Bentonite Performance Minerals, LLC

National Labor Relations Board - Board Decisions

Dec 31, 2008

353 N.L.R.B. 668 (N.L.R.B. 2008)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
353 NLRB No. 75
668
Bentonite Performance Minerals, LLC, a product and
service line of Halliburton Energy Services, Inc.
and International Chemical Workers Union
Council/United Food and Commercial Workers
Union, CLC, Local 353C. Cases 27–CA–20596,
27–CA–20681, and 27–CA–20697
December 31, 2008
DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On June 2, 2008, Administrative Law Judge James M.
Kennedy issued the attached decision. The Respondent
filed exceptions, a supporting brief, and an answering
brief. The General Counsel filed cross-exceptions, a
supporting brief, and an answering brief. The Charging
Party filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings,1
findings,2 and conclusions and to adopt the recom-
mended Order as modified3 and set forth in full below.4

1 The Respondent contends that some of the judge’s rulings, find-
ings, and conclusions demonstrate bias and prejudice. On careful ex-
amination of the judge’s decision and the entire record, we are satisfied
that the Respondent’s contentions are without merit.
2 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.
In adopting the judge’s finding that the Respondent violated Sec.
8(a)(1) by interrogating and promising benefits to employees Ivan
Bierma and Dick Holdhusen, we do not rely on his findings that Plant
Manager Mike Houston’s use of a comparison chart, highlighting the
differences in benefits between its union and nonunion facilities, was
“intended to spark” a conversation regarding the decertification of the
Union, and that the Respondent’s use of the comparison chart, alone,
constituted a promise of benefits. Rather, we rely on evidence that,
when Houston showed Bierma and Holdhusen the comparison chart, he
asked whether they had signed “the paper,” referenced his managerial
“power to do stuff,” and told them that things “would be better around
here.” Further, in view of these promise-of-benefits findings, we find it
unnecessary to pass on the judge’s findings concerning additional
promises of benefits to employees, as any such findings would be cu-
mulative and would not affect the remedy.
We adopt the judge’s finding that the Respondent violated Sec.
8(a)(1) by interrogating employee John Preisner. However, we find it
unnecessary to pass on the judge’s additional finding, that the Respon-
dent violated Sec. 8(a)(1) by interrogating employee Dan McGinnis, as
any such finding would be cumulative and would not affect the remedy.
We additionally adopt the judge’s findings that the Respondent vio-
lated Sec. 8(a)(1) by soliciting employees Gregory DeKnikker, Preis-
ner, Zachary Zupan, Thomas Davis, Charles Callison, Dave Dell, and
McGinnis. We therefore find it unnecessary to pass on the judge’s
findings that the Respondent violated Sec. 8(a)(1) by soliciting employ-
ees William Kester, John Kreitel, and Jeffrey Westland, as any such
AMENDED REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain steps to effectuate the policies
of the Act. Having adopted the judge’s findings that the
Respondent violated Section 8(a)(5) and (1) by with-
drawing recognition from the Union, failing to furnish
the Union with information requested on July 19 and 23,
2007, and unilaterally changing wages and other terms
and conditions of employment, we shall order, in addi-
tion to the relief described in the remedy section of the
judge’s decision, the Respondent to (1) immediately pro-
vide the information requested by the Union in its letters
of July 19 and 23, 2007; (2) on request, bargain in good
faith with the Union; and (3) if requested by the Union,
rescind any or all of the unilateral changes and restore
the previously existing wages and other terms and condi-

findings would be cumulative and would not affect the remedy. The
General Counsel excepts to the judge’s failure to find that employees
Marty Brosnahan, McGinnis, Preisner, and Westland were agents of the
Respondent. We find it unnecessary to pass on those exceptions as any
such additional 8(a)(1) solicitation findings based on their agency status
would be cumulative and would not affect the remedy.
The Respondent excepts to the judge’s finding that it violated Sec.
8(a)(1) by discouraging the employees from attending a union meeting.
The Respondent, however, does not state, either in its exceptions or
supporting brief, any grounds on which this purportedly erroneous
finding should be overturned. Therefore, in accordance with Sec.
102.46(b)(2) of the Board’s Rules and Regulations, we shall disregard
this exception. See Holsum de Puerto Rico, Inc., 344 NLRB 694 fn. 1
(2005), enfd. 456 F.3d 265 (1st Cir. 2006).
3 The judge recommended imposing a broad remedial cease-and-
desist order on the ground that the Respondent had demonstrated a
proclivity to violate the Act. See Hickmott Foods, 242 NLRB 1357
(1979). We find that, under the circumstances, including that the Gen-
eral Counsel did not seek this remedy, a broad order is not warranted,
and we shall substitute a narrow order requiring the Respondent to
cease and desist from violating the Act “in any like or related manner.”
In its exceptions, the General Counsel contends that the judge’s res-
toration remedy does not permit the Union to “pick and choose” which
benefits should be rescinded or restored. We have modified the judge’s
restoration remedy to require the Respondent to rescind only those
unilateral changes as to which the Union seeks rescission.
We shall modify the judge’s remedy to include the Board’s tradi-
tional make-whole language for any losses of benefits resulting from
the Respondent’s unilateral changes, including its amendments to the
employees’ retirement plan, health benefits plan, vacation benefits, and
wages. In addition, we shall modify the judge’s recommended Order
and substitute a new notice to include the Board’s standard remedial
language for the violations found.
4 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
BENTONITE PERFORMANCE MINERALS 669
tions of employment. To the extent that the unlawful
unilateral changes have improved the terms and condi-
tions of employment of unit employees, the Order set
forth below shall not be construed as requiring or author-
izing the Respondent to rescind such improvements
unless requested to do so by the Union. We shall further
order the Respondent to make unit employees and former
unit employees whole for any losses suffered as a result
of those unilateral changes in the manner prescribed in
Ogle Protection Service, 183 NLRB 682 (1970), enfd.
444 F.2d 502 (6th Cir. 1971), with interest as prescribed
in New Horizons for the Retarded, 283 NLRB 1173
(1987).
In addition, we shall require, to the extent applicable,
the Respondent to remit all payments it owes to em-
ployee retirement, 401(k), and health care funds, with
interest, as provided in Merryweather Optical Co., 240
NLRB 1213 (1979), and to make employees and former
employees whole for any expenses they may have in-
curred as a result of the Respondent’s failure to make
such payments, as set forth in Kraft Plumbing & Heat-
ing, 252 NLRB 891 (1980), enfd. mem. 661 F.2d 940
(9th Cir. 1981).5
The judge recommended an affirmative bargaining or-
der to remedy the Respondent’s unlawful withdrawal of
recognition, but did not justify imposition of such an
order as required by the United States Court of Appeals
for the District of Columbia Circuit. Nevertheless, for
the reasons set forth below, we agree with the judge that
an affirmative bargaining order is warranted on the facts
of this case.
The Board has previously held that an affirmative bar-
gaining order is “the traditional, appropriate remedy for
an 8(a)(5) refusal to bargain with the lawful collective-
bargaining representative of an appropriate unit of em-
ployees.” Caterair International, 322 NLRB 64, 68
(1996). In several cases, however, the United States
Court of Appeals for the District of Columbia Circuit has
required the Board to justify, on the facts of each case,
the imposition of an affirmative bargaining order. See,
e.g., Vincent Industrial Plastics, Inc. v. NLRB, 209 F.3d

5 As the Board stated in Larry Geweke Ford, 344 NLRB 628 (2005),
“[t]he standard remedy for unilaterally implemented changes in health
insurance coverage is to order the restoration of the status quo ante.”
(Cites omitted.) The Respondent may litigate in compliance whether it
would be unduly burdensome to restore the health insurance carrier in
effect prior to July 13, 2007. Id. See also Laurel Baye Healthcare of
Lake Lanier, LLC, 352 NLRB 179 fn. 3 (2008). If, however, the Union
chooses continuation of the unilaterally implemented health insurance
policy, then make-whole relief for the unilateral changes is inapplica-
ble. See id. (citing Brooklyn Hospital Center, 344 NLRB 404 (2005)).
Although Member Liebman dissented on that point in Brooklyn Hospi-
tal Center, supra at fn. 3, she recognizes that it is extant Board law and,
for that reason alone, applies it here.
727 (D.C. Cir. 2000); Lee Lumber & Building Material
Corp. v. NLRB, 117 F.3d 1454, 1462 (D.C. Cir. 1997);
and Exxel/Atmos, Inc. v. NLRB, 28 F.3d 1243, 1248
(D.C. Cir. 1994). In Vincent Industrial Plastics, supra,
the court stated that an affirmative bargaining order
“must be justified by a reasoned analysis that includes an
explicit balancing of three considerations: (1) the em-
ployees’ Section 7 rights; (2) whether other purposes of
the Act override the rights of employees to choose their
bargaining representatives; and (3) whether alternative
remedies are adequate to remedy the violations of the
Act.” Supra at 738. Consistent with the court’s require-
ment, we have examined the particular facts of this case
and we find that a balancing of the three factors warrants
an affirmative bargaining order.6
(1) As the Board stated in Parkwood Developmental
Center, Inc.,7 an affirmative bargaining order in this case
vindicates the Section 7 rights of the unit employees who
were denied the benefits of collective bargaining by the
Respondent’s unlawful withdrawal of recognition and
resulting refusal to collectively bargain with the Union.
At the same time, an affirmative bargaining order, with
its attendant bar to raising a question concerning the Un-
ion’s continuing majority status for a reasonable time,
does not unduly prejudice the Section 7 rights of em-
ployees who may oppose continued union representation
because the order’s duration is not indefinite but only for
a reasonable period of time sufficient to allow the good-
faith bargaining that the Respondent’s unlawful with-
drawal of recognition cut short. It is only by restoring
the status quo ante and requiring the Respondent to bar-
gain with the Union for a reasonable period of time that
employees’ Section 7 right to union representation is
vindicated. It will also give employees an opportunity to
fairly assess the Union’s effectiveness as a bargaining
representative and determine whether continued repre-
sentation by the Union is in their best interests.
(2) An affirmative bargaining order also serves the
Act’s policies of fostering meaningful collective bargain-
ing and industrial peace. It removes the Respondent’s
incentive to delay bargaining in the hope of discouraging

6 Chairman Schaumber does not agree with the view expressed in
Caterair International, supra, that an affirmative bargaining order is
“the traditional, appropriate remedy for an 8(a)(5) violation.” He
agrees with the United States Court of Appeals for the District of Co-
lumbia Circuit that a case-by-case analysis is required to determine if
the remedy is appropriate. Alpha Associates, 344 NLRB 782 fn. 14
(2005). He recognizes, however, that the view expressed in Caterair
International, supra, represents extant Board law. Flying Foods, 345
NLRB 101 fn. 23 (2005). Regardless of which view is applied here,
Chairman Schaumber agrees that an affirmative bargaining order is
warranted.
7 347 NLRB 974, 976–977 (2006).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD670
support for the Union, and it ensures that the Union will
not be pressured to achieve immediate results at the bar-
gaining table—results that might not be in the employ-
ees’ best interests. It fosters industrial peace by reinstat-
ing the Union to its rightful position as the bargaining
representative chosen by a majority of the employees.
Also, as mentioned, providing this temporary period of
insulated bargaining will afford employees a fair oppor-
tunity to assess the Union’s performance in an atmos-
phere free of the effects of the Respondent’s unlawful
withdrawal of recognition and refusal to bargain.
(3) As an alternative remedy, a cease-and-desist order,
alone, would be inadequate to remedy the Respondent’s
withdrawal of recognition and refusal to bargain with the
Union because it would allow another challenge to the
Union’s majority status before the employees had a rea-
sonable time to regroup and bargain with the Respondent
through their chosen representative in an effort to reach a
collective-bargaining agreement. Such a result would be
particularly unfair where the Respondent’s unfair labor
practices already have given rise to a tainted petition
expressing the employees’ coerced dissatisfaction with
the Union. We find that these circumstances outweigh
the temporary impact the affirmative bargaining order
will have on the rights of employees who oppose contin-
ued union representation.8
For all the foregoing reasons, we find that an affirma-
tive bargaining order with its temporary decertification
bar is necessary to fully remedy the violation in this case.
ORDER
The Respondent, Bentonite Performance Minerals,
LLC, a Product and Service Line of Halliburton Energy
Services, Inc., Colony, Wyoming, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating its employees to deter-
mine their sentiments concerning union representation.
(b) Coercively proposing the idea of decertification pe-
titions.
(c) Soliciting employees, either directly or indirectly,
to sign decertification petitions.
(d) Making promises of improved conditions if the Un-
ion, International Chemical Workers Union Coun-
cil/United Food and Commercial Workers Union, CLC,
Local 353C, was ousted as their collective-bargaining
representative.
(e) Interfering with the Union’s right to communicate
with the employees it represents.

