Addington, Inc.

National Labor Relations Board - Board Decisions

Apr 30, 1998

325 N.L.R.B. 702 (N.L.R.B. 1998)

702
325 NLRB No. 129
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 No exceptions have been filed to the judge’s findings concerning
the alleged violations of Sec. 8(a)(1) of the Act, nor to his finding
that the Respondent did not violate Sec.8(a)(3) in refusing to recall
Larry Stacy.
2 We have modified the recommended Order to include the
Board’s narrow cease-and-desist provision, which the judge inadvert-
ently omitted.
In accord with Excel Container, Inc., 325 NLRB No. 14 (Nov. 7,
1997), we shall change the date in par. 2(a) of the recommended
Order from July 21, 1995, to April 1, 1995, the approximate date
of the first unfair labor practice.
3 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
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.’’ 1 All dates are in 1995 unless otherwise indicated.
Addington, Inc., a wholly-owned subsidiary of
Pittston Minerals Group and Larry Stacy.
Cases 9–CA–33102 and 9–CA–33604
April 30, 1998
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS LIEBMAN
AND BRAME
On August 29, 1997, Administrative Law Judge
Bruce D. Rosenstein issued the attached decision. The
General Counsel filed limited exceptions and a sup-
porting brief. The Respondent filed an answering brief.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order as
modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent,
Addington, Inc., a wholly-owned subsidiary of Pittston
Minerals Group, Hazard, Kentucky, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order as modified.
1. Insert the following as paragraph 1(c).
‘‘(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.’’
2. Substitute the following for paragraph 2(a).
‘‘(a) Within 14 days after service by the Region,
post at its Hazard, Kentucky facility copies of the at-
tached notice marked ‘Appendix.’3 Copies of the no-
tice, on forms provided by the Regional Director for
Region 9, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in
conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of
business or closed the facility involved in these pro-
ceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current
employees and former employees employed by the Re-
spondent at any time since April 1, 1995.’’
David Ness, Esq., for the General Counsel.
Forest H. Roles, Esq. and Mark Heath, Esq., of Charleston,
West Virginia, for the Respondent.
Timothy Walker Esq., of London, Kentucky, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
BRUCE D. ROSENSTEIN, Administrative Law Judge. This
case was tried in Hazard, Kentucky, on April 30 through
May 2 and June 10, 1997, pursuant to a consolidated com-
plaint and notice of hearing (the complaint) issued by the Re-
gional Director for Region 9 of the National Labor Relations
Board (the Board) on April 10, 1996. The complaint is based
on an original charge in Case 9–CA–33102 filed on July 21,
1995,1 and an amended charge filed on November 13, by
Larry Stacy (Stacy or the Charging Party) and a charge in
Case 9–CA–33604 filed by Stacy on February 14, 1996.
Both charges allege that Addington, Inc., a wholly-owned
subsidiary of Pittston Minerals Group (the Respondent or
Employer) has engaged in certain violations of Section
8(a)(1) and (3) of the National Labor Relations Act (the
Act).
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by all parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a corporation engaged in the operation
of coal mines in the Commonwealth of Kentucky, where it
annually sold and shipped from its Kentucky facilities goods
valued in excess of $50,000 directly to points outside the
Commonwealth of Kentucky.
The Respondent admits and I find that it is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act and that the United Mine Workers
of America, AFL–CIO (the Union) is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
In 1994, Pittston Minerals Group acquired the Respondent
and it became a wholly owned subsidiary of that organiza-
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703ADDINGTON, INC.
2 The General Counsel moved to amend par. 4 of the complaint
on the first day of the hearing, after giving advance notice to the
Respondent, to include three independent violations of Sec. 8(a)(1)
of the Act. I permitted the amendments, over the objections of Re-
spondent, but granted additional time for the Respondent to prepare
its defense. As it concerns Dencil Arnett, the Respondent presented
his testimony when the parties reconvened on June 10, 1997.
tion. In March 1995, the Respondent was composed of four
surface mine operations: the University of Kentucky (UK 1
and UK 2); surface mines; a facility in Dundis, Ohio; and
the Bubba Branch operation in Knott County, Kentucky. The
two main customers of the UK operation in early 1995 were
Kentucky May Coal Company (Kentucky May) who had a
contractual agreement to take 85,000 tons of coal each month
and the American Electric Power Corporation (AEP) at Big
Sandy Power Plant who contracted for 45,000 tons of coal
per month. Projected coal production at the UK complex dur-
ing the early part of 1995 was 200,000 tons per month with
the remaining coal not designated for the above-noted cus-
tomers to be sold on the spot market.
At all material times, Edwin Newell held the position of
president and George Owens as manager of human resources
for Respondent. James Campbell and James Spurlock held
the positions of vice president for operations and human re-
sources for Pittston Coal Company and Dencil Arnett and Ed
Lewis held the positions of superintendent for Respondent at
the UK complex.
Larry Stacy and Ben Miller were the spokespersons for the
day- and night-shift employees.
