Specialty Sands, Inc.

National Labor Relations Board - Board Decisions

Apr 4, 2001

333 N.L.R.B. 796 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 796
Specialty Sands, Inc. and Richard W. Strange and
Allan A. Bewalda. Cases 7–CA–42928(1) and 7–
CA–42928(2)
April 4, 2001
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
HURTGEN AND WALSH
On January 12, 2001, Administrative Law Judge
Nancy M. Sherman issued the attached decision. The
Respondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Specialty Sands, Inc.,
Nunica, Michigan, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.

Richard F. Czubaj, Esq., for the General Counsel.
John D. Meyer, Esq. (R.T. Blankenship & Associates), of
Greenwood, Indiana, for the Respondent.
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge. This
case was heard before me on September 28, 2000, in Grand
Rapids, Michigan, pursuant to charges filed on April 3, 2000,
by Richard W. Strange and Allan A. Bewalda, respectively,
against Respondent Specialty Sands, Inc. (Specialty) and a
consolidated complaint issued on June 6, 2000, and amended
on September 28, 2000. The complaint in its final form alleges
that Specialty violated Section 8(a)(1) of the National Labor
Relations Act (the Act), about February 24, 2000, by refusing
to recall employees Strange and Bewalda from a seasonal lay-
off because they had concertedly requested improvements in
their terms and conditions of employment.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
The Respondent excepts to the judge’s finding in sec. II,G,5 of her
decision concerning employee “Bewalda’s March 23 request to be
returned to work.” While we agree that Bewalda did not specifically
make such a request during his conversation with the Respondent’s
general manager, Chapman, on March 23, 2000, Bewalda’s credited
testimony reveals that he “displayed interest in being recalled” to his
former job when he met with Chapman that day, as found by the judge
in sec. II,G,3 of her decision.
2 In light of the judge’s finding, with which we agree, that Respon-
dent’s actions were not in fact motivated by the exigencies of its busi-
ness operations, we find it unnecessary to rely on the judge’s discus-
sion, in sec. II,G,5 of her decision, of NLRB v. Erie Resistor Corp., 373
U.S. 221, 228–229 (1963), and its purported application to the instant
case.
On the basis of the record as a whole, including the de-
meanor of the witnesses, and after due consideration of the
briefs filed by counsel for the General Counsel (the General
Counsel) and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Specialty is a corporation with an office and place of busi-
ness in Nunica, Michigan, where it is engaged in the extraction,
washing, sizing, and nonretail sale of materials used in the cast
metals industry. During calendar year 1999, in conducting
these business operations, Specialty sold goods valued in ex-
cess of $50,000 to Construction Aggregates Corporation of
Michigan (CACM), located in Michigan, which annually sells
and ships goods valued in excess of $50,000 to customers lo-
cated outside Michigan. I find that, as Specialty admits, it is
engaged in commerce within the meaning of the Act, and that
assertion of jurisdiction over its operations will effectuate the
policies of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Specialty is one of a group of six sister corporations which
produce processed granular material ultimately used in foun-
dries in the production of cast iron. The control of these six
companies is vested in a Florida holding company, Cheyenne
Sands. Specialty operates two mining sites—one called Clark
Farm and the other (the site immediately involved in the instant
case) in Nunica, Michigan. The product from the Nunica site is
trucked to one of two Michigan sites, operated respectively by
two of Specialty’s sister corporations—CACM and Standard
Sands (Standard). For reasons related to weather, Specialty
ceases operations about November of each year, and does not
resume operations until April or late March of the following
year.
B. Events During the 1999 Season
During the 1999 season, four Specialty employees worked at
the Nunica site. About mid-July 1999 Nunica employee Be-
walda, who had worked for Specialty during every season since
about 1987 was absent from work for 3 days because of a death
in his family. When he found out that he was not going to be
paid for those 3 days, he went to the office of personnel man-
ager, Vicki Coulson, and demanded a copy of a union contract
which was in effect at another facility controlled (like Spe-
cialty) by Cheyenne Sands. After she refused to give him a
copy, the two of them went into the office of Howard Chap-
man, admittedly Specialty’s agent, who is the general manager
of Cheyenne Sands and of all of its subsidiaries including Spe-
cialty. Chapman upheld Coulson’s decision not to allow any-
333 NLRB No. 93
SPECIALTY SANDS, INC. 797
one who was not covered by the contract to obtain a copy.
Bewalda said that “things needed to be put in writing.” Chap-
man agreed to do this, and asked Bewalda what he was con-
cerned with. Bewalda named vacations, holidays, and be-
reavement pay. Chapman thereafter prepared, and distributed
to all of Specialty’s employees who were working at the
Nunica facility, a document dated July 23, 1999, which (he
testified) set forth Specialty’s existing policies with respect to
these matters. This document began with the following lan-
guage:

