Belfry Coal Corp.

National Labor Relations Board - Board Decisions

Nov 19, 1962

139 N.L.R.B. 1058 (N.L.R.B. 1962)

1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Belfry Coal Corporation and Harold May, Willard Winchester.
Cases Nos. 9-CA-2560-1 and 9-CA-2560-3. November 19, 19620
DECISION AND ORDER
On August 21, 1962, Trial Examiner James V. Constantine issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and is engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. He also found that the Respondent had not engaged
in certain other unfair labor practices and recommended dismissal
of the complaint as to them. Thereafter, the Respondent filed excep-
tions to the intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and brief, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner,' with the following modifications.
We agree with the Trial Examiner that the refusal to work of em-
ployees May and Winchester grew out of a labor dispute concerning
conditions of their employment, and that such refusal constituted
concerted activity protected by Section 7 of the Act. Accordingly,
we find that the Respondent's discharge of May and Winchester for
engaging in such activity was a violation of Section 8 (a) (1) of the
Act.a In view of this finding, we deem it unnecessary to pass upon,
and therefore do not adopt the Trial Examiner's finding that their
concerted activity was further protected by Section 502 of the Act 3
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner, with the following modifications and additions :
Paragraph 1(b) of the Recommended Order, which begins "Dis-
charging employees ...", shall be deleted, and the following sub-
stituted therefor: "(b) Discouraging concerted activity by discrimi-
i In the absence of exceptions thereto, we adopt pro forma the Trial Examiner's dis-
missal of the Section 8(a) (3) aspects of the complaint herein.
See N L R B. v . Washington Aluminum Company , Inc, 370 U S. 9
8 Member Fanning would adopt the Trial Examiner ' s findings and conclusions in this
regard.
139 NLRB No. 86.
BELFRY COAL CORPORATION
natorily discharging any of its employees or in any other manner
discriminating against them in regard to their hire or tenure of em-
ployment or any other term or condition of employment."
Paragraph 2 of the "NOTICE To ALL EMPLOYEES," which begins
"WE WILL NOT discharge employees . . ." shall be deleted, and the fol-
lowing substituted therefor : "WE WILL NOT discourage concerted ac-
tivity by discriminatorily discharging any of our employees or in any
other manner discriminating against them in regard to their hire or
tenure of employment or any other term or condition of employment."
The following paragraph shall be added to paragraph 2(a) of the
Trial Examiner's Recommended Order : "Interest at the rate of 6
percent per annum shall be added to the backpay to be computed in
the manner set forth in Isis Plumbing cC Heating Co., 138 NLRB
716." 4
I For the reasons set forth in the dissenting opinion In Isis Plumbing, Member Rodgers
would not award interest.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon separate charge filed by Harold May and Willard Winchester on April 9,
1962,1 the General Counsel of the National Labor Relations Board, by the Regional
Director for the Ninth Region (Cincinnati, Ohio), issued his consolidated complaint,
dated May 25, against Belfry Coal Corporation, herein called Respondent or the
Company. In substance the complaint alleges that Respondent has engaged in and
is engaging in conduct prohibited by Section 8(a)(1) and ( 3) and affecting com-
merce within the meaning of Section 2(6) and (7) of the National Labor Relations
Act, herein called the Act. Respondent's answer as amended at the trial, while
admitting some facts , denies that it committed any unfair labor practices.
Pursuant to due notice, a hearing was held before Trial Examiner James V.
Constantine at Williamson , West Virginia, on July 2. All parties were represented
at and participated in the hearing and were given an opportunity to offer evidence,
to examine and cross -examine witnesses , to present oral argument , and to submit
briefs. Respondent and the General Counsel have filed briefs.
