Grantham Mines

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 759 (N.L.R.B. 1969)

GRANTHAM MINES
Grantham Mines and United Cement, Lime and
Gypsum Workers International Union , AFL-CIO.
Case 31-CA-1093
June 30, 1969
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
On February 26, 1969, Trial Examiner Henry S.
Salim issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in unfair labor practices as alleged in the
complaint and recommending that the Respondent
cease and desist therefrom and take certain
affirmative action, as set forth more fully in the
attached Trial Examiner' s Decision . Thereafter, the
Respondent filed exceptions and a brief in support
thereof. The General Counsel filed a brief in support
of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision and the entire record in this
case, including the exceptions and briefs, and hereby
adopts the findings , conclusions,' and
recommendations of the Trial Examiner only to the
extent consistent herewith.
The Trial Examiner found, inter alia, that
Respondent violated Section 8(a)(3) and (1) of the
Act by discriminatorily discharging employees
Richard Comisky, Lynn Ishmael, Lewis Capparelli,
Ray Wilson, and S.O. Swanson. The Trial
Examiner based his findings upon Respondent's
knowledge that these employees were union
supporters; union animus; deviation from past
practice; and pretextual nature of the reasons given
for the discharges. The Trial Examiner concluded
that the discharges were motivated by Respondent's
"desire to rid itself of the most active adherents and
thereby crush and suppress the union
movement. . . ." For the reasons hereafter stated,
we do not agree with the conclusions reached by
the Trial Examiner for it is our opinion that the
evidence in this case raises no more than a mere
suspicion that the five employees involved herein
were discharged because of their union activity
or involvement.
That Respondent had knowledge of the five
dischargees union activity and support is not
seriously in issue.' Further, that Respondent
'We agree with the Trial Examiner that the Respondent violated Sec
8(a)(1) of the Act by unilaterally granting a wage increase and building a
swimming pool subsequent to the election won by the Union.
759
possessed a degree of union animus is clearly
indicated by the 8(a)(1) increase in benefits, the
statement by mine owner Mrs. Grantham that she
did "not want a union at the mine," and the
exchange between dischargee Ishmael and
Superintendent Williams more fully set out in the
margin.3 However, this evidence must be carefully
considered in the light of the other facts surrounding
the discharges in order to determine whether union
considerations did in fact play a part in
Respondent's decision to discharge.
Richard Comisky, a union supporter, was
allegedly discharged for sleeping in the mine during
working hours. Though it is disputed whether
Comisky actually had duties to perform during this
period, it is undisputed that he was discovered
sleeping during a time in which he was being paid to
work. Though not uncontradicted, the evidence
indicates, contrary to the Trial Examiner's
conclusion, that Respondent did not deviate from its
established past practice by discharging Comisky for
that reason. Though an employee named Moore was
previously retained after having been caught sleeping
by Respondent, the evidence indicates that Moore
was discovered sleeping during his "lunch break"
and not during working time. Further, Respondent
previously had discharged an employee named
Howard for sleeping on the job. Additionally,
though testimony was offered that other employees
"laid down in the mine" during working hours, it
was not established that Respondent was aware of
such employee activity.
Lynn Ishmael, also an ardent union supporter,
was allegedly discharged for missing two consecutive
work shifts. The record shows, and the Trial
Examiner found, that while Respondent has no set
policy as to discharge for "missing shifts," it is
nevertheless a practice of Respondent not to
discharge unless three shifts have been consecutively
missed by an offending employee. On the basis of
this evidence the Trial Examiner concluded that
Respondent had deviated from past practice by
discharging Ishmael, and that the deviation, not
being in accord with Respondent's business
practices, must have been motivated in part by
Respondent's desire to rid itself of a union adherent.
The record testimony, however, indicates that, prior
to discharge, Ishmael requested to work on a special
'Employee Wilson' s union support was limited to signing a union card
after the election Wilson did not vote in the election as he was not
employed on the election eligibility date.
'As testified by Ishmael
A. We were talking about what the Union would do, our dislikes or
pro and cons, or what it would do for us. Of course, he was against it
which he naturally would be.
Q Was there anything else?
A I had been in a union before, and stuff, and knowed that we had
to have power for bargaining.
Q. Did you tell Mr. Williams how you felt about the Union?
A Well, yes, somewhat; what we thought and what control we would
have and this and that He said something , you know , that we couldn't
fire a guy but there would be ways of getting rid of people.
177 NLRB No. 111
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shift. Respondent complied with the request,
arranged a special shift, and hired another employee
to work with Ishmael . Thereafter, however, Ishmael
did not report for this special shift for two
consecutive days, and as a consequence the other
employee hired to accompany Ishmael was not able
to work. Ishmael's failure to report under these
circumstances gave rise to William's discharge
statement to Ishmael the following day that "You
put me on the spot." It is our conclusion that the
above events surrounding the Ishmael discharge are
sufficient to explain and exonerate any alleged
deviation from previous past practice.
Employees Capparelli, Wilson, and Swanson all
missed work on April 7, 1968, and were allegedly
discharged for that reason. The Trial Examiner
found that Respondent, by discharging these three
employees had again deviated from its past practice
of allowing up to three shift misses without
discharge, and that the discharges were in part
motivated by union considerations. In so finding, the
Trial Examiner rejected Respondent's contention
that past practice concerning isolated shift missing
should not control where 3 (of about 10) miners all
miss work the same day, thus causing Respondent
unique production problems. In rejecting
Respondent's "production hardship" defense, the
Trial Examiner found that "several" miners were
considered versatile and thus presumably able to
take up the missing miners' production slack. Upon
close examination, however, the record indicates
that only two miners (identity unknown) were
considered to be so versatile. Thus, it is our opinion
that the evidence concerning worker versatility does
not suffice to negate Respondent's business reasons
for making the discharges here involved. Therefore,
no adverse inference concerning Respondent's
motivation for making the discharges is in order
based solely upon Respondent's discharge of
employees who missed only 1 day of work. We note,
furthermore, that Capparelli had previously been
fired and rehired on several occasions, and that both
Wilson and Swanson had in the past been
discharged for missing work.
On the basis of the above, and having thoroughly
considered the record, the Trial Examiner's
Decision, and the briefs, we conclude that the
evidence fails to raise more than a mere suspicion
that Respondent was motivated by other than
legitimate business considerations in making the five
discharges in question. Consequently, we shall
dismiss the 8(a)(3) allegations in the complaint.
As we have dismissed the 8(a)(3) allegations in the
complaint, we find inappropriate the broad
cease-and-desist order recommended by the Trial
Examiner, and shall issue only a narrow order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that the Respondent,
Grantham Mines, Warm Springs, California, its
agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Granting employees wage increases and other
benefits in order to induce them not to engage in
union or other concerted activities, except that
nothing herein contained shall be construed as
requiring the Respondent to revoke any wage
increase or other benefits which it has granted.
(b) In any like or related manner interfering with,
restraining , or coercing employees in the exercise of
their rights under Section 7 of the Act.
