Home-Stake Production Co.

National Labor Relations Board - Board Decisions

Dec 21, 1972

200 N.L.R.B. 1070 (N.L.R.B. 1972)

1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Santa Rita Mining Company, a Division of Home-
Stake Production Company and United Cement,
Lime and Gypsum Workers International Union,
AFL-CIO Cases 28-CA-2445 and 28-CA-2455
December 21, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On May 30, 1972, Administrative Law Judge'
James T Barker issued the attached Decision in this
proceeding Thereafter, Respondent filed exceptions
and a supporting brief
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel
The Board has considered the record and the
Administrative Law Judge's Decision in light of the
exceptions and brief and has decided to affirm his
rulings, findings, and conclusions and to adopt his
recommended Order as discussed below
Our dissenting colleaque would dismiss the 8(a)(3)
allegations of the complaints In his view the seven
employees in question were laid off for legitimate
business reasons and were not the objects of
unlawful discrimination
We find, on the contrary, substantial evidence to
justify the findings and conclusions of the Adminis-
trative Law Judge that Figueroa's termination on
October 15, 1971, was for discriminatory reasons and
that the selection of Bukowski, Spargo, Switzer, and
Townsend for layoff on November 4, 1971, was also
based upon unlawful considerations
As fully detailed in the Administrative Law Judge's
Decision, the Respondent's union animus has been
fully established and involved key supervisors in
conduct violative of Section 8(a)(1) of the Act No
exceptions were filed by the Respondent to the
Administrative Law Judge's findings Similarly, the
record clearly supports the findings that all seven
employees in question were union activists, and that
their support for the Union was known to their
immediate supervisors Obviously, considerations as
to the merits of the 8(a)(3) allegations must be viewed
against such background
With respect to Figueroa, it is true that his work
record shows deficiencies, some of which might well
have been a basis for discharging him for cause
However, it is equally true that most of these alleged
deficiencies were either condoned or disregarded,
and that the asserted reason for his termination on
October 15, 1971, near the end of his shift as
specifically expressed by the Respondent, was "to
effectuate a reduction in force" and not for work
deficiencies
The record shows that Figueroa began working for
the Respondent on August 17, 1970, and was one of
its oldest employees in point of service It was at the
trial and in its brief, that the Respondent for the first
time defended the termination, not for the original
reason stated, but on the ground that Figueroa was
insubordinate and was guilty of work deficiencies
Thus the issue is not, as framed by our dissenting
colleague, whether the Respondent was required to
apply totally permissive work standards with respect
to an inadequate employee simply because his union
activities were known, but whether the reasons given
for the discharge were the real reasons or were
founded upon unlawful considerations
We agree with the Administrative Law Judge that
the reasons given for Figueroa's termination were
pretextual and agree that he properly relied in
reaching this conclusion not only upon the contra-
dictory reasons given for Figueroa's discharge, but
also upon the fact that the timing of the discharge
was at a point when the Union's efforts were
intensifying It is undisputed that Figueroa was a
known and leading advocate of the Union and had
been observed by the Respondent conducting union
meetings Moreover, as found by the Administrative
Law Judge, there was no company policy, at the time
of Figueroa's so-called reduction-in-force discharge,
for reducing the work force except through attrition
As for the contention that Figueroa performed his
work tasks in an unacceptable manner, we agree with
the Administrative Law Judge's findings that they
were generally not of the type which necessitated
drastic punitive action The conduct upon which the
Respondent belatedly relied as the basis for his
termination, "if not palid, [was] barely florid " We
note that Figueroa was not counseled or warned in
advance and that his termination was abruptly and
unceremoniously effectuated
From the foregoing, we conclude that there is a
preponderance of evidence to support the finding
that Figueroa was discharged not for the reasons
stated, but for a discriminatory purpose
Similarly, we are unable to agree with the Chair-
man's position that the layoff of Bukowski, Spargo,
Switzer, and Townsend was not unlawful We find
no significance in the fact that the Administrative
Law Judge found, contrary to the General Counsel's
contention, that the layoffs were justified on eco-
nomic grounds, and predicated his findings on the
basis that the above four employees were discrimina-
1 The title Trial Exanuner was changed to "Administrative Law
Judge effective August 19 1972
200 NLRB No 144
SANTA RITA MINING CO 1071
torily selected His findings and conclusions were
based upon an independent analysis of the testimony
and are supported by the record, in our view
appropriate criteria upon which to evaluate the
legality of the Respondent's actions
As indicated, all four employees were union
activists, and their support for the Union was known
to their immediate supervisors The Respondent's
opposition to the Union's organizational efforts is
uncontroverted Senior Vice President Robison, who
was headquartered in Tuscon, miles away from the
Helvetia mining operation, personally made the
decision to effectuate the terminations and admitted-
ly did not consult with Supervisors Alpm, Day,
Rosson, or any other Helvetia supervisor Robison
contended that the selection of employees for layoff
was based partly on "company service" and partly
on "qualifications "
As discussed in detail in the Administrative Law
Judge's Decision, the Respondent maintained no
seniority roster and company service was given no
meaningful application in determining the retention
or termination of employees in the November 4
reduction in force Employees were retained who had
less seniority than those who were terminated and no
showing was made that the Respondent attempted to
establish comparative company service or seniority
ranking of employees in job classifications or
operating sections
Nor does the record support Robison' s contention
that objective considerations were given to the skills,
experience, and comparative capabilities of terminat-
ed employees and those retained Indeed, the record
reveals that immediate supervisors were of the
opinion that capable employees were being severed
The reasons set forth by Robison for his selection
do not hold up under scrutiny Since Robison had no
intimate knowledge of the day-to-day work skills and
capabilities of the employees and, at no time,
consulted immediate supervisors, the basis of his
selection of employees for the reduction in force was
not an informed one and could not, in the nature of
things, be founded solely upon job considerations In
each case the Administrative Law Judge found that
the four employees terminated possessed skills and
experience superior, or at least equal, to those
retained
As for Robison' s defense that he was unaware of
union activity or the activity of the union adherents,
and there is no direct showing that the contrary was
true, the Administrative Law Judge correctly found,
in our opinion, such defenses without meet The
Union organized openly and with full knowledge of
all Respondent's supervisors and agents at the
Helvetia operation and, as indicated above, the
union advocacy of the four employees involved was
not only well known to Respondent's supervisors but
was actively opposed
Thus, we agree with the Administrative Law
Judge's finding that substantial evidence supports the
inference that Vice President Robison was not only
aware of union activity, but was also aware that the
four employees involved in the layoff were active in
the Union We further agree that it strains credulity
that Robison on his own would make such an
important economic decision involving the Helvetia
operation without consulting the operating supervi-
sors involved in the day-to-day operation and
without giving controlling weight to their recommen-
dations
In sum, we find, in agreement with the Administra-
tive Law Judge, that a prima facie case of discrimina-
tion inescapably emerges from the evidence as a
whole Although this prima facie showing was
susceptible of rebuttal by a showing by the Respon-
dent that objective criteria were, in fact, applied and
informed choices utilized, no such showing was
made Moreover, the untenable contentions and the
weak defenses of the Respondent serve affirmatively
to strengthen the finding of the Administrative Law
Judge that the four employees in question received
disparate treatment for discriminatory reasons in
violation of Section 8(a)(3) of the Act Accordingly,
we find no basis for disturbing this finding
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Santa Rita Mining
Company, A Division of Home-Stake Production
Company, Tucson, Arizona, its officers , agents,
successors, and assigns, shall take the action set forth
in said recommended Order
CHAIRMAN MILLER, dissenting in part
I would dismiss the 8(a)(3) allegations of the
complaint
With respect to Figueroa, I do not agree that a
preponderance of the evidence shows that his
termination was based on unlawful considerations
The fact that Respondent opposed organization and
knew that Figueroa supported the Union was not
enough to insulate him from discharge and require
Respondent to retain him despite his continuing
inadequacy as an employee On the facts found by
the Administrative Law Judge, it is apparent that
Figueroa performed his work tasks in an unaccept-
able manner, used company equipment carelessly,
refused to correct deficiencies when noted by his
superiors, and responded to criticism either by
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
making excuses or by being insolent Indeed, the
incident prompting his termination involved insubor-
dination to employee leadman Spargo , a fellow
union supporter , who himself reported Figueroa's
misconduct to management Furthermore , unlike the
majority, I am unwilling to invoke Section 8(a)(3) in
a manner requiring Respondent to apply totally
permissive work standards with respect to an
inadequate employee simply because his union
activities were known
Nor can I agree with the Administrative Law
Judge's finding that the layoff of Bukowski , Spargo,
Switzer , and Townsend was unlawful In the face of
Respondent 's animus and knowledge of the organi-
zation drive , the Administrative Law Judge found,
contrary to the General Counsel 's contention, that
"economic exigencies necessitated a reduction in
force as a counter to the unfavorable profit picture in
which the Respondent found itself " Yet, he,
