298 N.L.R.B. 615 (N.L.R.B. 1990)

Great Lakes Chemical Corp. And C & N General Services, Inc., A Joint Employer

National Labor Relations Board - Board DecisionsMay 22, 1990

298 N.L.R.B. 615 (N.L.R.B. 1990)

GREAT LAKES CHEMICAL CORP. 615 Great Lakes Chemical Corporation and C & N Gen- eral Services , Inc., a Joint Employer and Oil, Chemical and Atomic Workers International Union, Local 3-724. Cases 10-CA-21446 and 10-CA-21640 May 22, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND OVIATT On December 14, 1987, Administrative Law Judge Hubert E. Lott issued the attached decision. The Respondents, the General Counsel, and the Charging Party filed exceptions and supporting briefs; the General Counsel and the Charging Party filed answering briefs to the Respondents' excep- tions; and the Respondents filed an answering brief to the General Counsel's and the Charging Party's exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings,' findings,2 and conclusions and to adopt the recommended Order.3 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondents, Great Lakes Chemical Corporation and C & N General i The General Counsel 's motion to consolidate this proceeding with Case 10-CA-21760 was denied in Great Lakes Chemical Corp., 291 NLRB 33 in. 1 ( 1988). 2 We find no merit to the Respondent's contention that allegations of 8(a)(3) discrimination in hiring are time-barred by Sec. 10(b) of the Act We agree with the judge that, because the discriminatees were not ex- pressly denied employment and each of their employment applications continued to be on file throughout the period of implementation of the unlawful hiring policy, the Charging Party had no clear and unequivocal notice of the 8 (a)(3) unfair labor practices within 6 months of the filing of the charge. Accordingly, we do not rely on the judge 's characterization of the discrimination findings as a continuing violation The Charging Party excepts to the judge's reference to Great Lakes employees on the payroll of C & N as "temporary" employees We do not read the judge's reference as one denoting temporary status in the technical sense of employees having no reasonable expectancy of perma- nent employment. Rather , we view his use of the term "temporary" to signify the variable probation period to which C & N subjected the bar- gaining unit employees it referred to Great Lakes as part of the Respond- ents' unlawful hiring scheme. In fact, the record does not support a find- ing that these employees were anything but permanent , and we clarify the judge's decision accordingly. S In view of our adoption of the judge's finding that the Respondent is obligated to bargain with the Union as the legal successor to Arapahoe Chemicals , a division of Syntex, we find it unnecessary to pass on the General Counsel's contention that a remedial bargaining order is warrant- ed under NLRB v. Gissel Packing Co., 395 U.S. 2481 (1969). We deny as unnecessary the General Counsel 's request for a visitatonal provision . Cherokee Marine Terminal, 287 NLRB 1080 (1988). Services, Inc., Newport, Tennessee, their officers, agents , successors , and assigns , shall take the action set forth in the Order, except that the attached notice is substituted for that of the administrative law judge. APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT threaten you with plant closure if you select a union to represent you. WE WILL NOT require you to execute waivers of your rights to take legal action with respect to the hire, tenure, and terms and conditions of employ- ment. WE WILL NOT discriminatorily refuse to consider you for hire or refuse to hire you because you held union office or engaged in union activities or other- wise exercised rights guaranteed by Section 7 of the Act. WE WILL NOT discriminatorily refuse to consider you for hire or refuse to hire you in the mainte- nance department of Syntex Chemical, Newport, Tennessee plant because of your membership in and activities on behalf of the Union. WE WILL NOT discriminatorily refuse to consider for hire or refuse to hire employees previously em- ployed by Syntex Chemical, Inc. at its Newport, Tennessee plant because of their membership in and activities on behalf of the Union. WE WILL NOT discriminatorily refuse to consider for hire or refuse to hire on Great Lakes payroll at its pay rates and benefits employees working at Great Lakes while on C & N's payroll for the pur- pose of precluding representation by the Union or because of the employees membership in and ac- tivities on behalf of the Union. WE WILL NOT refuse to recognize and bargain in good faith with Oil, Chemical and Atomic Work- ers International Union, Local 3-724, as the exclu- sive representative of our employees in the unit de- scribed below. WE WILL NOT discriminatorily refuse to consider for hire or refuse to hire employees previously em- ployed by Syntex Chemical, Inc. at our Newport, Tennessee plant because of the filing of charges with the National Labor Relations Board. WE WILL NOT contract production , maintenance, and laboratory work for the purpose of precluding 298 NLRB No. 80 616 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD representation by the Union or to avoid hiring em- ployees because of the their membership in or ac- tivities on behalf of the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer William F . Murr, Billy C. Shel- ton, William Farley Ball, Hoyal L . Crum, Roy Shults , C. Bartley Thorton , Timothy L. Barnes, Henry Gann, and Garry Watts employment in the positions for which they would have been hired but for our unlawful discrimination or, if those po- sitions no longer exist , in substantially equivalent positions , dismissing , if necessary, any employees not in the group of former Syntex employees, and make them whole with interest for any loss of earnings and benefits they may have suffered by reason of the unlawful failure to hire them. WE WILL make whole, with interest, all individ- uals hired to work at Great Lakes while on C & N's payroll , including but not limited to those whose names are set forth on Appendix B for, any loss of earnings and benefits they may have suf- fered by reason of the unlawful failure to hire them on Great Lakes ' payroll. WE WILL offer to former employees of Syntex Chemical, Inc., including but not limited to those whose names are set forth on Appendix C, employ- ment in positions for which they would have been hired but for the Respondents ' unlawful discrimina- tion or , if those positions no longer exist , in sub- stantially equivalent positions, dismissing, if neces- sary any employees not in the group of former Syntex employees , and make them whole, with in- terest for any loss -of earnings and benefits they may have suffered as a result of the discriminatory refusal to hire them. WE WILL place all discriminatees for whom the Respondents have no immediate positions on a preferential hiring list and offer them employment as vacancies occur in the order of their seniority with Syntex Chemical, Inc. WE WILL remove from our files all unlawful waivers of the right to take legal action executed by our employees and notify, in writing, each present or former employee who executed such waiver that this has been done and that the waiver will not be used in any way. WE WILL recognize and bargain collectively in good faith concerning rates of pay , wages, hours, and other terms and conditions of employment with Oil, Chemical and Atomic Workers Interna- tional Union, Local 3-724 as the exclusive repre- sentative of the employees in the appropriate bar- gaining unit set forth below: All production, maintenance, and laboratory employees employed at our Great Lakes New- port, Tennessee plant, but excluding all office clerical employees, professional employees, technical employees, guards and supervisors as defined in the Act. GREAT LAKES CHEMICAL CORPORA- TION AND C & N GENERAL SERV- ICES, INC., A JOINT EMPLOYER Ellen K. Hampton, Esq., for the General Counsel. Garry Wright, Esq. (Wimberly, Lawson, Cobb & Leggio), of Morristown, Tennessee, for the Respondent. D. Bruce Shine, Esq., of Kingsport, Tennessee, for C & N General Services, Inc. Helen DeHaven, Esq. and Paul Styles Jr., Esq., of Knox- ville, Tennessee, and Atlanta, Georgia, for the Charg- ing Party. DECISION STATEMENT OF THE CASE HUBERT E. LoTT, Administrative Law Judge. The consolidated cases were heard in Newport, Tennessee, from 30 September through 2 October 1986,1 20 through 23 October, 8 through 12 December, 19 through 23 Jan- uary 1987, and 16 through 17 February 1987. An amend- ed consolidated complaint issued 7 May based on charges filed in Case 10-CA-21446 on 10 January, amended 4 February, 