2. Take the following affirmative action, which is
found will effectuate the purposes of the Act:
(a) Post at its mine at Warm Springs, California,
and its offices at Laguna Beach, California, copies
of the attached notice marked "Appendix."" Copies
of said notice, on forms provided by the Regional
Director for Region 31, after being duly signed by
Respondent's authorized representatives, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by
Respondent to insure that the said notices are not
altered, defaced, or covered by any other material;
and
(b) Notify the Regional Director for Region 31, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
'In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals
Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act, as amended,
we hereby notify our employees that:
WE WILL NOT increase your wages or give you other
benefits with the idea of getting you to not help the
Union or to give up being a union member. We are
not required hereby to withdraw any wage increase or
other benefit which we have previously granted to you.
GRANTHAM MINES
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 10th Floor,
Bartlett Building , 215 West Seventh Street, Los Angeles,
California 90014, Telephone 213-688-5851.
GRANTHAM MINES 761
TRIAL EXAMINER ' S DECISION
STATEMENT OF THE CASE
HENRY S. SAHM, Trial Examiner: This proceeding under
Section 10(b) of the National Labor Relations Act was
heard in Baker, California, on November 19 and 20, 1968,
pursuant to due notice. The complaint, which issued on
July 22, 1968, on a charge dated June 3, 1968, alleged
that Respondent engaged in unfair labor practices
proscribed by Section 8(a)(1) of the Act by unilaterally
granting wage increases and other benefits and also
violated Section 8(a)(3) by discharging five employees
because of their union activities.' Respondent answered
denying generally the charges, alleging that the employees
were discharged for excessive absences and sleeping on the
job. The issue is not whether there existed valid grounds
for discharge, but whether the stated grounds were the
real ones.' Briefs were filed by the parties on January 15,
1969.
Upon the entire record in the case and from
observation of the demeanor of the witnesses while
testifying, there are hereby made the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Respondent is a California proprietorship doing
business under the name of Grantham Mines at Warm
Springs, California , where it is engaged in mining talc. Its
main office is at Laguna Beach, California . It sells and
ships annually to extrastate points products valued in
excess of $50,000, and is, therefore , engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Charging Party is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Background
The Grantham Mine is located at Warm Springs, in
Death Valley, California, approximately 50 miles from
Shoshone , a settlement of 165 people, where mail for the
mine is picked up daily. There are no telephones at the
mine and the only means of communication with
civilization is by privately owned automobiles and trucks
which transport the talc from the mine. Located upon the
mine site , which is entirely owned by the Respondent
Company , are two homes in which the mine
'At the hearing , the General Counsel moved to dismiss the complaint as
to Howard Haskins, an alleged discriminatee , which was granted pro
forma. The General Counsel stated that Haskins was discriminatorily
discharged but that his whereabouts were unknown . It is not necessary that
a dischargee who claims to have been discriminated against and whose
name appears in the complaint, make personal appearance and give
personal testimony where the facts apply to a group so that the relief
afforded to the group may be afforded to the one discriminatee. The test to
be applied is whether there is substantial evidence in support of the
allegations of the complaint irrespective of the appearance or
nonappearance of the employees as witnesses at the hearing . Cf. Campbell
Coal Company, 112 NLRB 941, 958.
V P. Stevens & Co. v. N.L.R.B., 380 F.2d 292, 300 (C.A 2); N.L.R B
v. Milco, Inc., 388 F.2d 133, 138 (C.A. 2).
superintendents and supervisor live with their families; a
trailer occupied by the mechanic and his wife, a
bunkhouse in which approximately 12 of the 15
employees; sleep and a mess hall where they eat; a
cookhouse; a mechanical shop; and a few other buildings
used in the mining operations. All materials, provisions
and food must be trucked into the campsite.
Union activity began at Respondent's mine in February
1968, shortly after an employee, at the behest of his fellow
employees, contacted the Charging Union.' This employee
advised the Union that the employees were interested in
having a union represent them in negotiations with
Respondent. The Union held two meetings with the
employees. Authorization cards were signed by various
maintenance and production employees ' and the Union
filed a petition with the Regional Office of the National
Labor Relations Board on February 12, 1968, and a
stipulation for certification upon consent election was
thereafter executed by the parties on March 4, 1968. The
night before the election , March 21 , nine miners held a
meeting in the bunkhouse at which time they were polled
as to how they intended to vote. Eight were for the Union
and one against . An election was held on March 22, and
of the 15 eligible voters, 8 were for the Union and 7 were
against . On March 28, Respondent filed objections with
the Regional Director which were disallowed on May 7.
On June 21, 1968, the Charging Union was certified by
the Board as the collective-bargaining representative of the
production , maintenance , and kitchen employees.
Beginning on March 12, 1968, 10 days before the
election , one employee was discharged and the remaining
four alleged discriminatees were fired on April 3 and 8,
approximately 2 weeks after the election. These five men
comprised half of the miners working force.
The Testimony
Richard Comisky, an alleged discriminatee, was hired
as a miner' on July 6, 1967, and worked until April 3,
1968, when he was discharged. He, along with all the
other alleged discriminatees, lived at the campsite. They
worked 12 consecutive days including Sundays and then
had 2 days off. Comisky was an active union proponent
and solicited his coworkers to vote for the Union.
Sometime in March, about two or three weeks before the
election, Comisky asked William Ryan, the mine
superintendent, what his opinion was regarding the Union.
Comisky, during this conversation, volunteered the
information that he favored the Union. He and Ryan then
discussed the adequacy of the ventilation system in the
mine, the underground safety facilities and the telephone
communications between the underground workings of the
mine and the surface.
On the night before the election, Comisky and another
miner called a meeting of the employees. At this meeting
a poll of those present was conducted by Comisky: eight
voted for the Union and one, Dugger, voted against the
Union.
On April 3, about 1:30 p.m., at a time when he was
working underground , Comisky testified that while
waiting for the two-men muck crew to prepare the mine
'During the first 6 months of 1968, there was an average of 14 miners
employed by Respondent, 2 cooks and 2 maintenance men
See fn . 10, p. 5.
'Also included in the unit were "kitchen employees."
'When reference is made to miners, it is used in its all-inclusive sense to
include drillers , muckers and skip loaders, all of whom mine, load and
remove the talc from the mine.
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
heading in order for him to proceed with the drilling, he
sat down and fell asleep alongside the rib of the mine
working . His supervisor , Don Williams , awakened him.'
Immediately thereafter, the muck crew finished their work
and Comisky continued with his drilling until 2:30 p.m.,
the end of the shift, when he shut down his machine and
went to the surface. Williams told him he was discharged
for "sleeping underground."
