Norris Concrete Materials, Inc.

NORRIS CONCRETE MATERIALS 289 Norris Concrete Materials , Inc. and Clarence Alvin Dodson. Cases 11-CA-9735 and 11-CA-10403 28 November 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS BABSON AND STEPHENS On 17 March 1983 Administrative Law Judge William N. Cates issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions and a supporting brief including an answer to the Re- spondent's exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions, cross-exceptions, and briefs and has decided to affirm the judge's rul- ings, findings,' and conclusions as modified and to adopt the recommended Order as modified. The judge found that the Respondent, a corpora- tion which sells ready-mix concrete, violated Sec- tion 8(a)(1) of the Act about 8 March 1982 when its president Norris threatened employees with dis- charge if they testified at an unfair labor practice hearing before the Board.2 The judge further found that the Respondent violated Section 8(a)(4) and (1) of the Act by issuing written warnings to, and by constructively discharging, employee Clar- ence Alvin Dodson in late March 1982. We find no merit in the Respondent's exceptions to these find- ings. In addition to the above allegations, the consoli- dated complaint asserted that the Respondent vio- lated Section 8(a)(1) of the Act about 1 September 1980 by informing its employees that it had issued an unsatisfactory job recommendation for a former employee because of the employee's protected con- certed activities, and that the Respondent violated Section 8(a)(4) and (1) of the Act about 19 Decem- ber 1980 by discharging Dodson. These allegations were encompassed by a charge (Case 11-CA-9735) separate from, and filed earlier than, the one (Case i The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 The judge attributed the threat to the Respondent's supervisor Ken- drick The record and the judge's discussion of the facts reflect that the Respondent 's president Norris made the unlawful statement We there- fore correct the judge's inadvertent reference to "Kendrick" (JD slip op at 20) by substituting the name "Norris," and find it unnecessary to rely on the judge's discussion of Rule 801(d)(2)(D) of the Federal Rules of Evidence 11-CA-10403) which resulted in the unfair labor practice findings mentioned above. This earlier charge, as explained below, was withdrawn with Regional Director approval and later reinstated. The judge declined to make unfair labor practice findings with respect to these allegations based on his interpretation of Winer Motors, 265 NLRB 1457 (1982). Contrary to the judge, we conclude that the Regional Director properly reinstated the with- drawn charge (and an issued but withdrawn com- plaint) beyond the normal 6-month period pre- scribed in Section 10(b) of the Act,3 and that the Respondent additionally violated Section 8(a)(4) and (1) as alleged. On 26 February 1981 Dodson filed timely unfair labor practice charges in Case 11-CA-9735 alleg- ing that the Respondent violated Section 8(a)(4) and (1) of the Act by laying him off about 19 De- cember 1980 because his son, Randall Dodson, had filed charges with the Board and had provided sup- porting testimony. The Acting Regional Director found merit in these charges and issued a complaint on 10 April 1981. On 15 March 1982 Dodson and the Respondent entered into a non-Board settle- ment agreement4 pursuant to which the Respond- ent agreed to reinstate Dodson and pay him $1500.5 Dodson, in turn, agreed to withdraw his pending charge. On 26 April 1982 the Regional Di- rector issued an order which both approved Dod- son's withdrawal request and withdrew the above complaint. One week later, on 3 May 1982, Dodson filed timely charges in Case 11-CA-10403 alleging that he was constructively discharged shortly after his reinstatement because he had filed charges with the Board. By letter dated 25 June 1982 the Regional Director notified the parties that the evidence adduced in the investigation of Case 11-CA-10403 indicated that the terms of the non- Board settlement in Case 11-CA-9735 had been violated. The Regional Director informed the par- ties that he was revoking his order of 26 April 1982 and reinstituting the complaint and notice of hearing in Case 11-CA-9735. Subsequently, on 28 June 11982, the Regional Director issued an order consolidating cases, consolidated complaint, and notice of hearing. In its answer to the consolidated complaint, the Respondent raised as a defense its prior agreement with Dodson which, the Respond- 9 Sec 10(b) provides in relevant part that " no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board . 4 Non-Board settlements such as this also are referred to as "private settlements" and "non-Board adjustments " See, e g, National Labor Re- lations Board Casehandling Manual (Part One), Unfair Labor Practice Proceedings, Sec 10142 s The judge erroneously stated in his decision that the amount paid to Dodson was $15,000 282 NLRB No. 45 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent claimed, "fully compromised and settled" the "previous matters." The judge concluded that the Board's decision in Winer, which held that a withdrawn charge may not be reinstated beyond the normal 6-month period prescribed in Section 10(b) of the Act, pre- cluded him from making unfair labor practice find- ings with respect to the allegations in Case 11-CA- 9735. The judge did, however, make factual find- ings regarding the matters encompassed by Case 11-CA-9735 as background for the evaluation of conduct alleged to be unlawful in ' Case 11-CA- 10403. We find that the judge properly analyzed and drew sound conclusions from the evidence. We therefore adopt his factual findings and conclu- sions in Case 11-CA-10403, as set forth in perti- nent part below. The judge found that two previous unfair labor practice charges filed by Dodson's son, Randall, and settled in early 1980, caused the Respondent "consternation," "worry," "inconvenience," and "expense." Following the filing of Randall Dod- son's second charge in 1980, Norris informed Plant Manager Kendrick that "the whole Dodson family had caused trouble, and . . . we were going to have to get rid of them." About 1 September 1980 Kendrick, an admitted supervisor, informed former employee Richard Mosely that "the Norrises" were going to prevent Randall Dodson from get- ting a job at the Olin Company.6 The judge con- cluded that the Respondent carried through with its threat to get rid of the entire Dodson family by laying off Clarence Alvin Dodson on 19 December 1980. Clarence Dodson had been employed by the Re- spondent since 1974 as a truckdriver with various maintenance and office responsibilities.7 Regarding Dodson's 1980 layoff, Norris testified that numer- ous reasons prompted the Respondent's actions, in- cluding bad weather, deteriorating business condi- tions, and degenerating work performance. Howev- er, the Respondent's 20 March 1981 statement of position to Region 11 claimed Dodson was laid off because he lacked mechanical and carpentry skills which the Respondent needed during the winter months. The judge found that the unsupported rea- sons and the shifting bases proffered to justify the Respondent's actions in laying off Dodson support- ed the conclusion that the Respondent's real moti- 6 Although the judge declined to make an unfair labor practice finding regarding this statement due to his interpretation of Winer, he cited Glover Bottled Gas Corp., 255 NLRB 137, 143 (1981), enfd 697 F 2d 294 (2d Cir. 1982), for the proposition that it is a violation of Sec. 8(a)(1) of the Act for an employer to threaten to give, or to give, an employee an unfavorable job reference in retaliation for filing charges with the Board 7 These responsibilities included routine truck maintenance, answering the office telephone, and cleaning up around the plant. vation was to punish Dodson because his son had filed charges with the Board. The judge concluded that if Winer did not preclude him from doing so, he would find that the Respondent violated Section 8(a)(4) of the Act by laying off Dodson in Decem- ber 1980.$ Dodson returned to work on 15 March 1982 pur- suant to the postcomplaint non-Board settlement agreement mentioned above. The settlement docu- ment stated that Dodson would be employed in the position of "truckdriver only," and would be the last employee in his classification to be laid off for a 1-year period. The judge'determiried that the Re- spondent did not enter into its agreement with Dodson in good faith. He found, for example, that shortly before the agreement was executed and Dodson was reinstated, the Respondent created systems for the classification and discipline of its employees. Under the new classification system, Dodson, the sole "truckdriver only" employee, no longer would perform any of his previous mainte- nance and office duties.9 Further, Dodson would be paid only for time actually spent hauling con- crete-at other times, Dodson was to "punch out." This arrangement reduced Dodson's hours to only 25 to 30 per week.1 ° The judge found, and we agree, that the Respondent created the new classifi- cation system in response to the requirement that it reinstate Dodson in settlement of the unfair labor practice charges and for the purposes of "starving" Dodson out of his new employment. We also agree with the judge's further finding that the Respond- ent intended to scrutinize Dodson's activities and attendance very closely in order to discipline him for the slightest infraction of its new employee rules.11 Dodson was sent home shortly after his arrival at the plant on the first few mornings following,his reinstatement. Although he was told by Norris to "hit the clock and go home" because "there ain't no concrete to haul," other drivers were permitted to remain at work. Norris' action in sending Dodson home violated one of the most important purposes of the parties' 15 March agreement; i.e., to protect Dodson from layoff. Further, Dodson was assigned the Respondent's "sorriest truck," one with possible defective steering and brake mecha- 8 The judge cited Houston Coca Cola Bottling Co., 256 NLRB 520, 533 (1981), which addresses, in part, the application of Sec 8(a)(4) of the Act to relatives of employees who file charges with the Board 9 Prior to Dodson's reinstatement in March 1982, at no time had there been an employee classification known as "truckdriver only " to The judge noted that Norris had expressed a desire to reduce Dod- son's hours even more, but was counseled by the Respondent's attorney against such a further reduction in work hours'because the decrease under consideration would have rendered Dodson eligible for unemploy- ment benefits. 11 These findings are based on Kendrick 's credited testimony. NORRIS CONCRETE MATERIALS nisms, and was reprimanded within days for harass- ing a customer, an incident which in fact did not occur. The judge found, and we agree, that the Re- spondent, by creating the new classification system, designating Dodson a "truckdriver only," laying off Dodson immediately following his return to work, reprimanding Dodson for an incident that never occurred, and assigning Dodson a dangerous vehicle, intended to frustrate the settlement agree- ment in Case 11-CA-9735 and create conditions that would, and did, cause Dodson to quit his em- ployment. We therefore adopt the judge's conclu- sion that the Respondent's actions against Dodson culminated in his constructive discharge approxi- mately 2 weeks after his reinstatement. 