nonetheless , concluded that the General Counsel had
made out a prima facie case of discriminatory
selection for layoff, adequate to shift the burden to
Respondent to show that the process of selecting
employees for the reduction in force was free of
antiunion considerations I do not agree
The Administrative Law Judge makes much of
Robison 's admission that seniority was not the sole
determinant , but that qualifications were also consid-
ered I would agree that when seniority is not used as
the sole determinant of the order in which employees
are laid off, the evidentiary problem becomes more
difficult in deter nimng whether the selection of
employees for layoff was bona fide or discriminatory
Yet there is no compulsion on employers to use
seniority as the exclusive standard for layoffs and,
even where protection against layoff is afforded
through collective bargaining , such criteria as fitness
and ability are often specifically referred to in
collective agreements as being relevant to the
selection process Thus when a legitimate layoff
reaches a group of employees who were not selected
on a seniority basis , and when some of whom are and
some are not union adherents, I see no basis for
applying any legal inference or presumption that the
union protagonists included in the group have been
included for discriminatory reasons Instead , the law,
in my view, should require affirmative evidence of
disparate treatment in such a case There was no
such proof adduced here Accordingly, I would
disagree with my colleagues that the General
Counsel has established by a preponderance of the
evidence that of the seven employees laid off those
who had engaged in union activity were the object of
unlawful discrimination
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES T BARKER , Trial Examiner This matter was
heard at Tucson, Arizona , on February 15 and 16, 1972,
pursuant to an order consolidating cases, complaint, and
notice of hearing issued on December 29, 1971, by the
Acting Regional Director of the National Labor Relations
Board for Region 28 The complaint arose from charges
filed in Case 28-CA-2445 and Case 28-CA-2455 on
October 21 , 1971, and November 5, 1971 , respectively, by
United Cement, Lune and Gypsum Workers International
Union, AFL-CIO, hereinafter called the Union The
complaint alleges violations of Section 8(a)(1) and (3) of
the National Labor Relations Act, hereinafter called the
Act The time for filing briefs was twice extended, and
briefs were filed by the General Counsel and Respondent
on April 17, 1972
Upon consideration of the briefs of the parties and upon
the entire record in this case , ' and my observation of the
witnesses, I make the following
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
At all times material herein , Santa Rita Mining Compa-
ny, a Division of Home-Stake Production Company,
hereinafter called Respondent , has been a foreign corpora-
tion qualified to do business in the State of Arizona
Respondent is a wholly owned subsidiary of Home-Stake
Production Company with a principal office and place of
business in Tulsa, Oklahoma Respondent also maintains
an office and place of business in Tucson , Arizona
During the 12-month period immediately preceding the
issuance of the complaint herein, the Respondent, in the
course and conduct of its business operations , purchased
and received goods or services directly from outside the
State of Arizona valued in excess of $50,000
Upon the foregoing, I find that at all times material
herein the Respondent has been an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act
II THE LABOR ORGANIZATION INVOLVED
United Cement, Lime and Gypsum Workers Interna-
tional Union, AFL-CIO , is conceded to be a labor
organization within the meaning of Section 2(5) of the Act
I so find
III THE UNFAIR LABOR PRACTICES
A The Issues
The initial issue in this case is whether certain conduct
on the part of certain supervisors of Respondent violated
Section 8(a)(1) of the Act Subsumed in this issue is the
question of whether Wayne Cness was at material times a
supervisor within the meaning of the Act
1 The motion of counsel for the General Counsel to correct the transcript
of the proceedings in several particulars is granted
SANTA RITA MINING CO 1073
The complaint also raises the issue of whether or not the
termination of Frank Figueroa, effectuated on October 15,
1971,2 and the November 4 terminations of employees
Bukowski, Spargo, Switzer, and Townsend were violative
of Section 8(a)(3) of the Act
The Respondent denies the commission of any unfair
labor practices and initially contends that the evidence
does not support the General Counsel's 8(a)(1) conten-
tions With respect to the alleged unlawful terminations,
Respondent contends that the termination of Frank
Figueroa was accomplished solely for cause arising from
his insubordination, and that the managing agent of
Respondent who decided upon and directed the termina-
tions of November 4 had no knowledge of the asserted
union activities of the individual employees whom he
selected for layoff Respondent further contends that, in
any event, the layoffs were a part of a reduction in force
decided upon for legitimate business reasons and were in
no manner associated with the organizational efforts of the
employees or the Union
B Pertinent Facts
1 Background facts
a Respondent's operations
Home-Stake Production Company operates three mines
located in the State of Arizona and one located in Mexico
Jack Robison is the senior vice president of Home-Stake
Production Company and is vice president of Santa Rita
Mining Company Robison resides in Tucson, Arizona,
where the administrative offices of the Respondent are
located Robison entered the employment of Home-Stake
on March 1
The mining operation of Respondent pertinent herein is
situated at Helvetia, Arizona Respondent's operation of
the property dates from February 18, on which date it
assumed ownership from Sierrita Mining Company, a
separate company with no common ownership The
Helvetia property consists of a limestone deposit or quarry
located at an elevation of 4,000 feet and crushing, kiln, and
production sections The limestone deposit is accessible
from the operating site by a road
Gordon Aplin is plant manager of the Helvetia operation
and he reports directly to Robison The plant superinten
dent at pertinent times has been Buck Rosson, who has
direction over the plant maintenance, product hauling,
kiln, and crusher departments Rosson reports directly to
Aplin Abe Day has been at relevant times the pit
superintendent and is in charge of the drilling, blasting,
loading, and hauling phases of Respondent's operation
From its operation Respondent derives two principal
products which it sells commercially Product 800, oxide of
lime, or burnt limestone, is Respondent's final product and
is sold to Duval Corporation at its Esperanza and Siemta
operations The product 500 flux is a metallic flux, which is
a waste material derived from the crushing process to
which the primary material is subjected It is sold to copper
smelters for use in the production of copper
Productions commenced at the Helvetia site in August
1971 Respondent made its first commercial shipment to
customers on August 13, 1971
The normal workweek in Respondent's operation is 44
hours At pertinent times prior to November 5, approxi-
mately 22-28 employees were employed In October and
November, 14 employees worked under the supervision of
Buck Rosson, and a similar number worked in the pit
operation under the direction of Abe Day
David Spargo was, at times prior to November 5, the
leadman in the pit 3 Frank Figueroa worked in the pit
operation under Abe Day as did John Bukowski and Jan
Switzer 4 David Townsend was employed as a welder and
as a kiln helper He worked under the direction of Buck
Rosson
In the quarry are employed drillers, loaders, and truck
haulers By virtue of a blasting operation conducted in the
quarry, limestone in the quarry is reduced to rock size
proportions of approximately 24 to 35 inches in diameter
This and residual material known as "fines" is loaded into
trucks at the quarry and transported from the quarry or pit
area to the production area where it is deposited into a
stockpile with a capacity of 4,000 tons of crushed material
The stockpile is located proximate to the primary crusher
In turn, by means of a front-end loader, material from the
stockpile is deposited into a feedbin ahead of the primary
crusher The material is then processed through the
primary crusher and, by virtue of a sorting technique, is
separated by size and deposited into one of two stockpiles
The material which is small enough is, in due course, fed
from one stockpile to the kiln, while larger material is
processed directly through a secondary crusher which
serves as a final reduction crusher This material ultimately
finds its way to the proper stockpile Residual or "fines"
material which is too small for the kiln is rejected into a
fines bin and the material is designated as "500 flux "
Raw material is stockpiled for backup purposes to feed
the kiln in the event of a malfunction or equipment
breakdown in the quarry Kiln-size material is stockpiled to
meet the exigencies of a breakdown in the crushing
operation and to meet the 24-hour, 7-day-a-week demands
of the kiln
In essence, by virtue of the application of heat to the raw
material processed through the rotary kiln, the raw
material fed into the kiln is reduced to crystalline size In
turn, through a further icess of heat transfer, radiation,
and cooling, Respondent's final product, Product 800, is
achieved This is stored in large storage bins The product
is drawn from the storage bins into trucks for final
shipment to Respondent' s customers The material in the
bins can be safely stored at the Helvetia site in storage bins
without deterioration for approximately 60 days Each bin
has the approximate capacity of 2,800 tons 5
2 Unless otherwise specifically noted, all dates herein refer to the 4 Switzer s given name is Harold but he is generally known as Jan
calendar year 197-1 5 The findings with respect to the quarry, kiln delivery, and storage
3 In substance Respondent concedes that Spargo was a rank-and file procedures is based upon credited and unrefuted testimony of Gordon
employee Aplin
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b The supervisory status of Criess
In October and November 1971, Wayne Cness was
employed in Respondent's shop at the Helvetia operation
which was under the direction of Buck Rosson Criess, Bill
Malone, and Bill Clarke comprised the complement in the
shop Criess was designated as a leadman in the mainte-
nance section of the shop and was the highest paid shop
employee As the workload required, other employees were
transferred temporarily to the shop to perform mainte-
nance duty In addition, equipment brought to the shop
from the mine area was often manned by the equipment
operators who assisted shop personnel in making repairs
on the equipment Each morning, prior to the commence-