8 Parkwood, supra, 347 NLRB at 977; see also Goya Foods of Flor-
ida, 347 NLRB 1118, 1123 (2006); Smoke House Restaurant, 347
NLRB 192, 194 (2006).
(f) Withdrawing recognition of the Union as the exclu-
sive collective-bargaining representative of its employees
at its Colony, Wyoming operation.
(g) Unilaterally granting wage increases to members of
the Colony bargaining unit without first bargaining with
the Union.
(h) Unilaterally granting improved vacation benefits,
health benefits, retirement benefits, or any other manda-
tory bargaining subjects to members of the Colony bar-
gaining unit without first bargaining with the Union.
(i) Refusing to provide the Union with the information
it has requested that is relevant to collective bargaining.
(j) In any like or related manner interfering with, re-
straining, 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
effectuate the policies of the Act.
(a) Recognize and, on request, bargain collectively in
good faith with the Union in the following appropriate
bargaining unit:
All production and maintenance employees, including
employees temporarily assigned as watchmen, in Re-
spondent’s mining, milling and packing operations lo-
cated near Colony, Wyoming, but excluding office and
clerical employees, weigh masters, laboratory techni-
cians, watchmen, foremen and supervisory employees.
(b) On the Union’s request, rescind the unilateral
changes and restore the previously existing wages and
other terms and conditions of employment as they ex-
isted prior to July 13, 2007, and make unit employees
and former unit employees whole for any losses suffered
as a result of those unilateral changes, and for any ex-
penses they may have incurred as a result of the Respon-
dent’s failure to make the required payments into the
employee retirement, health care, and 401(k) plans in the
manner described in the amended remedy section of this
Decision. However, nothing in this Order shall be con-
strued as requiring the Respondent to rescind any benefit
previously granted unless the Union requests such action.
(c) Reimburse, to the extent applicable, the employee
retirement, health care, and 401(k) plans, with interest,
for unpaid contributions to those plans in the manner
described in the amended remedy section of this deci-
sion.
(d) Furnish to the Union in a timely manner the infor-
mation requested by it on July 19 and 23, 2007.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
BENTONITE PERFORMANCE MINERALS 671
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay and
other moneys due under the terms of this Order.
(f) Within 14 days after service by the Region, post at
its mining and milling operation near Colony, Wyoming,
copies of the attached notice marked “Appendix.”9 Cop-
ies of the notice, on forms provided by the Regional Di-
rector for Region 27 after being signed by Respondent’s
authorized representative, shall be posted by Respondent
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, Respon-
dent has gone out of business or closed the facility in-
volved in these proceedings, Respondent shall duplicate
and mail, at its own expense, a copy of the notice to all
current employees and former employees employed by
the Respondent at any time since July 9, 2008.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing 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 Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT coercively interrogate you to determine
your sentiments concerning union representation.

9 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.”
WE WILL NOT coercively propose the idea of decertifi-
cation petitions.
WE WILL NOT solicit you, either directly or indirectly,
to sign decertification petitions.
WE WILL NOT make promises of improved conditions
if the Union, International Chemical Workers Union
Council/United Food and Commercial Workers Union,
CLC, Local 353C, was ousted as your collective-
bargaining representative.
WE WILL NOT interfere with the Union’s right to com-
municate with you.
WE WILL NOT withdraw recognition of the Union as
the exclusive collective-bargaining representative of our
employees at our Colony, Wyoming operation.
WE WILL NOT unilaterally grant wage increases to
members of our Colony bargaining unit without first bar-
gaining with the Union.
WE WILL NOT unilaterally grant improved vacation
benefits, health benefits, retirement benefits, or any other
mandatory bargaining subjects to members of our Col-
ony bargaining unit without first bargaining with the Un-
ion.
WE WILL NOT refuse to provide the Union with the in-
formation it has requested that is relevant to collective
bargaining.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act and which are
enumerated above.
WE WILL, on request, recognize and bargain collec-
tively in good faith with the Union in the following ap-
propriate bargaining unit:
All production and maintenance employees, including
employees temporarily assigned as watchmen, at our
mining, milling and packing operations located near
Colony, Wyoming, but excluding office and clerical
employees, weigh masters, laboratory technicians,
watchmen, foremen and supervisory employees.
WE WILL, on the Union’s request, rescind the unilateral
changes and restore the previously existing wages and
other terms and conditions of employment as they ex-
isted prior to July 13, 2007, and WE WILL make you
whole, with interest, for any losses suffered as a result of
those unilateral changes, and for any expenses you may
have incurred because of our failure to make the required
contributions to the employee retirement, health care, and
401(k) plans.
WE WILL reimburse the employee retirement, health
care, and 401(k) plans, for all unpaid contributions, with
interest.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD672
WE WILL furnish to the Union in a timely manner the
information requested by it on July 19 and 23, 2007.
BENTONITE PERFORMANCE MINERALS, LLC, A
PRODUCT AND SERVICE LINE OF HALLIBURTON
ENERGY SERVICES, INC.
Nancy S. Brandt and Isabel C. Acosta, for the General Counsel.
Howard S. Linzy (The Kullman Firm), of New Orleans, Louisi-
ana, for the Respondent.
Robert W. Lowrey, of Akron, Ohio, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge. This case
was tried before me for 7 days in Belle Fourche, South Dakota,
December 18–21, 2007, and January 23–25, 2008. The hearing
was pursuant to an amended consolidated complaint issued on
December 3, 2007,1 by the Regional Director for Region 27 of
the National Labor Relations Board (the Board). The com-
plaint is based on unfair labor practice charges filed by Interna-
tional Chemical Workers Union Council/United Food and
Commercial Workers Union, CLC, Local 353C (the Union) on
August 16, November 2 and 26. It alleges that Bentonite Per-
formance Minerals, LLC, a Product and Service Line of Halli-
burton Energy Services, Inc. (Respondent) has engaged in cer-
tain violations of Section 8(a)(1) and (5) of the National Labor
Relations Act (the Act). Respondent denies the allegations.
The issues presented here are relatively simple. The com-
plaint asserts that Respondent induced its employees into repu-
diating the Union as their representative. In the course of this
campaign, Respondent is alleged to have coercively interro-
gated its employees, promised them benefits and induced them
to create disaffection petitions. The complaint goes on to assert
that Respondent improperly utilized the results of those disaf-
fection petitions to justify withdrawing recognition of the Un-
ion and following the withdrawal made unlawful unilateral
changes in the employees’ wages and working conditions. As
will be seen, the disaffection solicitation occurred over a period
of 4 days in July 2007.
The parties were given full opportunity to participate, to in-
troduce relevant evidence, to examine and cross-examine wit-
nesses, and to file briefs. All parties have filed briefs which
have been carefully considered. Based on the entire record of
the case, as well as my observation of the witnesses and their
demeanor, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Delaware corporation with operations near
Colony, Wyoming,2 where it mines and processes bentonite, a
mineral used in petroleum extraction. In the course of its op-

1 All dates are 2007, unless otherwise noted.
2 The record shows Respondent has another mine and plant in Lov-
ell, Wyoming. It may operate facilities at other sites as well. Locations
other than Colony are not at issue here.
erations at Colony, it annually sells and ships its products val-
ued in excess of $50,000 directly to points outside Wyoming.
Accordingly, it has admitted, and I find it to be an employer
engaged in commerce within the meaning Section 2(2), (6), and
(7) of the Act. In addition, it has admitted the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. BACKGROUND AND INTRODUCTION TO THE ISSUES
Bentonite is a type of clay which is used as a component of
drilling mud; it also has a large number of other commercial
uses. The Colony plant strip-mines the mineral at various loca-
tions within easy reach of that facility. It is then hauled to the
plant where it is dried, milled, packed in various formats, and
shipped by both truck and rail. Colony is remote, located in the
extreme northeast corner of Wyoming. The nearest town is
Belle Fourche, South Dakota, about 20 miles southeast. Most
of Respondent’s employees live in Belle Fourche, though some
live in Spearfish, Sturgis, or other nearby communities. They
can get to work by driving to Colony themselves or ride the
shift van from a parking lot in Belle Fourche. The plant cur-
rently operates 7 days a week, with four rotating shifts, three
shifts on and the fourth off. On Wednesdays, the shifts are
rotated, beginning with a new swing shift. The day and swing
shifts have 1 day off each week; the graveyard shift 2 days off.
The Colony operation consists of administrative offices, the
processing plant, a packing location, and a warehouse/shipping
facility, as well as areas for the Boragel and Baramix product
lines. From Colony it also directs the exploration for new min-
eral sites (through crews known as drillers) and the strip mining
itself. These field employees, as they are known, work 10-hour
days, taking advantage of the early daylight hours.
In 1948, the Union (through predecessors) was certified as
the exclusive collective-bargaining representative of the Colony
employees in a production and maintenance bargaining unit,
then operated by a predecessor. Halliburton acquired the com-
pany from Dresser Industries in 1998. The most recent collec-
tive-bargaining contract, having a term of 6 years, was signed
in October 2001 and was set to expire on October 21, 2007.
Events beginning on July 9, 4 months prior to that expiration
date, are the subject of this complaint.
As of the week of July 9, according to a stipulation, there
were 69 employees in the Colony bargaining unit. The Colony
managerial staff at that time consisted of Senior Plant Manager
Mike Houston, Plant Manager Danny Oaks, and Production
Manager Ray Dell. Supervisors who were involved here in-
clude Lyle Droppers and Gerry Bergum.3
III. PRINCIPAL FACTS
A. The AmericInn Meeting; Monday, July 9
Ostensibly to prepare for the upcoming negotiations with the
Union which were anticipated to begin some time before the
October 21 expiration date, Respondent called a meeting of its
Colony management and some advisors from elsewhere within

3 The other shift supervisors were Donnie Staley and Lawrence Wat-
tier. The mining crew supervisor was Martin Stroschein. The drillers
reported to a mining engineer, Joel Severin There was also a mainte-
nance foreman, not involved here.
BENTONITE PERFORMANCE MINERALS 673
the Halliburton system. The meeting was held at the largest
hotel/motel in Belle Fourche, the AmericInn, on July 9. The
three from Colony were Houston, Oaks, and Dell. Other people
attending were Howard Linzy, Respondent’s attorney (and
representative in this matter); Nora Polanis (described as a “su-
per paralegal”);4 Pat Goen, a records administrator from Wyo-
ming; and Ed Stanworth, from Halliburton’s Denver office.
Two others participated by telephone from their offices in
Texas, Monica Thurman and Steve Gray. An earlier meeting
had been held in May involving the same participants.
At the May meeting, according to Oaks, he had requested a
sheet comparing employee benefits under the collective-
bargaining contract with the benefits of employees who were
not working under that contract. Such a document was pre-
sented during the July 9 meeting. This document, and an iden-
tical one on which Oaks wrote some additional material, be-
came a significant tool in the disaffection solicitation which
began that evening.
During the meeting, according to Houston, Dell commented
that he was aware that a number of the employees were un-
happy with the Union and wanted to get rid of it. Dell asserted
that he had advised those employees, apparently over a long
period time, that he didn’t know how to get rid of the Union,
but that if he ever learned he would tell them. According to
Houston, Thurman responded by telling the group that to get rid
of the Union: “[T]he employees could pass a petition, and that
the petition needed to say something as simple as ‘I don’t want
a union’ or ‘I don’t want the Union,’ and that on the petition
they needed to sign, print, and date their—sign their name, print
their name, and mark the date.”
Thurman’s remark allegedly triggered a flurry of activity.
Oaks testified that the meeting shifted from negotiation
preparations to the prospect of decertification. In addition, the
participants began discussing the time frame in which that
could happen, concluding that the timing “was right.”
The first thing that happened was that Shift Supervisor Gerry
Bergum was summoned to the meeting, arriving about 2 p.m.
He had been called because his swing shift was scheduled to
begin work at 4 p.m. Oaks gave Bergum a copy of the benefit
comparison chart. Later that evening at the Boragel station,
Bergum gave it, or a copy, to bag handler John Preisner, saying
that he wanted the employees to have everything that Hallibur-
ton had to offer. Preisner had worked for Respondent for a
little over a year. Preisner testified: “He [Bergum] asked me
what I felt about the Union. And I said I didn’t care if it stayed
or went at that time. And he asked me if I would sign a petition
to get the Union out, and I said, yes, that I would. And he told
me what to write on the paper, ‘I do not want the Union.’ And
then he had me sign it, date it, and print my name on it.” Ber-
gum does not disagree with Preisner on the point. He does
assert that he did not show Preisner the comparison chart until
after Preisner had created and signed the petition sheet. He also
says Preisner took the signed sheet with him and he does not
know what happened to it.5