12 With these facts in mind, we turn now to the issues surrounding the judge's failure to rule on the alleged unfair labor practices that occurred prior to the parties' March 1982 non-Board settlement. When it became apparent that the non-Board set- tlement agreement had been violated, the Regional Director reinstated the charge in Case 11-CA- 9735. As previously noted, the judge, relying on his interpretation of the Board's decision in Winer,13 concluded that the reinstatement of the charge was improper and that Winer did not pro- vide an exception for situations in which charges are withdrawn pursuant to the terms of non-Board settlement agreements. Contrary to the judge, we find that the rule an- nounced in Winer did not address cases involving possible noncompliance with settlement agree- ments.14 There is no question in the instant case that the Respondent not only failed to comply with the terms of its settlement agreement, but in addi- tion perpetrated a fraud against both the Charging Party and the Board by entering into a settlement agreement with which it had no intent to comply.15 In fact, the evidence reveals the Re- 12 As stated at the outset of this Decision and Order , we also adopt the judge's conclusion that the warnings issued to Dodson about 26 and 29 March 1982 constituted violations of Sec 8 (a)(4) of the Act The 26 March warning dealt with the alleged customer harassment incident, whereas the 29 March warning was issued in response to Dodson's fail- ure to report to work This failure to report , as found by the ,fudge, oc- curred after Dodson quit , a matter inextricably related to the constructive discharge discussed in the accompanying text 19 Winer distinguished between withdrawn and dismissed charges However, in Ducane Heating Corp , 273 NLRB 1389 (1985), the Board erased that distinction and held that a dismissed charge also may not be reinstated beyond the 6-month limitation period absent fraudulent con- cealment of the operative facts underlying an alleged violation Ducane overruled Winer to the extent that decision was inconsistent 14 See Candler Coffee Corp, 279 NLRB 198 fn 2 ( 1986) As stated in Candler, Ducane Heating, supra, also is not germane to cases addressing noncompliance with settlement agreements 15 It is apparent that a charging party in a case such as this agrees to withdraw timely filed charges because it assumes that it can rely on a respondent's good-faith intent to comply with the terms on which those charges are settled It is uncontested that Dodson so relied in withdraw- ing the charge in Case 11 -CA-9735 291 spondent entered into the settlement with a specific intent to circumvent its terms . To accomplish this, the Respondent established new employee classifi- cation and discipline systems designed to "starve out" Dodson and force him to resign . Further, the groundless warnings issued to Dodson, the tempo- rary layoffs, and the constructive discharge indi- cate that the purpose of the settlement to remedy past alleged unfair labor practices was not achieved . In short, the Respondent's postsettlement unfair labor practices not only substantially imped- ed the implementation of the settlement , they effec- tively nullified the settlement by negating its terms and purpose . Such conduct also demonstrates a contempt for the Board and its processes which can neither be condoned nor allowed . We hold, therefore, that because the Respondent has used a non-Board settlement in a postcomplaint situation as a subterfuge to avoid its liability under the Act, the reinstitution of formal proceedings through the reinstatement of a withdrawn charge is appropriate despite the expiration of the Section 10(b) period. To hold otherwise would be to permit the Re- spondent to capitalize on its misconduct to the det- riment of Dodson , who relied in good faith on the Respondent's agreement to comply with the terms of the settlement agreement, and to allow the Re- spondent to profit from its contemptuous disregard of the Act and the Board . Accordingly, we find that the General Counsel, through the Regional Director for Region 11, did not act contrary to the authority set forth in Section 3(d)16 or engage in an abuse of discretion by reinstating the charge and complaint in Case 11 -CA-9735. In concluding as we do, we note the integral role that settlements play in resolving unfair labor practice complaint allegations . It is indisputable that settlements, as a voluntary means of adjusting labor disputes , perform an indispensable role in im- plementing national labor policy. Non-Board settle- ments, such as the one involved here, are often the only means available to avoid time-consuming and expensive litigation of unfair labor practice cases. Their viability must not be endangered by allowing respondents who fraudulently enter into such agreements to benefit from their misconduct. Addressing the merits of the allegations in Case 11-CA-9735, we agree with the judge that the rea- sons advanced by the Respondent for the layoff of Dodson in December 1980 had no basis in fact and were merely a pretext to disguise the real reason ie Sec 3(d) of the Act provides, in pertinent part, that the General Counsel of the Board "shall have final authority, on behalf of the Board, in respect of the investigation of charges and issuance of complaint and in respect of the prosecution of such complaints before the Board 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for his layoff, i.e., to punish him because his son filed charges with the Board. Consequently, we conclude that the Respondent violated Section 8(a)(4) and (1) of the Act by discharging Dodson in December 1980. We further find that about 1 September 1980 the Respondent, through Plant Manager Kendrick, violated Section 8(a)(1) of the Act by threatening to give, or by giving, an em- ployee an unfavorable job reference in retaliation for filing charges with the Board.17 AMENDED REMEDY Having found that the Respondent engaged in certain unfair labor practices prior to the 15 March 1982 non-Board settlement in Case 11-CA-9735, we will revise the judge's recommended remedy accordingly. Thus, having concluded that the Re- spondent unlawfully discharged Clarence Alvin Dodson on 19 December 1980, and failed and re- fused to reinstate him until 15 March 1982, we will order the Respondent to make Dodson whole for any loss of pay or other benefits he may have suf- fered by reason of the discrimination against him, with interest.' Backpay and interest shall be com- puted as set forth in the section of the judge's deci- sion entitled "The Remedy." An appropriate amount will be deducted from the backpay figure as a result of amounts received by Dodson pursu- ant to the terms of the non-Board settlement. We will further order that the Respondent remove from its files any reference to the unlawful dis- charge of Clarence Alvin Dodson in December 1980 and notify him in writing that this has been done and that the discharge will not be used against him in any way. We adopt the judge's remedy in all other respects, except that we will order the Respondent to post the revised notice set out in the "Appendix" to this Decision and Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Norris Concrete Materials, Inc., Pisgah Forest, North Carolina, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Order as modified. 1. Insert the following as paragraph 1(c) and re- letter the'subsequent paragraph. "(c) Threatening to give, or giving, an employee an unfavorable job reference because the employee filed unfair labor practice charges with the Board, or because of other protected concerted activities." 17 See fn. 6 above and the accompanying text for a discussion of the unlawful statement. 2. Delete paragraph 2(b) and substitute the fol- lowing. "(b) Remove from its files any reference to the unlawful reprimands and discharges of Clarence Alvin Dodson and notify him in writing that this has been done and that the reprimands and dis- charges will not be used against him in any way." 3. Substitute the attached notice for that of the administrative law judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT threaten our employees with dis- charge if they testify before the National Labor Relations Board. WE WILL NOT threaten to give, or give, an un- satisfactory job reference to any employee because the employee filed unfair labor practice charges with the National Labor Relations Board, or be- cause of other protected concerted activities. WE WILL NOT discharge or otherwise discrimi- nate against any of you because of the filing of charges with the National Labor Relations Board. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Clarence Alvin Dodson immedi- ate and full reinstatement to his former job or, if his job no longer exists, to a substantially equiva- lent position, without prejudice to his seniority or any other rights or privileges previously enjoyed and WE WILL make Clarence Alvin Dodson whole for his loss of earnings and other benefits resulting from his discharge, retroactive to 19 December 1980, less any net interim earnings, plus interest. WE WILL remove from our files any references to the unlawful reprimands and discharges given to NORRIS CONCRETE MATERIALS 293 employee Clarence Alvin Dodson, and WE WILL notify him in writing that this has been done and that the reprimands and discharges will not be used against him in any way. NORRIS CONCRETE MATERIALS, INC. Janet M. Holland, Esq., for the General Counsel. Russell L. McLean III, Esq., of Waynesville, North Caro- lina, for the Respondent. Clarence A. Dodson, of Brevard, North Carolina, in pro- pria persona. DECISION the Board, in a letter dated June 25, 1982 , revoked the settlement agreement in Case 11 -CA-9735 because of the alleged violations of the agreement that were disclosed in the investigation of Case 11 -CA-10403. The issues in this matter were joined by Respondent's answer of July 7, 1982, in which it denied violating the Act in any manner, and it also raised certain affirmative defenses Each party was afforded full opportunity to be heard, to call, examine, and cross-examine witness, to file briefs, and to submit proposed findings of facts and conclusions of law . On the entire record made in this proceeding, in- cluding my observation of each witness , and after due consideration of briefs filed by Respondent and counsel for the General Counsel , I make the following STATEMENT OF THE CASE WILLIAM N . CATES, Administrative Law Judge. These consolidated cases were heard before me on August 30 and 31 , 1982, at Brevard, North Carolina, pursuant to an order consolidating cases, consolidated complaint, and notice of hearing issued by the Regional Director for Region 11 of the National Labor Relations Board on June 28, 1982 The consolidated complaint alleged that Norris Concrete Materials, Inc. (Respondent) violated Section 8(a)(1) and (4) of the National Labor Relations Act (the Act), about December 19, 1980, discharging and thereafter failing and refusing to reinstate its employee Clarence Alvin Dodson until about March 15, 1982, and thereafter about March 26, 1982 , again discharging him and again failing and refusing to reinstate him. The com- plaint alleges Dodson's discharge on December 19, 1980, was because Randall Dodson , the son of Alvin Dodson, had filed charges in an unfair labor practice case before the Board in Case I1-CA-8939 The complaint further alleged that Respondent discharged Alvin Dodson on March 26, 1982, because he had filed an unfair labor practice charge with the Board in Case 11-CA-9735. The complaint further alleged Respondent issued on March 17 and 26, 1982, written warnings to its employee Alvin Dodson because he had filed charges with the Board . The complaint also alleged that Respondent vio- lated Section 8(a)(1) of the Act about September 1, 1980, when Plant Manager Tony Kendrick informed employ- ees that Respondent had issued an unsatisfactory job rec- ommendation for a former employee because of the former employee's concerted protected activities. Also alleged as an 8(a)(1) violation was an alleged statement by President William Norris when he threatened employ- ees with discharge if the employees testified at an unfair labor practice hearing before the Board . The allegation was alleged to have taken place on March 8 , 1982. It was also alleged in the complaint that on April 26, 1982, Respondent and the Charging Party entered into an in- formal adjustment of Case 11-CA-9735, which adjust- ment provided, inter alia , for the reinstatement of Dodson and for the withdrawal of the charge in that case. On April 26, 1982 , the Regional Director for Region 11 issued an order withdrawing the complaint and notice of hearing and approving the withdrawal re- quest in Case 11-CA-9735 . It is further alleged in the complaint that the Regional Director for Region 11 of FINDINGS OF FACT 1. JURISDICTION Respondent is a North Carolina corporation with plants located at Pisgah Forest and Waynesville, North Carolina., where it is engaged in the business of selling ready-mix concrete. Respondent's Pisgah Forest, North Carolina facility is the only facility involved in these proceedings During the 12-month period immediately preceding the issuance of the consolidated complaint, and at all times material, Respondent, in the course and conduct of its business, received goods and raw materials directly from outside the State of North Carolina valued in excess of $50,000. During the same representative period, Respondent, in the course and conduct of its business, derived gross revenues in excess of $500,000. The complaint alleges, Respondent admits, and I find that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE ALLEGED UNFAIR LABOR PRACTICES A. Undisputed Facts and Background It is undisputed that Alvin Dodson's son, Randall Dodson, was employed by Respondent for a period of time. During the course of Randall Dodson's employ- ment, he was twice discharged by Respondent. After his first discharge, Randall Dodson filed charges with the Board in Case 11-CA-8725. An informal settlement agreement was arrived at between the parties in that case in February 1980. As a result of the settlement agree- ment Randall Dodson was reinstated to his former posi- tion of employment with full backpay, seniority, and other benefits. Respondent, as part of the settlement agreement, agreed not to terminate employees for refus- ing to drive unsafe vehicles (G.C. Exh. 3). Following his second termination, Randall Dodson again filed charges with the Board, this time in Case 11- CA-8939, again, an informal settlement agreement was arrived at between the parties in April 1980. As a result of the informal settlement agreement Randall Dodson was made whole with respect to backpay and benefits and was offered, but declined, reinstatement . Respond- ent, as part of the