Grantham Mines

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.'