6 March, and 30 April against Great Lakes Chemical Corporation (Great Lakes) and C & N General Services, Inc. (C & N) by Oil, Chemical and Atomic Workers International Union, Local 3-724 (the Union). Charges and amended charges were filed in Case 10-CA-21640 on 26 March and 30 April against Great Lakes and C & N by the Union. Amendments to the complaint were granted during the hearing on 20 Oc- tober, 8 December, and 16 February 1987. The primary issues are : (1) whether Great Lakes is a successor to Syntex Chemical Corporation (Syntex or Arapahoe); (2) whether Great Lakes and C & N are joint employers; (3) whether independent 8(a)(1) violations were committed; (4) whether a disaffection petition was valid; (5) whether Great Lakes refused to hire various union officials in violation of Section 8(a)(1) and (3) of the Act; (6) whether Great Lakes refused to hire Syntex maintenance department employees in violation of Sec- tion 8(a)(1) and (3) of the Act; (7) whether Great Lakes refused to hire all the remaining Syntex employees in violation of Section 8(a)(1) and (3) of the Act; (8) wheth- er Respondents discriminated against Syntex employees by putting them on C & N's payroll Instead of Great Lakes' payroll; (9) whether Respondents discriminated against Syntex employees by refusing to hire them in violation of Section 8(a)(4) of the Act after charges were filed in 1986; and (10) whether the 10(b) period was tolled for the above alleged violations. ' All dates refer to 1986 unless otherwise stated. GREAT LAKES CHEMICAL CORP. The parties were afforded an opportunity to be heard, to call, to examine and cross-examine witnesses, and to introduce relevant evidence. Since the close of hearing, briefs have been received from the parties. On the entire record and based upon my observation of the witnesses, and consideration of the briefs submit- ted, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent Great Lakes is a Delaware corporation with a plant located in Newport, Tennessee, where it is engaged in the production of chemical products. During the past calendar year , Respondent sold and shipped from its Newport, Tennessee facility goods valued in excess of $50,000 directly to customers located outside the State of Tennessee. Respondent C & N is a Tennessee corporation with an office and place of business located in Newport, Tennes- see, where it is engaged in the business of supplying con- tract labor. Respondent C & N, during the past calendar year which is a representative period, provided contract labor services valued in excess of $50,000 directly to Great Lakes. Respondents admit and I find, that they are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Respondents further admit and I find that the Union at all times material is a labor organization within the meaning of Section 2(5) of the Act. II. UNFAIR LABOR PRACTICES A. Background On 2 January 1963 when Chemtron Corporation owned the Newport plant, the Union was certified by the Board as the exclusive collective-bargaining repre- sentative of all the production and maintenance employ- ees. On 17 September 1970 the laboratory employees voted to be represented by the same Union. At least since 1970 , successive collective-bargaining agreements including the latest one dated 4 April 1983 through 3 April, have covered the employees in the following unit: all production and maintenance employees, laboratory technicians, environmental technicians , and instrument technicians employed by the Employer at its Newport, Tennessee facility, but excluding all office clerical em- ployees, professional employees, technical employees in- cluding development technicians, guards, and supervisors as defined in the Act.2 In 1974, Chemtron sold the Newport plant to Syntex Chemical, Inc. (Arapahoe Chemicals, a division of Syntex) who assumed the collective-bargaining agree- ment. There was a 6-month strike in 1979 during which no employees crossed the picket line. In February 1984 Syntex closed the Newport plant and laid off its employ- 2 The only issue in dispute over this unit is that Respondent would ex- clude C & N employees while the General Counsel and the Charging Party would include C & N employees working for Great Lakes. The issue will turn on whether or not Respondents are joint employers. 617 ees, all whom were on checkoff and members of the Union. At the time of the closure, Syntex informed the Union and the employees that the employees would be part of the package when Syntex sold the plant. Relying on this, the Union negotiated extended recall rights in lieu of severance pay. After Syntex closed the plant, it retained Jim Butler, a former area supervisor, as overseer of the plant and Joann Cates, the accountant. Syntex also retained Cocke County Security and Guard Service to provide grounds maintenance and guard service. Great Lakes Chemical Corporation has its headquar- ters in Lafayette, Indiana, and its major production plants in Eldorado, Arkansas. When Great Lakes pur- chased the Newport plant in June 1984 it held a news conference at the courthouse in Newport where Great Lakes Vice President Robert McDonald stated that the employees at Syntex would be exciting prospects for re- employment. He also states that former employees at the plant would make ideal candidates for Great Lakes be- cause Arapahoe made similar products to theirs or words to that effect. At the same time, a news release issued by Emerson Kampen, president of Great Lakes, stated that the Newport plant was ideally suited to make many of Great Lakes' existing and development products. He went on to say in the news release that the Newport plant, "provides immediately available capacity for future development." At the time of the sale, the Union kept its interest in representing the employees. It held a union meeting to discuss the sale and sent telegrams and letters to Syntex and Great Lakes demanding meetings with both Compa- nies and threatening to enjoin the sale if meetings were not held . The Union delayed further action when they were given what they considered assurances at the news conference. In October 1983, there were 99 unit employees on the Syntex seniority list. According to Great Lakes there were 82 employees on Syntex payroll when it shut down. Sixteen hundred job applications were received almost immediately by the Department of Employment Security for job vacancies at Great Lakes. All but five former Syntex employees filed job applications in June and July 1984. Newport, Tennessee, is a small town in east Tennessee with an unemployment rate of at least 20 percent. B. Successorship In June 1984 Respondent Great Lakes purchased the entire plant, equipment , and inventory from Syntex and put them into immediate production. With the exception of the plant manager and plant engineer, Great Lakes hired Syntex management to fill its supervisory ranks. Both Production Supervisors Butler and Lamb were Syntex supervisors. Victor Jameson, who is now produc- tion assistant and in charge of production , was manager of operations analysis ' at Syntex corporate headquarters. In addition, Great Lakes hired Syntex Safety Coordina- tor Weily, its Accountant Cates, its Administrative Sec- retary Fine, Purchasing Agent Balch, Account Clerk Finchum, and Laboratory Manager Morrison. Finally 618 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Great Lake hired into unit positions, eight other Syntex supervisors. With respect to unit employees 13 of 15 hired in 1984 were former Syntex employees. In 1985, 14 of 16 em- ployees hired were former Syntex unit employees. In 1986, 14 of 18 employees hired worked for Syntex. By April 1985, all job classifications were filled and the Newport plant was operating on two 12-hour shifts, 7 days per week. Employee functions under Great Lakes are essentially the same as they were under Syntex. Former Syntex em- ployees required very little training prior to performing their jobs at Great Lakes. In most cases they are given 1 or 2 days' training which is the average time taken to train production employees on a new process in either Company. While the chemical operators are now called chemical technicians, they still work with the same equipment, i.e., reactors, dryers, receivers, pumps, and centrifuges. There are employees performing warehouse functions although some of this work has been shifted to the chemical technicians. Laboratory employees perform essentially the same functions as they did under Syntex and, while most of the maintenance work is contracted out, it is essentially the same type work that was per- formed by the Syntex maintenance department. More- over, the six Great Lakes maintenance employees