Calcite Corp.

1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Calcite Corporation and General Teamsters , Chauf- feurs, Warehousemen & Helpers, Local 892, International Brotherhood of Teamsters , Chauf- feurs, Warehousemen & Helpers of America. Case 31-CA-5158 March 24, 1977 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On December 4, 1975, Administrative Law Judge George Christensen issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Respondent filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclu- sions of the Administrative Law Judge only to the extent they are consistent herewith. We agree with the Administrative Law Judge that the Respondent's March 14, 1975, layoff or termina- tion of 10 of its 18 unit employees was motivated at least in part by discriminatory reasons. The record shows that from March 5 or 6, when the Union demanded recognition based on authorization cards signed by 13 employees, until March 14, the Respondent engaged in a vigorous and unlawful campaign to blunt the union activities of its employ- ees. Thus, the Respondent interrogated employees about their union activities and those of fellow employees by coercively asking them what they knew about the Union, whether they had signed cards, which employees had initiated the union campaign, and for what reasons, and, finally, how the Respon- dent could talk employees out of supporting the Union. Also, the Respondent intimidated employees by telling them that it had caused most of their fellow employees to abandon their interest in the Union, and gave employees the impression that their union activities were under surveillance. In addition, the Respondent coercively threatened employees with discharge or replacement with black employees, and in other respects emphasized the futility of their union activities. Finally, the Respondent threatened plant closure. ' The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence 228 NLRB No. 123 This manifest antiunion hostility, unlawful threats of discharge and plant closure, and the timing of the terminations convince us that the March 14 termina- tions were part and parcel of the Respondent's campaign to thwart its employees' union activities. However, we do not agree with the Administrative Law Judge that employee Steven Rock, the last of the 10 employees discharged, was singled out for special unlawful treatment different from that meted out to the 9 other discharged employees. In our view, the record does not support a finding that Rock was a more skilled or generally a more valuable employee than Richie as the Administrative Law Judge found. Indeed, the uncontradicted testimony reveals that Richie was possibly more valuable to the Respondent because he could perform more jobs than Rock and, in addition, the latter had one more "blotch" on his record-he had been discharged a year earlier for causing damage to company property. We have also considered the fact that Rock had signed a union card, whereas Richie had not, and further that, as the Administrative Law Judge found, the Respondent "knew where each man stood at the time of the layoff." While the Respondent's departure from seniority the first and only time it would require the layoff of a nonunion employee evidences the discrimination behind the layoff, we do not agree that Rock was any more of a target for discriminatory treatment than were the other nine employees, including leading union activists, Rocky Poindexter and Rudy Vas- quez. Rather, as we have found, the decision to discharge 10 employees on March 14 was aimed as the final salvo in the Respondent's campaign to thwart the Union. And the selection of the 10 employees, generally according to seniority or upon some other ostensibly legitimate basis (as in Rock's case), was merely the incidental means for imple- menting this unlawful decision. Thus, soon after receiving the Union's demand the Respondent learned that 13 of the 18 unit employees had signed cards, and later, following its further "unremitting" campaign of unlawful coercion, including interroga- tion, discovered the identities of the 13 union supporters. In these circumstances, it is abundantly clear that the summary discharge of better than one- half of the unit, even if carried out on a nondiscrimi- natory basis, would serve as a dramatic reminder and example to the remaining eight employees, including any lingering union supporters among them, of earlier threats of discharge and plant closure. convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. CALCITE CORPORATION 1049 Against this strong prima facie case of 8(a)(1) and (3) misconduct the Respondent asserted an economic defense. In the termination letters delivered to each of the 10 employees the Respondent cited a reduc- tion in workload attributable to the termination of the "Tenneco contract" and the failure of "new businesses to develop." But the Respondent's own exhibits reveal that the Tenneco contract had been completed by September 1974, and while the Respondent thereafter did experience some drop in production no sudden reductions in force were carried out until over 6 months later. Moreover, with regard to the failure to attract new business, the Respondent conceded that business usually in- creased in the spring and summer months, yet at the beginning of this period the Respondent decided to terminate over one-half of its production and maintenance force. Indeed, during the preceding late fall and winter months, when demand was admitted- ly usually soft, the Respondent generally retained the full complement of 21 to 18 employees. In sum, the retention of such a large force during a slack period and the sudden termination of 50 percent of this group at the threshold of a period which normally is one of ever-increasing business activity casts serious doubt on the factors cited in the termination letter as compelling nondiscriminatory reasons for the termi- nations. On the other hand, the Respondent presented additional evidence in support of its economic defense, which is adequately discussed in the attached Decision. This evidence indicates that a layoff might have occurred after March 14. On balance, we agree with the Administrative Law Judge that while this evidence is not sufficient to rebut the General Counsel's prima facie showing of unlawful 8(a)(3) misconduct it does tend to show that a layoff of some kind may have occurred at a later date in spite of the expected normal increase in demand.2 Therefore, in our view, the presence of the Union's campaign accelerated possible layoffs which may have occurred after March 14. But, as of March 14, all that the Respondent could offer by way of explanation for the precipitate drastic cut in its work force was the termination of a contract 6 months earlier and the failure to attract new business at the very time when demand was normally expected to rise. As found, neither explanation is convincing and as such adds further support to the findings that the terminations were motivated for reasons violative of the Act. 2 It should be noted that the hearing in this case was conducted in June 1975, and thus it is impossible to assess the strength of the customary spring- summer upturn in demand. Respondent's figures for May 1975 show a 75- percent increase in milling time over the previous month, but the Respondent was still operating at only 56 percent of capacity at that time The Administrative Law Judge found, inter alia, and we agree, that the Union represented a majority of the employees in an appropriate unit at the Respondent's Rosamond, California, facilities, that the Union made a lawful request for recognition which was denied, that the Respondent engaged in extensive unfair labor practices designed to c use the employees to withdraw their support for the Union, and that as a result of this unlawful conduct, it would be impossible