Texas Gulf Sulphur Co.

TEXAS GULF SULPHUR CO. Texas Gulf Sulphur Company and Rueben L. Brown- shadel, Claud Sherman, Jr., Harrold O. Breaux, and D. S. Munoz. Cases 23-CA-3875-1, 23-CA-3875- 2, 23-CA-3875-3, and 23-CA-3875-4 January 24, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On August 25, 1971, Trial Examiner Fannie M. Boyls issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a support- ing brief, and the General Counsel filed a brief answer- ing Respondent's exceptions and supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt her recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that the Re- spondent, Texas Gulf Sulphur Company, Beaumont, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recom- mended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE FANNIE M. BOYLS, Trial Examiner: These consolidated cases, initiated by charges filed on February 2, and a com- plaint issued on March 18, 1971, were tried before me in Beaumont, Texas, on April 21 and 22 and May 6, 1971. The complaint alleges and Respondent's answer denies that Re- spondent violated Section 8(a)(3) and (1) of the Act by dis- charging four employees, the Charging Parties, on January 29, 1971, because of their membership and activities on behalf of Oil, Chemical and Atomic Workers International Union, AFL-CIO, herein called the Union or the OCAW, or because they had engaged in other concerted activities for their mutual aid and protection. After the conclusion of the hear- ing the General Counsel and Respondent filed helpful briefs. Upon the entire record and my observation of the de- meanor of the witnesses, and after a careful consideration of the briefs, I make the following: 195 NLRB No. 10 FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT 13 Respondent is a Texas corporation engaged in the business of mining and sulphur recovery operations in Canada, in Texas, and in other States of the United States. As a part of its Frasch sulphur division it maintains places of business at Spindletop in or near Beaumont, at Moss Bluff, at Fannett and at its principal office and facilities at Newgulf, Texas. During the 12-month period preceding the issuance of the complaint it mined and refined at its Texas facilities and shipped outside the State sulphur valued in excess of $50,000. During the same period it received materials valued in excess of $50,000 which were shipped to it directly from points outside the State of Texas. On the basis of these admitted facts I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED Oil, Chemical and Atomic Workers International Union, AFL-CIO, which has represented some of Respondent's em- ployees since at least 1966 , is a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES ALLEGED A. Background and Issues Respondent contends and the General Counsel does not dispute that as the result of economic problems created prin- cipally by a drastic reduction in the price of sulphur caused by foreign competition from Canada and Poland, and in or- der to absorb the cost of wage increases which Respondent felt it necessary to grant to its employees in the Frasch sul- phur division about January 29, 1971, Respondent decided to curtail expenses by terminating some of its employees. In its entire Frasch sulphur division , encompassing facilities at Newgulf, Moss Bluff, Fannett, and Spindletop and employing over 1000 employees, it terminated a total of 12 employees on or about January 29, 1971. Eight of these were from the Spindletop location in or near Beaumont , Texas, which the Union had sought unsuccessfully to organize in 1966. One of the eight, Gibbs, was a clerical employee, not in the production and maintenance unit which the Union had sought to represent . Four of the remaining seven , Brownsha- del, Sherman, Breaux, and Munoz, are alleged by the General Counsel to have been discriminatorily selected for termina- tion because they had been among the leaders in the Union's 1966 campaign and had continued in their support of unioni- zation for the employees after the defeat of the Union at the Board-conducted election that year. As background, to show antipathy by Respondent toward the Union, the General Counsel has pointed to a decision issued by the Board in 1967, in which it was found that Respondent had violated Section 8(a)(1) of the Act by grant- ing general wage increases to its employees just prior to the election in 1966 "for the purpose of inducing its employees to refrain from joining, or remaining members of, the Union" and in which it was also found that Respondent, prior to that election, had written letters to its employees, the tone and general content of which "showed an antipathy on the part of Respondent for the Union and the organization of its employees."' ' Texas Gulf Sulphur Company, 163 NLRB 88 , 90, 91 A charge against Respondent involving Harrold Breaux, one of the Charging Parties in this case, was also filed in 1966 but that case was settled and did not go to trial. 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent concedes that it knew that each of the four employees here involved were active in the 1966 union organ- izational campaign but points out that a number of other employees - 20 or 25 according to Union Representative "Lefty" Haven-were also active and that most of them are still employed by Respondent. It contends that it does not have any seniority policy with respect to layoffs or termina- tions and, as shown hereinafter, explained its basis for select- ing each of the four. The issue to be decided is whether the selection of these four or any of them was motivated by their 1966 and subse- quent display of support for the unionization of the Spind- letop operations. B. The Evidentiary Facts 1. The termination of Rueben L. Brownshadel Brownshadel was hired by Respondent on August 9, 1945, at its Newgulf operation in the maintenance department and worked there until 1959 when, due to economic conditions which made it necessary for Respondent to reshuffle some employees and terminate others, Brownshadel was trans- ferred, along with some other employees, to the Spindletop operations at Beaumont.' At Spindletop Brownshadel worked in the plant department. He and other transferred employees were assigned to laborers' work which had been performed by employees of Busby Construction Company, an independent labor contractor. The use of Busby employees was eliminated or curtailed to make room for Respondent's employees who were transferred.' At the time of his termina- tion, Brownshadel was classified as a plant mechanic and worked as part of a crew of four men. He and one other mechanic were drawing 2d class mechanic's pay, another was drawing 1st class mechanic's pay and a third was drawing 3d class mechanic's pay. His immediate supervisors were Fore- man Cecil Roberts and Plant Superintendent C.V. Belanger. Brownshadel had joined the Union and been active in sign- ing up other employees iii the Union in 1966 . He testified as a witness for the Union in a representation case hearing and was a union observer at the election. Later, in 1969, when the Operating Engineers union made an abortive attempt to or- ganize the plant, Brownshadel signed an Operating Engineers card. In October 1970, Night Shift Foreman Stanley Rudloff, told Brownshadel that he had seen him at the home of Rud- loff's next