per- form the same maintenance functions that were per- formed under Syntex. Respondents' evidence in this respect stressed the fact that since Great Lakes operates with fewer supervisors in a plant which is being automated, their employees per- form more functions, exercising more independent judg- ment with less supervision. However, employees of both Companies utilize batch sheets (step-by-step recipes) and perform the same functions during the chemical process. Basically Syntex produced intermediate pharmaceuti- cal chemicals. The primary product was Naproxin which is the basic ingredient used in an arthritis drug. They also produced a chemical used in veterinary drugs. These were organic chemicals produced in rather high volume, averaging 2 million pounds per year. Great lakes pro- duces intermediate organic chemicals used in pesticides and flame retardants. The volume is much larger, aver- aging 10 to 12 million pounds per year. Syntex chemicals had a higher cost per unit than did Great Lakes and they were under FDA control. The Companies produced dif- ferent end products for different customers with one ex- ception. Syntex purchases BPA from Great Lakes in ac- cordance with the purchase agreement. Analysis and Conclusions There is little dispute and I fmd that Great Lakes uses the same plant and equipment employing the same super- visors and employees as Syntex. However, Respondent contends that Great Lakes produces a totally different product under vastly different working conditions. Therefore, as a matter of law, there exists no continuity in the employing industry which would give rise to any obligation to recognize and bargain with the Union. Briefly stated, Respondent contends it is not the succes- sor of Syntex. The credible evidence indicates that both Companies produce intermediate (not final products) organic chemi- cals that are shipped in bulk to their customers. These chemicals are produced using the same equipment and similar processes. Employee after employee testified that their job duties were essentially the same at Great Lakes as they were at Syntex and that they required a mini- mum amount of training or no training at all to perform their jobs. They further testified that their jobs in both places were dangerous, requiring extraordinary safety precautions. Conceding that the chemicals used are dif- ferent and that less supervision and fewer employees re- quire each employee to perform more functions exceris- ing more independent judgment, I cannot find any differ- ences significant enough to effect the employees repre- sentational desires. Great Lakes Chemical Corp., 280 NLRB 1131 (1986); Inland Container Corp., 275 NLRB 378 (1985). Indeed one significant factor considered by Great Lakes when it purchased the Newport plant was its immediate availability for producing Respondents' products. In other words, Respondents had everything at its disposal including experienced employees to get into immediate production and to reach capacity without going through a protracted period of renovation and training. Respondents' news release and other corre- spondence contemplated a continuity of operations which was saving it millions of dollars- Accordingly, I fmd that Respondent was a successor employer and violated Section 8(a)(5) of the Act by re- fusing to bargain with the Union. Respondent raises the 5-month hiatus as a defense to finding successorship. I cannot agree in this case because there have been no other substantial changes in oper- ations. United Maintenance & Mfg. Co., 214 NLRB 529 (1974). Moreover Syntex employees were given assur- ances by both Syntex and Respondent that they would be considered for employment, and employees immedi- ately filed job applications for employment based on these assurances . Furthermore their Union had negotiat- ed 5-year recall rights and these employees were the only trained work force in the area. All these factors would enhance rather than diminish their expectation of recall. C. Demand and Majority Issue The Union made its initial demand on Respondent by letter dated 11 February 1985. On 19 February 1985 Plant Manager Chuck Groustra by letter declined to rec- ognize the Union. By 26 April 1985 the Union had achieved majority status, according to the combined pay- rolls of Great Lakes and C & N which shows former Syntex employees then employed at Great Lakes. The combined payrolls indicate that 17 out of 29 unit employ- ees were formerly employed in the bargaining unit ' at Syntex bargaining employees. As stated above, by April 1985 all job classifications were filled and the plant was operating 24 hours per day, 7 days per week. The Union sent a second demand for recognition by letter dated 9 December 1985 which was declined by Respondent in a letter dated 3 February. In this letter GREAT LAKES CHEMICAL CORP. Groustra stated that he had an objective showing that the employees did not want to be represented. Analysis and Conclusions Based on the documented evidence, I find that the Union achieved majority status on 26 April 1985.3 Since the employer had only 49 unit employees by 14 Decem- ber, and employed employees in all job classifications working around the clock, 7 days a week at the time ma- jority status was reached, I also find that Respondent employed a representative complement of employees on the critical date. Respondent does not dispute any of these facts or findings but instead relies on a good-faith doubt achieved through a disaffection petition which was signed by employees from 17 to 20 January and given to Groustra shortly thereafter. Since the union demand is of a continuing nature, once the employer reaches a representative capacity and ma- jority status is achieved, the bargaining obligation will attach Fall River Dyeing Corp., 272 NLRB 839 (1984). Therefore, I fmd that the bargaining obligation attached long before Respondent had a good-faith doubt. Thus, the disaffection petition which I will address later cannot be used to support a good-faith doubt in this proceeding. Accordingly, I fmd that since Respondent refused to bargain with the Union on or after 26 April 1985, it is in violation of Section 8(a)(5) of the Act. D. Joint Employer, Agency, and Appropriate Unit C & N Cleaning and Janitorial Company was formed on 26 July 1984 as a partnership for the purpose of sup- plying two janitorial employees to Great Lakes. In March, it became C & N General Services, Inc. Its offi- cers were President James Wood who apparently worked for Great Lakes a brief time and was discharged, Vice President Glenmore Smith, who was a full-time em- ployee of the U.S. Postal Service, and Secretary-Treasur- er Edward Mardis, who had 20 years' experience in police and security work. The business was housed in a trailer at the fair grounds. Sometime prior to March 1985, Chuck Groustra asked Glenmore Smith to place employees referred by Great Lakes on C & N's payroll. From March 1985 to early 1986, Great Lakes referred former Syntex employees with applications on file to C & N after interviewing and in many cases hiring them to work for Great Lakes. These employees who were told they were temporary employees working for C & N would proceed to the C & N trailer and fill out an employment application with only their name and social security number. They would also complete the appropriate tax forms and then return to work at Great Lakes. Every employee referred to C & N was put on C & N's payroll. No interviews were conducted by C & N and work assignments were not discussed . The only matter discussed was their tempo- rary status as C & N employees. C & N employees were controlled exclusively by Great Lakes while working in the plant. However, they did receive a C & N payroll 3 Majority status would have been achieved sooner, but for Respond- ents' unfair labor practices, although a specific date is speculative. 