settlement agreement, agreed it would not lay off or, in any other manner, discriminate against 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees because they filed unfair labor practice charges with the Board (G.C. Exh. 6). During the period of time that Randall Dodson was employed by Respondent, his father, Alvin Dodson, was also employed by Respondent. It is admitted that Alvin Dodson filed the charge in Case 11-CA-9735 on Febru- ary 26, 1981, involving his temination by Respondent on December 19, 1980. Alvin Dodson's discharge of De- cember 19, 1980, was the subject of a complaint issued by Region 11 of the Board on April 10, 1981. In the complaint in Case 11-CA-9735, it was alleged that Alvin Dodson was discharged because his son, Randall Dodson, had filed charges with the Board (G.C. Exh. 1(c)). A hearing-in the matter was set for March 11, 1982 (G.C. Exh. 1(j)). On April 26, 1982, the Regional Direc- tor for Region 11 issued an order withdrawing complaint and notice of hearing and approving withdrawal request. The Regional Director in his order stated, "[T]he parties having adjusted the matter [Case 11-CA-9735] and the Charging Party [Alvin Dodson] having requested with- drawal of the charge, and the undersigned [Regional Di- rector Clark] having duly considered the matter," ap- proved the withdrawal request and ordered that the complaint and notice of hearing be withdrawn.' It is likewise undisputed that thereafter on May 3, 1982, Alvin Dodson filed the charge in Case 11-CA- 10403 alleging that he had been constructively dis- charged in March 1982 by Respondent in violation of Section 8(a)(1) and (4) of the Act. It was alleged he had been discriminated against because he had filed the charge in Case 11-CA-9735. It is acknowledged that the Regional Director for Region 11, by letter dated June 25, 1982, revoked his approval of the non-Board adjust- ment in Case 11-CA-9735 and, in conjunction therewith, revoked his April 26, 1982 order withdrawing complaint and notice of hearing, and further revoked his approval of the withdrawal request of Alvin Dodson in Case 11- CA-9735. The Regional Director stated in his letter, "Additionally, I am reinstating the complaint and notice of hearing in Case 11-CA-9735 which initially issued on April 10, 1981, and shall issue an Order Consolidating Cases, Consolidated Complaint and amended, notice of hearing in Case 11-CA-10403." It is against this brief factual background that I will consider what import, if any, the Board's decision in Winer Motors, 265 NLRB 1457 (1982), has on the instant case.2 The Board held in Winer that a withdrawn charge may not thereafter be reinstated beyond the normal 6- month period prescribed in Section 10(b) of the Acts 1 There is no explanation in the record regarding how the hearing was scheduled for March 11, 1982, and not resolved until April 26, 1982, with no hearing held or order issued postponing or rescheduling the hearing. 2 It is recognized that a 10(b) defense is an affirmative one and must be raised by the pleadings. I am persuaded that in the instant case, Respond- ent, although not stating in its answer that it was raising Sec. 10(b) as a defense, did raise the related matter of the non-Board settlement involv- ing Alvin Dodson to require my giving consideration to the Board's holding in Winer as it relates to the instant case. S Sec. 10(b) of the Act provides in part: no complaint shall issue based upon any unfair labor practice occur- ring more than six months prior to the filing of the charge with the Board. The Board also stated in Winer that the limitations of Section 10(b) of the Act may not be ignored on equitable grounds.4 The Board did not allow for any exceptions in its holdings in Winer to cover situations such as in the instant case when the charge was withdrawn by the Charging Party as part of the terms of a non-Board set- tlement of unfair labor practice allegations. Although the instant case might be one that would seem appropriate for equitable considerations' that would allow the General Counsel to reinstate the withdrawn charge, the Board, however, clearly stated such equitable considerations would be without legal justification. I am persuaded that the General Counsel may not re- instate the charge in Case 11-CA-9735 as it indicated it had done in its June 25, 1982 letter and as it pled it had done at paragraph 13 of its order consolidating cases, consolidated complaint, and notice of hearing dated June 28, 1982, because a period of time had lapsed greater than' 6 months between the alleged unfair labor practice and the attempted reinstatement of the charge in Case 11-CA-9735. I will therefore make no unfair labor prac- tice findings with respect to those allegations that the General Counsel attempted to raise as a result of the re- instatement of the withdrawn charge in Case 11-CA- 9735. I am precluded from making unfair labor practice findings with respect to the following allegations: that Plant Manager Tony Kendrick about September 1, 1980, informed Respondent's employees that it had issued an unsatisfactory job recommendation for a former employ- ee of Respondent's because of the employee's protected concerted activities, and that Respondent discharged and thereafter failed and refused to reinstate Alvin Dodson about December 19, 1980, until about March 15, 1982, because its employee Randall Dodson, the son of Alvin Dodson, had filed charges in an unfair labor practice case before the Board in Case 11-CA-8939. Although I am precluded from making any unfair labor practice findings with respect to the matters cov- ered by the attempted reinstatement of the withdrawn charge in Case I1-CA-9735, I will nevertheless make factual findings with respect to those matters in order that those events may shed light on the remaining mat- ters that are currently before me. The Board held such consideration to be proper in Tri-City Electric Co., 264 NLRB 1407, 1408 (1982): We note at the outset that conduct which has oc- curred outside the 10(b) period cannot form the basis for unfair` labor practice findings. [Footnote omitted.] However, pre-Section 10(b) evidence may be relied on for the purpose of throwing light on and evaluating conduct which occurred within the 10(b) period. Motor Convoy, Inc., 252 NLRB 1253 (1980); Pandair Freight, 253 NLRB 973 (1980). B. Sequence of Events Relating to Alvin Dodson Randall Dodson (son of Alvin Dodson) testified he met with Respondent's president, Norris, regarding an 4 The Board stated it would exceed its authority to allow the General Counsel to ignore such a limitation period on equitable grounds. NORRIS CONCRETE MATERIALS 295 informal settlement of the Board's charges in Case 11- CA-8939. The General Counsel's Exhibit 6 indicates the settlement of that case took place in April 1980. Randall Dodson stated Norris told him there was his check and he could return to work the following Monday Randall Dodson told Norris he had found other employment and did not desire to return to his job with Respondent. Norris then told Randall Dodson, "[H]e said that he would get even with me, and that he would make sure that I never had a decent job in Transylvania County again." Randall Dodson testified he worked for other employers in the area including Moores Funeral Home. Randall Dodson applied for work at the Olin Company but was not hired by them. Norris testified Respondent had been in business in the area since 1949 and had never during that time had any unfair labor practice charges filed against it until the one Randall Dodson filed Norris indicated the charges filed by Randall Dotson caused Respondent a great deal of worry and inconvenience. Norris never denied telling Randall Dodson that he would make sure he never had a decent job in Transylvania County again. I credit Ran- dall Dodson's uncontradicted testimony in that respect. Plant Manager Kendrick testified he terminated Ran- dall Dodson for refusing to drive a truck, and after that, Dodson took him to the Labor Board, and as a result thereof, he was reinstated to his job. Kendrick testified he had a conversation in Respondent's old office at the Pisgah Forest plant with President Norris after Randall Dodson's second discharge in 1980. Kendrick testified Norris told him, "Randall [Dodson] had caused us a lot of trouble and the whole Dodson family had caused trouble, and that we were going to have to get rid of them." Kendrick testified he had a conversation with former employee Richard "Ricky" Moseley in the fall of 1980 at Respondent's plant. Kendrick asked Moseley if Randall Dodson was still working for the funeral home, and Mo- seley told him Dodson was. Kendrick asked Moseley if he knew that Randall Dodson was going to get on at the Olin Company. Moseley told Kendrick he had not heard that, but he would speak to his father-in-law to see if he could help Dodson. Kendrick told Moseley, "[T]hat probably wouldn't be of any use because the Norrises were going to kill the fob."5 Kendrick testified Respond- ent's secretary-treasurer, Smathers, had called him the day before he had his conversation with Moseley and asked him if it was true that Randall Dodson was trying to obtain employment with the Olin Company. Kendrick told Smathers that Randall Dodson was, to which Smathers replied, "That was all that it was going to be that was going to get on because she was going to call and see that he did not get the job." Respondent's secretary-treasurer, Smathers, testified she never called Plant Manager Kendrick in either August or September 1980 about Randall Dodson's em- ployment with the Olin Company. Smathers stated she did not know anyone at the Olin Company. Smathers testified she did have a conversation with Kendrick about Randall Dodson, but that Kendrick called her. Smathers stated Kendrick told her he had a call from the Olin Company and they had asked him if Randall Dodson had ever reported them to the Board. Smathers stated Kendrick told her he informed the person calling from Olin that Randall Dodson had reported Respondent to the Board. Smathers testified Kendrick stated to her that he did not know if he should have told that to the Olin Company. Smathers told Kendrick she did not know if what he had done was the right thing either. Smathers testified that was the extent of the conversa- tion Kendrick's demeanor impressed me that he was telling the truth in his trial testimony, notwithstanding the fact that in a pretrial affidavit he had made statements con- trary to what he was testifying to during the hearing. The majority of Kendrick's testimony was either cor- roborated by other witnesses or it was uncontradicted. I am persuaded that Norris told Kendrick that the entire Dodson family had caused trouble and they were going to have to get rid of them. I credit Kendrick's testimony that he told former employee Moseley that the Norrises were going to kill any efforts by Randall Dodson to obtain employment at the Olin Company. Kendrick's tes- timony in this respect was essentially corroborated by former employee Moseley's testimony. Additionally, Kendrick was an admitted supervisor of Respondent within the meaning of Section 2(11) of the Act and, as such, his statements, which he made while acting in the scope of his employment, constituted binding admissions against Respondent. See Federal Rules of Evidence, Rule 801(d)(2)(D).6 I do not credit Secretary-Treasurer Smathers' version of the conversation she admitted having with Kendrick about Randall Dodson's future employment; however, even if, arguendo, Kendnck was not telling the truth when he told Moseley about the Norrises' position with respect to the future employment of Randall Dodson, such would not excuse Respondent from the comments of Kendrick even though they were untruthful. The Board has held it to be a violation of Section 8(a)(1) of the Act for an employer to threaten to give, or to give, an employee an unfavorable job refer- ence in retaliation for filing charges with the Board. Compare Glover Bottled Gas Corp., 255 NLRB 137, 143 (1981). As indicated elsewhere in this decision, and for the reasons stated elsewhere, I make no findings with re- spect to any unfair labor practice regarding the above- stated events which I have found to have taken place. Alvin Dodson was employed as a truckdriver from 1974 until December 19, 1980. In addition to his function as a truckdriver, he also performed routine maintenance on his assigned truck. Dodson testified he never received any complaints during his employment about the condi- 6 Richard J Moseley testified about a conversation on August 28, 1980, with Kendrick in which the two of them discussed Randall Dod- son's efforts toward employment with the Olin Company Moseley stated Kendrick told him that Respondent's president , Norris, had said that as long as Norris had anything to do with it, Randall Dodson would not get a decent job 6 Rule 801 (d)(2)(D) of the Fed R Evid states in part A statement is not hearsay if [t]he statement is offered against a party and is a statement by his agent or servant concerning a matter within the scope of his agency or employment , made during the existence of the relationship 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion of his truck. Dodson also answered the telephone and cleaned up around the Pisgah Forest plant. Dodson never received any reprimands or criticism of his work between 1974 and 1980. Dodson testified the work for drivers slowed up in the wintertime because of the cold and snowy weather conditions; however, the weather in December 1980 had been good up until December 19. Dodson stated that during the week he was laid off, he worked 49 or 50 hours. Dodson stated that in the past employees had been given temporary layoff slips due to bad weather but had never been given permanent layoffs. Dodson testified he was laid off on December 19, 1980. He was informed of his layoff by Plant Manager Kendrick. Dodson testified he had delivered two loads of concrete on that day and was prepared to deliver a third load when Kendrick told him that Norris had called from the Waynesville location of Respondent and had instructed Kendrick to lay Dodson off for a while. Dodson asked what reason was given, and Kendrick told him that Norris did not give him a reason. Kendrick stated to Dodson, "I don't know a thing about it . . . all I can do is tell you what Bill [Norris] said." Dodson tes- tified Kendrick later on told him that Norris had said it was because of a lack of work. Dodson asked Kendrick if Norris could get by with this. According to Dodson, Kendrick replied, "Alvin, knowing Bill, he has probably already checked and he knows that he can get by with it because Randall learned him a lesson with the Labor Board, and he knows he can get by with it until he hires somebody else, but he'll have to call you back first." Dodson testified he thereafter visited Respondent's fa- cility in the first week of January 1981 and received pay for New Year's Day and a temporary layoff slip. As Dodson started to leave, Kendrick followed him to his car and told him there would not be anymore temporary layoff slips. Dodson inquired why and Kendrick told him, "I still don't know why ... Ms. Smathers said there wouldn't be anymore." Dodson told Kendrick it sounded like a permanent layoff to him. Kendrick told Dodson that was what Norris had said it was. Dodson complained to Kendrick that it was "a cheap way of firing sombody." Dodson thereafter contacted the Na- tional Labor Relations Board and subsequently on Febru- ary 26, 1981, filed the charge in Case 11-CA-9735 in which he alleged Respondent had laid him off on De- cember 19, 1980, because his son had given testimony and filed unfair labor practice charges with the Board. Dodson testified about certain of his assigned deliv- eries and about the condition in which he kept his truck. Dodson testified that between 1974, and 1980, neither Norris, Kendrick, or former Plant Manager Hightower ever spoke to him about adding water to concrete. Dodson stated there were two occasions during his em- ployment with Respondent when he had wet concrete. The first occasion, according to Dodson, occurred 3 or 4 months before he was terminated when he made a deliv- ery to Baycon Construction. Baycon sent the load of concrete back to Respondent. Dodson stated he took it to the plant, it was dried out (by adding additional con- crete mix), and delivered to another customer. The second occasion was when he delivered a load to the Allen Creek Dam Project in Waynesville, North Caroli- na. Dodson took the load back to the plant, it was dried out, and redelivered to the darn project where it was uti- lized. Dodson stated he did have some concrete set up in his truck during the summer of 1980. Dodson testified that he, along with other drivers, took loads of concrete into Tennessee and by the time he arrived on one particular delivery into Tennessee, the concrete had been in the truck so long that it was getting hot. Dodson testified he used every means possible to try and get the truck un- loaded, but he could not get all the concrete out of the truck because it had already gotten hard. After he un- loaded what concrete he could get out of the truck, he tried to clean it for about an hour, but he did not have any water on his truck. The water Dodson had had been added to the concrete to try to keep it from going hot and getting hard. Dodson testified that when he returned to Waynesville, North Carolina, and further on to his home, he did not attempt to get the concrete out that night because it was already hard. When he returned to work the next day, he asked Plant Manager Kendrick if the concrete could be gotten out before the truck was loaded. Kendrick informed him that he could not pull the truck out of service at that time, that he would have to continue to make deliveries. Dodson informed Ken- drick that each time they put more concrete in the truck, more of it would remain and stick to that that was al- ready hard in the truck. Dodson testified that about 4 days later at the Baycon Construction site, he used a small air chisel for about 3 or 4 hours and tried to chisel out the dried concrete, but he had no success. Dodson testified Kendrick continued to have him load the truck out for about a week before it was actually taken out of service to get the concrete out. On the morning that the concrete was gotten out of the truck, Kendrick informed Dodson that he was to operate a fellow employee's truck that day because Kendrick and two other employees were going to get the' concrete out of the truck. Dodson stated he never at any time refused to participate in the cleaning of the concrete out of his truck. Dodson testified that his truck was kept "as clean as any truck" and the lights of his truck were never sur- rounded with concrete nor were they ever set in con- crete. Dodson stated he never received any complaints about the condition he kept his truck in. Dodson testified that President Norris never talked to him about the con- dition of his truck. Dodson never received a ticket while driving his assigned truck nor did he ever put a scratch on the truck. Dodson testified he delivered concrete to Duyck Con- struction Company in December 1980. Other drivers also delivered concrete to Duyck on the same occasion. Dodson testified he delivered the second load, and con- crete was delivered and poured after the delivery of his particular load. Dodson testified he was sure there was a load of concrete after the one he delivered to Duyck Construction Company because he personally called in to Respondent and told them to send the additional load. Dodson testified that when he took the load of concrete to Duyck Construction Company, he had no discussion NORRIS CONCRETE MATERIALS 297 with Dispatcher Teddy Norman about the load nor did he say at any time that he was going to fix the concrete. Dodson testified that after his layoff, he was aware of an accident involving one of Respondent's trucks. The accident took place in the summer of 1981 and Dodson was told about the accident by members of his family. Dodson testified he and Danny McPeters went to the place where Respondent's truck had been wrecked. At the wreck scene, Dodson saw Plant Manager Kendrick and batcher Wilburn Brittain. Dodson testified Kendrick walked up to him, put his arm around his shoulder, and told him: Alvin, I know how this case is coming out and you know how it's coming out . . . . I talked to Ms. Smathers for 2 weeks until I turned blue in the face to telling them that you didn't have anything to do with Randall [Dodson] taking them to the Labor Board . . . . I don't want me and you to have no hard feelings against each other whatsoever Kendrick then asked Dodson to come by his location and go to dinner with him. Respondent's president, Norris, testified he laid Alvin Dodson off in December 1980. Well, it was for a multitude of reasons. The weather was bad, business was getting slow, we didn't have enough work to go around for everyone in the plant, and that's normal conditions for about that time of year; we have to lay off some drivers. Norris testified he also had an opportunity to personally observe Dodson's work a day or two before he was laid off in that Dodson had delivered a load of concrete to a customer and had made a mess out of it by adding water to it, thus damaging the product.7 Norris stated he re- ceived a call from Ronnie Duyck of Duyck Construction Company, who informed him that the concrete was wet, that he had gone ahead and used it, but he did not like it, and he did not want anymore concrete like that.8 Norris testified, "In reviewing everything in my mind, Mr. Dodson was the most likely candidate to be laid off." Norris stated the fact that Dodson delivered wet con- crete to Duyck Construction had a great deal of bearing on his decision to lay Dodson off. Norris stated the de- livery to Duyck Construction Company was "just all I could stand." Norris testified the reason he did not fire Dodson was that he did not wish to deprive him of his right to collect unemployment. Norris acknowledged that his pretrial affidavit stated he did not know why Dodson was laid off instead of fired. Respondent's presi- dent, Norris, stated he was angry when he hung up the telephone after speaking with Duyck on December 19, 1980, and that he called Plant Manager Kendrick the next day and told him he was going to have to lay some- 7 Norris testified that by adding water to concrete, it can destroy up to 50 percent of the strength of the concrete Norris stated it was easier to drive a truck with wet concrete 8 Norris had indicated in his pretrial affidavit that three other drivers had delivered concrete to Duyck Construction on the date in question in December 1980, and he stated in his affidavit that those deliveries were "beautiful," but the one Dodson delivered was "horrible " one off and that it would be Alvin Dodson. Norris stated, "I laid him [Dodson] off because of the delivery he had made to Duyck Construction Company. It was just all I could stand; that was it."9 Norris testified that when he laid Dodson off in De- cember 1980, the fact that his son, Randall Dodson, had filed charges with the Board played no part in his con- sideration of selecting Alvin Dodson for layoff. Norris testified he had a problem with Alvin Dodson delivering wet concrete for approximately 3 years, and the adding of water to concrete had been an ongoing problem with Dodson for several years. Norris testified he received calls from his plant manager at the Pisgah Forest plant that Alvin Dodson was deteriorating as an employee. Norris stated Dodson had the newest but dirtiest truck at the Pisgah Forest plant Norris also stated Dodson had permitted, on occasions, concrete to setup in his truck and that other employees had to jack- hammer the concrete out. Ronnie Duyck of Duyck Construction Company, Asheville, North Carolina, testified he was the general contractor for a building being constructed at the Hay- wood Technical College of Haywood County, North Carolina, in December 1980. Duyck testified he contact- ed Respondent for concrete for the building. Duyck tes- tified that on the day in question, he received two or three loads of concrete from Respondent, one of which was wet. Duyck testified the concrete that was delivered had a very high slump and he considered it to be abnor- mally wet. Duyck stated they were able to use the con- crete because it was acceptable for the work they were doing that day, and they did not have to make any spe- cial effort to put the concrete any place other than where it had been ordered for. Duyck testified he men- tioned the wet load to Norris, but he was not sure when. Duyck testified, "I didn't [notify Norris] that day, but at some subsequent date when I was talking to him about maybe ordering more concrete, and I don't recall why, but I did mention to him that we got a load of concrete that was pretty wet." Duyck could not remember who the driver was on the wet load Duyck testified a high slump was normally caused by too much water being added to the concrete. Duyck testified that the load of concrete that was wet was the last load delivered on the day in question.10 Assistant Plant Manager Teddy Norman of the Waynesville plant testified she saw Alvin Dodson on De- cember 118, 1980, at the Waynesville plant. Norman testi- fied Dodson took the order for concrete from Ronnie Duyck of Duyck Construction Company. Norman in- structed Dodson to deliver the concrete to the Haywood Technical School Project for Duyck Construction Com- pany, however, Norman stated Dodson wanted to return 8 Norris testified that when he laid Dodson off on December 19, 1980, he also had in mind the fact that Dodson had allowed concrete to set up in his truck when had hauled a load of concrete to the Waterville Dam Project is Duyck testified that it could have been several days later when he spoke with Norris about the concrete , that he thought perhaps it was Duyck testified he did not make a special call to Norris to complain about the wet load Duyck did not give the number of the truck to Norris when he spoke with him 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to his home in Brevard, North Carolina, instead. Norman asked Dodson to take the load of concrete and then go home when he fmished delivering the concrete. Norman stated Dodson did not want to take the concrete and