Lithium Corp. of America, Inc. .

National Labor Relations Board - Board Decisions

Aug 15, 1956

116 N.L.R.B. 602 (N.L.R.B. 1956)

602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NLRB 289. In the cases of Graves and Virgil Routh, it will be recommended that
their back pay shall accrue, in the event no offer of reemployment is made to them,
from the date of resumption of the Waynesville-Fort Leonard Wood shuttle-bus
line, or the inauguration of any similar shuttle-bus line as a part of the Respondents'
operations.13
Because the Respondents ' unlawful conduct above found, and its underlying pur-
pose, are closely related to other unfair labor practices proscribed by the Act, and
because the danger of their commission in the future is reasonably to be anticipated
from the course of conduct in the past , the Trial Examiner is convinced that the
preventive purpose of the Act will be thwarted unless the recommendations are
coextensive with the threat. In order, therefore , to make effective the interdepend-
ent guarantees of Section 7 of the Act, it will be recommended that the Respondents
cease and desist from in any manner interfering with , restraining , or coercing their
employees in the exercise of the rights guaranteed by Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. International Brotherhood of Teamsters , Chauffeurs , Warehousemen & Helpers
of America , General Teamsters , Chauffeurs , Warehousemen and Helpers, Local
No. 864, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the
Act.
2. By discriminating in regard to the hire and tenure of employment of John
Wagner and Dillard Wilkes on August 19, 1954, and of Gerald Burnett, Frank
Case, Everett Graves , Virgil Routh , Howard Fuller , Emmer Gan, and Vernie Pruett
on October 29, 1954, and by discontinuing its shuttle -bus line on October 29, 1954,
the Respondents have engaged in and are engaging in unfair labor practices with-
in the meaning of Section 8 ( a) (3) and (1) of the Act.
3. By interrogating , threatening , making promises of benefit , and otherwise inter-
fering with, restraining , and coercing employees in the exercise of rights guaranteed
by Section 7 of the Act, the Respondents have engaged in and are engaging in un-
fair labor practices within the meaning of Section 8 ( a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
' In his brief , General Counsel urges that all seven shuttle -bus drivers be made whole
for October 30 and 31. There is credible evidence in the record that when the drivers
came for their final checks , after the discontinuance of that line , these checks had been
made out to cover October 30 and 31, although they had actually ceased driving on
October 29 , and that the Fletchers deducted this gratuitous 2 days' pay in resentment
against their union activity . Since the amount was not earned , however, the Trial
Examiner is of the opinion that it should not be included in the back-pay award.
Lithium Corporation of America , Inc. and Local 500, Interna-
tional Union of Operating Engineers , AFL-CIO. Case No.
11-CA-80f2. August 15,1956
DECISION AND ORDER
On February 16, 1956, Trial Examiner Lee J. Best issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in certain unfair labor practices alleged
in the complaint to be in violation of Section 8 (a) (1) and •(3) of
the Act, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
116 NLRB No. 82.
LITHIUM CORPORATION OF AMERICA, INC. 603
mediate Report attached hereto. The Trial Examiner also found
that the Respondent had not engaged in certain unfair labor prac-
tices alleged in the complaint to be in violation of Section 8 (a) (1)
of the Act. Thereafter, the Respondent and the General Counsel filed
exceptions to the Intermediate Report and supporting briefs.'
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed,
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner 2
The Respondent contends that "the reductioi, of its labor force on
November 5, 1954, was caused entirely by economic considerations,"
and excepts to the Trial Examiner's conclusion that the selection of,
the 16 employees for discharge was discriminatorily motivated.
We are in agreement with the Trial Examiner's conclusion. • Al
though, as the Trial Examiner found, the Respondent's decision to
reduce its mining operations was in fact based upon economic consid-
erations, for the following reasons we find that a discriminatory in-
tent governed the selection of the particular employees who were
discharged :
1. As the Trial Examiner found, Mine Foreman Sullins engaged
in unlawful surveillance of a union meeting held on November 3,
1954. Sixteen employees were discharged on November 5, 1954. All
16 of the discharged employees attended the November 3 union
meeting. There were 7 other employees who were also present
at the union meeting hall on November 3, but who were not selected
for discharge. Four of the latter employees, 1 of whom was Sullins'
son, left the union hall before the meeting started ; 2 of such em-
ployees were not at work on November 5, because of personal in-
juries ; and the seventh was not subject to Sullins ' "jurisdiction."
2. In the late afternoon of November 4, 1954, Gerald Munson, the
project general manager, upon his return from the Respondent's home
' The Respondent also requested oral argument . The request is denied , as the record,
including the exceptions and briefs , adequately presents the issues and positions of the
parties.
2In view of the exceptions filed by the General Counsel , Member Bean would also find
that the antiunion statements made by Purchasing Agent Dixon were coercive in nature
and therefore constituted violations of Section 8 (a) (1) as contended by the General
Counsel. When Dockery applied for a job, Dixon inquired whether he had ever been a
union member and added , "we don't have a union, and ain't going to have a union.','
Dixon also asked applicant Hicks if be belonged to the Union and said that Hicks was
wasting his time, that the Respondent did not want anything to do with the Union.' As
these statements were almost contemporaneous with Foreman Sullins' threats to other
newly hired employees that the Respondent would automatically discharge anyone having
anything to do with the Union , Member Bean is satisfied that they were intended to, and
necessarily did, restrain and coerce the employees in the right freely to engage in union
activities.
