Fredonia Valley Quarries, Inc

FREDONIA VA LLEY1QUARRIES 843 Fredonia Valley Quarries, Inc and Teamsters Local Union 236, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Ware housemen and Helpers of America Case 9-CA- 17372 19 October 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND DENNIS On 6 April 1984 Administrative Law Judge Robert T Wallace issued the attached decision The Respondent filed exceptions and a supporting brief, and the General Counsel filed a reply brief The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel The Board has considered the decision and the record in light of the exceptions and briefs' and has decided to affirm the judge s rulings, findings,2 and conclusions and to adopt the recommended Order ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Fredonia Valley Quarries Inc , Fredonia Kentucky, its offi cers, agents, successors and assigns, shall take the action set forth in the Order 1 The Respondent has requested oral argument The request is denied as the record exceptions and briefs adequately present the issues and the positions 2 The Respondent has excepted to some of the Judge s credibility find ings The Board s established policy is not to overrule an administrative law Judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are Incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Or 1951) We have carefully examined the record and find no basis for reversing the findings DECISION STATEMENT OF THE CASE ROBERT T WALLACE Administrative Law Judge On a charge and an amended charge filed by Teamsters Local 236 (the Union) on September 3 and October 13 1981 respectively a complaint was issued on October 16 1981 wherein (as amended on July 9 1982) it is al leged that Fredonia Valley Quarries Inc (Respondent) discharged eight employees in violation of Section 8(a)(1) and (3) of the National Labor Relations Act and that it also violated Section 8(a)(1) in several other re spects The case was tried before me at Paducah Ken tucky on July 28-30 1982 c On the entire record including my observations of the demeanor of the witnesses and after due consideration of briefs filed by the General Counsel and Respondent' I make the following FINDINGS OF FACT I JURISDICTION r Respondent a Kentucky corporation is engaged in mining limestone at a quarry in Fredonia Kentucky During a representative 12 month period immediately preceding issuance of the complaint it purchased and re ceived at that facility goods and materials valued in excess of $50 000 which items were shipped directly from points located outside the Commonwealth of Ken tucky It admits and I find that it is an employer en gaged ni commerce within the meaning of Section 2(2) (6) and (7) of Act and that Local 236 is a labor organi zation within the meaning of Section 2(5) of the Act II ALLEGED UNFAIR LABOR PRACTICES A Background The discharges are alleged to have occurred in August 1981 At that time Respondent had a complement of 45 employees who earned hourly wages Most of them started at the entry level job of bagging crushed lime but over a period of time they were cross trained to per form various other jobs such as welding driving a truck and vehicle maintenance and it was not at all unusual for employees with particular skills to be assigned some times for extended periods to other jobs e g drivers of Euclid or pit trucks would work as baggers Jimmie Wayne Belt was hired in November 1980 by his neighbor Vernon Gilland who happened also to be Respondent s superintendent of operations He worked for about 10 months 2 until along with six other employ ees 3 he was laid off indefinitely on August 21 1981 4 During that period his main job involved vehicle mainte nance as a mechanic and welder Belt began to discuss unionization with other employ ees as early as February 1981 and on July 27 he met with a representative of Local 236 (DuPree) signed a union card (i e an application for membership in the Union) and agreed to head an organizational dnve On the next day DuPree wrote and mailed a letter to Gil land advising the latter that the drive had begun and was being led by Belt B Incident on July 29 Gilland had the letter in hand when Belt arrived for his shift on July 29 According to Belt Gilland s face was filled with anger and frustration Assertedly he accused Belt of reneging on a prehire promise not to 1 Respondent s petition to withdraw a previously filed motion to quash the General Counsel s bnef is granted 2 Inclusive of a 3 week period in March when he was allowed to vol unteer for a layoff 3 These were Allen McNeely Edward Tabor James Rushing James R Edwards Dennis Hrapeck and Charles Dale Conger all alleged chs cnminatees 4 Another alleged discriminatee (Steve Gray) was placed on indefinite layoff a week later on August 28 1981 272 NLRB No 129 844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have