4 Polanis assisted Linzy during the hearing.
5 Bergum’s testimony:
Similarly, Dell decided to leave the meeting at about 4 p.m.
His purpose was to go to the parking lot in Belle Fourche to
meet the shift van in order to meet with Dan McGinnis, who
was getting off shift. Dell explained, “[B]ecause knowing of
his dissatisfaction, the timing was right. I learned that the tim-
ing was right that I could now share this information with him.
There was something he could do about it now.” He further
said, “I felt that [McGinnis] would be a good person to ap-
proach to see if his sentiments were still the same.”
At the parking lot Dell called McGinnis over to his truck.
He said, “I know how you felt about the Union the past several
years, Dan . . . if you still feel that way, now is the time you can
do something about this.” When McGinnis asked what to do,
Dell told him, “[H]e could circulate a petition.” When
McGinnis asked what the petition should say, Dell told him to
put a heading on it saying he didn’t want the Union, to print his
name, sign it and date it.6 McGinnis did not reject the idea and
said he would think about it. He also advised Dell that he had
been scheduled to go to Kaycee, Wyoming, the following
morning as part of the drill crew.
Dell returned to the hotel and reported the outcome of his
conversation to the meeting which was still in progress. He
told them that McGinnis was scheduled to go to Kaycee in the
morning. Oaks responded by telling Dell to call McGinnis and
tell him not to go to Kaycee but to meet with Dell at his office
instead. Dell made the call and Oaks arranged for McGinnis’
trip to be rescheduled for Wednesday.

[WITNESS BERGUM] I went over to check off the truck for
him, which is standard procedure. When we were done we went
into Boragel there and I told John, I said, “We’ve conversed be-
fore about the union John, and you’ve told me you were interest-
ing in getting it out of here, and if you were still interested in do-
ing that this is the time to do it.”
Q. Was anyone else present besides you and Mr. Preisner dur-
ing that conversation?
A. No, sir.
Q. When you made that statement to Mr. Preisner, what did
he say?
A. “Yes, I still have the same opinion. I don’t feel the un-
ion’s doing any good for me and I’d like to get it out.”
Q. And what, if anything, occurred then?
A. And then he asked, “What do I need to do?”
Q. And what happened next?
A. I said, “If you want to, what you need to do is take a piece
of paper, put on the top of it, I do not want the union, sign it, date
it, and print your name.”
Q. After you said that, what did he say, if anything?
A. He said, “Well, I don’t have a piece of paper.”
Q. What happened next?
A. Well, there was a piece of paper laying over there on the—
we have a little table over there at Boragel where he keeps sup-
plies and stuff, and I said, “Well, here’s a piece of paper for you if
you want to do this.”
Q. What happened next?
A. He took the paper and printed on the top of it, “I do not
want the union.” Signed his name, printed it, and dated it.
6 The only significant difference between Dell’s version and
McGinnis’ is that McGinnis says that he thought up the language for
the petition on his own.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD674
In the meantime, Bergum had been persuading Preisner as
described above. Among other things, Bergum asked Preisner
if he could get anyone else to sign the petition. Preisner said he
could. Preisner says that Bergum told him not to speak to fel-
low employees Rick Reid, Glade Lynch, or Jerry Rose, because
they would not sign. Bergum also told him that he was going
to train him and two other employees, Robert Stack and Jona-
than Henderson, that night on a computer training program
known as iLearn. While working their way toward those two
employees, they came across Will Boggs, the hopper shack
worker. Bergum allowed Preisner to enter the hopper shack
and speak with Boggs about the petition. Boggs signed it.
Some time afterwards, during their evening “dinner” in the
breakroom, Bergum collected Preisner, Stack, and Henderson
and took them to the office where they spent about 15 minutes
being taught how to use the iLearn program.
According to Preisner, at the end of the training session,
Bergum got up and announced that Preisner had something to
say to them, and left the room. Using the comparison chart
given him earlier, Preisner went through it with Stack and Hen-
derson as Preisner attempted to persuade them to sign the peti-
tion. A question came up concerning the concept of “cliff vest-
ing.” Unable to explain it, Preisner asked Bergum to return.
During the course of his explanation, Bergum spoke about the
fact that nonunion Halliburton employees enjoyed better vaca-
tion benefits and had greater safety boot allowances. Eventu-
ally, Stack and Henderson signed the petition. Preisner testified
that he gave the signed petition to Bergum.
Both Stack and Henderson corroborated Preisner. Hender-
son adds that Bergum also explained that families would have
better life insurance and long-term disability under the Halli-
burton plan than the Union could offer. Stack remembered
Bergum saying that at another plant (unclear whether it was a
Halliburton facility or one run by a competitor) that the em-
ployees had gotten a raise when they threw out their union and
he thought it “most likely” it would happen at Colony if it went
“union free.”
Bergum’s testimony is not significantly different from that of
the three employees. He admits that he gave Preisner the com-
parison chart Oaks had given him and told Preisner, pointing to
the appropriate spots on the chart, “Here’s what I get being a
nonunion employee, and [what] other Halliburton nonunion
employees get, and here is what you get from being in the Un-
ion.” Bergum does contend that he told Stack and Henderson
that he could not guarantee any raises, but he did admit to
showing the different benefits per the chart.
I have no difficulty crediting Preisner, Stack, and Henderson
where Bergum’s version varies from theirs.
B. Signature Solicitation, Tuesday, July 10
As directed the night before, McGinnis7 reported to Dell’s
office on Tuesday morning. He recalls Oaks joined them in
Dell’s office. McGinnis acknowledges that he has never been a

7 McGinnis had worked, at that time, for Respondent for approxi-
mately 10 years, principally in the plant. He had transferred to the drill
crew in the spring of 2007. His duties included exploration, but also
involved pit preparation, pumping water from the pits, and cleaning and
repairing cattle guards.
proponent of the Union and that his feelings were reasonably
well known throughout the plant. Referencing their conversa-
tion at the parking lot the evening before, McGinnis asked them
“if I was going to go and talk to the people about whether they
wanted the Union or not, what did I have to sell them with?
What was there? You know, why would somebody just listen
to me and say, yeah, I don’t want the Union anymore?”
At that point either Dell or Oaks produced the comparison
chart. McGinnis says that they did not really discuss its con-
tents and he decided that he would take it home to read it more
thoroughly. He left the meeting and went to work.
In addition, McGinnis said Dell told him that if he wanted to
get rid of the Union he’d “have to get signatures on this piece
of paper saying that people—having them sign and date it, that
they did not want the Union.”
Dell has a slightly different version, but essentially confirms
what McGinnis said. He varies only slightly with the details.
Dell testified McGinnis started the conversation by asking how
“to go about this Union thing?” It was Dell who called Oaks to
assist. He remembers McGinnis raising his long-held issues, a
12-hour day, higher wages, and a 401(k) plan. Dell says they
both told McGinnis that they couldn’t promise anything, that
changes would have to come from above. McGinnis observed
that when a nearby competitor, American Colloid, had gone
nonunion, its employees had received a pay raise. Dell again
said that they were not promising or guaranteeing anything. It
should be noted here, that McGinnis, on cross, testified that
neither Dell nor Oaks ever mentioned not guaranteeing any-
thing during this conversation. Curiously, Oaks asserts that he
never had any conversation with McGinnis where they dis-
cussed the need for a petition, essentially denying being in this
meeting.
McGinnis did not actually began soliciting signatures until
following day, Wednesday July 11, as will be seen below.
Ivan Bierema is the appointed lead of the drill crew. On
Tuesday, about 1 p.m., he was at the field shop some distance
away from the main plant. There he encountered McGinnis
who showed him the comparison chart. The two had some sort
of discussion about its contents. There is no evidence that
McGinnis solicited any signature at that point, but it gave
Bierema some pause.
About 1:30 p.m., Bierema and one of his crew members,
Dick Holdhusen,8 drove to the plant in a pickup truck in order
to deliver some drill samples to the lab. While sitting in the
pickup, Senior Plant Manager Mike Houston and Production
Manager Ray Dell approached Bierema on the driver’s side.
Momentarily, Dell went to the passenger side where he spoke
with Holdhusen at the same time Houston greeted Bierema.
Bierema testified that Houston asked if they had signed the
paper. When Bierema responded he had not, Houston asked
why not. Bierema said that he needed to know the dollar
amount for the raise before he signed anything. Bierema re-
ports that Houston said that he couldn’t say, but as manager he
had the “power to do stuff.” Bierema agrees that Houston did

8 Holdhusen recalls the date of the conversation as July 10, because
that was his birthday.
BENTONITE PERFORMANCE MINERALS 675
not promise any specific item, but did say, “It would be better
around here.”
Holdhusen testified that either he or Bierema asked Houston
and Dell if they could provide a dollar amount or salary amount
they would get if the Union was voted out. He remembered
Houston responding that he didn’t know, it was above his head,
but Houston then asked if they trusted him. Holdhusen also
recalls Dell mentioning a plant in Texas which had given up its
union and had gotten a wage increase.
Houston described a conversation similar to that described
by Bierema and Holdhusen at the pickup truck, but put it on
July 11. He asserts that Bierema asked him about a petition
going around and asked Houston if he should sign it. He told
Bierema he couldn’t tell him whether to sign or not to sign. He
asserts that Bierema asked if they would get more money if
they got rid of the Union, but he responded that he couldn’t
guarantee anything “if the Union goes.” He says that Bierema
asked him if the benefits would change, and he responded, “No,
Ivan, I can’t promise you anything about any benefits chang-
ing.” Houston also testified that Holdhusen asked what would
happen to his union pension. Houston replied he did not know.
He did offer that the employees wouldn’t lose their 401(k) if
the Union was voted out and he would find out what would
happen with the union pension. He also told them that he
would be available to answer any questions and they could
come see him any time. He denied asking Bierema and Hold-
husen if they had signed a petition.
Dell also places the conversation on Wednesday, July 11.
Dell recalls the conversation as initially being about hunting,
but that it quickly turned to the 401(k) plan and whether it
would improve or stay the same. He remembers Holdhusen
raised questions about the comparison sheet, which Dell as-
sumes Holdhusen had seen earlier. Dell, somewhat vaguely,
testified he told Holdhusen, “[I told him] kind of what, you
know, what my program so to speak, what I have and kind of
what he has. I just gave him my analogy of the comparison.”
Dell’s lack of specificity here concerns me; it seems evasive
when it was not necessary. In any event, Dell remembered
Holdhusen asking a question through Bierema: what would
they get if they got rid of the Union? Dell says he responded,
apparently before Houston did, “Dick, we as supervisors here at
the Colony have no, you know, no authority to guarantee any-
body anything.”
It is clear from these early instances that the comparison
chart would play a major role in the effort to oust the Union. In
this regard, I make two observations: first, Respondent, point-
ing to the testimony of its managers at the AmericInn meeting,
asserts that the document had been prepared solely for the pur-
pose of preparing for upcoming collective-bargaining negotia-
tions. Second, it is clear from its face that it had no such pur-
pose. It is entitled “Comparison of ESG and Colony Benefits.”
ESG stands for Energy Services Group, which is a Halliburton
designation for a group of companies that fall within its frame-
work. Respondent is one of a number of Halliburton compa-
nies which have relatively uniform wages and working condi-
tions. The Colony plant, on the other hand, was different from
those other Halliburton subsidiaries in the ESG group, because
employees’ working conditions and wages were governed by
the Union’s collective-bargaining contract.
It was certainly valuable for management to know what the
existing working conditions were in Colony. It would also
have been handy to know what goals management might expect
to seek at collective bargaining. What it did not need was a list
of items showing how the ESG benefits equaled or exceeded
those that the Union had negotiated in the past. The only pur-
pose such a chart with that information could serve would be to
persuade employees that union representation was unnecessary
and that they would do better off ousting the Union and accept-
ing the ESG standards. It could have had no other purpose. I
therefore do not accept that the idea of jettisoning the Union
arose due to sudden advice from a Houston-based executive. It
was planned in advance—perhaps in May, but possibly earlier.
In any event, it makes little difference whether the Bierema-
Holdhusen/Houston-Dell encounter occurred on July 10 or 11.
In either case, the comparison sheet had made its rounds to the
bargaining unit employees in question. Its very existence was
an implied promise that without the Union the ESG benefits
would replace what had been lost, and the replacement value
exceeded what the Union had been able to negotiate.
Parenthetically, it should be also observed that the compari-
son sheet was an apples versus oranges circumstance: the Un-
ion’s negotiated benefits and wages had been established in the
contract almost 6 years earlier. Clearly such a long-term had
risked that the economic needs of employees might be outrun
by economic factors during that time frame. That risk had
come to fruition as Respondent had flexibility with its ESG
standards which the collective-bargaining contract did not pro-
vide, indeed, did not want. In essence, what the comparison
chart did was to compare outdated matters with more current
ones. Respondent took full advantage of this anomaly.
So even if Houston’s testimony is accepted and one were to
conclude that Bierema began the conversation as Houston said,
by asking if he should sign the petition and if the Union were
ousted could they expect better conditions, the whole conversa-
tion was triggered much as planned. The purpose of the chart
was to spark this very discussion.
However, given Houston’s other behavior, described below,
it is difficult to accept his version over that of Bierema and
Holdhusen. Houston was directly involved in the solicitation of
signatures from other employees. This was a similar appeal,
perhaps more indirect, but nonetheless a solicitation. In addi-
tion, the conversation may be characterized as a subtle interro-
gation of the two employees to determine whether or not they
had signed a petition. If they had, no further action was
needed. If they had not, additional effort could be seen to be
needed. That is why Houston concluded with his offer to make
himself available to answer any questions that the two might
have had.
There is also testimony that McGinnis had begun soliciting
signatures that day,9 despite his initial hesitation, and his ac-