ment of the workday, Rosson met with Criess in Rosson's
office and the maintenance work necessary to be per-
formed during the day was evaluated Rosson determined
the work assignments which were to be made No work
was performed in the shop without the approval of Rosson,
and, in the event of a breakdown in any part of the
operation, Rosson possessed the responsibility for securing
additional help or transferring men to do essential
maintenance or repair work Cness performed plant
maintenance and welding work and served as a conduit for
Rosson's daily work assignments and instructions Cness
had no authority to hire or to terminate employees and
directed employees only to the extent that Rosson
instructed him to do so Criess had never recommended
any employee for a raise or for discipline 6
Upon the foregoing, I find that at material times Wayne
Cness was a rank-and-file employee and not a supervisor
within the meaning of the Act 7
c The Union's organizational effort
The effort of the Union to organize Respondent's
employees at the Helvetia operation commenced in July
Dave Hart, a representative of the Union, spoke with
employees and met with them periodically at the roadside
near the entrance to the plant There was a great deal of
talk and speculation about the Union among the employ-
ees employed in the pit and those employed as truckdn-
vers In the early part of October, union literature was
circulated by employees at the plant Several employees
circulated union authorization cards among their fellow
employees and authorization cards were signed In mid-
October, a meeting between union representatives and
Respondent's employees was held
6 The foregoing is based upon a composite of the credited testimony of
Buck Rosson Wayne Criess and Gordon Aplin Criess testified that he
would, on occasion instruct employees Malone and Clarke in the
performance of shop work but the testimony of record, including that
relating to the extent of Rosson s authority and his daily determination of
work assignments reveals that the instructions emanating from Cness were
routine in nature
r I have considered the fact that Buck Rosson appears to have described
Criess as the shop maintenance foreman in his pretrial affidavit This
evidence, viewed in context of Criess actual duties and responsibilities, is
not determinative of Cness actual status
8 The foregoing is based upon the credited and undisputed testimony of
Buck Rosson
9 The foregoing is based upon the credited and undisputed testimony of
Abe Day The record does not reflect the date when Day first learned of the
Union s organizational effort nor does it reflect the date of Day s
conversation with Hart and his receipt of the piece of paper
On the day of the union meetmg, or a day or two prior
thereto, employees Ehlers, White, and Francis had a
chance meeting with Gordon Aplm and Buck Rosson at a
tavern, and they conversed In the presence of Aphn and
Rosson, one of the employees inquired of another
employee concerning the time of the union meetmg Aplm
replied, in substance, that he was glad that the employees
were going to the meeting in that they should "go down"
and find out as much about the Union as possible for their
own benefit
Buck Rosson first learned of the union organizational
effort when employee Edens stopped by the shop and
inquired if Rosson knew that "someone" was trying to
organize the employees This transpired in August or
September On the occasion in question, Edens informed
Rosson that some union literature had been placed in his
automobile and that he had, in turn, placed it in Rosson's
automobile Rosson went to his automobile and found the
literature on the seat of the car Subsequent thereto, Edens
informed Rosson that Dave Hart had been to his home
Rosson was noncommittal 8
Abe Day first became aware of the Union's efforts to
organize the employees when he observed Dave Hart
stopping employees along the roadside leading to the plant
On one occasion, Hart requested Day to stop Day did so
and spoke with Hart Hart gave Day a "piece of paper"
and told Day that the Union was going to organize the
Company Day took the paper back to his office the next
morning and placed it on his desk 9
In mid-October, Day and employee David Spargo were
standing in the pit, and Day said, "I wonder what Switzer's
position is with the Union" Spargo responded that he did
not know but observed that if he were Switzer he'd "be 100
per cent for it " Spargo explained that he would be so
disposed if he were Switzer because Abe Day was ready to
fire Switzer Day responded that he had no intention of
firing Switzer He added that he was not going to terminate
Switzer because he was doing a goodjob 10
Aphn testified he had "hearsay" knowledge concerning
the union organizational effort Rosson initially informed
Aphn of the Union's efforts Aplin also learned that a
union meeting was to be held at a motel in Tucson and that
Ehlers and Spargo were going to attend the meeting ii He
testified that he did not inform Robison of the Union's
organizing a campaign and gave as his reason the fact that
he had "an obligation" to the employees Moreover, Aphn
testified that it had been his practice not to do anything
is The foregoing is based upon the credited and undisputed testimony of
David Spargo
Spargo credibly testified that several months prior to October 1971
employees Jan Switzer, John Helton , and Larry Dugan refused to cross a
picket line at Respondents operation The three employees ultimately
returned to work Thereafter, Helton and Dugan were terminated
Subsequently, in the month of June 1971 , following the termination of
Helton and Dugan , Spargo witnessed a conversation between Abe Day and
Buck Rosson Rosson commented to Day, `You might as well get rid of the
other one, too What s his name, Switzer') Day responded that Switzer was
a good man and was doing a good job and there would be no reason to let
him go
ii Aplin so credibly testified Aplin further testified that in October
information concerning the identity of certain employees active in the union
organizational effort had been proffered to hun He testified that Ehlers had
been `implicated and surmised that Figueroa had been designated
SANTA RITA MINING CO
"detrimental" to the employees He testified further, in
substance, that his abstention from informing Robison was
attributable, in part, to the absence of an open channel of
communication and close communicative relationship
between him and Robison Aplin further testified that he
did not know of his own knowledge whether Robison knew
of the Union's effort
Robison denied having any personal knowledge of any
union organizational activity at the plant He testified, in
substance, that he first became aware of the union
campaign when he received the complaint which gave rise
to the instant proceeding
d Dye and Aphn meet
In late October, Herb Dye, a representative of Respon-
dent headquartered in Tulsa and in charge of procurement
for Respondent, visited Respondent's Helvetia location
and spoke with Aphn The conversation related principally
to substantive matters pertaining to equipment, but during
the course of the meeting Aplm discussed with Dye the fact
that the Union was endeavoring to organize the plant and
was conducting an organizing campaign Dye asked Aphu
the names of the employees who were trying to organize
and Aplin informed him that he did not know 12
2 Interference, restraint, and coercion
a The conduct of Aphn
In mid-October, on the day of the union meeting or the
day prior thereto, Spargo engaged in a conversation with
Aphn in Aplin's office Abe Day was present During the
course of the conversation, Spargo noted that there was a
great deal of dissension among the employees because the
Company had not disclosed to the employees the fringe
benefits, including hospitalization and pension plans,
which the Company was willing to offer the employees
Aplin responded that he had requested Herb Dye to obtain
the information and to permit him to present it to the
employees Aplm further stated that Dye had informed
him that the Company was not making any money and
that they were looking for an excuse to shut the operation
down Aplin added that Dye stated that, if the Union got
in, the operation would shut down and "we'd all be out of
a job " Aplin stated, in substance, to Spargo that he had
been directed to formulate a pay scale and a benefits plan
which he had thought he was going to be able to
implement Aplin added that Herb Dye had instructed him
during his visit to find out about "these Union men" and to
12 The testimony of Gordon Aplin establishes the foregoing
13 The foregoing is based principally upon the credited testimony of
David Spargo I rely upon the testimony of Gordon Aplm to the extent that
it is consistent with the foregoing findings I find Spargo s description of the
substantive aspects of the conversation more convincing than the truncated
account of Aplin Thus, I am convinced that Spargo accurately described
the discussion of the Union and of Herb Dye s instructions and comments
which transpired at the meeting I credit Aphn as to the approximate date of
this conversation Spargo was not definitive in this regard Abe Day did not
testify concerning this incident
14 The foregoing is based upon the credited testimony of Robert Ehlers
Buck Rosson was unable to recall these conversations I am convinced
however that Ehlers account of these conversations was accurate
Nevertheless I am convinced contrary to Ehlers testimony on direct
examination, that Rosson did not state to Ehlers during the initial
1075
do whatever was necessary to stop the union organizational
effort Aplin added during his comments to Spargo that he
had to have a reason to terminate an employee and that he
just couldn't go out and "fire him," but that Herb Dye
could "pull reasons out of his pocket to fire a man" 13
b The conduct of Rosson
In the latter part of September, employee Ehlers was in
the shop prior to quitting time when Rosson asked him if
he had joined the Union or signed a union card Ehlers
answered that he had, and Rosson and Ehlers proceeded to
discuss the Union
Additionally during the month of September, as Ehlers
was going to his assigned work at the lime burner, he spoke
with Rosson Rosson asked Ehlers how the "union
activities" were going Ehlers stated that he wasn't "too
sure" and Rosson responded that he knew union organiz-
mg was going on and that it wouldn't do any good
In late September or early October, Ehlers spoke again
with Rosson who asked Ehlers if he had seen the union
representative around Ehlers stated that he had not seen
him for "a couple of weeks "14
On or about October 8, near the end of the shift, as
employee Dave Henry was getting ready to leave the plant,
Rosson and Henry spoke together Rosson asked if Henry
knew that some of the employees were trying to organize a
union Henry answered that he did, and Rosson asked
Henry if he could tell him the identity of the employees
Henry responded that he didn't feel that it concerned
Rosson Rosson responded, "Well, I think you're making a