anything to do with a union and he went on to say that if the Union got in here they would discontin ue jobs and would hire truck drivers to come in there and haul rock and dust out that he would have the stripping contracted in some manner [so that] there wouldn t be as much work there that he would put some kind of machine in or would truck more dust out to eliminate or slow down the bagging that sooner or later he would discharge anybody having anything to do with the Union Then taking another tack Gilland spoke of the work force as being family and he con eluded by asking how Belt could call himself a preacher and do what he was doing Apparently sensing that the latter comment had cut deep GiHand promptly apolo gized and the two quietly set there a bit before get ting up to do their respective jobs GiHand s version of the encounter 5 does not differ ma tenally from Belt s except that he specifically denies having threatened to eliminate truckdriving and bagging operations to subcontract out stripping and to discharge everyone who had anything to do with the Union As to those matters however I credit Belt He appeared to be free of guile and in light of &Hand s explicit animus toward unionization I find more probable than not that he did make the threats attributed to him by Belt 6 Fur ther I find those threats and indeed the entire interroga tion patently coercive and in derogation of nghts ac corded Belt under Section 7 of the Act C August 3-7 During the next workweek several events of signifi cance occurred One involved an incident in the plant lunchroom Belt and several other employees (including McNeely and Tabor) were seated near the timeclock waiting to punch in for the night shift and they were discussing preparations Belt had made for a union meet 5 Gilland vividly recalls the incident as follows I was in the shop at the time and Jimmie Wayne Belt came in I told Jimmie I said I need to talk to you a minute So we started to the office and the further I walked the madder I got So I told him I said Guess what I got today I said Let me tell you what I got today I got fuckin letter from the Teamster s Union with your name on it I said You low life son of a bitch you I ought to whip your ass right here By that time I was pretty close to the office and we went on in I shut the door and we sit down I said What s your problem I said You ve not come to me with any problems I said What s your gripe? He said Well I didn t start It He said Those people over at the shop started it He said All I did was Just got in touch with the Union man So I said Well you sure shit did You went and got in touch with Jesse DuPree I said He s been here before I said the damn Team sters Union am t worth a shit I said That bastard tried to sell them out back the first election So I told him I said Well Jimmie I said We don t want a union here We ye had a terrible time with union problems and we Just don t want one and [since] he lives right behind me I said Well I was going to bring that dozer down there and fix that pile of dirt between our houses but I am t now and he said Well can I go back to work? And I said Yea you can And he said Well you know I would like to part friends And I said It s alright with me So we shook hands and he went back to work That s it 8 There is no evidence that Gilland during the course of his conversa non with Belt also threatened to close the facility or to transfer an em ployee to more onerous and less desirable work if the employees selected the Union as their bargaining representative and accordingly Respond ent s motion to dismiss those portions of the complaint alleging that he did so is granted ing on Sunday August 9 While they talked Night Shift Foreman Ruben Gray entered the room paused to check a list of work orders near the timeclock and exited into the shop area Moments later Respondent s assistant su penntendent in charge of day shift operations (Faughn) came in from the shop went directly to where the em ployees were seated and said to them We don t want any union talk on company property whereupon he turned around and went back into the shop area" I find that the statement by Faughn an admitted supervisor was unduly broad in that it purported to preclude em ployees from engaging in organizational activity at any time during a workday within Respondent s facility in eluding periods of nonworktime spent in nonwork areas Compare Our Way Inc 268 NLRB 394 (1983) Atlas Metal Parts Co 252 NLRB 205 (1980) Further there is no indication on this record that Respondent ever acted to repudiate or ameliorate that prohibition 1 Another event occurred on the plant parking lot when an alleged discnmmatee (Conger) approached Faughn with his brother in law (Roger Larue) in tow and the latter asked for a job According to Conger Faughn re plied I