door neighbor the preceding night. Brownshadel denied being there and asked who the neighbor was. Rudloff replied that it was J. T. Haynes, who had tried to organize the plant for the Operating Engineers in 1969, and that Rud- loff knew Brownshadel had been there because he had seen Brownshadel's car in front of Haynes' home. Brownshadel continued to deny that he had been there but apparently never convinced Rudloff. Despite having signed an Operating Engineers card, Brownshadel continued in October 1969 to talk to OCAW Union Representative "Lefty" Haven from time to time about the chances of again trying to organize Respondent's plant. Between about October 1970 and his termination on January 29, 1971, when expected pay raises failed to material- ize, about 8 or 10 employees at various times asked Brown- shadel to take the lead in trying again to organize the plant. ' Newgulf, where Respondent maintains its principal offices for its Frasch sulphur division, is about 150 miles from Beaumont. ' Respondent for many years has utilized the services of Busby for labor- ers' work other than that of craftsmen At the time of the hearing in May 1971, according to General Manager Drees, Respondent had 50 or 55 Busby employees working with Respondent's own employees at Beaumont. Brownshadel assured each of them that he was still for the Union but declined to take the lead in another organizing drive. He did, however, stop Plant Manager Clyde Northcutt outside the maintenance shop on one occasion during this period and ask whether the employees were going to get a raise. Northcutt replied that Respondent was "working on it.", In the afternoon of January 29 Belanger drove Brownsha- del to Respondent's general office where, in the presence of Belanger, Assistant Plant Manager Jerry Staffa and Em- ployee Relations Supervisor Herbert O'Quinn, Plant Manager Clyde Northcutt handed Brownshadel a letter from General Manager Charles Drees in Newgulf. The text of this letter reads as follows: You are undoubtedly aware of the severe economic difficulties throughout the Frasch sulphur industry. World-wide overproduction of sulphur has resulted in sharply reduced sulphur prices. Unfortunately, it has become necessary to discontinue operations at a number of sulphur mines in the Gulf Coast area including our own mine at Gulf. In view of the economic depression in our industry we are confronted with the immediate need of reducing our operating costs. All areas of our operation have been reviewed to determine where economics may be effected during this difficult period. The decision has reluctantly been made to reduce our work force in certain areas effective January 29, 1971, and you are one of the employees being laid off. You will be granted a separation allowance in accordance with your length of service. Our Employee Relations Department will endeavor to assist you in your efforts to relocate. Upon reading the letter, Brownshadel protested that the letter was not self-explanatory and that after 25 1/2 years of service, he should have a better explanation as to why he had been selected for termination. Northcutt replied that due to economic conditions there was to be a reduction in force and that Brownshadel was one of those being terminated . Brown- shadel insisted that his question as to why he had been se- lected was not answered, adding that the decision had to be made at Spindletop because no one at Newgulf knew him well enough. Northcutt told Brownshadel, "Rueben, the company has always prided themselves on having loyal company em- ployees." Brownshadel replied, "Mr. Northcutt, I consider myself a loyal company employee." Northcutt retorted, "Rueben, remember you said that and not me." During the interview Brownshadel asked Belanger if his work had been satisfactory and Belanger replied that it had been satisfactory. The other three management representatives agreed that there had never been any complaint about Brownshadel's work. Staffa assured Brownshadel, "Rueben, we will give you the best letter of recommendation to go seek a job elsewhere." Brownshadel replied that at his age he was he would need a good letter.' Northcutt explained to Brownshadel that he would receive severance pay and would have the option of withdrawing the amount of his contribution to Respondent's retirement plan or of leaving it in the retirement fund and having a vested right to a pension for 10 years after he reached the age of 65. Brownshadel stated that he intended to seek legal advice before deciding what to do about the retirement fund. He also said that he had been told to get in 4 The facts set forth in the above three paragraphs are undisputed. For the most part, they axe based upon the testimony of Brownshadel, cor- roborated by the testimony of Union Representative Haven and ex- employee Charles Gibbs. ' Brownshadel was 47 years old. TEXAS GULF SULPHUR CO. 15 touch with a National Labor Relations Board man who con- ducted the election in 1966 if anything ever happened to him and that he intended to do so. As he left the office, Brownsha- del stated: "Mr. Northcutt, just because I was for the Union in 1966 does not make me a disloyal employee."6 On the following Tuesday, February 2, Brownshadel re- turned to the office and asked for the letter of recommenda- tion which had been promised him. O'Quinn promised that Brownshadel would get the letter within the next day or two.' On February 10 Brownshadel received the following pur- ported letter of recommendation , which reads as follows: Mr. R.L. Brownshadel was employed by Texas Gulf Sulphur Company from August 9, 1945, to January 29, 1971. Due to economic conditions , Mr. Brownshadel was laid off January 29, 1971. During the last several years of his employment he worked as a mechanic in our Spindletop Plant Department. This letter was signed by O'Quinn as employee relations supervisor.' After taking the so-called letter of recommendation to the personnel director of another employer where Brownshadel was seeking employment and being told by that officer that the letter was "rather cold," Brownshadel telephoned Assis- tant Plant Manager Staffa about the matter , reading the letter to Staffa over the telephone. Staffa agreed that the letter was "cold" and promised to discuss it with O'Quinn and see what he could do about it. About a week later O'Quinn called Brownshadel and told him that the letter was a standard form letter, that it would not be altered in any way and that Brown- shadel would have to accept the letter as it was . This so-called letter of recommendation was, according to Northcutt, the only assistance he knew about which Staffa gave in fulfilling his promise to assist Brownshadel in getting located at other employment. 