B. Union Organizing
In April and May 1994, employees Miller and Timothy
Bush started to organize on behalf of the Union. Approxi-
mately 35 authorization cards were signed and returned to
Miller. Former Night-shift Foreman Ricky Howard credibly
testified that he was aware of ongoing union organizing ac-
tivity in early May 1994, and during that time he went to
a meeting with Respondent’s president, Newell, and a guy
introduced as a ‘‘union buster’’ from Chicago. During the
meeting Newell asked Howard to get the names of the em-
ployees that had signed union cards. Newell also told How-
ard that the employees that signed union cards were trouble-
makers. In a second meeting with Newell several nights later,
Newell again requested Howard to provide the names of the
employees that signed union cards and gave Howard a tele-
phone number to report any employees who signed union
cards. Newell also asked Howard whether Ben Miller or his
brother Carl had signed union cards.
The union organizing activity began to slack off during the
summer of 1994. Commencing in April 1995, the union or-
ganizing activity resumed and additional union cards were
signed by day-shift employees. The union cards signed by
employees in 1994, which had become stale, were also recer-
tified at that time.
Superintendent Ed Lewis testified that he was aware of
union organizing activity in April 1995 while Newell testi-
fied that no union buster from Chicago was present in any
conversation he ever had with Howard, he never specifically
denied that the above conversations with Howard did not
occur nor that the subject of the union was discussed.
C. The 8(a)(1) Violations2
1. Allegations concerning Dencil Arnett
The General Counsel alleges that in late May or early June
1995, Superintendent Arnett, while at the UK mine facilities
threatened an employee that Respondent would close its
mine and that employees would lose their jobs in retaliation
for engaging in activities on behalf of the Union.
Employee Joe Edward Bush testified that while he held the
position of a parts runner he had a conversation with Arnett
inside his trailer office. During this one-on-one conversation,
which primarily concerned hunting and fishing, Arnett said,
‘‘If we signed the Union card, they would shut the job
down.’’
Arnett left the employ of Respondent on or about May 26,
but acknowledged that during his tenure, he worked from a
small office located in a trailer on the premises of the UK
complex.
Arnett admitted that he and Bush were friends and they
had gone deer hunting together on several occasions since
February 1994, the date Arnett commenced employment.
The general test applied to determine whether employer
statements violate Section 8(a)(1) of the Act is ‘‘whether the
employer engaged in conduct which reasonably tends to
interfere with, restrain, or coerce employees in the free exer-
cise of rights under the Act.’’ NLRB v. Aimet, Inc., 987 F.2d
445 (7th Cir. 1993); Reeves Bros., 320 NLRB 1082 (1996).
Although Arnett denies that he made the statement im-
puted to him, he admits that during his employment he did
have numerous conversations with Bush. I credit Bush’s tes-
timony because at the time of the conversation he and Arnett
were friends, the conversation occurred during a time when
union organizing activity was ongoing at the mine, and rep-
resentatives of the Respondent had knowledge of the employ-
ees union activity. Moreover, Bush testified in a clear and
convincing manner and had a better recollection of the con-
versation. Lastly, I find as Arnett was in the midst of leaving
his employment at Respondent in late May 1995 the state-
ment was made to warn his friend about job security if he
supported the Union.
In sum, I find that Arnett’s statement tended to coerce em-
ployees in the exercise of their Section 7 rights and find that
it violates Section 8(a)(1) of the Act. See TSJ Trucking Co.,
316 NLRB 771 (1995) (threatening plant closure).
2. Allegations concerning Edwin Newell
The General Counsel alleges that about March or April
1995 Respondent, by Edwin Newell, interrogated an em-
ployee regarding his union membership, activities, and sym-
pathies and threatened an employee that employees would
lose their jobs in retaliation for engaging in activities on be-
half of the Union.
Joe Edward Bush testified that he had a conversation with
Newell in the UK 2 parking lot and Ed Lewis was also
present. During this conversation, Newell asked Bush what
he thought about the Union. Bush said that he did not know.
Newell said, ‘‘If you sign a union card, Pittston will shut the
job down and we will lose our job.’’
Newell testified that he never had a conversation with
Bush about the subject of unions at any time. Ed Lewis, who
testified during the hearing, did not deny that such a con-
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704 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
versation took place or that Newell did not make the state-
ment imputed to him. Rather, when Lewis testified, he stated
that he never said that if the Union came in here that Pittston
will shut it down (Tr. 498).
I conclude that Newell made the statement imputed to him
in March or April 1995. I reach this conclusion for a number
of reasons. First, I find that in May 1994 Newell was con-
cerned about union organizing activity at the UK mine and
interrogated one of his foreman about who had signed union
authorization cards. He also stated that any employees that
signed union cards were troublemakers. Thus, Newell pre-
viously engaged in similar conduct as alleged in the subject
complaint. Second, I find suspicious that Ed Lewis, who I
found to be a credible witness and who admitted that he was
aware of employees’ union organizing activity before June
1995, was not asked nor did he testify about a conversation
that he was present at and involved his boss. Lastly, I find
that Bush’s testimony during the course of the hearing has
a ring of truth to it, in both his recollections of the conversa-
tion with Newell as well as the conversation with Arnett.