can t put you to work until his union deal is over [after that] there will be a lot of job open ings Conger then asked what he meant and assertedly Faughn s answer was Well we will be getting rid of a lot of you Faughn recalls having a conversation with Larue but he is not sure that Conger was present He concedes having said that he could not hire Larue be cause we was having a union problem and our stock pile was in good shape [and that] in the future we would probably put a bunch of people to work How ever he does not specifically, deny making the statements attributed to him by Conger I credit the latter im pressed by his apparent candor A third event was a general meeting in the lunchroom called by Respondent s general manager (Howton) at which he pointed out to the assembled employees a number of reasons he felt they should vigorously oppose efforts to unionize the Company and he told them that he and Gilland would be happy to answer any questions they might have but only on a one to one basis D August 10-14 The workweek that followed saw &Hand engaged in conversations concerning the Union with a number of employees One of these (Baker) had attended the union meeting held on August 9 8 and after telling Gilland that he was against the Union he gave him the names of 10 other attendees including alleged discriminatees Belt Edwards Hrapeck and Steve Gray 7 Faughn concedes having made the statement but he denies that Gray told him that the employees were discussing the Union In that regard Faughn states that he overheard the word union as he entered the lunchroom 8 The meeting was held as scheduled at 2 p m at a local restaurant in lieu of the Fredonia Lions Club At 9 p m on the prior evening the club manager canceled Belt s reservation stating that he had a double booking problem Both Howton and Gilland were at the Lions Club on the after noon of August 9 and Belt subsequently learned that the meeting room had been held for use by Faughn s father in law FREDONIA VALLEY QUARRIES 845 Another conversation involved Conger He states that GiHand approached him in the shop area during a break and asked Ms there anything I can say or do to change your mind about this union [matter] He replied I don t know what have you go to say? GIHand proceed ed to give a number of reasons he felt it was in every one s best interest that the Company remain nonunion Conger responded by stating he was still concerned about the possibility of arbitrary firings At that point plant operations started up again and Conger walked away stating that he had to get back to work Gilland admits that he initiated the conversation However he claims that his opening words were not those attributed to him by Conger but instead involved a simple inquiry as to whether Conger wanted to talk about the Union Also he asserts that Conger responded affirmatively to his arguments by volunteering that he and his family (Robert Larue and son in law Hrapeck) were not going to vote for the Union I accept Conger s version finding him to be the more credible witness A third conversation occurred in the quarry area Ac cording to Hrapeck s undisputed and credited account Gilland came up and asked him if he had heard about the union stuff going around Hrapeck answered yes and a dialogue ensued as follows Gilland Well where do you stand on it? Hrapeck Ill tell you how it is I am going to go to the meetings and I am going to sit and listen to both sides and then decide for myself how I am going to vote I will then vote and do it the way I think is best Gilland You need to let me know which side you re on Hrapeck I can t do that Still another conversation took place in the plant office Alleged discnminatee Steve Gray and another employee (Robert Anderson) were there on Gilland s in vitation and according to Gilland s account he asked them if it was okay to talk about the Union Both nodded and he proceeded to tell them about our bene fits and after a while Anderson volunteered that he had signed a union card at the meeting on August 9 but un derstood that his signature merely meant he had attended the meeting and then Gray said he did not and would not sign a union card and that he wasn t for it Gray s version differs in that he claims Gilland initiated the con versation by asking What do you all think about the Union? Also Gray states he told Gilland that he was still undecided as to whether he would sign a card I credit Gray and I find the incident to involve coercive interrogation by Gilland as alleged in the complaint 9 Compare Naum Bros 240 NLRB 311 (1979) JAMCO International 227 NLRB 1807 (1977) 9 Although the Gray/Anderson conversation is similar to the ones Gil land had with Conger and Hrapeck I make no finding as to whether the latter were coercive because the complaint contains no allegation in that regard However I find those