2. The termination of Harrold Breaux Breaux was hired by Respondent on June 27 , 1951, as an equipment operator at its Newgulf location. He was trans- ferred to the Beaumont operation in March 1952 . Although he started doing carpentry work in 1963 or 1964, he was classified as a heavy equipment operator until just before the election in 1966, at which time his classification was changed to that of 1st class carpenter. Breaux had joined the Union at its first meeting in 1966 and had thereafter been active in signing up other employees. He also carried a union sticker on the bumper of his car. After the election he testified as a witness in an unfair labor practice case against Respondent and was also involved in another unfair labor practice case against Respondent which was set- tled without going to trial. He continued to talk to other ' The above account of Brownshadel 's termination is based upon that part of the accounts of Brownshadel, Northcutt, and O'Quinn which I credit None of these witnesses - the only ones questioned about the termination interview - appeared to remember everything that was said but the above account, I believe, is a substantially accurate composite account of what happened . Northcutt denied that any mention was made of loyal or disloyal employees dung the interview and O 'Quinn testified that he could not "recall" these words being used The other two management representatives at the termination interview were not questioned about the interview Brownshadel impressed me by his demeanor as being an honest and sincere man and his testimony in regard to the discharge interview, insofar as he remembered it, had a ring of truth I have accordingly credited his account in this respect. ' Also on February 2 Brownshadel, along with the other three Charging Parties, filed a charge with the National Labor Relations Board , which was served on Respondent the same day. ' Breaux, Sherman, and Munoz received the same type of "letter of recommendation " employees about the Union after it lost the election, wore a union pencil clip in one of his pockets , and each year when he felt that it was time for Respondent to grant general wage increases he as well as other employees would place union cards or other union material on the Respondent 's bulletin boards. Employee Relations Supervisor O'Quinn tore one of these cards down, dated it in 1969, and took it to Northcutt's office where he saw a number of similar cards on Northcutt's desk. In 1969 the Operating Engineers organizer, Haynes, sought out Breaux , obtained from him the names of some employees to contact and gave Breaux some Operating Engi- neer authorization cards . Breaux obtained the signatures of some employees on the cards and returned them to Haynes. This organizational attempt , however, was apparently unsuc- cessful and no representation petition was filed. In the months following September 1970 when DuPont, a nearby manufacturing company, granted wage increases to its employees, Breaux and other employees became apprehen- sive about whether Respondent would also grant general wage increases, as it had done each year since the Union's organizational campaign in 1966 .' Breaux talked to Em- ployee Relations Supervisor O'Quinn about the matter on a couple of occasions during a month or two before his termina- tion. On one of these occasions, at a safety meeting of the employees, he complained that his paycheck was not as fat as it should be and asked O'Quinn if he thought the employees would get an increase . O'Quinn replied that he thought Re- spondent would do everything within its power to see that an increase was granted . During the meeting Breaux , in jest, told O'Quinn that he was goint to sign O'Quinn up in the OCAW before the meeting was over . On the other occasion Breaux told O'Quinn that there was a possibility of getting "Lefty" Haven, the OCAW organizer, back at the plant if increases were not granted . Breaux stated that "Lefty" had gotten the employees a $1.36 raise in 1966 and Breaux thought he could do it again." During the afternoon of January 29 as Breaux was pouring concrete at the Bleedwater treating plant, his immediate supervisor, Henry Langford, took him off the job and drove him to the general office where Northcutt gave him a termina- tion letter similar to that given Brownshadel . Northcutt told him that since he lacked only 5 months of having 20 years of service with Respondent (which would vest him with a retire- ment income for 10 years at the age of 65), Breaux was being given the option of accepting the normal severance pay (based on 1 week's pay for each year of service up to 5 years and 1 1/2 weeks pay for each year of additional service ) or of receiv- ing his regular monthly pay (without working) for the re- maining 5 months. Breaux asked why he had been picked for the reduction in force and Northcutt, evading an answer, stated that "it was just a reduction in force ." To Breaux's ' The general increase given after the advent of the Union 's organiza- tional campaign in 1966 was , as the Board found in the prior case, "the first general wage increase given the Division's unorganized employees in years." The raise was given by Respondent on February 15, 1966, following a raise given DuPont employees on October 11, 1965, a raise given Re. spondent 's employees on April 1, 1967 , followed one at DuPont on Septem- ber 12, 1966, a raise for Respondent 's employees on January 1, 1968, fol- lowed one at DuPont on October 2 , 1967, a raise for Respondent's employees on September 16, 1968, was on the same day a raise was given DuPont employees , a raise given Respondent's employeees on October 1, 1969, preceded one given DuPont employees on October 6, 1969, a raise given Respondent's employees on February 1, 1971, followed one for Du- Pont employees on October 5, 1970 10 The findings regarding Breaux's remarks to O'Quinn are based upon the composite and credited testimony of O'Qumn and employees McGlo- thin and Breaux 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD question whether his work had been satisfactory, Northcutt, Staffs, and Langford (who were also present) all answered that his work had been "very satisfactory." Breaux asked for and was given a few days in which to decide about tfie option offered him. Breaux also asked for a letter of recommendation and was assured by Respondent's representatives that he could have one. Northcutt and Langford told Breaux that he could go home at that time but Breaux replied, "No, sir, I have to finish my job. I can't do the company that way, just walk off and leave concrete." On the way back to his concrete pouring job, Breaux asked Langford whether his work had been unsatisfactory and Langford assured him that it had been "very satisfactory," adding, "I don't know what I'm going to do. I have depended upon you so much. I don't how I'm going to get the work done," Breaux thereupon expressed the opinion that the rea- son for his termination was his union activities. Langford did not reply." As Breaux left the shop, he saw Langford handing out pay raises to the other employees. Although Breaux thereafter elected to remain on Respondent's payroll for the next 5 months in lieu of receiving severance pay, his paychecks did not reflect the wage increase given the other employees. Breaux also received from Respondent a so-called letter of recommendation of the type given Brownshadel. 