to conduct a fair election and therefore a bargaining order remedy is necessary. In these circumstances, we also believe it would be appropriate to find a violation of Section 8(a)(5) of the Act even though the complaint did not specifical- ly allege such a violation because it is clear from the record that the issue was litigated at the hearing. Thus, the complaint alleged that the Union has been and is the exclusive representative of the employees in the unit described below3 and that since March 6, 1975, and thereafter, the Union has requested bargaining with the Respondent. The complaint further alleged that on or about March 6, 1975, and at all times thereafter, the Respondent refused and continued to refuse to bargain collectively with the Union and that the Respondent engaged in the commission of unfair labor practices, specified in the complaint, which are so serious and substantial in character and effect as to warrant the entry of a remedial order requiring the Respondent to recog- nize and bargain with the Union in the appropriate unit. The General Counsel introduced evidence in support of these allegations and, as previously indicated, the Administrative Law Judge found that these allegations of the complaint had been sus- tained. Accordingly, all the elements necessary to prove a violation of Section 8(a)(5) of the Act were fully litigated and established. Therefore, we find, upon the basis of the entire record, that the Respondent violated Section 8(a)(5) of the Act when it refused to recognize and bargain with the Union on and after March 6, 1975, the date on which the Administrative Law Judge found the Union's de- mand for recognition was received by the Respon- dent and also the date on which the Respondent embarked on its course of illegal conduct.4 THE REMEDY Because there is some doubt when and if any of the employees, including Steven Rock, terminated on March 14, 1975, would have been laid off after that date for economic or other nondiscriminatory rea- d All production and maintenance employees , including all baggers, forklift operators, carpenters, and mill operators employed at Respondent's Rosamond, California, facilities, but excluding all office clerical employees, professional employees, guards, and supervisors as defined in the Act 4 Trading Port, Inc, 219 NLRB 298 (1975). 1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sons unrelated to the discrimination found above, we shall leave for the compliance stage the determina- tion of (1) when such a nondiscriminatory layoff would have occurred and which of those employees terminated on March 14, 1975, would have been involved, and (2) which of the discriminatorily laid- off or terminated employees would have been recalled according to the seniority list established by the Respondent before new hires, if any, were made.5 Upon such determination, the Respondent shall make whole employees who were discriminatorily terminated or laid off March 14, 1975, for any loss of earnings they may have suffered by reason of the discrimination against them, by payment to them of the sums of money equal to the amounts they would have earned from the date of this discrimination to the date when their employment would have been terminated for economic or other nondiscriminatory reasons, less net earnings during said period, to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950), and include the payment of interest at the rate of 6 percent to be computed in the manner set forth by the Board in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Moreover, in the event that new production or maintenance employees were hired after March 14, 1975, the Respondent shall offer immediate and full reinstatement to the employees on the recall list, if necessary laying off such new hires. The Respondent shall recall, in order of seniority as the Respondent has established, those employees who were discrimi- natorily terminated on March 14, 1975, prior to making any new hires to the production and maintenance unit. Finally, we shall order the Respondent to cease and desist from engaging in the unfair labor practices found and also that the Respondent, upon request, recognize and bargain with the Union as the exclusive representative of all the employees in the appropriate unit and, if an understanding is reached, embody such understanding in a written signed agreement. Since we have found that the Respondent violated Section 8(a)(5) of the Act on March 6, 1975, and thereafter, its duty to bargain also encompasses any term or condition of employment with respect to which the Respondent took unilateral action on or after that date. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor 5 The Administrative Law Judge recommended that the preferential hiring list be established for a limited period of I year. We find no reason to depart from our usual practice and, therefore, we shall ehnunate the 1-year limitation for the maintenance of the list. Relations Board hereby orders that the Respondent, Calcite Corporation, Rosamond, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees concerning what they know about the Union, whether they signed a union card, who brought the Union in, and why employees are interested in the Union. (b) Threatening employees that, because they choose union representation, they will be replaced by employees of a different race; or that they will be discharged; or that the Company will close its plant; or that the Company cannot and will not grant any wage increases; or that, in the event they strike and picket to secure such increases, such strike will be futile; or that, in the event the Company is forced to increase wages, it will have to close its doors. (c) Asking employees how they can be talked out of continuing their support of the Union. (d) Intimidating employees by telling them the Company has caused a majority of their fellow employees to withdraw support from the Union. (e) Giving employees the impression the Company is maintaining a surveillance of its employees' union activities and maintaining such surveillance. (f) Discouraging membership in General Team- sters, Chauffeurs, Warehousemen & Helpers, Local 892, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, or any other labor organization, by laying off, discharging, or in any other manner discriminating against employees in regard to their hire or tenure of employment or any terms and condition of employ- ment because of their union activities. (g) Refusing to bargain collectively with the above- named Union as the exclusive bargaining representa- tive of the employees in the following unit: All production and maintenance employees, including all baggers, forklift operators, carpen- ters, and mill operators, employed at Respon- dent's Rosamond, California, facilities, but ex- cluding all office clerical employees, professional employees, guards, and supervisors as defined in the Act. (h) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of the rights guaranteed them under Section 7 of the Act.6 2. Take the following affirmative action designed to effectuate the purposes of the Act: (a) Make whole each of the employees who were laid off or terminated on March 14, 1975, for any loss 6 As this case involves an unlawful layoff of employees as well as other serious unfair labor practices, a broad order is warranted. CALCITE CORPORATION of pay they may have suffered by reason of the Respondent's discrimination against them, in the manner set forth in the section herein entitled "The Remedy." (b) As further provided in "The Remedy" section of this Decision offer to those employees who are entitled to the job vacancies, if any, which became available after March 14, 1975, immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered as a result of the discrimination against them in the manner as therein provided. (c) Maintain the preferential hiring list used in terminating employees on March 14, 1975, for employees who have not been reinstated, and fill appropriate vacancies according to that list. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Upon request, recognize and bargain with the above-named Union as the exclusive representative of all employees in the aforesaid appropriate unit and, if an understanding is reached, embody such understanding in a written, signed agreement. (f) Post at its place of business at Rosamond, California, copies of the attached notice marked "Appendix." 7 Copies of said notice, on forms provided by the Regional Director for Region 31, after being duly signed by Respondent's representa- tive, shall be posted by it 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 Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 31, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. + In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX 1051 NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interrogate our employees con- cerning what they know about General Team- sters, Chauffeurs, Warehousemen & Helpers, Local 892, International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America, whether they signed an authorization card for that Union, whether they know who brought that Union in, and why the employees are interested in that Union. WE WILL NOT threaten our employees that we will replace them with employees of a different race, threaten them with discharge, threaten them with plant closure, threaten them that the Compa- ny cannot and will not grant any wage increases and, in the event they strike and picket to secure such increases, that such a strike will be futile, and that, if the Company is forced to grant wage increases, it will have to close its doors. WE WILL NOT ask our employees how we can talk them out of continuing to support the Union. WE WILL NOT intimidate our employees by telling them we have caused a majority of their fellow employees to withdraw their support from the Union. WE WILL NOT give our employees the impres- sion we are maintaining a surveillance of their union activities and we will not maintain such a surveillance. WE WILL NOT lay off or terminate our employ- ees to thwart their efforts to secure union representation. WE WILL NOT refuse to recognize or bargain with the above-named Union as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed them by Section 7 of the National Labor Relations Act, as amended. WE WILL make whole the following employees who were laid off on March 14, 1975, as a result of our discriminatory decision to accelerate layoffs scheduled after March 14: Steven Rock Clint Ashby Rocky Poindexter Gordon Teague Leslie Reynolds Chris Mitchell Milton Franks Ed Pohl Rudy Vasquez Andy Martinez 1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by offering to these employees, who were entitled to job vacancies before and/or after scheduled layoffs after March 14, 1975, immediate and full reinstatement, to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings suffered as a result of the discrimination against them with interest at the rate of 6 percent per annum. WE WILL place all of the above-listed employ- ees, who were laid off on March 14, 1975, and who have not been recalled or reinstated, on a preferential hiring list, and WE WILL fill appropri- ate vacancies from such list. WE WILL, upon request, bargain collectively with the above-named Union as the exclusive bargaining representative of all the employees in the bargaining unit described below with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a written signed agreement. The bargaining unit is: All production and maintenance employees, including all baggers, forklift operators, carpenters, and mill operators employed at Respondent's Rosamond, California, facili- ties, but excluding all other employees, office clerical employees, professional employees, guards, and supervisors, as defined in the Act. All our employees are free to become, remain, or refuse to become or remain members of the above- named Union, or any other labor organization. CALCITE CORPORATION DECISION STATEMENT OF THE CASE GEORGE CHRISTENSEN, Administrative Law Judge: On June 10 and 11, 1975 ,1 I conducted a hearing at Los Angeles, California, to try issues raised by a complaint issued on April 30 pursuant to a charge filed by General Teamsters, Chauffeurs, Warehousemen & Helpers, Local 892, International Brotherhood of Teamsters , Chauffeurs, Warehousemen & Helpers of America,2 on March 19. The complaint alleged that Calcite Corporation3 violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (hereafter called the Act), by: (1) I Read 1975 after all future date references omitting the year. 2 Hereafter called the Union 3 Hereafter called the Company. 4 The facts found below are based on the record as a whole and my observation of the witnesses. Credibility has been resolved on the basis of interrogating employees concerning their and other em- ployees' union activities; (2) creating the impression it was maintaining a surveillance of its employees' union activi- ties; (3) threatening its employees with plant closure, refusal to bargain with the Union, forcing them to strike, and other economic reprisals if they chose union represen- tation; and (4) discharging 10 employees to thwart their effort to secure union representation. The complaint also alleged the Union represented a majority of the Company's employees within an appropriate unit prior to the Compa- ny's commission of the above alleged unfair labor practic- es, that the alleged unfair labor practices prevented and prevents conducting of a fair election, and that an order should issue requiring the Company to bargain with the Union over the unit employees' wages, rates of pay, hours, and working conditions. The Company denied it was or is engaged in commerce, denied Ernest B. Hayhurst was its manager, agent, and supervisor at times pertinent, denied the appropriateness of the unit alleged in the complaint, denied the Union represented a majority of its employees therein, and denied committing any unfair labor practices. The issues are whether, at times pertinent: 1. The Company was engaged in commerce. 2. Hayhurst was the Company's manager, agent, and supervisor. 3. The unit set out in the complaint was appropriate for collective-bargaining purposes. 4. The Union represented a majority of the Company's employees therein. 5. The Company interrogated its employees concerning their and other employees' union activities; gave its employees the impression it was maintaining a surveillance of their union activities; and threatened its employees, in the event they supported the Union, that it would refuse to bargain, that it would force a strike, and that it would close before it would grant any improvements. 6. The Company discharged 10 unit employees to thwart their effort to secure union representation. 