mistake " Henry answered that he did not think so and
asserted that it was up to him to decide that question
There followed some further conversation and this led
Rosson to comment, "Well, you know where you'll be,
don't you9" Rosson added, "You'll be down the road"
From the context of the discussion, Henry concluded that
Rosson was alluding to employees generally and not to him
specifically 15
In early October, David Spargo conversed with Buck
Rosson in the office which Rosson and Abe Day shared
Day was present during the conversation Rosson asked
Spargo what Frank Figueroa was doing holding union
meetings in the pit Spargo responded that he didn't know
anything about it The conversation terminated on this
note 16
conversation above described that he knew who was engaging in the
organizational effort on behalf of the Union Rather I am convinced, as the
cross-examination of Ehlers reveals, Rosson spoke merely in terms of a
general union effort to organize and did not assert that he knew the identity
of the employees so engaged
15 The foregoing is based upon the credited testimony of David Henry I
have also considered the testimony of Buck Rosson which establishes that a
conversation relating to the efforts to organize the employees did transpire
between Rosson and Henry I am convinced upon an analysis of the
testimony of Henry and of Rosson that Henry s account of the conversation
was the more accurate
16 The foregoing is based upon the credited testimony of David Spargo
Abe Day was not interrogated concerning this incident, and Rosson had no
recollection of it However Rosson did not specifically deny the occurrence
and Spargo testified convincingly concerning it
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusions
Upon the foregoing I find that by and through the
conduct of its agents, Gordon Aplin and Buck Rosson,
Respondent violated Section 8(a)(l) of the Act Initially, I
find that, during his conversation with Spargo on the day
of the union meeting, Aplin articulated the threat that
operations would shut down if the Union successfully
organized the employees From the context of Aplin's
statement, it is clear that the eventuality of plant closure
was linked solely to the employees' choice of the Union to
represent them and was not predicated on demonstrable
economic realities separate from union considerations
This fact is emphasized by Aplin's accompanying com-
ments to Spargo containing assurances that he, Aplm,
thought he was going to be able to implement a pay and
benefit plan which he had been directed to prepare The
reasonable thrust or inference of Aplm's comments was
that operations would continue and benefits granted if the
employees abstained from selecting a union This latter
comment constituted a promise of benefits violative of
Section 8(a)(1) of the Act
Similarly, I find violative of Section 8(a)(1) of the Act
Buck Rosson's threat to employee Henry, on or about
October 8, to the effect that employees would be "down
the road" if they selected a union Associated with this
threat was Rosson's unlawful interrogation of Henry, on
the occasion in question, as to the identity of employees
seeking to organize the Union Rosson similarly violated
the Act in late September by inquiring into the union
activities of employee Ehlers and by interrogating Spargo
in early October concerning his knowledge of Figueroa's
union activities "in the pit " Moreover, Rosson twice
inquired into Ehlers' knowledge of the progress or status of
the union effort By so doing, Rosson unlawfully created
the impression of surveillance of the union activities of
employees 17
3 The alleged discriminatory discharges
a The termination of Figueroa
(1) His union activities
Frank Figueroa entered Respondent's employ on August
17, 1970 He was first assigned to performing oddjobs and
soon thereafter started driving a Euclid truck Intermittent-
ly, he also operated a front-end loader In the early phases
of his employment, he sought a raise from Frank McGee
who was, at that point in time, his supervisor Figueroa's
raise was denied
On Labor Day, September 6, Figueroa spoke with Dave
Hart, the union representative Hart came to Figueroa's
home and explained to Figueroa the benefits of the Union
and the advantages of affiliating with the Union Figueroa
signed a union authorization card
The following day, September 7, Figueroa returned to
17 I do not find violative of the Act Aphn s inquiry of Spargo as to
whether he was going to attend the union meeting held in mid October This
statement was not alleged in the complaint as constituting a violation and
evidence concerning it was adduced after the General Counsel had rested
is The foregoing is based upon a composite of the credited testimony of
Frank Figueroa Robert Ehlers Jan Switzer and John Bukowski
work from a vacation which he had commenced in August
Thereafter, at the plant Figueroa distributed union
literature and, during his lunch hour and prior to and after
work, he spoke with several employees, including Bukow-
ski, Switzer , and Spargo concerning the Union
Specifically, in mid-September, he spoke to employee
Ehlers in the shop inquiring if Ehlers had joined the Umon
or had signed a card He spoke many times with Switzer
about the Union
On one occasion, on or about October 12, after the day's
shift had been completed, Figueroa and two other
employees, including Jan Switzer, conversed with Glen
Henry in an effort to convince him tojoin the Union The
conversation transpired near the mine office after it had
closed During the course of the conversation, Aplin came
out of the office 18
(2) Alleged work deficiencies
Pursuant to Respondent 's operating directives , operators
of equipment were required to either grease or assist in
greasing the equipment to which they were assigned At a
point in time during Figueroa's employment , the service-
man complained to Day concerning Figueroa's refusal to
cooperate in greasing the loader to which he was assigned
In July, Day spoke to Figueroa concerning this Day
instructed Figueroa that, like the other operators, he was
required to grease the loader to which he was assigned
Figueroa responded that he didn 't like to get grease on his
hands 19
Day again spoke to Figueroa concerning his work after
he had noticed that Figueroa, in operating the loader in the
pit, was dropping "a lot of big rock in an empty truck bed"
rather than rolling them in The optimum method for
loading the truck was to fill the truckbed with finer rock to
serve as a cushion in the bed before placing large rocks in
the truck Upon observing Figueroa's loading techniques,
Day stopped Figueroa and cautioned him that because the
truck beds were old they would probably "break up" if
Figueroa loaded the trucks in the manner observed
Figueroa responded, in effect, that perhaps, in that event,
the Company would get some new trucks
Spargo also had occasion to speak with Figueroa
concerning the manner in which he loaded the trucks
The material available for loading in the pit varies from
one time to another There are invariably large boulders to
be loaded, but finer material is not always available to be
placed in the truck bed as a cushion to the larger material
Additionally, the loading areas are congested and often the
operator in loading the trucks must load what material is
accessible to him
When supervision spoke to Figueroa concerning his
loading techniques , he explained that he was not loading
the larger material on purpose but that he was loading the
material available to him 20
Subsequently, Day spoke to Figueroa concerning Figuer-
19 The foregoing is based upon the credited testimony of Abe Day
David Spargo credibly testified that while Figueroa did complain about
having to grease the equipment this was a routine and not unusual
complaint on the part of all operators
20 The foregoing is based upon a composite of the testimony of Abe Day,
Dave Spargo and Frank Figueroa With respect to the loading conditions in
SANTA RITA MINING CO
oa's practice of spotting or positioning the trucks which
came to the pit to be loaded with material It was
Figueroa's practice to instruct the truckdnvers where and
how to park their vehicles Day criticized Figueroa for
engaging in the practice, and Spargo mentioned to
Figueroa that he had been "wrong" in what he was doing
with the truckdnvers Spargo suggested that he should stop
it Figueroa explained to Spargo that because the Company
was training new truckdrivers who often did not know
where to park, he was assisting them in order to avoid a
slowdown in the loading process 21
In order to provide the employees in the pit with
drinking water, the Company acquired an ice machine and
placed it in the employees' change room where they could
fill their water cans with water By placing ice in the filled
water cans and placing the water cans in the trucks, water
could be made available to the employees Nevertheless,
complaints arose among the employees concerning the
unavailability of water in the pit and Day assigned
employee Bukowski to handle the water In the meantime,
Spargo had spoken with Figueroa concerning the need to
fill the water can Spargo instructed Figueroa to do so
Figueroa responded by asking Spargo the time of day He
did not fill the water can
Subsequently, Spargo informed Day that Figueroa was
complaining about not having water in the pit Thereafter,
Spargo reported to Day that he had requested Figueroa to
put the water can in the truck According to Day's
summation of Spargo's report, Figueroa had, in substance,
declined, stating, "Oh, well, let the old man put it in, he
don't have anything else to do "22
In mid-September, the loader to which Figueroa was
assigned broke down For a period of 2 or 3 weeks, the
loader was inoperative, undergoing repairs When the
loader was placed back in service, Figueroa was not
assigned to it After the passage of approximately a week,
Figueroa spoke to Abe Day and asked Day if he were
going to be reassigned to the loader Day responded that
employee John Francis was a better operator and had
mechanical skills also Day stated that for this reason
Francis "could keep up with the machine" and would
remain assigned to the loader Day noted, however, that
Figueroa's pay remained the same
The loader in question had broken down frequently
during the time Figueroa was assigned to operate it The
bucket of the loader was a source of difficulty but the 0-
rings were a principal cause of breakdown 23 Figueroa was
the pit and the variations in the availability of different types of material for
loading I rely upon the testimony of Spargo and Figueroa I credit Figueroa
to the effect that he explained to supervision the difficulties he encountered
in finding material to load into the truck to cushion the impact of the larger
rocks but I find nothing in Figueroa s testimony denying Day s assertion
that Figueroa tended to drop the boulders into the truckbed rather than
rolling them in
21 The foregoing is based upon the credited testimony of Frank Figueroa
and Abe Day
22 The foregoing is based primarily upon the credited testimony of Abe