It has been brought to the attention of this office that
there exists a need for certain Company policies to be
memorialized so as to, among other things, eliminate con-
fusion and preferential practices in the future.
All policy enactment in the past was undertaken in a
spirit of evenhandedness and absent the perceived neces-
sity of committing specific procedures to the written word.
Such is no longer the case.
The following principles shall be applicable hence-
forth.
. . . .
II HOLIDAYS
Any of the following holidays that fall during the op-
erating season [followed by a list of 9 holidays beginning
with New Year’s Day and ending with Christmas Day, in-
cluding about 6 holidays which fall during Specialty’s
normal operating season].
The document does not state in terms that any holidays will be
paid holidays; see infra fn. 3.
Bewalda’s deceased relative did not fall within the group for
whose death this document called for bereavement pay, and he
did not receive it.
About July 27 Nunica employee Strange telephoned Chap-
man and asked him to meet with Specialty’s employees to dis-
cuss “benefits and so forth.” In early August Chapman came to
the Nunica site and met with the four Specialty employees who
worked there—Bewalda, Strange, Jon Meyer (no kin to Spe-
cialty’s trial counsel), and Eric Bowers. The employees com-
plained about a defective front loader; Chapman replied that
Specialty was having trouble obtaining a replacement part but it
was on order. The employees also complained about the ab-
sence of a catwalk which for 2 years they had been vainly re-
questing for safety reasons; Chapman said that this was “in the
works.” The catwalk was erected on an undisclosed date after
November 1999 and before (probably) late February 2000; the
missing part was installed in the front loader on an undisclosed
date which likely preceded late February 2000. Bewalda ex-
pressed a desire for dental insurance, to which Chapman replied
that the employees would never have that. In addition, the
employees asked for an increase in their IRA and in nightshift
premiums and about holidays. As to these matters, Chapman
said that in the area of costs and prices, there would not be any
raises or increases until April 1. He said that he did not think
there would be any trouble with the shift premiums, and as to
the other matters, he would get back to them.3
The employees who were working at the Nunica facility
were laid off for the 1999 season in late December 1999.4
C. The Employees’ February 2000 Letter to General
Manager Chapman
Specialty’s employees decided in early November 1999 that
if Chapman did not get back with them about the matters dis-
cussed at the early August 1999 meeting, they would get to-
gether and draft and send him a letter. Chapman did not get
back to the employees. As to why he did not do so, Chapman
testified that the employees’ nonmonetary concerns had been
dealt with; and as to their monetary concerns, the employees
knew about Specialty’s practice of making monetary changes
known on April 1 (a date after Specialty normally resumed
operations), after which no monetary changes would be an-
nounced or made until the following April 1. Chapman testi-
fied that Specialty follows this policy in order to make it easier
to analyze the entire workforce of Cheyenne Sand’s subsidiar-
ies at the end of the fiscal year.
In early February 2000 while the Nunica employees were on
seasonal layoff, a conference was conducted among Strange,
Bewalda, and employee Dan Haynes, who was in Specialty’s
employ but, for several years had been working throughout the
year at Standard (one of Specialty’s sister corporations). Meyer
did not participate in the meeting because the participants had
found it difficult to get hold of him; and they made no effort to
call Bowers because he had taken a different job. After draw-
ing up a couple of drafts these three employees prepared the
following letter to Chapman, dated February 21, 2000 (empha-
sis in original):

We at Specialty Sand, Inc. want to express to you
some real concerns we have with the direction we seem to
be headed. These issues are explained in detail below:
In January we received our IRA or pension checks.
Why does the amount remain at $2,000.00? The cap
should be raised to at least $2,500.00. We are currently in
the year 2000. If you look at what we have gained since
1993 when the amount was $1,500.00, to $2,000.00 in
1994, you can see for yourself, there had been no gain.
Also, why was FICA discontinued on these checks? Be-
cause of this change, we are not receiving the $2,000.00,
but are being penalized [see infra fn. 7].
Holiday pay. The union receives pay for nine holi-
days. We believe that upon start up in the spring, we

3 My finding in this sentence is based on credible parts of the testi-
mony of Strange, Bewalda, and Chapman. Chapman testified to having
said that he would get back to them, and further testified that although
he intended to do so on April 1, he did not give them a date.
4 Bewalda’s active employment in 1999 ended before December
1999 because (in accordance with his usual custom) he took advantage
of a hunting season which began before the date when the others were
laid off. No contention is made that this affected any recall rights he
would otherwise have had.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 798
would like to receive pay for all holidays during the year
we are not paid for, same as the Union.5
Night shift pay should be least an additional $.35.
We would like a response to these issues, explaining
what can be done to correct these deficient areas, by mail
or individually. Also, any changes should be in writing,
addressed, and given to each employee. It will be very
much appreciated if you would respond by March 20,
2000.
Wishing to thank you in advance for your time, we
remain.
Sincerely,