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
office in Minneapolis , Minnesota, advised Joseph McClure, the mining
superintendent, that mining operations would have to be reduced, and
instructed McClure to terminate all operations at the Respondent's
Indian Creek mine. Contrary to Munson 's instructions , the Indian
Creek mine operations were not terminated . The Indian Creek mine
operations were merely curtailed by the discharge on November 5
of 10 employees who had attended the November 3 union meeting.
Other employees, who were not at the November 3 meeting , continued
to work at the Indian Creek mine . Moreover, although Munson's
instructions did not refer to a reduction at the Murphy -Houser
mine, 6 employees , who also attended the November 3 meeting, were
likewise discharged.
3. Mine Superintendent McClure relied on Sullins ' advice in the
selection of employees for discharge . As the Trial Examiner found,
Sullins had made statements to the effect that the Union was no good
and that he would fire anyone who had anything to do with the Union.
4. Postall , who was not employed by the Respondent , and Mason,
a former working foreman, both credibly testified that Sullins had
told them after the November 3 union meeting, but before the dis-
charge on November 5 , that he would lay off the employees who at-
tended the union meeting.
5. The Respondent asserts that the mines had been developed to
such a point that there was no longer a need for drill operators and
dumpster operators at either of its mines , and that this consideration
was controlling in its selection of all its drill and dumpster operators
for discharge on November 5. However, the record shows that 3
days after the discharges were effected, 2 or 3 dumpsters were in oper-
ation , and that drilling operations continued well beyond the No-
vember 5 date.
6. The Respondent asserts in its brief that each of the discharged
employees was experienced in only one type of mine work and there-
fore could not be transferred to other work. However, nine of the
discharged employees each testified without contradiction that he
either had previous experience in other kinds of mining work, or
had run equipment at the Respondent's mines which was different
from that he was operating on November 5.
7. About 3 weeks after November 5 , two of those discharged, Lewis
Sellers and Harold Martin, spoke to Sullins about reemployment.
Sullins refused , and told them that they "messed up" by joining the
Union.
Accordingly, like the Trial Examiner , we conclude that the Re-
spondent violated Section 8 (a) (3) of the Act by discharging the
16 employees on November 5, 1954.
LITHIUM CORPORATION OF AMERICA, INC.
ORDER
605
Upon the basis of the entire record in the case, and pursuant to
Section 10 (c) of the National Labor Relations Act, as amended,
the National Labor Relations Board hereby orders that the Respond-
ent, Lithium Corporation of America , Inc., Bessemer City, North
Carolina; its officers, agents, and assigns, shall:
1. Cease and desist from :
(a) Engaging in surveillance of its employees and their organiza-
tional activities.
(b) Discouraging membership in Local 500, International Union
of Operating Engineers, AFL-CIO, or any labor organization, by
threatening to discharge, discharging, or in any other manner dis-
criminating against its employees in regard to their hire or tenure of
employment, or any term or condition of employment.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist Local 500, International Union of Operating
Engineers, AFL-CIO, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from any
or all such activities, except to the extent that such right may be af-
fected by an agreement requiring membership in a labor organization
as a condition of employment as authorized in Section 8 (a) (3) of
the Act.
2. Take the following affirmative action designed to effectuate the
policies of the Act:
(a) Offer to Claude H. Hurt, William E. Allen, Albert W. Hatchett,
Vernon Dockery, Charles H. Martin, Bunn A. Martin, Nathan
Dockery, Elbert H. Martin, Clyde V. Derreberry, Lewis G. Sellers,
David A. West, J. D. Dockery, Perry Ledford, Wilburn W. Piercy,,
Carrel Nickols, and Paul W. Rogers immediate and full reinstatement
to their former or substantially equivalent positions without prejudice
to their seniority or other rights and privileges, and make each of
them whole for any loss of pay suffered by reason of the discrimina-
tion against them in the manner and to the extent set forth in the
Intermediate Report in the section entitled "The Remedy"; subject,
however, to the right of the Respondent thereafter, as set forth in the
Intermediate Report in the section entitled "The Remedy," to reduce
its working forces to a normal complement in accordance with such
practices of seniority or other nondiscriminatory procedure as it had
customarily employed in its business prior to the discriminatory prac-
tice herein found.
606 DECISIONS VV NATIONAL LABOR RELATIONS BOARD
(b) Post at its plant office and mines at or near Bessemer City,
North Carolina, copies of the notice attached hereto marked "Ap-
pendix." 3 Copies of said notice, to be furnished by the Regional
Director 'for the Eleventh Region, shall, after being duly signed by
the Respondent's representative, be posted by it immediately upon
receipt thereof and maintained for sixty (60) consecutive days there-
after in conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be taken by
the Respondent to insure that such notices are not altered, defaced, or
covered by any other material.
(c) Preserve and make available to the Board or its agents upon
request, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze and compute the amounts of
back pay and other rights of employment to which the 16 discriminatees
found herein may be entitled under the requirements of the terms
of this Order; and in the event it becomes necessary as a result of
the aforesaid reinstatements for the Respondent to reduce its working
forces to a normal complement, the Respondent shall prepare and
submit to the Board or its agents a complete written summary of the
nondiscriminatory procedure adopted therein and the action taken
thereon.
(d) Notify the Regional Director for the Eleventh Region in writ-
ing, within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT Is FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the Respondent violated Section 8
(a) (1) of the Act by any conduct other than that found herein to have
constituted 'a violation of that section.
CHAIRMAN LEEDOM and MEMBER MURDOCK took no part in the con-
sideration of the above Decision and Order.