Day as supported by that of Frank Figueroa David Spargo did not testify
concerning this incident In finding that Figueroa complained about the
absence of water I credit Figueroa Moreover, Figueroa s testimony
establishes that Spargo instructed Figueroa to fill a watering can and
Figueroa s declination Figueroa could not remember responding to Spargo
by making reference to the old man
23 In use at the mine, Respondent had two front end loaders , as well as
1077
designated by other employees as the "O-ring man"
because of the number of breakdowns attributable to the
0-rings of the loader to which he was assigned 24
(3) Supervision discuss Figueroa
On or about October 13 or 14, Day spoke with Aplin and
attributed the breakdown of a piece of equipment to
Figueroa Day asserted that Figueroa had mistreated the
equipment Day and Aplin conferred together and, after
the consultation, Aplin made the decision to terminate
Figueroa
Commencing in August, Aplin had begun receiving
adverse reports concerning Figueroa's "mistreatment" of
equipment and "insubordination " Day had spoken to
Aphn concerning Figueroa several times The initial
conversation transpired a few weeks after Figueroa' s return
to work in the month of July from an accident which he
had experienced Day reported to Aplin that he considered
Figueroa "a little rough on equipment" and spoke to Aplin
concerning the manner in which Figueroa handled his
equipment and his attitude toward his work This included
Day's charge of "insubordination" on Figueroa's part and
Figueroa's practice of "positioning of trucks" in the pit
Approximately 2 weeks later, Day again conversed with
Aphn in this vein A few days prior to the conference at
which the decision to terminate Figueroa was reached, Day
and Aplin had conversed about the nature of Figueroa's
work
In his capacity as leadman in the pit, David Spargo
found it necessary to speak with Figueroa about his work
every "two or three days " These conversations related
principally to Figueroa's attitude toward his job and
toward the Company Encompassed within Figueroa's
attitude was his dissatisfaction over the rate of pay and
about the "way he was being worked on the equipment "25
Abe Day testified that the "last straw" was the
information which came to his attention concerning
Figueroa's refusal to fill the water cans Pursuant to the
consultation between Aplin and Day, a termination slip
was prepared showing the reason for Figueroa's termina-
tion as "a reduction in personnel "
(4) Figueroa's termination
Thereafter, on October 15, Day spoke with Figueroa
approximately 90 minutes prior to the end of the shift He
instructed Figueroa that he desired to speak with him at
trucks, caterpillars, Euclids, bulldozers and two plant trucks Aplin testified
that the Company had had better luck with the other front-end loader
than the front end loader to which Figueroa had been assigned He
conceded that all of the equipment developed mechanical trouble to some
extent
24 The foregoing is based upon the credited and unrefuted testimony of
Frank Figueroa The testimony of David Spargo supports the testimony of
Figueroa concerning the frequency of breakdowns experienced with the
front-end loader Spargo testified that an axle of a loader had broken down
but that he was not certain whether or not Figueroa was assigned to the
loader at the time He further testified that the axle could have been broken
for 2 or 3 months before it was detected or had rendered the loader
inoperative
25 The foregoing with respect to the consultation between Aplin and Day
is based upon a composite of the testimony of Gordon Aplin and Abe Day
I credit the testimony of David Spargo with respect to his frequent
consultation with Figueroa concerning his work
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the end of the workday Figueroa met with Day at the
termination of the shift Day informed Figueroa that it had
been decided to lay him off Day explained that Figueroa
was not being terminated but was being laid off pursuant
to instructions to effectuate a reduction in force Figueroa
responded that he had "seniority" but Day responded, in
substance, that the layoff was necessary
Thereafter, Figueroa spoke with Buck Rosson and Abe
Day He again asked Day if he could give a "better reason"
for laying him off, because he was not convinced that a
reduction in force was the reason Speaking to Rosson,
Figueroa asked if he thought the reduction in force reason
was a valid one Rosson answered in the affirmative and
added that it sounded "good enough" to him Rosson
asserted that Figueroa had been "dragging," but Figueroa
denied this 26
John Bukowski testified that in March 1971, prior to the
time Abe Day succeeded Frank McGee as pit superinten-
dent, he conversed with McGee about Figueroa McGee
characterized Figueroa as "the best operator" he had had
"up there on the hill "
On the other hand, Day testified that Figueroa never
"took an assignment with any grace" and that he always
had something to say when he was given an assignment, or
he would respond that it was not hisjob
Conclusions
I find in agreement with the General Counsel that
Respondent violated Section 8(a)(3) of the Act by
terminating Frank Figueroa
Initially, with respect to Figueroa, it is requisite to find
both that he was an active union proponent and that
Gordon Aplin and Abe Day, who together decided upon
his termination, were aware of his union advocacy The
record as a whole establishes Respondent's opposition to
the Union, an opposition which was more keenly felt at
upper management level than at the more localized situs of
managerial and supervisory authority In this regard, there
is reason enough in the record for finding "home office"
opposition to the unionization of the still unorganized
Helvetia operation, and I am convinced that this opposi-
tion manifested itself in Aplm's decision to terminate
Figueroa Aplin was aware of the Respondent's inhospita-
ble reaction to earlier employee picketing and he had been
instructed to take necessary steps to prevent the successful
organization of the Helvetia operation Although perhaps
personally reluctant to visit retribution upon Figueroa for
his union activities, Aplin knew that higher management
opposed the Union and was seeking to reduce the number
of employees The conclusion is, therefore, justified that
when given an excuse for terminating Figueroa who, as
found, was a leading union advocate, Aplin in consultation
with Day seized upon Figueroa's asserted derelictions of
duty to justify the termination However, this was a
26 The foregoing is based upon a composite of the credited testimony of
Abe Day and Frank Figueroa I am convinced that in mfornung Figueroa
of his layoff, Day advanced a reduction in force as the reason Figueroa s
testimony supports Day in this regard However I am not convinced that
as Figueroa testified Day did Day asserted when pressed by Figueroa for a
fuller explanation of the bases for his selection that it had been necessary to
lay somebody off and that it might as well be Figueroa Rather I am
pretextual exercise When Figueroa was terminated, no
decision had been reached governing an orderly , business-
related reduction in force This decision was not to come
until 3 weeks later In the meantime, Figueroa did nothing
so untoward as an employee as would have given an
objective employer concerned solely with the maintenance
of an effective and efficient work force basis for terminat-
ing his employment It strains matters to conclude that the
watering can incident was of so serious a character as to
have moved Abe Day and Gordon Aphn to dispense with
Figueroa 's services And Figueroa's work record as well as
his general attitude toward his work had not' been so
flawed as to have reasonably motivated management to
dispense with Figueroa 's services without giving him the
benefit of a warning and a bona fide opportunity to mend
his attitude and conduct It is to be remembered that
Figueroa had accorded Abe Day a reasonable explanation
for his failure to follow optimum procedure for loading
trucks in the pit, and Figueroa appears to have been more
a victim than an abuser of the aging rolling stock with
which he and other employees experienced difficulty
Clearly, Figueroa's attitude toward the greasing and care
of equipment was common to other employees, and his
efforts, officious though they may have been, in directing
drivers in the positioning of trucks in the pit appear to have
been innocuous and well meaning enough
The Respondent was, of course, free to terminate
Figueroa for any nondiscriminatory reason Motive often
and usually is inferred from all surrounding facts and
circumstances Figueroa may well not have been a model
employee He may well have been dispensable However,
he was a known and leading advocate of the Union who
had been observed conducting " union meetings in the pit "
When he was terminated , the union effort was intensifying
There was in effect at the time no company policy for
reducing, except through attrition, the work force at the
mine When carefully scrutinized, Figueroa's record had
not been one which necessitated punitive action The
offenses for which he was assertedly terminated, if not
palid, were barely florid He was not counseled or warned
in advance that, lest he improve, he faced severance His
termination was abruptly and unceremoniously effectuat-
ed 27
In all the circumstances , I conclude Frank Figueroa's
termination was pretextual and discriminatory within the
meaning of Section 8(a)(1) and (3) of the Act
b The November 4 terminations
(1) The employees involved
On November 4, the Respondent terminated the employ-
ment of Messrs Bukowski, Spargo, Switzer, Townsend,
Francis, Liebengood, and Thelin 28
As found, Spargo was employed as the leadman in the
quarry He was first employed in July 1971 Bukowski and
convinced that Day responded in substance that in the circumstances, the
layoff was necessary
27 Respondent s records list Figueroa s severance as a reduction in force
and not as a termination for cause The testimony of Aplin and Day cast it
in the latter light This contradiction is itself revealing
28 The three latter named employees are not alleged herein as having
been discrinunatorily terminated
SANTA RITA MINING CO 1079
Townsend were employed in December 1970, while Switzer
entered Respondent's employ in July 1971 Like Spargo,
Bukowski was also employed in the quarry He was utilized
in performing a variety of jobs, including driving and the
operation of equipment Francis was a quarry loader and
Liebengood worked as a crusher and a driver Switzer was
a quarry driller and Thehn and Townsend kiln helpers
(2) Union activities
Bukowski, Spargo, Switzer, and Townsend each signed
union authorization cards29 and each of the four employ-
ees was active at the mine in endeavoring to obtain the
signatures of fellow employees Additionally, Spargo spoke
to employees about the advantages of a union, asserting
that the Company had promised benefits which would not