At the bottom of this letter were typed the names of Be-
walda, Haynes, Meyer, and Strange, with spaces calling for
their respective signatures. Bewalda, Haynes, and Strange
signed it in each other’s presence. Bewalda and Strange testi-
fied that the employees selected March 20 as the date that they
wanted a response from Chapman, because April 1 was always
the cutoff date for pay raises and they wanted an opportunity to
discuss the matter with him before any change was made.
Meyer did not sign the letter; he testified that he did not sign it
because:

I did not like the wording . . . The first part of the letter
questioned the leadership of the Company. I didn’t have a
problem with the leadership. The money amounts and
they were asked it sounded more like a demand than ask-
ing for a raise, improvements.

D. The Recall Letters and Their Revocation; General Manager
Chapman’s Subsequent Contacts With Strange and Bewalda
Specialty employees in the mining operation normally return
about the last week in March from their regular seasonal winter
layoff. Chapman testified that about the first week of February,
he decided to recall the seasonally laid-off employees effective
March 20. However, laid-off employee Meyer testified without
contradiction that when he telephoned Specialty’s General Su-
perintendent Roy Closs about February 19 to find out whether
the callback would be earlier than the usual date of the last
week in March (because Meyer was planning a trip to North
Carolina in that month), Closs merely replied that he thought
the callback would be earlier than that and Meyer “should . . .
probably adjust accordingly.” After Strange and Bewalda had
signed and mailed the employees’ February 21 letter to Chap-
man, Closs telephoned them and (pursuant to Chapman’s in-
structions) told them to return to work on March 20.6 They

5 This sentence aside, the record fails to show what paid holidays, if
any, the Nunica employees were receiving.
6 My finding that Closs made these calls after the employees had
mailed their Monday, February 21 letter, is based on Bewalda’s testi-
mony that he received Closs’ call about Wednesday of that week, and
on the testimony of both employees that they received these calls after
mailing the letter. Closs was still Specialty’s general superintendent at
the time of the hearing, but he did not testify. I infer that as to the date
of his telephone calls, he would have corroborated Strange and Be-
walda. Golden State Bottling Co. v. NLRB, 414 U.S. 168, 174 (1973);
Limestone Apparel Corp., 255 NLRB 722, 725 (1981), enfd. 705 F.2d
799 (6th Cir. 1982).
received these recall messages an unusually long period before
their recall date.
Chapman testified that he received the employees’ February
21 letter about February 23 or 24, and after they had received
their recall dates. By letters to Strange and Bewalda dated
February 24, 2000, identical except for the name of the ad-
dressee, Chapman stated:

I have your letter of February 21, 2000.
You have demanded that my communications to you
be in writing. This notification is in satisfaction of that
demand.
You are directed to disregard the callback date of
March 20, 2000.
Further communication, when and if it occurs, will
also be in writing per your demands.