619 check at the Newport plant. These employees were paid $8.50 per hour by C & N who in turn received $13 per hour for each employee furnished to Great Lakes. The agreement to provide labor was verbal and Great Lakes was billed by purchase order. Great Lakes was C & N's only customer up until 1 December. Analysis and Conclusions It is clear from the admitted facts that Great Lakes controlled every aspect of the C & N employees' work activities including the hiring and firing. Therefore, I conclude that Great Lakes and C & N are joint employ- ers or that C & N acted as an agent for Great Lakes. U.S. Pipe & Foundry Co., 247 NLRB -139 (1980), Schna- bel's Drivers for Lease, 249 NLRB 1164 (1980). In either case both are jointly and severally liable for any unfair labor practices committed. The unit composition as stated above is not in dispute except the issue of whether or not C & N employees should be included. That issue has been resolved by the above finding that Great Lakes and C & N are joint em- ployers. Accordingly, the unit set forth below should in- clude C & N employees working in the unit classifica- tions at Great Lakes.4 The unit is: all production, maintenance, and laborato- ry employees employed at Respondent Great Lakes' Newport, Tennessee facility, but excluding all office cler- ical employees, professional employees, technical em- ployees, guards and supervisors as defined in the Act. E. Independent 8(a)(1) Allegations and Other Union Animus 1. Alleged threats of Jimmy Butler and Harry Lamb Jackie Shaver testified that in late June, he was in the plant lunchroom when he heard Jimmy Butler and Harry Lamb say in front of other employees that the plant would shut down if the Union came in . Shaver is a tem- porary C & N employee working in the Great Lakes plant. He was a former Syntex employee who was laid off at the time of the plant shut down . Butler and Lamb, admitted supervisors , are the highest ranking production supervisors in the Great Lakes plant. Both worked for many years at Syntex . Butler did not deny the allegation but Lamb did . However, I discredit Lamb because he testified that he did not know the Company (Great Lakes) wanted to operate nonunion when in fact, it was common knowledge among management and the em- ployees. I also considered the job status of Shavers in crediting his testimony. Accordingly, I conclude that in late June Respondent threatened employees with plant closure if the Union represented them in violation of Section 8(a)(1) of the Act. 4 The issue concerning the temporary nature of the C & N work force has been resolved in this decision by my finding that but for the unfair labor practices committed by Respondents, the C & N employees would have been regular full -time Great Lakes employees. 620 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2. Evidence of animus The affidavit of Billy Joe Raines, who was deceased at the time of trial, was received into evidence because, as stated on the record, it complied with Federal Rule 804(b)(5) and Board cases. In his affidavit Raines stated that he performed guard service and plant maintenance with Charlie (Bennie) McMahan after the plant shut down. When it reopened he performed only guard serv- ices. Raines stated in his affidavit that in the summer of 1984 Jimmy Butler would sit in the guard shack and talk with him and Charlie McMahan. On several occasions Butler told Raines that the Union would not be back in the plant and certain people would not return to work if he had anything to do with it. Raines made the following statement in his affidavit: Butler said that Bill Murr and the damn union might as well forget it, the damn union won't be back. He also said there were certain ones that if he had anything to do with it he would see they wouldn't be back. He said Hoyal Crum was just a damn pest about everything, he filed too many grievances, complained and used the union to keep from working. He said this both before and after applications were available. He also said that Farley Ball used the union to keep from working and he wouldn't call Farley back. On one occasion one of the committee came to the shack, I think it was Shults, asking what was going on. Butler bold me not to tell him anything and none of the committee had any damn business down there. This was after I had the Great Lakes applications (after a while Butler took all the applications back and I no longer had them). Butler also said there was no way Larry McCarter would work for him, that Larry was crazy; that Tim Barnes was no account and hid behind the damn union all the time; that Ronnie Barrett was a smart ass and he'd have been gone a long time ago if it weren't for the union covering for him. He also said that the strike (in about 1979) was what caused the plant to close and talked about how the union got the Barrett's job back after Bar- rett was fired for picket line conduct. . . . Butler told me both before and after the applications were first available that none of the damn union ones that did all the griping was going to be back. Several times he said he had a list of the ones he wanted back, a list to go by. Deputy Sheriff Ronald Leffew who was a security guard during the shut down testified that he had many conversations with Butler some in the presence of Billy Joe Raines in the guard shack. Butler stated to Leffew that employees who had been troublemakers or filed grievances would not be back. Butler mentioned Garry Watts as a hell raiser, always filing grievances and caus- ing trouble. He also mentioned Frank Prosise who would not be hired. Charles (Bennie) McMahan testified that he is current- ly employed by Great Lakes and was employed as a se- curity guard at Great Lakes from 28 January 1984 to March 1985. He stated that Raines worked for him during the shut down and he had observed Butler and Raines talking together several times. Later Raines would report on the telephone that Butler had told him the damn Union would not be back. Jimmy Butler admitted having conversations with Raines and McMahan everyday during this period but denies discussing the Union. I have credited the affidavit of Billy Joe Raines be- cause it was corroborated by the testimony of Leffew and McMahan. Moreover, Butler's statements of animus toward the Union are consistence with a course of con- duct engaged in by all of management. I discredited But- lers' denial because he was a very evasive witness. Fur- thermore, his record testimony on his face was incredi- ble. For example, he stated that union activity was not considered in evaluating employees for hire and that he never discussed the union committee with Bill McCord. The first statement is contradicted by notes kept by Butler during employees' interviews wherein he wrote "was a strong union person-no" next to Ronnie Bar- rett's name. When asked what he meant by that state- ment Butler stated that Barrett had a fight with another person on the 1979 strike picket line. The second asser- tion as contradicted by Personnel Manager Bill McCord who testified that Butler gave him the names of all the union officials whose names were then circled on a roster of Syntex employees and given unfavorable rat- ings. In a memorandum from Personnel Manager Bill McCord to Great Lakes Senior Vice President Bill McGuire dated 21 May 1984, McCord recommended hiring Butler because he never was a union member, knew all the employees, and thinks Great Lakes can op- erate the plant without a union. McCord suggested that Butler be used in staffing the plant. During the interviewing process, McCord and Butler told nearly all applicants that the plant would be operat- ed without a union. Sometime after the plant resumed operations under Great Lakes, Construction Contractor Wayne Ellison re- ceived a telephone call from a member of Great Lakes management (probably Project Manager Gene Boykin) asking him if he knew that Hoyal Crum, who was work- ing on Building 9 at Great Lakes, had been a union member. He informed Ellison that others at Great lakes were concerned about Crum's presence at Great Lakes. According to Ellison and Crum he was assured that he would not be fired. This incident was not denied by Re- spondent. At the corporate level various letters and memoranda to the highest officials from the highest officials state that the Company would not have to deal with the Union. In other memoranda from Vice President Robert McDonald to President Emerson Kampen, he states that Howard Gandy of Sunoco Products in Newport has es- tablished an "all salaried" concepts and suggests that Great Lakes "pick his brains." McDonald states that 5 From the testimony of Bill McCord, I find that the "all salaried" concept is a euphemism for nonunion GREAT LAKES CHEMICAL CORP. with an unemployment rate of 30 to 32 percent, they should be able to do what they want. Personnel Manager Bill McCord was sent to Newport from Eldorado, Arkansas, by Senior Vice President Wil- liam McGuire to assess the labor situation. After talking with many people at Newport, McCord wrote memoran- da to McGuire in which he laid out his plans for keeping the plant nonunion. It is an extensive document covering a wide range of subjects that calls for, among other things: (1) the blacklisting of all current union officials by name; (2) the blacklisting of all former union officials who were presumably in office during the 1979 strike; (3) the blacklisting of all "troublesome" maintenance de- partment employees; (4) the careful selection of