be put into effect unless the employees obtained union
representation Likewise, Townsend spoke to two fellow
employees concerning the Union, asserting that he was not
certain whether he personally wanted a union or not He
had noted, however, that he thought it was desirable for
employees to sign cards in order to bung the "matter to a
head and get it over with one way or the other " Bukowski,
Switzer, and Townsend were each instrumental in distrib-
uting union literature among the employees at the mine In
this regard, Bukowski placed union literature in parked
automobiles at the mine and in the washroom, while
Switzer, on two separate occasions, also took literature to
the mine premises and showed and distributed it to
employees These distributions occurred in September and
October, approximately a month apart On one occasion,
Townsend brought union literature to the mine premises
and placed it in the operator's room in the kiln After doing
so, he left the controlroom and when he returned Rosson
was in the room The literature was gone Four employees,
including employee Ehlers, had observed Townsend place
the literature in the operator's room and Ehlers subse-
quently informed Townsend that he had taken the
literature away when he had seen Rosson entering the
room Ehlers stated he had done so because he assumed
that Rosson would "get mad" and terminate one of the
employees if he saw the literature
In September or October, Switzer stopped alongside the
road near the gate to the mine and spoke with Dave Hart,
the representative of the Union While Hart and Switzer
were conversing, Abe Day passed by along the road
Neither Bukowski nor Townsend ever engaged in discus-
sion with supervision concerning the Union 30
The record does not reveal whether or not Francis,
29 Switzer signed his card in August while Spargo executed his card in
early October The record does not reveal when Bukowski or Townsend
signed their authorization cards but the inference of record is that
Bukowski was an early signer, while Townsend affixed his signature to his
authorization card at a later stage of the organizational campaign
30 The foregoing is based upon a composite of the credited testimony of
John Bukowski David Spargo, Jan Switzer, and David Townsend
Spargo credibly testified to two separate conversations which he had with
Kenneth Cness the leadman in the shop, concerning the Union During the
first conversation Criess stated to Spargo that he hoped the Union wouldn t
get in Spargo responded in substance that whereas Cness didn t need a
union this was not true of all of the employees on the job Spargo conceded
that he may have initiated the conversation by asking Criess how he felt
about the Union The second conversation which transpired a few days
later on the day of the union meeting which employees of Respondent
Liebengood, or Thehn signed union authorization cards or
were in any manner active on behalf of the Union
(3) The reduction-in-force decision
Shortly after he assumed his duties as pit superintendent
on May 15, Day spoke with Jack Robison, vice president
of Respondent Robison informed Day that the number of
pit personnel had to be cut to eight men In this regard,
Robison stated that this was necessary because of "too
much overhead " Day was successful in delaying the
implementation of Robison's directive by convincing
Robison that a "certain amount of overburden" had to be
removed in order to facilitate the commencement of actual
operations This removal had been substantially but not
wholly achieved in November
Robison personally made the decision to effectuate the
terminations which resulted on November 4 He selected
the employees for termination and did not consult with
Aphn, Day, Rosson, or any other supervisor
On Monday, November 1, he met with Aplm in his
Tucson office for the purpose of receiving from Aplm a
"routine report" concerning a separate matter After Aplin
had completed his report to Robison, Robison told Aplm
that seven employees were going to be laid off and he
presented a list containing seven names to Aplm Robison
instructed Aphn not to "fight it" but to "accept it" because
this was "the way" the Company had to go for "obvious
economic reasons " Aphn was instructed by Robison to
delay the effectuation of the terminations until the
paychecks had been prepared Thereafter, the necessary
information was sent to the Tulsa office and checks were
written and returned to the Helvetia operation 31
(4) The bases of the selection
Robison testified that the selection of employees for
layoff was based partly on "company service" and partly
on "qualifications " Robison testified, in substance, that
the application of these bases to the seven employees
included in the reduction in force vaned
Robison further testified that the Company maintains no
written seniority lists but that he had "one of his own " He
additionally testified that he retained employees who had
less company service than employees who were laid off
Robison testified that he selected Bukowski for layoff
because he was "one of the juniors" with less service and
that the Company had other employees who could do
"multiple jobs at the quarry" such as driving and operating
attended Spargo and Cness spoke together in the presence of employee
Henry Cness walked up to Spargo and Henry and said I wish you old
boys good luck at the union meeting tonight You re going to need it '
Spargo responded To each his own Spargo conceded that it was not
unusual for employees to openly discuss the Union and that it was
conceivable that on this latter occasion he and Henry may have been
talking about the union meeting in Criess presence Spargo testified that
Cness acted kind of huffy about it
31 The foregoing with respect to the conversation between Day and
Robison is based upon the credited and undisputed testimony of Abe Day
The mutually corroborating testimony of Gordon Aplin and Jack Robison
establishes the nature and content of the meeting between them on
November I I find upon the basis of their testimony that Robison did not
consult with Aphn concerning either the necessity of a reduction in force or
the identity of the individuals to be included therein
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other equipment Robison testified that Bukowski was not
qualified to do this
With respect to the selection of Spargo, Robison testified
that Spargo was a "second man" to Abe Day and that two
men to supervise the employees in the quarry were not
necessary Robison further testified, in substance, that he
considered Spargo's duties to assign work to employees in
the quarry an integral part of his responsibility and that
with Abe Day's presence and with the quarry only
"working half the time" the need for Spargo's services was
reduced Robison additionally testified that, as Spargo was
the highest paid employee in the quarry, he was "eliminat-
ing some more expense" by terminating Spargo
Robison testified that Switzer was a quarry driller and
was a "junior " He further testified that the Company
needed "people with multiple jobs" and that, after the
Company obtained its new power drill, only one drill and
operator were needed
In early September, employees Switzer and Wilson were
employed as drillers The Respondent obtained a new
pneumatic drill which was more efficient than the older
drill which it replaced The new drill was assigned to
Switzer Switzer was terminated while Wilson was retained
in Respondent's employ In substance, Aplin conceded
that the superior driller was terminated
The selection of Townsend for termination, according to
the testimony of Robison, was based upon Robison's
understanding that as a kiln helper Townsend had had no
experience in the quarry and that his records did not show
that he had worked in a mine In substance, Robison
testified that Townsend would not be as valuable to the
Company as an employee who had quarry experience
Additionally, according to Robison, the job as kiln helper
is not a skilled one
(5) The economic consideration
Soon after assuming his duties with Respondent,
Robison made a study of the Helvetia operation and found
it overstaffed and inefficient In April 1971, before Gordon
Aplin joined Respondent's staff, Robison commissioned
Aplin to prepare a cost analysis report Aplin's report
revealed that it would be uneconomic to operate the kiln at
less than 200 tons per day In the week ending October 10,
the storage bins had reached full storage capacity To
counter this condition production was severely curtailed
during the following week and in the week ending October
24 no production was attempted
In the beginning, Duval Corporation was Respondent's
only customer Later Kennecott Copper Corporation
ordered material The sales staff held out prospects of
securing other customers
Upon assuming direction of the Helvetia operation and
completing his own personal survey of the operation,
Robison concluded that in order to determine whether the
Helvetia facility could be profitably operated it should be
fully staffed and fully activated As found, the initial
shipments were made from the facility to customers on
August 13 This followed a shakedown period during
which, on June 15, 1971, Gordon Aphn had entered
Respondent's employ as plant manager, arriving at the
Helvetia site on July 5, 1971 Subsequent to Aplin's arrival,
substantial reorganization at the managerial and superviso-
ry level was effectuated by Robison
Robison characterized the Helvetia operation as an
unprofitable one and further testified that, in order to
sustain the operation, funds were periodically transferred
from the parent company to Respondent Because, after
production commenced, prospective markets for the
products being produced at Helvetia did not materialize
and because costs made operations at less than full
capacity unprofitable, Robison assessed alternatives open
to him to achieve a financially viable operation He
concluded that a reduction in force was necessary in order
to reduce overhead He sought first to achieve this by
attrition By November 1, he had concluded that the
employee complement would have to be further reduced
by seven In conjunction with this determination, Robison
decided to reorganize the method of operating by retaining
a nucleus of employees, other than maintenance, who
could be used interchangeably and alternately in perform-
ing quarry duties and kiln duties, including the crushing
and delivering of the materials to customers
On November 4, seven employees were terminated On
November 5, 15 hourly paid production employees
remained in Respondent's employ 32
(6) The terminations accomplished
On November 4, Bukowski, Francis, Spargo, and Switzer
were working in the pit Day informed Spargo that he was
being terminated and gave Spargo some paychecks and
instructed him to give them to the employees Spargo
approached Switzer and informed Switzer that they had
been laid off and in due course Bukowski, Francis, Spargo,
and Switzer gathered at the pickup truck which Day was
driving As Switzer started to get into the pickup truck,