The June 23 complaint alleges, and Specialty’s answer ad-
mits, that in these letters Specialty “refused to recall . . .
Strange and . . . Bewalda from a seasonal layoff and it contin-
ues to refuse to recall them to this date.”
On March 23 Chapman happened to encounter Strange at a
convenience store. Strange asked, “When are we going back to
work?” Chapman smiled and said, “You’re not,” that Strange
had been replaced. Strange said that he had always done what
had been asked of him, and that he had quickly responded to
Specialty’s needs. Strange mentioned one occasion when, at
Chapman’s request, Strange had taken a plane to Milwaukee on
45 minutes’ notice, and had helped Chapman “a lot” there,
“You were in a bind.” Chapman said, “I know. I hate to lose a
good guy. You’re been a good worker.” Chapman said that he
had no problem with Strange’s performance as an employee,
but that Chapman could not operate in the cross-hairs of a
threat, because he had too many other people whose welfare
was at stake (see infra part II F). Strange said, “Threat?”
Chapman said, “Yeah, that letter was a threat . . . I had three
people look at it, plus a labor attorney, and it was a threat . . . I
will not work under it.” The two of them then left the store.
Chapman started raising his voice and when Strange protested,
started to holler at him. At this point Strange walked back to
his car.7
Also, on March 23 Bewalda and his wife came to Chapman’s
office. Bewalda said, “I understand I’m not being called back.”
Chapman said, “That’s correct.” Bewalda asked, “All because
of this letter?” Chapman said yes. He said that too many other
people’s welfare was involved, that his hands were tied, and
that he could do nothing about it. He said that he had met with
three or four other people who said that the letter sounded like a
threat to him. Bewalda said, “No way.” Chapman said,
“There’s nothing in this letter that tells me you’re going to
come back. You demand a response in writing. If I respond in
writing and don’t get a response back, by that time I’ve lost
even more time.” Mrs. Bewalda said, “Go ahead. Fire him.”
Chapman said, “He’s not fired. He’s laid off.”
7 My findings in this paragraph are based on a composite of credible
parts of Strange’s and Chapman’s testimony. To the limited extent that
their testimony may differ, for demeanor reasons I credit Strange.
SPECIALTY SANDS, INC. 799
On an undisclosed date, Chapman asked Haynes why he had
signed the letter. Chapman testified (without objection or
limitation) that Haynes replied that he “was told” that “we all
had to sign this letter,” and that among the issues set forth in
the letter, his only problem was that “someone” at the
employees’ meeting about the letter had told him that “taxes
were being illegally . . . or improperly taken.” Haynes did not
testify. As to what Haynes was in fact told, Strange and
Bewalda credibly testified that Haynes was not told that all the
employees had to sign the letter because it would not work
unless everyone signed it.
E. The Replacement of Strange and Bewalda
Chapman testified that he received the February 21 letter
about February 23, and that immediately thereafter he began to
look for another dredge operator to replace Bewalda. Initially,
over a 2-day period, Specialty called all of the area employers
that had occasion to hire operators with dredge experience, and
asked if they could recommend or knew of anyone who could
operate a dredge. However, all of these employers were them-
selves looking for dredge operators. Then, in a further effort to
obtain a dredge operator, Personnel Manager Coulson went to a
job fair. Also, Specialty telephoned a number of persons with
some experience around sand and gravel pits, and interviewed
several of them. On March 27, 4 days after Chapman in effect
rejected dredge operator Bewalda’s request for recall, Specialty
hired applicant Lynn Kraft, who had recently moved to Muske-
gon from Oregon and had found Specialty’s name in the tele-
phone book, to replace Bewalda as a dredge operator (see Tr. at
95 LL. 2–3). About March 14 Respondent hired applicant
Nicholas J. Brown-Hudelson as a plant operator to replace
Strange. The record fails to show what relevant job experience,
if any, Brown-Hudelson had had before Specialty hired him, or
how much training, if any, he received between the time he was
hired and the time he began to work as a plant operator.
Ordinarily, Nunica employees resume production, on a two-
shift basis, after a week or 2 of preparatory operations. In 2000
Nunica production began on April 18, 4 weeks after the March
20 recall date issued to Bewalda and Strange. Moreover, such
production operations began on a one-shift basis, with Meyer as
the only employee who performed all the duties of a dredge
operator. During undisclosed dates before beginning to work
for Specialty, Kraft, whom Specialty hired as dredge operator
Bewalda’s replacement, had worked in a sand and gravel opera-
tion. He worked as a trainee with dredge operator Meyer be-
tween March 27 and May 8, at which point Specialty concluded
that Kraft was capable of running a full shift by himself and
went on to two shifts.
Laying to one side the fact that the jobs for which Kraft and
Brown-Hudelson were hired were seasonal jobs, both of these
employees were hired as permanent employees. Strange and
Bewalda had worked for Specialty for about 11 and about 12
years, respectively. Chapman testified at the September 2000
hearing that both of them were “good workers,” but that Chap-
man had no intention of calling them back to Specialty “be-
cause of what transpired in the past,” and “as of right now, you
can say that they’re permanently laid off.”
F. General Manager Chapman’s Testimonial Explanation for
Canceling Strange’s and Bewalda’s Recall Notices
Chapman testified that he based his decision to rescind the
recall notices of Bewalda and Strange on the February 21 letter
which they signed and sent to him. He testified that he inter-
preted this letter as a “veiled threat” that Bewalda and Strange
would not report to work on the March 20 recall date, and that
“I had a fear that they might not come back based on that letter
. . . I had no idea [what they were going to do and] I assumed
there was a very high likelihood [that they would not come
back]. And I acted accordingly.” Chapman testified that he
based his interpretation of the letter largely on the fact that the
letter requested a response by March 20, Strange’s and Be-
walda’s recall date.8 Strange and Bewalda both credibly testi-
fied that the purpose of the March 20 deadline was to allow
Chapman time to discuss monetary matters before the April 1
deadline after which Specialty’s financial package was fixed,
according to Specialty’s practices, for the next 12 months.
Chapman further testified that he based his “threat” conclusion
partly on the fact that some of the issues set forth in the letter
had already been discussed in August 1999 (see supra part IIB).
He testimonially characterized an issue which had not been
discussed in August—namely, the matter of FICA deductions
in connection with the employees’ “IRA or pension checks”—
as “absolutely squirrely.” Chapman testified that he telephoned
Cheyenne Sands’ Florida office, which issues “year-end
IRA’s,” and asked, “if there was any truth to this—that taxes
were being taken out of the amount [the employees] were
given, rather than prior to them receiving the amount so that
they would net the [$]2000,” and that he was told there had
been “no change in the procedure.”9
As previously noted in 2000 Nunica production began 2 or 3
weeks later than usual with respect to the recall date, and op-
erations on a two-shift basis, the normal practice from the out-
set of production, did not begin until the conclusion of the
training of Bewalda’s replacement, almost 3 weeks after the
delayed start of production. As to the reason for Chapman’s at
least alleged February 24 “fear” that Bewalda and Strange
might not report to work on their March 20 recall date, Chap-
man testified, in substance, that the customers of the Cheyenne
Sands subsidiaries require their products throughout the year;
that the unique kind of sand produced during Specialty’s sea-
sonal operations is an essential ingredient of product shipped by
other Cheyenne Sands subsidiaries to their customers; that Spe-
cialty’s stockpile of this unique kind of sand had been substan-
tially depleted during the 1999–2000 seasonal shutdown; and
that unavailability to other Cheyenne Sands subsidiaries of