3. The termination of Claud Sherman, Jr. Sherman was employed by Respondent on October 28, 1953, as a roustabout. About 6 months later he was trans- ferred to a drilling rig. Following a back injury, he was as- signed to the job of helper and part-time welder. Five or 6 years later he was transferred to Fannett, a production field south of Spindletop. He was later transferred to the power plant, then back to welding. He had welded for Respondent for about 14 or 15 years altogether. Sherman joined the Union and solicited other employees to sign cards in 1966. He also placed a union sticker on the bumper of his truck. He had many arguments with Charles Gibbs, the clerical employee who assisted Respondent in op- posing the Union prior to the election, and defended the Union in what Gibbs described as a "boisterous manner." After the Union lost the election in 1966 Sherman continued to be outspoken in favor of the Union during coffee breaks and in the shop. Among those he sought to proselytize for the Union were the Negro and Latin American employees." Sherman continued after the election to drop by the union hall from time to time and he did so within the last 2 months before his termination. According to the undenied and cred- ited testimony of employee McGlothin, who had worked with Sherman as a welder for many years, Foreman Ernest Koenig told him shortly before Sherman's termination that another foreman, Reak, had just asked Koenig whether Sherman was 11 Except with respect to this conversation with Langford, there is no substantial dispute regarding the other facts related above pertaining to Breaux Langford appeared reluctant to concede that he had told Breaux that his work was "very satisfactory " He at first testified that he told Breaux that his work "had satisfied me," but finally conceded that he told Breaux that his work was "good " or that he could have said it was "very good " He also denied that Breaux mentioned the Union The statement regarding Breaux's work, attributed to Langford by Breaux , is similar to statements attributed to him by Sherman, infra, which I credit Moreover, Breaux, on the whole, impressed me as a very sincere and conscientious person and I find this testimony regarding his conversation with Langford more credible than that of Langford. " In addition to the charges filed with the National Labor Relations Board on February 2, 1971, Sherman and the other three Charging Parties filed charges on March 22, 1971, with the Equal Employment Opportunities Commission still talking union and Koenig replied that Sherman "had never shut up." On the afternoon of January 29 Sherman was driven to the general office by his supervisor, Henry Langford, and in the presence of his supervisor, Staffa and O'Quinn was given a termination letter by Northcutt, the body of which was iden- tical to that given Brownshadel and Breaux. After reading the letter and remarking, "Well, you certainly know how to gut a guy," Sherman asked Northcutt if he would be given a good letter of recommendation. He was assured by all four man- agement representatives that they would see that he got a good letter of recommendation and that they would do all they could to help relocate him. He asked if his termination had anything to do with his work and was assured that the termination was "just an economic layoff."" According to Sherman, as Langford drove him back to his jobsite, Sherman expressed the view that his termination was "on account of the Union." Langford did not deny this and Sherman believed that Langford nodded his head. Langford told him, "They got you and Harrold Breaux. Breaux is like my right arm. I don't know how I'm going to get by." Lang- ford denied that the Union was mentioned on the drive back to the jobsite but said that Sherman attributed his termination to the fact that he could not keep his mouth shut and had to say what he thought. Langford did not recall nodding his head. He denied making the statement attributed to him about Breaux. It may be that Sherman did not expressly mention the Union but I am persuaded that Langford knew that was what he had in mind when he mentioned that he couldn't keep his mouth shut and had to say what he thought. Sherman's account of Langford's remarks about Breaux were similar to the remarks attributed to Langford by Breaux and in view of Langford's admittedly high regard for Breaux as a worker, I am convinced that he made the remarks at- tributed to him. Sherman thereafter received from Respondent the same type of so-called letter of recommendation received by Brownshadel and Breaux. 4. The termination of Don S. Munoz Munoz was hired by Respondent at its Newgulf operation on January 10, 1947. In 1963 he and his family, along with 15 or 19 other Mexican-American families, where transferred to the Spindletop operation at Beaumont. Before his transfer he had been promised work in the filter plant at Spindletop but for the first 3 months after his transfer he was put to work as a laborer in the tractor gang, the same type of work he had been doing at Newgulf. About a week after he reminded Respondent of its promise, he was assigned to operating a filter in the filter plant. For the last 5 years prior to his termination, he was an auxiliary man or helper at the Bleed- water treating plant. He worked under Foreman Buchholz and Superintendent Belanger. Munoz was hospitalized at the time the union campaign started in 1966 and took an active part in it after recovering from his operation. He attended the hearing on the Union's representation petition in Port Arthur but did not testify. He joined the Union and obtained signed union cards from a number of his fellow Mexican-American employees in house- to-house calls on them. He placed union stickers on his car, plastered the Bleedwater plant with the stickers and even wore them on his shirt. As Superintendent Belanger conceded at the hearing, Munoz' union activities among Respondent's Mexican-American employees "wasn't hidden." After the 1' The findings in the above three paragraphs are undenied and are not in dispute TEXAS GULF SULPHUR CO. 17 Union lost the election, Munoz continued from time to time to go to the union hall-which he and some of the employees referred to as "the little church on 11th Street"-and would bring back to the plant OCAW reading material and matches. Although Munoz signed a card for the Operating Engineers and gave the union representative the names of some other employees to see in June 1969, he did not become active in behalf of that labor organization. About a month before his termination , during a morning coffee break when Munoz and other employees were com- plaining about not getting a wage increase which they had expected, Munoz, in the presence of Foreman Buchholz and Superintendent Belanger, jokingly made the statement that the only way they were going to get another raise was "to get someone to lead us in prayer" and get down to the "little church on 11th Street"; he suggested that employee Burton do this but Burton replied that Munoz should count him out, that he "didn't want any part of it." Munoz then suggested, "The only way we will get this place organized is to first organize the supervisors," and turning to Buchholz , he con- tinued: "How about it, Buck? You were pretty strong last time . How about signing a card."" Both Buchholz and Be- langer left without making any reply. On the afternoon of January 29 Munoz was recalled from his vacation and terminated in much the same way that the other three Charging Parties were terminated . In the pres- ence of O'Quinn, Staffa, and Belanger, Northcutt handed him his termination letter, which O'Quinn read to him when Munoz said that he did not have his reading glasses with him. The accounts of the witnesses as to what followed is not entirely in accord . Munoz testified substantially as follows: He asked Northcutt the basis