Calcite Corp.

National Labor Relations Board - Board Decisions

Mar 24, 1977

228 N.L.R.B. 1048 (N.L.R.B. 1977)

1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Calcite Corporation and General Teamsters , Chauf-
feurs, Warehousemen & Helpers, Local 892,
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen & Helpers of America. Case
31-CA-5158
March 24, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
On December 4, 1975, Administrative Law Judge
George Christensen issued the attached Decision in
this proceeding. Thereafter, the General Counsel and
the Respondent filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
Decision in light of the exceptions and briefs and has
decided to affirm the rulings, findings,' and conclu-
sions of the Administrative Law Judge only to the
extent they are consistent herewith.
We agree with the Administrative Law Judge that
the Respondent's March 14, 1975, layoff or termina-
tion of 10 of its 18 unit employees was motivated at
least in part by discriminatory reasons . The record
shows that from March 5 or 6, when the Union
demanded recognition based on authorization cards
signed by 13 employees, until March 14, the
Respondent engaged in a vigorous and unlawful
campaign to blunt the union activities of its employ-
ees. Thus, the Respondent interrogated employees
about their union activities and those of fellow
employees by coercively asking them what they knew
about the Union, whether they had signed cards,
which employees had initiated the union campaign,
and for what reasons, and, finally, how the Respon-
dent could talk employees out of supporting the
Union. Also, the Respondent intimidated employees
by telling them that it had caused most of their fellow
employees to abandon their interest in the Union,
and gave employees the impression that their union
activities were under surveillance. In addition, the
Respondent coercively threatened employees with
discharge or replacement with black employees, and
in other respects emphasized the futility of their
union activities. Finally, the Respondent threatened
plant closure.
' The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board 's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
228 NLRB No. 123
This manifest antiunion hostility, unlawful threats
of discharge and plant closure, and the timing of the
terminations convince us that the March 14 termina-
tions were part and parcel of the Respondent's
campaign to thwart its employees' union activities.
However, we do not agree with the Administrative
Law Judge that employee Steven Rock, the last of
the 10 employees discharged, was singled out for
special unlawful treatment different from that meted
out to the 9 other discharged employees. In our view,
the record does not support a finding that Rock was
a more skilled or generally a more valuable employee
than Richie as the Administrative Law Judge found.
Indeed, the uncontradicted testimony reveals that
Richie was possibly more valuable to the Respondent
because he could perform more jobs than Rock and,
in addition, the latter had one more "blotch" on his
record-he had been discharged a year earlier for
causing damage to company property. We have also
considered the fact that Rock had signed a union
card, whereas Richie had not, and further that, as the
Administrative Law Judge found, the Respondent
"knew where each man stood at the time of the
layoff."
While the Respondent's departure from seniority
the first and only time it would require the layoff of a
nonunion employee evidences the discrimination
behind the layoff, we do not agree that Rock was any
more of a target for discriminatory treatment than
were the other nine employees, including leading
union activists, Rocky Poindexter and Rudy Vas-
quez. Rather, as we have found, the decision to
discharge 10 employees on March 14 was aimed as
the final salvo in the Respondent's campaign to
thwart the Union. And the selection of the 10
employees, generally according to seniority or upon
some other ostensibly legitimate basis (as in Rock's
case), was merely the incidental means for imple-
menting this unlawful decision. Thus, soon after
receiving the Union's demand the Respondent
learned that 13 of the 18 unit employees had signed
cards, and later, following its further "unremitting"
campaign of unlawful coercion, including interroga-
tion, discovered the identities of the 13 union
supporters. In these circumstances, it is abundantly
clear that the summary discharge of better than one-
half of the unit, even if carried out on a nondiscrimi-
natory basis, would serve as a dramatic reminder and
example to the remaining eight employees, including
any lingering union supporters among them, of
earlier threats of discharge and plant closure.
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
CALCITE CORPORATION 1049
Against this strong prima facie case of 8(a)(1) and
(3) misconduct the Respondent asserted an economic
defense. In the termination letters delivered to each
of the 10 employees the Respondent cited a reduc-
tion in workload attributable to the termination of
the "Tenneco contract" and the failure of "new
businesses to develop." But the Respondent's own
exhibits reveal that the Tenneco contract had been
completed by September 1974, and while the
Respondent thereafter did experience some drop in
production no sudden reductions in force were
carried out until over 6 months later. Moreover, with
regard to the failure to attract new business, the
Respondent conceded that business usually in-
creased in the spring and summer months, yet at the
beginning of this period the Respondent decided to
terminate over one-half of its production and
maintenance force. Indeed, during the preceding late
fall and winter months, when demand was admitted-
ly usually soft, the Respondent generally retained the
full complement of 21 to 18 employees. In sum, the
retention of such a large force during a slack period
and the sudden termination of 50 percent of this
group at the threshold of a period which normally is
one of ever-increasing business activity casts serious
doubt on the factors cited in the termination letter as
compelling nondiscriminatory reasons for the termi-
nations.
On the other hand, the Respondent presented
additional evidence in support of its economic
defense, which is adequately discussed in the
attached Decision. This evidence indicates that a
layoff might have occurred after March 14. On
balance, we agree with the Administrative Law Judge
that while this evidence is not sufficient to rebut the
General Counsel's prima facie showing of unlawful
8(a)(3) misconduct it does tend to show that a layoff
of some kind may have occurred at a later date in
spite of the expected normal increase in demand.2
Therefore, in our view, the presence of the Union's
campaign accelerated possible layoffs which may
have occurred after March 14. But, as of March 14,
all that the Respondent could offer by way of
explanation for the precipitate drastic cut in its work
force was the termination of a contract 6 months
earlier and the failure to attract new business at the
very time when demand was normally expected to
rise. As found, neither explanation is convincing and
as such adds further support to the findings that the
terminations were motivated for reasons violative of
the Act.
2 It should be noted that the hearing in this case was conducted in June
1975, and thus it is impossible to assess the strength of the customary spring-
summer upturn in demand. Respondent's figures for May 1975 show a 75-
percent increase in milling time over the previous month, but the
Respondent was still operating at only 56 percent of capacity at that time
The Administrative Law Judge found, inter alia,
and we agree, that the Union represented a majority
of the employees in an appropriate unit at the
Respondent's Rosamond, California, facilities, that
the Union made a lawful request for recognition
which was denied, that the Respondent engaged in
extensive unfair labor practices designed to c use the
employees to withdraw their support for the Union,
and that as a result of this unlawful conduct, it would
be impossible to conduct a fair election and therefore
a bargaining order remedy is necessary.