Upon the entire record in this case, including the stipulations of the parties and
the admissions in the answer, and from my observation of the witnesses , I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent , a West Virginia corporation , is engaged at Burnwell , Kentucky, in
the operation of a coal mine . From about December 16, 1961, when the Company
actively commenced to mine coal , until June 15, 1962, it shipped coal valued in excess
of $30,000 from its mine directly to points outside the State of Kentucky. On the
basis of this figure , projected for 12 months, an appropirate annual period, the
Company's direct shipments of coal to points outside the State of Kentucky may
reasonably be expected to exceed $50,000. New London Mills, Incorporated, 91
NLRB 1003, 1004. Under these circumstances , I find that the Company is engaged
in commerce within the meaning of Section 2(6) and (7) of the Act and that the
policies of the Act will be effectuated by exercising jurisdiction in this case. Hugh
Major, d/b/a Major Truck Service Co., 129 NLRB 794, 796.
II. THE LABOR ORGANIZATION INVOLVED
District 17, United Mine Workers of America, herein called the Union , is a labor
organization within the meaning of Section 2 ( 5) of the Act.
'All dates herein refer to the year 1962 except as otherwise noted.
672010-63-vol. 139-68
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
M. THE UNFAIR LABOR PRACTICES
A. Interrogation of employees
Early in 1962, the Union started to organize Respondent's employees. In March,
employee Harold May signed a membership card at the solicitation of employee
Willard Winchester and Field Representative Eldon Johnson of the Union. There-
after during the month of March, Harold May actively supported the Union and
urged employees to join it. Sometime in March, but prior to the 29th, Stirl Harris,
Respondent 's general mine foreman , whom I find to be a supervisor as defined in
Section 2(11) of the Act, accosted May at the ramp. Harris asked him why he
had signed a union card and commented that he thought May would be the last to
sign it.
About the middle of March, Mine Foreman Harris crawled into the mine to
speak to Willard Winchester, a loading machine operator. Harris asked Winchester
if the latter had signed a union card, insisting he "had to find out." When Win-
chester replied that he had, Harris wanted to know why. A few days later, Harris
told Winchester that he believed some of the men were letting him down or backing
down on him.
When May was working on construction in 1961, he heard Troy Deskins, Re-
spondent's president, whom I find to be a supervisor as comprehended by Section
2(11) of the Act, say that when the mine opened it would be a nonunion mine.
A few months before this, when May was rehired, Deskins conditioned reemploy-
ment upon the execution of a contract by May. This document, prepared by Re-
spondent and which May signed, among other things, contained an agreement by
May not to cause trouble to the Company and not to join any picket line. Stirl
Harris, Respondent's mine foreman, testified that he construed this provision as an
agreement not to join a union.
B. The discharge of Harold May
Harold May was first employed by the Company in March 1950, and thereafter
was intermittently laid off and rehired. He was rehired for the last time in 1959.
From then until December 1961, he performed various types of construction work
preparatory to opening of the mine involved in these proceedings. That mine began
operating in December 1961, at which time he was assigned to run a "buggy," a
vehicle used to transport coal from the face (i.e., the place where it is extracted from
a seam), to a ramp located within the mine. At the ramp the coal is loaded
into cars which, running on tracks, carry it to the outside for shipment to customers
of the Company.
Early in the morning of March 29, the mine was inspected by Jacob W. Runyon,
a mine inspector of the State of Kentucky, pursuant to directions from his superior.
Runyon first found that Respondent was "behind with the timbering" in the No. 2
heading (or place where coal is dug) of the mine. While in the mine, Runyon
noticed Supervisor Stirl Harris, employee Harold May, and another employee by
some lights. Runyon then approached them and warned them that they were
"working ahead of their timbers." Thereupon Harris and Runyon made some
measurements together, after which Runyon concluded that the distance 2 from the
face to the first timber did not comply with the standard of the "rules" and so in-
formed Harris.
Runyon then told Harris that he was constrained "to tack a card" and did affix
such a card on the last timber nearest the face on the No. 2 heading. After such
posting, Runyon told Harris to call him when the requirements on the card had
been fulfilled, and authorized Harris to remove the card after making such call.
This card, signed and dated by Runyon as "State Mine Inspector," contains the
following legend:
DANGER
No other work may be done in this place
until the roof has been made safe and
until the mine operator has contacted
the State Mine Inspector and received
permission to remove this card.
