17, and one on February 20, which the General Counsel has presented as proof of a continuing 24 Mallinckrodt Chemical Works, Uranium Division, 162 NLRB 387, Kala- mazoo Paper Box Corporation, 136 NLRB 134, and related cases 25 See R B Butler, Inc, 160 NLRB 1595, 1598-99 and cited cases, Hydro Constructors Incorporated, 168 NLRB 105, Sydney Faulks and Oliver Faulks d/b/a Faulks Brothers Construction Co, 176 NLRB 324 Also see Graver Construction Company. 118 NLRB 1050 interest in union representation The payroll record of February 7 submitted by Respon- dent shows that there were 37 employees in job categories falling within the unit hereinabove found appropriate Ac- cordingly, I find that the Union represented a clear majority of the Respondent's employees in the unit for which it pre- sented its demand. It is established by the foregoing that the unit covered by the Union's recognition request is appropriate for collective bargaining purposes and that the Union represented a ma- jority of Respondent's employees in that unit when it de- manded recognition and bargaining in its February 7 letter to Respondent. There remains, however, the question of whether, in the circumstances of this case, considering par- ticularly the Respondent's other unfair labor practices, a finding of an 8(a)(5) violation and a remedial bargaining order are warranted under the principles declared in N L R B. v Gissel Packing Co., 395 U S. 575 (1969) Al- though, in its letter of February 19 refusing to extend recog- nition, Respondent questioned that the Union's majority was uncoerced, no evidence was submitted to support any such claim and this contention was not presented at the hearing or in the Respondent's brief I therefore regard such argument as having been abandoned I also regard the rais- ing of that question as having been made in bad faith in light of Respondent's other conduct. As has been found supra, Respondent engaged in an in- tensive campaign and course of conduct which was de- signed to interfere with, restrain, and coerce its employees from the very first day it learned of the interest in union organization, and discriminated against them in their condi- tions of employment for the purpose of depriving employees of rights guaranteed by Section 7 of the Act. Even after employees had demonstrated their unanimous desire for union representation both on the evening of the 6th and the day of the 7th, Respondent continued its campaign with daily incidents of unlawful conduct, withholding its re- sponse to the Union demand until the day the circulation of a petition to revoke union authorizations began. Such conduct clearly establishes Respondent's rejection of the very principle of collective bargaining from the very begin- ning I further find that the unlawful interrogation, threats, warnings, promises, offers, and the ultimatum that the em- ployees deal with Respondent through a committee or attor- ney rather than their union representative, enforced by locking out employees, and followed by further interroga- tion and threats culminating in open support of the petition to revoke union authorization and increased offers of bene- fits if the leading union adherent could obtain the return of the authorization cards from the Union, created an atmo- sphere which effectively destroyed any possibility of an op- portunity for the exercise of a free choice by employees. Such substantial, pervasive, and extensive unlawful conduct is so egregious as to require a finding, under Gissel, that a bargaining order is the only effective remedy Accordingly, I find that by failing and refusing, since February 7, 1973, to recognize the Union as the majority representative of its employees in the aforesaid appropriate unit, and bargain with it as requested, the Respondent vio- lated Section 8(a)(5) and (1) of the Act, and that, to effectu- ate the policies of the Act, a bargaining order is necessary I CROCKETT-BRADLEY INC 449 not only to remedy that violation, but also to remedy the Respondent's independent 8(a)(3) and (1) violations CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2) and (6) of the Act. 2. Teamsters Union Local 769, affiliated with interna- tional Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3 All truckdrivers, helpers, batchers and front-end load- ers employed by Respondent at the Ravenswood Road lo- cation, excluding laborers, mechanics, parts men, carpenters, dispatchers, trimmers, hole men, nozzlemen, carpenter's helpers, watchmen, office clericals, guards, pro- fessional employees and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act 4 The Union at all times since February 7, 1973, has been and now is the exclusive representative of all the em- ployees in the aforesaid unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5 By failing and refusing to recognize and bargain col- lectively with the Union as the exclusive bargaining repre- sentative of the employees in the appropriate unit set forth above, on and after February 8, 1973, Respondent engaged in, and in engaging in, unfair labor practices within the meaning of Section 8(a)(5) and (I) of the Act. 6. By acts of interrogation, threats, offers of benefits, urging the formation of employee committees to deal with the Respondent, offering to negotiate a contract through an employee committee or their attorney, supporting the Union card withdrawal petition, and telling employees the plant was closed and to pick up their checks the next morn- ing, all in order to induce employees to refrain from union activity and to revoke their designation of the Union as their bargaining representative, and by interfering with the vindi- cation of employees rights under the Act, Respondent en- gaged in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 7. By discriminating against those employees by locking them out and depriving them of work opportunities and wages to force employees to deal with Respondent through committees or an attorney rather than the Union, Respon- dent engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 8 The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. loss of earnings or other monetary loss they may have suf- fered as a result of such discrimination, with interest there- on, to be computed in the manner usually prescribed by the Board. Having found that the Union represented a majority of the employees in an appropriate unit, and that, for the rea- sons stated above, a bargaining order is required, it will be recommended that the Respondent recognize and bargain with the Union upon request Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended. ORDER 27 The Respondent, Crockett-Bradley, Inc ; Concrete Sci- ences, Inc., C B Materials, Inc , and R E Holton, Inc., its officers, agents, successors, and assigns, shall- I Cease and desist from (a) Interrogating, threatening, offering