In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order " the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT keep under surveillance our employees or their
organizational meetings or concerted activities for the purpose
of collective bargaining or other mutual aid or protection.
LITHIUM CORPORATION OF AMERICA , INC. 607
WE WILL NOT discourage membership in Local 500, Interna-
tional Union of Operating Engineers, AFL-CIO, or any other
labor organization, by threatening to discharge, discharging, or
in any other manner discriminating against our employees in
regard to hire or tenure of employment or any term or condi-
tion of employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organ-
ization, to form, join, or assist Local 500, International Union of
Operating Engineers, AFL-CIO, or any other labor organization,
to bargain collectively through representatives of their own choos-
ing, and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities, except to the extent that
such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment as
authorized in Section 8 (a) (3) of the Act.
WE WILL offer to Claude H. Hurt, William E. Allen, Albert W.
Hatchett, Vernon Dockery, Charles H. Martin, Bunn A. Martin,
Nathan Dockery, Elbert H. Martin, Clyde V. Derreberry, Lewis
G. Sellers, David A. West, J. D. Dockery, Perry Ledford, Wil-
burn W. Piercy, Carrel Nickols, and Paul W. Rogers immediate
and full reinstatement to their former or substantially equivalent
positions without prejudice to their seniority or other rights and
privileges, and make each of them whole for any loss of pay he
may have suffered by reason of our discrimination; subject, how-
ever,'-to our right thereafter to reduce our working force to a nor-
mal complement in accordance with such practices of seniority or
,other nondiscriminatory procedure as we have customarily em-
ployed in our business.
All of our employees are free to become and remain or refrain from
becoming or remaining members of the above-named Union or any-
other labor organization.
LITHIUM CORPORATION OF AMERICA, INC.,
Employer.
Dated---------------- By--------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE "' -
These proceedings authorized and conducted in accordance with the provisions of,
Section 10 of the Labor Management Relations Act, 1947, as amended , 61 Stat. 136,
herein called the Act, are based upon charges and amended charges duly filed by
608 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
Local 500, International Union of Operating Engineers , AFL-CIO,' herein called
the Union, against Lithium Corporation of America, Inc., herein called Respondent.
Pursuant to Section 10 (b) of the Act, the General Counsel of the National Labor
Relations Board, herein separately designated as General Counsel and the Board, by
and through the Regional Director for the Eleventh Region (Winston-Salem, North
Carolina), issued a complaint on' October 6, 1955, alleging that Respondent engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (a)
(1) and (3) and affecting commerce within the meaning of Section 2 (6) and (7)
of the Act. Copies of the charges, complaint, and other pertinent processes were
duly,served upon the Respondent and other parties in interest. In due course the
Respondent filed an answer admitting allegations of the complaint that it is engaged
in commerce within the meaning of the Act, but denying all allegations of unfair
labor practices.
With respect to unfair labor practices, the complaint in substance alleges (1) that
on various occasions from May through November 1954, Respondent by its officers
and agents interrogated its employees concerning their union activities, telling them
that it would not permit a union on the job, and threatened to discharge employees if
they joined or engaged in activities on behalf of the Union; and (2) that Respondent
by Mine Foreman Jim H. Sullins instructed its employees to physically abuse any
union men who approached its property, spied upon and engaged in surveillance of a
union meeting, threatened to shoot employees engaged in picketing, and on or about
November 5, 1954, discriminatorily discharged and refused to reinstate 16 em-
ployees because of their membership in and concerted activities on behalf of a
labor organization.
Pursuant to notice duly served upon all parties, a hearing was conducted at
Charlotte, North Carolina, on December 6, 7, 8, and 9, 1955, by the Trial Examiner
duly designated by the Chief Trial Examiner. All parties were present and repre-
sented by counsel or other duly authorized representatives. All parties were af-
forded full opportunity to be heard, to examine and cross-examine witnesses, to intro-
duce evidence pertinent to the issues involved, to present oral argument, and to file
written briefs and proposed findings and conclusions within a fixed time from the
close of the hearing. In due course a written brief was filed with the Trial Examiner
by counsel for the General Counsel, but none by the Respondent.
Upon the entire record in the case, and from my observation of the witnesses, I
make the.following:
` FINDINGS OF FACT
1. BUSINESS OF RESPONDENT
. Lithium Corporation of America, Inc., is a corporation organized and existing under
and by virtue of the laws of Minnesota, maintaining its principal office at Minneapolis
in said State. It is engaged in the mining and processing of lithium ore, and the
sale of products derived therefrom. Respondent operates chemical plants and mines
in the States of Minnesota, South Dakota, and North Carolina. Products valued
at approximately $3,000,000 were shipped during the past representative year from
its plant in St. Louis Park, Minnesota, directly to points outside the State of Minne-
sota; and the value of interstate shipments from its new plant at Bessemer City, North
Carolina, is expected to exceed the sum of $200,000 per year under a 5-year contract'
with the Government of the United States of America. I find, therefore that Re-
spondent is engaged in commerce within the meaning of Section 2 (6) and (7) of the
Act.
Officials and supervisors of the Respondent involved in this case consist of Fremont
F. Clarke, vice president in charge of production; Gerald A. Munson, chief mineral
engineer; Joseph N. McClure, manager of North Carolina mining operations; Jim
H. Sullins, North Carolina mines foreman; and Fred A. Dixon, North Carolina pur-
chasing agent.