made the statement he would fix the concrete. Norman received a call the next day from Duyck who said he needed to talk to Norris about the concrete he had re- ceived the day before. Norman testified Duyck said nothing in his call except to complain about the wet con- crete and to say that his men had worked all night be- cause of the wet concrete. Norman testified Dodson did not return to Waynesville on the evening in question, but rather, when he had unloaded his truck, gave the ticket to the driver'behind him, and then proceeded to Bre- vard, North Carolina. Plant Manager Kendrick testified Dodson had worked for him for 2 years and his overall evaluation of Dodson was that he was a better-than-average employee. Ken- drick stated Dodson helped him more than any other driver when he was first assigned to the Pisgah Forest plant because Dodson knew the 'location of customers and where to dispatch various trucks. Kendrick testified that in December 1980 the work- load was a little better than average. Kendrick laid Dodson off on orders from Respondent's president, Norris. Kendrick asked Norris what had happened. Norris told him that Dodson "took one of our good cus- tomers a wet load of concrete." Norris then told Ken- drick to just lay Dodson off. Kendrick asked Norris whether the layoff should be temporary or permanent, and Norris told him to make it permanent. Kendrick ad- vised Norris that Kendrick was getting ready to go on vacation and they might need Dodson and asked if he could just lay him off temporarily. Norris told him he could, but the day he got back from vacation he wanted him permanently laid off. I' Kendrick testified that during the time he was plant manager at the Pisgah Forest facility, Dodson had no more loads of wet concrete than any other driver. Ken- drick testified, "[E]verybody takes a load that some cus- tomers would think was wet, and some customers would think that it was, you know, just right." Kendrick testi- fied his only instruction to the drivers was simply to tell them "to watch it and that that contractor likes it dry, then take it to him dry." Kendrick testified loads were always brought back to the plant that were too wet and they were "dried up" and sent to another customer. Ken- drick stated there never-was an occasion where a load of concrete had to be scrapped because it was too wet. Kendrick testified that after Dodson was laid off, it made him one employee short, and he had to call the Waynesville plant for a driver. Kendrick testified he hired James Burgess and Junior Collins as truckdrivers. Burgess did some general maintenance work but about 90 percent of his time was spent driving a truck. Kendrick testified that at the time Dodson was laid off there was no system of classification of truckdrivers at Respondent's Pisgah Forest plant. Kendrick stated there was no system of discipline or reprimand, however, he learned somewhere between March 5 and 10, 1982, of a new system being instituted. Kendrick testified he was present at the scene where an accident involving one of Respondent's trucks had taken place on November 16, 1981, on Old, Road 64 in Brevard, North Carolina. Kendrick testified he saw Alvin Dodson, Dodson's son-in-law, and a friend at the accident. Kendrick stated he asked Dodson if he was mad at him. Kendrick testified he told Dodson: I said that I had tried to convince them that he hadn't had any activities whatsoever in Randle's [Randall Dodson] Labor Board suit, and that he was trying to stay completely neutral, and I asked him if he felt like it, one evening, to come down and sit around and talk a little bit, that we would go out and eat. He said he would.12 Kendrick testified some concrete had set up in Dod- son's truck on an occasion when he made a delivery from the Waynesville facility of Respondent. Kendrick sent Dodson to Baycon Construction Company the next day to use its chipping hammer to get the concrete out of his truck; however, Dodson was unable to get it out with the particular equipment Baycon had. Kendrick tes- tified he then borrowed a 150-pound jackhammer from Baycon, and he, along with three other employees, jack- hammered the concrete out of Dodson's truck while Dodson took care of the office. Kendrick testified he in- structed Dodson to stay in the office because Dodson had been in the truck all day and he did not figure that Dodson could handle the big jackhammer. Kendrick tes- tified Dodson maintained his truck a little better than the other drivers. Kendrick acknowledged on cross-examination that he had given a pretrial affidavit to the Board in which he had -made various statements with respect to, Dodson's layoff, but that the statements in his affidavit were false. Kendrick explained that he made the statements in his af- fidavit because if he had not, he would have been dis- charged by Respondent. Wilburn Brittain testified that he had been employed by Respondent for 12 years. He had driven for 4 years and had been the batch person for the remaining 8 years. He testified that since April 15, 1982, he has been the as- sistant manager of the Pisgah Forest facility. 'Brittain was one of those that helped jackhammer concrete out of Dodson's truck' in October or November 1980. Brittain stated Dodson did not keep his truck as clean as some' of the other drivers did.13 " Kendrick acknowledged Dodson had asked him if he thought Norris could get away with laying him off and he told Dodson, "[T]hat Bill had probably already checked and found out that he could get by with laying him off and not taking him to the Labor Board " Kendrick testified, a couple of weeks later he informed Dodson that his layoff was permanent and Dodson told him "[I]t was a cheap way; was it a layoff or a cheap way to get rid of him." 12 Vincent Stone Jr and Danny Ray McPeters corroborated the testi- mony of Dodson and Kendrick with respect to the conversation at the wreck site in the fall of 1981 13 James E Burgess testified that he had been employed by Respond- ent off and on for approximately a year, and that Dodson got along well with his fellow employees, but kept his vehicle "poorly." NORRIS CONCRETE MATERIALS Larry Hightower testified he worked for Respondent from January 1975 until April 1979. Hightower started out as a truckdriver, and at the time he quit for a better paying job in April 1979, he was the plant manager of the Pisgah Forest plant. Hightower supervised Alvin Dodson the entire time that Hightower worked for Re- spondent. Hightower testified that when he quit as plant manager, he recommended that Alvin Dodson be made the manager because he was the best and most dependa- ble employee Respondent had. Hightower testified he had received complaints from customers about wet con- crete and very possibly Dodson was one of those com- plained about, but there were no more complaints about Dodson than any other employee. Hightower testified that a wet load of concrete could come about for several reasons: First, the batch person could place too much water in the load; second, the driver could place too much water in the load; third, the truck could have been washed leaving too much moisture in the truck; and fourth, when the weather was rainy the sand or gravel contained too much moisture, thus creating wet con- crete. Hightower testified that during the time he had been a driver for Respondent, he had delivered wet con- crete and had the customer reject it, but he had never been disciplined for it. Hightower testified Norris never complained to him that Dodson was delivering wet con- crete. Various contractors (Marion Owen, Mitchell Andres, Terry J. Conner, and Ben Fisher) testified about having concrete delivered to them by Dodson, and that he did the job as they wished him to in delivering the concrete. For example, Fisher testified he specifically asked for Dodson by name to deliver the concrete to him because Dodson would do so exactly where it was needed and exactly where they wanted it to be delivered. It is undisputed that Alvin Dodson was laid off on De- cember 19, 1980. There are a number of factors present in the instant case that, in my opinion, establishes the motivation for Dodson's discharge. The facts as shall be discussed infra, demonstrate that the General Counsel es- tablished a factual foundation supporting an inference that protected conduct was a motivating factor in the December 19, 1980 layoff of Alvin Dodson. That Respondent took the action it did against Alvin Dodson because his son, Randall Dodson, filed charges with the Board is clear from the uncontradicted testimo- ny of Randall Dodson that Respondent's president, Norris, told him during the settlement of Randall Dod- son's second charge with the Board that he would make sure that Randall Dodson never had a decent job in Transylvania County, North Carolina, where Respond- ent had its operation. This undenied statement of unlaw- ful motivation was then transferred by Norris from Ran- dall Dodson to all members of the Dodson family. I credit Plant Manager Kendrick's undenied statement that Norris told him that Randall Dodson had caused Re- spondent a lot of trouble as well as the whole Dodson family, and that they were going to have to get rid of them. Norris acknowledged that the charges filed by Randall Dodson had caused Respondent consternation, worry, inconvenience, and expense. Not only did Re- spondent transfer its unlawful motivation from Randall 299 Dodson to other members of the Dodson family, it also carried out its threat that it would see to it that Randall Dodson did not obtain a decent job in Transylvania County inasmuch as Respondent's secretary-treasurer, Smathers, indicated to Plant Manager Kendrick, whose testimony I credit, that she would take care of Randall Dodson's application at a local factory (the Olin Compa- ny). It would appear that approximately 6 months after Randall Dodson had caused his trouble at Respondent that Respondent carried through with its threat to get rid of the entire Dodson family by laying off Alvin Dodson. i 9° The reasons given by President Norris for the lay off of Dodson in December 1980 were numerous. Norris stated the weather was bad, business was slow, and there was not enough work to go around. Norris stated Re- spondent had received a complaint from one of its cus- tomers that Dodson had made a bad delivery of con- crete, and that he also considered Dodson's poor work performance over an extended period of time. Norris also considered the fact that Dodson continually added water to his loads of concrete in deciding to lay Dodson off. All these reasons were advanced by Norris at the trial, however, in a letter of position by Respondent's counsel dated March 20, 1981, the stated reasons for Dodson's layoff were as follows: When concrete sales and delivery fall off in the winter months, there is usually left available work dealing in the mechanical and carpentry aspects of the business. It was determined in management's opinion that Mr. Dodson did not have the necessary mechanical or carpentry experience to perform the type of work which was being done during the off season. [G.C. Exh. 12.] In his testimony at trial, Norris made no mention of Dodson's lack of mechanical or carpentry experience. In the letter of position referred to above, no mention was made of Dodson's alleged poor work performance or of "the straw that broke the camel's back" as testified to by Norris, which was the delivery of the load of wet con- crete to Duyck Construction Company in December 1980. Respondent in its letter of position acknowledged, as the record evidence establishes, that an employee was hired after Dodson was laid off. The position paper con- tends he was hired as a mechanic. The credited testimo- ny indicates otherwise in that Plant Manager Kendrick testified the individual that was hired was a mechanic, and spent 90 percent of his time driving a truck deliver- ing concrete. i 5 I am therefore persuaded that the shift- " The charge of Randall Dodson in Case I1-CA-8939 was settled in April by an informal settlement agreement, which required a 60-day notice posting Therefore, the earliest that the case could have been closed would have been late June 1980 15 Burgess, the individual hired after Dodson was laid off, acknowl- edged that he performed only minor maintenance and that heavy repair was still subcontracted out even after he began employment and per- formed some maintenance work 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing defenses advanced by Respondent made its claim of nondiscrimination less than convincing. See, for example, Sentry Food Store, 198 NLRB 879 (1972). Not only does it appear thatRespondent shifted its de- fense with respect to Dodson's layoff in December 1980, but the reasons advanced by it at the trial do not with- stand close scrutiny. Respondent's contention that the weather was bad and business was slow in December is not borne out by the record evidence. Alvin Dodson testified, and I credit his testimony, that the weather in December was good up until December 19, which was the time of his layoff. Dodson's testimony is supported by the fact that during the week that Dodson was laid off he worked 49 or 50 hours. Dodson's testimony