conversations relevant as indicating Gil land s awareness that the two employees were either for or at least on the fence in the matter of representation by the Union E August 17-21 By or during the third workweek in August Gilland and Plant Manager Howton had occasion to share with each other perceptions regarding which employees were for or against the Union As to the alleged discnmina tees Howton stated that he considered Belt as being prounion and he claims that Gilland (1) made no com ment about Edwards Rushing or Gray (2) said he did not know about McNeely and (3) quoted Conger and Hrapeck as saying they were against the Union and Tabor as saying he was leaning against the Union On Friday August 21 and without prior warning all the alleged discnminatees except Gray were told by Gilland that effective immediately they were laid off in definitely because business was slow 1° He told them that there was little likelihood that they would be re called in the foreseeable future and urged them to seek jobs elsewhere Edwards had signed a union card at the organizational meeting on August 9 in the presence of several other em ployees including Baker and by August 21 Tabor Hra peck and (James) Rushing also had occasion to deliver signed union cards to agents of the Union 11 Employee Spud Rushing was not one of those laid off on August 21 However on that day Faughn came up to him in the bagging house and asked if he knew the last four that had signed the card the cards that were going around The incident is not denied by Faughn and I have credited Rushing s account of it F August 25-28 On Monday August 24 Conger Hrapeck and Winn were recalled by Gilland to help fill a large and unex pected order for crushed stone received on the prior Sat urday morning They worked several days and on Friday August 28 they again were laid off indefinitely along with three other employees Frahck Oliver and alleged discriminatee Steven Gray The latter had signed a union card shortly after his previously described con versation with Gilland and he had attended his second union meeting on Sunday August 23 12 On advising Another employee (Winn) also was laid off at this time However it was stipulated that he voluntarily quit during the following week His name was deleted from the list of discnnunatees in the amended corn plaint and he did not testify in this proceeding " Shortly after Rushing signed Night Shift Foreman Ruben Gray an admitted supervisor (Tr 439) approached him on the job and asked if he was aware of the union drive Rushing answered noncommittally that he had heard Gray then told him to think the matter over carefully adding that he Gray felt the Company would not survive if the Union came in Here too I make no finding as to whether this conversation was coer cive It not having been alleged as such in the complaint The incident is significant however that in that Gray could Infer from the noncommittal answer that Rushing had not made a decision as to which side he was on 12 Howton recalls having been told by Gilland that employees had come to him and told him of the [union] meetings (emphasis added) and he also recalled that Gilland gave him the names of several attendees at one or both meetings including Belt Edwards and Tabor With this background and having in mind Gilland s testimony that employee Baker had given him the names of 10 attendees (including Gray) at the first union meeting on August 9 I find it probable that alland knew that Gray attended the meeting on August 23 846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gray of the layoff Gilland told him that things were slow and suggested that he look for a job someplace else The table below shows the seniority based on date of hire of the 11 employees laid off on August 21-28 1981 relative to other employees then on Respondent s 45 man work force and it also shows the job classification and hourly rate paid to each employee listed as well as (under the caption No ) the total number of employees stated to be in the same classification 13 The names of the laid off employees are capitalized and an astenk de notes those who are alleged discriminatees 14 Table Ranking Name Hire Date Job No Hour ly Rate 20 *GRAY 05 13 77 Electrician (01) $6 15 21 Trader 04 03 78 Truck Driver (13) 590 22 Peace 04 04 78 Pit Truck Op (05) 555 23 WINN 09 06 78 (05) 5 55 24 *HRAPECK 09 06 78 Pit Loader (02) 5 85 Op 25 Qualls 10 27 78 Truck Driver (13) 590 26 Baker 10 23 79 (13) 590 27 *McNEELY 01 10 80 Primary (02) 600 Plant Op 28 LaRue 01 16 80 Drill Op (02) 5 90 29 Sisco 03 06 80 Truck Driver (13) 590 30 Rushing (D) 03 06 80 Bagger (04) 5 50 31 Fitzgerald 04 10 80 Truck Driver (13) 590 (R) 32 Peek 04 30 80 Build Up (02) 5 75 Welder 33 *RUSHING 05 06 80 (02) 5 75 (J ) 34 Board 07 17 80 Truck Driver (13) 590 35 Fitzgerald 08 14 80 Bagger (04) 5 50 (B) 