II. THE LABOR ORGANIZATIONS INVOLVED
Local 500, International Union of Operating Engineers, AFL-CIO; International
Brotherhood of Teamsters, Warehousemen, Chauffeurs and Helpers of America,
AFL-CIO, Local No. 71; and International Hod Carriers , Building and Common
Laborers Union of America, Local No. 1094, are labor organizations within the
meaning of Section 2 (5) of the Act.
1 Designation amended pursuant to merger of the AFL and CIO effective December 5,
1955.
LITHIUM CORPORATION OF AMERICA, INC. 609
III. THE UNFAIR LABOR PRACTICES
A. The North Carolina project
In the early part of 1954, Respondent initiated the construction of a chemical
plant at Bessemer City, North Carolina , to process lithium-bearing spodumene
obtained from ore deposits in that vicinity. Completion of the plant was expected
by December 1, 1954, but construction was delayed and the plant was put into op-
eration about March 1955. Respondent established a field office in close proximity
to the plant site, and designated Chief Mineral Engineer Gerald A. Munson as resi-
dent general manager of all construction work and mining operations at the North
Carolina project under the direction of Fremont F. Clarke, vice president in charge
of production in the home office. On April 1, 1954, Respondent locally employed
Fred A. Dixon as purchasing agent and Jim H. Sullins as mines foreman. Later on
June 1, 1954, Respondent employed Joseph N. McClure as mines manager under
the supervision of General Manager Munson.
Extensive stripping operations were required to uncover ore deposits prior to
blasting and drilling operations. Beginning in May 1954, Respondent by the use of
specialized earth-moving equipment stripped and developed properties about 12
miles north of Bessemer City known as the Murphy-Houser Mine. Beginning in
July or August with the same equipment it stripped and developed properties about
15 miles north of Bessemer City known as the Indian Creek Mine. Drilling and
blasting operations followed in sequence at both mines to break up the rock-like
spodumene to size suitable for hauling with dumptors.2 Because highway bridges be-
tween the mines and plant site were inadequate to carry heavy loads, Respondent
stored its ore in stockpiles at the respective mines until suitable bridges were pro-
vided by the State highway department, whereupon it employed independent
trucking contractors to haul the ore directly from the mine pits to the plant site.
To a limited extent during inclement weather some ore was withdrawn from stock-
piles and replaced by dumptors to offset depletion. Stockpiles presently maintained
at the mines are approximately the same in content as they were in November 1954,
and in addition thereto a third stockpile maintained at the plant site at Bessemer
City has been sufficient to supply all processing requirements of the chemical plant.
B. Interference, restraint, and coercion
In connection with its mining operations the Respondent began hiring employees in
April 1954, and continued to do so until late in October 1954. The local labor supply
was inexperienced in the new operations, the turnover was excessive, and Respondent
experienced difficulties in establishing a stabilized working force. Applicants for em-
ployment customarily filed written applications at the field office and prior to hiring
were interviewed by Mines Manager Joseph N. McClure or Mines Foreman Jim H.
Sullins. In the absence of McClure and Sullins some applicants were interviewed by
Purchasing Agent Fred A. Dixon. Vernon Dockery, employee, credibly testified
that when he applied for employment in June 1954, Purchasing Agent Dixon inquired
whether he had ever belonged to a union , and said, "We don't have a union, and
ain't going to have a union-we are getting along mighty good without it." Elden J.
Hicks, applicant, credibly testified that upon inquiry by Purchasing Agent Dixon he
admitted membership in the Union. Dixon then told him he was just wasting his
time-that Respondent did not want anything to do with the Union.3
Other witnesses for the General Counsel credibly testified concerning conduct of
Mines Foreman Jim H. Sullins, which was calculated to forestall and discourage or-
ganizational activities by employees of Respondent. Claude H. Hurt, employee,
credibly testified that in May 1954, Foreman Sullins called him and three other newly
hired workmen to the grease room at the Murphy-Houser Mine and said, "Boys,
you will go to work, but the first man that has anything to do with the Union down
the road he goes." William E. Allen and Vernon Dockery, employees, credibly
testified that for a period of time following their employment in May or June 1954
they rode to work in a car with Foreman Sullins, and on several occasions heard him
make statements to the effect that the Union was no good and that he would fire any
employee caught having anything to do with it. From the credible testimony of David
9 The dumptor is a high powered four wheeled motor vehicle or dump truck suitable
only for heavy short-distance hauling.
3 Fred A. Dixon denied making any Inquiries concerning the Union and could not recall
any conversation whatever with Dockery and Hicks or any other applicant for employment.
405448--57-vol. 116--I0
610 DECISIONS OF .NATIONAL LABOR RELATIONS BOARD
A. West, Lewis G. Sellers, Nathan Dockery, Bunn A. Martin, and J. D. Dockery, it
also appears that about October 1954, during the lunch hour at Indian Creek Mine,
Foreman Sullins told groups of employees that they "ought not to mess" with the
Union, and said that anyone having anything to do with it would be automatically
fired.
On October 8, 1954, Respondent delivered to all of its employees, along with
paychecks, a letter signed by G. A. Munson, general manager, as follows: '
To ALL EMPLOYEES:
The repeated rejection of collective discipline over free labor reasserts the
independence of Carolinians and their confidence in their own ability to solve
their own problems on, as well as off, the job. In this belief, Lithium Corpora-
tion of America is in full agreement.
It is not the policy or desire of the Corporation that its people should have
to hire outside agents to converse with management and thus reduce the
individual to the level of the whole. Rather the Corporation prefers that each
employee shall find the level of his capacity as rapidly as possible and become
established with a maximum and uninterrupted income. To this end, the
Corporation:
(1) Pays highest base wages, craft by craft, in the economic area of the
project.
