El Dorado Limestone Co.

National Labor Relations Board - Board Decisions

May 23, 1949

83 N.L.R.B. 746 (N.L.R.B. 1949)

In the Matter of EL DORADO LIMESTONE COMPANY and UNITED CEMENT,
LIME AND GYPSUM WORKERS, INTERNATIONAL UNION. AFL
Case No. 20-CA-69.-Decided May 03, 194k9
DECISION
AND
ORDER
On November 22, 1948, Trial Examiner Arthur Leff issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief. The
Respondent also requested oral argument. This request is denied as
the record and brief, in our opinion, adequately present the issues and
positions of the parties.
Pursuant to the provision of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Herzog and Mertzbers
Reynolds and Gray].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the Respondent's exceptions and brief, and the entire
record in the case, and to the extent consistent with the Decision and
Order herein, hereby adopts the findings and conclusions of the Trial
Examiner, and finds merit in the Respondent's exceptions.
The Trial Examiner found that the Respondent ordered DeLagadell
to leave the boarding house because of his union activities and not
because of his objectionable conduct, and that it did so with the hope
and expectation that he would resign, an expectation that was ful-
filled. We are unable to agree with these findings.
The Respondent asserts that it asked DeLagadell to move from the
boarding house because his chronic complaints about the food were
83 N. L. R. B., No. 114.
746
EL DORADO LIMESTONE COMPANY 747
creating discontent among the men living there. It points out that
because of the isolated location of the boarding house, such discontent
could spread very easily. The Trial Examiner considered-this rea-
son to be only a pretext designed to cloak the Respondent's anti-union
motivation. Although the case is very close, we are not satisfied that
the preponderance of the evidence sustains this pretext determination.
It seems clear that DeLagadell was a chronic, and the principal,
complainer about the food served in the boarding house. By his
words and conduct, he indicated dissatisfaction with that food. Often
at table he characterized it in unsavory epithets. Out of his wide ex-
perience in mining camps, Superintendent Smith testified that one of
the easiest ways of creating discontent among miners is to create dis-
satisfaction with the food served in a boarding house, and that was
what DeLagadell was doing. For that reason, he said he asked De-
Lagadell to leave the boarding house.' Smith's characterization of
DeLagadell as a "trouble maker" with respect to his conduct in the
boarding house appears to be reasonable.
But the Trial Examiner rejects the Respondent's explanation for the
requested removal of DeLagadell and infers that it actually equated
"trouble making" with "union activity" and sought to retaliate against
DeLagadell for his union activities and to forestall a recurrence of
those activities in the post-election period. Among the principal fac-
tors relied upon by the Trial Examiner to support his inference are
the following: (a) it was not until shortly after DeLagadell had
assumed his role as "the leading union organizer" that President Bell
characterized him as a "trouble maker"; (b) Smith was in charge of
mining, but not boarding house operations; (c) the Respondent was
concerned over the Union's organizational activities; (d) Smith's
interview with DeLagadell followed shortly upon his interview with
Hix, whom he had warned not to engage in any further union acti-
vities in the mine or on the premises.
(a) There is no evidence that, as found by the Trial Examiner,
DeLagadell was "the leading union organizer." "On the contrary,
the available evidence indicates that an employee named Leventon
was the leading figure in signing up employees for the Union. Nor
is the Trial Examiner correct in saying that President Bell did not
refer to DeLagadell as a "trouble maker" until after he had become
active in the Union. Bell's uncontradicted testimony is that after
returning to the mine in October 1947, following a long illness, Board-
ing-House Manager Hope complained to him about DeLagadell's con-
1 Smith testified without contradiction that conditions in the boarding house improved
after DeLagadell left.
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duct in the boarding house. Bell thereupon referred the matter to
Foreman Lichtenberg who, however, did nothing about it. (b) The
Trial Examiner correctly states that Smith was not in charge of
boarding-house operations. But the power to discipline employees
for misconduct in the boarding house did rest with Smith. The evi-
dence is uncontradicted that, both before and after the DeLagadell
incident, Smith discharged employees for misbehavior in the boarding
house, in one case for conduct similar to that of DeLagadell. (c) It
is true, that, during the Union's organization campaign, the Respond-
ent expressed some doubts concerning the wisdom of having a union.
But as against this is the fact that it readily agreed to a consent elec-
tion and refrained from committing any unfair labor practices that
might have affected the election results. It is difficult under such
circumstances to infer that a concern which was properly restrained
during the crucial' period preceding the election, burst its bounds
after the employees had voted against the Union, and, in effect,
vindicated the Respondent. (d) The Trial Examiner also regards
as persuasive the fact that Smith's interview with DeLagadell fol-
lowed that with Hix in which Smith warned Hix not to engage in
organization activities in the mine or on the Respondent's premises.
But this warning must be considered in connection with the preceding
part of that interview. Although a supervisor, Hix had been an
officer of the Union and active in its organizational campaign. At
the interview after the election, Smith said that he could discharge,
demote, or lay off Hix because of his union activities, but had decided
to impose no penalty. He then delivered the warning referred to by
the Trial Examiner. This interview with Hix certainly does not
indicate that Smith was in a mood to retaliate for past union activi-
ties or to prevent future activities, for Smith had the right to warn
his foreman against participating in the union activities of the rank
and file. It is significant that, although he might have done so,
Smith made no effort to discipline Hix.
The Trial Examiner also found that, because of the isolation of the
mine, the unavailability of other convenient boarding house facilities,
DeLagadell's unmarried state, and lack of a home and a car, the
Respondent expected that he would resign if removed from the board-
ing house. Again this inference drawn by the Trial Examiner is
.questionable. Smith knew that DeLagadell had formerly lived in
Shingle Springs. Under the circumstances, Smith might reasonably
have expected that DeLagadell would be able to arrange to live and
board with a private family, not an unusual situation in working class
communities. In fact, DeLagadell did live in Shingle Springs from
the time of his resignation to the date of the hearing. So far as trans-
. I
11
EL DORADO LIMESTONE COMPANY 749
portation is concerned, Smith did not know until his interview with
DeLagadell that the latter had smashed his car a few weeks earlier.