Runyon then went to the No. 1 heading, where, in the presence of Harris and
other employees, he found that the timbering at that location was also inadequate
2 To be up to the State 's standard, timbers should be on 4-foot centers within 8 feet of
the face. Sometimes conditions may require more timbers than the standard.
BELFRY COAL CORPORATION 1061
and failed to conform to State regulations . Thereupon Runyon posted another
"danger card," identical to that affixed in the No. 2 heading, and warned both Harris
and employees not to work in Nos. 1 or 2 headings until the timbering had been
corrected. Upon inquiry from employees, Runyon stated that they "could be fined"
for working in the mine before the danger sign was eliminated.
Notwithstanding the displaying of these warnings, which were made in the pres-
ence of Harris and the employees, Harris insisted to Runyon that he would never-
theless work the two headings. Runyon replied that Harris could not work them
until they had been properly timbered and that he was making a mistake to do so.
Runyon further testified that conditions then existing at Nos. I and 2 headings
failed to satisfy minimum standards and were therefore unsafe, but "nothing ex-
tremely dangerous." However, roof falls are the largest cause of mine accidents
and fatalities in Kentucky and even the safest roof may collapse without advance
indications of impending disaster. Respondent's roof at the Nos. 1 and 2 headings
was as safe as any roof, being composed of sandstone. Nevertheless, when May
saw the danger sign he informed Supervisor Harris that he refused to work "under
a danger sign."
Harris then called May and Winchester to the No. 1 heading where Inspector
Runyon had just tacked up another danger sign for inadequate timbering. When
Harris ordered them to proceed to the ramp and to return to work, Winchester
reminded Harris that he, Harris, would lose his State working papers as mine fore-
man for asking the men "to go over that danger sign." Yet Harris persisted in his
order and added, "I don't care. I have got one mistake to make and I might as
well make it now." Both May and Winchester requested Harris to assign them to
work at another heading which was safely timbered until the dangerous No. 2 head-
ing was rendered safe and the danger sign was taken down. But Harris rejected this
offer on the ground there was nothing else to do.
Harris then sent word to Troy T. Deskins, Respondent's president, whom I find
to be a supervisor as contemplated by Section 2(11) of the Act, to come to the
mine and met him outside at the mouth of the mine. Deskins then asked a group
of assembled employees, "Boys, what is wrong?" or "What's the matter boys?"
When Winchester explained that the State mine inspector had "dangered off No. 2"
and, therefore, he refused to "go across" the sign, Deskins commanded Harris,
"Fire him." Then Deskins turned to May and asked him, "Harold, what about
you " May replied, "I won't go past the sign, either." Deskins then ordered Harris,
"Discharge him." Thereupon Harris wrote out two separate discharge slips and
handed one to May and another to Winchester. Deskins then asked each of the
remaining employees if he would return to work. Upon receiving an affirmative
reply, Deskins ordered each one to return to work and each one did go back to work.
The top of Respondent's mine is composed of sandstone. Such material is con-
sidered "a good top, if there are any good tops," according to Inspector Runyon.
Inspector Chapman, a witness for Respondent, concurred in this evaluation, but
claimed it was composed of massive sandstone, a somewhat stronger formation.
Nevertheless, timbering is necessary to lessen the danger, ever present, that a top,
even a massive sandstone top, will cave in. Such timbers serve dual purposes:
(1) they hold the roof up if it starts to come down, thus enabling miners to escape
before a complete cave-in, and (2) they give audiovisual warning of imminent
collapse by cracking or breaking before the top comes down, thus alerting persons
within to escape and admonishing those on the outside not to enter. On March 29,
Runyon observed little hill seams, which, however, did not appear to be of a type
which would call for more timbering than is normally required.
Placing danger signs in a mine is required by law when, in the judgment of an
inspector, a regulation has not been met. Nevertheless, such signs do not disclose
on their face the nature of the variation from State standards-it may be severe or
it may be minor. Inadequate timbering of the type encountered here is not serious-
in fact, it was corrected within a half hour after Runyon's disappearance from the
scene.
C. The discharge of Willard Winchester
Winchester was hired by Respondent sometime in 1959. When the mine was
opened in December 1961, he was employed as a loading machine operator. Late
in February 1962, during the Union's organizing campaign, he joined the Union.