9 Employee Rick Bevier recalled that he observed McGinnis solicit-
ing on two occasions in the field on July 10. Since all the signatures on
his petition are dated July 11, I believe Bevier to have been mistaken
regarding the date.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD676
knowledgement that he actually began the next day, Wednes-
day, July 11. As with the Bierema-Holdhusen/Houston-Dell
encounter, there is some disagreement concerning the date he
started. Nevertheless, McGinnis testified that he did not go to
Kaycee until Thursday, July 12. Moreover, all of the signatures
he solicited (Jt. Exh. 2, p. 3) are dated July 11.
It is fair to say, therefore, that the bulk of the signatures was
solicited between Wednesday, July 11, and most of Thursday,
July 12. I therefore proceed to Wednesday.
C. Signature Solicitation, Wednesday, July 11
On July 11, four employees began soliciting signatures on
home made petitions. These were Daniel McGinnis, Brad
Kirksey, Jeffrey Westland, and Martin Brosnahan.
Daniel McGinnis. McGinnis, noted above, had not immedi-
ately accepted the Dell/Oaks suggestion that he begin soliciting
disaffection petitions from his fellows. But, he said, on
Wednesday he met again with both Dell and Oaks and engaged
in another discussion concerning the issues that bothered him
most. These were his desire for a 12-hour shift and a pay in-
crease. During this conversation, McGinnis says Dell told him
the Company would not be able to guarantee him anything,
repeating it several times. Nevertheless, the comparison chart
was at work and McGinnis, reasonably, came to believe that if
the Union was removed, the ESG conditions set forth in the
chart would prevail. As a result, he agreed to begin soliciting.
He remembers Dell giving him a blank notebook to use to ob-
tain signatures.
Dell testified that the Wednesday morning meeting described
by McGinnis did not occur. He testified that the only meeting
he had with McGinnis was on Tuesday, July 10. Oaks would
not even agree with Dell that he had met with McGinnis on
Tuesday, though Dell had called him to the meeting. He denied
ever meeting with McGinnis concerning disaffection petitions.
Both of these denials are entirely unpersuasive and are not
credited. McGinnis had been kept in Colony for the specific
purpose of soliciting such petitions. Both Dell and Oaks were
entirely confident that he would do so. McGinnis’ 1-day hesi-
tation only amplified the need to put him to work on Wednes-
day to solicit the needed signatures. If Dell and Oaks did not
want him soliciting, they would have permitted him to go to
Kaycee on Tuesday as originally planned.
After the meeting on Wednesday morning, according to
McGinnis, he changed his clothes and began the solicitation
process. His work is set forth in Joint Exhibit 2, page 3. The
petition is typical of all of them. It is homemade and headed
with “I do not want a Union.” He was the first to sign it. Two
other employees, Keith Baker and Vern Keegan, printed their
names and dated it, but failed to sign. Four others, John Deigh-
ton, Jesse Bosch, Brandon Ozuna, and Chico Priewe printed,
signed and dated McGinnis’ petition. Deighton, Bosch, and
Ozuna are all plant employees. Indeed, so are Baker and
Keegan. McGinnis, whose duties were in the field as part of
the drill crew, testified that he spent 2 to 3 hours in the plant
that day attempting to persuade employees to sign. He showed
them the comparison chart, let them review it, pointed out the
advantages of the nonunion benefits and took the signatures of
those who would sign.
During the course of his rounds he discovered other indi-
viduals were also soliciting signatures. As a result, he went
back to the office and spoke with either Dell or Oaks who told
him to go into the field, that the strippers were about to take
their break. McGinnis did so and was able to persuade Priewe
to sign. He says he attempted to persuade the remainder of the
mining crew to sign but they declined.
It was here that Bevier remembered seeing McGinnis solicit-
ing the signatures. As noted above, Bevier misplaced the inci-
dent as being on Tuesday. Nevertheless, he knows McGinnis
had a tablet and the comparison chart. Bevier even saw Priewe
sign McGinnis’ petition.
McGinnis says his lack of success in persuading other strip-
ping crew members to sign was because he could not answer
some of their questions. When he returned to the plant, he
spoke to Houston and asked if he would answer them. As a
result, later that day both he and Houston returned to the min-
ing location. Houston, however, denies the incident, even as-
serting that McGinnis had already gone to Kaycee earlier that
afternoon.
A number of the stripping crew corroborate McGinnis, in-
cluding Bevier. Mining employee Kenneth Merrell specifically
corroborated McGinnis, saying that Houston had come to the
mining shack and answered questions about the comparison
chart which the crew had asked him. A second mining em-
ployee, Frank McKenna concurs.
Earlier Wednesday, both Merrell and McKenna had tempo-
rarily been working on a road project which they finished at
noon. While they were working on the road that morning, they
remember McGinnis coming by and telling them both that
“they” were passing around a petition to “vote the Union out.”
He showed them the comparison chart and urged them to sign
his petition. Merrell and McKenna declined, but asked if Hous-
ton or someone with knowledge about the items could talk to
them about the issues. Finished with the road, they returned to
stripping site in the early afternoon. As a result of their en-
counter with McGinnis, they were not entirely surprised to see
both McGinnis and Houston at the mining shack later that af-
ternoon.
McGinnis testified that after he was through soliciting that
day he returned to the plant yard about 4 p.m. He saw Marty
Brosnahan there. By then McGinnis had become aware that
Brosnahan was soliciting a similar petition and asked Brosna-
han to turn his in for him. Brosnahan did, but as the General
Counsel observes, it is unclear when Brosnahan actually did so
or to whom he gave it. Brosnahan opined that McGinnis may
well have given him the petition, but he had no real recollection
of the incident. Clearly, at some point, McGinnis’ petition was
submitted to someone in Colony management.
Brad Kirksey. Kirksey was the solicitor for Joint Exhibit 2,
page 4. He has been employed by Respondent since 2004. In
July, he was a dryer operator in the plant. By the time he testi-
fied, he been promoted to a nonunit a job, laboratory techni-
cian. Kirksey said that sometime in either April or May he had
asked Ray Dell what they needed to do to get rid of the Union.
Dell told him he did not know but said he’d talk to someone
and see what Kirksey “could start;” when he found out, he
would let Kirksey know. Kirksey cannot recall the date when
BENTONITE PERFORMANCE MINERALS 677
Dell gave him the answer, but it would appear to be July 10.10
Kirksey was working the day shift at the dryer when Dell ap-
proached him and told him that if Kirksey wanted to get rid of
the Union, he could start a petition.
Kirksey remembers starting the petition by asking Ray Dell’s
son, Jeff, to help him with the language. He testified that his
own handwriting is illegible, so he asked Jeff Dell to write it for
him. The original wording was “Petition to Remove the Union
from BPM Minerals LLC Plant in Colony, WY.” Kirksey’s
was the first signature; Jeff Dell was the second. Both signa-
tures are dated July 11. At some point someone told Kirksey
that the wording was wrong and needed to be changed. As a
result, he and Jeff Dell scratched out the original heading and
overwrote it with, “We do not want the Union.” During the
solicitation process, Kirksey saw McGinnis using the compari-
son chart. Kirksey asked for and obtained a copy.
In addition, Kirksey testified that he and two other employ-
ees, whose identity he does not remember (one might have been
Kevin King, who signed the petition), had a conversation with
Mike Houston in the dryer room. They discussed the compari-
son chart. Houston acknowledges that he had a copy of the
chart in his back pocket. In any event, they discussed the vaca-
tion differences and Kirksey recalls asking Houston a question
about the short and long-term disability benefit offered by Re-
spondent for its nonunion employees. Kirksey’s testimony:
Q. [BY MS. ACOSTA] Do you remember what he
[Houston] said about it specifically?
A. [WITNESS KIRKSEY] He would just—pretty much
what the paper said was if we were a non-union you would
get this much time of vacation after—the first year you
would get I believe it’s two weeks, I think it is, and then
on down the list, however it was reading.
After Houston departed, the employees remained in the dryer
room where they discussed the matter further among them-
selves. Kirksey said, “I told them some of the benefits they
could get of being non-union and what they were losing as
being in a union.” On cross he was asked what topics he dis-
cussed with his coworkers. He reconfirmed: “The more [sic]
of the topics were the non-union benefits.”
After the discussion ended, his coworkers signed the peti-
tion. The three additional employees who signed the petition
were Joseph Bohm, Kevin King, and Terry Samples. Other
individuals also started to sign, but for the most part their
names are illegible, having been marked over. Another, Jamie
Sexton, signed, but did not print or date his name.
Kirksey testified that he took the signed petition home with
him that evening. He says he gave it to Ray Dell: “At least
four days after I started [collecting signatures] I probably
turned it in.” This testimony suggests that Respondent’s man-
agement did not possess Kirksey’s petition at the time it says it
counted the signatures on July 12 at midday, for the earliest