for deciding what employees to terminate, adding that he knew a young man had been hired no more than 3 weeks ago and that evidently seniority had nothing to do with the selection." Northcutt replied that he could only repeat what the letter said-that it was a reduction in force. Munoz then stated that he believed he was being terminated because of the big part he had played in the 1966 union organizing campaign. Northcutt denied that this was so and Munoz then said , "Well, it can't be nothing else. It's either that or you are discriminating against me ." At that point, according to Munoz , Northcutt said, "Well, let me tell you something . This company has always taken pride in tak- ing care of its loyal employees," to which Munoz replied, "Oh, now it's coming out, now it's more clear to me. You are laying me off because you are considering me a disloyal em- ployee." Thereupon Northcutt responded, "That is just about what it adds up to." At one point in the conversation, Munoz turned to Belanger and asked whether his work had been satisfactory and Belanger replied that it had and that there had been no complaints about it. Thereafter Northcutt de- scribed the severance pay to which Munoz was entitled and the option he had to withdraw his contributions to the retire- ment plan or let it remain with Respondent and Munoz stated that he was "not fully in control" of himself and wanted more time to think about his option. Northcutt denied that during the termination interview anything was said about the Union, the 1966 campaign or loyalty. He testified that Munoz kept insisting that after 24 years of service with Respondent and with younger men being retained, he was entitled to a better explanation that that operating costs were to be reduced by a reduction in force and " Buchholz had been active in the Union's 1966 campaign He became foreman of the power plant in the Bleedwater treating plant in December 1968 " The young man was apparently Gervis Webb, employed in Respond- ent's engineering department, not in the production and maintenance unit that he would have to seek a better answer elsewhere. Ac- cording to Northcutt, he finally told Munoz that he "had shown a definite resentment toward following the policies of the Company and on some occasions he had refused to follow these policies" but that he was being terminated "primarily" for economic reasons. Munoz insisted, however, that he felt he was "being discriminated against" and intended to seek help from the National Labor Relations Board, the Equal Employment Opportunities Commission or anyone else who could help him. O'Quinn also testified that neither the Union nor the 1966 campaign were mentioned during the interview. He testified, however, inconsistently with Northcutt's testimony, that Northcutt assured Munoz that his termination "was not due to anything else other than the economic conditions that the company was in at this time." Belanger also, inconsistently with Northcutt's version, testified that Munoz did raise a question about whether Munoz' work had been satisfactory and that Northcutt answered the question by repeating that "this was an economic move and this was the reason for his termination." According to Belanger, no management repre- sentative at the meeting committed himself as to whether or not Munoz' work had in fact been satisfactory. 16 After a careful examination of all the evidence, I am con- vinced that Munoz' account of the interview is substantially accurate. In one respect, his statement that Belanger assured him that his work had been satisfactory and that there had been no complaints about it, I am persuaded that it was Northcutt, not Belanger, who answered Munoz' question and that he did so in such a manner as to leave the impression that there had been no complaint or dissatisfaction about Munoz' work performance. Subsequently Munoz received from Re- spondent the identical type of so-called "recommendation" which the other three Charging Parties received. 5. Respondent's explanations at the hearing for the terminations As already noted, Respondent's Frasch sulphur division was, during the year preceding and at the time of the termina- tions, experiencing a serious recession in its business . Charles F. Drees, general manager of the division, who claims respon- sibility for the decision that some employees should be ter- minated as well as responsibility for selecting the individuals to be chosen, testified that as a result of the recession in the sulphur business, Respondent decided that it would have to institute an austerity program. Respondent nevertheless de- cided that despite the business slump, it would grant general wage increases to all its employees pursuant to a policy in- stituted in 1966 "to maintain its wage structure in the realm of those that are at the top of the various industries."" Drees 11 Belanger's testimony was elicited on cross-examination by the General Counsel, over the objection of Respondent's counsel that the question was beyond the scope of the direct examination Respondent itself did not ques- tion Belanger about Munoz' termination interview Nor was Assistant Manager Staffa who was also present at the interview , questioned about the matter. It is not without significance that Respondent either did not call or did not question all its management representatives who were present at the termination interviews regarding matters about which there were important discrepancies in their testimony-as in the cases of Munoz and Brownsha- del At one point during the hearing, the Trial Examiner cautioned Re- spondent's counsel- "I think all the witnesses who were there should testify in regard to something that is really critical, if there has been a dispute as to what was said " " As the Board found in Texas Gulf Sulphur Company, 163 NLRB 88, 89, 91, there had apparently been no general wage increase for employees in the division for at least 6 years prior to 1966, when "for the purpose of inducing its employees to refrain from joining or remaining members of, the Union," it granted a wage increase on February 27, 1966 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD explained, however: "But we also recognized the fact that in order to do this [grant general wage increases] we are going to have to take some steps to offset, or at least partially offset, this additional cost. One of the ways we decided to do this was to ... reduce our personnel." Not since 1959, according to Drees, had Respondent had a business recession sufficiently serious to cause it to lay off any employees. Although Respondent since that time had had its ups and downs, it had avoided layoffs in hard times by not filling vacancies of employees who left and by transfer- ring other employees from one location or department to another, fitting them into jobs which they could do.18 Drees testified, moreover, that Respondent has bumped employees downward in some situations rather than terminate them- such as when it became apparent that the employees were not qualified for a job or where "the job might play out"-but that he does not like to bump employees downward in con- nection with a reduction in force because the employees would be unhappy in a lower rated job." Drees has his headquarters in Newgulf. At its four sulphur mining and processing operations in the Gulf Coast