Thereafter, both alone and also accompanied by Union Representative Johnson, he
actively urged employees to join the Union and succeeded in inducing some to
become members, including Roy Thacker, to whose sister President Deskins is
married. Both before and after the mine opened, he heard President Deskins say
that he could not sign a union contract because he was unable to pay union wages
and that "if he had to he would just have to shut the mine down." In the fall of
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1961, Deskins told a group of employees assembled in his office, one of whom was
Winchester, that "it would be a nonunion mine" and that if they did not want to
work he wished they would quit then.
When Winchester became a loading machine operator he had to be rehired as
such. As a condition of such rehire he was required to sign a "contract" in which
he promised, among other things, that he "would not join a picket line against"
Respondent.
On March 29, Winchester was at work in the mine in the morning when Mine
Inspector Runyon came in. Runyon made measurements with Foreman Harris
and then declared that No. 2 heading was not properly timbered. Then Runyon
said he was going to "shut down" this heading and posted a "danger" sign. Despite
this, Harris told Winchester, "I am going to work it anyhow," and instructed him
to continue with the loading. Although Winchester asked to work in heading No. 3
and also admonished Harris that the latter would lose his "mine papers" by ignoring
the danger sign, Harris insisted that Winchester "work this place [No. 2] or that
is all I have for you." Winchester refused to work as long as the sign remained in
the mine.
Harris then ordered the employees to go to the ramp and from there to the
mouth of the mine where they were addressed by President Deskins. Deskins then
asked the "boys" what the trouble was. "They" replied, "The mine inspector has
got us stopped with a tag." Then Deskins assured the group of employees with the
words, "Boys, if you get in trouble with the State over violation of the law the
company will stand behind you or back you up." When Deskins asked Winchester
if he would go back to work, he replied that "they had dangered the place off and
I wasn't going by the danger sign." Immediately thereafter Deskins instructed
Harris in two words: "Fire him." Deskins also ordered the other employees to
go back to work and they did. Two employees who so returned, viz, Williamson
and Thacker, "started timbering" and completed it within a half hour. In doing so,
Williamson and Thacker set up two kinds of timbers: (1) those "old" timbers which
had been knocked down during the previous evening by inexperienced night-shift
employees, and (2) also "new timbers to timber the thing up."
Concluding Findings
1. As to interrogation of employees
It is not disputed that Supervisor Harris asked several employees if they had
signed union cards after he knew that Union Representative Johnson had talked to
them. Even when considered alone, this interrogation amounts to interference,
restraint, and coercion because the inquiries propounded to the employees have not
been shown to be necessary for the purpose of ascertaining for any legitimate purpose
the extent of the Union's representation (Orkin Exterminating Company of South
Florida, Inc, 136 NLRB 399), "and explained to the employees on that basis."
S. H. Kress & Co., 137 NLRB 1244.3 But, in addition, Harris (1) told some em-
ployees it was "not right" to join the Union after signing the individual contracts
mentioned above, (2) complained to employee May that he thought May would be
the last to sign a union application, and (3) told employee Winchester that some
of the men were letting him down or backing down on him. Accordingly, I find
Section 8(a)(1) of the Act to have been violated. Hence I conclude that there is
no merit in Respondent's contention that the interrogation here involved was permis-
sible under Section 8(c) of the Act. Blue Flash Express, Inc., 109 NLRB 591,
does not weaken this result.
It is contended further by the General Counsel that Respondent, in violation of
Section 8(a)(1) of the Act, (1) threatened its employees with discontinuing its
operation and consequent loss of employment if it had to deal with the Union, and
(2) forced employees to sign a contract not to engage in picketing. But the com-
plaint expressly limits the illegal Section 8(a)(1) conduct (other than the dis-
3 N L R.B v. Peerless Products, Inc, 264 F. 2d 769, 772 (C.A. 7), upon which Respond-
ent relies, resembles the instant case quite strongly on this aspect of the issue. To the
extent that it is inconsistent with the Board's decision in that and other cases, I am
constrained not to follow it. ". . . It remains the Trial Examiner's duty to apply estab-
lished Board precedent which the Board or the Supreme Court has not reversed . .