7. A bargaining order is warranted. The parties appeared by counsel at the hearing and were afforded full opportunity to produce evidence, examine and cross-examine witnesses, argue, and file briefs. Briefs have been received from the General Counsel and the Company. Based upon my review of the entire record, observation of the witnesses, perusal of the briefs and research, I enter the following: FINDINGS OF FACT4 I. JURISDICTION The complaint alleged and the answer admitted the Company at times pertinent was a corporation duly organized under and existing by virtue of the laws of the State of California, with an office and principal place of my review of all the testimony and exhibits with careful regard to the logical probability of the evidence and the demeanor of the witnesses while testifying. Whenever testimony has been discredited such discredit has been based on conflict with credited testimony to the contrary or because it was incredible and/or unlikely under the circumstances. CALCITE CORPORATION business located at Rosamond, California, where it was engaged in the manufacture, processing, and sale of drilling mixtures. At the outset of the hearing, the parties stipulated that the Company, in the course and conduct of its business operations during the previous or fiscal calendar year, purchased goods or services from companies outside the State of California valued at or in excess of $50,000. Based on the foregoing, I fmd that, at times pertinent, the Company was an employer engaged in commerce in a business affecting commerce, as those terms are defined in Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION The complaint alleged, the answer admitted, and I fmd that at times pertinent the Union was a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The Company at times pertinent was a wholly owned subsidiary of All Minerals Corporation, a Utah corpora- tion which conducted its basic business within that State. All Minerals Corporation purchased Calcite Corporation in March of 1974. While All Minerals mines, grinds, and processes nonmetallic minerals at its Utah operations, it only conducts grinding operations at its Calcite Corpora- tion operations at Rosamond, California. The minerals arrive at Rosamond as rocks ; they are placed in a crusher to break them into smaller rocks and then carried to a mill for grinding into powder ; they are then either bagged and placed in a warehouse or run into a bulk tank. When the materials are sold, they are picked up by buyers in their vehicles. B. The Supervisory, Unit and Majority Representative Status Issues On March 3 the Union filed a petition with Region 31 seeking certification as the exclusive bargaining representa- tive of a unit of the Company's employees consisting of "all production and maintenance employees, including all baggers, forklift operators, carpenters and mill operators, excluding all other employees, office clerical employees, professional employees, guards and supervisors as defined in the Act." On March 5 the Union sent a letter to the Company advising it the Union represented a majority of the Company's employees in the unit just described and asked the Company to recognize the Union as their exclusive collective-bargaining representative and to bargain with the Union concerning their rates of pay, wages, hours, and working conditions. The Company submitted into evidence a document containing the names , dates of employment, and job classifications of all its employees as of March 14. The document lists Barney Hayhurst as its manager, Paul Folkerson as its foreman, Ronnie Crook, Rick Briscoe, and 5 The Company conducted a three-shift operation. 6 Harris at times pertinent was a regular part-time employee. He worked 1053 Steve Rock as its shift foremen,5 Carol Evans as its office clerical employee, and Harold Crook, Jerry Harris, Thomas Loomis, David Kelley, Randy Crook, Ken Richie, Rocky Poindexter, Leslie Reynolds, Milton Franks, Rudy Vasquez, Clint Ashby, Gordon Teague, Chris Mitchell, Ed Pohl, and Andy Martinez as production and maintenance employees. While the Company denied in its answer that Hayhurst was its manager, agent, and supervisor at times pertinent to this proceeding, both the testimony of a number of the employees and Hayhurst himself establishes that at times pertinent to this proceeding, Hayhurst managed the Company's operations, directed its work force, hired and fired employees, and generally directed the Company's operations. It is undisputed that Folkerson at times pertinent acted as the Company's general foreman at the plant, supervising the work of all the employees under the overall direction and guidance of Hayhurst, and that Evans was the Company's sole office clerical , with duties confined to the exercise of clerical functions within the office of the Company on the plant premises. On the basis of the foregoing, I find and conclude at times pertinent that Hayhurst and Folkerson were manager and general foreman of the Company, respectively, and agents and supervisors of the Company acting on its behalf. I further find and conclude that at times pertinent Evans was an office clerical employee. At times pertinent to this proceeding, the Company employed 18 other employees. Of those 18 employees, 12 were on three crews, one crew to each of three shifts. These crews performed the basic production work conducted by the Company. The Company's major product was pow- dered barite, a mineral which goes into paint products and drilling mud. The latter was the major use of its product. The three crews delivered rocks to the crusher with a front loader; after going through the crusher, belts and elevators carried the crushed rock into bins ; from the bins, the crushed rock was carried to a mill (the Company had two mills) which ground the crushed rocks into powder or granular form; the powder was then directed either into a bagging machine for bagging in appropriately sized bags (50 or 100 pound) and then to a conveyor belt, from there placed upon a pallet, and the pallets carried to the warehouse for storage, or the powder was directed into storage bins. On sale of the product, the buyers' drivers and helpers loaded the product onto the buyers' trucks. The three crews each contained four men; one crew consisted of Ronnie Crook, Franks, Pohl, and Reynolds; a second crew consisted of Briscoe , Poindexter, Vasquez, and Mitchell; the third crew consisted of Rock, Randy, Crook, Kelley, and Teague. These three crews rotated shifts each week. The other six men were engaged in maintenance work; Ashby as a carpenter and Harold Crook, Martinez, Loomis, Richie, and Harriss as general maintenance. All the production and maintenance men worked regular 8 hours, 5 days a week, were paid an hourly rate, punched a timeclock and worked interchangeably (the production crews did cleanup and maintenance work from time to time, and vice versa). 2 days I week and 2-1/2 days the next. He was employed for over a year. He held another job as a city fireman. 1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Company contends Ronnie Crook, Briscoe, and Rock were supervisors at times pertinent. The only testimony on this issue was that of one witness, Rock. (While Hayhurst and Folkerson testified, they did not contradict Rock or amplify his testimony. Neither did any employee witnesses.) Rock testified he worked the same shift hours as the other men in his crew; he spent most of his time doing the same physical work as the others (bagging, running the mills and the crusher, feeding the mills and the crusher, etc.); the men in the crew knew their jobs, worked as a team, and required little or no direction; he and the others were paid an hourly rate, punched a timeclock, and were paid time and a half for overtime; he received instructions from Hayhurst or Folkerson, relayed those instructions to the others, and consulted with Hayhurst or Folkerson if he ran into any problems, and did whatever they told him to do. He testified when his crew was working the night shift, he telephoned Hayhurst or Folkerson if he ran into any problems, and this happened rarely. He testified he never hired, fired, or disciplined any of the men in the crew, nor granted or denied their requests for time off, that those functions were performed by Hayhurst or Folkerson. He stated on one occasion he asked Hayhurst to take a man off the crew and, a few days later, Hayhurst removed that man from the crew. He testified the work was routine and the men required little direction; the times he gave directions was when a new man had to be shown what to do and how to do it. He stated his main function was to keep the job running smoothly, for which he was paid a premium over the rate paid the other members of the crew. Inasmuch as Rock's