was also supported by that of then Plant Manager Kendrick who testified that the workload at Respondent in December 1980 had been a little better than average. The fact that business was not that slow is further borne out by Kendrick's credited tes- timony that after Dodson was laid off, it made him one employee short and he had to borrow an employee from the Waynesville faciity until he could hire James Burgess and Junior Collins. Kendrick testified both were hired as truckdrivers although Burgess did devote about 10 per- cent of his time to general maintenance work. The facts simply do not support Respondent's contention that bad weather and a lack of business brought about the layoff of Dodson. With respect to the delivery of wet concrete to Duyck Construction Company, there are several factors which tend to indicate that Respondent' s reliance thereon as the precipitating reason for Dodson's layoff is likewise not borne out by the facts. I do not credit Norris' testimony that Dodson made a mess of a load of concrete after he had batched it for a very good customer of Respondent. I likewise do not credit Norris' testimony that when he asked Dodson to deliver the load of concrete to Duyck Construction Company that he gave him a look that indi- cated to him that he did not want to deliver the load. Norris stated in his pretrial affidavit and reaffirmed at the trial in part as follows: Three other Norris drivers had delivered concrete to Duyck at the same time, and they told me those deliveries were beautiful but that the one Al Dodson delivered was horrible. I find that the evidence quite clearly indicates that Ronnie Duyck of Duyck Construction Company consid- ered one of the loads of concrete he received to be wetter than he liked; however, Duyck stated he was able to use the concrete. I do not consider the situation to have been of the magnitude that Norris attempted to portray it simply because Duyck himself stated he did not mention the matter to Norris on the date in question, but did so at some subsequent date when he was talking to Norris about ordering other concrete. Duyck testified he did not recall who the driver was, nor did he provide the number of the truck to Norris. With respect to when he contacted Norris,, Duyck testified he thought perhaps it was several days before he,talked to Norris about the concrete, although it could have been the next day. Duyck also stated that he did not make a special call to Norris to complain about the particular load of concrete he considered to be too wet. Duyck testified it was the last load of concrete he received on that day. Dodson testified, and I credit his testimony, that he did not deliv- er the last load of concrete on the date in question. Dod- son's testimony would seem to be supported by that of Waynesville's assistant plant manager, Norman, when Norman testified that Dodson did not return to the Waynesville plant on the day in question, but gave the signed copy of his invoice to the next driver and re- turned to Brevard, North Carolina. Norris' testimony that he sent Dodson with the load to Duyck Construc- tion at the time Dodson gave him a look indicating he did not wish to make the delivery is contradicted by the testimony of Assistant Plant Manager Norman who stated she 'instructed Dodson to take the load of con- crete, and that he indicated he wanted to go home to Brevard, North Carolina, instead, and stated, to her that he would "fix the concrete." Norman likewise testified that Norris was no where around when Dodson was sent to Duyck Construction Company. I find unbelievable Norman's testimony that Dodson told her he would fix the concrete to be delivered to Duyck. It simply defies logic to believe that Dodson would do something that could result in his termination and inform management in advance that he intended to do it. I find there are too many inconsistencies between Norris and Norman's testi- mony with respect to the delivery of concrete to the Duyck Construction Company in December to credit either's version of the events. I am therefore persuaded, based on the fact that the concrete was used and that Duyck did not make a special effort to call about the concrete, that it was probably days thereafter before he spoke with Norris about the wet load. It appears no real investigation was made by Respondent to determine if in fact Dodson was the one who delivered the load, but rather Respondent, after the fact, seized on the load of wet concrete and attributed it to Dodson as a pretext to cover its reason for laying Dodson off. Norris' contention that Dodson's work performance was poor and had been deteriorating is again not borne out by the facts. Former Plant Manager Hightower testi- fied that Dodson was the best and most dependable em- ployee he had working for him, and that when High- tower left Respondent's employment, he recommended Dodson be given the job of plant manager. Plant Manag- er Kendrick, who was the manager at the time of Dod- son's layoff, testified he considered Dodson to be overall a better-than-average employee. I credit Hightower and Kendrick's testimony, and fmd it refutes and makes unbe- lievable Norris' testimony that Dodson had a poor work performance record at Respondent. Norris contended, as part of, Dodson's poor work performance, he had, for a number of years, added water to the loads of concrete he delivered, thus damaging the product of Respondent. However, Norris could produce no evidence to indicate that the matter had ever been raised with Dodson even assuming that it had been a problem. Former Plant Man- ager Hightower testified that Norris never' complained to him that Dodson was delivering wet concrete, nor had NORRIS CONCRETE MATERIALS 301 he ever complained or talked to the employees in a group about wet concrete. Hightower acknowledged he had received complaints from customers that their con- crete was wet, and that even possibly one of those driv- ers complained about may have been Dodson, but he stated there were no more complaints about Dodson than any other employee.16 Dodson's testimony that he had never received any warnings with respect to deliver- ing wet concrete from either Plant Manager Kendrick or Plant Manager Hightower was corroborated by them. Kendrick testified, and I credit his testimony, that every driver who took a load would find that some customers might think a load to be too wet while others would think it to be dust right. Kendrick testified he had never disciplined any driver with respect to wet concrete other than to inform them that certain contractors liked their concrete drier than others. Kendrick testified there had never been a load of concrete scrapped at Respondent because it was too wet, that it was always brought back to the plant, dried out, and then sent to another custom- er. The vast majority of the testimony in this case indi- cates that rather than having a poor work performance record, Dodson in fact had a fine work record in that various contractors testified that Dodson did an accepta- ble job delivering concrete to them, and a number of them testified they specifically asked that Dodson be the one to deliver concrete for them because of his coopera- tion with the customer. I am persuaded that the record establishes Dodson did not have a poor work perform- ance record with Respondent. Finally, Respondent indicated it relied on the fact that Dodson allowed concrete, on one occasion, to set up in his truck as a basis for laying him off in December 1980. I find very logical and believable the reasons given by Dodson for the concrete setting up in his truck, and I find believable the reasons given by Dodson and Ken- drick with respect to how the set up concrete was re- moved. It appears it was set up in the truck because the delivery was at too great a distance from Respondent's facility, thus causing the load to become hot and harden. On the day the hardened concrete was removed from Dodson's truck, he performed a day's work and Plant Manager Kendnck made a determination that he and others should remove the hardened concrete from the truck while Dodson performed other tasks for Kendrick. I am persuaded that the reasons advanced by Respond- ent for the layoff of Dodson in December 1980 had no basis in fact and were merely spurious reasons advanced as a pretext to disguise the real reason for the layoff of Dodson. In summary, I conclude that the totally invalid reasons and the shifting basis' proffered to justify Re- spondent's actions fortify the conclusion that I draw from the other evidence of record that Respondent's real motivation for the permanent layoff of Dodson in De- cember 1980 was to punish him because his son had filed charges with the Board. I am persuaded there was only 16 Hightower likewise indicated as set forth elsewhere in this decision that there were numerous reasons why a load of concrete on any given day might be too wet without the driver being at fault Hightower ac- knowledged that when he had been a driver for Respondent, he had de- livered concrete that the customer had rejected as being too wet, but lie had never been disciplined one genuine reason for the action Respondent took against Dodson in December 1980 and that was the fact that his son had filed charges with the Board. The Board adopted the administrative law judge's decision in Hous- ton Coca Cola Bottling Co., 256 NLRB 520, 533 (1981), in which he found a violation of Section 8(a)(4) of the Act when the respondent therein discharged the mother of an employee it had fired because the daughter filed charges with the Board. Ordinarily, I would find such conduct to constitute a violation of Section 8(a)(4) of the Act. How- ever, for the reasons set forth elsewhere in this decision, I do not make such a finding with respect to Dodson's December 1980 layoff. Prior to the withdrawal of the charge in Case 11-CA- 9735, and at a time when the trial of that particular case was set for March 11, 1982 (G.C. Exh. 1(j)), Respondent commenced to prepare its defense for the case. Plant Manager Kendrick testified that one morning, sometime between March 5 and 10, 1982, Respondent's president, Norris, came to the Pisgah Forest plant at approximately 7 a.m. Kendrick testified all the employees were standing around ready to get their trucks loaded when an employ- ee asked President Norris how Alvin Dodson was coming along. Kendrick testified Norris became angry at the question and stated, "Anybody on his employment who would help Alvin [Dodson], that he would find himself looking for another job." Plant Manager Ken- drick testified that about this time Respondent's attorney, McLean, came in and McLean, Norris, and he started toward the back office. One of the employees spoke up and stated that Norris could not fire anyone for helping Dodson. Kendrick testified Norris said "he could find reason to fire anybody at anytime." I credit Kendrick's uncontradicted testimony regarding the above comment attributed to Norris. I note also that Kendrick's state- ments were made while he was acting in the scope of his employment as a Section 2(11) supervisor, and as such, his admissions are binding on Respondent. See Federal Rules of Evidence Rule 801(d)(2)(D). I therefore con- clude and find that Respondent acting through President Norris violated Section 8(a)(1) of the Act when about March 8, 1982, he threatened Respondent's employees with discharge if the employees testified at an unfair labor practice hearing before the Board. See Seligman & Associates, 240 NLRB 110, 117 (1979). Following the conversation just referred to above, Kendrick testified that Attorney McLean, President Norris, and he proceeded to the back office where they discussed the then upcoming March 1982 hearing involv- ing Case 11-CA-9735. Kendrick testified after they fin- ished their discussion with respect to preparation for the Board hearing, the three of them commenced talking about job classification sheets that he was to fill out on employees as well as reprimand sheets. Kendrick testified Norris said they were going to have to start classifying their jobs. Kendrick asked Norris what he meant. Norris responded they were going to classify the jobs as truck- drivers, office help, truckdrivers and office help, truck- drivers and general maintenance , truckdrivers and truck maintenance, and batchmen. Kendnck inquired why they were going to start doing this, and complained that it 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would put more work on him. Kendrick testified Norris responded, "That he had to do this so that if we had to take Alvin [Dodson] back that we could find a reason to starve him out." Kendrick stated it was made clear to him by Norris that Dodson was to be classified as a truckdriver only. Kendrick stated this was the first time he had ever heard of such a system of employee classifi- cation.'7 Kendrick asked Norris what Dodson would be doing when he was not driving because he was going to be assigned just as a driver. Norris told Kendrick that Dodson would be off the clock and would remain off the clock until another load was ready to take out. Kendrick told Norris that Dodson probably would not get 25 to 30 hours a week that way. Norris