(2) Works extended hours for the purpose of your earning greatest take-
home pay.
(3) Promotes and trains individual employees as native ability and openings
permit.
(4) Provides best and safest equipment and working places attainable. (The
record of but one serious and no fatal accident in the 14 years of the Mining
Department is virtually unequaled in the mining industry.)
The Corporation is new to this area but desires to become a permanent part
of the economy and development of your community. It is your community
and as it prospers so you prosper.
Your fine work over the past few months has captured the attention and
admiration of experts from many other areas. We hope it will always be so.
Very truly yours,
GAM/s
LITHIUM CORPORATION OF AMERICA, INC.
G. A. MUNSON, General Manager.
C. Unlawful surveillance
During the latter part of October 1954 representatives of the Union visited em-
ployees of Respondent at their homes away from the mine premises. When a sub-
stantial number of employees had signed authorization cards, the Union sponsored
an organizational meeting between the hours of 7 and 9 p. in. on November 3,
1954, in Cherryville, North Carolina, at the union hall of Teamsters' Local No. 71,
about 5 to 8 miles from Respondent's mines. The meeting place was on the second
floor of a two-story brick building in the business district overlooking streets of the
town and adjacent to premises of a gasoline service station on the opposite side of
the street from the showroom of a Chevrolet dealer. Entrance to the union hall
consisted of an outside stairway from the street to a lighted doorway above and over-
looking the service station premises, which afforded parking space for automobiles.
Shortly prior to the meeting Foreman Jim H. Sullins parked his pickup truck on
the service station lot a few feet from and facing this stairway entrance and there
it remained until approximately 9 p. in. when the meeting adjourned. In addition
to union organizers approximately 23 employees entered the hall, but Rowland
Sullins (son of Foreman Jim H. Sullins), C. Q. Lavender, Austel (Jake) Bettis, and
Lawrence Snyder left before the meeting convened. Numerous attendants observed
Foreman Sullins sitting there in his pickup truck. Claude H. Hurt spoke to him.
Union Representative A. B. Dixon invited him to come upstairs to attend the meet-
ing. William E. Allen, Bunn A. Martin, Nathan Dockery, Lewis G. Sellers, and
Wilburn W. Piercy observed him there before and after the meeting. Vernon
Dockery, Clyde V. Derreberry, Carrel Nickols, J. D. Dockery, and David A. West
observed him when the meeting adjourned.
Furman Postell (not employed by Respondent) credibly testified that on the
night of November 3, 1954, he brought Carrel Nickols to .the union hall, and then
4It is contended by the General Counsel that this letter was inspired by the result of
a representation election held on October 6, 1954, at Foote Mineral Company, Kings
Mountain, North Carolina.
LITHIUM CORPORATION OF AMERICA , INC. 611
waited outside in the parking lot with his wife and child until the meeting adjourned.
He saw Foreman Sullins park in his pickup truck nearby and observed that several
men came down from the union hall and conversed with Sullins. Foreman Sullins
left his pickup truck , recorded with paper and pencil the tag numbers of automobiles
parked in the vicinity, and then returned to his pickup truck and sat down therein.
Postell approached Sullins and sat inside the pickup truck with him for awhile-
then at Sullins' request he drove his own car to a nearby grill to purchase two packs
of cigarettes and returned for further conversation with Foreman Sullins in his
pickup truck . Foreman Sullins remained sitting in his pickup truck until attendants
at the meeting came out, and then drove away . In the course of conversation he
asked Foreman Sullins whether he intended to fire employees attending the meeting,
and Sullins said , "No, the best way to do it would be to lay them off and you then
would not have to call them back any more-when I get them laid off why they
would not have to come back."
Herbert Mason ( erstwhile working foreman for Respondent) credibly testified
in substance that on November 4, 1954, Mines Foreman Sullins admitted his presence
at the union meeting, and said "the only thing to do would be to lay them off mostly
all of them as soon as possible-that we had enough on the stockpile to hold the
boys off as long as we needed to-that he figured they would wear out pretty quick-
that he did not figure that they would be financially able to stay around very long."
Mines Foreman Jim H . Sullins testified in substance that he lived as a bachelor
in a small company house near the Indian Creek Mine , and had never at any time
or place discussed union affairs with any employee . He specifically denied making
any statements concerning the Union to Claude H. Hurt , William E . Allen, Nathan
Dockery , Vernon Dockery , Wilburn W . Piercy, David A . West, Lewis G. Sellers,
J. D. Dockery , Carrel Nickols , Furman Postell , or Herbert Mason . In particular
he denied any acquaintance with Furman Postell , and had never seen the man in
his life prior to his appearance as a witness at the hearing . He specifically denied
having seen or had any conversation or other contact with Postell in Cherryville on
the night of November 3, 1954 . Foreman Sullins contends and testified that he
had no prior knowledge of the scheduled union meeting in Cherryville , and that
his presence in that vicinity on the night of November 3, 1954 , was for an entirely
different purpose and had no concern with the organizational activities of Respond-
ent's employees . Unaware of the union meeting he drove to Cherryville that evening
to visit his son, Rowland Sullins, and dined with the family until past 6:30 p. m.