In these circumstances, we also believe it would be
appropriate to find a violation of Section 8(a)(5) of
the Act even though the complaint did not specifical-
ly allege such a violation because it is clear from the
record that the issue was litigated at the hearing.
Thus, the complaint alleged that the Union has been
and is the exclusive representative of the employees
in the unit described below3 and that since March 6,
1975, and thereafter, the Union has requested
bargaining with the Respondent. The complaint
further alleged that on or about March 6, 1975, and
at all times thereafter, the Respondent refused and
continued to refuse to bargain collectively with the
Union and that the Respondent engaged in the
commission of unfair labor practices, specified in the
complaint, which are so serious and substantial in
character and effect as to warrant the entry of a
remedial order requiring the Respondent to recog-
nize and bargain with the Union in the appropriate
unit. The General Counsel introduced evidence in
support of these allegations and, as previously
indicated, the Administrative Law Judge found that
these allegations of the complaint had been sus-
tained. Accordingly, all the elements necessary to
prove a violation of Section 8(a)(5) of the Act were
fully litigated and established. Therefore, we find,
upon the basis of the entire record, that the
Respondent violated Section 8(a)(5) of the Act when
it refused to recognize and bargain with the Union
on and after March 6, 1975, the date on which the
Administrative Law Judge found the Union's de-
mand for recognition was received by the Respon-
dent and also the date on which the Respondent
embarked on its course of illegal conduct.4
THE REMEDY
Because there is some doubt when and if any of the
employees, including Steven Rock, terminated on
March 14, 1975, would have been laid off after that
date for economic or other nondiscriminatory rea-
d All production and maintenance employees , including all baggers,
forklift operators , carpenters, and mill operators employed at Respondent's
Rosamond , California, facilities, but excluding all office clerical employees,
professional employees, guards, and supervisors as defined in the Act
4 Trading Port, Inc, 219 NLRB 298 (1975).
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sons unrelated to the discrimination found above, we
shall leave for the compliance stage the determina-
tion of (1) when such a nondiscriminatory layoff
would have occurred and which of those employees
terminated on March 14, 1975, would have been
involved, and (2) which of the discriminatorily laid-
off or terminated employees would have been
recalled according to the seniority list established by
the Respondent before new hires, if any, were made.5
Upon such determination, the Respondent shall
make whole employees who were discriminatorily
terminated or laid off March 14, 1975, for any loss of
earnings they may have suffered by reason of the
discrimination against them, by payment to them of
the sums of money equal to the amounts they would
have earned from the date of this discrimination to
the date when their employment would have been
terminated for economic or other nondiscriminatory
reasons, less net earnings during said period, to be
computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth
Company, 90 NLRB 289 (1950), and include the
payment of interest at the rate of 6 percent to be
computed in the manner set forth by the Board in
Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
Moreover, in the event that new production or
maintenance employees were hired after March 14,
1975, the Respondent shall offer immediate and full
reinstatement to the employees on the recall list, if
necessary laying off such new hires. The Respondent
shall recall, in order of seniority as the Respondent
has established, those employees who were discrimi-
natorily terminated on March 14, 1975, prior to
making any new hires to the production and
maintenance unit.
Finally, we shall order the Respondent to cease
and desist from engaging in the unfair labor practices
found and also that the Respondent, upon request,
recognize and bargain with the Union as the
exclusive representative of all the employees in the
appropriate unit and, if an understanding is reached,
embody such understanding in a written signed
agreement. Since we have found that the Respondent
violated Section 8(a)(5) of the Act on March 6, 1975,
and thereafter, its duty to bargain also encompasses
any term or condition of employment with respect to
which the Respondent took unilateral action on or
after that date.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
5 The Administrative Law Judge recommended that the preferential
hiring list be established for a limited period of I year . We find no reason to
depart from our usual practice and, therefore , we shall ehnunate the 1-year
limitation for the maintenance of the list.
Relations Board hereby orders that the Respondent,
Calcite Corporation, Rosamond, California, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating its employees concerning what
they know about the Union, whether they signed a
union card, who brought the Union in, and why
employees are interested in the Union.
(b) Threatening employees that, because they
choose union representation, they will be replaced by
employees of a different race; or that they will be
discharged; or that the Company will close its plant;
or that the Company cannot and will not grant any
wage increases; or that, in the event they strike and
picket to secure such increases, such strike will be
futile; or that, in the event the Company is forced to
increase wages, it will have to close its doors.
(c) Asking employees how they can be talked out of
continuing their support of the Union.
(d) Intimidating employees by telling them the
Company has caused a majority of their fellow
employees to withdraw support from the Union.
(e) Giving employees the impression the Company
is maintaining a surveillance of its employees' union
activities and maintaining such surveillance.
(f) Discouraging membership in General Team-
sters, Chauffeurs, Warehousemen & Helpers, Local
892, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America,
or any other labor organization, by laying off,
discharging, or in any other manner discriminating
against employees in regard to their hire or tenure of
employment or any terms and condition of employ-
ment because of their union activities.
(g) Refusing to bargain collectively with the above-
named Union as the exclusive bargaining representa-
tive of the employees in the following unit:
All production and maintenance employees,
including all baggers, forklift operators, carpen-
ters, and mill operators, employed at Respon-
dent's Rosamond, California, facilities, but ex-
cluding all office clerical employees, professional
employees, guards, and supervisors as defined in
the Act.
(h) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of the
rights guaranteed them under Section 7 of the Act.6
2. Take the following affirmative action designed
to effectuate the purposes of the Act:
(a) Make whole each of the employees who were
laid off or terminated on March 14, 1975, for any loss
6 As this case involves an unlawful layoff of employees as well as other
serious unfair labor practices, a broad order is warranted.
CALCITE CORPORATION
of pay they may have suffered by reason of the
Respondent's discrimination against them, in the
manner set forth in the section herein entitled "The
Remedy."
(b) As further provided in "The Remedy" section
of this Decision offer to those employees who are
entitled to the job vacancies, if any, which became
available after March 14, 1975, immediate and full
reinstatement to their former positions or, if those
positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges, and make them whole for any
loss of earnings they may have suffered as a result of
the discrimination against them in the manner as
therein provided.
(c) Maintain the preferential hiring list used in
terminating employees on March 14, 1975, for
employees who have not been reinstated, and fill
appropriate vacancies according to that list.
(d) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(e) Upon request, recognize and bargain with the
above-named Union as the exclusive representative
of all employees in the aforesaid appropriate unit
and, if an understanding is reached, embody such
understanding in a written, signed agreement.