employ- ees to avoid union problems; (5) the hiring of Jim Butler to aid in the selection of employees, i.e., sort out the good from the bad; (6) hire 16 to 20 Syntex employees at the top rate of pay and then hire no more Syntex em- ployees but hire trainees instead; (7) tell all the new em- ployees that the Company will operate nonunion; and (8) consult with nonunion employers in the area before staff- ing in order to learn how to establish a nonunion atti- tude. These are some of the recommendations made to McGuire who found nothing in the memoranda to make him uncomfortable. After receiving these memoranda, McGuire assigned McCord to be in charge of staffing the Newport plant. McCord picked Butler to assist him. Analysis and Conclusions Almost all the evidence presented came from Re- spondent's files and not only shows the most egregious union animus but also utter contempt for the law. F. Disaffection Petition A petition stating that signers did not want a union was circulated by Bill Wallin from 17 through 20 Janu- ary. Every employee but one, who was in the hospital, signed their name. It was then turned over to Chuck Groustra who checked the authenticity of the signatures and used it as a basis for denying the Union's second re- quest for recognition which was received by Respondent on 26 December 1985. Bill Wallin was a high-level (area) supervisor at Syntex. He was hired by Great Lakes as a chemical tech- nician but was frequently designated step-up supervisor (acting supervisor) while employed at Great Lakes. As an acting supervisor, Wallin testified that he had the same authority as a regular supervisor. He was responsi- ble for assigning work to employees including overtime. Signed timecards and batch sheets. He was responsible for the production process and was paid 80 cents per hour more. Respondents' records indicate that Wallin was an acting supervisor when he circulated the petition. Although he claims he did not have as much authority during that period of time, I discredit this assertion be- cause he was the only supervisor in the plant during his 12-hour shift. Analysis and Conclusions Accordingly, I find Bill Wallin was a supervisor within the meaning of Section 2(11) of the Act when he 621 circulated the petition. Culmtech, Ltd., 283 NLRB 163 (1987). Furthermore, I fmd that the petition was tainted be- cause it was circulated by a supervisor. I also find that the petition was tainted because it was circulated long after a demand and refusal was made in violation of Sec- tion 8(a)(1) of the Act. Moreover, it was circulated in the face of continuing and numerous 8(a)(1) and (3) vio- lations which the employees were well aware of. G. Psychological Testing Counsel for the General Counsel asserts that the tests given to all prospective Great Lakes employees violated the Act because these tests were mentioned in the McCord memorandum as part of a screening process. She contends that because the narrative portion fur- nished by PSI Corporation provided assessments on indi- viduals such as "loyal" or is likely to "promote friction" or is loyal to "company interests," they provided the Company with information as to an applicant's union sympathies. She also claims that because the Charging Party's expert witness showed a pattern of Respondent's hiring employees with lower scores while rejecting those with higher scores, the administration of the tests and their subsequent use in hiring violated Section 8(a)(1) and (3) of the Act. Analysis and Conclusions I cannot agree with the General Counsel's or the Charging Party's contentions . The tests administered to all employees were the California Capacity Question- naire , Miller Mechanical Insight test, and the Humm Wadsworth Temperament Scale. All these tests have been widely used for from 15 to 40 years by businesses. Furthermore, I could fmd no evidence that employees were selected for hire based solely on test scores. Nor was there evidence that these tests in any way revealed a person's union sympathies. Finally, it should he added that Respondents did not have to rely on inferences gleaned from psychological tests' when it already knew the union sympathies of its perspective applicants. The General Counsel and the Charging Party offered consid- erable evidence proving employer knowledge. Accordingly, I will dismiss this complaint allegation. H. Waiver of Employee's Rights During this hearing in January 1987, Respondent C & N began requiring all its employees to sign a statement wherein they agreed to waive all their legal rights to bring any action against C & N as a result of their layoff or termination. All employees were required to sign a waiver as a condition of employment. Edward Mardis, C & N general manager, testified that the present Board proceedings prompted him to institute this requirement. He testified further that the purpose of the waiver was to prevent suits by laid-off employees over recall rights. 622 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Analysis and Conclusions Counsel for the General Counsel argues that by condi- tioning employment on the signing of this waiver, Re- spondent C & N has effectively interfered with employ- ees' rights of access to the Board in violation of Section 8(a)(4) of the Act. I agree with the General Counsel since there was no evidence offered that any explanation was ever given to the employees as to why they were required to sign the waiver. It follows therefore, that C & N employees would be reluctant to file charges with the Board for fear of losing their jobs. Accordingly, I find that Respondents have violated Section 8(a)(1) and (4) of the Act by requiring that all employees sign a waiver of all legal rights. 1. Alleged Discrimination Against Local Union Officers As stated above, in section E, Bill McCord in his 21 May 1984 memorandum recommended blacklisting all current local union committee members and listed them by name. With McCord in charge of interviewing, none of the local union officers were hired although all filed applications and same were interviewed but not by Groustra. Respondent did not hire Thornton, Shelton, and Shults although they were described by the employ- er as good employees. The others were described as "troublemakers" by McCord. All these employees testified to their long and good work records at Syntex and to their specialized skills in warehousing, chemical operating, maintenance, and labo- ratory work which was undisputed. Jimmy Butler testi- fied for Respondent that he could think of nothing spe- cific that would disqualify these applicants from employ- ment. Carol Morrison who was laboratory manager for both Syntex and Great Lakes testified that she had not recom- mended hiring Bart Thornton for a laboratory position because she wanted to hire employees with more formal education. However, Morrison had recommended Thornton for a position with Syntex in Boulder, Colora- do, at the time of the shutdown. She also gave him the highest final grade in the ACS chemical course she taught in 1983. With respect to former union officials McCord's 21 May 1984 memorandum states that this group whose names he had was harder to get along with than the cur- rent group and should be avoided. This group consisted of among others Henry Gann, president, Bartley Thorn- ton, vice president (see above), and Gary Watts, bargain- ing committee. All three names were circled and checked for no hire on McCord's list. Henry Gann was a laboratory technician hired in 1974 with experience in other areas of the plant. Morrison claimed she did not hire Gann because he lacked suffi- cient formal education. Laboratory payroll records indicate that of the 14 em- ployees hired into the laboratory by Morrison, only 2 were former unit employees. Five employees were hired directly onto Great Lakes payroll while nine employees were on C & N payroll. During 1986, three of these em- ployees quit their jobs while two others were discharged. It appears that this latter group of employees had more formal education than former Syntex unit employees. Gary Watts was hired by Syntex in 1977 and had ex- tensive pipe insulation experience which was a skill much needed in the chemical plant. Watts was a mainte- nance employee and McCord advised that, "care should be taken before hiring any of these people." Respondents offered evidence that it hired two former union committeemen Hogan and Lewis. Lewis was a re- placement on the committee during 1979 and 1980 and there was the evidence that he had much union activity. Evidence also shows that they were hired as temporary C & N employees. Analysis and Conclusions The documented evidence supports an overwhelming prima facie case