benefits, urging the formation of employee committees to deal with the Company, offering to negotiate a contract through an em- ployee committee or their attorney, supporting a union-card withdrawal petition, telling employees the plant was closed and to pick up their checks, or interfering with the vindica- tion of employees' Section 7 rights (b) Locking out its employees and depriving them of work opportunities and wages, to force them to deal with the Company through employee committees rather than through a Union, or in any other manner discriminating against employees in regard to hire or tenure of employment or any term or condition of employment to discourage membership in Teamsters Union Local 769, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, or any other labor orga- nization. (c) Refusing to bargain collectively with Teamsters Union Local 769, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of the employees in the following appropriate unit* All truckdrivers, helpers, batchers and front-end load- ers employed by Respondent at the Ravenswood Road location, excluding laborers, mechanics, parts men, carpenters, dispatchers, trimmers, hole men, nozzle- men, carpenter's helpers, watchmen, office clericals, guards, professional employees and supervisors as de- fined in the Act THE REMEDY Having found that Respondent engaged in and is engag- ing in certain unfair labor practices it will be recommended that it cease and desist therefrom and take certain affirma- tive action necessary to effectuate the policies of the Act. Having found that Respondent locked out its employees and thereby caused a loss of work opportunities and wages in violation of Section 8(a)(3) of the Act, it will be recom- mended that Respondent make those employees 26 for their 26 Such group shall include the two trainees sent home by Maine Although there is no real explanation in this record how the timecards of McGovern and Keller happened to be punched. I find that neither of these drivers entered the yard and they are covered by the Order herein I do not view the status of the tractor-trailer driver as sufficiently litigated at the hearing and shall defer his entitlement to backpay to the compliance stage of this proceed- in In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, he adopted by the Board and become its findings, conclusions, and Order and all objections thereto shall be deemed waived for all purposes 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self- organization, to form, join, or assist the Union, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2 Take the following affirmative action which is neces- sary to effectuate the policies of the Act- (a) Upon request, bargain with the Union named above as the exclusive representative of the employees in the ap- propriate unit described herein with respect to rates of pay, wages, hours of employment, and other terms and condi- tions of employment, and if an understanding is reached, embody such understanding in a signed agreement. (b) Make the employees whole for any loss of earnings suffered by them, due to the February 7, 1973, lockout of employees, in the manner set forth in the section hereof entitled "The Remedy." (c) Preserve, and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, person- nel records, and all other records necessary for determina- tion of the amount of backpay due and the rights of reinstatement under the terms of this Order. (d) Post at its place of business in Fort Lauderdale, Flori- da, copies of the attached notice marked "Appendix " 28 Copies of such notice on forms provided by the Regional Director for Region 12, after being signed by an authorized representative of Respondent, shall be posted by Respon- dent 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 Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 12, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 28 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 " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Holton, Inc., have violated the National Labor Relations Act and we have been ordered to post this notice. The National Labor Relations Act gives you, as employ- ees, certain rights including the right to support and join a labor union and to bargain through your representative, without fear of any interference, restraint, coercion, or dis- crimination. Accordingly, we give you these assurances: WE WILL bargain, upon request, with Teamsters Union Local 769, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining repre- sentative of all employees in the unit consisting of; All truck drivers, helpers, batchers and front-end loaders employer by the Company at the Ravens- wood Road location, excluding laborers, mechanics, parts men, carpenter's helpers, watchmen, office clericals, guards, professional employees and super- visors as defined in the Act. with respect to rates of pay, wages, hours of employ- ment, and other terms and conditions of employment, and if an understanding is reached, embody such un- derstanding in a signed agreement. WE WILL make our employees whole for any loss of pay, with interest, suffered by them by reason of the lockout on February 7, 1973. WE WILL NOT discourage membership in Teamsters Union Local 769, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other union, by locking out our employees because of their union activities. WE WILL NOT interfere with the exercise of employees' rights by interrogation, threats, offers of benefits, urg- ing the formation of employee committees to deal with the Company, offering to negotiate a contract through an employee committee or their attorney, supporting the union-card withdrawal petition, and telling em- ployees the plant is closed and to pick up their checks, or interfere with the vindication of those rights WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist the above-named Union or any other labor organization, to bargain collectively through rep- resentatives of their own choosing and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities After a trial at which all sides had the chance to give evi- dence, it has been decided-that we, Crockett-Bradley, Inc., Dated By Concrete Sciences, Inc., C B Materials , Inc., and R. E. CROCKETT- BRADLEY, INC, CON. CRETE SCIENCES , INC, C B MA. TERIALS, INC, AND R. E. HOLTON, INC (Employer) (Representative) (Title) CROCKETT-BRADLEY INC. 451 This is an official notice and must not be defaced by or covered by any other material. Any questions concerning anyone this notice or compliance with its provisions may be direct- This notice must remain posted for 60 consecutive days ed to the Board's Office, Madruga Building Suite 410, 1570 from the date of posting and must not be altered, defaced , Madruga Avenue, Coral Gables, Florida 33146 , Telephone 305-350-5391.