36 *CONGER 08 14 80 Pit Truck (05) 5 55 Op 37 *EDWARS 08 14 80 (05) 5 55 38 Woodnng 09 24 80 Truck Driver (13) 590 39 *TABOR 09 24 80 Drill Op (02) 5 90 40 Beverly 09 24 80 Bagger (04) 5 50 41 *BELT 10 06 80 Maintenance (06) 6 65 42 Bealmear 11 24 80 Truck Driver (13) 590 43 Wheeler 02 17 81 (13) 590 44 OLIVER 03 16 81 Special (01) 665 Welder 45 FRALICK 07 06 81 Ngt Strkpr (01) Unk " Classifications not shown in the table were held by more senior em ployees Those classifications are Day Storekeeper (01) at $6 40 an hour Oiler (01) at $6 00 Stockpile Loader Operator (01) at $5 85 and Dust Plant Operator (03)—two at $5 90 and the third at $6 00 14 Respondent s records show that 44th ranking Oliver worked 21 1/2 hours over his normal 40 during the week he was laid off Belt testified credibly that like himself Oliver did both welding and vehicle mainte nance and that Oliver spent about 90 percent of his time on maintenance Respondent s records also show that Oliver was back on Respondent s payroll at least by September 20 1981 G Respondent s Evidence Howton testified persuasively that economic circum stances dictated need for layoffs in August 1981 In July of the prior year Respondent began to sell large quantities of agricultural grade limestone FOB barges at a Mississippi River port located 10 miles from its quarry Transportation to the port was accomplished in Respondent s 25 ton capacity dump trucks and three of its senior employees assisted in off loading limestone onto the barges By December 1980 it had sold and delivered at the port 12 bargeloads (approximately 150 000 tons per barge) of limestone The business was new in that Re spondent never before had sold commodities for move ment by barge 15 Anticipating continuance and expan sion of such sales it began (in July 1980) gradually to hire additional employees 16 and in September it started extensive stripping operations to uncover new deposits of limestone suitable for agricultural use 17 Shipments to the port continued through the spring of 1981 with 5 barges being loaded in January 5 in Febru ary 20 in March and 1 in April The sharp downturn in April did not bother Respondent because it expected that as in 1980 barge movements of limestone for use downnver during the fall planting season would com mence in July But no orders were forthcoming and by mid August it became apparent that there would be none because Respondent and the broker responsible for the pnor purchases were unable to agree upon pnce At that time Respondent s stockpiles were nearly full so Howton ordered immediate cessation of stripping oper ations" and the permanent layoffs described above The employees selected for layoff assertedly were in job classifications for which there was no longer any foreseeable need (or were at least senior in classifications said to have excess employees) due to loss of the barge shipments Howton and Gtlland jointly decided which employees occupied jobs deemed surplus and in making those determinations they gave no consideration to the work then being performed by the selected employees 19 15 The primary limestone product produced and sold by Respondent is rock dust which is used among other things for tamping down coal dust in underground mines It also sold agricultural limestone to farmers and crushed rock to contractors located generally within 200 miles of Fredonia 15 Respondent s records show that as of June 1 1980 it had 39 hourly employees That number had increased to 45 on the morning of August 21 1981 " Due in part to the anticipated barge shipments Respondent in De cember 1980 also purchased and began to Install at a total cost of $300 000 a stone crushing mill capable of processing 175 tons of lime stone per hour nearly double the capacity of the two small mills then in use The larger mill became operational in May 1981 18 There were no subsequent shipments to the port at least through December 1981 and as of the date of hearing herein Respondent had no occasion to order resumption of stripping operations 19 As found above it was not unusual for employees with particular skills to be assigned sometimes for extended periods to other jobs For example Tabor did bagging exclusively for 2 1/2 months prior to the layoff Rushing did many things on the night shift such as welding general maintenance truck loading etc Edwards spent 50 percent of his time operating a pit truck and 50 percent working in the dust house Gray had been doing electncal work for about a year and in addition he helped loading the shots and blasting and in some cases he did the Continued FREDONIA VALLEY QUARRIES 847 Instead they relied on personal knowledged both as to what was the primary job of every member of the work force and when approximately each had received that job Personal knowledge was required because job classifications are not shown