[He may not] speculate as to what course the Board should follow where a circuit court
has expressed disagreement with its views." Insurance Agent's Union, AFL-CIO (The
Prudential Insurance Company of America), 119 NLRB 768, 773 And NLRB. v
Indiana Metal Products Corporation, 202 F. 2d 613, 619-620 (C.A. 7), advanced by
Respondent on its behalf, shows that the Seventh Circuit may find interrogation unlawful.
BELFRY COAL CORPORATION 1063
charges discussed below) to interrogation only. Hence I do not reach the question
of whether these particular activities also constitute interference, restraint, and
coercion.
2. As to the discharge of Harold May
I find that Supervisor Harris, who interrogated May and other employees and
learned of their membership in the Union, discussed this fact with President Deskins.4
And I further find that Respondent made it plain to employees that it would not
sign a collective-bargaining contract with the Union solely for economic reasons.
But I am constrained to find that May was not discharged for his union mem-
bership or for his activity on behalf of the Union. This flows from the following
facts:
(a) President Deskins did not have a union animus. In fact, Deskins had
recognized unions in the past and told Union Representative Johnson he had no
objections to unions.
(b) Respondent not only interposed no obstacles to the Union's organizing ef-
forts, but actually rounded up employees so that the Union's representative could
appeal to them.
(c) Respondent did not want to sign a union contract solely because he could
not afford to pay the Union's wage scale and so informed Union Representative
Johnson and the employees.
(d) I do not find that the reason given for the discharge is a pretext. If May
had returned to work as directed he would not have been fired. Other union mem-
bers who returned to work pursuant to the command of Deskins were not disciplined.
The precipitate discharge of May resulted from a tendency of Deskins to be quick
tempered if not intemperate.
On the other hand, I find that May was discharged for his refusal in good faith
to work because of abnormally dangerous conditions at his place of employment,
and that in so refusing May was engaged with other employees in a protected con-
certed activity. Accordingly, I find that May was not on strike and that his dis-
charge was prohibited by Section 8(a)(1) of the Act. Knight Morley Corpora-
tion, 116 NLRB 140, 145-147, enfd. 251 F. 2d 753 (C.A. 6). For the reasons
given by the Board in Knight Morley Corp., supra, N L.R.B. v. American Manu-
facturing Company of Texas, 203 F. 2d 212 (C.A. 5), and N.L.R.B. v. Kohler
Company, 220 F. 2d 3 (C.A. 7) are distinguishable. The conclusion that May was
engaged in protected concerted activity is based upon the following factors, which
I find supported by the credible evidence:
(a) May was engaged in a concerted activity with other employees, or at least
with employee Winchester. And President Deskins was aware of this combined
action (1) when he met the assembled employees at the mouth of the mine and
inquired of them as a group-his opening remarks were addressed to them as
"boys"-what the trouble was, and (2) received a reply from "them" that the
place had been "dangered off." This finding is not lessened because Deskins im-
mediately thereafter called upon each employee to return to work, for Deskins
could not convert group action into individual conduct by speaking to individual
employees.
(b) This concerted activity was protected because the employees in good faith
quit their labor because of abnormally dangerous conditions for work at the place
of employment, as Section 502 of the Act gave them that privilege. In this con-
nection, ' find that the employees could accept Inspector Runyon's appraisal of
the inadequately timbered mine and were not required to continue working in the
mine before the danger sign had been removed. Deskins' commands to them to
return to work, even when accompanied by assurances that he would save them
harmless if such return were illegal, patently were an attempt to override the judg-
ment of a State official and could be lawfully ignored by the employees.
Nor is it a defense (1) that another State inspector (Chapman) described the
roof as massive sandstone, which he considered the safest kind of roof, (2) that
employees needed no more than a half hour to complete the necessary timbering,
(3) or that some employees testified that they considered the roof safe. As to
(1), it may be observed that employees did not have the benefit of Inspector Chap-
4 Although Thacker, the brother-in-law of Deskins. had been induced to join the Union
by employee Winchester, and Thacker knew from Winchester that all but two or three
employees had also signed , there is no evidence that he passed on this information to
Deakins. Hence I do not find that Respondent obtained knowledge of union activity from
Thacker.
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
man's estimate at the time of the orders given by Deskins.5 As to (2) it is suffi-
cient to point out that the danger signs could have been taken down after the timber-
ing had been accomplished, thus withdrawing from employees the right to justify
their refusal to return to work. But there is no evidence that the signs had been
removed upon the asserted completion of the work. And as to (3), the fact that
employees testified that they considered the roof safe is unimportant; it is undisputed
these employees did not return to work following the sign posting until Deskins
directed them to do so.6
Finally, I find that the walkout grew out of a labor dispute concerning conditions
of employment. N.L.R.B. v. Washington Aluminum Company, Inc., 370 U.S.
9, 15; 82 S. Ct. 1099, 1103.
Accordingly, I find that May's discharge contravenes Section 8(a)(1) of the
Act. The General Counsel also submits that May's discharge is additionally un-
lawful under Sections 7 and 8(a)(1) of the Act because he was fired for refusing
to work after being "told not to . . . by a State mine inspector." But I do not
reach this latter issue because it has not been pleaded in the complaint?
3. As to the discharge of Willard Winchester
I find that Winchester was discharged for engaging in concerted protected ac-
tivity, that he quit labor in good faith because of abnormally dangerous conditions
for work at his place of employment, and that such discharge is prohibited by Sec-
tion 8(a)(1) of the Act. I further find that Winchester was not fired for joining
and assisting the Union in its organizational activities . Concluding findings and
reasons given respecting the discharge of Harold May are equally applicable here,
and are hereby incorporated mutadis mutandis.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Those activities of the Respondent found to be illegal set forth in section III,
above, occurring in connection with the operations of Respondent as set forth in
section 1, above, have a close, intimate, and substantial relation to trade, traffic,
and commerce among the several States, and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of commerce.
V. THE REMEDY
It having been found that Respondent engaged in certain unfair labor practices in
violation of Section 8(a)(1) of the Act, it will be recommended that Respondent
cease and desist therefrom and take certain affirmative action designed to effectuate
the policies of the Act. The Recommended Order will require Respondent to
offer full and immediate reinstatement of Harold May and Willard Winchester to
their former or substantially equivalent positions , and to make them whole for any
loss of earnings suffered. Such loss shall be compensated for by payment of
sums of money equal to those which May and Winchester normally would have
earned from the date of the discrimination against them to the date of Respondent's
offer of reinstatement or actual reinstatement , as the case may be, less net earn-
ings during the intervening period. The backpay provided herein shall be com-
puted in accordance with the formula described in F. W. Woolworth Company, 90
NLRB 289-.
Respondent's conduct in discharging the above -named employees , while con-
travening the Act, does not go "to the very heart of the Act." Cf. N.L.R.B. v.
Entwistle Mfg. Co., 120 F. 2d 532, 536 (C.A. 4). Hence the broadest type of
8I place no reliance upon General Counsel's Exhibit No 4, which is a letter from the
Kentucky Commissioner of Mines to employee Winchester warning him that he is work-
Ing in a "death trap" This letter is dated March 6, 1962, and, although admissible,
relates to a condition too remote from March 29 to he charged with probative value.
G There is evidence that a danger sign may be affixed in a mine for minor as well as
severe infractions of State law. But this cannot constitute a defense, for employees may
not substitute their judgment for that of the State inspector Moreoi er, as long as the
sign does not identify the cause prompting its appearance, employees need not speculate
as to what is such cause Since the sign involved herein did not mention the reason for
Its posting, employees were warranted in treating it as warning them of abnormally
dangerous working conditions, especially since all parties agreed that mine work itself
is inherently hazardous even when all State laws have been obeyed
7 A similar argument has been offered concerning the discharge of Winchester. For the
same reason I do not reach the issue.