Comisky, on cross-examination, testified that when he
dozed, there was no work for him to do, as he had to wait
until the muck crew who operated a skip loader, a mobile
unit, had bored the heading, removed and loaded the talc
into the skip loader and prepared the mine head for
further drilling by Comisky.' When they left, he testified,
he checked the rim of the heading to ascertain if there was
any loose scale or rock on the mine roof or sides (rib)
which the muck crew had not removed and which might
fall from the roof, ribs and face of the heading into the
passageway when he began to drill. This, in the parlance
or jargon of miners, is referred to as "barring-down," a
safety measure , which entails scaling or knocking the
loose rock off the rims of the heading and ribs. When
Comisky was satisfied that there was no danger of this
occurring , he resumed his drilling.
Lewis Capparelli, an alleged discriminatee, was first
employed by Respondent on October 18, 1960, and was
fired on January 28, 1961. On August 20, 1964, he was
reemployed and quit on February 17, 1965. Respondent
hired him for the third time on August 31, 1965, and fired
him on November 19, 1965. A week later, on November
28, 1965, he was again rehired and quit of his own volition
on February 6, 1966. He was reemployed for the fifth
time on November 29, 1966, and fired on April 8, 1968,
for missing one shift without notifying Respondent.
Williams, his supervisor testified that from November 30,
1966, to April 8, 1968, Capparelli missed three shifts.
Capparelli, who was the union steward and the Union's
observer at the election, attended both union meetings,
paid union dues , and solicited employees to sign union
cards in order to seek higher wages and safer working
conditions including an improved ventilation system. He
was also present and took the initiative in polling the nine
miners in the bunkhouse the night before the election. On
Monday, April 8, 1968, when he returned to the mine
after taking an extra day off in addition to the two days
to which he was entitled, he was discharged by Williams,
his supervisor, for missing the extra day without reporting
to the mine that he would not be at work. Capparelli
testified that prior to his last discharge, he had frequently
missed shifts without first reporting to the Company he
would be absent and he was not fired. All that was said,
he testified, "was that if I was through with my drunk, to
go back to work in the morning."'
Capparelli, when called as a witness by the Respondent,
testified that Louise Grantham, the owner of the mine,
told him before the election that he was a good employee
but that she did not want the Union at the mine.
Swan 0. Swanson originally went to work for the
Respondent in April 1963 and was discharged on July 11,
1965, for purportedly missing three shifts. Shortly
thereafter, in September 1965, he was rehired and
'Williams testified that when he awakened Comisky, he said . "What's
the matter You tired'"
'The head is approximately 24 feet in width and Comisky was sleeping
about 50 feet away from where the muck crew was working . The drilling
operation is preparatory to blasting which occurs at 2 30 p.m each
working day, by which time all personnel must be out of the mine
'See fn 43, p 13
continued to work until April 8, 1968, when he was
discharged for missing one shift. Swanson attended both
union meetings , signed a union card, openly supported the
Union, and was present at the meeting in the bunkhouse
when the employees were polled in order to determine
who was for and against the Union.
Lynn Ishmael was hired on May 22, 1967, and fired on
March 12, 1968, for allegedly missing two shifts. It was
Ismael , a former union member, who contacted the Union
at the request of his fellow workers in February 1968.'°
He attended the two union meetings , signed a union card
and attempted to obtain signed union authorization cards
by explaining the benefits that the employees would
receive if they joined the Union. He also discussed the
Union with Ryan and Williams, company officials. In
December 1967, he inquired of Ryan about what the
possibilities were of a pay increase and told him if it was
not granted, the men would " go union ." Ryan told him he
would take it up with Louis Grantham, the owner of the
mine . Sometime in March 1968, before the March 21
election, Ishmael told Williams, that he believed the
employees needed a union, but Williams, according to
Ishmael, was against a union and said ". . . we couldn't
fire a guy but there would be ways of getting rid of
people." When Ishmael was fired on March 12,
purportedly for missing two shifts, he testified that
Williams told him: "I put him on the spot "
Ray Wilson, an alleged discriminatee, first went to
work as a miner for Respondent, on January 9, 1966, and
was fired on June 17, 1966. He was again hired on
February 14, 1967, and involuntarily removed himself
from the labor market on January 26, 1968, due to
circumstances beyond his control, namely: he was
incarcerated in a penal institution for 21 days. Upon
regaining his freedom, Respondent reemployed him on
March 14, 1968, until his discharge on April 8, 1968, for
missing one shift. Wilson testified that in the mining
industry it is an unwritten rule if an employee misses three
consecutive shifts without notifying the company, he is
fired. However, he stated he had missed two shifts
"several times" while employed by Respondent but was
not fired. Prior to the discharge at bar, he testified that
the only time Respondent fired him was when he missed
three shifts in 1966.
Vernon Dunkerley, an operator of both underground
mine machines and surface machines, went to work for
Respondent on March 13, 1966, and left July 3, 1968."
The first of the two union meetings was held in Tecopa at
Dunkerley's home. On April 14, 1968 three weeks after
the election, his wage rate was increased from $2.85 to
$3.10.
Ben Dugger is presently employed by Grantham Mines,
as an underground maintenance man. He attended the
bunkhouse meeting the night before the election and of
the nine employees who were present and polled, he was
the only one who voted against the Union. Dugger
testified that some of the employees at this meeting said
they believed that those who voted for the Union would be
fired. "A day or so after the election," testified Dugger,
Franklin , the Company' s mining engineer , and Attorney
Becker asked him what had transpired at this meeting.
They told him, he testified, "they were investigating the
"Franklin , a company official, testified a union representative contacted
the then mine superintendent in September 1967, with respect to a wage
increase for the employees.
From March to May 1967, he worked underground and after that
underground and on the surface as he was qualified to operate both surface
and underground machines At times he also worked as a miner
GRANTHAM MINES
meeting, or the election ...." Dugger told them that the
employees at the bunkhouse meeting the night before the
election said that those for the Union would be fired and
"that the company had a list of everybody that
registered." His statement, given to Franklin, dated
March 30, was put in writing and signed by Dugger."
Don Williams, mine supervisor, who has been employed
by the Respondent for 11 years, testified that
approximately a month after the election, chemical toilets
were installed in the mine , telephones were installed
connecting the underground workings with the office on
the surface, construction was begun in April on a
swimming pool , an air door was installed in the mine"
and in April an improved ventilation system was installed
in the mine . Franklin , the Company ' s mining engineer,
testified that additional safety stations were built in the
mine in May 1968.
When Williams was asked why it is that he so often
rehires miners he had fired previously, he answered:
"usually you fired them and give them a cooling-off
period and then hire them back . . . " Well, they lay off
drinking and I will tell them about it several times and
they will say, well, they are sorry, and won't do it again,
and so forth, and then it gets a little oftener and you have
to fire a man. Then they will go off and maybe they will
be gone three or four months and then come back, and
well, we will try it again . It is the way in these mining
camps . . . . what they call them is tramp miners ...."15
Williams testified that getting drunk on their time off
from the mine is a way of life for the miners after living a
couple of weeks at this isolated site of the mine.