In any event, several employees of the Respondent lived in Shingle
Springs and drove to work in their own cars. Smith could reason-
ably have expected that DeLagadell would be able to commute to
work with some other employee. Moreover, in telling DeLagadell
that he would have to leave the boarding house, Smith said the former
would have to leave as soon as possible, but "there was no hell of a
sweat about it." In other words, DeLagadell was offered a reason-
able time in which to look around for other living accommodations, an
opportunity of which DeLagadell refused to avail himself. This
hardly conforms with the Trial Examiner's inference of an induced
or anticipated resignation 2
Accordingly, we accept the Respondent's explanation of its reasons
for removing DeLagadell from the boarding house. We therefore
find that the Respondent has not discriminated against Joe H. De-
Lagadell in violation of Section 8 (a) (3) of the Act. As the General
Counsel has failed to prove that the Respondent committed any of
the unfair labor practices alleged in the complaint, we shall dismiss
the complaint in its entirety.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint issued herein against
the Respondent, El Dorado Limestone Company, Shingle Springs,
California, he, and it hereby is, dismissed.
INTERMEDIATE REPORT
Mr. Robert V. Magor, for the General Counsel.
Mr. Gilford G. Rowland (Rowland and Craven), of Sacramento , Calif., for the
Respondent.
Mr. Floyd N. Burks, of North Hollywood, Calif., for the Union.
STATEMENT OF THE CASE
Upon an amended charge filed on June 30, 1948, by United Cement, Lime and
Gypsum Workers, International Union, AFL, herein called the Union, the Gen-
eral Counsel of the National Labor Relations Board ,' by the Regional Director
for the Twentieth Region ( San Francisco , California ), issued his complaint,
S We find it unnecessary to pass upon the Trial Examiner 's alternative theory that, even
if the Respondent did not remove DeLagadell from the boarding house with the expectation
of bringing about his resignation , DeLagadell was justified in refusing to acquiesce in the
Respondent 's discriminatory action in affecting a term and condition of employment and
that his quitting under such circumstances amounted to a constructive discharge.
1 The General Counsel and his representative at the hearing are referred to as the
General Counsel, the National Labor RelatioIls'Board , hs tlie,Board:
750 DECISIONS OF,NATIONAL LABOR RELATIONS BOARD
dated July 26, 1948, against El Dorado ' Limestone' Company, Shingle Springs,
California, herein called the Respondent, alleging that the Respondent had-en-
gaged in and was engaging in unfair labor practices affecting commerce within
the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the
National Labor Relations Act, as amended (June 23, 1947, Public Law 101, 80th
Congress, Chapter 120, 1st Session), herein called the Act.
With respect to the unfair labor practices, the complaint alleged in substance
that the Respondent : (1) interfered, restrained and coerced employees in their
rights, by engaging in certain conduct more specifically described in a subsequent
section of this report; (2) on or about March 15, 1948, discharged Joe H. De-
Lagadell, its employee, because of his union activities; and (3) by the foregoing
conduct engaged in unfair labor practices, within the meaning or Section 8 (a)
,(1) and (3) of the Act.
The Respondent in its answer, duly filed on August 5, 1948, denied that it was
engaged in commerce within the meaning of the-Act, or that it had engaged in
the alleged unfair labor practices.
Pursuant to notice, a hearing was held on September 27 and 28, 1948, at
Placerville, California, before the undersigned, Arthur Leff, the Trial Examiner
duly designated by the Chief Trial Examiner. The General Counsel, the Re-
spondent, and the Union were represented at and participated in the hearing.
All parties were afforded opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues. At various stages
during the course of the hearing, the Respondent moved to dismiss the com-
plaint upon the ground that the General Counsel failed to allege and to prove
that the charging party duly complied with the requirements of Section 9 (f),
(g), and (h) of the Act. The motions to dismiss were denied? At the close of
the General Counsel's case, the Respondent moved to dismiss the complaint
upon the ground that no substantial evidence to support its allegations had been
adduced. The motion was denied with leave to renew at the close of the entire
case. Upon renewal of that motion at the close of the case, decision thereon
was reserved, and it is now disposed of in the manner indicated in the body
of this report. Motions made by the General Counsel and by the Respondent at
the close of the case, to conform the pleadings to the proof with respect to minor
variances, were granted.
Opportunity was afforded for oral argument upon the record and for the filing
of briefs. Briefs were received from the General Counsel and from the Re-
spondent on November 10, 1948, and have been considered.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
El Dorado Limestone Company, a California company with its principal office
and place of business at Shingle Springs, California, is engaged in the business
of mining and processing crushed limestone. During the last calendar year,
the Respondent processed and sold crushed limestone having a value in excess
of $250,000. All sales were made to customers located in the State of California.
2 This ruling was based upon Board decisions to the effect that the question of compliance
Is an administrative, and not a litigable, issue . See, e. g., Matter of Baldwin Locomotive
,Works, 76 N. L. R. B. 922; Matter of Lion Oil Co., 76 N. L. R. B. 565.
EL DORADO LIMESTONE COMPANY 751
The Respondent's principal customers are American Crystal Sugar Co., American
Smelting and Refining Co., Columbia Steel Co., Commercial Minerals Co., and
Hazel-Atlas Glass Co. The named companies are engaged in interstate com-
merce, and use the crushed limestone which they purchase from the Respondent
for the processing, manufacturing, and refinement of their products. During
the last calendar year, the Respondent's sales of crushed limestone to these
customers, alone, exceeded $155,000 in value.
It is found, contrary to the position of the Respondent, that the Respondent is
engaged in commerce within the meaning of the Act.'
II. THE ORGANIZATION INVOLVED
United Cement, Lime and Gysum Workers, International Union, affiliated with
the American Federation of Labor, is a labor organization admitting to member-
ship employees of the Respondent.
Ill. THE UNFAIR LABOR PRACTICES
A. Background
The Respondent's mine is located approximately 5 miles from Shingle Springs,
a distance only partially covered by a public road. No public transportation
facility serves the mine locality, and the Respondent provides no transportation
for employee's living outside the mine property. Such employees are dependent
upon their own means of conveyance in order to reach their place of work, and
either own automobiles of their own or are in a position to arrange rides with
others who do. Shingle Springs, a wayside village with a population of 205,'
does not have a boarding house; and the closest outside boarding facilities
available-and then only at times-is at Diamond Springs (population, 594),'
located about 14 miles from the mine property. Generally speaking, the only
employees who live away from the mine-roughly one-third of the total num-
ber-are those who have homes or relatives withig convenient driving distance,
as well as their own means of transportation.
To accommodate the bulk of its employees, the Respondent maintains a board-
ing house and a bunk house on the Company premises. Employees are free
to use or not to use the boarding facilities provided by the Respondent. But
the availability of these facilities is held out by the Respondent as an induce-
ment to prospective employVes to come to work for it. Aside from considera-
tions of convenience or necessity, there is an economic incentive for employees,
who otherwise would have to board out, to avail themselves of the room and
board accommodations provided by the Respondent. The rate charged-$50 a
month-is lower than the prevailing rate in the area. As the record shows,
the boarding house is operated at a loss which is subsidized from general funds
of the Respondent. The boarding house is not operated directly by the Respond-
ent, but is managed for the Respondent by managers who are under contract
with it, and who operate it as agents of the Respondent. At the times material
herein, Charles and Mary Hope were the boarding house managers.
8N. L. R B. v. Sunshine Mining Co ., 110 F . ( 2d) 780 (C. C. A. 9) ; N. L. R. B. V.
Cleveland Cliff8 Iron Company , 133 F. ( 2d) 295 (C. C. A. 6) ; N. L. if. B . V. T. W. Phillips
Gas & Oil Company, 141 F. ( 2d) 304 (C. C. A. 3) ,; Matter of Trin=idad Brick and Tile
Company, 67 N. L. R. B. 1351 ; Matter of Solvay Process Co., 74 N . L. R. B. 1146.
' The population figure is from Encyclopaedia Brittanica World Atlas, 1947.
B Ibid.
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the early part of 1948, the Respondent had in its employ approxi-
mately 55 employees, of whom about 40 were underground workers. Harry
Bell, the Respondent's president , acted as general manager of the Company's
business . His principal subordinate in charge of mining operations was the
mine superintendent-a position occupied after February 15, 1948 by Mark
Smith. Below him on the supervisory scale was General Foreman Walter Lich-
tenberg. At the very bottom-until April 1, 1948, when their positions were
abolished-were the shift bosses or assistant foremen, George Coval and Wil-
liam Hix, who worked underground with the shift men. The supervisory func-
tions delegated to the shift bosses were apparently minor in character, but in-
cluded authority to discharge subordinates under certain circumstances. Al-
though it seems that Coval and Hix, in certain respects at least, identified
themselves more with the rank and file employees than with management,
their authority was such, it is found, as to constitute them "supervisors," as
that term is defined in Section 2 (11) of the Act.
B. Commencement of union organization; the election; events leading to
DeLagadell's termination
Organizational activities of the Union began in January 1948. Toward the
latter part of the month, at an organizing meeting held at Shingle Springs, a
local organization was set up, and temporary officers were elected. Joe H.
DeLagadell was elected president. Among the other officers chosen were George
Coval, who became temporary vice-president, and William Hix, who was selected
as sergeant-at-arms. Coval and Hix, although shift bosses, had been assured
by the Union that they were eligible for membership, and had joined the Union
at the beginning of its organizing campaign.
About February 1, 1948, the Union demanded recognition. The Respondent
took the position that it would prefer to have the Union first establish its majority
at an election, a proposal to which the Union readily agreed.
There is some evidence that the Respondent during the organizing period was
concerned over the efforts of its employees to obtain a union representative. So
far as the record reveals, however, this concern was reflected only in statements
made to Coval and to Hix by higher supervisory and management officials. There
is no testimony that any official of the Respondent directed anti-union remarks
to any of its other employees, or that it otherwise engaged in anti-union conduct
during this period.
Coval testified, and it is found, that on one occasion during the latter part of
February, General Foreman Lichtenberg approached him with the suggestion that
he get together a group of employees and bring them to the Company office for
the purpose of discussing directly with President Bell the situation concerning
wages and working conditions. Lichtenberg stated to Coval that the employees
could achieve better results by taking up their grievances directly with the Com-
pany rather than through a union intermediary. He went on to say that if a
union came in and obtained a contract requiring union membership as a condition
of employment , it would be difficult for the Respondent to obtain seasonal em-
ployees. He added that if the Union did succeed in becoming the bargaining
representative and thereafter made demands that were too high, the Respondent
would be forced to shut down its plant. There is nothing in the record to indicate
that Coval reported this conversation to any of the other employees , or that he
EL DORADO LIMESTONE COMPANY 753
took any action to carry out Lichtenberg's suggestion about bringing a group of
men over to Bell's office to discuss their grievances directly with him.6
Coval further testified, without contradiction, that on another occasion during
the same period, Bell inquired of him concerning the general "attitude" of the
men on his shift, stating, at the same time, that he did not see why the men wanted
to organize since they were well paid and were being treated fairly. Coval's
testimony, on direct and cross does not, however, support a finding that Bell's
inquiry as to the attitude of the men was designed to elicit information relating
to their union membership or activities.
Hix testified without contradiction that on one occasion, probably in late Feb-
ruary, Mine Superintendent Smith inquired of him concerning the grievances that
troubled the men. Although Hix understood that Smith was referring to the
Union's organizational efforts, it appears from his cross-examination that Smith
did not pursue the conversation to the point of inquiring directly concerning
union membership or activities.
On February 24, 1948, the Respondent and the Union entered into a consent
election agreement. The election, held on March 11, 1948, resulted in the defeat
of the Union, 22 employees voting for representation, and 27 against. Coval
and Hix attempted to vote at the election, but their ballots were challenged by
the Respondent upon the ground that they were ineligible as supervisory em-
ployees.
The election was held on a Thursday. The following Monday, March 15, at the
start of the shift, Hix was called in to see Superintendent Smith. Smith accused
Hix of listening to bad advice, by attempting as a supervisor to participate in
the election. Pointing out that he was familiar with the law and his rights there-
under, Smith added that he could discharge Hix, or demote him, or lay him off.
In response to Hix's inquiry as to what Smith proposed to do, Smith said he was
going to do nothing, but that he wanted Hix to understand that he was to engage
in no more union activity either on the job or on the premises. About 2 weeks
later-on April 1 to be exact-Hix was again summoned to Smith's office, where
he was advised that a new man had been hired to take over certain supervisory
functions, that the position of shift boss (which Hix had occupied for over 12
years) was being eliminated, and that Hix would have to go back to mining at
the miner's lower scale of pay. Coval, the other shift boss, was similarly demoted
several days later. At the hearing, the Respondent explained that the position of
shift boss was eliminated as part of a reorganization of its supervisory structure
effected at that time to promote more efficient mine operations. This explanation
was not contested by the General Counsel who makes no claim in this proceeding
that the demotion of Hix and Coval was discriminatory, or that it otherwise con-
stituted an unfair labor practice. The date of Hix's actual demotion is, how-
ever, significant as an aid-in resolving a credibility conflict concerning Smith's
conversation with Hix on March 15, as is more fully shown in the marginal note.'
6 Lichtenberg categorically denied that he ever had any such conversation with Coval,
but his denial is not credited. Coval was still employed by the Respondent at the time
of the hearing; he identified others (members of Lichtenberg' s family ) who were present
at the time and whom the Respondent could have but did not call to corroborate Lichten-
berg's denial ; and, by his over-all testimony and demeanor, he impressed me as a person
who would not invent a story of this kind. Lichtenberg's testimony in other respects
was patently contradictory to an affidavit he had given a field examiner prior to the
hearing.
7 The findings concerning Smith's conversations with Hix on March 15 are based upon
Hix's testimony . Smith , while admitting that he spoke to Hix that day, immediately
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
His, as he left Smith 's office on March 15, after being warned not to engage
in further union activities, was told to send in DeLagadell, who, having also
been summoned to see Smith, was then waiting outside the office for Smith to
conclude with His. Smith opened his interview with DeLagadell by remarking
that the election had been held, and that the Union had lost. He added to his
preliminary remarks the accusation that DeLagadell had been intimidating em-
ployees to join the Union. From that point, Smith went on to say that DeLaga-
dell had been complaining considerably about the boarding house and was evi-
dently dissatisfied with his board. For that reason, Smith continued, he wanted
DeLagadell to get out of the boarding house and find some other place to live.
DeLagadell pointed out that he had no automobile, that there was no other place
where he could board ; that if required to leave the boarding house he would have
to leave the job. Smith offered no resistance to DeLagadell's statement that he
would have to quit, even though, as he testified, "at that time we were short of
men in the mine, and we needed men, and Joe was an average employee." Smith
bad a quit slip made out, and DeLagadell was terminated upon the rolls of the
Respondent that day.8
before DeLagadell 's termination , denied that he made any of the statements attributed
to him by Hix. Asked to state what he did say to Hix that day, rather than what he did
not say, Smith replied that he called in Hix to tell him that the Respondent was doing
away with the shift boss job, a conversation which, according to Hix, did not occur until
about 2 weeks later. Smith testified that he was prompted to call in Hix on that
occasion because a new foreman was about to take over His testimony was further to
the effect that the new foreman went on the night shift immediately , and that Coval's
shift boss job was also eliminated at that time When the Respondent 's records were
called for, they disclosed that Hix was actually demoted on April 1, as he stated, and
Coval 4 days later, thus serving to discredit Smith's account of what was said on
March 15. Although Lichtenberg corroborated Smith's version, his testimony is not
regarded as reliable . He conceded , when pressed , that he could not recall whether the
conversation to which he referred occurred on March 15 or April 1. Nor could he recall
whether DeLagadell followed Hix into the office, a fact established clearly in the record.
In an affidavit given by him to a field examiner, he stated that he was busy with other
things at about that time, and could not recall the conversation which Smith immediately
thereafter had with DeLagadell . Hix, who had no personal interest in the case and is
still employed by the Respondent, impressed me as a witness who, if anything, would
lean over backwards not to exceed the truth as he recalled it. Certainly , he did not
appear to be one who might fabricate completely a conversation no part of which occurred,
as the testimony of Smith and Lichtenberg would have one suppose . No effort was made
by the Respondent to shake his story on cross -examination . Accordingly , Hix's account
has been credited , and the denials of Smith and Lichtenberg , rejected.
8 The findings concerning the conversation reported above are based upon a synthesis
of the testimony of DeLagadell and Smith. Their versions as to what was said are some-
what in conflict , but the variances , for the most part, concern matters of detail, emphasis,
and interpretative coloration rather than basic substance . Their versions separate princi-
pally at one point : According to DeLagadell , the suggestion that he quit originated with
Smith after he had told Smith he had no other place to board , and Smith terminated him
without any definite statement on his part that he was quitting. According to Smith,
DeLagadell said he "guessed he would have to quit," after DeLagadell had asked how
soon he would have to find a place to live and Smith had replied "as quickly as he could,
but there was no hell of a sweat about it ." Upon consideration of the full testimony of
both these witnesses , particularly the portions not specifically denied by one or the other,
and without relying alone upon the versions of either of them , I am persuaded that the
basic content of their conversation , in substance, was as set out above. Lichtenberg also
testified on this subject . His account of the conversation was substantially as reported
above, except that he specifically denied , whereas Smith did not, that nothing was said
in the conversation concerning the Union or the election . As noted, however, in an
affidavit previously furnished to a field examiner , Lichtenberg had sworn that, although
he was in the office at the time, he was busy with other things and could not recall what,
was said . Under the circumstances , no reliance is placed on his testimony.
,EL DORADO LIMESTONE COMPANY 755
C. Conclusions as to alleged interference , restraint and coercion
The complaint alleges-independently of the allegations relating to the dis-
charge of DeLaga Thll, which will be separately considered below,-that the Re-
spondent interfered with , restrained, and coerced its employees in their self-
organizational rights, specifically by (a) requesting an employee to urge other
employees to disavow the Union and deal directly , as individuals , with the Re-
spondent ; ( b) threatening to shut down its operations if the Union won the
election ; ( c) inquiring of employees as to their union membership and activities;
and (d ) warning employees not to engage in any further union activities. To
support these allegations , the General Counsel relies entirely upon the testi-
mony of Coval and Hix concerning the statements made to them by Lichten-
berg, Bell and Smith prior to the election , and upon Hix's testimony concerning
his conversation with Smith after the election , all as reported in the preceding
sub-section of this report. The allegation that the Respondent interrogated em-
ployees as to their union membership and activities , is entirely unsupported on
the record of this case upon any theory . Whether the proof in support of the
other allegations- (a), (b), and ( c), above-would have been sufficient to spell
out unfair labor practices , if Coval and Hix were non-supervisory employees,
need not be decided . As has been found above , Coval and Hix, at the time the
statements in question were made to them, were supervisors as defined in the
Act, and, therefore , under Section 2 (3) of the Act , not "employees" entitled
to statutory protection . For that reason-and because there is no evidence that
Coval ever communicated to other employees Lichtenberg 's remarks and his sug-
gestion concerning the substitution of individual for union action, or otherwise
acted thereon-it is found that the specific allegations of interference , restraint
and coercion , here under consideration , have not been substantiated . Accord-
ingly, it will be recommended that these allegations of the complaint be dis-
missed.
D. Analysis of evidence and conclusions as to the discriminatory termination of
DeLagadell 's employment
DeLagadell was first hired by the Respondent in January 1947. In April of
that year , he voluntarily quit for another job, but returned in July, and there-
after worked continuously for the Respondent until March 15, 1948, when his
employment was terminated under the circumstances above set forth. During
his first period of employment , DeLagadell lived at Shingle Springs with a half
brother , driving to and from work with Coval . When DeLagadell again entered
Respondent 's employ in July 1947, his half brother no longer lived at Shingle
Springs. DeLagadell was rehired with the understanding that board and room
would be provided for him at the company boarding house . At the time of his
termination, DeLagadell did not own a car.
Although he was not the initiator of the Union at the mine , DeLagadell was
one of the first employees to join, and , as noted, was elected temporary president
of the local organization at the first meeting held in late January 1948. After
his election to that office , he assumed the lead in organizing activities. At
the election , he served as sole observer for the Union . The Respondent 's knowl-
edge of his union activities is not in dispute. As both Smith and Lichtenberg
admitted at the hearing, DeLagadell 's union activity ( as well as that of Coval
and Hix ) was a matter of common knowledge about the mine.
There is no issue in this case with regard to DeLagadell 's' competency as a
workman . Nor is it disputed that prior to the date of his termination , nothing,
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had ever been said to DeLagadell by any management or supervisory official
of the Respondent concerning his conduct at the boarding house.
It is the Respondent's contention that DeLagadell was gsked to leave the
boarding house on March 15, 1948, because he was a "complainer" and "trou-
blemaker," and was "causing dissension among the men." To support its con-
tention, the Respondent relied principally upon the testimony of Boarding
House Co-manager Florence Hope and Mine Superintendent Smith.
The most flagrant example of DeLagadell's alleged misbehavior to which
Mrs. Hope was able to refer, occurred months before DeLagadell was asked to
leave the boarding house. Mrs. Hope testified, and it is found, that on one
occasion in September or October 1947, DeLagadell had rather abusively, and
with the use of some profanity in her presence, demanded of her husband that
he be served breakfast at 10 a. m s DeLagadell had directed similar complaints
to the Hopes on possibly two occasions thereafter both times, it is found, before
Christmas of 1947.10 According to the testimony of Mrs. Hope, these incidents
were never reported by the Hopes to any Company official. Smith did not assert,
and there is nothing in the record from which it can be inferred, that these inci-
dents were known to him when he reached his decision to remove DeLagadell
from the boarding house.
These, according to Mrs. Hope, were the only "complaints" that DeLagadell
had ever made directly to the boarding house managers. The other conduct of
DeLagadell with which Mrs. Hope in her testimony found fault related to his
general attitude. It was the boarding house practice at the conclusion of a meal
for the men to bring their dishes to the kitchen and pile them in the sink. DeLa-
gadell observed that practice, but on "several occasions," according to Mrs. Hope,
when DeLagadell brought out his dishes he "threw them on the sink." By that
She did not mean, her further testimony reveals, that DeLagadell literally threw
dishes-she admitted that he had never broken any-but that he placed them hap-
hazardly on the tray, instead of stacking them in neat array as other employees
did. Her testimony does not disclose, however, that she ever spoke to DeLagadell
about the manner in which he piled his dishes.
Then there were DeLagadell's manners. Other men "always said good morn-
ing," but apparently not DeLagadell. Mrs. Hope's testimony went on :
"At meal time he'd sit down at the table and didn't care whether he'd eat
or not. Sometimes he'd shove his plate back. The food didn't seem to be
satisfactory or something. He'd be grumbling all the time to some of the
boys which I didn't pay any attention to."
She didn't pay any attention to DeLagadell, Mrs. Hope testified, because she
knew "he was just agitating at the table." What did she mean by 'agitating?
"Well, the other fellows seemed to like it, and tell me how good the food was.
He never did." Besides, DeLagadell had a habit of "shoving dishes back, didn't
° DeLagadell at that time worked on the night shift, from 7 V. m. to 3 a. m. The
regular breakfast of ham and eggs was served at 6 a. m. This serving was available for
those on the night shift, if they were willing to get up at that hour It was usual for
those on the night shift , however , to retire at the conclusion of their shift and not to arise
until about 10 a. m . At that hour , doughnuts and coffee , but no ham and eggs, were
available . The rate charged was the same , whether or not the men availed themselves
of the ham and eggs serving.
10 DeLagadell admitted that he made complaints concerning breakfast , fixing the time
as in the autumn of 1947 . Although Mrs. Hope testified that DeLagadell last complained
about breakfast in January 1948, her testimony in this respect is inconsistent with an
affidavit she had given a field examiner in which she had stated that the incidents in
question occurred prior to Christmas 1947.
EL DORADO LIMESTONE COMPANY 757
eat half of it sometimes." . "And a couple of times," DeLagadell had said,
although apparently not directly to her, "the God dam coffee was cold, which it
wasn't." u
DeLagadell's general attitude, to which Mrs. Hope took exception at the hear-
ing, was not of recent origin as of the time of his termination. Mrs. Hope testi-
fled that DeLagadell's conduct and attitude in the respects just described con-
tinued about the same from September 1947 until he left in March 1948, growing
neither better nor worse throughout that period. If the Hopes believed then that
DeLagadell's presence at the boarding house was detrimental to its efficient oper-
ation, or was otherwise objectionable, they never disclosed it. Mrs. Hope testi-
fied that the Hopes had never discussed these incidents with Bell, Smith, or
anyone from the Company, although she added that "we would have if Joe hadn't
left when he did." n The Hopes were not consulted by Smith concerning DeLaga-
dell's removal from the boarding house. In fact, as Mrs. Hope testified, she did
not even know that DeLagadell was leaving until he turned in his key.
Smith testified that when he returned to the mine as its superintendent in the
middle of February, after a 10 months' absence, he was given full authority to
supervise all mining operations and to do whatever was necessary to improve the
efficiency of such operations. He was not, however, given authority over the
boarding house operations. Upon taking over his duties, Smith had a general
discussion with President Bell concerning mine conditions. In that discussion,
according to Smith, Bell expressly referred to DeLagadell as a "trouble maker.,'
How Bell came to mention DeLagadell's name, Smith could not recall, but he
did remember Bell saying that DeLagadell "was raising hell in the boarding
house." Smith did not, his testimony would have it, ask Bell what he meant
by "trouble maker;" nor did he inquire how DeLagadell was supposed to be
"raising hell." "I assumed," Smith testified, "that it was my responsibility to
attempt to straighten out any conditions that weren't right." According to
Smith, he took no immediate action after his talk with Bell "because of the
union activity going on at that time." "I thought," he added, "that I would have
been accused of trying to influence the men in their decision on whether they
wanted to be represented by a Union or not." Instead he made an "investiga-
tion," he testified, "to find out who is causing trouble, to see who the main
spring, the leader was." Asked what he meant by "trouble," Smith explained,
"anyone who is raising hell or getting men dissatisfied or discontented." As a
result of his "investigation," Smith stated, he arrived at the conclusion before
the election that DeLagadell was a "trouble maker" who would have to be
moved out of the boarding house, but he withheld action until after the election
for fear of being accused of an unfair labor practice.
Smith's "investigation," further examination disclosed, consisted of nothing
more than observing DeLagadell's conduct at the boarding house dining room
"According to Mrs. Hope, DeLagadell never complained to the Hopes directly about
the food, nor did any of the other men.
" Bell's testimony on this point was somewhat in conflict with that of Mrs. Hope.
According to him, in October 1947, 5 months before DeLagadell's termination, he had
inquired of the Hopes about conditions at the boarding house and had been told by Mr.
Hope that "they'd had some trouble with DeLagadell, that he was a nogood bastard."
Bell admitted that he said nothing to DeLagadell about the situation then or later, and
had done nothing about it. Although he testified that he "supposed" he reported the
matter to Smith when the latter was made mine superintendent in February 1948, he
could give no explanation as to what prompted him to take it up with Smith 4 months
later, other than to say that DeLagadell was "one of the trouble makers." He could not
or would not say who the other "trouble makers" were.
844340-50-vol . 83---49
758 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD
where Smith ate with the men. DeLagadell's "hell raising," it turned out, was
confined to occasional complaints made by DeLagadell to other employees about
the food, embellished at times by profane expletives and the pushing back of
undesired dishes. Asked to be specific, Smith recalled one occasion, shortly after
he went back to the mine, when he had overheard DeLagadell say, while pushing
back his plate, "This God damn slop isn't fit for a dog to eat." A couple of
weeks later, Smith recalled that DeLagadell, while again shoving back his plate,
had remarked that "the meat there wasn't fit for a dog to eat." During the
month that he ate at the boarding house with DeLagadell, there were, according
to Smith, "several" other occasions, which he was unable, however, specifically
to recall, when DeLagadell had made similar complaints accompanied by "vile,
filthy language similar to what I have said before,"-the reference being to the
quoted remarks set out above.
That was Smith's testimony on direct. Later in, the course of his examination,
Smith was asked in what respect the use of the remarks quoted above which
he had had characterized as "vile" and "filthy," had offended him. At that
time, Smith added to his testimony that DeLagadell had twice described the
food by a four-letter word, more pungent than tasteful, but one not novel to
Smith nor wholly uncommon where men alone are gathered, and one, moreover,
which it is found was scarcely likely to shock the sensibilities of men in a mining
camp. Smith admitted that Mrs. Hope was not present when this word was
used. DeLagadell, while denying that he used the precise word attributed to
him, admitted that he had used a more mild variant of the same expression.
Smith could not say that Mrs. Hope, the only woman at the boarding house,
was ever in a position actually to hear DeLagadell when the latter used im-
proper language. Apart from DeLagadell's expressions of displeasure with
the food, the only specific incident of "trouble making," alluded to by Smith, con-
cerned an incident when, according to him, DeLagadell, carrying his dishes into
the kitchen, "slammed them down on the sink," without, however, breaking any,
his cross-examination developed. DeLagadell denied that he had ever "slammed
down" any dishes, and, bearing in mind the physical properties of such utensils,
his denial is credited.
DeLagadell admitted, and it is found, that he did on occasion "gripe" to fellow
employees about the boarding house food, using at times language similar in
kind, although not identical, to that specifically recalled by Smith in his testi-
mony. It is probable, and it is also found, that on some such occasions, DeLaga-
dell, choosing not to eat his food, pushed aside his plate with apparent distaste.
Apart from that-and save for the breakfast complaints made months before and
upon which Smith's testimony does not indicate he relied-there is no other
reliable record evidence tending even remotely to support the Respondent's alleged
reason for removing DeLagadell from the boarding house.
We turn, then, to consider whether the Respondent was in fact motivated in
its action by reason of the conduct found above, or whether it merely seized upon
that as a pretext to cloak a discriminatory objective.
As Smith conceded at the hearing, it is customary for miners living in boarding
houses on mine property anywhere to complain about their food, regardless of
its quality. The Respondent's boarding house was no exception to the rule.
DeLagadell's conduct, while probably more pronounced than others in that regard,
was not unique. Credible evidence reflects, and it is found, that there was con-
siderable "griping" among the men about the boarding house food, and that such
complaints continued even after DeLagadell's departure, at least until the Hopes,
were superseded as boarding house managers in July 1948. Indeed Smith him-
EL DORADO LIMESTONE COMPANY 759
self, on at least one occasion, was not above commenting disparagingly, albeit jest-
ingly, concerning the quality of the boarding house food.
Nor was DeLagadell alone in his use of profane language. His language,
the record shows, merely conformed to what is customary among miners. And
while it appears that miners normally attempt to guard their language in
the presence of a lady, it is to be anticipated, as Smith conceded, that in a large
dining room, such as the Respondent's, they will at times inadvertently swear
without realizing her presence. DeLagadell's table manners, including his pro-
pensity for pushing unwanted dishes aside, might not have been such as to
win the approval of an Emily Post. But standards of social behavior vary with
the locale ; the El Dorado Mine boarding house is not a Nob Hill hostelry ; and
it is scarcely to be anticipated that boarders of the one will be guided by the-
same considerations of delicacy and rules of social refinement as are observed',
by guests of the other.
There is nothing in the record to show that DeLagadell's statements ands
conduct, as found above, at any time evoked any particular reaction from the:
men, let alone any actual trouble or dissension. If Smith really believed,
as he and the Respondent now say, that DeLagadell's conduct actually had that
effect, or that it was otherwise disruptive of plant morale, it is difficult to under-
stand why he maintained complete silence during the month he and DeLagadell
ate together daily. In that entire period, neither by deed nor by word, did he
so much as express mild displeasure with DeLagadell's conduct. His inaction
is not adequately explained upon the ground that any affirmative stand taken by
him might have been construed as an interference with the election or as an
unfair labor practice Certainly Smith must have known that a warning, repri-
mand, or at least, a mild reproach for conduct unconnected with union activity
could not possibly have been so interpreted.
The true explanation, I am convinced, is that it was the union activity, and not
the unconnected conduct, with which the Respondent was really concerned. As
has been shown, DeLagadell's conduct in the boarding house dining room, which
the Respondent now condemns, had remained unchanged, growing neither better
nor worse, for some 6 months. If at any time it was especially pronounced,
it was when DeLagadell had made his breakfast complaints months before his
termination. Yet, accepting Bell's testimony that he was informed of DeLaga-
dell's behavior at the boarding house, the Respondent not only tolerated it, but
allowed it to continue without criticism or comment. Significantly, it was not
until shortly after DeLagadell had assumed his role as the leading union or-
ganizer that Bell bestirred himself to single out DeLagadell for special mention
as a "trouble maker," and Smith, without finding it necessary to inquire what
Bell had in mind, if his testimony is to be believed, began to check on the "main
spring, the leader," who was "getting men dissatisfied or discontented." Smith,
as the evidence shows, was charged with responsibility over mine operations,
not boarding house operations. That the Respondent at that time was troubled
over the union's organizational efforts, and considered that it might prove a dis-
turbing factor in mine operations, is reflected in the statements made to Coval
and Hix by Lichtenberg, Bell and Smith, as reported in an earlier section of this
report. Since there is no evidence of any other trouble, arising from employee
morale or otherwise, it is reasonable to infer that Bell and Smith equated
"trouble making" with "union activity," and viewed union organization as simply
a reflected form of "dissatisfaction and discontent."
It is true that the Respondent stayed action against DeLagadell until after
the election , realizing that to have done otherwise would almost certainly have
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
involved it in charges of election interference and unfair labor practices. Still,
one cannot ignore the significance of the fact that the Respondent's determina-
tion to remove DeLagadell, at least from the boarding house, was initially reached
at a time when, as it appears , DeLagadell's organizing activities were at their
crest. In any event, the Respondent's exercise of restraint during the pre-election
period, however commendable, did not provide it with a grant of immunity to
engage in retaliatory measures after the election was held and lost by the Union.
That the Respondent's action with regard to DeLagadell was indeed induced
by retaliatory considerations, as well as by a desire to avoid a recurrence of
union organizational activities in the post-election period, is most convincingly
demonstrated by the events surrounding and immediately preceding DeLagadell's
termination. The interrelation in Smith's mind between the action he was
about to take and DeLagadell's union activities was revealed when Smith opened
his interview with DeLagadell by pointing out that the Union had lost the election
and by leveling at DeLagadell the accusation that he had been intimidating em-
ployees to join. Even more revealing is the fact that DeLagadell's interview
followed closely upon the heels of Smith's meeting with Hix, who had been sum-
moned to Smith's office expressly for the purpose of being warned not to engage
in any further union activities in the mine or on the premises. As found above,
Smith's warning to Hix was not an unfair labor practice, for Hix was a super-
visor at the time. But, on the record of this case, it cannot be said that Smith
was merely seeking to protect the Respondent's neutrality. Nothing in his state-
ments to Hix suggest that as his purpose. And in the pre-election period, the
Respondent's higher supervisory officials, although aware of the union affilia-
tion of the shift bosses, had not only failed to take any neutrality action, but,
on the contrary, had sought to have one of the shift bosses (Coval) use his
influence with the men to wean them away from union organization. Smith's
conversation with Hix can only be viewed, as it is here, as an additional reflection
of what Smith considered to be his order of business that day-to take measures
to curb a recurrence of union organizational activities in the post-election period.
Upon the record as a whole, I am persuaded, and find, that the Respondent
was actually motivated by discriminatory considerations, and not by the reason
assigned by it, in removing DeLagadell from the boarding house.
In view of the location of the mine, the unavailability of other convenient
boarding facilities, and the fact that DeLagadell was a single man without a
home and without a car, I am likewise persuaded, and find, that the Respondent,
in requiring DeLagadell to move from the boarding house, did so with the ex-
pectation that he would resign, an expectation that was fulfilled. The Respond-
ent must have known that under these circumstances, the requirement that
DeLagadell leave the boarding house would impose so unreasonable a burden on
him as to force Lim to quit.18 In any event, DeLagadell, who had accepted
employment with the understanding that he would be allowed the enjoyment of
the boarding house privileges, could properly look upon these accommodations,
conveniently located and provided at a rate below cost, as a perquisite of his
employment. Consequently-even if it be assumed that the Respondent's dis-
criminatory purpose was not to force DeLagadell's resignation, but merely to
segregate him from the other employees at the boarding house where he had con-
is It is true , as stressed in the Respondent ' s brief, that after his termination , DeLagadell
was able to find a room to live, but not a place to board , at Shingle Springs , next door to
Coval who could have driven him to work. However , as appears from DeLagadell's
uncontradicted testimony , this would not have solved DeLagadell's problem, for Shingle
Springs had no place where he could eat in time to go to work.
EL DORADO LIMESTONE COMPANY 761
ducted his union activities-DeLagadell was justified in refusing to acquiesce in
the Respondent's discriminatory action affecting a term and condition of his
employment. His quitting under these circumstances did not operate as a
voluntary termination of employment. It constituted rather, it is concluded, a
constructive discharge.
It is found that the Respondent, by requiring DeLagadell to leave its company
boarding house, and by thereby causing him to terminate his employment on
March 15, 1948, discriminated with respect to his hire and tenure of employment
and the terms and conditions of his employment, thereby discouraging member-
ship in the Union, and interfering with, restraining and coercing its employees
in the exercise of their rights under Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE
The activities of the Respondent set forth in Section III above, occurring In
connection with the operations of the Respondent described in Section I above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several states, and, to the extent that they have been found to be
unfair labor practices, tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent has engaged in certain unfair labor
practices, it will be recommended that it be ordered to cease and desist there-
from and take certain affirmative action which, it is found, will effectuate the
policies of the Act.
It has been found that the Respondent discriminated against Joe H. DeLagadell.
It will therefore be recommended that the Respondent offer him immediate and
full reinstatement to his former or substantially equivalent position, without
prejudice to his seniority or other rights and privileges, including the privilege
of boarding and rooming at the Respondent's boarding house and/or bunk house,
and that the Respondent make him whole for any loss of pay he may have suffered
by reason of the discrimination against him, by payment to him of a sum of
money equivalent to that which he would have earned as wages from the date
of his termination to the date of the offer of reinstatement, less his net earnings
during said period.