testimony was forthright and undisputed, it is credited. The Act (Section 2(11)) states a supervisor is any individual having authority in the interest of the employer to hire, transfer, suspend, lay off, recall, promote, dis- charge, assign, reward, or discipline other employees or responsibly to direct them or to adjust their grievances or effectively to recommend such action if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. Rock did not hire, transfer, suspend, lay off, recall, promote, discharge, reward, or discipline any other employees; adjust their grievances, or effectively recom- mend those actions. Such assignment and direction of the other men in the crew as he performed was primarily to familiarize a new employee with the requirements of his job, inasmuch as the crew generally knew their jobs and worked together as a team without much or any direction on his part. When any unusual problems developed, Rock consulted with Hayhurst and Folkerson and did whatever they told him to do, passing on such instructions as were necessary to the other members of the crew. On the basis of the foregoing, I find Rock's function was that of a working leadman within the crew, with such authority as he exercised of a routine nature not requiring the use of independent judgment. I therefore find and conclude that at times pertinent Ronnie Crook, Briscoe, and Rock were working leadmen properly includable within a unit of production and maintenance employees. I further find and conclude that, due to the interchange between the maintenance and production employees, the fact they worked together and shared the same shift hours, pay system, and working conditions, the Company's production and maintenance employees have sufficient community of interest to constitute a unit appropriate for the purpose of bargaining collectively with the Company concerning their rates of pay, wages, hours, and working conditions, consonant with the unit description set out in the beginning paragraph of this section of this Decision. I further fmd and conclude that at times pertinent to this proceeding there were 18 employees within that unit; namely, Ronnie Crook, Randy Crook, Harold Crook, Franks, Pohl, Reynolds, Briscoe, Poindexter, Vasquez, Mitchell, Rock, Kelley, Teague, Martinez, Loomis, Richie, Ashby, and Harris, excluding Hayhurst and Folkerson as supervisors and Evans as an office clerical employee. Either at a union meeting or by solicitation at the plant itself by the Union's leading adherents among the employ- ees (Poindexter and Vasquez), on February 26-27, the Union secured signed authorization cards from all 12 production employees within the three crews, plus the carpenter (Ashby). The cards clearly designated the Union as their exclusive collective-bargaining representative for the purpose of bargaining collectively with the Company concerning their rates of pay, wages, hours, and working conditions. Based on the Union's securing of such authorization cards from 13 of the 18 employees of the unit on February 26 and 27, I fmd and conclude that since the latter date the Union has been the duly designated collective-bargaining representative of a majority of the Company's employees within the appropriate unit set out heretofore. C. The Alleged 8(a)(1) Violations 1. The alleged interrogations Poindexter testified that on or about March 6 (after the Company's receipt of the Union's petition for certification and request for recognition and bargaining), Hayhurst, in a conversation with Poindexter at the plant, asked Poindex- ter whether he had signed a union card; Poindexter replied he had, upon which Hayhurst thanked Poindexter for being honest and informed him other employees whom he had asked the same question lied to him. Ashby testified that at or about the same time, Hayhurst asked him whether he was involved with the Union. Reynolds testified that at or about the same time, Hayhurst asked him if he knew anything about the Union, who was behind bringing it in, and why the employees were interested in the Union. Hayhurst conceded that, following his receipt of the petition and the Union's request for recognition and bargaining, he questioned a number of employees, includ- ing Poindexter, Ashby, and Reynolds, concerning what they knew about the Union. He denied, however, that he asked Poindexter if he signed a union card and denied he asked Reynolds who brought the Union in and why the employees were interested in the Union. Hayhurst's admission that he questioned the employees concerning what they knew about the Union , standing CALCITE CORPORATION alone, is sufficient to establish that the Company, by Hayhurst, on or about March 6, interrogated its employees concerning their and other employees' union activities. In any event, I credit the testimony of Poindexter, Ashby, and Reynolds over Hayhurst's denials,7 and further find that Hayhurst, on or about March 6, asked Poindexter if he signed a union card, asked Ashby if he was involved with the Union, and asked Reynolds if he knew anything about the Union, who brought it in, and why the employees were interested in the Union. 2. The March 7 meeting Hayhurst corroborated the testimony of Poindexter and Vasquez that he called the then night-shift crew (Briscoe, Poindexter, Vasquez, Mitchell) to a meeting at his office when they finished their work shift on March 7. Hayhurst testified he called the meeting to resolve concerns ex- pressed by various employees about the effects on them of union representation. Hayhurst testified that Poindexter showed some curiosity over a list of employees' names on his desk, that he handed Poindexter the list, and that the list contained the names of all the Company's employees and their hiring dates. He corroborated Poindexter's testimony that, when he handed Poindexter the list, he asked him if he recognized it and Poindexter replied in the affirmative. Hayhurst testified that, in the course of the meeting, he advised the employees if the Union came in and secured excessive wage increases, the Company might go broke and be forced to close its doors; in response to an inquiry as to whether the Company would give the employees a raise or overtime, that it could not; when asked why, he replied the Company could not afford it; when asked why the Company could not give a wage raise and increase its prices, he replied it could not do so and remain competi- tive; when asked where the money was going, he noted the cost of repairing a mill, the cost of bringing the plant up to pollution standards, etc.; and when asked what would happen in the event there was a strike and picketing to secure higher wages, he replied this would not hurt the Company's business because the drivers of its customers' trucks were nonunion. Poindexter and Vasquez' version of Hayhurst's state- ments were somewhat different; they corroborated Hay- hurst's testimony that he stated the Company could not give wage raises and stay in business, that the Company could not give overtime and stay in business, that a strike and picketing by the employees would not hurt the Company, since the drivers of the trucks owned by its customers were nonunion and that Hayhurst handed Poindexter a paper containing a list of employee names, asked him if he recognized it, and Poindexter replied that he did. They testified, however, that Hayhurst stated if the Union came in and forced the Company to increase wages, the Company would have to close its doors. I find and conclude that Hayhurst conveyed to the assembled employees the clear message that if they chose union representation and sought improvements in their 1055 wages by strike activity, the Company could not, and would not, grant any wage increases ; that, in the event they struck for such increases, the strike would be futile; and that, in the event the Company was forced to grant wage increases, it would have to close its doors. On the basis of the above finding, I find and conclude that on March 7 the Company, by Hayhurst, threatened Poindexter, Vasquez, Mitchell, and Briscoe that the Company would close its doors before it would yield to its employees' efforts, through strike or other activities, to secure any wage improvements. 