In sum, I find that Newell made the statement to Bush and
conclude that it tends to coerce employees in the exercise of
their Section 7 rights and therefore violates Section 8(a)(1)
of the Act.
3. Allegations concerning Ed Lewis
The General Counsel alleges that about June 16 Respond-
ent, by Superintendent Ed Lewis at the entrance to the UK
mine property, threatened employees that Respondent would
close its mine in retaliation for engaging in activities on be-
half of the Union and informed employees that it would be
futile for them to select the Union as their collective-bargain-
ing representative.
Employee Timothy James Bush testified that he overheard
a conversation between fellow employee Larry Stacy and Su-
perintendent Lewis around June 16, wherein Stacy told
Lewis that the employees were signing cards and organizing.
According to Bush, Lewis replied, ‘‘[T]hat in his personal
opinion, the Union wouldn’t never work here, they’d shut it
down first.’’ Bush testified that he has trouble reading and
writing but immediately after the conversation he made some
notes and several days later his girlfriend prepared a more
complete statement. Neither Bush’s notes nor those of his
girlfriend were introduced into evidence. Stacy testified about
this conversation and confirmed that he told Lewis that the
men were signing union cards. According to Stacy, Lewis
said, ‘‘You have to do what you have to do.’’
Lewis admitted on direct examination that he had a con-
versation with Stacy in June 1995, in which Stacy apprised
him that the men were organizing and signing union cards.
He responded that, it did not matter to him, ‘‘The men could
do whatever they had to do and we had to do what we had
to do.’’
When comparing the versions of the conversation among
the three individuals, the testimony of Stacy and Lewis is al-
most identical. There is no mention of closing the mine or
that it would be futile for employees to select the Union as
their collective-bargaining representative. While the testi-
mony of Bush is closer to the allegations alleged by the Gen-
eral Counsel, I do not find that Bush’s recitation of the con-
versation establishes a violation of the Act. First, according
to Bush, Lewis prefaced his statement with the words ‘‘in
my opinion.’’ Such a statement would be privileged under
Section 8(c) of the Act. Second, I did not find Bush to be
a reliable witness due to his difficulties with the written
word. I am suspect of what he wrote immediately after he
heard the conversation between Stacy and Lewis as it does
not comport with the testimony of Stacy and Lewis. Indeed,
not only were those notes not offered into evidence but his
girlfriends notes were also not introduced into the record.
In sum, I find that Lewis was a credible witness who can-
didly admitted that Stacy apprised him that the men were en-
gaging in union organizing activities. Likewise, Stacy’s ver-
sion of the conversation is almost identical to that as de-
scribed by Lewis and neither description is violative of the
Act. Lastly, Respondent witnesses Samuel Billiter, Wayne
Keaton, and Homer Henshaw, who all were present during
the June 16 conversation, did not hear Lewis make any state-
ments about closing the mine because of the employees’
union activities or that it would be futile to select the Union
as the employees’ collective-bargaining representative.
Under these circumstances, I find that the General Counsel
has not conclusively established that the Respondent, by
Lewis, violated Section 8(a)(1) of the Act and I recommend
that this allegation be dismissed.
D. The 8(a)(1) and (3) Violations
1. Events leading to the change in work schedule
The UK mine operation was losing money for the first 4
months of 1995. The cost statement for the period January
through April 1995 shows loses of $2,224,000. In March
1995, the projected coal production was a little over 200,000
tons per month with Kentucky May scheduled to take 85,000
tons; AEP, 45,000 tons; and the remaining 70,000 tons of
coal was targeted for the spot market. A number of factors
impacted on this projection. First, because the price of coal
had dropped off, the spot market began to dry up. Addition-
ally, due to business reverses at Kentucky May, they did not
purchase their full contractual tonnage during the first 4
months of 1995. Rather than accepting 85,000 tons of coal
each month, Kentucky May took an average of 40,000 tons
per month.
In April 1995, the Respondent began to evaluate a number
of different scenarios on how to operate the mine in a profit-
able fashion. It was ultimately decided to go to a four-on,
four-off work schedule. As part of this decision, it was de-
cided to combine UK 1 and 2 and run the mine as one com-
plex to obtain maximum efficiency. The new work schedule
contemplated four different crews for mining coal and the
mine would be operated 7 days a week. One crew would
work the day shift 4 days a week and one crew would work
the night shift 4 days a week. Then, the other two crews
would come in on the day shift and night shift and work 4
days. By going to this system and working the equipment 7
days a week, it was projected that the volume of coal output
would increase thus reducing the fixed cost per ton, the
amount of equipment needed to operate the mine would be
reduced considerably, and it would reduce the amount of
overtime paid which would lower the labor cost per ton. The
work schedule for the first 4 months of 1995 consisted of
employees working two 10-hour shifts, 5 days a week, with
occasional work on Saturdays. During this period, the em-
ployees worked 10 hours of regularly scheduled overtime.
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705ADDINGTON, INC.
With the projected change in the shift schedule, the 10 hours
of regularly scheduled overtime would be eliminated, result-
ing in a substantial reduction of pay for the employees.