10 Dell places the first conversation as occurring on the Thursday be-
fore the AmericInn meeting, meaning July 5. Houston remembers Dell
telling the group at the hotel that he had spoken to Kirksey several
months earlier about his dissatisfaction with the Union.
Kirksey could have turned it in would have been Friday, July
13.
Dell, however, says that Kirksey came to him during the
midmorning of July 12 asking what he should do with his peti-
tion. Dell asked him to wait for moment while he went up to
the lab and when he returned Kirksey took the petition out of
his back pocket and gave it to him. Dell told Kirksey that he
would get it to Oaks.
Jeffrey Westland. Westland has worked for Respondent
since 1993. He is currently the leadman for Lyle Droppers’
crew and serves as the crew’s shuttle driver. As noted above,
Droppers’ crew began work on July 11 at 3:30 p.m. He remem-
bers Dell called him to Dell’s office when he arrived for work.
He testified:
Q. [BY MS. ACOSTA] What happened when you went
in his office?
A. [WITNESS WESTLAND] He asked me if I heard that
the employees were not happy with the union, and if I
would take a petition down and have the guys on my crew
sign it.
Q. And did you respond?
A. I said, yeah.
Q. And what happened after you said yes?
A. He just showed me a sheet of the difference be-
tween the hourly employees—the union employees and
the salary employees, what the benefits were. Vacations,
insurance, and different things. [Referring to the compari-
son chart.]
Westland said that Oaks joined them about that point and the
discussion continued:
A. [WITNESS WESTLAND] Danny Oaks. Come in and
helped him [Dell] explain what we got if we didn’t have
the union.
Q. Did they tell you why they were explaining it?
A. Well, so I could explain it to my guys on my pack-
ing crew so they would understand what was going on.
What kind of benefits they would be getting compared to
what they had now.
Q. Did they explain to you what you needed to do?
[Objection Interposed.]
THE WITNESS: Yeah. They had just asked if I’d get
the petition signed. They just explained me the benefits
and how to get the petition. They needed them to print
their name, sign their name, and date it, so it’d be official.
Westland later said that Dell and Oaks had told him they did
not know for sure what would happen after the Union was gone
but hopefully, everyone would be on the same plan. Although
the timing of Westland’s response to the question is not entirely
clear, he responded to the initial question concerning whether
he would try to get his crew to sign the petitions, that he would
see what the employees actually had to say.
Westland left the office in time for the safety huddle con-
ducted by Droppers. Shortly after that, Westland had a huddle
of his own with the rest of the packing crew. Westland went
over the comparison chart with his group. He said that most of
the packers were asking about the vacation issue, apparently
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD678
intrigued, because it was more generous than the plan under the
collective-bargaining contract. Sometime during this discus-
sion, Droppers came by and told Westland to take as much time
as he needed because he didn’t want Westland running after
people to try to get them to sign.
Droppers agrees that he left the group alone because he was
under instructions not to get involved. Even so, he said some-
one asked him what he would do if it was up to him. He re-
sponded, “[K]nowing what I have for benefits and what you
have for benefits, I would sign that document in a heartbeat.”
A short time after that, Houston appeared and asked if the
employees had questions. He, too, compared his benefits with
those under the contract.
After Houston left, the packing crew signed the petition.
Once they had signed, Westland then solicited other employees
in the plant, including the hopper operator, the dryer operator,
the mill operator, and the Baramix operator. He later delivered
his petition, in evidence as Joint Exhibit 2, page 2, to Houston
in his office. When he did so, Houston asked him to change the
wording from “We are opposed to the Union at Colony” to “We
do not want the Union.”11
D. Supervisory Solicitation: Foreman Lyle Droppers
As noted above, Lyle Droppers is a plant foreman and admit-
ted supervisor. At 4 p.m. on July 11 he had a conversation with
Zackary Zupan, one of the dryer operators. At the end of the
preshift meeting, Zupan asked Droppers if there was a petition
going around as he had heard rumors from other employees.
Droppers replied that he was aware that Jeff Westland was
circulating such a petition and took Zupan to the warehouse
where Droppers picked up a comparison chart sitting on a table
near the tail rollers of the palletizer. He gave it to Zupan to
read. Zupan perused it as they were returning to the dryer
room. Zupan asked Droppers some questions regarding the
differences between what they would be given without the Un-
ion as opposed to what they were now getting. He remembered
Droppers said the employees would get a greater vacation bene-
fit. He also remembered asking Droppers why the Company
couldn’t give them the benefits on the chart through negotia-
tions. Droppers answered, “Because it wasn’t offered to union
plants.” When Zupan asked why not, Droppers could only
reply, “They just don’t.”
They then had a discussion concerning the number of union
plants Halliburton operated as opposed to nonunion plants.
Zupan also recalls Droppers saying that if they got rid of the
Union at Colony, the employees would most likely receive
everything on the comparison sheet: “This is what the Com-
pany [is] offering.” Droppers asked Zupan if he was interested
in signing the petition, but Zupan replied that he was not.
Droppers denies that the conversation Zupan described ever
occurred. He offered an alternative version that occurred dur-
ing the luncheon break where Zupan and two other employees

11 Dell does not specifically deny Westland’s testimony concerning
the meeting in Dell’s office, saying he did not recall it, but instead
described a different conversation at the palletizer in which Westland
supposedly initiated a conversation concerning the comparison chart.
Clearly Westland’s recollection about the incident is superior to Dell’s,
since Dell “could not recall.”
had a conversation with him concerning short-term disability
and vacation benefits. Droppers told them he had done really
well under the ESG plan because he had invoked it after being
injured. He does agree that he told the group that the company
plan “would affect a lot of the newer employees because [un-
der] the union scheduling they get one week vacation after the
first year and then two weeks after the second year, where what
the salary people were getting we have two weeks after the first
year.”
I credit Zupan over Droppers. Zupan’s detailed testimony
was impressive, whereas Droppers’ denial and alternative ver-
sion did not seem to carry with it a sense of veracity. Even so,
his alternative version is consistent with the promises being
implied from the comparison chart. Accordingly, I find that
Droppers engaged in the direct solicitation of Zupan’s signature
on a disaffection petition.
About 2 hours after his conversation with Zupan, Droppers
encountered Thomas (T.J.) Davis, the mill operator in the sam-
ple room. Davis remembers he had been working alone and
Droppers had come into the sample room and was talking about
how the Company was trying to get rid of the Union. Davis
was already somewhat familiar with what was happening due to
an earlier conversation he had had with Marty Brosnahan, the
plant electrician.
Davis responded to Droppers’s comments by asking him
what the Company would give the employees, what was going
to change if the employees got rid of the Union. Droppers re-
plied he needed to get a copy of the paper from Westland so he
could show it to Davis. Once the comparison chart had been
obtained, Droppers explained to Davis that the short-term dis-
ability benefit was far better than anything in the union con-
tract, that if he had missed work because of such a disability he
would get full pay for up to 26 weeks. Shortly after Droppers
left, Westland approached Davis and asked him to sign his
petition.
Droppers agreed that he had a similar conversation with
Davis but said that the discussion about short-term disability
had been initiated by Davis. He did acknowledge telling Davis
“if the Company is going to offer it, yes, you would be better
off.” He denied that he had to go get the comparison chart
from another location, saying a copy of it was there in the sam-
ple room.
Again, I credit the employee, Davis, over Droppers. Drop-
pers’ presence in the sample room together with the comparison
chart was not simply fortuitous. It was a direct effort to per-
suade Davis to sign a disaffection petition. Furthermore, even
though Droppers did not specifically ask Davis to sign a peti-
tion, as he did with Zupan, Westland’s immediate appearance
after Droppers left the sample room was not chance. It is fair to
conclude that immediately after trying to convince Davis that
the nonunion benefits were superior, that he sent Westland to
serve as a “closer.”
Here, too, Droppers was engaged in the solicitation of em-
ployee to sign a disaffection petition. That he did not utter the
magic words is not a defense. He schemed so that Westland
could obtain Davis’ signature.
BENTONITE PERFORMANCE MINERALS 679
E. Signature Solicitation, Thursday, July 12
Martin (Marty) Brosnahan. Brosnahan has worked for Re-
spondent since February 2004. Initially, he was a maintenance
electrician and held that job in July 2007. At the time of the
hearing he had become Respondent’s health, safety and envi-
ronment manager (HSE), a managerial job outside the bargain-
ing unit.
Brosnahan readily agrees that he circulated disaffection peti-
tions and solicited fellow employees to sign them. The record
shows that he obtained 15 signatures on July 12. Those peti-
tions are in evidence as Joint Exhibit 2, pages 7–9 and 11–14.
Brosnahan’s testimony was significantly marred by his in-
ability to recall with any detail how he came to be a solicitor. It
will be recalled that on the evening before he had accepted
McGinnis’ petitions with an apparent promise to deliver them
to Houston. At some point he came into possession of the
comparison chart. He testified variously that McGinnis had
given him one (he retracted that contention), that it had “some-
how” come into his possession, and that Houston may also have
given him a copy, though he said he wasn’t sure if Houston
had. It seems to me, as he was testifying, that he was attempt-
ing to protect Houston from being exposed as being heavily
involved in the disaffection effort. It really doesn’t matter
much to this analysis because once he reviewed the comparison
chart, he was hooked:
Q. BY MS. BRANDT: What was the reason you signed
the petition?
A. [WITNESS BROSNAHAN]: I signed the petition for
the pension purpose only. You know, the—
Q. Take your time. If you’d like to help yourself to a
bottle of water—
A. No, not yet.
Q. —feel free to.
A. Not yet. I stutter, so—but anyway, I signed it for
the percentage benefit that they were going to give us.
And that’s why I signed it.
Q. Okay. And how did you know you were going to
get a different pension percentage?
A. If I remember right—was it in here?
Q. Just take a moment and look through the document.
A. Yes. The fir—the very first one. It’s—
JUDGE KENNEDY: And if it’s not in the document, you
can take a minute to think through where you got that in-
formation too. That’s—
THE WITNESS: It looks like the first benefit on the first
line, or, you know, the fourth column, the first, second—
or the fifth box down.
Q. BY MS. BRANDT: So when you saw a document
similar to this and it had information about the pension,
you made up your mind to sign the petition?
A. That is correct. I made up my mind to sign that pe-
tition, that—this petition here, yes.
A review of the comparison chart shows that the first com-
parison, the one to which Brosnahan referred, was that of re-
tirement benefits. Under “Colony Provisions” (the union-
negotiated plan) there was a 100 to 4-percent match, but with a
5-year vesting period. Under (Halliburton’s) ESG plan the
matching contribution was the same, but there was immediate
vesting, plus an additional automatic 4-percent company basic
contribution which took 3 years to vest.
Moreover, Brosnahan’s perception of what the Company
was going to do is clear from his testimony, as he absorbed the
face of the document. He looked at it and “knew” that if the
Union was gone, it would significantly improve his pension.
To him it was a “no brainer”—get rid of the Union and you get
a better pension. He recognized the document to be not simply
an implied promise, but an explicit promise. He believed it
then, and his testimony shows that he believed it at the hearing.
Indeed, by that time, he knew it to be true, because Respondent
had, well before the hearing, implemented those very benefits.
I recognize that Brosnahan, when he testified, was out of the
bargaining unit, but it is equally certain that he did not wish to
cost his fellow employees the fruits the Union’s ouster had
brought. The reason for Brosnahan’s hesitancy to name Hous-
ton as being involved seems relatively transparent. He did not
want to return the employees to the lesser benefits he perceived
the Union as providing. If Brosnahan implicated Houston in
that effort, from his perspective wages and conditions were not
likely to remain as good as they had just become—either for
him or for his fellows. He had no desire to bring in Houston for
that reason; plus, he was grateful to Houston for his recent
promotion. Yet, someone had helped Brosnahan to choose the
language that appeared on top of the petitions. Brosnahan
seemed deliberately vague about the time of day and the loca-
tions where he solicited individuals, even contending that he
did not sign until after the other “gentlemen” had signed.
The truly curious thing about Brosnahan’s solicitation was
that he was totally free to roam the plant as well as the field in
his effort. And, he was out early the morning of July 12. Kurt
Ranta testified he encountered Brosnahan at 7:30 a.m., just as
Ranta was coming off his graveyard shift. He said that Brosna-
han already had several names on the petition Brosnahan of-
fered him.12
In any event, as an electrician, Brosnahan would normally be
called to perform electrical repair work in both places. One
thing is clear; he had the comparison chart with him while he
solicited the signatures. He also told Vern Keegan, who had
signed Kirksey’s petition, that Kirksey’s had an error in the
heading and Keegan needed to sign again. Keegan did so.
How did Brosnahan make that judgment?
About an hour before quitting time, perhaps about 3 p.m.,
Brosnahan and Houston drove in Houston’s truck to the strip-
ping site, then located about 3 miles from the plant. Brosnahan
asserted that he had gone to Houston to discuss his application
for the HSE job and that Houston suggested he come along for
the ride so they could. Given the fact that Brosnahan also testi-
fied that he delivered many of his petitions to Houston during
the day, his explanation seems hollow.
In any event, the two arrived at the mining “shack” and
Houston spoke to the crew for few minutes as they were shut-
ting down for the day. Brosnahan says he asked Houston to
leave. Still taken with his belief that the ESG pension plan was
a very good deal, he attempted to persuade the stripping crew to