area (Newgulf, Moss Bluff, Fannett, and Spindletop) Respondent employed a total of 1064 employees as of January 1, 1971, of whom 239 worked at Spindletop. Of the total, 780 were production and maintenance employees, 177 of whom worked at Spindletop. Drees decided to terminate a total of 12 employees, 8 of whom were at Spindletop. Seven of the 8 at Spindletop were production and maintenance employees. One of the 7, Garza had almost 23 years of service with Respondent but was selected because of low production and a health problem which had caused him to be absent from work on an average of 3 months a year for the last 3 years. Two others, Lewis and Smith, each with about 3 years tenure, were chosen because they were believed by Drees to have little potential as employees and because their services could be dispensed with without hurting Respondent's operations. Drees testified that he made his selection of employees to be terminated after consulting with three of Respondent's division representativies-Soderman, Herschap, and Down- ing-and to some extent with Beaumont Employee Relations Supervisor Herbert O'Quinn.20 However, even without con- sulting these people, according to Drees, he believed he was qualified to make the selection because he had been in almost daily contact with Beaumont's plant manager, Northcutt, because he had talked to other supervisors and to most of the men themselves on his visits from time to time at Spindletop and because for 1 year from mid-1967 to mid-1968 he had been assistant general manager in charge of the Beaumont operations. 11 In 1970 also, according to Drees, Respondent did not fill vacancies with new employees and hired only one new employee, Webb, for its engi- neering department During the year or year and a half preceding the hear- ing about 55 employees in the Frasch sulphur division had left Respondent's employment and not been replaced 11 During the serious business recession in 1959, however, Respondent, in addition to laying off some employees , had transferred others, including Brownshadel, from Newgulf to Spindletop and put them at work which the Busby Construction Compnay employees had been performing, eliminating the services of the Busby employees Respondent did not discontinue the services of the Busby employees in 1971 Drees testified that Respondent still has 50 or 55 Busby employees working at the Beaumont operations They work along with Respondent's employees, most of them performing manual labor but a few of them performing work a step above manual labor. 'o Of these, only O'Quinn and Herschap were called to testify and neither of them were questioned regarding the basis for the selection of the em- ployees for termination Drees explained that he selected Breaux for termination because the latter was classed as a carpenter , the only one on Respondent's payroll, and he believed that Respondent could dispense with the services of a carpenter "per se" and in the future have the work done by persons in other job classifica- tions." He testified that he selected Sherman for termination because he believed that Respondent could get along with one less welder, that Sherman was "a great talker" and that his productivity was considerably lower than that of the other welders." Brownshadel, according to Drees was selected be- cause it was believed that Respondent could get along with one less mechanic in the power plant and Soderman, who until January 1, 1971, had been manager of all the division's power plants, had advised Drees that Brownshadel "was not the same caliber" of mechanic as two of the three mechanics with whom he worked . Munoz was selected, Drees testified, because as a helper in the Bleedwater treating plant, he could be dispensed with without being replaced and because he had been a "problem" for Respondent on a number of occasions. Drees cited as examples that in the first half of 1970 Munoz had been granted permission to use Respondent 's safety building for a meeting of the Ladies Auxiliary of LULAC (of which his daughter was a member) but that the meeting turned out, much to Respondent's embarrassment to be a politically oriented meeting of LULAC (League of United Latin American Citizens). Drees also testified that Northcutt had reported that a number of employees had wanted to change shifts because they could not get along with Munoz. According to Drees, Munoz had "done pretty well" at not getting along with employees for 24 years.23 11 O'Qumn testified that management had a very high regard for the craftsmanship of Breaux but belived that Respondent "probably" would not need a carpenter permanently . Since the termination of Breaux , Respondent has borrowed from the powerhouse another employee, Herbert Abshire, who had formerly done carpentry work, to perform the carpentry work which Breaux had been doing " McGlothin, concededly a top welder who had worked with Sherman almost 15 years, characterized Sherman as a "very competent" welder who was sincere and conscientious in his work He testified that Sherman talked a lot but did not stop work to talk and that although Sherman was not a "speedy" welder, he was a "good" one Superintendent Langford, under whom Sherman worked, testified that although Sherman was not a top welder (one according to Langford, who must have been a welder for as long as 15 years), he was a "satisfactory" welder No records or other evidence were adduced in support of Drees' testimony that Sherman's production was "considerably lower" than that of other welders 11 Northcutt testified about the LULAC incident but did not mention in his testimony that any employees had asked for a change in shifts because they could not get along with Munoz Foreman Buchholz, however, testified that Munoz had irritated two good operators and that they had requested that he be moved from their shift . Buchholz mentioned other complaints against Munoz, such as Munoz' threat to take a Saturday night off for his daughter's wedding even if his request for time off was not granted, but Drees did not mention this and it will be assumed that he did not know about it or consider that and other complaints about which Respondent 's witnesses may have testified but which Drees did not mention in his testimony as influencing his selection of Munoz for termination Munoz had a dynamic and agressive personality and for many years had worked to improve the lot of his fellow Mexican-Americans . He was an officer in the local chapter of LULAC. As far back as 1966 he had brought about an improvement in the segregated housing conditions at Newgulf, a company-owned town, by gathering 9 or 10 other employees together, meeting with Dr Gino Giesti , a public relations representative sent by Respondent to Texas from New York, and protesting the existing situation In connection with his many activities and his need to trade shifts or take time off because of weddings, illnesses, and deaths in his family, he may have irritated a few employees and management representatives. I am satisfied, however, that these irritations were minor and that he was a satisfactory employee TEXAS GULF SULPHUR CO C. Analysis and Conclusions I have no doubt that economic conditions in 1970 and 1971 caused Respondent to feel that the effectuation of some eco- nomics, by termintions or otherwise, was necessary if it was to grant a general