In April 1995, Superintendent Dencil Arnett conducted in-
dividual meetings with the employees prior to the implemen-
tation of the four-on, four-off work schedule. He told the em-
ployees that if the job shut down quite a few individuals
would be laid off. By going to the new work schedule, over-
time earnings would be cut and very few, if any, people
would be laid off. After these meetings, the four-on, four-off
work schedule was implemented on May 1. Arnett asked for
volunteers to initially work the period of 4 days off while
Respondent was in the process of hiring additional workers
in order to man the 7-day operation. A number of employees
worked the additional hours so that the full impact of the re-
duced overtime and loss of earnings did not appear until the
receipt of the third paycheck on June 9.
2. Events concerning Kentucky May
Michael J. Quillen, president of American Eagle Coal
Company, the sales brokerage company that markets and
sells coal for Respondent, credibly testified that during the
first 4 months of 1995 Kentucky May continually fell behind
and did not purchase the contractual allotment of 85,000 tons
of coal per month. Accordingly, in early April 1995, Quillen
sent a letter of complaint to Kentucky May concerning their
not taking the contractual allotment of coal.
Additional letters were exchanged between the parties
without resolution. On or about April 10, Lawrence Meade
Jr. became president of Kentucky May. After extensive nego-
tiations between Quillen and Meade including the threat of
legal action by Respondent, it was agreed in late May 1995
that due to Kentucky May securing substantial spot business
on the open market it would contract to take delivery from
Respondent for June, July, and August 1995, 116,000 tons of
coal which would help make up the tonnage shortfall from
the previous 5 months. Under this contractual arrangement,
Respondent immediately began shipping 8000 tons of coal
each day to Kentucky May.
3. The strike of June 13
Employee Ben Miller finished work at 5 a.m. on June 13
and observed employees picketing at several entrances to the
UK complex. In a conversation with Superintendent Ed
Lewis on the morning of June 13 at the picket line, Miller
told Lewis that the employees went on strike because of un-
safe work conditions and the reduction of pay in their most
recent paycheck.
Respondent’s president, Newell, learned about the strike
while he was on vacation. He immediately flew back to
Pittston’s Lebanon office and met with Vice President of Op-
erations James Campbell. It was initially decided that Re-
spondent would not negotiate with the pickets until they re-
turned to work.
During the first day of the strike, Manager of Human Re-
sources George Owens and Superintendent Lewis met with
the strikers on several occasions and were told that the pri-
mary reason the employees went on strike was as a result of
going to the four-on, four-off work schedule which nega-
tively impacted them financially. During these conversations
with the employees on the picket line, Owens told them that
the mine was losing money, the strike would not accomplish
anything, and the Respondent would not negotiate or talk
about the issues until they returned to work.
On June 13, Joe H. Miller, who worked as a supervisor
for Task Trucking, came to the mine to pick up coal and de-
liver it to Respondent’s customers. Miller was stopped at the
picket line and talked with Larry Stacy who he knew as
Redbud. Stacy gave Miller permission to cross the picket line
and asked him to deliver a piece of paper to Superintendent
Lewis which contained the economic demands of the em-
ployees. Miller took the paper, read it, and went over the list
of demands with the pickets. He made notes on the paper,
including the words no firing after the strike is settled and
all employees could return to work. Miller took the paper
back to the mine office and explained the pickets demands
to Lewis. Option 1 provided that the pickets did not want
anybody fired and a demand to work four 12-hour shifts with
each employee receiving a raise to $13 an hour. Option 2
called for overtime to be paid for all work over 8 hours in
a day and time and a half for all work over 40 hours. Addi-
tionally, the pickets sought a $2-an-hour increase for every-
body.
Newell returned to work on June 19 and the Respondent
decided that no pay increase would be given since the pur-
pose of going to the four-on, four-off work schedule was to
reduce labor costs. Likewise, it was agreed that no replace-
ment workers would be brought in to run the mine because
of potential violence. Rather, it was decided to keep the fore-
man working their normal day- and night-shift schedules.
During the initial stages of the strike, the supervisors did se-
curity work. Thereafter, they started hauling stockpiles of
coal to the wash plant, worked in the hollow fields, and com-
pleted reclamation work as required by the Commonwealth
of Kentucky. After the strike commenced, mine equipment
from the Bubba Branch operation that closed was transported
to the UK complex and used by the foreman in day-to-day
work operations. Likewise, coal was hauled from the mine
during the strike by contract truckers to fulfill the AEP ac-
count at Big Sandy Power Plant and stockpiled coal was sold
on the spot market when possible.
4. The strike’s impact on Kentucky May
Several days after the commencement of the June 13
strike, Quillen called Kentucky May President Meade and in-
formed him that because of a labor dispute the Respondent
would be unable to provide the previously agreed on 116,000
tons of coal per month for the foreseeable future. Meade told
Quillen that the Respondent had an obligation to supply the
coal because Kentucky May had gone out and obtained addi-
tional spot orders at a low price to make up the tonnage that
they agreed to take from Respondent. While the parties
agreed to disagree over the terms of their contractual agree-
ment, negotiations ensued and an agreement was reached
wherein Kentucky May relieved itself of the obligation to
purchase the 116,000 tons of coal for June, July, and August
1995, and the Respondent was relieved of its obligation to
supply the tonnage. It was further agreed that even if the
labor dispute was resolved and the employees returned to
work prior to August 1995 Kentucky May did not have to
accept the contractually agreed-upon tonnage from the Re-
spondent.