(f) Post at its place of business at Rosamond,
California, copies of the attached notice marked
"Appendix." 7 Copies of said notice, on forms
provided by the Regional Director for Region 31,
after being duly signed by Respondent's representa-
tive, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(g) Notify the Regional Director for Region 31, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
+ In the event that 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 National 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."
APPENDIX
1051
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate our employees con-
cerning what they know about General Team-
sters, Chauffeurs, Warehousemen & Helpers,
Local 892, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of
America, whether they signed an authorization
card for that Union, whether they know who
brought that Union in, and why the employees
are interested in that Union.
WE WILL NOT threaten our employees that we
will replace them with employees of a different
race, threaten them with discharge, threaten them
with plant closure, threaten them that the Compa-
ny cannot and will not grant any wage increases
and, in the event they strike and picket to secure
such increases, that such a strike will be futile,
and that, if the Company is forced to grant wage
increases, it will have to close its doors.
WE WILL NOT ask our employees how we can
talk them out of continuing to support the Union.
WE WILL NOT intimidate our employees by
telling them we have caused a majority of their
fellow employees to withdraw their support from
the Union.
WE WILL NOT give our employees the impres-
sion we are maintaining a surveillance of their
union activities and we will not maintain such a
surveillance.
WE WILL NOT lay off or terminate our employ-
ees to thwart their efforts to secure union
representation.
WE WILL NOT refuse to recognize or bargain
with the above-named Union as the exclusive
representative of the employees in the bargaining
unit described below.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights guaranteed them by
Section 7 of the National Labor Relations Act, as
amended.
WE WILL make whole the following employees
who were laid off on March 14, 1975, as a result
of our discriminatory decision to accelerate
layoffs scheduled after March 14:
Steven Rock Clint Ashby
Rocky Poindexter Gordon Teague
Leslie Reynolds Chris Mitchell
Milton Franks Ed Pohl
Rudy Vasquez Andy Martinez
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by offering to these employees, who were entitled
to job vacancies before and/or after scheduled
layoffs after March 14, 1975, immediate and full
reinstatement, to their former positions or, if
those positions no longer exist, to substantially
equivalent positions, without prejudice to their
seniority or other rights and privileges, and make
them whole for any loss of earnings suffered as a
result of the discrimination against them with
interest at the rate of 6 percent per annum.
WE WILL place all of the above-listed employ-
ees, who were laid off on March 14, 1975, and
who have not been recalled or reinstated, on a
preferential hiring list, and WE WILL fill appropri-
ate vacancies from such list.
WE WILL, upon request, bargain collectively
with the above-named Union as the exclusive
bargaining representative of all the employees in
the bargaining unit described below with respect
to rates of pay, wages, hours of employment, and
other terms and conditions of employment, and,
if an understanding is reached, embody such
understanding in a written signed agreement. The
bargaining unit is:
All production and maintenance employees,
including all baggers, forklift operators,
carpenters, and mill operators employed at
Respondent's Rosamond, California, facili-
ties , but excluding all other employees, office
clerical employees, professional employees,
guards, and supervisors, as defined in the
Act.
All our employees are free to become, remain, or
refuse to become or remain members of the above-
named Union, or any other labor organization.
CALCITE CORPORATION
DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN , Administrative Law Judge: On
June 10 and 11, 1975 ,1 I conducted a hearing at Los
Angeles , California , to try issues raised by a complaint
issued on April 30 pursuant to a charge filed by General
Teamsters, Chauffeurs , Warehousemen & Helpers, Local
892, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America,2 on March 19.
The complaint alleged that Calcite Corporation3 violated
Section 8(a)(1) and (3) of the National Labor Relations
Act, as amended (hereafter called the Act ), by: (1)
I Read 1975 after all future date references omitting the year.
2 Hereafter called the Union
3 Hereafter called the Company.
4 The facts found below are based on the record as a whole and my
observation of the witnesses . Credibility has been resolved on the basis of
interrogating employees concerning their and other em-
ployees' union activities; (2) creating the impression it was
maintaining a surveillance of its employees' union activi-
ties; (3) threatening its employees with plant closure,
refusal to bargain with the Union, forcing them to strike,
and other economic reprisals if they chose union represen-
tation; and (4) discharging 10 employees to thwart their
effort to secure union representation. The complaint also
alleged the Union represented a majority of the Company's
employees within an appropriate unit prior to the Compa-
ny's commission of the above alleged unfair labor practic-
es, that the alleged unfair labor practices prevented and
prevents conducting of a fair election, and that an order
should issue requiring the Company to bargain with the
Union over the unit employees' wages, rates of pay, hours,
and working conditions.
The Company denied it was or is engaged in commerce,
denied Ernest B. Hayhurst was its manager, agent, and
supervisor at times pertinent, denied the appropriateness of
the unit alleged in the complaint, denied the Union
represented a majority of its employees therein, and denied
committing any unfair labor practices.
The issues are whether, at times pertinent:
1. The Company was engaged in commerce.
2. Hayhurst was the Company's manager, agent, and
supervisor.
3. The unit set out in the complaint was appropriate for
collective-bargaining purposes.
4. The Union represented a majority of the Company's
employees therein.
5. The Company interrogated its employees concerning
their and other employees' union activities; gave its
employees the impression it was maintaining a surveillance
of their union activities; and threatened its employees, in
the event they supported the Union, that it would refuse to
bargain, that it would force a strike, and that it would close
before it would grant any improvements.
6. The Company discharged 10 unit employees to
thwart their effort to secure union representation.
7. A bargaining order is warranted.
The parties appeared by counsel at the hearing and were
afforded full opportunity to produce evidence, examine
and cross-examine witnesses, argue, and file briefs. Briefs
have been received from the General Counsel and the
Company.
Based upon my review of the entire record, observation
of the witnesses, perusal of the briefs and research, I enter
the following:
FINDINGS OF FACT4
I. JURISDICTION
The complaint alleged and the answer admitted the
Company at times pertinent was a corporation duly
organized under and existing by virtue of the laws of the
State of California, with an office and principal place of
my review of all the testimony and exhibits with careful regard to the logical
probability of the evidence and the demeanor of the witnesses while
testifying. Whenever testimony has been discredited such discredit has been
based on conflict with credited testimony to the contrary or because it was
incredible and/or unlikely under the circumstances.
CALCITE CORPORATION
business located at Rosamond , California, where it was
engaged in the manufacture , processing, and sale of drilling
mixtures . At the outset of the hearing, the parties stipulated
that the Company, in the course and conduct of its
business operations during the previous or fiscal calendar
year, purchased goods or services from companies outside
the State of California valued at or in excess of $50,000.