8 As previously noted, the letter had been mailed before Bewalda
and Strange had been advised of their recall date. An earlier draft
(dated February 15) of this letter had requested a response by March
13. Meyer gave Chapman a copy of this earlier draft in April 2000.
9 Chapman’s rather vague testimony suggests that he interpreted the
employees’ letter as claiming (inaccurately, according to his informa-
tion from Cheyenne Sands’ Florida office) that Specialty had recently
started to deduct FICA taxes from payments into the employees’ IRA
accounts before making these payments. Whether he correctly inter-
preted this portion of the letter is immaterial to this proceeding. So far
as the record shows, he never discussed this matter with the employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 800
Specialty’s unique kind of sand would cause the subsidiaries to
lose a lot of business and might cause them to lose what had
previously been regular customers. As of April 17, 2000, when
production for that year began, the Nunica operation had about
7120 tons of product in its stockpile, almost double the number
of tons usually in its stockpile upon resumption of operations at
the end of the seasonal shutdown, and enough to supply Spe-
cialty’s sister corporations (its only direct customers) until at
least May 4.
Chapman credibly testified that he never asked Bewalda or
Strange whether they planned to come back to work, and that
Haynes (the remaining signatory to the February 21 letter) did
not tell Chapman that Bewalda and Strange did not plan to
come back to work. Bewalda and Strange both credibly testi-
fied that during the meetings where they discussed the prepara-
tion of the February 21 letter to Chapman, they said nothing
about not reporting for work; Bewalda credibly testified that
this “didn’t cross our minds, at least not mine.” Strange credi-
bly testified that during these meetings there was no talk about
striking. Strange and Bewalda credibly testified that they were
not prepared to take any action if Chapman did not respond to
the letter. Chapman credibly testified that before he decided
not to recall Strange and Bewalda, they had not engaged in any
slowdown or a sitdown strike, or any type of misconduct, and
that when he decided not to recall them, they did not defy any
authority or orders.
G. Analysis and Conclusions
It is well settled that an employer violates Section 8(a)(1) of
the Act by taking personnel action against an employee because
he has engaged in concerted activity which is protected by Sec-
tion 7 of the Act.10 As previously noted, Chapman told Be-
walda and Strange that he had rescinded their recall notices,
and permanently laid them off, because they had signed the
February 21 letter, which asked Chapman to advise the em-
ployees what could be done to correct the perceived “deficient
areas” of holiday pay, shift premiums, and the gross and net
size of the employees’ IRA or pension checks. Similarly,
Chapman himself testified that it was this letter on which he
based his decision not to recall these two employees. More-
over, the employees’ action in drafting this letter and mailing it
to General Manager Chapman constituted protected concerted
activity, at least if the letter is taken at face value. Liberty
Natural Products, 314 NLRB 630, 637 (1994); CleanPower,
Inc., 316 NLRB 496, 497 (1995). However, Specialty contends
that the letter contains an “implicit threat” that Bewalda and
Strange would not return to work on the recall date if their
“demands” were not met; and that, therefore, (1) the signing
and mailing of the letter did not constitute activity protected by
the Act and/or (2) Specialty justifiably rescinded their recall
notices as a “defensive” measure.
As to whether the letter contained such an “implicit threat,” I
see nothing in the evidence cited in Specialty’s brief to cast any
doubt on the sincerity of Bewalda’s and Strange’s credited tes-