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706 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 There is no dispute that the employees engaged in a protected
strike. While the General Counsel and the Charging Party maintain
5. Events leading to the June 21 layoff
Vice President James Campbell testified that after the June
13 strike it was determined that going to the four-on, four-
off work schedule caused a reduction in wages and precip-
itated the strike. Campbell and other high level Respondent
officials concluded that in face of substantial monetary losses
for the first 5 months of 1995 they could not meet the strik-
ers’ demands to return to the prior work schedule and grant
a wage increase. Likewise, the strike caused Respondent to
lose its chief customer and the capability of supplying
116,000 tons of coal for the next 3 months. Accordingly, on
June 19, Campbell recommended to the president of Pittston
Minerals Group that the job be shut down and not reopened
until a better market for coal sales occurred. This rec-
ommendation was accepted by the president on the morning
of June 21 in a meeting attended by James Spurlock, James
Campbell, and Mike Quillen.
On June 21, Manager of Human Resources George Owens
was delegated the responsibility of preparing a letter to all
of Respondent’s employees at the UK complex that they
would be permanently laid off because it was not known
when the operation would resume. Such a letter was sent and
received by Respondent’s employees.
6. The June 26 meeting
Employees Andy Hayes, Roy Dean Combs, and David
Jones requested a meeting with Respondent’s officials to in-
quire about the possibility of ending the strike and returning
to work. The meeting occurred on June 26 at the Holiday Inn
in Norton, Virginia. James Campbell, Edwin Newell, James
Spurlock, and George Owens attended on behalf of Respond-
ent.
At the inception of the meeting, Campbell informed the
employees that economics caused the shutdown of the mine
and it was unknown when the mine would reopen. Campbell
told the employees that the mine was losing money and it
was decided to go to the four-on, four-off work schedule to
save money and avoid laying off a lot of people. The em-
ployees were shown computer printouts confirming that the
mine had lost in excess of $2 million during the first 5
months of 1995. In response to a question from the employ-
ees why they were laid off, Campbell said it was not because
of the strike but due solely to economics.
The meeting ended without any resolution of the strike or
a determination when the mine would reopen.
7. The July 14 meeting
Employee Larry Stacy telephoned James Campbell and re-
quested that another meeting be held to discuss the situation.
A meeting was held on July 14 at Respondent’s Hazard of-
fice. Employees Stacy and Ben Miller attended while Re-
spondent was represented by the same individuals who at-
tended the June 26 meeting.
Campbell told the employees that the mine had lost money
and orders but if new orders could be found the mine might
reopen. He offered to give Stacy and Miller copies of Re-
spondent’s financial statements and invited the men to retain
their own accountants to review the books. The employees
were further told that the mine had lost in excess of $2 mil-
lion during the first 5 months of 1995 and that the fixed
costs of rental equipment at the mine were in excess of
$130,000 per month. Campbell also explained that the Re-
spondent went to the four-on, four-off work schedule to be-
come economically viable and to keep from laying off a lot
of people.
During the course of the meeting when the subject of safe-
ty was mentioned, Campbell told the employees that he took
that subject very seriously and Stacy commented that since
the Respondent had obtained a full-time safety inspector,
things had gotten better. Campbell also informed the employ-
ees that the foremen were performing reclamation work and
were shipping stockpiled high wall miner coal to the AEP
account and small spot market customers. Miller had no ob-
jections to the Respondent hauling stockpiled coal or mining
equipment off the premises.
Campbell informed Stacy and Miller that some violence
occurred on July 5, and a window of a vehicle was broken.
Both Stacy and Miller denied any involvement with this inci-
dent.
The meeting ended without any resolution of the strike or
a timetable for reopening the mine.
8. The reopening of the mine
The employees continued to picket at the UK complex
from the inception of the strike to the end of November
1995. Indeed, all employees continued to be permanently laid
off during this time period.
In November and early December 1995, Respondent and
AEP entered into negotiations to increase the tonnage pres-
ently supplied to the Big Sandy Power Plant. It was agreed
that, effective in January 1996, AEP would increase its
present tonnage of 45,000 to around 80,000 tons of coal per
month at the contract price which was $2 to $2.50 better
than the current spot price. In addition, Respondent was able
to obtain a spot sale for high sulfur Hazard 9 coal.
With production anticipated to increase to around 90,000
tons of coal per month, Respondent determined that it would
be economically feasible to reopen the mine in January 1996.
The Respondent hired a number of former hourly employees
through a contractor to do preliminary work before the mine
was officially reopened. Employees were obtained in this
fashion rather than being brought back under the Respond-
ent’s hiring procedures because it would reduce the amount
of paperwork and the requirement to complete physical ex-
aminations. All former employees who were permanently
laid off on June 21 were offered reemployment except Larry
Stacy who engaged in picket line violence and misconduct.