responded, "If I could, that I should cut it down to 12 to 15 [hours], as low as I could." Kendrick testified Attorney McLean spoke up at that point and said, "No, if we did that, then he would be able to draw temporary unemployment." Kendrick testified he learned from Norris about a week later that Dodson would be returning to work. Norris told Kendrick, "Well, it looks like we are going to have to take this sorry SOB back." Kendrick asked Norris if Dodson would be reinstated to his normal job as a driver; Norris informed him he would. Kendrick asked Norris if Dodson would be assigned truck 36 again. Norris said no. Kendrick asked what truck to assign Dodson. Norris asked, "What is the sorriest truck that you have got over here?" Kendrick told Norris that truck 29 was the worst. Norris told him that Dodson would get that one. Kendrick informed Norris that it was not operational at that time it had been turned over. Norris asked when he expected to have it back in oper- ation and Kendrick told him it should be within 1 or 2 days. Norris again told him to give that truck to Dodson. Kendrick informed Norris, "That the steering was a little bit bad and the brakes were bad." Norris told Kendrick, "that sounds even better." Kendrick asked Norris if he was "trying to kill him, or just get rid of him." Norris responded, "Either one will do." Kendrick testified Norris also wanted Dodson to clock in precisely on time, clock out precisely on time for lunch, and return precise- ly on time, and if he was a minute late, to write him up. Kendrick testified Dodson returned to work on March 15, 1982, as a result of the non-Board settlement of Case 11-CA-9735. , President Norris testified he and Attorney McLean had a meeting prior to March 15, 1982, with Plant Man- ager Kendrick at which job classification and written reprimand,policies were discussed. Norris testified in part as follows: I told him [Kendrick] that I was sorry that we had to coinplicate business like that, but it just seemed to me a "sign of the times" and that, as near as I could understand, the NLRB wanted us to conduct our business that way, that everytime I talked with them, they, always asked me about things like that, and so I said, "I assume that we are going to have to have it" and I said, "here they are, and we have got to handle everything on a very business-like nature from here on out even though it causes a lot more work on our part" and I said, "they will be administered fairly" and I said, "that is all there is to it, we will just have to do it just like anything else that we do around the plant." Norris stated McLean essentially said the same thing. Norris testified that he did not recall 'any conversation between Kendrick, McLean, and himself concerning the amount of time that Dodson was to receive while work- ing for Respondent. Secretary-Treasurer Smathers testified Respondent es- tablished written classifications for the various employees it employed after the matter of Randall Dodson had been handled by the Board. I credit Plant Manager Kendrick's version of the events with respect to his meeting with Norris and McLean wherein the system of employee classifications and discipline was discussed. The critical portions of Kendrick's testimony were undenied. Kendrick's testimo- ny was corroborated by Lail with respect to the fact that classifications for employees at Respondent was a new thing. Under the new classification system, Dodson was to be classified as a truckdriver only. I find the evidence overwhelmingly indicates that prior to his return to work, Dodson had performed various other tasks for Re- spondent other than simply driving a truck. For example, he had performed normal care and maintenance of his truck, he had been involved in general clean up around Respondent's facility, and had served as an office em- ployee. I credit Kendrick's testimony that Norris indicat- ed the reason for the new classification for Dodson was so that Respondent could "starve" him out if .it was forced to return Dodson to its employment. I discredit any testimony to the contrary. I likewise credit Ken- drick's testimony that Norris wanted Dodson to have as few hours as possible and to be assigned the "sorriest" truck Respondent had to offer, and that Norris wanted Dodson reprimanded for the slightest infraction of any of the newly established disciplinary guidelines. The over- whelming weight of the credible evidence in this case in- dicates beyond any doubt that Norris became extremely displeased with the Dodson family after Randall Dodson filed charges with the Board, and the overwhelming weight of the evidence also indicates that Norris em- barked on a pattern of conduct designed to force Dodson into quitting his employment with Respondent. Dodson testified he returned to work pursuant to a non-Board settlement on March 15, 1982. The terms of the settlement, according to Dodson, were that he was to be paid $15,000 in cash, and was to be permitted to return to work at top seniority, and he was to be the last individual sent home if work became slack.' 8 17 Phillip Lail testified he had been employed by Respondent from 1979 until 1982. Lail testified that about a month or so before he left Re- spondent's employment in 1982, Respondent started classifying drivers. According to Lail, prior to that time, there had been no such classifica. tions. is The notarized agreement executed between Dodson and Norris on March 15, 1982, contained in part the following provisions: (1) that Dodson be paid $15,000 on the execution of the agreement ; (2) that Dodson withdraw his charge filed with the National Labor Relations Continued NORRIS CONCRETE MATERIALS 303 Dodson testified when he returned to work, Plant Manager Kendrick told him to check out truck 29 and get ready to load concrete. Dodson testified that in the past he had been allowed to have coffee but was denied that privilege on the first day of his return to work. Dodson testified after he got truck 29 ready, Kendrick told him Norris and Smathers were in the office and wanted to see him. Dodson went to the office where Norris had some papers he wanted him to look at and sign. Dodson signed the papers and told Norris, "Bill, that's rules . . . you never knowed me to break one of them." Dodson testified Norris had not spoken up to that point, but then told him to pick up his check Dodson complied. Norris then told Dodson, "Now hit clock and go home. There ain't no concrete to haul today." Dodson went home and returned the following day, March 16. Dodson testified other drivers were permitted to remain on March 15, when he was sent home. Dodson testified that when he returned on March 16, he did so at approximately 6:30 a.m., and went around back to where Plant Manager Kendrick stayed in a little camper. Ken- drick stuck his head out the door of his camper and told Dodson that Norris had called him and told him to send Dodson home, but to let the rest of the drivers stay. Dodson testified he reported for work on Wednesday and worked until Friday of the next week. Dodson testi- fied that on Thursday evening, about 4:30 p.m., Kendrick had three loads of concrete that he needed delivered to Bass Construction Company where Haywood Johnson was the supervisor. Dodson testified they delivered the concrete.19 When Dodson reported to work on Friday morning, Kendrick wanted to know "what in the hell" had happened at Bass Construction the night before.20 Dodson told Kendrick nothing had happened that he knew of, that he had unloaded his concrete as did the other two trucks. Kendrick told Dodson, "I got a call here from Norris' attorney in Waynesville that you had harassed Haywood Johnson." Dodson stated Kendrick wanted him to sign a paper that he had harassed John- Board in Case 11-CA-9735, (3) that Dodson would return to work on March 15, 1982 , with the following conditions attached . (a) Dodson would abide by all the rules and regulations of Respondent , (b) Dodson would be employed in the position of truckdriver only, and (c) Dodson would be the last driver in his classification laid off on either a temporary or permanent basis, for a period of 1 year , from the execution of the agreement, (4) after 1 year, Dodson would have a merit only employer/employee relationship with Respondent , and (5) all other pro- visions of employee policies such as vacations and holidays would be the same for Dodson as all other employees of Respondent (R Exh 4) 19 Plant Manager Kendrick testified he received a call from Haywood Johnson of Bass Construction Company stating he needed three loads of concrete delivered late and wanted to know if Kendrick could help him out Kendrick informed Johnson he could The three loads were deliv- ered by drivers Dodson, Morgan, and Smith 20 Kendrick testified he received a call from Norris in which Norris informed him that he heard Dodson had harassed Haywood Johnson and for Kendrick to find out what was going on Kendrick testified he called via a truck radio and instructed driver Smith to inform Johnson that he wanted him to call on the telephone Johnson called Kendrick that evening, and Kendrick asked him what was going on Johnson said noth- ing was going on The only comment Johnson made, according to Ken- drick, was that he was glad to see they had Dodson back as a driver Kendrick asked Johnson if any employee of Respondent had harassed him, and Johnson told them they had not Kendrick told Johnson he had received a call from Waynesville , North Carolina, that he had some trou- ble and harassment Johnson told Kendrick nothing had happened son. 21 Dodson told him he would not sign it and asked Kendrick to get in his truck and go with him to find Haywood Johnson, and if Johnson told Kendrick that Dodson had harassed Johnson, then he would sign it. Dodson asked Kendrick if Kendrick would sign it. Ken- drick told him he would not. Dodson testified Kendrick did not want to go with him to see Johnson, so he told Kendrick that either he could go with him or he would go alone. Kendrick then agreed to go with him to speak to Johnson.22 Dodson testified that on the way to the jobsite, they met Johnson in downtown Brevard, North Carolina, and followed him to his home. Dodson asked Johnson if he had harassed him in any way, and Johnson told him "none whatsoever" and wanted to know what was wrong. Dodson told Johnson to ask Kendrick, that "they called here from Waynesville that I had harassed you last night." Dodson testified Johnson said that he had not called anyone. Dodson told Kendrick on his way back to the plant that he just as well go to the plant, punch out, and go home because he just could not take it any more. 2 3 Kendrick asked Dodson not to quit, to give him a day or two to see if he could work the thing out. Kendrick asked Dodson to make a delivery in George Smith's as- signed truck and to take the delivery to the Hemphills.24 Dodson testified Kendrick told him the truck had al- ready been checked out, and they were in a hurry for him to go ahead and take the load. Dodson took the Smith load and about a mile and a half down the road, he discovered that the air pressure would not build up on the truck. Dodson stopped to check the reason and discovered that the nozzle on the back of the truck had been left open letting water run into the back of the tank where the concrete was. Dodson testified he did not check the water valve when he left for the Hemphill's location because he had been told the truck had already been checked out, and that the delivery was needed in a hurry. Dodson testified that after that incident, he did not return to work because "I just couldn't take it any more. They were going to get rid of me one way or the other." Dodson testified he believed the truck was rigged against him so as to make the load of concrete wet at the time he would have delivered it. Dodson called Kendrick on March 29, 1982, and told him that he 21 Kendrick stated he received a call from Respondent 's president, Norris, the following morning in which Norris told him that he wanted him to draw up a paper on Dodson Kendrick testified he prepared a rep- rimand for Dodson and called him into the office and showed it to him He testified Dodson declined to sign it (G.C Exh 11) 22 Kendrick corroborated Dodson 's testimony that they left Respond- ent's facility and talked to Johnson about whether he had been harassed and Johnson stated, "No, that all three of the drivers were helpful and nobody had harassed him whatsoever " 22 Kendrick corroborated Dodson's testimony that he had indicated he probably would quit and go back to the Board , that he could not take the harassment any longer Kendrick also acknowledged he told Dodson he was getting the same treatment by trying to stay between Dodson and Norris, and he would probably quit also 24 Kendrick confirmed that after he and Dodson returned to the plant from visiting with Johnson , he instructed Dodson to take a delivery of concrete in driver George Smith's truck to a location where Ed and Will Hemphill needed concrete Kendrick testified Dodson radioed back and said that someone had turned the water valve on the truck 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would not be coming back