wage increase , as it had been doing each year since 1966. I also have no doubt on the basis of the entire record, however, that in selecting the Charging Parties for termination, Respondent was motivated by a desire to rid itself of some of the employees who had been most active in the 1966 union campaign, who had remained staunch union- ists and who would be most likely to lead other employees in a resurgence of a union movement . I do not regard it as significant that neither the OCAW or the Operating Engi- neers was in fact actively engaging in another attempt to organize the employees at the time of the terminations. As hereinbefore related, Respondent knew that each of the Charging Parties, particularly during periods when wage in- creases were not forthcoming when expected , as in late 1970 and early 1971, were keeping the Union issue alive. They constituted a constant reminder and threat that another at- tempt to organize the plant was ever present. In reaching the conclusion that Respondent was dis- criminatorily motivated in selecting these four men for termi- nation, I have considered many factors. The record shows that Spindletop, whose employees the Union had sought to organize, in 1966, employed only about 22 percent of the employees in Respondent's Frasch sulphur division, but it provided two-thirds of the victims of the divisionwide termi- nations. Respondent in 1971-unlike its practice in 1959 when a business recession necessitated some terminations, and unlike its practice at other times during business slumps or when particular jobs "played out"-did not transfer its experienced personnel from one location or department to another or from one job to another in an attempt to save their jobs and best utilize their services. Moreover, in 1971, unlike in 1959, Respondent did not cease using employees of Busby Construction Company for some of its lesser skilled work and transferring its own employees to that work. This is not to suggest that in the absence of a discriminatory motivation Respondent would have transferred any or all of the four more skilled Charging Parties to that type of work in 1971 (despite the fact that Brownshadel had been transferred to such work during the 1959 business recession); it is, rather, to suggest that in the absence of a discriminatory motivation Respondent might well have shifted some of its less skilled or experienced employees to such work and attempted to fit the more skilled and experienced employees into jobs at which their skills would have been best utilized , thus avoiding the necessity of terminating long-time , experienced and satisfac- tory employees such as the four Charging Parties. It is noted that Respondent terminated only about 1 per- cent of its total work force in the division on January 29, 1971. The inclusion of old-time, satisfactory, employees in this small percentage in itself arouses suspicion as to the motive for their selection. Respondent's counsel at the hear- ing conceded that these employees were not laid off on the basis of seniority. Obviously, with their records of service- 25 Y, years for Brownshadel, 24 years for Munoz, 19 years and 7 months for Breaux and almost 18 years for Sherman-they must have had seniority over many other employees.20 And " No records were adduced to show the respective seniority of Respond- ent's other employees However, Respondent in 1965 employed a total of only 914 employees in its entire Frasch sulphur division as compared with a total of 1100 as of January 1, 1970, and 1064 as of January 1, 1971 This evidence considered in connection with Drees' testimony that Respondent had reached a peak of good business conditions about the first of 1969 and that about 55 people had left Respondent 's employment in the last year or 19 in view of the variety of positions which each had held with Respondent they were in a position to compete in skills with employees in classifications other than those in which they found themselves at the time of their terminations. In the absence of a union contract requiring that seniority he fol- lowed as a basis for selecting employees for layoff or termina- tion, no employer, of course, is legally required to follow a seniority system. In the natural course of events, however, employers tend to retain their senior employees because, if for no other reason, the experience and proficiency which they normally acquire over the years have made them more valua- ble to their employer than employees having less experience.25 Respondent's disregard for the many years of faithful ser- vice given to it by the four Charging Parties and its heartless refusal to give any of them any meaningful letter of recom- mendation to assist them in obtaining employment elsewhere is, I am convinced, explained by Respondent's hostility to the union cause which they had continued to espouse since 1966 and its desire to make an example of them to other employees who might contemplate an attempt to unionize Respondent's operations. Respondent clearly knew of the active union role played by each of the Charging Parties in the 1966 organizing cam- paign. As employee Gibbs testified and as Northcutt ac- knowledged, Gibbs had kept Northcutt informed of the union sentiments and activities of each of these four as well as those of other employees. Northcutt had been very upset over the union campaign and the charges thereafter filed against Re- spondent. He testified that after the election he "was very anxious to forget the whole stinking mess." He was not per- mitted to do so, however, for from time to time and particu- larly when employees failed to receive wage increases soon after the nearby DuPont employees received raises, OCAW cards would appear on Respondent's bulletin boards. O'Quinn brought Northcutt one which he had torn from a bulletin board and other supervisors or employees had appar- ently brought him others, which he kept in his office. It had also been brought to Drees' attention during the several month period prior to the termination that two or three union cards had been posted on the bulletin boards. It was not only the old OCAW but also the Operating Engineers which Re- spondent had to worry about, for the latter organization had signed up Brownshadel, Breaux, and Munoz in 1969 and in October 1970 Foreman Rudloff accused Brownshadel of hav- ing visited the Operating Engineers organizer who lived next door to Rudloff. Sherman was a "big talker" who did not hesitate to say what he thought, and shortly before his termi- nation he had been informed by Foreman Koenig that in response to a question by Koenig as to whether Sherman was still talking union, Foreman Reak replied that Sherman "had never shut up." The other Charging Parties, by questioning representatives of management about whether pay increases were to be given and jesting with them about the possibility of "Lefty," the OCAW organizer, coming back to the plant, had kept Respondent constantly aware of the possibility of another union organizational campaign.26 year and a half prior to the hearing would indicate that Respondent had a substantial turnover in its business and hired quite a few employees since 1965 The four Charging Parties therefore must have had seniority over many employees retained on Respondent 's payrolls " As the Board aptly stated in Differential Steel Car Company,75 