Williams, on cross-examination, admitted miners
"drink a lot" and "they miss a lot of shifts" and since this
is a way of life with them, the Respondent, perforce, takes
a realistic and tolerant attitude toward their frequently
missing shifts and not reporting for work after a night out
on the town. The tolerance takes the form of condoning
this conduct as the testimony reveals that usually they are
not fired but if they are, they are rehired after what
Williams characterized a "cooling-off" period. As
Williams put it: "I tell them they would have to make the
shifts oftener or they would have to be terminated. I said
that they were going to have to start working steadier or
they would be terminated." His testimony revealed in his
words that this occupational situation occurred "quite a
bit."
Williams testified that Capparelli , Swanson , and Wilson
were fired for missing one shift and Ishmael two shifts
and Comisky for sleeping on the job.
When Williams was asked on direct examination the
Respondent's policy with respect to terminating miners for
failure to report for work without first notifying the
Company, he testified:
We have no set rules on that. The fellows that lay off a
few times are told about it, and if it continues we have
to leave them go. We have no set days or time limits.
Other than the five dischargees in this proceeding,
Williams could only recall three miners who, in his 11
years with the Respondent, were fired for missing shifts:
one occurred in 1966 and two in 1960 and the only miner
"See G.C. Exh. 10
"An air door diverts the ventilation and channels fresh air to where the
miners are working
"This is a reference to many of the miners at Respondent's mine
frequently getting drunk on their off days
"Williams explained they were called "tramp" miners because " they go
from one job to the other That is the mining industry "
763
other than Comisky fired in 11 years for sleeping on they
job was an employee named Moore. However, Dunkerley
testified that Moore was not fired for sleeping on the job.
Charles Simmons and Vernon Elliott, who are presently
working at the mine and testified on behalf of the
Respondent, stated they were never told by the Company
how many shifts they could miss without being fired.
Elliott testified that he knows of employees who have
missed shifts and were not discharged.
Richard Franklin, the Company's mining engineer who
visits the mine every week from Respondent's main office
in Laguna Beach , California, testified that on April 14,
1968, approximately 4 weeks after the election, the
miner's pay was raised from $2.85 to $3.10 per hour;
maintenance mechanics from $2.50 to $2.72; the cook
from $2.00 to $2.18 and his helper from $1.60 to $1.74
per hour. He also testified there is no such company
policy providing for discharge when three shifts are
missed.
Credibility
The five employees who were discharged appeared to be
sincere, candid, and forthright witnesses who told
straightforward stories and the events related by them
follow a logical sequence which are consistent with the
attendant circumstances in this case. Moreover, they gave
the impression of being objective and honest in their
testimony. This impression became a conviction when
their testimony was not appreciably shaken by counsel for
the Respondent who vigorously and thoroughly
cross-examined them.
Discussion and Conclusions
The complaint alleges that Respondent unilaterally
granted an increase in wages and conferred other
economic benefits upon its employees in order to
undermine the employees' support of the Union both
before and after its winning the March 22 election. The
evidence reveals that on April 14, 1968, all the employees
received wage increases and the Company in April 1968
installed a swimming pool for the employees' use. The
wage increases and the building of a swimming pool in
relation to the election on March 22, 1968, and the
certification of the Union on June 21, 1968, is believed to
be more than a mere temporal coincidence. It is found,
accordingly, that these benefits were occasioned by the
advent of the Union. These probative occurrences reveal
that Respondent conferred these benefits upon the
employees in order to induce them to abandon the Union
and to undermine the Union's majority representative
status. The timing of and the granting of the pay increases
and installation of the swimming pool so soon after the
election and before certification of the Union permits no
other explanation.
In N.L.R.B. v. Exchange Parts Company, 375 U.S.
405, 409-410, the Supreme Court held that:
We have no doubt that it [Section 8(a)(1)] prohibits not
only intrusive threats and promises but also conduct
immediately favorable to employees which is
undertaken with the express purpose of impinging upon
their freedom of choice for or against unionization and
is reasonably calculated to have that effect . . . The
danger inherent in well- times increases in benefits is the
suggestion of a fist inside the velvet glove. Employees
are not likely to miss the inference that the source of
benefits now conferred is also the source from which
future benefits must flow and which may dry up if it is
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not obliged."
Such conduct by Respondent was violative of Section
8(a)(1) of the Act."
The Discharges
The issue is whether the five alleged discriminatees were
terminated by Respondent, as contended by the General
Counsel, in violation of Section 8(a)(3) of the Act,
because of their union sympathies, or for sleeping on the
job and repeatedly missing shifts, as claimed by the
Respondent. In determining this question, the burden of
proof was on the General Counsel to establish and sustain
the allegations of his complaint by a preponderance of the
credible and probative evidence, and where discriminatory
severances are charged, as here, then he must establish by
a preponderance of the evidence that such terminations
were motivated by union activity or was a contributory
reason ." The General Counsel in order to prove a prima
facie case must show that the alleged discriminatees
engaged in activities protected by Section 7 of the Act;
that the Respondent knew they engaged in such conduct
prior to discharge, and that they were terminated as a
result of having engaged in such activities. Moreover, the
burden of proof rests not upon the Respondent to
convince the trier of the facts that the terminations were
not in violation of the Act but upon the General Counsel
to prove they were illegal."
Against the fact pattern detailed above, Respondent's
contentions, in its efforts to exonerate itself from a finding
of unfair labor practices , are singularly unimpressive.
Certain undisputed and demonstrable facts in this case,
which have been referred to heretofore, and additional
indicia detailed below, strengthen and fortify this
conclusion. The testimony of Williams, Respondent's
principal witness , was vague and equivocal. His
unconvincing testimony creates a suspicion that he was
concealing an unlawful motive, which in this case was an
attempt to forestall and abort the organizational activities
of the employees and it is so found.
Before considering the specific facts in this proceeding,
it might be well to discuss some applicable legal
principles. Concerted activities are combined action by
employees, whether or not unionized, to improve
conditions of employment. The basic policy of the Act is
one of clothing with affirmative protection those concerted
activities of employees which are encompassed in Section
7 of the Act. The right of employees to lawfully engage in
concerted activities for the purpose of mutual aid is
protected and any proscribed or interdicted conduct by the
employer infringing on those rights is an unfair labor
practice.30 "The Act was passed for the primary benefit of
the employees as distinguished from the primary benefit to
labor unions, and the prohibition of unfair labor practices
designed by an employer to prevent the free exercise by
employees of their wishes in reference to becoming
'See also Medo Photo Supply Corporation v N L.R.B., 321 U.S. 678,
685-686; Overnite Transportation Company v. N.L.R.B, 372 F.2d 765,
769 (C.A. 4), cert denied 389 U. S. 838 ; Florence Printing Co. v.
N.L.R.B.. 333 F.2d 289, 290-291 (C.A. 4); N.L.R B v. Lester Brothers,
Inc., 301 F 2d 62, 65 (C.A. 4).
""If [the employer ' s] course of action in either granting or withholding
benefits is prompted by the union 's presence, he violates the Act."