Vacant positions were filled in accordance with Respondent’s
needs for specific job titles based on the seniority of the men
in those jobs. All employees that desired reemployment com-
menced work at the UK complex during various dates in Jan-
uary 1996.
9. The refusal to recall Larry Stacy
Larry Stacy started work for one of Respondent’s prede-
cessors in January 1987. He worked at a number of Re-
spondent’s mines between 1987 and 1992 and then com-
menced work at the UK mine as a dozer operator. At the
commencement of the strike on June 13, Stacy was a grader
operator on the day shift.3 He was elected the spokesperson
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707ADDINGTON, INC.
that the strike was called to protest a reduction in pay and unsafe
working conditions, the Respondent takes the position that the strike
was called solely to protest the employees’ reduction in pay.
for the day-shift employees after the strike began and rep-
resented the day-shift workers at the July 14 meeting in the
Respondent’s Hazard office. Stacy was the only employee
not offered reinstatement when the mine reopened in January
1996, because of strike misconduct.
The General Counsel alleges in paragraph 6 of the com-
plaint that Stacy was not reinstated, recalled, or rehired, not-
withstanding its recall of all other employees, because Stacy
engaged and participated the June 13 strike or because he
formed, joined, or assisted the Union and engaged in con-
certed activities. The Charging Party, in addition to the
above position, asserts that Stacy was not rehired or recalled
to work because of his active role in the strike and his status
as spokesperson for the day-shift employees.
The date of the violence and picket line misconduct took
place on July 5. Stacy testified on direct examination that he
could not remember whether he was at the picket line on
July 5, but stated that he did not on July 5 or on any other
occasion throw any rocks or other objects at vehicles enter-
ing or leaving the UK complex. He also responded in this
fashion at the July 14 meeting when asked about the incident
by James Campbell.
Contrary to the position of the General Counsel and the
testmony of Stacy, the Respondent asserts that Stacy was at
the picket line on July 5 and threw rocks at a supervisor’s
vehicle, breaking the glass of the back window and damag-
ing the left rear quarter panel. To support this position, the
Respondent introduced into evidence a videotape taken on
July 5 and the testmony of two witnesses.
James Lee Brogan, the owner of Mountaineer Investigation
and Security Incorporated, was employed by Respondent to
provide security for the UK complex between the commence-
ment of the strike on June 13 and September 10. On the
morning of July 5, Brogan arrived at the UK complex around
4 a.m., and when he came through the picket line he was
threatened with a baseball bat by Redbud (Stacy). Brogan
then proceeded to a hill approximately 1100 feet from the
front gate and joined one of his employees who was sta-
tioned there to film the pickets as they came through the
front gate and while they patrolled the picket line. On July
5 at 6:20 a.m., the video depicted a vehicle moving through
the picket line and one of the pickets throwing a rock in the
direction of the vehicle. After the rock was thrown, Brogan
personally inspected the damage to the vehicle and learned
that it was a Ford Bronco belonging to Supervisor Ron
Wheeler. Brogan saw damage to the left fender and the back
glass window was broken. He also observed a rock on the
floor of the vehicle. He took pictures of the damage and pro-
vided the developed pictures and the videotape to the Re-
spondent.
Michael E. Ohlson, an employee, commenced work at the
UK complex on March 3 and got to know Larry Stacy dur-
ing his employment. On July 5, around 6:20 a.m., he was on
his way to work and as he was pulling into the entrance to
gate 1 about 40–50 feet behind Ron Wheeler’s white Ford
Bronco, Ohlson heard the sound of breaking glass. He imme-
diately looked up, while in the process of turning into the
property, and observed Larry Stacy and another employee
standing against a big sign and saw Stacy bring his arm back
and throw a rock in the direction of Wheeler’s vehicle. After
he got to the guard’s location, Wheeler and Ohlson checked
the Bronco and Ohlson saw that the back glass was broken
and there was a dent on the left rear quarter panel. In Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982), the Board an-
nounced the following causation test all cases alleging viola-
tions of Section 8(a)(3) or violations of Section 8(a)(1) turn-
ing on employer motivation. First, the General Counsel must
make a prima facie showing sufficient to support the infer-
ence that protected conduct was a ‘‘motivating factor in the
employer’s decision.’’ On such a showing, the burden shifts
to the employer to demonstrate that the same action would
have taken place even in the absence of the protected con-
duct. The United States Supreme Court approved and adopt-
ed the Board’s Wright Line test in NLRB v. Transportation
Management Corp., 462 U.S. 393, 399–403 (1993). In
Manno Electric, 321 NLRB 278 fn. 12 (1996), the Board re-
stated the test as follows. The General Counsel has the bur-
den to persuade that antiunion sentiment was a substantial or
motivating factor in the challenged employer decision. The
burden of persuasion then shifts to the employer to prove its
affirmative defense that it would have taken the same action
even if the employee had not engaged in protected activity.
For the following reasons, I find that the General Counsel
has not made a strong showing that the Respondent was mo-
tivated by antiunion consideration in not recalling or reinstat-
ing Larry Stacy. Even if this was not the case, I find that
the Respondent would have taken the same action even if the
employee had not engaged in protected activity. First, no evi-
dence was presented that Stacy was actively involved in the
union organizing campaign in May 1994 or April 1995 un-
like employees Ben Miller and Timothy Bush. Significantly,
both Miller and Bush were recalled to work in January 1996.
Second, while it is acknowledged that Stacy was selected as
the spokesperson for the day-shift employees after the com-
mencement of the strike and attended the July 14 meeting
with high level officials of Respondent at the Hazard office,
the same was true for employee Miller who was selected the
spokesperson for the night-shift employees and also attended
the July 14 meeting. I find that neither Stacy’s union activi-
ties or his participation in the strike was in any way related
to the Respondent’s decision not to recall him to work at the
UK complex in January 1996. Rather, I find that Stacy’s in-
volvement in strike misconduct was the sole reason he was
not recalled or reinstated at the UK complex.
It is noted that absent legitimate business reasons an em-
ployer must reinstate striking employees at the termination of
certain strikes. General Chemical Corp., 290 NLRB 76, 82
(1988). A refusal to reinstate may be justified by showing
that an employee was guilty of serious picket line mis-
conduct. Clear Pine Mouldings, 268 NLRB 1044, 1046
(1984), enfd. 765 F.2d 148 (9th Cir. 1985), cert. denied 474
U.S. 1105 (1986). Initially, the employer has the burden of
demonstrating the existence of an honest belief that a striking
employee engaged in such misconduct. General Chemical
Corp., supra. Once such a belief has been demonstrated, the
burden shifts to the General Counsel to prove that the em-
ployee was not engaged in the alleged misconduct or that the
misconduct was not sufficiently serious to forfeit the Act’s
protection. Axelson, Inc., 285 NLRB 862, 864 (1987).
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708 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4Numerous employees filed complaints against Respondent pursu-
ant to Sec. 105(c)(2) of the Federal Mine Safety and Health Act of
1977 (Mine Act) alleging that they were permanently laid off be-
cause of complaining about alleged danger, safety, or health viola-
tions at the UK mine. These allegations were investigated by the
Mine Safety and Health Administration (MSHA), U.S. Department
of Labor and found to be without merit (R. Exh. 19).
5 The Respondent argues that the underlying findings of MSHA
should be deferred to under the 1979 Memorandum of Understand-
ing Between the Mine Safety and Health Administration and the
General Counsel of the Board, concerning cases arising under Sec.
105(c) of the Mine Act. In light of my conclusion above that the
June 13 strike and the June 21 layoff were unrelated to or under-
taken because of employee complaints about unsafe working condi-
tions, it is not necessary to make such a finding.
6 Each of the employees that attended the June 26 nad July 14
meetings with Respondent representatives acknowledged that they
were provided graphs and financial figures showing that the Re-
spondent lost money for the first 5 months of 1995.
The Respondent did not recall or reinstate Stacy in January
1996, on the grounds that he threw rocks at a vehicle enter-
ing the premises on the morning of July 5. Ohlson personally
witnessed the incident and the misconduct was recorded by
Respondent’s videotape camera operators. Contrary to
Stacy’s testimony on cross-examination that he was not on
the picket line when the back window of Wheeler’s white
Ford Bronco was broken, both Ohlson and Brogan place him
at the picket line on the morning of July 5. I, therefore, find
that the Respondent possessed an honest belief that Stacy en-
gaged in the alleged misconduct and that Stacy actually en-
gaged in that misconduct. Throwing rocks at vehicles enter-
ing the UK complex constitutes misconduct sufficiently seri-
ous to justify an employer’s refusal to reinstate a striking
employee.
In sum, I find that the General Counsel did not establish
the allegations relating to Stacy in paragraph 6 of the com-
plaint, and recommend that they be dismissed.
E. Analysis
The General Counsel in paragraph 5 of the complaint al-
leges since about June 13, certain employees of Respondent
ceased work concertedly and engaged in a strike. In para-
graph 6 of the complaint, the General Counsel asserts that
about June 21, the Respondent permanently laid off and/or
discharged its striking employees because the employees en-
gaged and participated in the June 13 strike or because they
formed, joined, or assisted the Union and engaged in con-
certed activities.
The General Counsel and the Charging Party argue that
the employees went on strike for two reasons. The first rea-
son advanced was due to unsafe working conditions at the
UK mine and the second reason concerned the employees’
substantial reduction in wages due to going to the four-on,
four-off work schedule.
The Respondent does not dispute that the employees
ceased work concertedly and engaged in a protected strike.
Indeed, it discerned from conversations with the employees
on the first day of the strike that the substantial reduction of
wages precipitated the labor dispute. Respondent adamantly
denies, however, that the strike was undertaken due to unsafe
working conditions or that the employees were permanently
laid off in retaliation for making safety complaints.4
With respect to the employees engaging in the June 13
strike because of unsafe working conditions, there was no
evidence presented by the General Counsel to support this
position. While employees Ben Miller and Andy Hays testi-
fied that they went on strike in part because of unsafe work-
ing conditions at the mine, no examples or other evidence
was presented to establish the existence of unsafe working
conditions at the UK complex. Significantly, Larry Stacy
stated in the July 14 meeting at Respondent’s Hazard office
that since the Respondent had a full-time regular safety in-
spector things had gotten better since Pittston took over.
In sum, I conclude and find that the employees did not go
on strike to protest unsafe working conditions at the UK
complex nor were the employees permanently laid off on
June 21 because they protested about unsafe working condi-
tions at the UK mine.5
The General Counsel has also advocated the position that
the employees were permanently laid off on June 21 because
of retaliation for their having engaged in the June 13 strike
and/or because of union organizing activity. Contrary to this
assertion, Respondent argues that the employees were perma-
nently laid off on June 21 solely for economic reasons and
union organizing activities played no role in the decision to
effectuate the layoff.
For the following reasons, I find that the General Counsel
has not made a strong showing that the Respondent was mo-
tivated by antiunion considerations when it permanently laid
off the employees on June 21, either because they engaged
in the June 13 strike or because of union organizing activity.
Wright Line, supra. Even if this was not the case, I find that
the Respondent would have taken the same action even if the
employees had not engaged in protected activity.
First, it is undisputed that the UK operation had been los-
ing money for the first 4 months of 1995. Likewise, during
this period Kentucky May did not take its full allotment of
coal, the spot market for coal sales dried up, and the demand
and price for coal dropped. Accordingly, the Respondent
looked at different scenarios on how to operate the mine
more efficiently so it could make a profit. It was decided to
go to the four-on, four-off work schedule wherein the mine
would operate on a continuous 7-day schedule. As is perti-
nent here, by going to this schedule, it dramatically reduced
the amount of overtime paid which substantially lowered the
amount of wages paid to employees. This schedule was fully
implemented on May 1. Since it was necessary to gradually
increase the staff to accommodate this schedule, a majority
of the employees worked a number of their regularly sched-
uled 4 days off during the first month, so it was not until
the employees received their paychecks on June 9 that the
impact of substantially reduced wages became apparent. It
was shortly after this date that the employees called and en-
gaged in the June 13 strike. On or about this date, the finan-
cial figures for May 1995 became available and they show
that the Respondent lost an additional $798,000.6
Compounding the loss of approximately $3 million for the
first 5 months of 1995, was the inability due to the strike to
supply Kentucky May with 116,000 tons of coal for June,
July, and August 1995. Accordingly, high level Respondent
officials were faced with making a decision to meet the de-
mands of the strikers, hire replacement workers, or shut
down the mine until the coal market became profitable. Since
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709ADDINGTON, INC.
7 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
8 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
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.’’
Respondent could not afford to pay higher wages in face of
substantial monetary losses and was concerned about serious
violence if replacement workers were hired, it opted on June
21 to shut down the mine and permanently lay off the em-
ployees.
Under these circumstances, I conclude that the decision to
permanently lay off the employees on June 21 was solely for
economic reasons and was not undertaken to retaliate against
the employees for engaging in the June 13 strike. Armoured
Transport of California, 282 NLRB 850 (1987). Likewise, I
do not find the employees’ union organizing activity in 1995
caused the strike or led to the employees’ layoff on June 21.
In this regard, at the time of the strike the union organizing
had subsided, no representation petition was filed with the
Board, and no evidence was uncovered that the Respondent
mounted any campaign against the Union. While I earlier
found that Edwin Newell and Dencil Arnett interrogated an
employee about his union activities, I note that these con-
versations involved the same employee, were isolated, and
occurred well in advance of the strike. Moreover, other than
these two instances, the General Counsel did not introduce
any additional evidence concerning employee interrogation or
union organizing at a period remotely close in time to the
strike.
In conclusion, I do not find that the employees were per-
manently laid off and/or discharged because they engaged
and participated in the June 13 strike or because they
formed, joined, or assisted the Union and engaged in con-
certed activities. Accordingly, I recommend that paragraph 6
of the complaint be dismissed.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act by interrogating an
employee concerning his union sentiments and threatening to
shut the job down.
4. Respondent did not engage in unfair labor practices
within the meaning of Section 8(a)(1) and (3) of the Act by
permanently laying off and/or discharging its employees be-
cause the employees engaged and participated in a strike or
because they formed, joined or assisted the Union and en-
gaged in concerted activities.
5. The unfair labor practices described above affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended7
ORDER
The Respondent, Addington, Inc., a wholly-owned subsidi-
ary of Pittston Minerals Group, Hazard, Kentucky, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees concerning their union mem-
bership, sympathy, and activities.
(b) Threatening employees that the job will shut down in
retaliation for the employees’ union activities.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its
UK 1 and 2 mine facility in Hazard, Kentucky, copies of the
attached notice marked ‘‘Appendix.’’8 Copies of the notice,
on forms provided by the Regional Director for Region 9,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event that,
during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and mail,
at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent
at any time since July 21, 1995.
(b) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsible
official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT coercively interrogate our employees about
their union activities.
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710 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT threaten employees that the job will be shut
down in retaliation for their union activities.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
ADDINGTON, INC., A WHOLLY-OWNED SUB-
SIDIARY OF PITTSTON MINERALS GROUP
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