Based on the foregoing, I fmd that, at times pertinent, the
Company was an employer engaged in commerce in a
business affecting commerce , as those terms are defined in
Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleged, the answer admitted , and I fmd
that at times pertinent the Union was a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Company at times pertinent was a wholly owned
subsidiary of All Minerals Corporation, a Utah corpora-
tion which conducted its basic business within that State.
All Minerals Corporation purchased Calcite Corporation
in March of 1974. While All Minerals mines, grinds, and
processes nonmetallic minerals at its Utah operations, it
only conducts grinding operations at its Calcite Corpora-
tion operations at Rosamond , California.
The minerals arrive at Rosamond as rocks ; they are
placed in a crusher to break them into smaller rocks and
then carried to a mill for grinding into powder ; they are
then either bagged and placed in a warehouse or run into a
bulk tank . When the materials are sold , they are picked up
by buyers in their vehicles.
B. The Supervisory, Unit and Majority
Representative Status Issues
On March 3 the Union filed a petition with Region 31
seeking certification as the exclusive bargaining representa-
tive of a unit of the Company's employees consisting of "all
production and maintenance employees, including all
baggers , forklift operators, carpenters and mill operators,
excluding all other employees, office clerical employees,
professional employees, guards and supervisors as defined
in the Act."
On March 5 the Union sent a letter to the Company
advising it the Union represented a majority of the
Company's employees in the unit just described and asked
the Company to recognize the Union as their exclusive
collective-bargaining representative and to bargain with
the Union concerning their rates of pay, wages , hours, and
working conditions.
The Company submitted into evidence a document
containing the names , dates of employment, and job
classifications of all its employees as of March 14. The
document lists Barney Hayhurst as its manager, Paul
Folkerson as its foreman , Ronnie Crook, Rick Briscoe, and
5 The Company conducted a three-shift operation.
6 Harris at times pertinent was a regular part -time employee . He worked
1053
Steve Rock as its shift foremen ,5 Carol Evans as its office
clerical employee, and Harold Crook, Jerry Harris,
Thomas Loomis, David Kelley, Randy Crook, Ken Richie,
Rocky Poindexter, Leslie Reynolds, Milton Franks, Rudy
Vasquez, Clint Ashby, Gordon Teague, Chris Mitchell, Ed
Pohl, and Andy Martinez as production and maintenance
employees.
While the Company denied in its answer that Hayhurst
was its manager, agent , and supervisor at times pertinent to
this proceeding, both the testimony of a number of the
employees and Hayhurst himself establishes that at times
pertinent to this proceeding, Hayhurst managed the
Company's operations, directed its work force, hired and
fired employees , and generally directed the Company's
operations . It is undisputed that Folkerson at times
pertinent acted as the Company's general foreman at the
plant, supervising the work of all the employees under the
overall direction and guidance of Hayhurst, and that Evans
was the Company's sole office clerical , with duties confined
to the exercise of clerical functions within the office of the
Company on the plant premises.
On the basis of the foregoing, I find and conclude at
times pertinent that Hayhurst and Folkerson were manager
and general foreman of the Company, respectively, and
agents and supervisors of the Company acting on its
behalf. I further find and conclude that at times pertinent
Evans was an office clerical employee.
At times pertinent to this proceeding , the Company
employed 18 other employees . Of those 18 employees, 12
were on three crews, one crew to each of three shifts. These
crews performed the basic production work conducted by
the Company. The Company's major product was pow-
dered barite , a mineral which goes into paint products and
drilling mud . The latter was the major use of its product.
The three crews delivered rocks to the crusher with a
front loader ; after going through the crusher , belts and
elevators carried the crushed rock into bins ; from the bins,
the crushed rock was carried to a mill (the Company had
two mills) which ground the crushed rocks into powder or
granular form; the powder was then directed either into a
bagging machine for bagging in appropriately sized bags
(50 or 100 pound) and then to a conveyor belt, from there
placed upon a pallet, and the pallets carried to the
warehouse for storage , or the powder was directed into
storage bins. On sale of the product, the buyers' drivers and
helpers loaded the product onto the buyers' trucks. The
three crews each contained four men; one crew consisted
of Ronnie Crook, Franks, Pohl, and Reynolds; a second
crew consisted of Briscoe , Poindexter, Vasquez, and
Mitchell; the third crew consisted of Rock, Randy, Crook,
Kelley, and Teague . These three crews rotated shifts each
week . The other six men were engaged in maintenance
work; Ashby as a carpenter and Harold Crook, Martinez,
Loomis, Richie , and Harriss as general maintenance.
All the production and maintenance men worked regular
8 hours, 5 days a week, were paid an hourly rate, punched a
timeclock and worked interchangeably (the production
crews did cleanup and maintenance work from time to
time, and vice versa).
2 days I week and 2- 1/2 days the next. He was employed for over a year. He
held another job as a city fireman.
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Company contends Ronnie Crook, Briscoe, and
Rock were supervisors at times pertinent. The only
testimony on this issue was that of one witness, Rock.
(While Hayhurst and Folkerson testified, they did not
contradict Rock or amplify his testimony. Neither did any
employee witnesses.) Rock testified he worked the same
shift hours as the other men in his crew; he spent most of
his time doing the same physical work as the others
(bagging, running the mills and the crusher, feeding the
mills and the crusher, etc.); the men in the crew knew their
jobs, worked as a team, and required little or no direction;
he and the others were paid an hourly rate, punched a
timeclock, and were paid time and a half for overtime; he
received instructions from Hayhurst or Folkerson, relayed
those instructions to the others, and consulted with
Hayhurst or Folkerson if he ran into any problems, and did
whatever they told him to do. He testified when his crew
was working the night shift, he telephoned Hayhurst or
Folkerson if he ran into any problems, and this happened
rarely. He testified he never hired, fired, or disciplined any
of the men in the crew, nor granted or denied their requests
for time off, that those functions were performed by
Hayhurst or Folkerson. He stated on one occasion he
asked Hayhurst to take a man off the crew and, a few days
later, Hayhurst removed that man from the crew. He
testified the work was routine and the men required little
direction; the times he gave directions was when a new
man had to be shown what to do and how to do it. He
stated his main function was to keep the job running
smoothly, for which he was paid a premium over the rate
paid the other members of the crew. Inasmuch as Rock's
testimony was forthright and undisputed, it is credited.