to work until things were straightened out because he could not take it anymore.25 'Plant Manager Kendrick corroborated the testimony of Dodson with respect to his returning to work and the events at work to include the fact that Dodson was sent home while other drivers remained on the job. Haywood Johnson testified that he was the superin- tendent of Bass Construction Company and had been for about 2 years. Johnson testified he had received concrete from Respondent on various occasions, and that Dodson had delivered concrete over a hundred times to sites he had been involved in, and he had never complained about Dodson or the concrete Dodson delivered for him. Johnson testified Dodson delivered concrete to the worksite he was involved at in March 1982, and he had no complaints' about it, nor did he register any com- plaints with Respondent's _president, Norris, about Dod- son's delivery in March 1982. Johnson corroborated the testimony of Kendrick and Dodson that they had met with him regarding whether he had complained about being harassed. Johnson stated he had not complained in any manner. Respondent's president, Norris, testified he did not place any telephone call to Tony Kendrick on March 25, 1982, concerning any problem Dodson may have had at Bass Construction Company. Norris testified he received a call from Kendrick after Dodson had made the deliv- ery to Bass Construction Company and in the call Ken- drick told him Dodson had harassed Haywood Johnson, Norris testified he told Kendrick that if that was the case, and he was sure about it, he should write Dodson up and place it in his employment file. Norris stated he received a call from Kendrick on March 29, 1982, telling him that he had written Dodson up, but Dodson did not sign it. Norris testified he told Kendrick to place it in Dodson's file that he had done all he could do. I credit the testimony of Dodson regarding the events surrounding his return to work on March 15, 1982, and his employment thereafter. Dodson's testimony in essen- tial and relevant parts was substantiated and corroborat- ed by Plant Manager Kendrick and Bass Construction Company Superintendent Johnson. I discredit Norris' testimony that it was Kendrick who called him regarding the alleged harassment problem at Bass Construction Company. The record evidence as a whole, and Norris' demeanor on the stand, persuade me that he was misstat- ing the truth when he testified it was Kendrick who called him about the harassment problem. The evidence overwhelmingly indicates that the warn- ing issued to Alvin Dodson on March 26, 1982, was for an alleged act of harassment that never occurred. I credit Dodson's testimony that he did not in any manner harass Bass Construction Company Superintendent Johnson. Dodson's testimony in this respect was corroborated by Kendrick and Johnson. Johnson clearly stated he did not call anyone at Respondent to complain about the con- crete delivered to him in March 1982, nor was he in fact 25 Kendrick testified Dodson did not appear for work the following Monday so he called Norris. Norris instructed hun to write up a repn- mand for Dodson. Kendrick testified he wrote a reprimand on March 29, 1982, for Dodson because he did not report for work. harassed by any driver of Respondent making delivery to the Bass Construction site. Respondent was fully aware of the fact that the disciplinary warning given to Dodson was specious and without merit. I therefore conclude and find that the. written warning issued to Dodson on or, about March 26, 1982, was issued to him because he had filed an unfair labor practice charge in Case 11-CA-9735 and, as such, Respondent's conduct violated Section 8(a)(4) and (1) of the Act. The issue of whether the second warning given to Dodson, based on his failure to report to work on March 29, 1982, constitutes a violation of the Act is inextricably intertwined with whether Respondent constructively dis- charged Dodson in violation of Section 8(a)(4) and (1) of the Act. The Board in Valley West Welding Co., 265 NLRB 597 (1982), set forth the elements of a constructive discharge and did so by quoting from, Crystal Princeton Refining Co., 222 NLRB 1068 (1976). The Board in Valley quoting from Princeton stated: There are two elements which must be proven to establish a "constructive discharge." First, the bur- dens imposed upon the employee must cause, and be intended to cause, a change in his working con- ditions so difficult or unpleasant as to force him to resign. Second, it must be shown that those burdens were imposed because of the employees union ac- tivities. [Fn. omitted.] In looking to the facts with respect to whether changes were imposed on Dodson to cause him to resign his job, it is undisputed that Respondent established a new classification system for its employees. I am per- suaded, based on the credited testimony of Plant Manag- er Kendrick, that a new disciplinary system was also es- tablished and that both the new classification of employ- ees and the new system of discipline arose out of the fact Respondent had to return Alvin Dodson to its employ- ment in settlement of the unfair labor practice allegations of Case 11-CA-9735. There had never, previous to Dod- son's return to work in March 1982, been an employee classification known as truckdriver only. I credit Plant Manager Kendrick's testimony that Respondent's presi- dent, Norris, told him the' classification system was brought about to "starve" Dodson out of his employ- ment. Further, the record evidence clearly indicates Dodson was given the "sorriest" truck Respondent had after he returned to work. Norris instructed Kendrick to give Dodson the sorriest truck he had even though it might be one with bad steering and bad brakes. Plant Manager Kendrick was also instructed by Norris to closely scrutinize Dodson's attendance and to write him up pursuant to the new disciplinary system for the slight- est infraction of Respondent's rules. I am persuaded that Dodson's quitting was provoked by Respondent and consistent with the testimony of Kendrick, the result was plainly foreseeable. It is without contradiction that President Norris was unhappy with the prospect of Dodson being returned to employment with 'Respondent. I am persuaded, and the evidence clearly indicates, that Norris took the action he did be- NORRIS CONCRETE MATERIALS 305 cause Dodson had filed an earlier charge with the Board. Norris had warned employees that anyone who helped Alvin Dodson would find themselves looking for a job. Norris created a new classification system for his em- ployees and assigned a "truckdriver only" status to Dodson for the specific purpose of attempting to starve Dodson out of his employment. On the very first day of Dodson's return to work pursuant to the settlement in Case 11-CA-9735, he was immediately laid off even though other drivers remained at work and notwith- standing the fact the settlement agreement indicated Norris would be the last truckdriver to be sent home in the event of a layoff. As discussed supra, Norris instruct- ed that a reprimand be given Dodson for an alleged inci- dent that in fact never occurred. I am fully convinced that Respondent took the action it did against Dodson because it was disturbed that he had gone to the Board in Case 11-CA-9735, and in intended by its actions to frustrate the settlement agreement it that case and to de- liberately bring about conditions that would cause, and did in fact cause, Dodson to quit his employment with Respondent. I find Respondent by its conduct, caused Dodson to quit his employment and, as such, it violated Section 8(a)(4) and (1) of the Act. See Heck's Properties, 264 NLRB 501 fn. 2 and JD fn. 8 (1982). I likewise find that the reprimand given Dodson because he did not show for work after he had quit also constitutes a viola- tion of Section 8(a)(4) and (1) of the Act. I am persuaded by the findings and conclusions outlined above that the General Counsel established a prima facie showing that Dodson was forced to quit his employment because of his protected conduct. I conclude that the reasons of- fered by Respondent for its actions were pretextual and, as such, I find Respondent has totally failed in its effort to demonstrate that the same action would have been taken against Dodson even in the absence of the protect- ed conduct. There was clearly only one genuine reason for the constructive discharge of Dodson, and that reason was unlawful. CONCLUSIONS OF LAW 1. Norris Concrete Materials, Inc. is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent did not violate Section 8(a)(1) of the Act when it issued an unsatisfactory job recommendation for a former employee about September 1, 1980, because of the proscriptions set forth in Section 10(b) of the Act. 3. Respondent did not violate Section 8(a)(4) and (1) of the Act when it about December 19, 1980, discharged its employee Clarence Alvin Dodson inasmuch as such a finding is precluded by Section 10(b) of the Act. 4. Respondent violated Section 8(a)(1) of the Act when its president, William Norris, about March 8, 1982, threatened employees with discharge if they testified at an unfair labor practice hearing before the National Labor Relations Board. 5. Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(4) and (1) of the Act by issuing about March 26 and 29, 1982, written warnings to its employee Clarence Alvin Dodson. 6. Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(4) and (1) of the Act by causing the discharge of its employee Clarence Alvin Dodson about March 26, 1982, and thereafter failing and refusing to reinstate him. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 8. The General Counsel has not established by prepon- derance of evidence that Respondent has violated the Act as alleged in the complaint except to the extent found above. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I will recommend that it be or- dered to cease and desist therefrom and take certain af- firmative action designed to effectuate the purposes of the Act. It having been found that Respondent reprimanded and caused the discharge of its employee Clarence Alvin Dodson, I will recommend that Respondent be ordered to offer Dodson full reinstatement to his former position or substantially equivalent position of employment with- out prejudice to his seniority or other rights, and make him whole for any loss of pay that he may have suffered by reason of the discrimination against him with interest. Backpay will be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950). Interest will be computed as prescribed in Florida Steel Corp., 231 NLRB 651 (1977) See generally Isis Plumbing Co., 138 NLRB 716 (1962). Further, it is recommended that Respondent remove from its files any reference to the reprimands of March 26 and 29, 1982, or to the March 26, 1982 dis- charge of Clarence Alvin Dodson, and to notify him in writing that this has been done, and that evidence of the unlawful reprimands and discharge will not be used as a basis for future personnel actions against him. See Ster- ling Sugars, 261 NLRB 472 (1982). It is recommended that Respondent post a notice to employees. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed28 ORDER The Respondent, Norris Concrete Materials, Inc., Pisgah Forest, North Carolina, its officers, agents, suc- cessors, and assigns, shall 1. Cease and desist from (a) Threatening its employees with discharge if they testify at unfair labor practice hearings before the Na- tional Labor Relations Board. (b) Discharging employees or otherwise discriminating against them in any manner with respect to their tenure of employment or any terms or conditions of employ- 26 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment because they have filed charges in any unfair labor practice case before the National Labor Relations Board. (c') In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act., 2. Take the following affirmative action necessary to effectuate the purposes of the Act. (a) Offer Clarence Alvin Dodson immediate and full reinstatement to his former job or, if his former job no longer exists, to a substantially equivalent position of em- ployment without prejudice to his seniority and other rights and privileges previously enjoyed, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him in the manner set forth in the remedy section. (b) Remove from its files any reference to the repri- mands and discharge of employee Clarence Alvin Dodson and notify him in writing that this has been done, and that the evidence of the unlawful reprimands and discharge will not be used as the basis for future per- sonnel actions against him. (c) Preserve and, on request, make, available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its Pisgah Forest, North Carolina facility copies of the attached notice marked "Appendix."27 Copies of the notice, on forms provided by the Regional Director for Region 11, after being signed by the Re- spondent's authorized representative, will be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps will be taken by the Respond-, ent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 27 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "