Fredonia Valley Quarries, Inc

National Labor Relations Board - Board Decisions

Oct 19, 1984

272 N.L.R.B. 843 (N.L.R.B. 1984)

FREDONIA VA LLEY1QUARRIES 843
Fredonia Valley Quarries, Inc and Teamsters Local
Union 236, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Ware
housemen and Helpers of America Case 9-CA-
17372
19 October 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
On 6 April 1984 Administrative Law Judge
Robert T Wallace issued the attached decision
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed a reply brief
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs' and
has decided to affirm the judge s rulings, findings,2
and conclusions and to adopt the recommended
Order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Fredonia
Valley Quarries Inc , Fredonia Kentucky, its offi
cers, agents, successors and assigns, shall take the
action set forth in the Order
1 The Respondent has requested oral argument The request is denied
as the record exceptions and briefs adequately present the issues and the
positions
2 The Respondent has excepted to some of the Judge s credibility find
ings The Board s established policy is not to overrule an administrative
law Judge s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are Incorrect Standard Dry
Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Or 1951)
We have carefully examined the record and find no basis for reversing
the findings
DECISION
STATEMENT OF THE CASE
ROBERT T WALLACE Administrative Law Judge On
a charge and an amended charge filed by Teamsters
Local 236 (the Union) on September 3 and October 13
1981 respectively a complaint was issued on October
16 1981 wherein (as amended on July 9 1982) it is al
leged that Fredonia Valley Quarries Inc (Respondent)
discharged eight employees in violation of Section
8(a)(1) and (3) of the National Labor Relations Act and
that it also violated Section 8(a)(1) in several other re
spects The case was tried before me at Paducah Ken
tucky on July 28-30 1982 c
On the entire record including my observations of the
demeanor of the witnesses and after due consideration of
briefs filed by the General Counsel and Respondent' I
make the following
FINDINGS OF FACT
I JURISDICTIONr
Respondent a Kentucky corporation is engaged in
mining limestone at a quarry in Fredonia Kentucky
During a representative 12 month period immediately
preceding issuance of the complaint it purchased and re
ceived at that facility goods and materials valued in
excess of $50 000 which items were shipped directly
from points located outside the Commonwealth of Ken
tucky It admits and I find that it is an employer en
gaged ni commerce within the meaning of Section 2(2)
(6) and (7) of Act and that Local 236 is a labor organi
zation within the meaning of Section 2(5) of the Act
II ALLEGED UNFAIR LABOR PRACTICES
A Background
The discharges are alleged to have occurred in August
1981 At that time Respondent had a complement of 45
employees who earned hourly wages Most of them
started at the entry level job of bagging crushed lime
but over a period of time they were cross trained to per
form various other jobs such as welding driving a truck
and vehicle maintenance and it was not at all unusual
for employees with particular skills to be assigned some
times for extended periods to other jobs e g drivers of
Euclid or pit trucks would work as baggers
Jimmie Wayne Belt was hired in November 1980 by
his neighbor Vernon Gilland who happened also to be
Respondent s superintendent of operations He worked
for about 10 months 2 until along with six other employ
ees 3 he was laid off indefinitely on August 21 1981 4
During that period his main job involved vehicle mainte
nance as a mechanic and welder
Belt began to discuss unionization with other employ
ees as early as February 1981 and on July 27 he met
with a representative of Local 236 (DuPree) signed a
union card (i e an application for membership in the
Union) and agreed to head an organizational dnve On
the next day DuPree wrote and mailed a letter to Gil
land advising the latter that the drive had begun and was
being led by Belt
B Incident on July 29
Gilland had the letter in hand when Belt arrived for
his shift on July 29 According to Belt Gilland s face
was filled with anger and frustration Assertedly he
accused Belt of reneging on a prehire promise not to
1 Respondent s petition to withdraw a previously filed motion to quash
the General Counsel s bnef is granted
2 Inclusive of a 3 week period in March when he was allowed to vol
unteer for a layoff
3 These were Allen McNeely Edward Tabor James Rushing James
R Edwards Dennis Hrapeck and Charles Dale Conger all alleged chs
cnminatees
4 Another alleged discriminatee (Steve Gray) was placed on indefinite
layoff a week later on August 28 1981
272 NLRB No 129
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have anything to do with a union and he went on to say
that if the Union got in here they would discontin
ue jobs and would hire truck drivers to come in there
and haul rock and dust out that he would have the
stripping contracted in some manner [so that] there
wouldn t be as much work there that he would put
some kind of machine in or would truck more dust out
to eliminate or slow down the bagging that sooner
or later he would discharge anybody having anything to
do with the Union Then taking another tack Gilland
spoke of the work force as being family and he con
eluded by asking how Belt could call himself a preacher
and do what he was doing Apparently sensing that the
latter comment had cut deep GiHand promptly apolo
gized and the two quietly set there a bit before get
ting up to do their respective jobs
GiHand s version of the encounter 5 does not differ ma
tenally from Belt s except that he specifically denies
having threatened to eliminate truckdriving and bagging
operations to subcontract out stripping and to discharge
everyone who had anything to do with the Union As to
those matters however I credit Belt He appeared to be
free of guile and in light of &Hand s explicit animus
toward unionization I find more probable than not that
he did make the threats attributed to him by Belt 6 Fur
ther I find those threats and indeed the entire interroga
tion patently coercive and in derogation of nghts ac
corded Belt under Section 7 of the Act
C August 3-7
During the next workweek several events of signifi
cance occurred One involved an incident in the plant
lunchroom Belt and several other employees (including
McNeely and Tabor) were seated near the timeclock
waiting to punch in for the night shift and they were
discussing preparations Belt had made for a union meet
5 Gilland vividly recalls the incident as follows
I was in the shop at the time and Jimmie Wayne Belt came in I told
Jimmie I said I need to talk to you a minute So we started to the
office and the further I walked the madder I got So I told him I
said Guess what I got today I said Let me tell you what I got
today I got fuckin letter from the Teamster s Union with your
name on it I said You low life son of a bitch you I ought to
whip your ass right here By that time I was pretty close to the
office and we went on in I shut the door and we sit down I said
What s your problem I said You ve not come to me with any
problems I said What s your gripe? He said Well I didn t start
It He said Those people over at the shop started it He said
All I did was Just got in touch with the Union man So I said
Well you sure shit did You went and got in touch with Jesse
DuPree I said He s been here before I said the damn Team
sters Union am t worth a shit I said That bastard tried to sell
them out back the first election So I told him I said Well
Jimmie I said We don t want a union here We ye had a terrible
time with union problems and we Just don t want one and [since] he
lives right behind me I said Well I was going to bring that
dozer down there and fix that pile of dirt between our houses but I
am t now and he said Well can I go back to work? And I said
Yea you can And he said Well you know I would like to part
friends And I said It s alright with me So we shook hands and
he went back to work That s it
8 There is no evidence that Gilland during the course of his conversa
non with Belt also threatened to close the facility or to transfer an em
ployee to more onerous and less desirable work if the employees selected
the Union as their bargaining representative and accordingly Respond
ent s motion to dismiss those portions of the complaint alleging that he
did so is granted
ing on Sunday August 9 While they talked Night Shift
Foreman Ruben Gray entered the room paused to check
a list of work orders near the timeclock and exited into
the shop area Moments later Respondent s assistant su
penntendent in charge of day shift operations (Faughn)
came in from the shop went directly to where the em
ployees were seated and said to them We don t want
any union talk on company property whereupon he
turned around and went back into the shop area" I find
that the statement by Faughn an admitted supervisor
was unduly broad in that it purported to preclude em
ployees from engaging in organizational activity at any
time during a workday within Respondent s facility in
eluding periods of nonworktime spent in nonwork areas
Compare Our Way Inc 268 NLRB 394 (1983) Atlas
Metal Parts Co 252 NLRB 205 (1980) Further there is
no indication on this record that Respondent ever acted
to repudiate or ameliorate that prohibition 1
Another event occurred on the plant parking lot when
an alleged discnmmatee (Conger) approached Faughn
with his brother in law (Roger Larue) in tow and the
latter asked for a job According to Conger Faughn re
plied I can t put you to work until his union deal
is over [after that] there will be a lot of job open
ings Conger then asked what he meant and assertedly
Faughn s answer was Well we will be getting rid of a
lot of you Faughn recalls having a conversation with
Larue but he is not sure that Conger was present He
concedes having said that he could not hire Larue be
cause we was having a union problem and our stock
pile was in good shape [and that] in the future we
would probably put a bunch of people to work How
ever he does not specifically, deny making the statements
attributed to him by Conger I credit the latter im
pressed by his apparent candor
A third event was a general meeting in the lunchroom
called by Respondent s general manager (Howton) at
which he pointed out to the assembled employees a
number of reasons he felt they should vigorously oppose
efforts to unionize the Company and he told them that
he and Gilland would be happy to answer any questions
they might have but only on a one to one basis
D August 10-14
The workweek that followed saw &Hand engaged in
conversations concerning the Union with a number of
employees One of these (Baker) had attended the union
meeting held on August 9 8 and after telling Gilland that
he was against the Union he gave him the names of 10
other attendees including alleged discriminatees Belt
Edwards Hrapeck and Steve Gray
7 Faughn concedes having made the statement but he denies that Gray
told him that the employees were discussing the Union In that regard
Faughn states that he overheard the word union as he entered the
lunchroom
8 The meeting was held as scheduled at 2 p m at a local restaurant in
lieu of the Fredonia Lions Club At 9 p m on the prior evening the club
manager canceled Belt s reservation stating that he had a double booking
problem Both Howton and Gilland were at the Lions Club on the after
noon of August 9 and Belt subsequently learned that the meeting room
had been held for use by Faughn s father in law
FREDONIA VALLEY QUARRIES 845
Another conversation involved Conger He states that
GiHand approached him in the shop area during a break
and asked Ms there anything I can say or do to change
your mind about this union [matter] He replied I
don t know what have you go to say? GIHand proceed
ed to give a number of reasons he felt it was in every
one s best interest that the Company remain nonunion
Conger responded by stating he was still concerned
about the possibility of arbitrary firings At that point
plant operations started up again and Conger walked
away stating that he had to get back to work Gilland
admits that he initiated the conversation However he
claims that his opening words were not those attributed
to him by Conger but instead involved a simple inquiry
as to whether Conger wanted to talk about the Union
Also he asserts that Conger responded affirmatively to
his arguments by volunteering that he and his family
(Robert Larue and son in law Hrapeck) were not going
to vote for the Union I accept Conger s version finding
him to be the more credible witness
A third conversation occurred in the quarry area Ac
cording to Hrapeck s undisputed and credited account
Gilland came up and asked him if he had heard about
the union stuff going around Hrapeck answered yes
and a dialogue ensued as follows
Gilland Well where do you stand on it?
Hrapeck Ill tell you how it is I am going to go
to the meetings and I am going to sit and listen to
both sides and then decide for myself how I am
going to vote I will then vote and do it the way I
think is best
Gilland You need to let me know which side
you re on
Hrapeck I can t do that
Still another conversation took place in the plant
office Alleged discnminatee Steve Gray and another
employee (Robert Anderson) were there on Gilland s in
vitation and according to Gilland s account he asked
them if it was okay to talk about the Union Both
nodded and he proceeded to tell them about our bene
fits and after a while Anderson volunteered that he had
signed a union card at the meeting on August 9 but un
derstood that his signature merely meant he had attended
the meeting and then Gray said he did not and would
not sign a union card and that he wasn t for it Gray s
version differs in that he claims Gilland initiated the con
versation by asking What do you all think about the
Union? Also Gray states he told Gilland that he was
still undecided as to whether he would sign a card I
credit Gray and I find the incident to involve coercive
interrogation by Gilland as alleged in the complaint 9
Compare Naum Bros 240 NLRB 311 (1979) JAMCO
International 227 NLRB 1807 (1977)
9 Although the Gray/Anderson conversation is similar to the ones Gil
land had with Conger and Hrapeck I make no finding as to whether the
latter were coercive because the complaint contains no allegation in that
regard However I find those conversations relevant as indicating Gil
land s awareness that the two employees were either for or at least on the
fence in the matter of representation by the Union
E August 17-21
By or during the third workweek in August Gilland
and Plant Manager Howton had occasion to share with
each other perceptions regarding which employees were
for or against the Union As to the alleged discnmina
tees Howton stated that he considered Belt as being
prounion and he claims that Gilland (1) made no com
ment about Edwards Rushing or Gray (2) said he did
not know about McNeely and (3) quoted Conger and
Hrapeck as saying they were against the Union and
Tabor as saying he was leaning against the Union
On Friday August 21 and without prior warning all
the alleged discnminatees except Gray were told by
Gilland that effective immediately they were laid off in
definitely because business was slow 1 ° He told them
that there was little likelihood that they would be re
called in the foreseeable future and urged them to seek
jobs elsewhere
Edwards had signed a union card at the organizational
meeting on August 9 in the presence of several other em
ployees including Baker and by August 21 Tabor Hra
peck and (James) Rushing also had occasion to deliver
signed union cards to agents of the Union 11
Employee Spud Rushing was not one of those laid
off on August 21 However on that day Faughn came
up to him in the bagging house and asked if he knew
the last four that had signed the card the cards that
were going around The incident is not denied by
Faughn and I have credited Rushing s account of it
F August 25-28
On Monday August 24 Conger Hrapeck and Winn
were recalled by Gilland to help fill a large and unex
pected order for crushed stone received on the prior Sat
urday morning They worked several days and on
Friday August 28 they again were laid off indefinitely
along with three other employees Frahck Oliver and
alleged discriminatee Steven Gray The latter had signed
a union card shortly after his previously described con
versation with Gilland and he had attended his second
union meeting on Sunday August 23 12 On advising
Another employee (Winn) also was laid off at this time However it
was stipulated that he voluntarily quit during the following week His
name was deleted from the list of discnnunatees in the amended corn
plaint and he did not testify in this proceeding
" Shortly after Rushing signed Night Shift Foreman Ruben Gray an
admitted supervisor (Tr 439) approached him on the job and asked if he
was aware of the union drive Rushing answered noncommittally that he
had heard Gray then told him to think the matter over carefully adding
that he Gray felt the Company would not survive if the Union came in
Here too I make no finding as to whether this conversation was coer
cive It not having been alleged as such in the complaint The incident is
significant however that in that Gray could Infer from the noncommittal
answer that Rushing had not made a decision as to which side he was
on
12 Howton recalls having been told by Gilland that employees had
come to him and told him of the [union] meetings (emphasis added) and
he also recalled that Gilland gave him the names of several attendees at
one or both meetings including Belt Edwards and Tabor With this
background and having in mind Gilland s testimony that employee Baker
had given him the names of 10 attendees (including Gray) at the first
union meeting on August 9 I find it probable that alland knew that
Gray attended the meeting on August 23
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gray of the layoff Gilland told him that things were
slow and suggested that he look for a job someplace
else
The table below shows the seniority based on date of
hire of the 11 employees laid off on August 21-28 1981
relative to other employees then on Respondent s 45 man
work force and it also shows the job classification and
hourly rate paid to each employee listed as well as
(under the caption No ) the total number of employees
stated to be in the same classification 13 The names of
the laid off employees are capitalized and an astenk de
notes those who are alleged discriminatees 14
Table
Ranking
Name
Hire
Date Job No
Hour
ly
Rate
20 *GRAY 05 13 77 Electrician (01) $6 15
21 Trader 04 03 78 Truck Driver (13) 590
22 Peace 04 04 78 Pit Truck Op (05) 555
23 WINN 09 06 78 (05) 5 55
24 *HRAPECK 09 06 78 Pit Loader (02) 5 85
Op
25 Qualls 10 27 78 Truck Driver (13) 590
26 Baker 10 23 79 (13) 590
27 *McNEELY 01 10 80 Primary (02) 600
Plant Op
28 LaRue 01 16 80 Drill Op (02) 5 90
29 Sisco 03 06 80 Truck Driver (13) 590
30 Rushing (D) 03 06 80 Bagger (04) 5 50
31 Fitzgerald 04 10 80 Truck Driver (13) 590
(R)
32 Peek 04 30 80 Build Up (02) 5 75
Welder
33 *RUSHING 05 06 80 (02) 5 75
(J )
34 Board 07 17 80 Truck Driver (13) 590
35 Fitzgerald 08 14 80 Bagger (04) 5 50
(B)
36 *CONGER 08 14 80 Pit Truck (05) 5 55
Op
37 *EDWARS 08 14 80 (05) 5 55
38 Woodnng 09 24 80 Truck Driver (13) 590
39 *TABOR 09 24 80 Drill Op (02) 5 90
40 Beverly 09 24 80 Bagger (04) 5 50
41 *BELT 10 06 80 Maintenance (06) 6 65
42 Bealmear 11 24 80 Truck Driver (13) 590
43 Wheeler 02 17 81 (13) 590
44 OLIVER 03 16 81 Special (01) 665
Welder
45 FRALICK 07 06 81 Ngt Strkpr (01) Unk
" Classifications not shown in the table were held by more senior em
ployees Those classifications are Day Storekeeper (01) at $6 40 an hour
Oiler (01) at $6 00 Stockpile Loader Operator (01) at $5 85 and Dust
Plant Operator (03)—two at $5 90 and the third at $6 00
14 Respondent s records show that 44th ranking Oliver worked 21 1/2
hours over his normal 40 during the week he was laid off Belt testified
credibly that like himself Oliver did both welding and vehicle mainte
nance and that Oliver spent about 90 percent of his time on maintenance
Respondent s records also show that Oliver was back on Respondent s
payroll at least by September 20 1981
G Respondent s Evidence
Howton testified persuasively that economic circum
stances dictated need for layoffs in August 1981
In July of the prior year Respondent began to sell
large quantities of agricultural grade limestone FOB
barges at a Mississippi River port located 10 miles from
its quarry Transportation to the port was accomplished
in Respondent s 25 ton capacity dump trucks and three
of its senior employees assisted in off loading limestone
onto the barges
By December 1980 it had sold and delivered at the
port 12 bargeloads (approximately 150 000 tons per
barge) of limestone The business was new in that Re
spondent never before had sold commodities for move
ment by barge 15 Anticipating continuance and expan
sion of such sales it began (in July 1980) gradually to
hire additional employees 16 and in September it started
extensive stripping operations to uncover new deposits
of limestone suitable for agricultural use 17
Shipments to the port continued through the spring of
1981 with 5 barges being loaded in January 5 in Febru
ary 20 in March and 1 in April The sharp downturn in
April did not bother Respondent because it expected
that as in 1980 barge movements of limestone for use
downnver during the fall planting season would com
mence in July But no orders were forthcoming and by
mid August it became apparent that there would be none
because Respondent and the broker responsible for the
pnor purchases were unable to agree upon pnce At that
time Respondent s stockpiles were nearly full so
Howton ordered immediate cessation of stripping oper
ations" and the permanent layoffs described above
The employees selected for layoff assertedly were in
job classifications for which there was no longer any
foreseeable need (or were at least senior in classifications
said to have excess employees) due to loss of the barge
shipments Howton and Gtlland jointly decided which
employees occupied jobs deemed surplus and in making
those determinations they gave no consideration to the
work then being performed by the selected employees 19
15 The primary limestone product produced and sold by Respondent
is rock dust which is used among other things for tamping down coal
dust in underground mines It also sold agricultural limestone to farmers
and crushed rock to contractors located generally within 200 miles of
Fredonia
15 Respondent s records show that as of June 1 1980 it had 39 hourly
employees That number had increased to 45 on the morning of August
21 1981
" Due in part to the anticipated barge shipments Respondent in De
cember 1980 also purchased and began to Install at a total cost of
$300 000 a stone crushing mill capable of processing 175 tons of lime
stone per hour nearly double the capacity of the two small mills then in
use The larger mill became operational in May 1981
18 There were no subsequent shipments to the port at least through
December 1981 and as of the date of hearing herein Respondent had no
occasion to order resumption of stripping operations
19 As found above it was not unusual for employees with particular
skills to be assigned sometimes for extended periods to other jobs For
example Tabor did bagging exclusively for 2 1/2 months prior to the
layoff Rushing did many things on the night shift such as welding
general maintenance truck loading etc Edwards spent 50 percent of his
time operating a pit truck and 50 percent working in the dust house
Gray had been doing electncal work for about a year and in addition he
helped loading the shots and blasting and in some cases he did the
Continued
FREDONIA VALLEY QUARRIES 847
Instead they relied on personal knowledged both as to
what was the primary job of every member of the
work force and when approximately each had received
that job Personal knowledge was required because job
classifications are not shown anywhere in Respondent s
records and hourly rates of pay though shown needed
interpretation because in some instances employees
deemed to have the same job classification had different
rates while in other instances employees with different
assigned classifications had identical rates 20 Employees
classified as bagger truckdnver or dust plant op
erator were not laid off because according to Howton
they were needed for work in connection with a product
( rock dust ) used in underground coal mines and sales
of that item had remained consistent He claims that in
laying off employees with least seniority within certain
job classifications he simply followed past policy and he
emphatically denies that any employee was laid off due
to involvement with the Union
Respondent continued to operate a night shift after the
layoffs and as in the past most employees continued to
work more than 40 hours a week at overtime rates equal
to 1 1/2 times their normal hourly rates In fact the
amount of overtime worked by the remaining non
office/supervisory employees increased substantially as
illustrated by a comparison between the total hours
worked (2205) by 43 such employees (an average of 12 5
overtime hours each) during the week ending August 21
1981 21 and the total hours worked (2042) by a 34 man
force (an average of 20 overtime hours each) during the
week ending September 26 1981 In the latter week Re
spondent s records also show (1) that rehired employee
Oliver worked 41 overtime hours and (2) that all em
ployees were receiving a 15 cent increase in their regular
hourly rates That increase had been put into effect on
Monday August 31 assertedly to fulfill a promise made
by Howton during the Christmas season of 1980
Analysis
That Respondent harbored deep seated animus toward
the Union and anyone identified with it is obvious from
among other things the threat of its superintendent (Gil
land) to discharge anybody having anything to do with
the Union uttered during his encounter with employee
Belt on July 29 1981 just after he learned of the organi
zattonal drive and Belt s association with it There fol
lowed an intense effort by Gilland and other supervisors
work of baggers who had been laid off Conger drove a tractor trailer
unit as well as a pit truck
20 For example (1) Of six employees said to comprise the mantle
nance force the four listed as having greater seniority are shown to have
drawn (as of pay period ending August 21) the same hourly rate of pay
($6 40) whereas the two with lesser seniority (including Belt the least
senior) each received a higher rate ($6 65) and the latter rate also applied
to the job of special welder a classification to which only one employ
ee (Oliver) was assigned and that employee was hired after Belt and (2)
of the three employees described as dust plant operators the two with
greater seniority each received $5 90 an hour the same rate drawn by
employees classified as truckdrivers or drill operators and the
junior dust plant operator is shown as earning $6 an hour—the same rate
as that of a primary plant operator or oiler
" Employees Anderson R Board and Steve Gray are not shown in
Respondent s records as having worked during the week ending August
21 No reason is given
to learn through reports of informers and interrogations
of individual employees where each stood in relation to
the Union and within 30 days the eight alleged discn
minatees were placed without prior warning on perma
nent layoff Immediately thereafter a substantial across
the board increase in hourly rates was made effective for
the remaining work force Six of the eight had signed
union cards and/or attended one or more union meet
ings and were known by Respondent to have done so
and another (Conger) is clearly shown to have been sus
pected by Respondent as siding with the Union As to
those seven I find the General Counsel had made a
prima facie showing sufficient to support an inference
that their involvement or suspected involvement 22 in
protected activity was a motivating factor in Respond
ent s decision to lay them off 23 However no such
showing was made in regard to the eighth named discn
minatee (McNeely who did not testify) and the corn
plaint will be dismissed as it relates to him
Accordingly Respondent has the burden of proving
that the seven would have been laid off absent such in
volvement Wright Line 251 NLRB 1083 (1980) enfd
662 F 2d 899 (1st Cir 1981) cert denied 455 US 889
(1982)
As noted I have found persuasive Respondent s claim
of need for layoffs in August 1981 At that time it had
excess products in its stockpiles due to loss of anticipated
sales of agricultural limestone for movement by barge to
southern markets
But the fact that some layoffs may have been economi
cally justified is no defense if as here laid off employees
are shown to have been selected for discriminatory rea
sons See NLRB v Bedford Nugent Corp 379 F 2d 528
529 (7th Cir 1967) and NLRB v Deena Products 195
F 2d 330 355 (7th Cir 1952) cert denied 344 U S 827
In that regard I view the number of employees laid
off (11) as grossly disproportionate to the additional em
ployees hired (6) 24 to accommodate barge traffic which
admittedly comprised a relatively minor aspect of overall
operations at the quarry Indeed even six may have been
an excessive number since an inference is warranted and
taken that those other operations (as to which produc
tion and sales data was available to but not produced by
Respondent) had increased and in consequence required
some additional manpower See Suburban Ford 248
NLRB 364 369 (1980) Golden State Bottling Co v
NLRB 414 U S 168 (1973) That conclusion is all the
more likely since Respondent continued to maintain both
day and night shifts with employees on each drawing
substantially increased overtime pay
22 See Galax Apparel Corp 247 NLRB 159 (1980) and Southland Paint
Co 156 NLRB 22 32 (1965) affd in pertinent part 394 F 2d 717 (5th
Cm 1968)
23 I find no merit in Respondent s contention that any Inference of un
lawful motivation is dispelled by its failure to Include in the layoff other
employees whom ( arguably ) it knew to have attended union meetings
As stated in Nachman Corp v NLRB 337 F 2d 421 424 (7th Or 1964)
it is established that a discnininatory motive otherwise established is
not disproved by an employer s piloof that It did not weed out all union
adherents Similarly the Inference is not negated even if others included
in the layoff had no involvement with the Union Northwestern Publishing
Co 144 NLRB 1069 fn 14 (1963) enfd 343 F 2d 521 (7th Or 1965)
24 See fn 16
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moreover I regard the criterion assertedly used in se
lecting employees for layoff (i e least seniority in pn
mary jobs) as nothing more than a device which Re
spondent used to rid itself of employees perceived as
likely to side with the Union some of whom (e g
Gray Hrapeck and Rushing) had significant seniority in
relation to other employees based on dates of hire and
were on the job before Respondent began hiring to ac
commodate barge traffic In this matter I decline to
credit the claim that it merely acted in accord with past
policy No records were produced to support that claim
and it appears at odds with other evidence showing that
early in 1981 it had allowed a number of employees to
volunteer for layoff and that the actual work performed
by individual employees often had little or no connection
with their primary jobs
I conclude that Respondent has not met its Wright
Line burden as to any of the seven alleged discnmina
tees
CONCLUSIONS OF LAW
1 By discriminatorily laying off Jimmie Wayne Belt
Edward Tabor James Rushing James R Edwards
Dennis Hrapeck Charles Dale Conger and Steve Gray
because they supported or were perceived to have sup
ported the Union Respondent engaged in an unfair labor
practice within the meaning of Section 8(a)(1) and (3) of
the Act
2 By coercively interrogating Jimmy Wayne Belt
Steve Gray and Robert Anderson concerning their own
or other employees support of the Union Respondent
engaged in an unfair labor practice within the meaning
of Section 8(a)(1) of the Act
3 By threatening to eliminate its truckdriving and bag
ging operations to subcontract out its stripping oper
ations and to discharge anyone having anything to do
with the Union if employees selected the Union as their
bargaining agent Respondent engaged in an unfair labor
practice within the meaning of Section 8(a)(1) of the
Act
4 By promulgating and maintaining in effect an
unduly broad prohibition against discussion of the Union
on its premises Respondent engaged in an unfair labor
practice within the meaning of Section 8(a)(1) of the
Act
5 The aforesaid practices affect commerce within the
meaning of Section 2(6) and (7) of the Act
6 Except as found herein Respondent is not shown to
have violated the Act in regard to any other matter al
leged in the complaint and as it relates to those other
matters the complaint is hereby dismissed
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices I find it necessary to order it to cease
and desist therefrom and from further infringing upon
employee rights in any like or related manner and to
take certain affirmative action designed to effectuate the
policies of the Act Such affirmative action will include
an offer to reinstate the seven above named employees to
their former positions (or to substantially equivalent jobs
in the event those positions no longer exist) and to make
them whole for any loss of earnings or other benefits
they may have suffered as a result of the discriminations
practiced against them in accordance with the principles
set forth in F W Woolworth Co 90 NLRB 289 (1950)
and Florida Steel Corp 231 NLRB 651 (1977) see gener
ally Isis Plumbing Co 138 NLRB 716 (1962)
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed25
ORDER
The Respondent Fredonia Valley Quarries Inc Fre
donia Kentucky its officers agents successors and as
signs shall
1 Cease and desist from
(a) Placing on permanent layoff or otherwise discrimi
nating against employees for supporting Teamsters Local
236 or any other union
(b) Coercively interrogating employees concerning
their own or other employees union sentiments and ac
tivities
(c) Threatening any employee with economic sanc
tons or other retaliatory actions for supporting Team
sters Local 236 or any other union
(d) Promulgating maintaining or enforcing an overly
broad rule against union organizational activity on its
premises
(e) In any like or related manner interfering with re
straining or coercing employees in the exercise of the
rights guaranteed them by the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Offer to Jimmy Wayne Belt Edward Tabor James
Rushing James R Edwards Dennis Hrapeck Charles
Dale Conger and Steve Gray if it has not already done
so immediate and full reinstatement to their former job
or if that job no longer exists to substantially equivalent
positions without prejudice to their seniority or any
other rights or privileges previously enjoyed and make
them whole for any loss of pay they may have suffered
by reason of Respondent s action in placing them on per
manent layoff in the manner set forth in the section of
this decision entitled The Remedy
(b) Rescind all adverse personnel actions issued to the
above named employees as a result of the discrimination
here found to have been practices against them and ex
punge from Respondent s records any reference thereto
and notify said employees in writing that such actions
have been accomplished and that the expunged material
will not be used as a basis for future personnel actions
against them See Sterling Sugars 261 NLRB 472 (1982)
(c) Preserve and on request make available to the
Board or its agents for examination and copying all pay
roll records social security payment records timecards
personnel records and reports and all other records nec
25 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses
FREDONIA VALLEY QUARRIES 849
essary to analyze the amount of backpay due under the
terms of this Order
(d) Post at its facility in Fredonia Kentucky copies of
the attached notice marked Appendix 26 Copies of the
notice on forms provided by the Regional Director for
Region 9 after being signed by the Respondent s author
ized representative shall be posted by Respondent imme
diately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where no
tices to employees are customarily posted Reasonable
steps shall be taken by Respondent to ensure that the no
tices are not altered defaced or covered by any other
material
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply
" If this Order is enforced by a Judgment of a United States Court of
Appeals the words in the notice reading Posted by Order of the Na
tonal Labor Relations Board shall read Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation
al Labor Relations Board
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or
dered us to post and abide by this notice
Section 7 of the Act gives employees these rights
To organize
To form join or assist any union
To bargain collectively through representa
lives of their own choice
To act together for other mutual aid or protec
tion
To choose not to engage in any of these pro
tected concerted activities
WE WILL NOT discourage membership in a labor orga
nization by placing on permanent layoff or otherwise
discrminating against any employee because he or she
decides to join assist or otherwise speak out for repre
sentation by a union
WE WILL NOT coercively interrogate any employee
concerning his or her union sentiments and activities or
those of any other employee
WE WILL NOT threaten any employee with economic
sanctions and other retaliatory actions for seeking to be
represented by Teamsters Local 236 or any other union
WE WILL NOT promulgate maintain or enforce an
overly broad rule prohibiting solicitation of support for
union representation or other activities on behalf of a
union on company premises
WE WILL NOT in any like or related manner interfere
with restrain or coerce our employees in the exercise of
the rights set forth above
WE WILL offer Jimmie Wayne Belt Edward Tabor
James Rushing James R Edwards Dennis Hrapeck
Charles Dale Conger and Steve Gray immediate and full
reinstatement to their former job or if that job no longer
exists to substantially equivalent positions without prej
udice to their seniority or any other rights or privileges
previously enjoyed and WE WILL make them whole for
any loss of pay that they may have suffered by reason of
our discnmination against them with interest
FREDONIA VALLEY QUARRIES INC