3. Other alleged threats to individuals Hayhurst corroborated Poindexter's testimony they had numerous conversations between March 5 and 11; Hay- hurst corroborated Poindexter's testimony that, on one occasion, Hayhurst telephoned Poindexter and told Poin- dexter to be sure to attend an upcoming union meeting (Hayhurst testified another employee [either Loomis or Harold Crook] informed him of the scheduled meeting). Hayhurst also corroborated Poindexter's testimony he told Poindexter, on another occasion, the Company's customers employed nonunion truckdrivers and a strike would not hurt the Company. Hayhurst also confirmed Poindexter's testimony that he asked Poindexter, on a number of occasions, what he heard from the Union and testified that, on one occasion, he offered to bet Poindexter a six-pack of beer the Union had lost the support of a majority of the employees and would lose an election. Hayhurst corroborated Ashby's testimony he informed Ashby the Company could not continue to employ him as a full-time carpenter if the Union came in because the Company couldn't afford to pay normal union scale for a carpenter and that, in any event, Ashby could not qualify as a journeyman carpenter. Hayhurst confirmed Rock's testimony he commented to Rock that Rock might be a champion chess player, but he was not going to win the union contest and Vasquez' testimony that he (Hayhurst) said he had the Union beat. Hayhurst denied Reynolds' testimony that Hayhurst in several individual conversations in addition to constantly asking who brought the Union in and why, and stating the plant would close if the Union came in, Hayhurst told Reynolds if the Union got in, he might fire some of the present white employees and replace them with blacks. Hayhurst neither confirmed nor denied Vasquez' testi- mony that Hayhurst informed him he had been successful in convincing most of the men to withdraw their support from the Union. Hayhurst neither confirmed nor denied Poindexter's testimony that Hayhurst asked him how he could talk him out of continuing his support of the Union, Hayhurst informed him he had convinced a majority of the employees to withdraw their support of the Union; and Hayhurst, after suggesting he attend a forthcoming union meeting, informed him that Ronnie Crooks' crew had informed Hayhurst they were withdrawing their support from the Union and would not attend the meeting after 7 The tenor of Hayhurst's admissions tend to confirm the employees' testimony; their testimony is plausible and their demeanor while testifying was far more convincing than that of Hayhurst. 1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that crew attended the same kind of meeting that Hayhurst held with Briscoe's crew (which included Poindexter). On the basis of Hayhurst's corroboration of employee testimony, I find and conclude that, between March 5 and 11, Hayhurst continued to ask employees what they knew about the Union, including Poindexter; that he continued to reiterate the theme he expressed at the March 7 meeting, that is, that the Company could not, and would not, improve wages; and that, if the employees struck for improved wages, their strike would be ineffective. I further find on the same basis that between the same dates Hayhurst told Ashby he would lose his job if the Union came in because the Company could do without a carpenter, it could not afford normal carpenter wage scale, and he could not qualify as a carpenter, and that he informed Poindexter, Rock, and Vasquez his campaign to cause a majority of the employees to withdraw their support from the Union had been successful, a majority of the employees had withdrawn from the Union. I further find that, on the basis of uncontradicted employee testimony, Hayhurst informed Poindexter he knew about a scheduled meeting of the Company's employees, that he suggested Poindexter attend; that he asked Poindexter how he could talk Poindexter into withdrawing his support of the Union; and that he told Poindexter as a result of remarks similar to these he addressed to Poindexter's crew, Ronnie Crooks' crew had withdrawn their union support and would not attend the meeting. With reference to Hayhurst's denial of Reynolds' testimony concerning Hayhurst's individual threats of plant closure and replacement of some of the white work force with blacks in the event the Union came in, I credit Reynolds' testimony. It is apparent that from the time he learned of the Union's campaign to represent the Compa- ny's production and maintenance employees, Hayhurst engaged in a strenuous effort to undermine employee support of the Umon. Reynolds was a difficult man to convince, so Hayhurst went further with him than he had with other employees. Reynolds' demeanor was convincing while on the stand. I therefore find and conclude that between March 5 and 11 the Company, by Hayhurst, threatened Reynolds with plant closure and replacement of some of the Company's white complement with blacks in the event the majority of the employees chose union representation. On the basis of the foregoing findings, I therefore find and conclude that between March 5 and 11 the Company, by Hayhurst, violated Section 8(a)(1) of the Act by: 1. Asking employees in individual conversations, in- cluding Poindexter, Ashby, and Reynolds, what they knew about the Union. 2. Asking Poindexter if he had signed a union card. 3. Asking Reynolds who brought the Union in and why the employees were interested in the Umon. 4. Threatening Reynolds with plant closure and dis- charge of white employees and their replacement with blacks in the event the Union came in. 8 It is reasonable to conclude from the small size of the work force, Hayhurst's unremitting effort to undermine the Union's support within it and brag he had turned around a majority of the Union's supporters, 5. Threatening Ashby with discharge in the event the Union came in. 6. Threatening Poindexter, Vasquez, Mitchell, and Briscoe that the Company could not and would not grant any wage increases in the event they chose union representation, and struck and picketed to secure such increases, that such a strike would be futile; and that, in any event, if the Company was forced to increase wages, it would have to close its doors. 7. Asking Poindexter how he could talk him out of continuing his support of the Union. 8. Intimidating Poindexter, Rock, and Vasquez by telling them he had caused a majority of the employees to withdraw their support of the Union. 9. Giving Poindexter the impression he was maintain- ing a close surveillance of the employees' union activities by telling Poindexter of a scheduled union meeting and informing him he (Hayhurst) had persuaded Ronnie Crooks' crew not to attend that meeting and to withdraw their support from the Union. 