The Act (Section 2(11)) states a supervisor is any
individual having authority in the interest of the employer
to hire, transfer, suspend, lay off, recall, promote, dis-
charge, assign, reward, or discipline other employees or
responsibly to direct them or to adjust their grievances or
effectively to recommend such action if in connection with
the foregoing the exercise of such authority is not of a merely
routine or clerical nature, but requires the use of independent
judgment.
Rock did not hire, transfer, suspend, lay off, recall,
promote, discharge, reward, or discipline any other
employees; adjust their grievances , or effectively recom-
mend those actions. Such assignment and direction of the
other men in the crew as he performed was primarily to
familiarize a new employee with the requirements of his
job, inasmuch as the crew generally knew their jobs and
worked together as a team without much or any direction
on his part. When any unusual problems developed, Rock
consulted with Hayhurst and Folkerson and did whatever
they told him to do, passing on such instructions as were
necessary to the other members of the crew.
On the basis of the foregoing, I find Rock's function was
that of a working leadman within the crew, with such
authority as he exercised of a routine nature not requiring
the use of independent judgment.
I therefore find and conclude that at times pertinent
Ronnie Crook, Briscoe, and Rock were working leadmen
properly includable within a unit of production and
maintenance employees.
I further find and conclude that, due to the interchange
between the maintenance and production employees, the
fact they worked together and shared the same shift hours,
pay system, and working conditions, the Company's
production and maintenance employees have sufficient
community of interest to constitute a unit appropriate for
the purpose of bargaining collectively with the Company
concerning their rates of pay, wages, hours, and working
conditions, consonant with the unit description set out in
the beginning paragraph of this section of this Decision.
I further fmd and conclude that at times pertinent to this
proceeding there were 18 employees within that unit;
namely, Ronnie Crook, Randy Crook, Harold Crook,
Franks, Pohl, Reynolds, Briscoe, Poindexter, Vasquez,
Mitchell, Rock, Kelley, Teague, Martinez, Loomis, Richie,
Ashby, and Harris, excluding Hayhurst and Folkerson as
supervisors and Evans as an office clerical employee.
Either at a union meeting or by solicitation at the plant
itself by the Union's leading adherents among the employ-
ees (Poindexter and Vasquez), on February 26-27, the
Union secured signed authorization cards from all 12
production employees within the three crews, plus the
carpenter (Ashby). The cards clearly designated the Union
as their exclusive collective-bargaining representative for
the purpose of bargaining collectively with the Company
concerning their rates of pay, wages, hours, and working
conditions.
Based on the Union's securing of such authorization
cards from 13 of the 18 employees of the unit on February
26 and 27, I fmd and conclude that since the latter date the
Union has been the duly designated collective-bargaining
representative of a majority of the Company's employees
within the appropriate unit set out heretofore.
C. The Alleged 8(a)(1) Violations
1. The alleged interrogations
Poindexter testified that on or about March 6 (after the
Company's receipt of the Union's petition for certification
and request for recognition and bargaining), Hayhurst, in a
conversation with Poindexter at the plant, asked Poindex-
ter whether he had signed a union card; Poindexter replied
he had, upon which Hayhurst thanked Poindexter for
being honest and informed him other employees whom he
had asked the same question lied to him. Ashby testified
that at or about the same time , Hayhurst asked him
whether he was involved with the Union. Reynolds
testified that at or about the same time , Hayhurst asked
him if he knew anything about the Union, who was behind
bringing it in, and why the employees were interested in the
Union.
Hayhurst conceded that, following his receipt of the
petition and the Union's request for recognition and
bargaining, he questioned a number of employees, includ-
ing Poindexter, Ashby, and Reynolds, concerning what
they knew about the Union. He denied, however, that he
asked Poindexter if he signed a union card and denied he
asked Reynolds who brought the Union in and why the
employees were interested in the Union.
Hayhurst's admission that he questioned the employees
concerning what they knew about the Union , standing
CALCITE CORPORATION
alone, is sufficient to establish that the Company, by
Hayhurst, on or about March 6, interrogated its employees
concerning their and other employees ' union activities. In
any event, I credit the testimony of Poindexter, Ashby, and
Reynolds over Hayhurst's denials,7 and further find that
Hayhurst, on or about March 6, asked Poindexter if he
signed a union card, asked Ashby if he was involved with
the Union, and asked Reynolds if he knew anything about
the Union, who brought it in, and why the employees were
interested in the Union.
2. The March 7 meeting
Hayhurst corroborated the testimony of Poindexter and
Vasquez that he called the then night-shift crew (Briscoe,
Poindexter, Vasquez, Mitchell) to a meeting at his office
when they finished their work shift on March 7. Hayhurst
testified he called the meeting to resolve concerns ex-
pressed by various employees about the effects on them of
union representation. Hayhurst testified that Poindexter
showed some curiosity over a list of employees' names on
his desk, that he handed Poindexter the list, and that the
list contained the names of all the Company's employees
and their hiring dates. He corroborated Poindexter's
testimony that, when he handed Poindexter the list, he
asked him if he recognized it and Poindexter replied in the
affirmative.
Hayhurst testified that, in the course of the meeting, he
advised the employees if the Union came in and secured
excessive wage increases , the Company might go broke and
be forced to close its doors; in response to an inquiry as to
whether the Company would give the employees a raise or
overtime, that it could not; when asked why, he replied the
Company could not afford it; when asked why the
Company could not give a wage raise and increase its
prices, he replied it could not do so and remain competi-
tive; when asked where the money was going, he noted the
cost of repairing a mill, the cost of bringing the plant up to
pollution standards, etc.; and when asked what would
happen in the event there was a strike and picketing to
secure higher wages, he replied this would not hurt the
Company's business because the drivers of its customers'
trucks were nonunion.
Poindexter and Vasquez' version of Hayhurst's state-
ments were somewhat different; they corroborated Hay-
hurst's testimony that he stated the Company could not
give wage raises and stay in business, that the Company
could not give overtime and stay in business, that a strike
and picketing by the employees would not hurt the
Company, since the drivers of the trucks owned by its
customers were nonunion and that Hayhurst handed
Poindexter a paper containing a list of employee names,
asked him if he recognized it, and Poindexter replied that
he did. They testified, however, that Hayhurst stated if the
Union came in and forced the Company to increase wages,
the Company would have to close its doors.
I find and conclude that Hayhurst conveyed to the
assembled employees the clear message that if they chose
union representation and sought improvements in their
1055
wages by strike activity, the Company could not, and
would not, grant any wage increases ; that, in the event they
struck for such increases, the strike would be futile; and
that, in the event the Company was forced to grant wage
increases, it would have to close its doors.