anywhere in Respondent s records and hourly rates of pay though shown needed interpretation because in some instances employees deemed to have the same job classification had different rates while in other instances employees with different assigned classifications had identical rates 20 Employees classified as bagger truckdnver or dust plant op erator were not laid off because according to Howton they were needed for work in connection with a product ( rock dust ) used in underground coal mines and sales of that item had remained consistent He claims that in laying off employees with least seniority within certain job classifications he simply followed past policy and he emphatically denies that any employee was laid off due to involvement with the Union Respondent continued to operate a night shift after the layoffs and as in the past most employees continued to work more than 40 hours a week at overtime rates equal to 1 1/2 times their normal hourly rates In fact the amount of overtime worked by the remaining non office/supervisory employees increased substantially as illustrated by a comparison between the total hours worked (2205) by 43 such employees (an average of 12 5 overtime hours each) during the week ending August 21 1981 21 and the total hours worked (2042) by a 34 man force (an average of 20 overtime hours each) during the week ending September 26 1981 In the latter week Re spondent s records also show (1) that rehired employee Oliver worked 41 overtime hours and (2) that all em ployees were receiving a 15 cent increase in their regular hourly rates That increase had been put into effect on Monday August 31 assertedly to fulfill a promise made by Howton during the Christmas season of 1980 Analysis That Respondent harbored deep seated animus toward the Union and anyone identified with it is obvious from among other things the threat of its superintendent (Gil land) to discharge anybody having anything to do with the Union uttered during his encounter with employee Belt on July 29 1981 just after he learned of the organi zattonal drive and Belt s association with it There fol lowed an intense effort by Gilland and other supervisors work of baggers who had been laid off Conger drove a tractor trailer unit as well as a pit truck 20 For example (1) Of six employees said to comprise the mantle nance force the four listed as having greater seniority are shown to have drawn (as of pay period ending August 21) the same hourly rate of pay ($6 40) whereas the two with lesser seniority (including Belt the least senior) each received a higher rate ($6 65) and the latter rate also applied to the job of special welder a classification to which only one employ ee (Oliver) was assigned and that employee was hired after Belt and (2) of the three employees described as dust plant operators the two with greater seniority each received $5 90 an hour the same rate drawn by employees classified as truckdrivers or drill operators and the junior dust plant operator is shown as earning $6 an hour—the same rate as that of a primary plant operator or oiler " Employees Anderson R Board and Steve Gray are not shown in Respondent s records as having worked during the week ending August 21 No reason is given to learn through reports of informers and interrogations of individual employees where each stood in relation to the Union and within 30 days the eight alleged discn minatees were placed without prior warning on perma nent layoff Immediately thereafter a substantial across the board increase in hourly rates was made effective for the remaining work force Six of the eight had signed union cards and/or attended one or more union meet ings and were known by Respondent to have done so and another (Conger) is clearly shown to have been sus pected by Respondent as siding with the Union As to those seven I find the General Counsel had made a prima facie showing sufficient to support an inference that their involvement or suspected involvement 22 in protected activity was a motivating factor in Respond ent s decision to lay them off 23 However no such showing was made in regard to the eighth named discn minatee (McNeely who did not testify) and the corn plaint will be dismissed as it relates to him Accordingly Respondent has the burden of proving that the seven would have been laid off absent such in volvement Wright Line 251 NLRB 1083 (1980) enfd 662 F 2d 899 (1st Cir 1981) cert denied 455 US 889 (1982) As noted I have found persuasive Respondent s claim of need for layoffs in August 1981 At that time it had excess products in its stockpiles due to loss of anticipated sales of agricultural limestone for movement by barge to southern markets But the fact that some layoffs may have been economi cally justified is no defense if as here laid off employees are shown to have been selected for discriminatory