10 NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962); Vic Tanny
International, v. NLRB, 622 F.2d 237 (6th Cir. 1980); Robbins Engi-
neering, 311 NLRB 1079, 1083–1084 (1993).
timony that even if Chapman did not respond to the February 21
letter, Bewalda and Strange intended to report to work when the
2000 season began. Thus, the evidence shows that the March 20
date by which the letter requested an answer was in no way
motivated by the employees’ March 20 recall date, of which the
employees were not advised until after the letter was mailed.
Nor is these employees’ credible testimony about their intent
undermined by their August 1999 conference with Chapman
about some of the issues raised in the February 2000 letter. As
Specialty admits, the August 1999 conference had not dealt with
tax deductions in connection with the employees’ IRA. Fur-
thermore, there is no record evidence that the employees’ Au-
gust 1999 request for shift premiums specified an amount
(whereas the February 2000 letter specified 35 cents), there is no
clear record evidence that the employees’ August 1999 request
for an increase in their IRA or pension checks specified an
amount (the February 2000 letter requested an increase of “at
least” $500),11 and Respondent’s July 23, 1999, bulletin regard-
ing company policies failed to state whether the holidays there
described were paid or unpaid. In any event, employees’ request
for an explanation of “what can be done to correct . . . deficient
areas,” previously complained about and perceivedly as yet
unrectified, does not support the inference that unless the com-
plaining employees received such an explanation they did not
intend to return to work. Rather, Strange’s and Bewalda’s
credible testimony, and their March 23 expression to Chapman
(after Nunica had resumed operations on March 20 without a
response from Chapman to the concerns expressed in the em-
ployees’ February 21 letter) of their continued interest in return-
ing to work there, preponderantly show that whether or not they
received a response they had intended to comply with the recall
notices which Specialty rescinded because of their letter.
Specialty may be contending that its rescission of the recall
notices was nonetheless lawful because Chapman allegedly
entertained an honest belief that the letter threatened that the
employees would not return. However, the record preponder-
antly shows that Chapman did not in fact entertain such a be-
lief. As Specialty does not appear to question, the letter on its
face makes no such assertion. Moreover, Chapman by his own
admission never asked either Bewalda or Strange whether he
intended to return to work on the recall date.12 Indeed, after the
March 20 date had passed and dredge operator Bewalda dis-
played interest in being recalled, Chapman refused, even
though he had not hired even a trainee dredge operator and
even though the training of the replacement whom Chapman
eventually did hire required Respondent to delay by 6 weeks
the initiation of a second shift, which Respondent routinely
used whenever the Specialty facility was actually producing.
11 Chapman testified that as to the August 1999 request for an in-
crease in the “retirement benefit money,” the employees requested an
increase of “I think a thousand dollars. I’m not sure. I’m not sure there
was even a number. They just wanted it increased.”
12 He tendered the testimonial explanation that the employees’ letter
told him to communicate with them in writing, and “I didn’t have the
time. If I’d written back to them and they’d not responded, I would
have lost a week right there.” However, the employees’ letter re-
quested a reply “by mail or individually,” and admittedly, he did not
telephone them either.
SPECIALTY SANDS, INC. 801
Rather, I credit Chapman’s testimony that the February 21 let-
ter offended him and challenged his authority, and find, con-
trary to his testimony, that it was this aspect of the letter that
caused him to rescind the employees’ recall notices.13 Thus, as
to the request in the letter that he get back to the employees by
March 20, he testimonially expressed extreme annoyance, on
the ground that Specialty had always followed the practice of
telling the employees on April 1, after their late March return
from seasonal layoff, “what their raises were and what the
monetary conditions were” (at which point in time, he testified,
Specialty’s accounting-based practice rendered the employees’
monetary compensation unchangeable until the following
April). Furthermore, he rather peevishly testified that almost
all of the issues raised in the letter were “old” as to which he
and the employees had already had “a long discussion;” the
exceptions being the employees’ at least allegedly “squirrely”
allegations regarding FICA deductions in connection with their
IRA accounts and the employees’ request, which Specialty at
least allegedly could not lawfully grant, for an increase in the
employees’ “retirement money.”
Moreover, Specialty’s rescission of the recall notices was
unlawful even if in fact motivated by an honest belief that the
employees would not honor the recall notices unless Specialty
gave a “response” to their letter. Assuming for the moment that
such an intention by the employees would have rendered the
letter unprotected, Specialty cannot rely on even an honest
belief that the employees entertained such an intention in view
of the evidence which preponderantly shows that this was not
in fact their intention. NLRB v. Burnup & Sims, 379 U.S. 21
(1964); Teledyne Industries v. NLRB, 911 F.2d 1214, 1222 (6th
Cir. 1990); Pepsi-Cola Co., 330 NLRB 474 (2000).14 In any
event, the employees’ February 21 letter could not have been
rendered unprotected by the failure of even both of these em-
ployees (let alone, as to one of them by the failure of the
other)15 to return to work on their recall date. Such action