On the basis of the above finding, I find and conclude
that on March 7 the Company, by Hayhurst, threatened
Poindexter, Vasquez, Mitchell, and Briscoe that the
Company would close its doors before it would yield to its
employees' efforts, through strike or other activities, to
secure any wage improvements.
3. Other alleged threats to individuals
Hayhurst corroborated Poindexter's testimony they had
numerous conversations between March 5 and 11; Hay-
hurst corroborated Poindexter's testimony that, on one
occasion, Hayhurst telephoned Poindexter and told Poin-
dexter to be sure to attend an upcoming union meeting
(Hayhurst testified another employee [either Loomis or
Harold Crook] informed him of the scheduled meeting).
Hayhurst also corroborated Poindexter's testimony he told
Poindexter, on another occasion, the Company's customers
employed nonunion truckdrivers and a strike would not
hurt the Company. Hayhurst also confirmed Poindexter's
testimony that he asked Poindexter, on a number of
occasions, what he heard from the Union and testified that,
on one occasion, he offered to bet Poindexter a six-pack of
beer the Union had lost the support of a majority of the
employees and would lose an election.
Hayhurst corroborated Ashby's testimony he informed
Ashby the Company could not continue to employ him as
a full-time carpenter if the Union came in because the
Company couldn't afford to pay normal union scale for a
carpenter and that, in any event, Ashby could not qualify
as a journeyman carpenter.
Hayhurst confirmed Rock's testimony he commented to
Rock that Rock might be a champion chess player, but he
was not going to win the union contest and Vasquez'
testimony that he (Hayhurst) said he had the Union beat.
Hayhurst denied Reynolds' testimony that Hayhurst in
several individual conversations in addition to constantly
asking who brought the Union in and why, and stating the
plant would close if the Union came in, Hayhurst told
Reynolds if the Union got in, he might fire some of the
present white employees and replace them with blacks.
Hayhurst neither confirmed nor denied Vasquez' testi-
mony that Hayhurst informed him he had been successful
in convincing most of the men to withdraw their support
from the Union.
Hayhurst neither confirmed nor denied Poindexter's
testimony that Hayhurst asked him how he could talk him
out of continuing his support of the Union, Hayhurst
informed him he had convinced a majority of the
employees to withdraw their support of the Union; and
Hayhurst, after suggesting he attend a forthcoming union
meeting, informed him that Ronnie Crooks' crew had
informed Hayhurst they were withdrawing their support
from the Union and would not attend the meeting after
7 The tenor of Hayhurst's admissions tend to confirm the employees'
testimony; their testimony is plausible and their demeanor while testifying
was far more convincing than that of Hayhurst.
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that crew attended the same kind of meeting that Hayhurst
held with Briscoe's crew (which included Poindexter).
On the basis of Hayhurst's corroboration of employee
testimony, I find and conclude that, between March 5 and
11, Hayhurst continued to ask employees what they knew
about the Union, including Poindexter; that he continued
to reiterate the theme he expressed at the March 7 meeting,
that is, that the Company could not, and would not,
improve wages; and that, if the employees struck for
improved wages, their strike would be ineffective. I further
find on the same basis that between the same dates
Hayhurst told Ashby he would lose his job if the Union
came in because the Company could do without a
carpenter, it could not afford normal carpenter wage scale,
and he could not qualify as a carpenter, and that he
informed Poindexter, Rock, and Vasquez his campaign to
cause a majority of the employees to withdraw their
support from the Union had been successful, a majority of
the employees had withdrawn from the Union.
I further find that, on the basis of uncontradicted
employee testimony, Hayhurst informed Poindexter he
knew about a scheduled meeting of the Company's
employees, that he suggested Poindexter attend; that he
asked Poindexter how he could talk Poindexter into
withdrawing his support of the Union; and that he told
Poindexter as a result of remarks similar to these he
addressed to Poindexter's crew, Ronnie Crooks' crew had
withdrawn their union support and would not attend the
meeting.
With reference to Hayhurst's denial of Reynolds'
testimony concerning Hayhurst's individual threats of
plant closure and replacement of some of the white work
force with blacks in the event the Union came in, I credit
Reynolds' testimony. It is apparent that from the time he
learned of the Union's campaign to represent the Compa-
ny's production and maintenance employees, Hayhurst
engaged in a strenuous effort to undermine employee
support of the Umon. Reynolds was a difficult man to
convince, so Hayhurst went further with him than he had
with other employees. Reynolds' demeanor was convincing
while on the stand. I therefore find and conclude that
between March 5 and 11 the Company, by Hayhurst,
threatened Reynolds with plant closure and replacement of
some of the Company's white complement with blacks in
the event the majority of the employees chose union
representation.
On the basis of the foregoing findings, I therefore find
and conclude that between March 5 and 11 the Company,
by Hayhurst, violated Section 8(a)(1) of the Act by:
1. Asking employees in individual conversations, in-
cluding Poindexter, Ashby, and Reynolds, what they knew
about the Union.
2. Asking Poindexter if he had signed a union card.
3. Asking Reynolds who brought the Union in and why
the employees were interested in the Umon.
4. Threatening Reynolds with plant closure and dis-
charge of white employees and their replacement with
blacks in the event the Union came in.
8 It is reasonable to conclude from the small size of the work force,
Hayhurst's unremitting effort to undermine the Union's support within it
and brag he had turned around a majority of the Union's supporters,
5. Threatening Ashby with discharge in the event the
Union came in.
6. Threatening Poindexter, Vasquez, Mitchell, and
Briscoe that the Company could not and would not grant
any wage increases in the event they chose union
representation, and struck and picketed to secure such
increases, that such a strike would be futile; and that, in
any event, if the Company was forced to increase wages, it
would have to close its doors.
7. Asking Poindexter how he could talk him out of
continuing his support of the Union.
8. Intimidating Poindexter, Rock, and Vasquez by
telling them he had caused a majority of the employees to
withdraw their support of the Union.
9. Giving Poindexter the impression he was maintain-
ing a close surveillance of the employees' union activities
by telling Poindexter of a scheduled union meeting and
informing him he (Hayhurst) had persuaded Ronnie
Crooks' crew not to attend that meeting and to withdraw
their support from the Union.