American Technical Machinery Corp., 173 NLRB No. 210.
"Cf. Indiana Metal Products Corp., v. N.L.R B.. 202 F.2d 613, 616
(C A. 7); N.L.R B. v. Deena Products Company, 195 F 2d 330, 335 (C.A.
7), cert denied 344 U.S. 827.
"N.L.R.B. v Cleveland Trust Co.. 214 F.2d 95, 99 (C.A. 6); N.L.R.B
v. Drennon Food Products Co., 272 F 2d 23, 28 (C.A. 5).
members of a union was intended by Congress as a grant
of rights to the employees rather than a grant of power to
the Union.""
In determining whether a layoff, discharge, or
termination is for union activities or for cause, the
problem is to ascertain the employer's true, underlying
motive." The fact that a lawful cause for discharge is
available is no defense where the employee is actually
discharged because of his union activities.13
It is the "true purpose" or "real motive" in hiring or
firing that constitutes the test. Some conduct may by its
very nature contain the implications of the required
intent; the natural foreseeable consequences of certain
action may warrant the inference. And see Republic
Aviation Corp. v. Labor Board, 324 U.S. 793. The
existence of discrimination may at times be inferred by
the Board, for "it is permissible to draw on experience
in factual inquiries.""
Since direct evidence of a purpose to violate the Act is
rarely obtainable, proof of motive usually entails the
weighing of conflicting inferences. The task of weighing
conflicting inferences is entrusted to the trier of the facts.
"The possibility of drawing either of two inconsistent
inferences from the evidence [does] not prevent the [trier
of the facts] from drawing one of them ...."_" Usually
inferences may be drawn of one fact from the existence of
another when in common experience there is a "rational
connection between the facts proved and the ultimate facts
presumed."" The trier of the facts is not "compelled" to
accept the employer' s assigned reason for discharging
employees "when there is reasonable cause for believing
that the ground put forward by the employer was not the
true one, and that the real reason was dissatisfaction with
the union activity.""
For the reasons hereinafter explained, it is believed the
record in this case makes plain that with respect to the
five employees found to have been discriminatorily
discharged, there is considerably more than a coincidental
connection between their union activities and their
terminations." Indeed, it is found that the "principal
events [are] really no coincidence at all, but rather part of
a deliberate effort by the [Respondent Company] to
scotch the lawful measures of the employees before they
'See N.L.R.B. v. Hymie Schwartz, d/b/a Lion Brand Manufacturing
Company, 146 F.2d 773, 774 (C.A 5).
"N L.R B. v. Mid-States Metal Products, Inc., 403 F.2d 702 (C.A. 5).
'N L R B. v. Jones If Laughlin Steel Corporation, 301 U.S. 1, 45-46;
The Radio Officers' Union of the Commercial Telegraphers Union. A.F L.
IA. H. Bull Steamship Company] v. N L R B, 347 U.S. 17, 43-44.
"N.L.R.B. v. Ace Comb Company and Ace Bowling Company, Division
of Amerace Corporation, 342 F.2d 841 (C A. 8), enfg. 141 NLRB 489.
"Local 357, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America [Los Angeles-Seattle Motor
Express] v. N.L.R.B., 365 U.S. 667, 675
"N.L.R B. v. Nevada Consolidated Copper Corporation, 316 U S. 105,
106. See also N.L.R.B. v L. Rooney It Sons Furniture Manufacturing
Co., 206 F.2d 730, 737, where the court of Appeals for the Ninth Circuit
stated "it is well settled that an employer violates sec. 8(a)&3) by discharging
an inefficient employee if the employer's reason for so doing is not the
employee's inefficiency but his union affiliation or activity" Cf N.L.R.B.
v. C It J. Camp, Inc., et al., d/b/a Kibler-Camp Phosphate Enterprise.
216 F.2d 113, 115 (C.A. 5), where the court held that a justifiable cause
for discharge cannot shield discrimination in employment shown to have
been unlawfully motivated.
"Tot v. US., 319 U.S. 463, 467.
"Great Atlantic and Pacific Tea Co., Inc v. N.L.R.B, 354 F.2d 707,
709 (C.A 5).
"N L R B. v. Condenser Corporation of America, 128 F.2d 67, 75 (C.A.
3)
GRANTHAM MINES
had progressed too far toward fruition ."" Under these
circumstances "a very convincing case of discharge for
cause would have to be made to make unreasonable a
conclusion that [the] discharge [s] [were] because of union
[activities]."" As was stated by the Court of Appeals for
the Fifth Circuit in Shell Oil Company v. N.L.R.B., 196
F.2d 637, 639:
... whatever may be thought of the case made, if the
occurrences are viewed and apprehended piecemeal,
viewed and apprehended as a whole , the record fully
supports the . . . findings : that an anti-union coup was
planned, ... to eradicate the union and unionism from
the plant,... .
....Union membership or activity does not insulate an
employee against the hazards of unemployment due to
lack of work or any other reason related to the
legitimate management of the business . [Citations
omitted.] On the other hand , [valid ] economic reasons
may not be asserted to shield an employer against the
consequences of his discrimination against an employee
who would not have been laid off but for his union
activities or membership . [Citations omitted.] The
circumstances of each case must be weighed to
determine what motivations truly dominated the
employer in laying off or discharging the employees."
Section 8(a)(3) of the Act is not intended generally to
interfere with the freedom of an employer to hire and fire
as he pleases . He may discharge employees as he sees fit;
he may discharge them in the interest of efficiency or
from personal animosity or mere whim ." But in making
these decisions he must not discharge them on grounds of
union affiliation or activity. "Moreover, it matters not
that for reasons apart from union activity an employee
deserves summary discharge if as a fact the reason was
union activity."" "A justifiable ground for dismissal is no
defense if it is a pretext and not the moving cause.""
In this case , there is the interference , coercion, and
restraint practiced by the Respondent in its discriminatory
treatment of the five employees for their union activities
which, it is found and discussed in later sections of this
decision, was an integral part of the Respondent 's efforts
to frustrate the employees' union organizational
campaign . Then too, there are the antiunion views
expressed by Ryan and Williams, supra , particularly
Williams' threat to Ishmael that "there would be ways of
getting rid" of union adherents which clearly show union
antipathy. See supra. Such a statement by one of the
Respondent's officials shows an improper attitude in union
relations . Clearly, "antiunion bias and demonstrated
unlawful hostility are proper and highly significant factors
for Board evaluation in determining motive.""
However, even to establish that a justifiable ground
existed for these discharges does not show that
Respondent in fact acted for that reason , for it is no
defense if that was a pretext and not the moving cause."
The controlling and ultimate fact is, what was the true
reason in back of the terminations."
"N L.R.B. v. Jamestown Sterling Corp. 211 F.2d 725, 726 (C.A. 2).
"Dannen Grain d Milling Co . v. N.L.R. B., 130 F .2d 321, 328 (C.A. 8).