By previous appointment he had agreed to meet his son , Rowland Sullins, and
Lawrence Snyder to look at new Chevrolet cars. After supper he drove downtown
alone in his pickup truck , and parked in the open lot at the service station across
the street from the Chevrolet agency . There he met Rowland Sullins and Lawrence
Snyder , who drove separate cars and parked at the same location . Upon arrival in
the parking lot he was approached by two strangers , who invited him to attend the
meeting upstairs , but he was not interested and told them he was not there for that
purpose . At approximately 7 p. m: he got out of his truck and walked across the
street to the show ' windows of the Chevrolet dealer with Rowland Sullins and
Lawrence Snyder . Robert Hensley was at the window also looking at the new
Chevrolets . After window shopping and conversing for awhile , he and his two
companions got in Rowland Sullins' car and rode through the business section
around the town square , stopped for a few minutes near the theatre , and then returned
to the parking lot. At approximately 8:45 p . m. he returned to his pickup truck,
sat down inside for a few minutes with the motor and heater running , but did not,
talk to anyone else that night. Shortly after 9 p. m. he drove away from the parking
lot, went immediately to his bachelor quarters near the mines , and went to bed
without associating with anyone else that night . While in the parking lot that night
he saw the two union representatives who invited him to the meeting, saw and spoke
to Claude H . Hurt, saw William Adams (colored ) being assisted in climbing the
stairway by two strangers , saw C . Q. Lavender and Austel Bettis sitting in a car
on the parking lot, and saw Jim Royster and Paul Floyd , but could not identify any
others that entered the union hall . He had no pencil and paper with him , did not
write down the names of anyone , and did not record the tag numbers of any auto-
mobiles. He observed a group of men leaving the union hall, but did not identify'
any of them .5
5 Neither Rowland Sullins, Lawrence Snyder, C Q. Lavender , Austel Bettis , Jim Royster,
Robert Hensley , or Paul Floyd appeared as witnesses in the case . Consequently, the
testimony of Foreman Sullins with respect to the purpose of his visit to Cherryville that,
night was not corroborated by any other witness.
612 DECISIONS OF' NATIONAL= LABOR RELATIONS" BOARD
D. The discriminatory discharges
On or about November 1, 1954, Respondent had developed its two mines to the
point that they were readily accessible, and had stockpiled more than 70,000 tons
of ore, which was sufficient to meet requirements for at least 6 months. Delay in
completion of the chemical plant at Bessemer City indicated that processing of the
ore could not begin until February or March 1955. Both mines were in full
operation with approximately 20 employees at each location. Consequently Re-
spondent considered the possibilities of curtailing its mining activities. About the
middle of October, General Manager Gerald A. Munson was required to visit other
properties of Respondent in the West, and left the North Carolina project in charge
of Mines Manager Joseph N. McClure. In the early part of November, Munson
visited Respondent's home office in Minneapolis, and there reviewed the situation
with Fremont F. Clarke, vice president in charge of production. Agreement was
reached that the mining operations in North Carolina should be curtailed approxi-
mately 50 percent. After an absence of approximately 3 weeks General Manager
Munson returned to Bessemer City in the late afternoon of November 4, 1954,
and held an immediate conference with Mines Manager McClure. He instructed
McClure to close down all operations at the Indian Creek Mine at once, but to,
continue operations at the Murphy-Houser Mine. On the morning of November 5,
1954, Munson issued the following written instructions:
LITHIUM CORPORATION OF AMERICA, INC.
To: J. N. McClure. DATE-NovEmBER 5, 1954.
From: G. A. Munson.
SUBJECT
Owing to delays beyond our control in the plant construction program, and
in the highway construction program, it becomes necessary for us to reduce
our mining operations for an indefinite period.
It is requested, therefore, that the mine crew be reduced to a minimum, and,
that work be concentrated along the Murphy-Houser property.
It is sincerely regretted that your fine organization must be thus broken up,
but there is no alternative.
Very truly yours,
(Signed) G. A. MUNSON,
JERRY.
GAM/s
cc/Fremont F. Clarke.
J. N. McClure.
File.
(Written in ink.) Jim Sullins.
Effective this date above instructions must be complied with.
J. N. MCCLURE, Mine Superintendent.
In joint conference with Mines Foreman Jim H. Sullins, McClure immediately
selected for discharge 10 employees at the Indian Creek Mine consisting of 1 shovel'
operator, 2 drill operators, 3 drill helpers, and 4 dumptor operators. At the
Murphy-Houser Mine he selected 6 employees for discharge, consisting of 1 eimco
operator, 2 drill operators, 1 drill helper, and 2 dumptor operators. Pursuant,
to this selection of personnel, Mines Foreman Sullins that afternoon discharged at
the Indian Creek Mine, Bunn A. Martin (shovel operator), Clyde V. Derreberry
(drill operator), Perry Ledford (drill operator), J. D. Dockery (drill helper), Lewis
G. Sellers (drill helper), David A. West (drill helper), Nathan Dockery (dumptor
operator), Albert W. Hatchett (dumptor operator), Charles H. Martin (dumptor
operator), and Paul W. Rogers (dumptor operator). At the Murphy-Houser
Mine he discharged William E. Allen (eimco operator), Vernon Dockery (drill
operator), Carrel Nickols (drill operator), Elbert H. Martin (drill helper), Claude
H. Hurt (dumptor operator), and Wilburn W. Piercy (dumptor operator). By
strange coincident the dischargees consisted entirely of men under the supervision
of Foreman Sullins who attended the union meeting in Cherryville on November 3,
1954. Approximately one-half of the employees at Indian Creek consisting pri-
marily of jackhammer operators and blasting personnel were retained. Respondent
continued its mining activities at the Murphy-Houser Mine, but closed down the
Indian Creek Mine except for limited secondary blasting and drilling operations.