4. The alleged unlawful discharges
It is undisputed that on March 14, approximately 9 days
after the Company received the Union's petition for
certification and request for recognition and bargaining,
the Company terminated 10 of its 18 production and
maintenance employees. Of the 10 employees who were
terminated, 8 were production employees who had signed
cards authorizing the Union to act as their collective-
bargaining representative (Franks, Pohl, Reynolds, Poin-
dexter, Vasquez, Mitchell, Rock, and Teague) and a 9th
was the carpenter, Ashby, who made his union support
known to Hayhurst. It is readily apparent the Union was
most successful in securing signatures to authorization
cards from the production employees (all 12 of them signed
and only I maintenance employee [Ashby]). By that
termination, the Company eliminated 9 of the 13 card
signatories from its production and maintenance work
force, leaving 4 nonsignatory employees (Harold Crook,
Loomis, Richie, and Harris) and 4 signatories (Ronnie
Crook, Randy Crook, Briscoe, and Kelley). Two of those
were leadmen (Ronnie Crook and Briscoe) and Hayhurst
had announced to Poindexter he had persuaded Ronnie
Crook to withdraw his support from the Union. The record
does not disclose how successful Hayhurst was in convinc-
ing Ronnie Crook's brother, Randy Crook, Kelley, and
Briscoe to similarly withdraw their support, but Hayhurst
undoubtedly knew their stand.8
The General Counsel contends the termination was the
Company's final step in its campaign to frustrate the efforts
of the production and maintenance employees to secure
union representation and better their rates of pay, wages,
hours, and working conditions. He relies on the timing of
the termination and the accompanying strenuous efforts by
Hayhurst to discourage the employees' support of the
Union .9
The Company contends the terminations were necessi-
tated by economic conditions, the timing was incidental,
Hayhurst knew exactly where each man stood at the time of the layoff.
9 Hayhurst testified shortly after his receipt of the Union's petition
Ashby informed him 13 of the 18 unit employees signed authorization cards
CALCITE CORPORATION
that Hayhurst simply advised the employees economic
conditions barred any improvements in their rates of pay,
wages, hours, and working conditions, and argues these
contentions are supported by the fact the terminations,
with one exception, were based on seniority.
The record discloses the Company's last assertion is
correct. All 10 of the laid-off employees were the least
senior of the 18 production and maintenance employees,
except Rock. The Company attempted to justify Rock's
layoff and the retention of his junior, Richie, who did not
sign a union authorization card, on the ground Richie was
a more versatile, more reliable employee than Rock. Rock's
description of the versatility of the work he performed as a
leadman belies that testimony, however, and there was no
evidence that Rock was other than a highly qualified
employee.
The Company supported its contention the terminations
were motivated by economic considerations with evidence
that, following the Company's purchase by All Minerals
Corporation in March 1974 in anticipation of an expansion
of the market for its primary product (barite) due to
renewed and increased oil drilling activities, both offshore
and onshore, in California, the expected expansion did not
occur.10 Additional evidence established that the Company
was threatened with closure by state authorities shortly
after its purchase by All Minerals due to failure to meet
pollution standards, that this necessitated major expendi-
tures for clean up, plant renovation, equipment replace-
ment, etc. Statistical evidence produced in the course of the
hearing also showed there was a steady downtrend in the
plant's production and sales through late 1974 into early
1975, with one exception.1'
Hayhurst's testimony he told Briscoe in early February
the Company was going to have to cut back its work force
if demand didn't pick up is uncontradicted; in fact, it is
substantiated by Poindexter's admission his leadman
(Briscoe) informed him several times in late January and
early February that work was slowing up and that he heard
rumors during this time of a layoff.
The evidence is unchallenged that, between February
and April of 1975, there was a precipitate downtrend in
demand for the Company's products and it was able to
maintain inventory and meet all current orders by
operating one mill one-third of the time.
Hayhurst testified the list he handed to Poindexter (the
Union's leading adherent) 12 on March 7 had been
prepared for the purpose of reviewing the names and
seniority dates of all employees to aid Hayhurst and
Mahoney in deciding who to layoff, that he and Mahoney
had been considering this for several weeks prior thereto.
It is undisputed that since the termination of the 10
employees, there have been no new hires, no overtime
except to meet customer requirements outside of normal
working hours, and that the Company has been current on
all orders and maintained a full inventory.
for the Union, so it is obvious that Hayhurst knew the Umon's strength
among the employees when he commenced his campaign to undermine the
Union
10 The Company's president, Stanford Mahoney, attnbuted the failure of
its anticipations to legal and legislative activities by environmentalists and
no-growth advocates which resulted in the delay or abandonment of drilling
plans by the oil explorer/developers.
1057
The Company also produced a study by an expert in the
field, prepared in October 1974, which recommended that
the Company reduce its total production, maintenance,
and clerical complement to 12 employees if it expected to
conduct profitable operations.
Mahoney testified he was aware from late 1974 it was
going to be necessary to reduce the employee complement
in view of the failure of the anticipated increased demand
for the Company's main product in California to develop,
but that he hoped to do so by gradual attrition after the
first of the year. He testified that demand, due to economic
conditions, dropped much more than he had anticipated
after the one-time spurt in January 1975 due to the oil well
fire, and he realized by February he was going to have to
reduce the work force immediately if the Company was to
stay in business.
He testified he therefore decided to reduce the work
force to eight production and maintenance employees in
March 1974 in order to stay in business, and that the
Union's campaign for representation of those employees
was not a factor in that determination.
While the economic evidence demonstrates a reasonable
exercise of business judgment warranted reducing the 18-
man production and maintenance employee complement
following the replacement of the inventory exhausted in
January 1975 following the oil well fire, I am not convinced
the timing of the layoff or the selection of the employees to
be laid off, particularly Rock, was motivated purely by
economic considerations and without regard to the em-
ployees' union sentiments and their effort to secure union
representation and higher wages.
I therefore find that while the Company was economical-
ly motivated in part when it laid off nine of the Union's
supporters, both the timing of the layoff and the selection
of employees for layoff were calculated to destroy the
Union's support among the Company's production and
maintenance employees.
I therefore find and conclude that inasmuch as the
Company was motivated in part, in the timing and
selection of employees for its March layoff, by their
support of the Union, it violated Section 8(a)(3) and (1) of
the Act by laying off the nine union supporters.
5. The bargaining order issue
Having found that the Company, following its awareness
that all of its production employees and its carpenter had
designated the Union as their collective-bargaining repre-
sentative, engaged in a strenuous campaign to cause those
employees to withdraw their support from the Union by
actions violative of the Act (including numerous threats,
intimidation , and a discriminatory layoff), I find and
conclude that by such actions the Company made it
impossible to conduct a full and free election to ascertain
the employees' desires concerning representation by the
11 In January 1975 there was a sudden and one-time demand for an
unusual amount of barite due to a major oil well fire , at which time the
Company exhausted its inventory.