Since discrimination such as was engaged in by the Respondent strikes at the
roots of employee rights safeguarded by the Act, is one of the most effective
forms of intimidation that can be conceived," and discloses a propensity on the
Respondent's part to continue to defeat self-organization, I am convinced that
the unfair labor practice committed is related to other unfair labor practices
proscribed, and that danger of their commission in the future Is to be anticipated
from the Respondent's conduct in the past. It will therefore be recommended
that the Respondent cease and desist from in any manner interfering with,
restraining, or coercing its employees In their right to self-organization.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following :
14 See N. L. R. B. v. Entwistle Mfg. Co ., 120 P. (2d) 532 (C. C. A. 4) ; N. L. R. B. v.
Automotive Maintenance Machinery Co., 116 P. (2d) 350, 353.
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. United Cement , Lime and Gypsum Workers, International Union, affiliated
with the American Federation of Labor, is a labor organization within the mean-
ing of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment and terms
and conditions of employment of Joe H. DeLagadell , thereby discouraging mem-
bership in labor organizations , the Respondent has engaged in and is engaging
in unfair labor practices , within the meaning of Section 8 ( a) (3) of the Act.
3. By interfering with , restraining and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act , the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 2 (6)
and (7 ) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 (6) and ( 7) of the Act.
5. The Respondent has not engaged in unfair labor practices , as alleged in the
complaint , by (a) requesting an employee to urge other employees to disavow
the Union and deal directly as individuals with the Respondent , ( b) threatening
to shut down its operations if the Union won a Board election , ( c) inquiring of
employees as to their union membership and activities , and (d ) warning employ-
ees not to engage in any further union activities.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, it
is recommended that El Dorado Limestone Company, Shingle Springs, Cali-
fornia, its officers, agents , successors and assigns , shall:
1. Cease and desist from :
(a) Discouraging membership in United Cement, Lime and Gypsum Workers,
International Union, AFL , or any other labor organization of its employees,
by in any manner discriminating in regard to their hire and tenure of employ-
ment or any term or condition of employment.
(b) Interfering with, restraining , or coercing its employees in the exercise
of the right to self-organization , to join or assist United Cement , Lime and
Gypsum Workers. International Union, AFL , or any other labor organization,
to bargain collectively through representatives of their own choosing and to
engage in concerted activities for the purposes of collective bargaining or other
mutual aid or protection , as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which , it is found , will effectuate
the policies of the Act :
(a) Offer to Joe H. DeLagadell immediate and full reinstatement to his
former position , or to a substantially equivalent position , without prejudice
to his seniority and other rights and privileges , including the privilege of board-
ing and rooming at its boarding house and /or bunk house , and make whole Joe
H. DeLagadell for any loss of pay he may have suffered by reason of the Re-
spondent 's discrimination against him , in the manner provided herein in the
Section entitled "The remedy."
(b) Post immediately at its mine at Shingle Springs, California, copies of
the notice attached hereto, marked "Appendix A." Copies of such notice, to be
furnished by the Regional Director for the Twentieth Region, shall , after. being
duly signed by the Respondent or its representative , be posted by the Respondent
immediately upon receipt thereof and maintained by it for sixty (60) consecutive
days thereafter in conspicuous places, including all places where notices to
EL DORADO LIMESTONE COMPANY 763
employees are customarily posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered, defaced, or covered by any
other material;
(c) Notify the Regional Director for the Twentieth Region (San Francisco,
California), in writing within ten (10) days from the date of the receipt of this
Intermediate Report and Recommended Order what steps the Respondent has
taken to comply therewith.
It is further recommended that the complaint be dismissed, insofar as it
alleges that the Respondent interfered with, restrained, and coerced its employ-
ees in 'the exercise of their rights by (a) requesting an employee to urge other
employees to disavow the Union and deal directly as individuals with the Re-
spondent; (b) threatening to shut down its operations if the Union won a
Board election; (c) inquiring of employees as to their union membership and
activities; and (d) warning employees not to engage in any further union
activities.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report and Recommended Order, the Respondent
notifies the said Regional Director in writing that it will comply with the fore-
going recommendations, the National Labor Relations Board issue an order re-
quiring the Respondent to take the action aforesaid.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board-Series 5, as amended August 18, 1948, any party may,
within twenty (20) days from the date of service of the order transferring the
case to the Board, pursuant to Section 203.45 of said Rules and Regulations,
file with the Board, Rochambeau Building, Washington 25, D. C., an original
and six copies of a statement in writing setting forth such exceptions to the
Intermediate Report and Recommended Order or to any other part of the record
or proceeding (including rulings upon all motions or objections) as he relies
upon together with the original and six copies of a brief in support thereof ; and
any party may, within the same period, file an original and six copies of a brief
in support of the Intermediate Report and Recommended Order. Immediately
upon the filing of such statement of exceptions and/or briefs, the party filing
the same shall serve a copy thereof upon each of the other parties. Statements
of exceptions and briefs shall designate by precise citation the portions of the
record relied upon and. shall be legibly printed or mimeographed, and if mimeo-
graphed shall be double spaced. Proof of service on the other parties of all
papers filed with the Board shall be promptly made as required by Section 203.85.
As further provided in said Section 203.46, should any party desire permission
to argue orally before the Board, request therefor must be made in writing to
the Board within ten (10) days from the date of service of the order transfer-
ring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations, be adopted by the Board and become its findings, conclusions,
and order, and objections thereto shall be deemed waived for all purposes.
Dated at Washington, D. C., this 18th day of November 1948.
A$THUI Lam,
Trial Examiner.
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT interfere with, restrain , or coerce our employees in the exer-
cise of their right to self-organization, to form labor organizations, to join
or assist United Cement, Lime and Gypsum Workers International Union,
AFL, or any other labor organization , to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection.
WE WILL OFFER to Joe H. DeLagadell immediate and full reinstatement to
his former or substantially equivalent position without prejudice to any
seniority or other rights and privileges previously enjoyed, including the
privilege of boarding and rooming at our boarding house and/or bunk house,
and make him whole for any loss of pay suffered as a result of the
discrimination.
All our employees are free to become or remain members of the above-
named union or any other labor organization . We will not discriminate in'
'regard to hire or tenure of employment or any term or condition of employ-
ment against any employee because of membership in or activity on behalf of
any such labor organization.
EL DozADo LIMESTONE COMPANY,
Employer.
Dated-------------------------- By------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.