"N.L.R.B. v. Jones Sausage Company A Jones Abattoir Company, 257
F.2d 878, 881-882 (C.A. 4).
"N.L.R.B v. T. A. McGahey, Sr., et al., d/b/a Columbus Marble
Works, 233 F.2d 406 , 413 (C.A. 5).
"N.L.R.B. v. Electric City Dyeing Co.. 178 F .2d 980 , 983 (C.A. 3) See
N L.R.B. v Dixie Shirt Co., 176 F. 2d 969 , 973-974 (C.A. 4).
"N.L.R.B. v. Solo Cup Company, 237 F.2d 521 , 525 (C.A. 8).
"N.L.R.B. v. Dan River Mills , Incorporated, Alabama Division, 274
F.2d 381 , 384 (C.A. 5).
765
The short of the matter is that "even though
unprotected activity gives the employer the right to
discharge for such conduct , it does not confer upon him
the right to discharge an employee for an entirely different
reason." " As the Board explained in Marshall Car Wheel
Co., 107 NLRB at 318:
We are . . . ever ready . . . to recognize and condemn
unprotected conduct wherever it may occur. And we are
... vigilant to protect an employer's right to discipline
strikers or any employee for engaging in such
misconduct. But we are equally vigilant to protect the
employees' statutory rights against infringement by an
employer for reasons other than their misconduct.
The Board's approach has the double advantage of
encouraging neither misconduct on the employees' part
nor disrespect for the right secured by the Act on the
employer's part. Perverse conduct is not encouraged,
because it is unequivocally clear to the employees that
they are subject to discharge or discipline for such
misconduct; disrespect for the rights secured by the Act is
not encouraged , because it is unequivocally clear to the
employer that his authority to discharge or discipline
employees for derelictions of duty does not embrace the
power to discharge or discipline for a reason prohibited by
the Act. Refractory conduct as such is in no different
class than any other wrong which would justify the
discharge of an employee. As with any ground for
discharge which could have been, but which was not, the
legitimate basis for the employer 's action , "it matters not
that for reasons apart from union activity an employee
deserves summary discharge if as a fact the reason was
union activity.""
If Respondent' s real purpose in acting when it did was
to discourage organizational activities , the fact that valid
considerations may have warranted their discharges will
not avail Respondent as a defense. The evidentiary history
of this rather personalized mine operation reveals that
employees were repeatedly discharged and after a
"cooling-off" period of time rehired without any economic
sanctions. Respondent' s employment practices were
peculiar indeed . Even if the employees' repeated absences
and sleeping . on the job were the reasons for the
discharges, that would not gainsay that the
discouragement of union membership was also a
substantial and motivating reason , thus requiring
nonetheless a finding of unlawful discrimination."' Even if
there were repeated absences from work by the alleged
discriminatees , Respondent condoned these derelictions by
its repeatedly rehiring these men after their discharges."
Then too, the Company's lenient attitude toward those
miners who missed shifts without reporting their absences,
was due , it is reasonable to assume , because the
Respondent was aware of the difficulty in communicating
with the mine due to its isolation."
"N.L.R.B v. Solo Cup Company, 237 F.2d 521, 525 (C.A. 8); Sunshine
Biscuits , Inc. v. N L.R.B. 274 F 2d 738, 742, (C.A. 7).
"Victor Manufacturing & Gasket Company v N.L.R.B, 174 F.2d 867,
868 (C.A. 7); and see N.L R B v. C & J. Camp, Inc, et al., d/b/a
Kibler-Camp Phosphate Enterprise, 216 F 2d 113, 115 (C.A. 5), enfg. 107
NLRB 1068
"N.L.R.B. v. Wallick & Schwalm, 198 F.2d 477, 484 (C.A. 3).
"N L.R. B. v. Electric City Dyeing Co., 178 F.2d 980, 983 (C.A. 3). See
also N.L R.B v. Sunnyland Packing Co, 211 F.2d 923, 924-925 (C A 5).
"N L R.B v. Whitin Machine Works, 204 F.2d 883, 884 (C A. 1) and
cases there cited ; Town & Country Manufacturing Company, etc. v.
N L.R.B, 316 F.2d 846, 847 (C A 5).
"Brantly Helicopeter Corporation, 135 NLRB 1412.
"See p. 2, supra.
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moreover , Dunkerley , testified that prior to April 8, 1968,
he, Jim Chandler and Telford Landis , also known as
"Snipe," missed more than two shifts and were not fired.
Permeating this entire record is the belief of the Trial
Examiner that Respondent ' s belated demand for strict
compliance with its alleged no-missing -of-shifts policy was
conceived not only ex post facto but more consistent with
antipathy for union activity than concern over the
employees ' absenteeism ." Furthermore , it appears that the
dischargees' attendance records were no worse than their
fellow miners."
It is clear that an employer may discharge an employee
for any cause or no cause at all as long as it is not
motivated by activities protected by Section 7 or
proscribed by Section 8(a)(3) of the Act." The fact that an
employee is a union adherent affords him no protection
against a discharge for cause . Moreover , the existence or
assertion of a valid reason for discharge does not
necessarily indicate that this reason constituted the real
cause for discharge , nor does the existence of a valid cause
provide a defense unless it is the moving cause for the
termination °" Nor does failure of an employer in an
unfair labor practice proceeding to show proper cause for
a termination relieve the General Counsel from his burden
of establishing that the discharge was motivated by
proscribed considerations . On the other hand, the
unconvincing character of proffered reasons for a
discharge is also a significant factor in determining
whether or not the discharge was improperly motivated."
In fact , a finding of discriminatory motivation for a
discharge may find substantial support in an employer's
asserted reason for the discharge when that reason is
pretextual in nature . To adopt a recent statement of this
principle by the Court of Appeals for the Ninth Circuit in
Shattuck Denn Mining Corporation (Iron King Branch) v.
N.L.R.B., 362 F . 2d 466 , 470, enfg. 151 NLRB 1328:
If [the Trial Examiner ] finds that the stated motive for
a discharge is false , he certainly can infer that there is
another motive . More than that, he can infer that the
motive is one that the employer desires to conceal-an
unlawful motive-at least where , as in this case, the
surrounding facts tend to reinforce that inference.
Although the discharge of an employee is lawful, it may
become discriminatory if other circumstances reasonably
indicate that protected activities weighed more heavily in
the decision to discharge him than did dissatisfaction with
his conduct or work .°8 Motivation is, indeed , an elusive
factor . To find motivation , the finder of the facts must
sometimes travel a trackless labyrinth of inextricable,
intangible imponderables that makes the search as to
where the truth lies extremely arduous. When proper
motives are admixed with unlawful motives , "it [rests]
upon the tortfeasor to disentangle the consequences for
"Cf. Time-O-Matic, Inc, v N L R B, 264 F.2d 96, 102 (C.A 7)
"Dunkerley testified that prior to April 8, 1968, various miners,
including himself, missed one, two and three shifts and were not
discharged He also testified that he missed shifts just before the election
without reporting his absence to the Company and he was not fired
Capparelli testified that all he was told when he missed shifts was "that if
I was through with my drunk, to go back to work in the morning "
"Magnolia Petroleum Co v N L R B. 200 F 2d 148 (C.A 5), N L R B
v. Solo Cup Co., 237 F 2d 521, 525-526 (C.A 8)
"N L R B v. Texas Independent Oil Co , 232 F 2d 447, 450 (C A. 9),
NLRB v C. If J Camp. Inc, 216 F.2d 113, 115 (C.A 5).