rea sons See NLRB v Bedford Nugent Corp 379 F 2d 528 529 (7th Cir 1967) and NLRB v Deena Products 195 F 2d 330 355 (7th Cir 1952) cert denied 344 U S 827 In that regard I view the number of employees laid off (11) as grossly disproportionate to the additional em ployees hired (6) 24 to accommodate barge traffic which admittedly comprised a relatively minor aspect of overall operations at the quarry Indeed even six may have been an excessive number since an inference is warranted and taken that those other operations (as to which produc tion and sales data was available to but not produced by Respondent) had increased and in consequence required some additional manpower See Suburban Ford 248 NLRB 364 369 (1980) Golden State Bottling Co v NLRB 414 U S 168 (1973) That conclusion is all the more likely since Respondent continued to maintain both day and night shifts with employees on each drawing substantially increased overtime pay 22 See Galax Apparel Corp 247 NLRB 159 (1980) and Southland Paint Co 156 NLRB 22 32 (1965) affd in pertinent part 394 F 2d 717 (5th Cm 1968) 23 I find no merit in Respondent s contention that any Inference of un lawful motivation is dispelled by its failure to Include in the layoff other employees whom ( arguably ) it knew to have attended union meetings As stated in Nachman Corp v NLRB 337 F 2d 421 424 (7th Or 1964) it is established that a discnininatory motive otherwise established is not disproved by an employer s piloof that It did not weed out all union adherents Similarly the Inference is not negated even if others included in the layoff had no involvement with the Union Northwestern Publishing Co 144 NLRB 1069 fn 14 (1963) enfd 343 F 2d 521 (7th Or 1965) 24 See fn 16 848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Moreover I regard the criterion assertedly used in se lecting employees for layoff (i e least seniority in pn mary jobs) as nothing more than a device which Re spondent used to rid itself of employees perceived as likely to side with the Union some of whom (e g Gray Hrapeck and Rushing) had significant seniority in relation to other employees based on dates of hire and were on the job before Respondent began hiring to ac commodate barge traffic In this matter I decline to credit the claim that it merely acted in accord with past policy No records were produced to support that claim and it appears at odds with other evidence showing that early in 1981 it had allowed a number of employees to volunteer for layoff and that the actual work performed by individual employees often had little or no connection with their primary jobs I conclude that Respondent has not met its Wright Line burden as to any of the seven alleged discnmina tees CONCLUSIONS OF LAW 1 By discriminatorily laying off Jimmie Wayne Belt Edward Tabor James Rushing James R Edwards Dennis Hrapeck Charles Dale Conger and Steve Gray because they supported or were perceived to have sup ported the Union Respondent engaged in an unfair labor practice within the meaning of Section 8(a)(1) and (3) of the Act 2 By coercively interrogating Jimmy Wayne Belt Steve Gray and Robert Anderson concerning their own or other employees support of the Union Respondent engaged in an unfair labor practice within the meaning of Section 8(a)(1) of the Act 3 By threatening to eliminate its truckdriving and bag ging operations to subcontract out its stripping oper ations and to discharge anyone having anything to do with the Union if employees selected the Union as their bargaining agent Respondent engaged in an unfair labor practice within the meaning of Section 8(a)(1) of the Act 4 By promulgating and maintaining in effect an unduly broad prohibition against discussion of the Union on its premises Respondent engaged in an unfair labor practice within the meaning of Section 8(a)(1) of the Act 5 The aforesaid practices affect commerce within the meaning of Section 2(6) and (7) of the Act 6 Except as found herein Respondent is not shown to have violated the Act in regard to any other matter al leged in the complaint and as it relates to those other matters the complaint is hereby dismissed THE REMEDY Having found that Respondent has engaged in unfair labor practices I find it necessary to order it to cease and desist therefrom and from further infringing upon employee rights in any like or related manner and to take certain affirmative action designed to effectuate the policies of the Act Such affirmative action will include an offer to reinstate the seven above named employees to their former positions (or to substantially equivalent jobs in the event those positions no longer exist) and to make them whole for any loss of earnings or other benefits they may have suffered as a result of the discriminations practiced against them in accordance with the principles set forth in F W Woolworth