Having discharged all employees classified as dumptor operators, Mine Foreman
Sullins thereafter utilized the services of greasemen and heavy equipment oper-
LITHIUM CORPORATION OF AMERICA, INC. 613
ators to operate dumptors as needed. When operations were resumed at the Indian
Creek Mine in the early part of 1955 he utilized the services of Coy Mauney
(greaseman ) to operate an additional power shovel put back into operation. Be-
ginning about December 1, 1954, Respondent employed independent trucking con-
tractors to haul ore directly from the mine pits to the plant site at Bessemer City,
thereby eliminating in large part the necessity of stockpiling at the mines and twice-
handling of the ore. By reason thereof and the readjustment of its reduced working
forces, Respondent has found it possible to fully supply its chemical plant with ore
for processing, and stockpiles at the mines have remained intact. No new employees
have been hired to replace in particular the employees discharged on November 5,
1954; but 3 greasemen and 1 jackhammer operator have been hired since that date.
Concluding Findings
Statements made to applicants for employment by Purchasing Agent Fred A.
Dixon and the policy letter issued to all employees on October 8, 1954 , by Gen-
eral Manager Gerald A. Munson , indicate that Respondent was opposed to the
principle of collective bargaining, but they contained no threats of reprisal or force
or promise of benefit within the meaning of Section 8 (c) of the Act. With respect
to Mines Foreman Jim H . Sullins, however, the testimony of numerous witnesses
introduced by General Counsel is strong and convincing evidence that he repeatedly
threatened employees with discharge in the event they engaged in organizational
'activities on behalf of any labor organization , and also engaged in unlawful sur-
veillance of the union meeting held in Cherryville, North Carolina, on the night
of November 3, 1954. The timeliness of his visit to Cherryville on the night of
November 3, 1954, his presence at the stairway entrance and contacts with others
attending the union meeting render his denial of any unlawful motive entirely
incredible. His two companions, Rowland Sullins and Lawrence Snyder, visited
the union hall immediately prior to the meeting, while he remained outside in his
pickup truck. He admittedly recognized Robert Hensley, C. Q. Lavender, Austel
Bettis, and J. A. Royster in and around the parking area, and observed that they did
not attend the meeting. Of the 22 or 23 attendants at the meeting he admitted rec-
ognition of William Adams, a Negro jackhammer operator presently disabled to
work, and Paul Floyd (geologist or core-driller), who was not under his supervision.
Of the remaining 16 attendants he denied all recognition, except Claude H. Hurt.
His testimony was not corroborated by any other witness. I am convinced that he
recognized and identified all employees who attended the meeting.
From an overwhelming preponderance of the evidence, the surrounding cir-
cumstances, and the entire record in the case, I am convinced and constrained to
find that Mines Foreman Jim H. Sullins at various times from May through October
1954 repeatedly threatened to discharge employees of Respondent if they engaged
in organizational activities for the purpose of collective bargaining or other mutual
aid or protection; and on November 3, 1954, kept under surveillance employees
attending the union meeting at Cherryville, North Carolina, as alleged in the com-
plaint . By the aforesaid conduct of Foreman Sullins, the Respondent interfered
with, restrained, and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
I credit the testimony of Vice-President Fremont F. Clarke and General Manager
Gerald A. Munson that Respondent's decision to reduce mining operations in North
Carolina was based entirely upon economic considerations unrelated to the or-
ganizational activities of its employees . It appears , however, that the selection of
employees to bring about the reduction in force was left entirely to the discretion
of Mines Manager Joseph N. McClure and Mines Foreman Jim H. Sullins. Although
the announced objective of Respondent was to close down all operations at the
Indian Creek Mine and concentrate on continued operations at the Murphy -Houser
property, it is apparent that McClure and Sullins did not follow that objective in se-
lecting dischargees. Without regard to seniority rights or qualifications for other
duties they discharged all dumptor operators at both mines, an equal number of
drill operators at each mine, some drill helpers at both mines, the shovel operator
at Indian Creek, and the eimco operator at Murphy-Houser. The selection was
clearly arbitrary and included only members of the Union. Absent discrimination,
it is incredible that selection of dischargees would be limited to 16 men who attended
the union meeting 2 days before under the surveillance of Mines Foreman Jim H.
Sullins. I find, therefore, that Respondent discriminated in regard to hire or tenure
of employment and other terms and conditions of employment to discourage mem-
bership in a labor organization in violation of Section 8 (a) (3) of the Act.
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connec-
tion with the activities of Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the sev-
eral States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices,
I shall recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Although engaged in an economic curtailment of its mining operations, it has
been found that Respondent discriminatorily selected for discharge on November
5, 1954, 16 employees identified by its mines foreman as having engaged in organ-
izational activities and attended a union meeting on November 3, 1954, and by rea-
son thereof discriminated in regard to the hire and tenure of employment of Claude
H. Hurt, William E. Allen, Albert W. Hatchett, Vernon Dockery, Charles H. Mar-
tin, Bunn A. Martin, Nathan Dockery, Elbert H. Martin, Clyde V. Derreberry,
Lewis G. Sellers, David A. West, J. D. Dockery, Perry Ledford, Wilburn W. Piercy,
Carrel Nickols, and Paul W. Rogers. In order to effectuate the policies of the
Act, it will be recommended that Respondent offer to each of said discharged em-
ployees immediate reinstatement to his former or substantially equivalent position,6
without prejudice to his seniority and other rights and privileges, and thereafter, if
Respondent has no need at the time for 16 additional workers, it may then lay off
such employees as may be necessary to reduce its mining personnel to the normal
complement, -following such practice of seniority or other nondiscriminatory pro-
cedure as it had customarily employed in its business prior to the discriminatory
practices found herein? In the event Respondent finds it necessary to lay off
any employees to reach a normal complement by the aforesaid nondiscriminatory
procedure, it will be recommended that all such employees be placed on a preferen-
tial hiring list, and rehired without discrimination before other persons are hired
as needed by Respondent to fill future vacancies for which they may be qualified.