"N L R.B v L C Ferguson and E F Von Seggern d/b/a Shovel
Supply Company, 257 F.2d 88, 92-93 (C A 5); N.L R B v. WTYJ, Inc.
268 F 2d 346, 348 (C A 5).
which it was chargeable from those for which it was
immune ." " This the Respondent failed to do.
Respondent' s contention that these five men were fired
because of their missing shifts and sleeping on the job,
although a valid cause for firing them , does not stand up
under scrutiny , and is not substantiated by the facts.'°
Moreover , the burden of proving an affirmative defense is
on the party asserting it." Respondent ' s evidence on this
point is unpersuasive . Furthermore , as stated above, it is
believed there is more than a temporal coincidence
between the employees ' union interest, attending union
meetings , their signing union cards , the bunkhouse
meeting, the Union winning the election , and their
discharges shortly thereafter.
Considering the circumstances under which the
discharges occurred , as explicated above , and the
unconvincing testimony adduced by Respondent to justify
its action , it can validly be concluded that the Respondent
had proscribed motives in discharging these five alleged
discriminatees . And when the weaknesses in Respondent's
witnesses' testimony and the ambiguities , inconsistencies,
and outright improbabilities inherent in the assigned
reasons for the discharges are weighed against the
employees ' union sympathies , the Company's union
animus," the timing of the discharges, the small size of
the mine , showing knowledge of the employees' union
sympathies ," the close contact of Williams with the
employees , Respondent 's attempts to thwart unionization
by the discriminatory discharges of union adherents, and
the 8(a)(1) unfair labor practices found , supra , and finally,
the inadequacy of the explanations advanced for the
discharges , it is concluded that their terminations were
discriminatorily motivated in order to discourage its
employees from adhering to the Union and also to keep
the Union out of the mine . Nor does the fact that
Respondent failed to terminate all union adherents
indicate an absence of discriminatory intent as to them .14
In fact , the Board and courts have held that a
disproportionate selection of union men for dismissal
"may under certain circumstances be very persuasive
evidence of discrimination ."" It is found, therefore, based
on the facts discussed above, that the adherence of these
five discriminatees to the Union caused or contributed to
their being discharged by the Respondent."
41N L R B v Whiten Machine Works, 204 F 2d 883, 885 (C A 1)
"N L R.B v Remington Rand, Inc, 94 F.2d 862, 872 (C.A. 2), cert.
denied 304 U S 576
"See N L R.B v Thomas Dant, et al, d/b/a Dant & Russel , Lid, 207
F 2d 165, 167 (C A 9), N L R B v. Abbot Worsted Mills, Inc, 127 F.2d
438, 440 (C.A. 1), N L R B v. J G Boswell Co., 136 F 2d 585, 595 (C A.
9)
"N L R B v Fleetwood Trailer Co., Inc, 389 U S 375, 378
"Dunkerley testified that before and after the election "things were
getting pretty rough up there . Everybody was changing ," which is an
obvious reference to Respondent ' s attitude toward the Union. See supra
"Angwell Curtain Co v. N L R B, 192 F 2d 899, 903 (C A 7),
N L R B v. Abbott Worsted Mills, Inc, 127 F 2d 438, 440 (C A 1).
"W C Nabors Company, 89 NLRB 538, Duro Test Corporation, 81
NLRB 976; Steward Warner Corporation, 55 NLRB 593
"N.L R B v W C Bachelder, Receiver for Hoosier Veneer Co, 120
F 2d 574, 578 (C.A. 7), cert denied 314 U S. 647, N L R B v
Shedd-Brown Mfg Co, 213 F 2d 163, 174 (C.A. 7), Atlantic Metal
Products, Inc. 161 NLRB 919, 924, fn 6, where mathematical
probabilities are discussed
" Williams' testimony that when Swanson , Capparelli and Wilson missed
a shift on April 8, the "whole operation" of the mine was "disrupted" is
not credited , as many of the available miners were versatile and able to
perform the duties of other miners . (tr. p. 294 )
GRANTHAM MINES
Contrary to Williams' testimony, whose home was 50
feet from the miners' bunkhouse, denying he knew about
union activity at the time of the discharges is the fact that
the evidence plainly reveals that Williams was well aware
that a campaign to organize Respondent ' s employees was
in progress at the time it discharged its five employees."
Direct evidence is not necessary to support a finding of
knowledge of union activity. Such knowledge may be
inferred from the record as a whole and it is so found."
Corroborative of this finding is the fact that the Union
filed its representation petition on February 12, 1968, the
timing of the employees' discharges," and the smallness of
the Respondent's mine with only 15 employees located in
isolated Death Valley. Therefore, it is not too
unreasonable to assume , under the circumstances , that the
Company knew of their union sympathies, which, in turn,
shows predischarge knowledge of its employees' union
interests . Moreover , the complaints raised by Ishmael,60
Comisky, and Swanson to Williams and Ryan with
respect to wages and safety conditions were a clear
collective concern of the employees in that they had
agreed upon group action to have the Union represent
them. Furthermore, Williams admitted that a week before
the election, Capparelli came to him and Ryan and told
them he wanted to disclaim any rumors then current at
the mine that he was active in the Union.
Under these circumstances , and because of the
unconvincing and pretextual reasons proffered by
Respondent, as well as its union hostility, no other
conclusion would be warranted than that the discharges
were motivated by a desire to rid itself of the most active
adherents and thereby crush and suppress the union
movement because of these employees' support of the
Union, and it is so found." As the facts, in my opinion,
establish a prima facie case of unlawful discrimination
against the five employees, it was incumbent upon the
Respondent to have gone forward with evidence
adequately explaining its discharges of them and refuting
the adverse inferences which follow therefrom."t The
Respondent's evidence in this respect did not dissipate the
unfavorable inferences to be drawn from the General
Counsel's evidence. Accordingly, it is found the record
evidence preponderates in support of the finding that the
discharges of Lynn Ishmael , Richard Comisky, Ray
Wilson, S. O. Swanson, and Lewis C. Capparelli were not
due to their missing shifts or sleeping on the job63 but
because of their interest in the Union, all in violation of
Section 8(a)(3) and (1) of the Act."
"See supra , showing knowledge on both Ryan 's and Williams' part
"See, e .g., Texas Industries , Inc., 156 NLRB 423, 424, N L R B v.
Pembeck Oil Corp, 404 F.2d 105 (C.A 2).
"Texas Industries , Inc, supra, 425.