12 Ranta was willing to sign, but only anonymously.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD680
sign. He also remembers speaking about the vacation issue, but
does not recall what he said. He recalls only one employee,
Frank McKenna, saying he would sign.
The members of the stripping crew who testified, Bevier,
Merrell, and McKenna did not confirm Brosnahan’s version.
They testified that Houston told them that Brosnahan wanted to
meet with them and that Houston would wait outside. They
also said that when Houston left, Brosnahan went over the
comparison chart, specifically pointing out how the retirement
plan would be better for him personally. When they left the
shack Houston was still outside and asked if any of them had
any questions.
Houston testified that when he arrived he told the crew he
was there to answer any questions that they had and then said
Brosnahan had asked to talk to the crew. He also said that after
Brosnahan was finished he offered to answer any questions the
crew might have had.
It is clear to me, and I find, because of Brosnahan’s guarded
unwillingness to implicate Houston, his delivery on separate
occasions of perhaps seven petitions to Houston throughout the
morning and early afternoon, coupled with what is Houston’s
transparent effort to get the crew to sign Brosnahan’s petition,
that Houston was behind all of Brosnahan’s efforts. Even if I
were to not reach this conclusion based upon what happened
before the mining shack meeting, is clear that Brosnahan was
serving as Houston’s instrument at the shack.
F. Supervisory Solicitation: Production
Manager Ray Dell
Charles Callison has worked for Respondent in a variety of
jobs for 23 years. At the time he testified, he had been a loader
operator for about 2 years. He said he had been on vacation
during the week of July 9.13 He said that on Wednesday morn-
ing he received a telephone call at his home from Ray Dell.
This was unusual, as Dell had never before called him at home.
Dell told him that a petition was going around to get rid of the
Union and he wanted to know if Callison would sign it. Calli-
son said he would. They discussed how he would get the peti-
tion to the plant (about 30 miles distant from his house) and
Callison advised that he could use his personal fax machine.
Callison said they then discussed the language he should use on
the petition. Callison: “Well, we discussed what would work as
far as me getting my point across to him. And we came up with
‘I do not support the Union,’ and that’s what I faxed.”
Callison says he faxed Joint Exhibit 2 page 5 to Dell. Curi-
ously, however, the exhibit does not appear to have been what
was received by Respondent. Later that night, about 10:30
p.m., Callison received a call from Plant Manager Danny Oaks.
Oaks told Callison he wanted him to resign his name and date
the petition. Oakes then drove to Callison’s home in Spearfish
so he could acquire the re-signed version. He did so and Calli-
son signed something, apparently the original which he had
probably kept. Oaks does not have a significantly different
version.

13 The parties have stipulated that Callison was not scheduled to
work from July 4–15.
Clearly, Callison’s signature on the disaffection petition was
solicited and obtained by members of management, Ray Dell14
and Danny Oaks.
David Dell is Ray’s brother. Ray testified that his brother,
who works in the maintenance department, had been vacation-
ing in a remote location in Wyoming during the week of July 9.
He said he knew his brother’s sentiments concerning unions—
that he’s been both pro and con—but at that time was in anti-
union mode. As a result, Ray concedes that he “took the lib-
erty” to find out if Dave still felt the same way on July 12. In
the middle of that morning Ray reached Dave, apparently by
cell phone. He learned that Dave was willing to sign a disaffec-
tion petition and he instructed Dave “to get a piece of paper and
put a header on it, print your name, sign it, date it, and get it
back to me.” Dave did so and faxed it, as Ray suggested, to
Ray at Colony. It is in evidence as Joint Exhibit 2, page 6. It is
headed “I agree with the idea of a non-union plant.” Curiously,
the document in evidence does not appear to have been faxed
but is instead a photocopy of an original.
Whatever the circumstances of the transmittal, Ray Dell
readily admitted soliciting his brother, a bargaining unit mem-
ber, to sign a disaffection petition.
G. Supervisory Solicitation: Senior Plant Manager
Mike Houston
Gregory DeKnikker is the plant cleanup man. He has
worked for Respondent for a little over 2 years. His principal
duty is to clean up around the plant and haul debris to the land-
fill located on Respondent’s property about 1-1/2 miles south-
east of the plant. On July 12, DeKnikker was located at the
landfill performing his duties when Mike Houston drove up in
his personal pickup truck. That was unusual, as the senior plant
manager rarely spoke to the individual who performed the op-
eration’s most humble tasks, and certainly not at a location as
remote as the landfill.
DeKnikker testified that Houston told him he had learned
DeKnikker was interested in looking at the comparison chart.
Houston brought it out and placed it on the hood of his truck,
allowing DeKnikker to look it over. DeKnikker remembers
Houston asking him if any of the things on the chart interested
him. The conversation turned to other matters but later re-
turned to the chart and DeKnikker told him that he was inter-
ested. Houston obtained some paper from his truck and gave to
DeKnikker who wrote on it, “I don’t want the Union.” He then
gave it to Houston.
Houston, however, suggests that his conversation with DeK-
nikker was essentially by chance. He said he was on his way to
meet with the stripping crew and observed the dump truck at
the landfill. Because it was a truck which had been recently
purchased, he decided to see how well it was working and
drove over to discuss it with DeKnikker. He says DeKnikker
asked what was going on with the petition, that there were a lot
of guys talking about the benefits. Houston asked if DeKnikker
had any questions and DeKnikker said he did. As result, Hous-

14 Curiously, Dell testified that when management counted the peti-
tion signatures at noon on July 12, they had a photocopy of the original
of Callison’s petition, not the faxed version.
BENTONITE PERFORMANCE MINERALS 681
ton took out the comparison chart. Houston testified: “So I
said, ‘I have a sheet here that you can look at that compares the
union benefits versus the nonunion benefits. If you would like
to look at that you can.’” Then, Houston said, he started to
leave. At that point DeKnikker stopped him and asked if there
was anything he could do to get rid of the Union. Houston says
he responded: “Yes, there is. All you have to do is sign a peti-
tion that you write on the top of it, you say, I don’t want a un-
ion, print your name, sign your name, and date it.” DeKnikker
said he would like to sign a petition and Houston helpfully
provided him with pen and paper. The petition DeKnikker
signed is in evidence as Joint Exhibit 2, page 10.
There is no doubt in my mind that Houston solicited DeK-
nikker’s signature on the disaffection petition. He deliberately
sought out DeKnikker who generally worked alone and who
was not part of anybody’s crew. He was probably the least
likely employee to be found by the employee solicitors. He
needed special attention, and Houston gave it to him. Once
again, the comparison chart had done its work. Even Houston
agrees that as soon as he showed DeKnikker the chart, DeK-
nikker decided it was in his best interest to join the effort to
oust the Union.
Morning at the stripping site. I have already discussed
Houston’s visit to the stripping crew on the afternoon of July 12
when he was accompanied by Brosnahan. However, he had
made an earlier visit, perhaps on the same run where he stopped
to talk to DeKnikker.
During the morning visit, apparently arriving in time for the
coffee break, he spoke with the crew. This was his second
solicitation of the crew, though he and McGinnis had been
there the night before, with scant success. McGinnis had
signed only Priewe on Tuesday morning. The stripping crew
was a much tougher sell than the plant employees.
Houston acknowledges that he visited with the stripping
crew that morning.15 His testimony:
HOUSTON: They said, “Yes, they had some questions
in regarding benefits.” And they had a copy of—I can’t
remember if it was—I believe it was GC-3 [the compari-
son chart] that they had on their—on the table there. And
they just started out, “You know, Mike, what’s up with all
this?” And I said, “Well guys, you know, I can’t promise
you anything that’s on this document.” And they had al-
ready been approached about signing a petition. And they
said, “You know we’ve been approached to signing a peti-
tion to get rid of the union, and received this document.
What’s going on here?”
So I explained to them that employees were passing around a
petition to get rid of the Union, and that I couldn’t tell them one
way or another what to do. And that if they had questions I
could explain to them on the comparison sheet of benefits that I
have and other people that are not under the collective-
bargaining agreement had, and we could discuss those compari-
sons.

15 The stripping crew members present that morning were Kenny
Merrell, Chico Priewe, Frank McKenna, Duane Newlander, Randy
Wulf, John Geib, and Rick Bevier.
Houston remembers McKenna asking some questions about
what would happen to the current 401(k) plan if the Union were
voted out and responding that he did not know, but he would
find out. McKenna, Houston says, pressed him about worker’s
compensation as he had suffered a sprained ankle earlier in the
year. Houston says he explained that if he had been under the
ESG plan he would have been made whole, but since he was
under the union contract, what had been bargained for him was
what he got. (The chart shows that the Union had not negoti-
ated anything more than what state legislation provided; it also
shows that the ESG benefit supplemented the legislated amount
plus a salary supplement so that an injured employee would be
reimbursed up to his base salary, i.e., making him whole.)
Two employees, Rick Bevier and Frank McKenna, testified
about the morning meeting with Houston.
Bevier said, in effect, that Houston was fairly circumspect in
his approach that morning. Bevier remembered asking some
questions about whether, if the Union were out, there would
still be overtime after 8 hours per day. He remembers Houston
saying that he could not comment on that.16 He also remem-
bered McKenna asking a question about retirement, but
couldn’t recall Houston’s answer. He recalled Randy Wulf
asked a question about vacations, but did not recall either the
question or the answer. He did remember Houston saying,
“[T]he only thing I can—that I can guarantee you is what [is]
on the comparison sheet.”
McKenna testified about what Houston was doing. He said,
“[Houston] just explained the difference in some of these areas,
like the health group benefits and different parts of it he ex-
plained the difference in what—what the difference would be
from what we have, to what we would have.” McKenna re-
membered Houston described the change in the 401(k) plan.
According to McKenna, Houston said that the existing plan in
which he was contributing 7 percent, if the Union was gone,
would cease at the end of the year. At that point, a new plan
would begin in which he would contribute the same 7 percent,
but the Company would match it up to an additional 4 percent,
depending on “how everything went with Halliburton.”
McKenna also said Houston described the short-term disability
benefit saying it was “a new deal and it would be like 26 weeks
short-term sickness, which we didn’t have.”
It is clear to me that even if Houston prefaced his remarks
with a disclaimer asserting he wasn’t making promises, in fact
he was. There is no other way to read the comparison chart.
On one side were the Union negotiated terms and on the other
side were better terms which seem to be conditioned on not
being represented by the Union. Indeed, I do not think that
Houston’s own testimony can be read any other way. His
statement (“Well guys, you know, I can’t promise you anything
that’s on this document”), even if said, was meaningless in the
context of the chart plus what the employees have reported he
said. On one side were the Union negotiated terms and condi-
tions; on the other side were the benefits of being nonunion.