for counsel for the General Counsel. In fact her case is so overwhelming that it would be virtual- ly impossible for Respondents to meet their Wright Line burden. Of course they did it. Respondents' records reveal that it desperately needed all kinds of experienced employees but were at a loss to figure out how they could hire experienced employees without exceeding the union-to-nonunion ratio. On 29 January 1985 Groustra wrote McDonald requesting a lab technician because overtime in the laboratory was exces- sive (30.5 percent and climbing). In the last paragraph he states: Timing is excellent. We can probably hire an ex- perienced lab technician from Rock Hills laborato- ries. This would improve our situation with respect to nonbargaining unit employees and allow hiring an experienced Syntex employee later in the year if the need arises. The need did arise on 4 February when Groustra again requested permission to hire 4 lab technicians and 10 chemical technicians. Respondents' counsel valiantly argues that they hired some union committeemen, all em- ployees with more seniority, and employees with more formal education; but these arguments are insignificant when compared to the damning evidence out of Re- spondents' own files. In fact, all of Respondents' argu- ments are contradicted by its own documentary evi- dence. Accordingly, I find that William Murr (union presi- dent), William Shelton (union vice president), Hoyal Crum (maintenance committeeman), Farley Ball (instru- ment committeeman), Bartley Thornton (laboratory com- mitteeman), Roy Shults (operations committeeman), Garry Gann (former president), and Gary Watts (former maintenance committeeman) were not hired solely be- cause of their prior union activities and for no other reason in violation of Section 8(a)(1) and (3) of the Act. 6 Rock Hill was not m the bargaining unit GREAT LAKES CHEMICAL CORP. J. Alleged Discrimination Against Maintenance Department Employees Thomas Sanders, plant engineer, testified that Great Lakes contracts out 75 percent of its maintenance work, 50 percent of which is routine maintenance. Respondents employ 6 maintenance technicians and 1 maintenance su- pervisor while Syntex employed 16 maintenance employ- ees. Testimony from several witnesses indicates that the Syntex maintenance department performed all the rou- tine maintenance and up to 350 hours of new construc- tion or changeover work. Above that, Syntex could by agreement contract out. Chuck Groustra testified that the reason Great Lakes contracts out so much of its maintenance work is because Great Lakes has a history of contracting out and the fluctuating demands for products requires that Respond- ents use contract labor in order to avoid layoffs. Evidence in Respondents' fifes reveals the following. As stated above, McCord's memorandum of 21 May 1984 states that the maintenance department has the most "troublesome" employees and care should be taken before hiring any of them. His 8 June 1984, memoran- dum recommends not hiring many maintenance people and to supplement with contractors . He also recom- mends using contractors to provide "labor type" jobs but that contractors should not use Syntex employees be- cause they might cause problems with other employees. In another memorandum dated 25 April Groustra in- formed McDonald that his maintenance employees during 1986 were averaging 64 hours per week overtime. Groustra and all of Respondents' witnesses testified that the reason they need fewer employees is because technicians perform maintenance work. But in his 4 Feb- ruary memorandum to McDonald, Groustra complains that he needs more chemical technicians because the ones employed have too many duties to perform includ- ing maintenance. He states that he is unhappy with con- tract labor because, in effect, they are no good, besides they are disloyal. He ends by imploring McDonald to let him hire more permanent employees. Groustra also admitted when confronted with docu- mentary evidence, that he kept a close tabulation of exunit employees versus nonunit employees because he was aware of the resulting problem if he hired a majority of exunit employees. Running tabulations were apparent- ly kept at headquarters for the same reason. (See C.P. Exh. 44). Analysis and Conclusions The recommendations in McCord's memoranda refers specifically to union activity on the part of maintenance employees and nothing else and I so find. With that in mind it should also be stated that the evi- dence is conclusive that Respondents were desperately trying to avoid reaching majority status, which was seri- ously interfering with the operations of the plant. I can only state that the evidence from Respondents' files is devastating and clearly shows that Respondent would have hired more permanent maintenance employ- ees but for the Union. Respondents' oral testimony and 623 arguments are nothing when compared with the evi- dence from their files. Accordingly, I find that Respondents' failure to hire more permanent maintenance employees is a violation of Section 8(a)(1) and (3) of the Act. I will adopt counsel for the General Counsel's recommendation and let com- pliance determine the exact number of job vacancies as backpay to be awarded. K. Alleged Discrimination Against all Former Syntex Employees Because of Union Affiliation The evidence shows that Respondents in the beginning adopted McCord's recommendation and hired a core of Syntex employees. However, after receiving the Union's demand dated 11 February 1985, it changed this practice and began using C & N contract employees in March 1985. In a memorandum dated 22 February 1985 Re- spondents' attorney anticipated a charge being filed over the "successor" issue but believed they were an sound legal ground because no cards had been signed . After the demand, according to Groustra, he was in a bind. He needed employees to get the job done but he could not hire any permanent employees on Great Lakes payroll. So he turned to C & N which was virtually created for the exclusive purpose of providing experienced Syntex employees to Great Lakes. As stated earlier, evidence shows that Great Lakes controlled every aspect of labor relations concerning these employees. After C & N en- tered the picture, no more Syntex employees were hired directly onto Great Lakes payroll unless they served an apprenticeship with C & N and then only if the ratio was "correct." Groustra explained that he needed temporary contract labor because of the fluctuating nature of the business. However, this reason is contradicted by his own memo- randum to McDonald dated 4 February wherein he com- plained of the need for more employees and the fact that contract labor caused difficulties because it created a morale problem, they were poor quality workers and were disloyal. He also complains about the problems in- herent in hiring inexperienced help and advises against it. At the same time everyone was figuring ratios of con- tract versus noncontract employees in an effort to stay below majority. Analysis and Conclusions With all the documented evidence already presented and discussed, and with the evidence presented above, I am convinced beyond any doubt that Respondents used C & N to avoid hiring Syntex unit employees onto its payroll. I am further convinced and find that from June 1984 to April 1986, Respondent avoided hiring too many Syntex employees in order to prevent the Union from obtaining majority status. Since all the Syntex unit em- ployees were union members, I find Respondent's action discriminated against them... D. Landscaping Corp., 281 NLRB 9 (1986). Respondents' counsel conceded that oontracting C & N labor was not based on economic considerations. Therefore, the only remaining reason for so doing was the fluctuating nature of the business. I find this reason 624 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD pretextual because prior to the Union's first demand, the same conditions prevailed; however, it hired full-time employees onto its payroll. Moreover, Groustra who was being squeezed by this practice, thought it was a bad idea. It seems apparent , and Groustra said as much, that after the initial hiring of temporary C & N employees, Respondent had trouble getting competent experienced employees from C & N because these type of employees did not want to work on a temporary basis at lower wages with no benefits. Therefore, I find that Respondent has not met its Wright Line burden and I further find that all Syntex unit employees who filed job applications but were refused employment or hired by C & N to work at Great Lakes were discriminated against in violation of Section 8(a)(1) and (3) of the Act. L. Alleged 