It will also be recommended that Respondent make whole each of the 16 employees,
aforesaid, for any loss of pay he has suffered by reason of the Respondent's dis-
crimination by payment to him of a sum of money equal to the amount he normally
would have earned from the date of the discrimination to the date on which Re-
spondent shall offer to him proper reinstatement as herein provided, less his net
earnings,8 to be computed on a quarterly basis in the manner set forth in F. W. Wool-
worth Company, 90 NLRB 289, and N. L. R. B. v. Seven-Up Bottling Company of
Miami, Inc., 344 U. S. 344. Earnings in one particular quarter shall have no
effect upon the back-pay liability for any other such period.
It will be further recommended that Respondent preserve and make available to,
the Board or its agents upon request, for examination and copying, a written sum-
mary of any nondiscriminatory procedure adopted and action taken by it to comply
with the recommendations herein, together with all payroll records, social-security
payment records, timecards, personnel records and reports, and all other records
necessary to analyze and compute the amounts of back pay and other rights of
employment to which all of the aforesaid discriminatees may be entitled by reason
of the recommendations herein.
Apart from the discriminatory selection of dischargees, it is reasonable to
believe that one or more of these employees would have been laid off in the eco-
nomic curtailment of Respondent's operations on or after November 5, 1954, had
the selection been made on the basis of seniority or other nondiscriminatory pro-
cedure; but the record affords no adequate basis for precisely determining at this
time which employees would have been affected thereby. That factor may be con-
sidered in determining the amount of back pay due to each of the discriminatees
at the compliance stage of these proceedings, but the burden will rest upon Re-
spondent to disentangle the consequences for which it was responsible by reason of
its unlawful discrimination from those from which it would have been immune had
the selection of dischargees been made by nondiscriminatory methods.9 It is,
8 See The Chase National Bank of the City of New York, an Juan, Puerto Rico, Branch,
65 NLRB 827
4 See Ronrsco Corporation, et al, 53 NLRB 1137, 1171
8 See Crossett Lumber Company, 8 NLRB 440, 497-498
9 See U. & S. Lumber Company, 92 NLRB 164-165; Carolina Mills, Inc, 92 NLRB 1146.
TRUCK DRIVERS AND HELPERS LOCAL UNION NO. 728 615
therefore, recommended that any order made herein by the Board expressly reserve
the right to modify and supplement back-pay provisions herein if necessary by reason
of changed conditions or to define and clarify their application to circumstances
not apparent at this time.
The nature of the unfair labor practices herein justify the anticipation of a future
recurrence of similar or other unfair labor practices by Respondent. Coextensive
with the threat, I shall recommend that Respondent cease and desist from infringing
in any manner upon the rights of its employees guaranteed in Section 7 of the Act is
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Respondent, Lithium Corporation of America, Inc., is engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act.
2. Local 500, International Union of Operating Engineers, AFL-CIO, is a labor
organization within the meaning of Section 2 (5) of the Act.
3. By threatening its employees with discharge if they engaged in organizational
activities for the purposes of collective bargaining or other mutual aid or protection,
and by keeping under surveillance such organizational activities and meetings, the
Respondent interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act, and thereby has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the
Act.
4. By discriminating in regard to the hire and tenure of employment of Claude H.
Hurt, William E. Allen, Albert W. Hatchett, Vernon Dockery, Charles H. Martin,
Bunn A. Martin, Nathan Dockery, Elbert H. Martin, Claude V. Derreberry, Lewis
G. Sellers, David A. West, J. D. Dockery, Perry Ledford, Wilburn W. Piercy, Carrel
Nickels, and Paul W. Rogers, because of their attendance at a union meeting and
engaging in other concerted activities for the purposes of collective bargaining or
other mutual aid or protection, the Respondent discouraged membership in Local
500, International Union of Operating Engineers , AFL-CIO, a labor organization,
and thereby engaged in unfair labor practices within the meaning of Section 8 (a) (1)
and (3 ) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
",See N. L. It. B. v. Express Pu blishing Company, 312 U. S. 426.
Truck Drivers and Helpers Local Union No. 728, International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America, AFL-CIO and Empire State Express, Inc.
Case No.10-CC-1 1. August 1B, 1950
DECISION AND ORDER
On March 2, 1.956, Trial Examiner A. Bruce Hunt issued his Inter-
mediate Report in the above-entitled proceeding , finding that the
Respondent had not engaged in and was not engaging in the unfair
labor practices alleged in the complaint and recommending that the
complaint be dismissed in its entirety, as set forth in the copy of the
Intermediate Report attached hereto . Thereafter , all parties filed ex-
ceptions to the Intermediate Report, and the General Counsel and the
Charging Party filed supporting briefs.
I The Respondent's exceptions were limited (1) to the Trial Examiner's finding that
Service, the alleged secondary employer, did not solicit business for Empire, the primary
Employer, during the picketing in question and (2) to the Trial Examiner's conclusion
116 NLRB No. 84.