4. The alleged unlawful discharges It is undisputed that on March 14, approximately 9 days after the Company received the Union's petition for certification and request for recognition and bargaining, the Company terminated 10 of its 18 production and maintenance employees. Of the 10 employees who were terminated, 8 were production employees who had signed cards authorizing the Union to act as their collective- bargaining representative (Franks, Pohl, Reynolds, Poin- dexter, Vasquez, Mitchell, Rock, and Teague) and a 9th was the carpenter, Ashby, who made his union support known to Hayhurst. It is readily apparent the Union was most successful in securing signatures to authorization cards from the production employees (all 12 of them signed and only I maintenance employee [Ashby]). By that termination, the Company eliminated 9 of the 13 card signatories from its production and maintenance work force, leaving 4 nonsignatory employees (Harold Crook, Loomis, Richie, and Harris) and 4 signatories (Ronnie Crook, Randy Crook, Briscoe, and Kelley). Two of those were leadmen (Ronnie Crook and Briscoe) and Hayhurst had announced to Poindexter he had persuaded Ronnie Crook to withdraw his support from the Union. The record does not disclose how successful Hayhurst was in convinc- ing Ronnie Crook's brother, Randy Crook, Kelley, and Briscoe to similarly withdraw their support, but Hayhurst undoubtedly knew their stand.8 The General Counsel contends the termination was the Company's final step in its campaign to frustrate the efforts of the production and maintenance employees to secure union representation and better their rates of pay, wages, hours, and working conditions. He relies on the timing of the termination and the accompanying strenuous efforts by Hayhurst to discourage the employees' support of the Union .9 The Company contends the terminations were necessi- tated by economic conditions, the timing was incidental, Hayhurst knew exactly where each man stood at the time of the layoff. 9 Hayhurst testified shortly after his receipt of the Union's petition Ashby informed him 13 of the 18 unit employees signed authorization cards CALCITE CORPORATION that Hayhurst simply advised the employees economic conditions barred any improvements in their rates of pay, wages, hours, and working conditions, and argues these contentions are supported by the fact the terminations, with one exception, were based on seniority. The record discloses the Company's last assertion is correct. All 10 of the laid-off employees were the least senior of the 18 production and maintenance employees, except Rock. The Company attempted to justify Rock's layoff and the retention of his junior, Richie, who did not sign a union authorization card, on the ground Richie was a more versatile, more reliable employee than Rock. Rock's description of the versatility of the work he performed as a leadman belies that testimony, however, and there was no evidence that Rock was other than a highly qualified employee. The Company supported its contention the terminations were motivated by economic considerations with evidence that, following the Company's purchase by All Minerals Corporation in March 1974 in anticipation of an expansion of the market for its primary product (barite) due to renewed and increased oil drilling activities, both offshore and onshore, in California, the expected expansion did not occur.10 Additional evidence established that the Company was threatened with closure by state authorities shortly after its purchase by All Minerals due to failure to meet pollution standards, that this necessitated major expendi- tures for clean up, plant renovation, equipment replace- ment, etc. Statistical evidence produced in the course of the hearing also showed there was a steady downtrend in the plant's production and sales through late 1974 into early 1975, with one exception.1' Hayhurst's testimony he told Briscoe in early February the Company was going to have to cut back its work force if demand didn't pick up is uncontradicted; in fact, it is substantiated by Poindexter's admission his leadman (Briscoe) informed him several times in late January and early February that work was slowing up and that he heard rumors during this time of a layoff. The evidence is unchallenged that, between February and April of 1975, there was a precipitate downtrend in demand for the Company's products and it was able to maintain inventory and meet all current orders by operating one mill one-third of the time. Hayhurst testified the list he handed to Poindexter (the Union's leading adherent) 12 on March 7 had been prepared for the purpose of reviewing the names and seniority dates of all employees to aid Hayhurst and Mahoney in deciding who to layoff, that he and Mahoney had been considering this for several weeks prior thereto. It is undisputed that since the termination of the 10 employees, there have been no new hires, no overtime except to meet customer requirements outside of normal working hours, and that the Company has been current on all orders and maintained a full inventory. for the Union, so it is obvious that Hayhurst knew the Umon's strength among the employees when he commenced his campaign to undermine the Union 10 The Company's president, Stanford Mahoney, attnbuted the failure of its anticipations to legal and legislative activities by environmentalists and no-growth advocates which resulted in the delay or abandonment of drilling plans by the oil explorer/developers. 1057 The Company also produced a study by an expert in the field, prepared in October 1974, which recommended that the Company reduce its total production, maintenance, and clerical complement to 12 employees if it expected to conduct profitable operations. Mahoney testified he was aware from late 1974 it was going to be necessary to reduce the employee complement in view of the failure of the anticipated increased demand for the Company's main product in California to develop, but that he hoped to do so by gradual attrition after the first of the year. He testified that demand, due to economic conditions, dropped much more than he had anticipated after the one-time spurt in January 1975 due to the oil well fire, and he realized by February he was going to have to reduce the work force immediately if the Company was to stay in business. He testified he therefore decided to reduce the work force to eight production and maintenance employees in March 1974 in order to stay in business, and that the Union's campaign for representation of those employees was not a factor in that determination. While the economic evidence demonstrates a reasonable exercise of business judgment warranted reducing the 18- man production and maintenance employee complement following the replacement of the inventory exhausted in January 1975 following the oil well fire, I am not convinced the timing of the layoff or the selection of the employees to be laid off, particularly Rock, was motivated purely by economic considerations and without regard to the em- ployees' union sentiments and their effort to secure union representation and higher wages. I therefore find that while the Company was economical- ly motivated in part when it laid off nine of the Union's supporters, both the timing of the layoff and the selection of employees for layoff were calculated to destroy the Union's support among the Company's production and maintenance employees. I therefore find and conclude that inasmuch as the Company was motivated in part, in the timing and selection of employees for its March layoff, by their support of the Union, it violated Section 8(a)(3) and (1) of the Act by laying off the nine union supporters. 5. The bargaining order issue Having found that the Company, following its awareness that all of its production employees and its carpenter had designated the Union as their collective-bargaining repre- sentative, engaged in a strenuous campaign to cause those employees to withdraw their support from the Union by actions violative of the Act (including numerous threats, intimidation, and a discriminatory layoff), I find and conclude that by such actions the Company made it impossible to conduct a full and free election to ascertain the employees' desires concerning representation by the 11 In January 1975 there was a sudden and one-time demand for an unusual amount of barite due to a major oil well fire, at which time the Company exhausted its inventory. 12 It was Poindexter, accompanied by Vasquez , who made the initial contact with the Union and interested the Union in representing the Company's employees. 