8(a)(4) Allegations Arising From Conduct During 1986 The evidence indicates that the first charges were filed in this case on 10 January and the second demand letter was received on 26 December 1985. Groustra testified that because of the charges being filed, he decided to change the hiring procedure and let C & N have exclu- sive control over selecting, interviewing, and hiring em- ployees for Great Lakes. C & N employment records show that during 1986 no former Syntex employees were hired by C & N for employment at Great Lakes. A cur- sory look at the employment applications of C & N em- ployees indicates that these employees had no chemical plant experience. However, many had experience at Taco Bell, Pizza Hut, and other retail stores. Groustra indicated in documents that he needed tech- nical operators with 5 years chemical experience. Robert Ellis, 'an expert witness and former president of Araphoe in Newport testified that it took from 5 to 10 years' ex- perience for an employee to operate efficiently in a chemical plant. With all the evidence that has already been presented relating to Respondents' need for experienced employees and its desire to operate nonunion , I find that Respond- ents' action in 1986 to be a violation of Section 8(a)(1) and (4) of the Act. However, this violation relates to the same enployees that were discussed in paragraph K above. M. Alleged Discrimination Against C & N Employees Working at Great Lakes I have already found that Respondent Great Lakes' use of C & N for employment purposes was discrimina- torily motivated. The record evidence shows that Great Lakes employees received $8.85 per hour plus benefits while C & N employees working at Great Lakes earned $8.50 per hour with no benefits. Accordingly, I conclude and find that those employees hired by C & N to work at Great Lakes in order to avoid union majority should be made whole for any loss of earnings and benefits they may have suffered from the time they were hired by C & N. It is recommended that compliance assist in determining the backpay benefits due these employees. N. Tolling of 10(b) Period There is no 10(b) issue concerning Respondents ' refus- al to bargain because that is a continuing violation. With respect to the 8(a)(3) and (4) violations, I find that the 10(b) period was tolled because in my opinion these too were continuing violations . There is also an- other reason . After Syntex unit employees filed their ap- plications for employment , they were never told by Re- spondent that they would not be hired . To the contrary, they were led to believe that they were still being con- sidered for employment . The burden in this case was on Respondent to prove that the Syntex employees were denied employment and that notice of this offending act was clear and unequivocal . No such evidence was of- fered . Truck & Dock Services, 272 NLRB 592 (1984), and Strick Corp., 241 NLRB 210 (1979). Accordingly , I find that Respondents ' refusal to hire dates back to July 1984 which is the time all Syntex unit employees ' applications had been filed . This finding ap- plies to all Syntex unit employees who were not hired di- rectly onto Great Lakes' payroll. CONCLUSIONS OF LAW 1. Respondent Great Lakes Chemical Corporation and Respondent C & N General Services, Inc. are jointly and severally employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Oil, Chemical and Atomic Workers, International Union, Local 3-724 is a labor organization within the meaning of Section 2(5) of the Act. 3. All production, maintenance, and laboratory em- ployees employed at Respondent Great Lakes Newport, Tennessee facility, but excluding all office clerical em- ployees, professional employees, technical employees, guards, and supervisors as defined in the Act constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act. 4. Respondent Great Lakes is a legal successor for labor relations purposes to Syntex Chemicals' operations at the Newport, Tennessee chemical plant. 5. Respondent violated Section 8(a)(1) of the Act by threatening employees with plant closure if they selected the Union to represent them. 6. Respondent violated Section 8(a)(1) and (4) of the Act by requiring employees to execute waivers of their rights to take legal action with respect to their hire, tenure, and terms and conditions of employment. 7. Respondent violated Section 8(a)(1) and (3) of the Act by refusing to consider for hire or refusing to hire employees because they held union office, engaged in union activities , or otherwise exercised rights guaranteed by Section 7 of the Act. 8. Respondent violated Section 8(a)(1) and (3) of the Act by refusing to consider for hire or refusing to hire employees in the maintenance department of Syntex Chemicals' Newport, Tennessee plant, because of those employees' membership in and activities on behalf of the Union. 9. Respondent violated Section 8(a)(1) and (3) of the Act by refusing to consider for hire or refusing to hire employees previously employed by Syntex Chemicals, GREAT LAKES CHEMICAL CORP. Inc. at its Newport, Tennessee plant, because of their membership in and activities on behalf of the Union. 10. Respondent violated Section 8(a)(1) and (3) of the Act by refusing to consider for hire or refusing to hire on Respondents' Great Lakes' payroll at its pay rates and benefits employees working at Respondent Great Lakes while on Respondent C & N's payroll for the purpose of precluding representation by the Union or because of the employees' membership in and activities on behalf of the Union. 11. Respondent violated Section 8(a)(1) and (4) of the Act by refusing to consider for hire or refusing to hire employees previously employed by Syntex Chemicals, Inc. at its Newport, Tennessee plant, because of the filing of charges with the National Labor Relations Board. 12. Respondent violated Section 8(a)(1) and (5) of the Act on and after 26 April 1985, by failing and refusing to recognize and bargain in good faith with Oil, Chemical and Atomic Workers International Union, Local 3-724 as exclusive representative of its employees in an appropri- ate unit described in paragraph 3 above. 13. Respondent contracted production, maintenance, and laboratory work for the purpose of precluding repre- sentation by the Union or to avoid hiring employees be- cause of their membership in or activities on behalf of the Union. 14. The 10(b) period on all violations is tolled because of the continuing nature of the violations and because of Respondents unlawful conduct. 15. The disaffection petition is tainted because it was circulated by a supervisor and because it was circulated after Respondents refused to bargain in violation of Sec- tion 8(a)(5) of the Act and during a period when other numerous violations of the Act were committed. 16. Respondents did not violate the Act by administer- ing psychological test to employees. 17. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. ' THE REMEDY Having found that Respondents have engaged are and is engaging in unfair labor practices, I shall recommend that they be ordered to cease and desist therefrom and take affirmative action necessary to effectuate the pur- poses of the Act and to post appropriate notices. Thus, having found that the Respondents discrimina- torlly refused to consider, for hire or to hire employees previously employed by Syntex Chemicals, Inc., New- port, Tennessee plant, I shall recommend that Respond- ents offer all individuals who would have been hired in and after July 1984 employment in the positions for which they would have been hired absent Respondents unlawful discrimination or, if those positions no longer exist, to substantially equivalent positions, dismissing if necessary, any and all non-Syntex employees hired to fill such positions. Respondents shall also place on a prefer- ential hiring list all remaining discriminatees listed in Ap- pendix C who, under nondiscriminatory criteria, would have been hired absent the lack of available jobs. Fur- thermore, I shall recommend that Respondents make 625 whole for any losses they may have suffered all individ- uals it would have hired absent its unlawful discrimina- tion against them. Backpay shall be computed in accord- ance with the formula set forth in F W. Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), and Flordia Steel Corp., 231 NLRB 651 (1977). Make whole with interest in accordance with the above formula, all individuals hired on and after July 1984, to work at Respondent Great Lakes while on Re- spondent C & N's payroll, including but not limited to those employees whose names are listed on Appendix B, for any loss of earnings and benefits they may have suf- ferred since,July 1984 by reason of the unlawful failure to hire them on Respondent Great Lakes' payroll Offer to William F. Murr, Billy C. Shelton, William Farley Ball, Hoyal L. Crum, Roy Shults, C. Bartley Thornton, Timothy L. Barnes, Henry Gann, and Garry Watts employment in the positions for which they would have been hired on about July 1984, but for Respondents unlawful discrimination or, if those positions no longer exist, in substantially equivalent positions dismissing, if necessary, any and all persons hired to fill such positions, and make them whole, with interest, for any loss of earn- ings and benefits they may have suffered since July 1984, by reason of the unlawful failure to hire them. Having found that the Respondents also have unlaw- fully refused to bargain collectively with the Union, I shall recommend that Respondents be ordered to recog- nize and bargain collectively in good faith concerning rates of pay, wages, hours, and other terms and condi- tions of employment with Oil, Chemical Atomic Work- ers International Union, Lccal 3-724 as the exclusive bar- gaining representative of the employees in the unit found appropriate and, if an understanding is reached, embody such understanding in a signed agreement. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed7 ORDER The Respondents, Great Lakes Chemical Corporation and C & N General Services Inc., Newport, Tennessee, jointly and severally, and their officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Threatening employees that Respondent Great Lakes would close its plant if the Union were designated to represent the employees for purposes of collective bargaining with the Respondent. (b) Discriminatorily requiring employees to execute waivers of their rights to take legal action with respect to their hire, tenure, and terms and conditions of employ- ment. (c) Discriminatorily refusing to consider for hire or re- fusing to hire employees because they held union office, 7 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. 626 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD engaged in union activities or otherwise exercised by Section 7 of the Act. (d) Discriminatorily refusing to consider for hire or re- fusing to hire employees in the maintenance department of Syntex Chemical Newport, Tennessee plant because of those employees membership in and activities on behalf of the Union. (e) Discriminatorily refusing to consider for hire or re- fusing to hire employees previously employed by Syntex Chemical Inc. at its Newport, Tennessee plant because of their membership in and activities on behalf of the Union. (f) Discriminatorily refusing to consider for hire or re- fusing to hire on Respondent Great Lakes payroll at its pay rates and benefits employees working at Respondent Great Lakes while on Respondent C & N's payroll for the purpose of precluding representation by the Union or because of the employees membership in and activities on behalf of the Union. (g) Discriminatorily refusing to consider for hire or re- fusing to hire employees previously employed by Syntex Chemical Inc. at its Newport, Tennessee plant because of the filing of charges with the National Labor Relations Board. (h) Failing and refusing to recognize and bargain in good faith with Oil, Chemical Atomic Workers Interna- tional Union, Local 3-724, as the exclusive representative of its employees in a unit found appropriate. (i) Contracting production, maintenance, and labora- tory work for the purpose of precluding representation by the Union or to avoid hiring employees because of their membership in or activities on behalf of the Union. (j) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaran- teed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer to William F. Murr, Billy C. Shelton, Wil- liam Farley Ball, Hoyal L. Crum, Roy Shults, C. Bartley Thorton, Timothy L. Barnes, Henry Gann, and Garry Watts employment in the positions for which they would have been hired on or about July 1984 but for Respond- ents' unlawful discrimination or, if those positions no longer exist, in substantially equivalent positions, dismiss- ing if necessary any and all persons hired to' fill such po- sitions, and make them whole with interest in a manner set forth in the remedy section above, for any loss of earnings and benefits they may have suffered since July 1984, by reason of the unlawful failure to hire them. (b) Make whole, with interest in the manner set forth in the remedy section above, all individuals hired on and after July 1984, to work at Respondent Great Lakes while on Respondent C & N's payroll, including but not limited to those whose names are set forth on Appendix B, for any loss of earnings and benefits they may have suffered since July 1984, by reason of the unlawful fail- ure to hire them on Respondent Great Lakes payroll. (c) Offer to former employees of Syntex Chemical Inc. including but not limited to those nanes set forth on Ap- pendix C, employment in the positions in which they would have been hired since July 1984 but for Respond- ents unlawful discrimination or, if those positions no longer exist, in substantially equivalent positions dismiss- ing, if necessary, any employees not in the group of former Syntex employees, and make them whole, with interest as set forth in the remedy section for any loss of earnings and benefits they may have suffered since July 1984, from and after the dates they would have been hired. (d) Place all discriminatees for whom Respondents have no immediate positions, on a preferential hiring list and offer them employment as vacancies occur in the order of their seniority with Syntex Chemical Inc. (e) Remove from Respondents files all unlawful waiv- ers of the right to take legal action executed by employ- ees of Respondents and notify, in writing, each present or former employee who executed such waiver that this has been done and that the waiver would not be used in any way. (1) On request, recognize and bargain collectively in good faith concerning rates of pay, wages, hours, and other terms and conditions of employment with Oil, Chemical and Atomic Workers International Union, Local 3-724, as the exclusive representative of the em- ployees in the unit found appropriate and, if an under- standing is reached, embody such understanding in a signed agreement. (g) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (h) Post at Newport, Tennessee, copies of the attached notice marked "Appendix A."8 Copies of the notice, on forms provided by the Regional Director for Region 10, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other materi- al. (i) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 8If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX B C & N EMPLOYEES This list is composed of former Syntex unit employees who worked for C & N at Great Lakes. Other C & N employees were not included because they never worked for Syntex and there was no evidence that they had any union activity. GREAT LAKES CHEMICAL CORP. 627 Charles McMahan Edward Rnight McGaha, T. G. Laws, R. D. James Lewis Tommy McGaha Shults, R. E. Boley, C. L. Bobby O'Dell E. D. Raines McCarter, J. L. Watts, G. S. Kenny Vannater David Hogan Hann, D. L. Williams, D. H. James Reneau Jack Mooneyhan Shaver, J. J. Godfrey, S. D. Johnny Buckner Jesse Sauceman Wilburn, T. E. Coffey, D. J. Lonnie Dunn Murrell Dawson Barrett, R. A. Wadroup, D. E. Dewey Waldrop Michael Jones Buckner, J. H. Messer, B. G. David Moore Jackie Shaver Chandler, R. O. Murr, W. F. Eddie Campbell Tommy Cook Balch, J. D. Lamb, J. L. Haskell Dockery William Kessler Hogan, B. D. Robinson, J. J. Eugene Lawson Troy Wilburn Jones, M. W. Blair, B. D. Herbert Riles William Sutton Lamb, C. Shelton, E. G. D. Williams John Bumgarner Mack , G. F., Jr. Hux, W. N. Stewart V R Gregg C E APPENDIX C , . . Black, V. D. , . . Lewis, J. M. Morrow, H. D. Southerland, A. R. SYNTax EMPLOYEES Rbberts, N. J. Hogan, D. M. Hill, L. V Thorton, C. B. Mooneyham, M. Williams, G. D. Fowler, H. L. Gann, H. A. Olden, J. B. Cook, A. W. Sauceman, J. S. Wyrick, J. Dawson, M. R. Inman, C. R. McMahan, L. W. Helton, E. E. O'Dell, B. D. Ramsey F. Shults, W. L. Chandler, R. J. Raines, C. R. Knight, E. A. Webb, R. D Ball, W. F. Shelton, B. C. Barnes, T. L. Campbell, E. J. Reneau, J. C. Hance, J. V. Norwood, H. V. Tackett, M. R. McMahan, C. E. Moore, D. D. Raines, B. J. Smith, C. M. Smith, J. A. Dockery, H. M. Rines, H. L. Ottinger, K. C. Wilson, G. Hall, D. E. West, D. R. Derrick, T. M. Crum, H. L. McGaha, E. C. Huff, J. A. Vannater K. Cook T. Green, K. Chandler, S. M. Dunn L. Kessler W. Raines, E. D. Moore, J. D. Lawson E. Sutton W. Lawson, R. D. Holloway, F. L. Moneyhan J. Bumgarner J.