NLRB 714, 716, "Conceding that the Respondent did not recognize seniority, it is true, as the Trial Examiner found, that long service is in itself an indication that an employee has performed satisfactorily and gives basis to the conclu- sion that the more senior worker would ordinarily be among the last to be laid off" And see, Consolidated Industries, Inc., 108 NLRB 60, 66-67 " Even employee Gibbs, who had always opposed the Union, con- tributed to Respondent's awareness of the possibility of a resurgence of the (Cont) 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I find, in view of all the evidence, that Respondent was discriminatorily motivated in selecting the four Charging Parties for termination and that Respondent thereby violated Section 8(a)(1) and (3) of the Act. CONCLUSIONS OF LAW 1. By terminating the employment of employees Rueben L. Brownshadel, Harrold O. Breaux, Claud Sherman, Jr., and D.S. Munoz because of their continued expousal of a union at Respondent's Spindletop operation, Respondent has vi- olated Section 8(a)(3) and (1) of the Act. 2. The aforesaid unfair labor practice affects commerce within the meaning of Section 2 (6) and (7) of the Act. The REMEDY It having been found that Respondent has engaged in un- fair labor practices in violation of Section 8(a)(3) and (1) of the Act, my recommended Order will require that it cease and desist therefrom and take certain affirmative action necessary to effectuate the policies of the Act. Since it has been found that Respondent discriminatorily selected the Charging Parties for termination on January 29, 1971, my recommended Order will require that it offer each of them immediate and full reinstatement to his former job or, if his job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make each of them whole for any loss of earnings he may have suffered by reason of the discrimination against him by granting him backpay at the increased rate of pay granted other employees performing the same or substan- tially equivalent jobs, such backpay to be computed on a quarterly basis, plus interest at 6 percent per annum, as pre- scribed in F W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716, from the date of the terminations to the date reinstatement is offered. Should any question arise at the compliance stage of this proceeding as to whether, in the absence of a discriminatory motivation by Respondent, the old job of any of the Charging Parties would have been affected in any way, such matter may be heard and disposed of in a compliance proceeding. See, e.g. The Buncher Company, 164 NLRB 340, in which the Board, despite the fact that the employer had no established seniority policy, concluded, under all the circumstances, that seniority was a reasonable method of establishing the employer's back- pay liability. Since the employees of all four of Respondent's operations in the Gulf Coast area of its Frasch sulphur division received the general wage increases, the granting of which, Respond- ent asserts, necessitated the termination of some of its em- ployees in the division, since all four of the Charging Parties had worked at more than one of these locations, since Re- spondent appears to have been following a common labor policy at each of these locations and since compliance with my recommended Order may require the shifting of some employees between these locations, I find it will effectuate the policies of the Act to require Respondent to post appropriate notices at each of its four locations, Spindletop, Newgulf, Moss Bluff, and Fannett. union movement by remarking in jest to O'Qumn, in the presence of Super- intendent Langford and the latter's secretary, that if he, Gibbs, did not get a raise in pay, "Lefty" was coming through to make an inspection of the area This occurred about a month before Gibbs' termination on January 29, 1971 Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:27 ORDER Respondent, Texas Gulf Sulphur Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Terminating the employment of, or otherwise dis- criminating against, any employee because he has joined or supported Oil, Chemical and Atomic Workers International Union, AFL-CIO, or any other labor organization, or be- cause he has engaged in concerted activities for the mutual aid and protection of himself and other employees. (b) In any like or related manner interfering with, restrain- ing, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act: (a) Offer Rueben L. Brownshadel, Harrold O. Breaux, Claud Sherman, Jr., and D.S. Munoz immediate and full reinstatement to their former jobs or, if their jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or their rights and privileges, and make them whole for their lost earnings in the manner set forth in the section of the Trial Examiner's Decision entitled "The Remedy." (b) Notify immediately the above-named individuals, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after dis- charge from the Armed Forces, in accordance with the Selec- tive Service Act and the Universal Military Training and Service Act. (c) Preserve and, upon request, make available to the Na- tional Labor Relations Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to effectuate the reinstatement and backpay provisions of this Order. (d) Post at its operation in Spindletop, Newgulf, Moss Bluff, and Fannett, Texas, copies of the attached notice marked "Appendix."28 Copies of the notice, on forms pro- vided by the Regional Director for Region 23, after being duly signed by an authorized representative of the Respond- ent, shall be posted by the Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith.29 " In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 38 In the event that the Board's order is enforced by a judgment of the United States Court of Appeals, the words in the notice reading "POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN OR- DER OF THE NATIONAL LABOR RELATIONS BOARD " " In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read (Cont) TEXAS GULF SULPHUR CO "Notify the Regional Director, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after trial, that we violated Federal law by terminating the employ- ment of some of our employees for joining and supporting a union and engaging in concerted action for the mutual aid and protection of themselves and other employees: WE WILL offer reinstatement to Rueben L. Brownsha- del, Harrold O. Breaux, Claud Sherman, Jr., and D.S. Munoz, with backpay plus 6 percent interest. WE WILL NOT terminate your employment or other- wise discriminate against you for joining or supporting Oil, Chemical and Atomic Workers International Un- ion, AFL-CIO, or any other union, or for engaging in concerted activities for your mutual aid or protection. WE WILL NOT in any like or related manner interfere 21 with the exercise of your rights under the National La- bor Relations Act. WE WILL notify immediately the above- named in- dividuals, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Uni- versal Military Training and Service Act. TEXAS GULF SULPHUR COMPANY (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by any- one. 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. Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, Dallas- Brazos Building, 1125 Brazos Street, Houston, Texas 77002, Telehone 713-226-4296.