BELFRY COAL CORPORATION 1065
order is not warranted. An order of less scope will effectuate the statutory scheme.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
2. Respondent is an employer within the meaning of Section 2(2) and it is
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
3. By coercively interrogating its employees regarding their union membership
and sympathies Respondent has engaged in unfair labor practices as defined in
Section 8 (a) (1) of the Act.
4. By discharging May and Winchester for engaging in protected concerted ac-
tivity Respondent has interfered with, restrained, and coerced employees, and
thereby engaged in unfair labor practices proscribed by Section 8(a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
6. Respondent has not committed any other unfair labor practices within the
meaning of the Act as alleged in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in the case, it is recommended that the Respondent, Belfry
Coal Corporation, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning their union membership and
sympathies.
(b) Discharging employees for engaging in protected concerted activities by
refusing in good faith to work because of abnormally dangerous conditions at their
place of employment.
(c) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to effectuate the policies of
the Act:
(a) Offer Harold May and Willard Winchester immediate and full reinstate-
ment to their former or substantially equivalent positions, without prejudice to
their seniority and other rights and privileges, and make them whole for any loss
of pay they may have suffered by reason of the discrimination against them in
the manner set forth in the section entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board and its agents,
for examination and copying, all payroll records, social security payment records,
personnel records and reports, and all other records necessary and useful to de-
termine the amount of backpay due under the terms of this Recommended Order.
(c) Post at its mine at Burnwell, Kentucky, copies of the attached notice marked
"Appendix." 8 Copies of said notice, to be furnished by the Regional Director for
the Ninth Region, shall, after being duly signed by Respondent's representative, be
posted by Respondent immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for the Nir_th Region, in writing, within 20
days from the date of receipt of this Intermediate Report and Recommended Order,
what steps Respondent has taken to comply herewith.9
8 If this Recommended Order is adopted by the Board, the words "A Decision and
Order" shall be substituted for the words "The Recommendations of a Trial Examiner"
in the notice. In the further event that the Board's Order be enforced by a decree of
a United States Court of Appeals, the words "Pursuant to a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to
a Decision and Order."
e In the event this Recommended Order is adopted by the Board this provision shall
be modified to read: "Notify said Regional Director, in writing, within 10 days from the
date of this Order, what steps the Respondent has taken to comply herewith."
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is further recommended that the complaint be dismissed in all other respects.
It is finally recommended that unless Respondent shall within 20 days from the
receipt of this Intermediate Report notify said Regional Director, in writing, that
it will comply with the foregoing recommendations, the National Labor Relations
Board issue an order requiring the Respondent to take the action aforesaid.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify you that:
WE WILL NOT interrogate employees concerning their union membership and
sympathies in a manner constituting interference, restraint, or coercion in viola-
tion of Section 8 (a)( I) of the Act.
WE WILL NOT discharge employees for engaging in protected concerted ac-
tivities by refusing in good faith to work because of abnormally dangerous
conditions at their place of employment.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
employees in the exercise of rights guaranteed in Section 7 of the Act.
WE WILL offer to Harold May and Willard Winchester immediate and full
reinstatement to their former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges, and make them whole
for any loss of pay suffered by reason of their discriminatory discharge.
All our employees are free to remain, and to refrain from becoming or remaining,
members of District 17, United Mine Workers of America, or any other labor
organization.
BELFRY COAL CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify any of the above-named employees presently serving in
the Armed Forces of the United States of their right to full reinstatement upon
application in accordance with the Selective Service Act after discharge from the
Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Transit
Building, 4th and Vine Streets, Cincinnati 2, Ohio, Telephone Number, Dunbar
1-1420, if they have any questions concerning this notice or compliance with its
provisions.
Plastics Industrial Products , Inc. and Samuel E. Angoff. Case
No. 1-CA-3677. November 19, 1962
DECISION AND ORDER
On August 17, 1962, Trial Examiner Louis Libbin issued his Inter-
mediate Report I in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermedi-
ate Report. He also found that the Respondent had not engaged
1 The hearing in this case was conducted by Trial Examiner Max Goldman, who died
on July 3, 1912. Trial Examiner Louis Libbin prepared the attached Intermediate
Report on the basis of the record,
139 NLRB No. 90.