16 The chart suggested such a reduction; later, because of concerns
about downtime due to climate conditions, Houston said something
would be worked out so no wages would be lost.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD682
His disclaimer must be discounted as the wink and the nod it
was.
William Kester and John Kreitel. During the morning of
July 12, maintenance department employees William Kester
and John Kreitel were putting in a drainage line at the railroad
tracks adjacent to the warehouse building. They encountered
Marty Brosnahan and another employee who were working on
the electrical rerouting on the same project. Brosnahan asked
Kester to sign a petition saying they were putting the petition
out to see how many people did not want the Union. Brosna-
han also asserted that he had something to show Kester which
might convince him that rejecting Union would be a good
thing. Kester was reluctant and Brosnahan told him he would
have Houston, come talk to him if Kester wanted.
About 3:30 p.m., Houston appeared at the project. At the
time Kester was working on a Bobcat while Kreitel was operat-
ing a forklift. Kester shut off his machine and stepped down to
speak with Houston. Kreitel joined them a few moments later.
During the conversation, according to Kester, Houston told
them that Halliburton had two companies which were union-
ized, including Bentonite, and they could provide very well
without any union involvement. Houston explained to Kester
the Halliburton sick leave policy, saying that he could get up to
26 weeks from his first day in the hospital. This was important
to Kester because in May he had been hospitalized with pneu-
monia and had not been the beneficiary of such a program.
There was also some discussion of vacations, but due to Ke-
ster’s experience level, he remembered that it would not affect
him significantly.
Kreitel said that he joined the two after he had moved some
pallets. When he joined them Houston was discussing the dif-
ferences between union and nonunion employees concerning
retirement and vacations. He remembered Houston using the
comparison chart and that Houston selected particular topics
from it. He also remembered that Houston told them that ex-
cept for the other Halliburton plant which had a union, all the
employees under the ESG grouping had all benefits listed under
the ESG column. He remembered Houston saying that Kester’s
retirement had vested and that he asked Kreitel how long he
had been employed. When Kreitel said, “4 years,” Houston
told him he had not been there long enough to have become
vested. Kreitel did remember that Houston told him that he
was entitled to a third week of vacation after 5 years under the
ESG plan, and that under the union plan it would take 10 years
to reach that level.
During this conversation they spoke about two other em-
ployment connected perquisites, the Star card and the length of
service award. The Star card was a type of debit card or gift
card which employees who had earned it could use to purchase
products. Houston told them that even though the Star card had
been used at Colony, it had been phased out because it had not
been “contracted for.” Similarly, since the collective-
bargaining contract did not contain a provision for length of
service awards, that too, had been canceled for Colony employ-
ees.
Houston made some other comparisons as well. Then Kre-
itel asked Houston for something in writing with Kreitel’s name
on it so Kreitel would have proof that what Houston said would
not be taken away. Houston declined, saying that “[i]t’s all on
the paper, right there,” indicating the comparison chart. The
conversation ended at that point. This was a clear promise of
benefits for eliminating the Union. It can be interpreted no
other way.
Houston remembers the conversation occurring sometime
between 2 and 2:30 p.m. he confirmed that Brosnahan had told
him Kester had some questions for him. As a result, he took
the comparison chart with him when they spoke. He says Ke-
ster asked him in regard to sick leave whether he would “get
this,” meaning the 26-week period. He says Kester explained
that he had been obligated to use vacation time in order to
maintain paid status when he had been hospitalized with pneu-
monia. Houston asserts he said, “Bill, I can’t promise you any-
thing about what’s on the sheet of paper here. This is what I
have, this is what other people that are not under the collective
bargaining unit have. No guarantee.” He admitted saying that
the Stars card program was inapplicable to nonunion facilities,
since it had not been bargained for. His statement was: “Well,
if you look at the items that are under the [union contract],
that’s [not] a benefit that you guys are entitled to, so we had to
discontinue the program.”
With respect to benefits that had been applied to the Colony
plant, but which were not part of the collective-bargaining
agreement, it is clear that Houston does not understand that
existing employment benefits not covered by the union contract
cannot lawfully be taken away on unilateral basis. Nonetheless
that is exactly what he told Kester and Kreitel.
After his discussion with Houston, Kester sought out Bros-
nahan and signed a disaffection petition.
H. Withdrawal of Recognition and Unilateral Changes
In its answer Respondent has admitted that it withdrew rec-
ognition of the Union on July 13 and since that date has failed
to respond to the Union’s request to bargain collectively for the
purpose of negotiating a new collective-bargaining agreement.
It is further undisputed that it withdrew recognition based upon
its claim that the Union had lost majority status. In this regard,
on July 13 Respondent, through Oaks, e-mailed and faxed a
letter to the Chemical Workers Union Representative Arthur
Stevens in Topeka, Kansas, announcing that it was withdrawing
recognition because the Union had lost majority status. Curi-
ously, Oaks also acknowledged that the collective-bargaining
contract was still in effect and that Respondent would abide by
the terms of the contract “to the extent consistent with the with-
drawal of recognition.”
Although Respondent’s answer denies that it made unilateral
changes in the terms and conditions of the employees after July
13, the denial is essentially without force as it actually admits
making the changes alleged in the complaint.
More specifically, on July 19, Houston and Oaks strongly
suggested to the employees that they not attend a union meeting
to be held at Herrmann Park in Belle Fourche. They advised
the employees
“the less you have to do with [union official Art Stevens] and
the Union, the better all of us are. . . . We are in the process of
making good things happen. A wage increase announced
Monday and more good things to come. In our opinion, Mr.
BENTONITE PERFORMANCE MINERALS 683
Stevens had his chance and now we ask you to give us and
Halliburton a chance. . . . If [Stevens] stirs up trouble then
everything could come to a halt—more union outsiders could
bother us, Halliburton would have to get its corporate people,
lawyers could come from everywhere. And, we could find
ourselves stopped dead in our tracks . . . . If you go to the
meeting, that is your right and choice. For our part, our ad-
vice is: don’t go—that’s the best way to tell Mr. Stevens not
to get in the way of progress.”
At the meeting, Stevens was able to persuade about 18 em-
ployees to sign a petition in favor of continued union represen-
tation. Two more employees also signed separately on July 18.
Over the next few days, 20 employees added their names, for a
total of 40. Of these 40, 14 had signed a disaffection petition.
On August 10, Stevens asserted by letter that the Union con-
tinued to enjoy majority status and offered to prove it through a
signature check by a neutral person. Oaks responded by letter
of August 15 rejecting Stevens’ offer and asserting that it had
proven that the employees no longer wished representation by
the Charging Party. Indeed, Respondent argues here that once
the Union had lost majority status as of a midday count suppos-
edly held on July 12, no further inquiry was necessary into the
Union’s majority status.
In any event, immediately after withdrawing recognition,
Respondent began making changes, some of which appeared in
the chart and also added some additional matters to the terms
and conditions of employment at Colony. The first was a no-
tice from Houston and Oaks on July 16 announcing an across-
the-Board wage increase of $1.25 per hour.
By letter dated July 19, Union Representative Stevens asked
Oaks four questions: who gets this wage increase? How long
would be in effect? Is the Company asking bargaining unit
members to give up anything for the increase, i.e., were there
tradeoffs? He concluded by asking for the reasoning behind the
“welcomed, but unprecedented wage increase this close to our
impending negotiations for a new collective bargaining agree-
ment.”
On July 25, Oaks responded by letter which can only be de-
scribed as gloating. In his first sentences he told Stevens:
You are absolutely correct when you say that the $1.25
per hour wage increase was UNPRECEDENTED! To my
knowledge, the wage increase was about 100% LARGER
than any increase your union has ever negotiated for our
employees in any one year. We have also just announced
an unprecedented increase in the men’s vacation policy
and will soon be meeting with them to explain that new
benefit to each one of them.
THESE ARE UNPRECEDENTED WAGE AND BENEFITS
CHANGES WHICH OCCURRED DIRECTLY AS A RESULT OF
THEIR DECISION TO GIVE US AND THEM A CHANCE TO SEE
WHAT BEING UNION FREE COULD MEAN.
The wage increase and better vacation benefits came
months before anything could have happened by bargain-
ing with the union. And, if history is any judge, those
wages and better benefits came YEARS before anything
could have happened by being represented by your union.
Oaks concluded with three paragraphs in which he claimed
that a clear majority of its employees had told them that they no
longer wished to be represented by the Union and downplayed
a July 18 grievance which the Union had filed protesting the
withdrawal of recognition. Indeed, he accuses Stevens of “ig-
noring the will of the majority.” He said that the Company no
longer recognizes the Union and would not communicate with
Stevens further concerning employees’ wages, benefits, and
working conditions. He even asserted that the letter itself was
“only a courtesy to you.” Finally, he said,
“Art, we—the Company, the supervisors and the
men—work together every day. Personally, I am here
with them virtually every day. To my knowledge, you
have not been present except for two times in five years!
The men deserve a chance to see what we and they can do
together to make more progress and improvements. Do
not stand in the way.”
Consistent with that letter, Respondent almost immediately
notified the employees of their improved vacation benefits in an
undated notice. Once again, this change was consistent with
the ESG benefits described in the comparison chart. The notice
also stated that the Company would stop withholding union
dues when the contract expired in October. It advised that em-
ployees could resign their membership earlier if they chose by
sending a resignation letter to the Union with a copy to the
Company, noting that Wyoming is a right-to-work State.
At some point, shortly before July 27, the Union submitted
some dues-checkoff authorization forms for four employees
which were dated in July, three after the withdrawal of recogni-
tion and one before. On July 27, Oaks wrote Stevens advising
that the Company would process the forms but would not mod-
ify the withdrawal of recognition. It would appear that the
letter was intended as a summary compliance with the dues-
deduction authorization clause of the contract, but that compli-
ance would end with the contract’s expiration.
In August, there was an exchange of correspondence in
which the Union requested a neutral observer review the em-
ployees’ signatures; Respondent preferred as a starting point
proving the loss of majority status. This exchange led nowhere.
On August 20, Oaks wrote Stevens giving notice of cancella-
tion of the contract effective on the date of its expiration.
After the contract expired on October 21, Respondent began
making additional changes. On October 15, it announced it
was amending the retirement plan effective December 1 by
ceasing future benefit accruals; it explained that a participant’s
benefits would be frozen at the level determined as of Decem-
ber 1. This was the plan that had been negotiated with the Un-
ion.
It also began taking steps to terminate the 401(k) plan which
the Union had negotiated. On October 25, it issued a notice
requesting instructions concerning what to do with the funds
which had been accumulated under that plan. Almost simulta-
neously it welcomed employees to the Halliburton Retirement
and Savings Plan and automatically enrolled them in it (subject
to an opt-out option).
In addition, Respondent also began requiring all its Colony
employees to acknowledge that they were now bound by Halli-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD684
burton’s Dispute Resolution Program. An exemplar is in evi-
dence as Joint Exhibit 17. This requirement was short-lived as
on December 13 it revoked that requirement.
I. The Demands for Information
There is really no dispute concerning the allegations con-
cerning information requests. Indeed, Respondent has admitted
the allegations. The Union’s letters of July 19 and 23 are in
evidence. The July 19 letter has been discussed in passing
above and will not be repeated here. The July 23 letter, also
styled as a 60-day notice to modify the collective-bargaining
contract, made additional information demands. By an attach-
ment to that letter Stevens set forth 24 items about which he
needed information. Of those 24 items, only one, item 4, can
be said to be unrelated to wages, hours, and terms and condi-
tions of employment. That was a request for the names and
positions of each management or salaried employee who made
the determination of the hourly wage increase of $1.25 per hour
as announced on July 16.
IV. ANALYSIS AND CONCLUSIONS
At this stage, a short review of the complaint’s allegations is
appropriate. First, is an overview. Generally, the complaint
alleges that Respondent embarked upon a campaign to oust the
Union which had represented its employees since 1948. It did
this, urges the complaint, by inducing employees to abandon
union representation through interrogations and promises of
benefit. In this way, Respondent was able to determine who
was and who was not susceptible to its overtures. Then, it
made promises of change for the better by providing the com-
parison chart.
That chart was unfair from the outset. Presumably, Respon-
dent had obtained a significant benefit from the 6-year contract,
labor peace and a lengthy period of economic certainty. De-
spite that, it decided to compare its current financial well being
with a 6-year old, out-run, collective-bargaining contract which
was about to expire. No doubt, if the contract had been renego-
tiated, whatever currency Respondent had been able to provide
its unrepresented employees would have caught the attention of
the Union and it would have sought to benefit from at least the
same level of benefits Respondent was providing to its employ-
ees outside the bargaining unit.
Moreover, I have already concluded that Respondent’s be-
havior during these 4 days was not the result of happenstance.
It was a result of a plan begun in May at the very least. Oaks’
testimony that he sought a comparison chart for the purpose of
educating himself concerning negotiations makes no sense. It
makes sense only in the context of instigating a revolt against
union representation. Indeed, all the conduct described in the
facts section of the decision is tethered to that aim. Accord-
ingly, I find that Respondent’s conduct here was aimed at the
heart of the Act. It was a clear manipulation of its employees
for selfish purposes, undermining their Section 7 rights. In
general, I find that each of the allegations of Section 8(a)(1) of
the complaint has been proven. In this regard, Shift Supervisor
Gerry Bergum’s questions of John Preisner were clearly coer-
cive under that section of the Act. Preisner’s own feelings for
the Union were ambivalent and he would have done nothing at
all had Bergum not solicited him to create a disaffection peti-
tion. Similarly, Bergum urged Preisner to solicit others, using
the comparison sheet. This was not something Preisner would
have done on his own.
Ray Dell’s meeting Dan McGinnis at the Belle Fourche van
dropoff point, was more of the same. Dell even admits that he
didn’t know for sure what McGinnis’ then-current sentiments
concerning the Union actually were. As he approached
McGinnis, Dell said, “I [know] how you[‘ve] felt about the
Union the past several years, Dan . . . if you still feel that way,
now is the time you can do something about this.” Receiving a
positive response, Dell proceeded to tell McGinnis what to do.
Even so, McGinnis hesitated. When he was called off the Kay-
cee trip so he could solicit within the plant, he still hesitated.
Eventually, after an additional meeting with Dell and Oaks, he
finally relented, but didn’t begin in earnest until Wednesday.
And, he did so only because he had learned from Dell and Oaks
the “selling points” provided by the comparison chart. It is
clear that McGinnis would not have pursued the petitions had
Dell and Oaks not asked him to do so. Their questioning and
solicitation of McGinnis clearly violated Section 8(a)(1).
Mike Houston, interrogated both Bierema and Holdhusen,
specifically asking whether they had signed a petition, another
interrogation which breached Section 8(a)(1). In addition,
through the use of the comparison chart, he promised benefits
to Bierema and Holdhusen if they got rid of the Union. Hous-
ton’s fingerprints are all over the solicitation process, wherever
it took him around the operation. Every time he used the com-
parison chart and answered questions concerning it, he was
pointing out the benefits which the employees would derive
from the Union’s ouster. In fact, simultaneously they were
questions and promises of benefit. When Houston asked em-
ployees if they preferred the ESG benefits, he was in effect
asking if they were receptive to getting rid of the Union; and
when he asked them that question, he was impliedly, if not
directly, promising them something valuable if they got rid of
the Union. It was all of a piece.17
In this regard, Houston made approaches to employees and
Merrill, McKenna, DeKnikker, and the stripping crew. His
conduct toward them is a good example of the interrogation-
promise duality. Whenever he suggested that things would be
better without the Union, whether by direct or by indirect sug-
gestion, Houston committed a violation of Section 8(a)(1). He
also violated that same section of the Act when he directly so-
licited signatures of employees such as DeKnikker. The same
result obtains in situations where he used others to solicit signa-