Day said, "I want you guys to know this-I never had
nothing to do with this " The four employees proceeded to
the office of Aplin where they met with Aplin and Rosson
Speaking to the group of employees, Aplin said, "Believe
me boys, I don't know what happened Word dust came
down, no explanation was given " Spargo distributed the
checks to the employees and the employees remained in
the office for a brief interval while they calculated the
accuracy of the amounts paid them In the course of so
doing, Spargo asked Aplin what reason the employees
could give in order to collect unemployment compensa-
tion Aphn said, "Well, reduction in force is the only
excuse I can give you" The meeting ended and the
employees left the office
Townsend also met with Aplin and Rosson in Aplin's
office In substance, Aplm and Rosson informed Town-
send that it was necessary that Townsend be laid off
Townsend was informed that it was not their desire to do
this, but that they had no control over the matter in that
the directive had come "from Tulsa " Townsend was told
that he had done a goodjob Aplin told Townsend that he
32 There is no substantial evidence of record from which it may be was worked by the remaining employees Rather, the evidence suggests it
concluded that on and after November 5 a significant amount of overtime was exceedingly minimal
SANTA RITA MINING CO 1081
would give him a letter of recommendation He later did
so 33
activities of each of the four alleged discriminatees when
he included them in his selection for accomplishing the
reduction in force which was put into effect on November
Conclusions
The November 4 terminations raise a close question I
find, as Respondent contends, that at the time the
terminations were effectuated economic exigencies necessi-
tated a reduction in force as a counter to the unfavorable
profit picture in which the Respondent found itself at the
Helvetia operation The sole issue, therefore, is whether the
alleged discrimmatees, or any of them, were included in the
reduction in force for discriminatory reasons If Respon-
dent was motivated, even in part, in selecting any of the
employees for termination because of his union activities, a
violation of Section 8(a)(3) and (1) of the Act results
The General Counsel established to my satisfaction that,
as found above, Respondent opposed unionization of the
Helvetia operation He further established that Bukowski,
Spargo, Switzer, and Townsend each were active on behalf
of the Union and did more to support the organizing effort
than merely sign an authorization card Finally, the
General Counsel adduced evidence from which it may
fairly be inferred that Robison was aware of the union
activities and advocacy of the four alleged discrimmatees
In this latter regard, it is not necessary to find specific
documentation in the record, in the form of an admission
or confession on the part of Robison, to conclude, as I do,
that, contrary to Robison's assertion, he was aware of the
union preferences of the four employees Suffice it to find
that, at the mine for a period of nearly 60 days prior to the
terminations, union efforts and discussions had been
openly conducted Supervision knew of the effort Aplin
knew of it and Herb Dye from the Tulsa home office knew
of it and opposed it The anomaly of Dye possessing
knowledge which was not possessed by Robison, the
operating vice president situated on the scene, is too
portentous to accept And while the record does not
directly establish knowledge on the part of Robison of the
specific union interests or activities of the four alleged
discriminatees, even granting the imperfections character-
izing the relationship between Aplin and Robison, the
open discussion and activity engaged in by the union
proponents made ready identification an uncomplicated
matter Opposed as management was to unionization, it
required only rudimentary efforts to detect and determine
the identity of the proponents of the Union I am
convinced that, given the avowed intention of upper level
management not to permit the unionization of the Helvetia
operation, and given the undisguised and open nature of
the involvement of the discrimmatees in union activities,
the circumstances of record are such as to warrant the
conclusion that Robison took the steps necessary to
apprise himself of the identity of employees openly
advocating the Union and that he was aware of the union
33 The foregoing with respect to the events which transpired on
November 4 surrounding the effectuation of the terminations of the
employees is based upon a composite of the credited testimony of Jan
Switzer David Spargo John Bukowski and David Townsend The
testimony of Spargo Bukowski and Switzer concerning the events which
transpired at the meeting with Aplin and Rosson in Aphn s office vanes in
some minor respects Specifically I credit the testimony of Spargo and
Bukowski that Aplin stated that the directive had come down from Tulsa
4
It is in this frame of reference that Robison's explanation
for the selection of the employees for termination on
November 4 must be evaluated It is readily apparent from
the record that, despite Robison's assertions, company
service was given no meaningful application as a factor in
determining the retention or termination of employees in
the November 4 reduction in force By his own testimony,
Robison conceded that employees were retained who had
less company service than employees who were terminated
Moreover, no effort was undertaken by Respondent to
establish at the hearing for the record comparative
company service or seniority ranking of employees in job
classifications or operating sections Thus, to this extent, in
the face of the General Counsel's prima facie case of
discrimination, Respondent failed convincingly to estab-
lish that the objective criteria of seniority or service was
actually applied as a measure in the selection of employees
for termination
In a similar manner, although the burden had shifted to
Respondent to prove that its selection was an objective one
not affected by discriminatory considerations, Respondent
relied solely upon the generalized evaluation of Robison as
to the skills, experience, and comparative capabilities of
the terminated employees and those retained No docu-
mentation was offered in the way of personnel records,
and, singularly, no testimonial fortification was sought
from supervisors who knew and had actually observed the
work of the employees terminated or retained Indeed, the
record reveals that, in point of fact, Aplin was of the
opinion that capable employees were being severed, but,
then, the record also shows that Robison had not consulted
with Aplin or, for that matter, Day or Rosson concerning
the selection of employees for termination prior to actually
reaching his decision As Robison had no intimate
knowledge of the day-to-day work skills and capabilities of
the employees, it is apparent that, in the nature of things,
his selection was not an informed one The inference is
thus warranted that it was not an entirely objective one
and that considerations external to the job skills or
competency of the employees selected were involved
The record as a whole thus fails to support the
Respondent's contention that the reduction in force was
guided entirely by objective considerations Where no
convincing explanation is proffered relating to the termina-
tions of known union proponents, and where hostility
toward the unionization efforts of employees is otherwise
established, the conclusion is warranted that the selection
of union proponents for termination was motivated, at
least in part, by discriminatory considerations
For this reason, in the absence of a more definitive
The credited and undisputed testimony of Townsend concerning Aplin s
remarks to him in his separate meeting with Aplin reveals that Aplin used
this terminology in informing him of his termination Accordingly I find
that in this regard Switzer s recollection of the statement of Aplin is not
accurate
Gordon Aplin Abe Day and Buck Rosson did not testify concerning
this incident
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
explanation of its manpower needs and the skills and
capabilities of the retained personnel, I find the General
Counsel established by the preponderance of the evidence
that termination of David Townsend was violative of
Section 8(a)(3) of the Act Townsend had welding skills
and was a kiln helper Respondent made no showing that
each of the employees retained possessed the skill,
experience , and versatility to work both in the kiln and the
quarry and to be generally interchangeable That Town-
send had been an entirely satisfactory employee is inferred
from Aplin's proffer of a letter of recommendation at the
time of Townsend's termination
Indicative of the discriminatory motivation which
accompanied Robison's selection was also the inclusion of
David Spargo, the leadman in the pit, in the roster of those
terminated There is nothing of record challenging Spar-
go's competency or versatility His workday was primarily
consumed in the performance of work tasks in the mine
and only incidentally to the routine instruction and
direction of employees in their work The clear inference of
record is that he enjoyed the confidence of Abe Day under
whom he worked He was, however, an open and avowed
advocate of the Union and was instrumental in seeking the
formulation of a wage and benefit plan He appears to
have been a leader among the employees in consulting with
Aplin in this latter regard There is sufficient basis for
inferring that Respondent, opposed to the Union, would
find these latter characteristics of advocacy and leadership
dispensable Less clear is Robison's rationale for termmat-
ing Spargo on manning or expense grounds The record
lends scant support to Robison's evaluation of Spargo's
service as being duplicative of Abe Day's duties Spargo, as
found, devoted his workday largely to rank-and-file duties
The portion of his days spent in transmitting Day's
directives was apparently minimal His skills and versatility
were undoubtedly such as to render economic, on a
comparative basis, his higher hourly wage There remained
a need for his skills and for the performance of work which
constituted the major portion of his former duties In the
circumstances, I am of the opinion, and find, that Spargo
was selected for termination not on the basis of objective,
business-related criteria, but because of his activity in and
advocacy of the Union
In a like manner, Robison designated Switzer for
termination Switzer was recognized as more capable than
the drill operator, Wilson, who was retained in Switzer's
stead Indeed, as late as mid-October, Abe Day expressed
confidence in Switzer as an employee "doing a good fob "
In the absence of more definitive insight into the
capabilities of Wilson, the retained driller, than offered by
Respondent, I am compelled to find Switzer's termination
discriminatory
I reach the same conclusion with respect to the
termination of John Bukowski Bukowski had worked as a