1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union and therefore, the purposes of the Act will best be served by issuance of an order requiring the Company to bargain with the Union at its request concerning the rates of pay, wages, hours, and working conditions of the Company's production and maintenance employees in the unit heretofore found to be appropriate for collective- bargaining purposes. CONCLUSIONS OF LAW 1. At all times pertinent the Company was an employer engaged in commerce in a business affecting commerce, as those terms are defined in Section 2(2), (6), and (7) of the Act. 2. At times pertinent the Union was a labor organiza- tion as that term is defined in Section 2(5) of the Act. 3. All of the Company's production and maintenance employees, including all baggers, forklift operators, carpen- ters, and mill operators, and excluding all other employees, office clerical employees, professional employees, guards and supervisors as defined in the Act, constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9 of the Act. 4. On February 27, 1975, there were 18 employees within the above-described unit; namely, Ronnie Crook, Randy Crook, Harold Crook, Franks, Pohl, Reynolds, Briscoe, Poindexter, Vasquez, Mitchell, Rock, Kelley, Teague, Martinez, Loomis, Richie, Ashby, and Harris. 5. Since February 27, 1975, the Union has been the duly designated collective-bargaining representative of a majority of the Company's employees within the above- described unit. 6. At times pertinent Mahoney, the Company's presi- dent, Hayburst, the Company's manager, and Folkerson, the Company's general foreman, were supervisors and agents of the Company acting on its behalf. 7. Between March 5 and 11, 1975, the Company, by Hayhurst, violated Section 8(axl) of the Act by: (a) Asking unit employees, including Poindexter, Ashby, and Reynolds, what they knew about the Union; (b) asking Poindexter if he had signed a union card; (c) asking Reynolds who brought the Union in and why the employees were interested in the Union; (d) threatening Reynolds with plant closure and discharge of white employees and their replacement with blacks in the event the Union came in; (e) threatening Ashby with discharge in the event the Union came in; (f) threatening Piondexter, Vasquez, Mitchell, and Briscoe that the Company could not and would not grant any wage increases in the event they chose union representation; that, in the event they struck and picketed to secure such increases, such action would be futile; and that, in any event, if the Company were forced to increase wages, it would have to close its doors; (g) asking Poindexter how he could talk him out of continuing his support of the Union; (h) intimidating Poindexter, Rock, and Vasquez by telling them he had caused a majority of the employees to withdraw their support from the Union; and (i) giving Poindexter the impression he was maintaining a close surveillance of the employees' union activities. 8. The Company violated Section 8(a)(1) and (3) of the Act by its March 14, 1975, layoff of nine union supporters in that it was motivated in part in the timing and selection of employees for layoff by their union activities. 9. In view of the fact the Company by its unfair labor practices prevented a free election wherein the employees might signify whether or not they desired the Union to act as their exclusive collective-bargaining representative, the purposes of the Act will best be served by the issuance of an order requiring the Company to recognize and bargain with the Union, at its request, concerning the rates of pay, wages, hours, and working conditions of the unit employ- ees. 10. The above unfair labor practices affect commerce. THE REMEDY Having found the Company engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, I shall recommend that the Company be directed to cease and desist therefrom and to take certain affirmative action designed to effectuate the purposes of the Act. It shall be recommended that the Company be ordered to cease and desist from interrogating its employees concerning what they know about the Union, who brought the Union in, why the employees were interested in the Union, and whether they had signed a union card; threatening employees with plant closure in the event the Union came in; threatening employees with discharge of white employees and replacement with black employees in the event the Union came in; threatening employees that the Company could not and would not grant any wage increases in the event they chose union representation, that any strike to secure same would be futile; and that in the event the Company was forced to grant wage increases, it would have to close its doors; asking employees how they could be talked out of continuing their support of the Union; intimidating employees by telling them the Compa- ny had caused a majority of the employees to withdraw their support from the Union; giving the employees the impression the Company was maintaining a surveillance of its employees' union activities, and maintaining such surveillance; and laying off or terminating employees to destroy union support among its employees. Having found that union supporter Rock was laid off on March 14, 1975, and a junior employee who was not a union supporter retained as part of the Company's effort to destroy the Union's majority representative status among the Company's unit employees, it shall be recommended that Rock be offered immediate and full reinstatement to his former job, or a substantially equivalent job if his former job no longer exists, without prejudice to his seniority rights and other rights and privileges, and that he be made whole for any wage losses he may have suffered by payment to him of the sum of money he would have earned from the date he was laid off to the date he is reinstated, less any net earnings he has received in the interim period. His lost wages shall be computed in accordance with the formula prescribed in F. W. Wool- worth Company, 90 NLRB 289 (1950), with interest at 6 percent per annum computed in accordance with the formula prescribed in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). CALCITE CORPORATION 1059 While I have entered findings that the March 14 layoff may well have occurred at a later date but for the fact a majority of the Company's unit employees designated the Union on February 27 as their collective-bargaining representative in order to secure better wages , etc., and that the selection of the employees for layoff was influenced by Hayhurst's knowledge which among them supported the Union, it is difficult if not impossible to ascertain which employees would have been laid off in the absence of any union activity on their part or when those who were laid off would have been laid off but for that activity. I therefore shall recommend that the Company be ordered to create, and maintain for a period of 1 year from the date of issuance of the Board's Order, a preferential recall list containing the names of the laid -off employees (other than Rock) and recall the employees so listed prior to making any new hires of production or maintenance employees. In the event any new hires have been or are made prior to the date of the issuance of that Order, it shall be recommended that the Company be directed to immediately reinstate the employees it would have recalled under the terms of the Order, if necessary laying off such new hires, and make the employees so recalled whole for any lost wages, less net earnings , for the period from the date such new hire was made to the date they are reinstated. It shall finally be recommended that the Company be directed to recognize and bargain with the Union, at its request, concerning the rates of pay, wages, hours, and working conditions of the unit employees. [Recommended Order omitted from publication.]