17 Because of this observation, Respondent’s argument that it was
harmless, from a Sec. 7 standpoint, for it to have sought out individuals
whose antiunion sentiments were well known, falls woefully short of
persuasive. That is so even had some of those employees been ready to
seek decertification on their own. But, as we have seen, some of those
(Preisner and McGinnis) were not yet at that stage and would not have
acted had Bergum and Dell not prodded them. In any event, the rule is
that an employer may not involve itself in the decertification process
beyond ministerial assistance. The antiunion predilections of some
employees cannot be sparked to the disadvantage of the union. In
general, the employer must keep its hands off. Sec. 7 rights belong to
the employees; they may not be manipulated by their employer.
BENTONITE PERFORMANCE MINERALS 685
tures—McGinnis, Brosnahan, and Kirksey. In analyzing this
fact pattern, it is not necessary, and the General Counsel ac-
knowledges it to be so, to find these three, plus Preisner, to be
Respondent’s agents, though the complaint (as amended) seeks
that finding. But these four weren’t agents so much as they
were victims of a hoodwinking. They never understood that
they were being used in an illegal fashion for the Company’s
benefit. The same can be said of Dell’s overtures toward West-
land.
Similarly, Bergum and Dell’s efforts, as well as the effacing
Oaks follow the same route. Indeed, their direct solicitations of
employees such as Preisner, Callison, and Dave Dell easily
exceeded the permissible bounds.
If Respondent had been acting innocently, it would have di-
rected them to an NLRB Regional Office,18 rather than sending
these employees on a disaffection mission. Respondent, with
its nefarious motivation, had no interest in determining the true
sentiments of the employees by permitting them a free and
uncoerced vote in any decertification petition which might be
filed. Had it not embarked upon its campaign, it is possible a
decertification movement may have begun from the grass roots.
Waiting for that happenstance, however, was a risky business
for it could not be assured. In addition, it would have subjected
Respondent’s promises to scrutiny in an openly debated cam-
paign. That would have meant that its benefits for employees
outside the bargaining unit might well have been incorporated
into the Union’s negotiation plans. Under that scenario, it
might have been obligated to provide the same benefits to the
bargaining unit as it did other employees, but still have to deal
with the Union.
In addition, it did not want to file an RM petition19 (a repre-
sentation petition filed by an employer) based on the disaffec-
tion petitions for the same reason. The disaffection petitions
were only effective in support of a direct withdrawal of recog-
nition. From Respondent’s perspective, withdrawal of recogni-
tion was a far better and quicker procedure. It had the obvious
benefit of not subjecting itself to the aforementioned scrutiny.
Furthermore, it was quick and, in large measure, out of sight of
the Union whose professional representative lived in Kansas,
nowhere near Colony or Belle Fourche. Indeed, instructions
were given to avoid certain employees, particularly those who
held some level of union office or who were deemed loyal to
the Union.20 The campaign was intended to be quick, relatively
stealthy, and be presented as a fait accompli. It would give the
Union little time to try to figure out what had happened. In
fact, the notice advising employees not to attend the union
meeting in the park was also designed to limit the Union’s
knowledge about what had happened. In that sense, it had the
tendency to interfere with the Section 7 right of a union to com-
municate with the employees it represents and therefore vio-
lated §8(a)(1) of the Act by interfering with the representational

18 R. L. White Co., 262 NLRB 575, 576 (1982).
19 See Sec. 9(c)(B) of the Act; also Levitz Furniture of the Pacific,
333 NLRB 717 (2001).
20 Such as the Local’s president, Pete Kiley, or its secretary-
treasurer, Dennis Wattier, who were rank-and-file employees or to
known union supporters such as Rick Reid, Glade Lynch, or Jerry
Rose.
process. Frontier Hotel & Casino, 309 NLRB 761, 766 (1992);
Boyer Bros., 217 NLRB 342 (1975); Precision Anodizing &
Plating, 244 NLRB 846 (1979); cf. Westinghouse Electric
Corp., 243 NLRB 306 (1979).
The entire campaign and all its features violated Section
8(a)(1). It was a repudiation of the principles set forth in the
Act.
The Board has long considered an employer’s undue in-
volvement in sparking employee interest in decertifying the
incumbent union or otherwise hamstringing it from within (urg-
ing resignations, dues-checkoff cancellations and the like) to be
an unlawful interference with the employees’ Section 7 rights.
See generally Texaco, Inc., 264 NLRB 1132 (1982), enfd. 722
F.2d 1226 (5th Cir. 1984), where the Board said at 1133:
Considering the course of events described above and
the entire record herein, we agree with the Administrative
Law Judge that “Respondent did not maintain a neutral
position here, and it obviously went further than simply
answering inquiries of employees.” After learning from
Sutton of employee dissatisfaction, Respondent initiated
and stimulated the activity that led to the employees’
withdrawal from the Union and the termination of the con-
tract. Respondent proposed the idea of both the employee
petition and the memorandum of agreement to terminate
the contract, and also drafted and typed them. In addition,
Respondent allowed employees to solicit and sign the peti-
tion during working time and provided supervisory assis-
tance in making the petition available to potential signers.
Clearly, Respondent did far more than merely allow
employees to exercise the rights guaranteed them in Sec-
tion 7 of the Act. Respondent actively and effectively par-
ticipated in the process of furthering employee withdrawal
from the Union.
Accordingly, we adopt the Administrative Law
Judge’s finding that Respondent unlawfully aided in the
circulation of the petition and encouraged employees to
sign.14
_________________________
14 See Shenango Steel Buildings, Inc., 231 NLRB 586, 588–
589 (1977); Dayton Blueprint Company, Inc., 193 NLRB 1100,
1107-08 (1971).
In addition to Texaco and the cases cited therein, other cases
covering the point include Corrections Corp. of America, 347
NLRB 632 (2006); Erickson’s Sentry of Bend, 273 NLRB 63,
64 (1984); Inter-Mountain Dairymen, Inc., 157 NLRB 1590,
1609–1613 (1966).
Following the presentation of the signatures on the disaffec-
tion petitions, Respondent naturally took the next step and
withdrew recognition of the Union. Since all of the disaffection
petitions were the product of the illegal union ouster campaign,
they cannot, as a matter of law, be relied upon to support the
contention that they properly represent the employees’ true
sympathies and desires concerning union representation. In-
deed, they are nothing more than the classic “tainted” signa-
tures which have been induced by unfair labor practices.
Therefore, they are simply not evidence that the Union lost its
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD686
presumptive majority status. See Hall Industries, 293 NLRB
785, 791 (1989), where the Board said, “Since the Respondent
actively stimulated the decertification effort and did so in the
context of serious unfair labor practices, its conduct in this
regard is also a violation of Section 8(a)(1) of the Act and the
decertification petition which resulted from its effort is void ab
initio.” This is no different. To withdraw recognition in cir-
cumstances where the Union’s majority status has not been
properly tested is a violation of Section 8(a)(5). Levitz Furni-
ture of the Pacific, supra.
It follows that the unilateral changes in the wages, hours, and
terms and conditions of employment which Respondent admits
(or at least did not counter with evidence) it instituted also vio-
lated Section 8(a)(5). NLRB v. Katz, 369 U.S. 736 (1961).
These include the $1.25-across-the-board wage increase; the
improved vacation benefits, changing the health plan, modify-
ing the 401(k) plan and abrogating the grievance procedures.
In addition, it refused to comply with the Union’s request for
information concerning collective bargaining by refusing to
respond to the Union’s July 19 letter. In addition, it refused to
respond to the Union’s additional request for information as set
forth in the attachment to the Union’s letter of July 23. These
refusals also violated Section 8(a)(5). NLRB v. Truitt Mfg. Co.,
351 U.S. 149 (1956); NLRB v. Acme Industrial Co., 385 U.S.
432 (1967). See also Curtiss-Wright Corp. v. NLRB, 347 F.2d
61 (3d Cir. 1965), enfg. 145 NLRB 152 (1963).
CONCLUSIONS OF LAW
1. Respondent, Bentonite Performance Minerals, LLC, a
Product and Service Line of Halliburton Energy Services, Inc.,
is an employer engaged in an industry affecting commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. International Chemical Workers Union Council/United
Food and Commercial Workers Union, CLC, Local 353C is a
labor organization within the meaning of Section 2(5) of the
Act.
3. The following is an appropriate bargaining unit:
All production and maintenance employees, including em-
ployees temporarily assigned as watchmen, in Respondent’s
mining, milling and packing operations located near Colony,
Wyoming, but excluding office and clerical employees, weigh
masters, laboratory technicians, watchmen, foremen and su-
pervisory employees.
4. By coercive interrogation of its employees to determine
their sentiments concerning union representation; by proposing
the idea of disaffection petitions; by soliciting signatures, both
directly and indirectly, of employees on those petitions; by
making promises of improved conditions if the Union was
ousted as their collective-bargaining representative; and by
attempting to interfere with the Union by limiting communica-
tions with the employees it represents, Respondent violated
Section 8(a)(1) of the Act.
5. By withdrawing recognition of the Union as the exclusive
collective-bargaining representative of its Colony, Wyoming
production and maintenance employees; by refusing to bargain
with the Union for a new collective-bargaining contract; by
making unilateral changes in the wages and other terms and
conditions of employment of those employees and by refusing
to respond to the Union’s request for information relevant to
collective bargaining, Respondent violated Section 8(a)(5) and
(d) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. It will also be ordered to cease its
campaign of encouraging, fostering, and instigating an em-
ployee movement to decertify or otherwise oust the Union as
the employees’ collective-bargaining representative as well as
to cease coercively interrogating its employees regarding their
union sympathies and desires and promising benefits to inter-
fere with their Section 7 rights. Finally, it will be ordered to
cease bargaining in bad faith by withdrawing recognition and
refusing to provide information relevant to collective bargain-
ing and to stop making unilateral changes in the wages, terms,
and other conditions of employment. And, given the serious
nature of these unfair labor practices and Respondent’s demon-
strated disregard for employee rights under the Act, a broad
remedial order is appropriate. Hickmott Foods, 242 NLRB
1357 (1979).
The affirmative action will include an order to recognize the
Union and to resume bargaining in good faith with the Union as
the exclusive representative of its employees. In this regard,
Respondent shall immediately provide the information re-
quested by the Union in its letters of July 19 and 23. In an
effort to restore the status quo as of July 23, if the Union re-
quests, Respondent will also withdraw any benefits it has
granted as a part of its campaign.21 Finally, Respondent shall
be directed to post a notice to employees advising them of their
rights and describing the steps it will take to remedy the unfair
labor practices which have been found.
Based on the foregoing findings of fact, legal analysis, and
the record as a whole, I make the following
[Recommended Order omitted from publication.]

21 This restoration remedy is appropriate in circumstances where the
Employer has unilaterally granted benefits greater than previously
enjoyed and where that grant was aimed at undermining the Union’s
representative status. See, e.g., Carrier Corp., 319 NLRB 184, 199
(1995); House Calls, 304 NLRB 311, 314 (1990); Dura-Vent Corp.,
257 NLRB 430, 433 (1981).