laborer, a dnller's helper and a truckdnver Thus, contrary
to Robison's testimony and evaluation, Bukowski was a
worker who possessed multiple skills Accordingly, the
objective nature of Robison's selection is, with respect to
Bukowski, as with employees Townsend, Spargo, and
Switzer, placed in doubt
In sum, where, as here, an employer avows opposition to
an effort of employees to organize its operation, where
employees openly participate in organizational activity and
where the employees who have so participated as principal
proponents are terminated, assertedly for cause, but, in
fact, pursuant to a selection process which foreclosed the
likelihood of an informed and objective selection, a prima
facie case of discrimination emerges under Section 8(a)(3)
and (1) of the Act This prima facie showing was
susceptible of rebuttal by a showing by the Respondent
that objective criteria was, in fact, applied, and an
informed choice made The evidence, as I view it, does not
warrant the conclusion that an objective, informed,
nondiscriminatory business judgment was made Robison's
explanation as to the basis of his selection was superficial,
so patently so, in my opinion, as to raise no obligation on
the part of the General Counsel to probe more deeply The
burden of proving discrimination resides always with the
General Counsel But prima facie proof must be met with a
defense of substance I find Robison's explanation failed to
achieve that quality
For the foregoing reasons, and upon the entire record, I
find that Respondent violated Section 8(a)(3) and (1) of the
Act by terminating employees Bukowski, Spargo, Switzer,
and Townsend
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) and (3) of the
Act, I shall recommend that it cease and desist therefrom
and take certain affirmative action designed to effectuate
the policies of the Act
Having found that Respondent unlawfully terminated
the employment of employees Frank Figueroa, John
Bukowski, David Spargo, Jan Switzer, and David Town-
send, in violation of Section 8(a)(3) and (1) of the Act,
having further found that the Respondent was economical-
ly justified in effectuating a reduction in force on
November 4 and thereby terminating some of its employ-
ees on that date, and having additionally found that
Respondent unlawfully discriminated in the selection of
the four latter-named employees for inclusion in the
reduction in force, I shall, accordingly, order that Respon-
dent offer to Frank Figueroa and to each of the aforesaid
specifically named employees who were unlawfully termi-
nated on November 4, immediate and full reinstatement to
his former or substantially equivalent position, without
prejudice to his seniority and other rights and privileges In
the event that there is insufficient work for the four
employees unlawfully terminated on November 4, Respon-
dent is hereby ordered to dismiss, if necessary, all persons
SANTA RITA MINING CO
who were newly hired after the discriminatory terminations
on November 4 If there is not then sufficient work for the
remaining employees and those to be offered reinstate-
ment, all available positions shall be distributed among
them without discrimination against any employee because
of union activities, in accordance with a system of seniority
or other nondiscriminatory basis The Respondent shall
place those employees, if any, for whom no employment is
available after such distribution on a preferential list, with
priority in accordance with a system of seniority or other
nondiscriminatory basis, and thereafter offer them rein-
statement as such employment becomes available and
before other persons are hired for such work See Venture
Packing Co, Inc, 163 NLRB 540
I shall further order that Respondent make whole each
of the aforesaid specifically named employees for any loss
of earnings he may have suffered by reason of the
discrimination against him Backpay shall be computed in
the manner prescribed in F W Woolworth Company, 90
NLRB 289, together with interest in accordance with the
policy of the Board set forth in Isis Plumbing & Heating
Co, 138 NLRB 716
Upon the foregoing findings of fact and upon the entire
record in this case, I make the following
CONCLUSIONS OF LAW
1 Santa Rita Mining Company, a Division of Home-
Stake Production Company, is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act
2 United Cement, Lime and Gypsum Workers Inter-
national Union, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act
3 By threatening its employees with plant closure in
the event they select a union to represent them, by
promising to implement a pay and benefit plan in the event
the employees abstain from selecting a union to represent
them, by threatening employees with termination if they
select a union to represent them, by interrogating employ-
ees concerning their union activities and the union
activities of other employees, and by creating the impres-
sion that the union activities of employees are under
surveillance by supervision, the Respondent violated
Section 8(a)(1) of the Act
4 By terminating the employment of John Bukowski,
Frank Figueroa, David Spargo, Jan Switzer, and David
Townsend because they engaged in union and concerted
activity, Respondent violated Section 8(a)(3) and (1) of the
Act
5 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(2), (6), and (7) of the Act
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended 34
34 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board the findings
conclusions and recommended Order herein shall as provided in Sec
102 48 of the Rules and Regulations be adopted by the Board and become
its findings conclusions and Order and all objections thereto shall be
deemed waived for all purposes
ORDER
1083
Respondent, Santa Rita Mining Company, a Division of
Home-Stake Production Company, its officers, agents,
successors, and assigns, shall
1 Cease and desist from
(a) Discouraging membership in United Cement, Lime
and Gypsum Workers International Union, AFL-CIO, or
any other labor organization, of its employees, by
terminating employees because of their union or concerted
activities or, in any like or related manner, discriminating
against any of its employees in regard to hire or tenure of
employment or any term or condition of employment,
except to the extent permitted by Section 8(a)(3) of the Act,
as amended
(b) Threatening employees with plant closure in the
event they select a union to represent them, promising
employees to implement a pay and benefit plan in the
event they abstain from selecting a union to represent
them, threatening employees with termination in the event
they select a union to represent them, interrogating
employees concerning their own union activities or those of
other employees, and creating the impression of surveil-
lance of the union activities of employees
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) In the manner specified in the section of this Decision
entitled "The Remedy," offer John Bukowski, Frank
Figueroa, David Spargo, Jan Switzer, and David Town-
send immediate and full reinstatement to their former or
substantially equivalent positions of employment at the
Helvetia operation
(b) Make each of the aforesaid specifically named
employees whole for any loss of wages which he may have
suffered by reason of the discrimination against him in the
manner set forth above in the section entitled "The
Remedy "
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this Order
(d) Post at its Helvetia, Arizona, mine and its Tucson,
Arizona, office and place of business copies of the attached
notice marked "Appendix "35 Copies of said notice to be
furnished by the Regional Director of National Labor
Relations Board for Region 28, shall, after being duly
signed by a representative of the Respondent, be posted by
the Respondent immediately upon receipt thereof and be
maintained by it for 60 consecutive days thereafter in
conspicuous places, including all places where notices to
employees are customarily posted Reasonable steps shall
35 In the event that the Board s Order is enforced by a Judgment of a
United States Court of Appeals the words in the notice reading Posted by
Order of the National Labor Relations Board shall read Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material
(e) Notify the Regional Director for Region 28, in
writing, within 20 days from the date of the receipt of this
Decision, what steps the Respondent has taken to comply
herewith 3s
36 In the event that this recommended Order is adopted by the Board
after exceptions have been filed this provision shall be modified to read
Notify the Regional Director for Region 28 in writing within 20 days
from the date of this Order what steps the Respondent has taken to comply
herewith
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT, except to the extent permitted by
Section 8(a)(3) of the National Labor Relations Act, as
amended, terminate the employment of employees
John Bukowski, Frank Figueroa, David Spargo, Jan
Switzer, and/or David Townsend, or any other employ-
ee, because of membership in or activity in behalf of
United Cement, Lime and Gypsum Workers Interna-
tional Union, AFL-CIO, or any other labor organiza-
tion
WE WILL NOT threaten to close our mine in the event
our employees choose a union to represent them,
promise to implement a pay and benefit plan, in the
event our employees refrain from choosing a union to
represent them, threaten employees with termination in
the event they select a union to represent them,
interrogate employees concerning their own union
activity or the union activity of fellow employees,
and/or unlawfully create the impression that the union
activities of our employees are under surveillance
WE WILL offer immediate and full reinstatement to
John Bukowski, Frank Figueroa, David Spargo, Jan
Switzer, and David Townsend to their former or
substantially equivalent positions of employment,
without prejudice to their seniority or other rights or
privileges
WE WILL make whole the above-named employees,
against whom we have discriminated, for any loss they
may have suffered by reason of our discrimination, by
payment to each of them of a sum of money equal to
the amount that he normally would have earned as
wages from the date of such discrimination to the date
of the offer of reinstatement, or placement on a
preferential list, as the case may be, less his net earnings
during such period, with interest thereon at 6 percent
per annum
Dated By
SANTA RITA MINING
COMPANY, A DIVISION OF
HOME-STAKE PRODUCTION
COMPANY
(Employer)
(Representative) (Title)
We will notify immediately the above-named individuals, if
presently serving in the Armed Forces of the United States,
of the right to full reinstatement, upon application after
discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act
This is an official notice and must not be defaced by
anyone
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, 7011 Federal Building and
U S Courthouse, P 0 Box 2146, 500 Gold Avenue S W,
Albuquerque, New Mexico 87101, Telephone
505-843-2555