13 Chapman testified that at least part of the reason why no termina-
tion letter had been sent to the third letter-signer, Haynes, who for
several years had been working year-round at Standard’s premises, was
that he had never made any of the complaints set forth in the letter.
14 Specialty’s brief points to Justice Harlan’s separate Burnup &
Sims opinion, dissenting in part from the majority, that “it is hardly fair
that the employer should be faced with the choice of risking damage to
his business or incurring a penalty for taking honest action to thwart it.
[The proper rule] would require reinstatement of the mistakenly dis-
charged employee and backpay only as of the time that the employer
learned, or should have learned of his mistake, subject, however, to a
valid business reason for refusing reinstatement,” such as “if a re-
placement had been hired and the employee unduly delayed in appris-
ing the employer of the mistake” (379 U.S. at 24). However, even the
approach advocated by Justice Harlan’s dissent does not advance Spe-
cialty’s cause. Thus, Specialty affirmatively learned on March 23 that
the employees had intended to return on their March 20 recall date; as
of March 23 no replacement for Bewalda had been hired; until March
23 Specialty had never (so far as the record shows) told either em-
ployee that it feared they would not return on the recall date; Strange
was never so advised, so far as the record shows; and the employees
were never asked whether they would return.
15 Garment Workers Union v. NLRB, 237 F.2d 545, 550–552 (D.C.
Cir. 1956).
could not reasonably be characterized as misconduct. Indeed, if
jointly engaged in, it might in itself constitute concerted activ-
ity protected by Section 7 of the Act and, therefore, conduct
whose anticipation cannot serve as a lawful motive for exclud-
ing employees from the employment relationship; see NLRB v.
Town & Country Electric, 516 U.S. 85 (1995).
Specialty principally defends its rescission of Bewalda’s and
Strange’s recall notices on the ground that when resuming op-
erations for the season, Specialty needed to start production as
soon as and at the highest rate possible in order to provide sand
to its sister Cheyenne Sands companies, which in turn provide
raw materials to customers whose need therefor is yearround
and not seasonal. This contention is wholly irrelevant to Spe-
cialty’s conduct in rescinding Bewalda’s and Strange’s recall
even before starting to look for replacements. This contention
is also wholly irrelevant to Specialty’s conduct in refusing
dredge operator Bewalda’s own at least tacit recall request (3
days after his rescinded recall date) before hiring job applicant
Kraft as a trainee to replace the experienced Bewalda. More-
over, even where motivated solely by such business exigencies,
conduct otherwise unlawful (here, because motivated by the
employees’ Section 7—protected letter) is not automatically
excused; rather, a determination as to whether such conduct is
nonetheless an unfair labor practice requires “weighing the
interests of employees in concerted activity against the interest
of the employer in operating his business in a particular manner
and . . . balancing in the light of the Act and its policy the in-
tended consequences upon employee rights against the business
ends to be served by the employer’s conduct.” NLRB v. Erie
Resistor Corp., 373 U.S. 221, 228–229 (1963). In the instant
case, Specialty claimed “business ends” were disadvantaged by
its action, immediately after receiving the employees’ Section
7-protected letter, in rescinding the signatories’ recalls without
so much as asking them whether they intended to return if they
failed to receive a response. Indeed, if Specialty had even
complied with dredge operator Bewalda’s March 23 request to
be returned to work after Chapman had failed to respond to the
concerns expressed in the February 21 letter, and before Spe-
cialty had hired a trainee dredge operator as a replacement,
Specialty would have been able to begin production operations
on a two-shift basis about the usual date in late March, without
a 3-week delay in starting production, and an additional 3-week
delay in beginning two-shift operations, owing to the need to
train the new dredge operator. Furthermore, Specialty does not
claim that it anticipated or experienced any particular difficulty
in obtaining on short notice an immediately productive plant
operator to replace Strange. For these reasons, the intended
consequences of Bewalda’s and Strange’s termination upon
employees’ rights outweigh the business ends allegedly served
by Specialty’s conduct.
Specialty counsel’s opening statement at the hearing sug-
gested that Specialty’s February 24 action was analogous to a
lawful “defensive lockout”—presumably “defensive” against
the problems which would have been created if Bewalda and
Strange had in fact failed to report to work on March 20. How-
ever, during a “defensive” lockout, the employer is privileged
to hire only temporary replacements, and may not lawfully hire
permanent replacements. See Harter Equipment, 293 NLRB
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 802
647 (1989); Georgia-Pacific Corp., 281 NLRB 1 (1986); Cen-
tral Illinois Public Service Co., 326 NLRB 928 (1998), affd.
215 F.3d 11 (D.C. Cir. 2000), cert. denied 531 U.S. 1051 sub
nom. Electrical Workers Local 702 (2000). Chapman testified
that the employees hired for Bewalda’s and Strange’s jobs were
permanent replacements.
For the foregoing reasons, I find that Specialty violated Sec-
tion 8(a)(1) of the Act on February 21, 2000, by refusing to
recall employees Bewalda and Strange after a seasonal layoff.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Respondent has violated Section 8(a)(1) of the Act on
February 24, 2000, by refusing to recall employees Richard W.
Strange and Allan A. Bewalda after a seasonal layoff.
3. The unfair labor practice set forth in Conclusion of Law 2
affects commerce within the meaning of Section 2(6) and (7) of
the Act.
REMEDY
Having found that Respondent has violated the Act in certain
respects, I shall recommend that Respondent be ordered to
cease and desist from such conduct, and like or related conduct,
and to take certain affirmative action necessary to effectuate the
policies of the Act.
Respondent will be required to offer employees Richard W.
Strange and Allan A. Bewalda reinstatement to their former
positions or, if such positions no longer exist, to substantially
equivalent positions. Also, Respondent will be required to
make them whole for any loss of earnings and other benefits
they may have suffered by reason of Respondent’s refusal to
recall them, as prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950), with interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987). In addition, Respondent
will be required to expunge from its records all references to
these employees’ unlawful termination, and to notify them in
writing that this has been done and that the actions and matters
reflected in these documents will not be used against them in
any way.
Also, Respondent will be required to post appropriate notices
during a period when Specialty’s production operations, which
are seasonal in nature, are actually being carried on by employ-
ees. At the time of the hearing, employee Haynes, who signed
the Section 7-protected letter which caused Specialty to termi-
nate the two other signatories, was still on Specialty’s payroll
but for several years had been working at the premises of Stan-
dard Sand, a sister corporation. It is obviously appropriate that
he be apprised of the contents of the notice. Accordingly, if
during the posting period Haynes is still in Specialty’s employ
but performs his duties on premises not occupied by Specialty,
a copy of the notice is to be mailed to him.
On the basis of these findings of fact and conclusions of law
and the entire record, and pursuant to Section 10(c) of the Act, I
issue the following recommended Order16