Co 90 NLRB 289 (1950) and Florida Steel Corp 231 NLRB 651 (1977) see gener ally Isis Plumbing Co 138 NLRB 716 (1962) On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed25 ORDER The Respondent Fredonia Valley Quarries Inc Fre donia Kentucky its officers agents successors and as signs shall 1 Cease and desist from (a) Placing on permanent layoff or otherwise discrimi nating against employees for supporting Teamsters Local 236 or any other union (b) Coercively interrogating employees concerning their own or other employees union sentiments and ac tivities (c) Threatening any employee with economic sanc tons or other retaliatory actions for supporting Team sters Local 236 or any other union (d) Promulgating maintaining or enforcing an overly broad rule against union organizational activity on its premises (e) In any like or related manner interfering with re straining or coercing employees in the exercise of the rights guaranteed them by the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Offer to Jimmy Wayne Belt Edward Tabor James Rushing James R Edwards Dennis Hrapeck Charles Dale Conger and Steve Gray if it has not already done so immediate and full reinstatement to their former job or if that job no longer exists to substantially equivalent positions without prejudice to their seniority or any other rights or privileges previously enjoyed and make them whole for any loss of pay they may have suffered by reason of Respondent s action in placing them on per manent layoff in the manner set forth in the section of this decision entitled The Remedy (b) Rescind all adverse personnel actions issued to the above named employees as a result of the discrimination here found to have been practices against them and ex punge from Respondent s records any reference thereto and notify said employees in writing that such actions have been accomplished and that the expunged material will not be used as a basis for future personnel actions against them See Sterling Sugars 261 NLRB 472 (1982) (c) Preserve and on request make available to the Board or its agents for examination and copying all pay roll records social security payment records timecards personnel records and reports and all other records nec 25 If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all pur poses FREDONIA VALLEY QUARRIES 849 essary to analyze the amount of backpay due under the terms of this Order (d) Post at its facility in Fredonia Kentucky copies of the attached notice marked Appendix 26 Copies of the notice on forms provided by the Regional Director for Region 9 after being signed by the Respondent s author ized representative shall be posted by Respondent imme diately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where no tices to employees are customarily posted Reasonable steps shall be taken by Respondent to ensure that the no tices 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 Respondent has taken to comply " If this Order is enforced by a Judgment of a United States Court of Appeals the words in the notice reading Posted by Order of the Na tonal Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation al Labor Relations Board APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or dered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form join or assist any union To bargain collectively through representa lives of their own choice To act together for other mutual aid or protec tion To choose not to engage in any of these pro tected concerted activities WE WILL NOT discourage membership in a labor orga nization by placing on permanent layoff or otherwise discrminating against any employee because he or she decides to join assist or otherwise speak out for repre sentation by a union WE WILL NOT coercively interrogate any employee concerning his or her union sentiments and activities or those of any other employee WE WILL NOT threaten any employee with economic sanctions and other retaliatory actions for seeking to be represented by Teamsters Local 236 or any other union WE WILL NOT promulgate maintain or enforce an overly broad rule prohibiting solicitation of support for union representation or other activities on behalf of a union on company premises WE WILL NOT in any like or related manner interfere with restrain or coerce our employees in the exercise of the rights set forth above WE WILL offer Jimmie Wayne Belt Edward Tabor James Rushing James R Edwards Dennis Hrapeck Charles Dale Conger and Steve Gray immediate and full reinstatement to their former job or if that job no longer exists to substantially equivalent positions without prej udice to their seniority or any other rights or privileges previously enjoyed and WE WILL make them whole for any loss of pay that they may have suffered by reason of our discnmination against them with interest FREDONIA VALLEY QUARRIES INC