"Ishmael told Ryan that if the Respondent did not give them a pay
raise , the men would "go union."
6'Cf N.L R.B v. Preston Feed Corp , 309 F 2d 346 (C A 4), enfg
134 NLRB 629 See also N.LR.B v Goya Foods, Inc , 303 F 2d 442
(C A 2); N.L.R.B. v U.S. Air Conditioning Corp, et a!, 302 F 2d 280
(C A 1), N L. R. B. v. Winchester Electronics. Inc-, et al, 295 F 2d
288(C A 2)
"See Star Expansion Industries Corporation , 164 NLRB No 95,
Virginia Metalcrafters, Inc., 158 NLRB 958, 963.
"Ishmael testified he had seen Wilson and Haskins lying down in the
mine and Wilson stated he saw Moore sleeping . Dunkerley testified that
Moore was caught sleeping in the mine by Williams but he was not fired.
`The instant case is not unlike Cf. N L R B N.L.R.B v v . Preston
Feed Corp., Ellis and Watts Products , Inc., 297 F.2d 576, 577, where the
Sixth Circuit rejected an employer ' s contention that the terminations were
made on account of economic reasons The court noted that " this would be
justification for the layoffs if it were the real reason ," but observed that
IV. THE REMEDY
767
A broad cease and desist order will issue since
discharges for union activity go to the heart of the Act.
Having found that Respondent is engaging in and has
engaged in certain unfair labor practices, it shall be
recommended that it and its successors cease and desist
from engaging in such conduct in the future and that it
shall take certain affirmative action designed to dissipate
the effects of its unfair labor practices and thus effectuate
the policies of the Act.
It has been found that Respondent discriminated in
regard to the hire and tenure of employment of Lynn
Ishmael , Richard Comisky, Ray Wilson, S. O. Swanson,
and Lewis C. Capparelli by discharging them because of
their union activities. It will be recommended that they be
reinstated to their former or substantially equivalent
positions . It is also recommended that Respondent make
Lynn Ishmael , Richard Comisky, Ray Wilson, S. O.
Swanson, and Lewis C. Capparelli whole for any loss of
pay they may have suffered because of discrimination
against them by payment to them of a sum of money
equal to what they would normally have earned as wages
during the period from their discriminatory discharge to
the date of offer of reinstatment, together with interest
thereon, less their net earnings during said period, the
backpay to be computed on a quarterly basis in the
manner established by the Board in F. W. Woolworth
Company, 90 NLRB 289, and N.L.R.B. v. Seven-Up
Bottling Co., 344 U.S. 344.
CONCLUSIONS OF LAW
1. The business operations of Respondent constitute
and affect trade, traffic and commerce among the several
States within the meaning of Section 2(6) and (7) of the
Act.
2. United Cement, Lime and Gypsum Workers
International Union, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing its
employees in the exercise of rights guaranteed by Section
7 of the Act, Respondent has engaged in, and is engaging
in, unfair labor practices within the meaning of Section
8(a)(1) of the Act.
4. By discriminating with regard to the hire and tenure
of employment of Lynn Ishmael , Richard Comisky, Ray
Wilson, S.O. Swanson, and Lewis C. Capparelli,
Respondent discouraged membership in United Cement,
Lime and Gypsum Workers International Union,
AFL-CIO, and committed unfair labor practices within
the meaning of Section 8(a)(3) of the Act.
RECOMMENDED ORDER
Upon the entire record in this case, and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended, it is hereby recommended that the Respondent,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Granting employees wage increases and other
benefits in order to induce them not to engage in union
and other concerted activities.
"the employer did not take such action until after the union had requested
a meeting with it" and "the union had authorization cards signed by about
95% of the employees and the employer was advised of this fact "
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Discouraging membership in United Cement, Lime
and Gypsum Workers International Union, AFL-CIO, or
any other labor organization of its employees, by
discharging or by laying off any of its employees or by
discriminating in any other manner in regard to their hire
and tenure of employment or any term or condition of
employment.
2. Take the following affirmative action, which it is
found will effectuate the policies of the Act:
(a) Offer Lynn Ishmael , Richard Comisky, Ray
Wilson, S. O. Swanson, and Lewis C. Capparelli
immediate and full reinstatement to their former or
substantially equivalent positions without prejudice to
their seniority or other rights and privileges, in the
manner provided in the section of this Decision entitled
"The Remedy."
(b) Make whole Lynn Ishmael , Richard Comisky, Ray
Wilson, S. O. Swanson, and Lewis C. Capparelli for any
loss of pay they may have suffered by reason of the
discrimination in the manner provided for in the section of
this Decision entitled "The Remedy."
(c) Notify any of the above -named employees presently
serving in the Armed Forces of the United States of their
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended , after discharge
from the Armed Forces.
(d) Preserve and, upon request , make available to the
Board and its agents , for examination and copying, all
payroll records, social security payment records,
timecards , personnel records and reports, and all other
records necessary to analyze and determine the amounts
of backpay due Lynn Ishmael, Richard Comisky, Ray
Wilson, S. O. Swanson, and Lewis C. Capparelli under
the terms of this Recommended Order.
(e) Post immediately at its mine at Warm Springs,
California, and its offices at Laguna Beach, California,
copies of the attached notice marked "Appendix.""
Copies of said notice, to be furnished by the Regional
Director for Region 31, shall , after being duly signed by
Respondent's authorized representatives, be posted by
Respondent immediately upon receipt thereof, and
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted . Reasonable steps shall
be taken by Respondent to insure that the said notices are
not altered, defaced, or covered by any other material;
and
(f) Notify the Regional Director for Region 31, in
writing, within 20 days from the receipt of this Decision,
what steps Respondent has taken to comply herewith.66
IT IS FURTHER RECOMMENDED that unless on or before 20
days from the receipt of this Decision and Recommended
Order , Respondent notifies said Regional Director, in
writing, that it will comply with the above
recommendations , the National Labor Relations Board
issue an order requiring it to take such action.
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice. In the further
event that the Board ' s Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals, Enforcing an Order" shall be substituted for the words "a
Decision and Order."
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read . "Notify said Regional Director, in
writing , within 10 days from the date of this Order , what steps the
Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT increase your wages or give you other
benefits with the idea of getting you to not help the
Union or to give up being a union member.
WE WILL NOT fire you for helping the Union or for
being a member of the Union.
WE WILL offer Lynn Ishmael , Richard Comisky, Ray
Wilson, S. O. Swanson , and Lewis C. Capparelli their
former jobs back and pay them for wages with interest
which they lost since they were fired.
Dated By
GRANTHAM MINES
(Employer)
(Representative) (Title)
Note: Notify any of the above-named employees, if
presently serving in the Armed Forces of the United
States of his right to full reinstatement upon application
in accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may,
communicate directly with the Board's Regional Office,
10th Floor, Bartlett Building, 215 West Seventh Street,
Los Angeles, California 90014, Telephone 688-5850.'