16 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
ORDER
The Respondent Specialty Sands, Inc., Nunica, Michigan, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to recall employees from a seasonal layoff be-
cause they have engaged in activities protected by Section 7 of
the Act.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Offer Richard W. Strange and Allan A. Bewalda, within
14 days of the date of this Order, full reinstatement to their
former positions or, if such positions no longer exist, substan-
tially equivalent positions, without prejudice to their seniority
or other rights and privileges previously enjoyed.
(b) Make Richard W. Strange and Allan A. Bewalda whole
for any loss of earnings and other benefits they may have suf-
fered as a result of Respondent’s refusal to recall them in the
manner set forth in the remedy section of this decision.
(c) Within 14 days from the date of this Order, remove from
its files all references to the unlawful refusal to recall Richard
W. Strange and Allan A. Bewalda, and within 3 days thereafter,
notify such employees that this has been done and that the ac-
tions and matters reflected in these documents will not be held
against them in any way.
(d) Preserve and, on 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, including an electronic copy
of such records if stored in electronic form, necessary or useful
in analyzing the amount of backpay due under the terms of this
Order.
(e) Within 14 days after service by Region 7, post at its facil-
ity in Nunica, Michigan, copies of the attached notice marked
“Appendix.”17 Copies of the notice, on forms provided by the
Regional Director for Region 7, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent immediately on receipt and maintained while pro-
duction operations are being carried on for 60 consecutive days
in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the event
that during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to current employees and
former employees employed by the Respondent at its Nunica

adopted by the Board, and all objections to them shall be deemed
waived for all purposes.
17 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
SPECIALTY SANDS, INC. 803
facility at any time since February 24, 2000. If, during the
posting period employee Dan Haynes is still employed by Re-
spondent but is not working on its premises, Respondent shall
also, at its own expense, duplicate a copy of the notice and mail
it to him.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated the
National Labor Relations Act and has ordered us to post and abide
by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con
certed activities.

WE WILL NOT refuse to recall you from a seasonal layoff
because you have engaged in conduct protected by the Act.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of your rights under the
Act.
WE WILL, within 14 days of the date of the Board’s order,
offer Richard W. Strange and Allan A. Bewalda reinstatement
to their former positions or, if such positions no longer exist,
substantially equivalent positions, without prejudice to their
seniority or other rights and privileges previously enjoyed.
WE WILL make Richard W. Strange and Allan A. Bewalda
whole, with interest, for any loss of earnings and other benefits
suffered as a result of the February 24, 2000 rescission of their
recall notices.
WE WILL, within 14 days from the date of the Board’s Or-
der, remove from our files all references to our unlawful refusal
to recall Richard W. Strange and Allan A. Bewalda, and WE
WILL, within 3 days thereafter, notify them in writing that this
has been done and that the action and matters reflected in these
documents will not be held against them in any way.

SPECIALTY SANDS, INC.