12 It was Poindexter, accompanied by Vasquez , who made the initial
contact with the Union and interested the Union in representing the
Company's employees.
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union and therefore, the purposes of the Act will best be
served by issuance of an order requiring the Company to
bargain with the Union at its request concerning the rates
of pay, wages , hours, and working conditions of the
Company's production and maintenance employees in the
unit heretofore found to be appropriate for collective-
bargaining purposes.
CONCLUSIONS OF LAW
1. At all times pertinent the Company was an employer
engaged in commerce in a business affecting commerce, as
those terms are defined in Section 2(2), (6), and (7) of the
Act.
2. At times pertinent the Union was a labor organiza-
tion as that term is defined in Section 2(5) of the Act.
3. All of the Company's production and maintenance
employees, including all baggers, forklift operators, carpen-
ters , and mill operators , and excluding all other employees,
office clerical employees, professional employees, guards
and supervisors as defined in the Act, constitute a unit
appropriate for collective-bargaining purposes within the
meaning of Section 9 of the Act.
4. On February 27, 1975, there were 18 employees
within the above-described unit; namely, Ronnie Crook,
Randy Crook, Harold Crook, Franks, Pohl, Reynolds,
Briscoe , Poindexter, Vasquez, Mitchell , Rock, Kelley,
Teague, Martinez, Loomis, Richie, Ashby, and Harris.
5. Since February 27, 1975, the Union has been the
duly designated collective-bargaining representative of a
majority of the Company's employees within the above-
described unit.
6. At times pertinent Mahoney, the Company's presi-
dent, Hayburst, the Company's manager, and Folkerson,
the Company's general foreman, were supervisors and
agents of the Company acting on its behalf.
7. Between March 5 and 11, 1975, the Company, by
Hayhurst, violated Section 8(axl) of the Act by:
(a) Asking unit employees , including Poindexter, Ashby,
and Reynolds, what they knew about the Union; (b) asking
Poindexter if he had signed a union card; (c) asking
Reynolds who brought the Union in and why the
employees were interested in the Union; (d) threatening
Reynolds with plant closure and discharge of white
employees and their replacement with blacks in the event
the Union came in; (e) threatening Ashby with discharge in
the event the Union came in; (f) threatening Piondexter,
Vasquez, Mitchell, and Briscoe that the Company could
not and would not grant any wage increases in the event
they chose union representation ; that, in the event they
struck and picketed to secure such increases, such action
would be futile; and that, in any event, if the Company
were forced to increase wages, it would have to close its
doors; (g) asking Poindexter how he could talk him out of
continuing his support of the Union; (h) intimidating
Poindexter, Rock, and Vasquez by telling them he had
caused a majority of the employees to withdraw their
support from the Union; and (i) giving Poindexter the
impression he was maintaining a close surveillance of the
employees' union activities.
8. The Company violated Section 8(a)(1) and (3) of the
Act by its March 14, 1975, layoff of nine union supporters
in that it was motivated in part in the timing and selection
of employees for layoff by their union activities.
9. In view of the fact the Company by its unfair labor
practices prevented a free election wherein the employees
might signify whether or not they desired the Union to act
as their exclusive collective-bargaining representative, the
purposes of the Act will best be served by the issuance of
an order requiring the Company to recognize and bargain
with the Union, at its request, concerning the rates of pay,
wages , hours, and working conditions of the unit employ-
ees.
10. The above unfair labor practices affect commerce.
THE REMEDY
Having found the Company engaged in unfair labor
practices in violation of Section 8(a)(1) and (3) of the Act, I
shall recommend that the Company be directed to cease
and desist therefrom and to take certain affirmative action
designed to effectuate the purposes of the Act.
It shall be recommended that the Company be ordered
to cease and desist from interrogating its employees
concerning what they know about the Union, who brought
the Union in, why the employees were interested in the
Union, and whether they had signed a union card;
threatening employees with plant closure in the event the
Union came in; threatening employees with discharge of
white employees and replacement with black employees in
the event the Union came in; threatening employees that
the Company could not and would not grant any wage
increases in the event they chose union representation, that
any strike to secure same would be futile; and that in the
event the Company was forced to grant wage increases, it
would have to close its doors; asking employees how they
could be talked out of continuing their support of the
Union; intimidating employees by telling them the Compa-
ny had caused a majority of the employees to withdraw
their support from the Union; giving the employees the
impression the Company was maintaining a surveillance of
its employees' union activities , and maintaining such
surveillance; and laying off or terminating employees to
destroy union support among its employees.
Having found that union supporter Rock was laid off on
March 14, 1975, and a junior employee who was not a
union supporter retained as part of the Company's effort to
destroy the Union's majority representative status among
the Company's unit employees , it shall be recommended
that Rock be offered immediate and full reinstatement to
his former job, or a substantially equivalent job if his
former job no longer exists , without prejudice to his
seniority rights and other rights and privileges, and that he
be made whole for any wage losses he may have suffered
by payment to him of the sum of money he would have
earned from the date he was laid off to the date he is
reinstated , less any net earnings he has received in the
interim period . His lost wages shall be computed in
accordance with the formula prescribed in F. W. Wool-
worth Company, 90 NLRB 289 (1950), with interest at 6
percent per annum computed in accordance with the
formula prescribed in Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
CALCITE CORPORATION 1059
While I have entered findings that the March 14 layoff
may well have occurred at a later date but for the fact a
majority of the Company 's unit employees designated the
Union on February 27 as their collective-bargaining
representative in order to secure better wages , etc., and that
the selection of the employees for layoff was influenced by
Hayhurst's knowledge which among them supported the
Union , it is difficult if not impossible to ascertain which
employees would have been laid off in the absence of any
union activity on their part or when those who were laid off
would have been laid off but for that activity.
I therefore shall recommend that the Company be
ordered to create , and maintain for a period of 1 year from
the date of issuance of the Board's Order , a preferential
recall list containing the names of the laid -off employees
(other than Rock) and recall the employees so listed prior
to making any new hires of production or maintenance
employees . In the event any new hires have been or are
made prior to the date of the issuance of that Order , it shall
be recommended that the Company be directed to
immediately reinstate the employees it would have recalled
under the terms of the Order, if necessary laying off such
new hires , and make the employees so recalled whole for
any lost wages, less net earnings , for the period from the
date such new hire was made to the date they are
reinstated.
It shall finally be recommended that the Company be
directed to recognize and bargain with the Union, at its
request, concerning the rates of pay, wages, hours, and
working conditions of the unit employees.
[Recommended Order omitted from publication.]