Big Ridge, Inc.

National Labor Relations Board - Administrative Judge Opinions

Dec 1, 2011

14-CA-030379 (N.L.R.B. Dec. 1, 2011)

JD–74–11
Equality, IL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
BIG RIDGE, INC.
and Cases 14-CA-30379
14-CA-30406
UNITED MINE WORKERS OF AMERICA 14-RC-12824
Patrick H. Myers, Esq., and Paula B. Givens, Esq.,
for the General Counsel.
Timothy A. Garnett, Esq., and Bernard P. Jeweler, Esq.
(Ogletree, Deakins, Nash, Smoak & Stewart, P.C.),
for the Respondent.
Arthur Traynor, Esq.,
for the Charging Party.
DECISION
JEFFREY D. WEDEKIND, Administrative Law Judge. In March 2011, the United
Mine Workers of America (UMWA) began an organizing campaign to represent the
approximately 440 production and maintenance workers at the Employer’s Willow Lake
underground coal mine in Equality, Illinois. The workers were already represented at that time
by the Boilermakers Union, but negotiations for a new contract to replace the existing agreement
expiring April 15 were not going well. In any event, the UMWA campaign was quite successful,
garnering authorization cards from 93 percent of the unit employees, and the Boilermakers later
disclaimed interest when the contract expired. (Tr. 75, 104, 138, 143, 276–277; Jt. Exh. 1.)
The Employer, however, denied the UMWA’s April 7 request for voluntary recognition.
Moreover, it subsequently conducted a vigorous “union free” campaign in response to the
UMWA’s April 8 petition to the NLRB for a secret-ballot election. It held a series of group
meetings with employees, which included slide shows, films, and presentations by officials from
Peabody Energy, the Employer’s parent company. It distributed flyers with employee
paychecks, mailed letters and a videotape to the employees’ homes, and made antiunion stickers
available for employees to wear on their hardhats. It also polled the mine supervisors to
determine how the employees would likely vote, and directed the supervisors to make one-on-
one contact with each employee and encourage them to vote “NO.” (Tr. 130, 144, 276, 292, 308,
373, 400, 423–424, 819, 1130, 1497, 1719, 1780, 1807, 1912, 1934, 2057–2070; GC Exhs. 8, 14
(p. 5), 22; CP Exh. 4.)
Nevertheless, the UMWA narrowly won the May 19 and 20 election by a vote of 219–
206; of the 425 employees who voted (97 percent of those eligible), approximately 52 percent
voted “YES.” 1 However, on May 26, the Employer filed timely objections alleging that the
UMWA, “its officers, agents, and/or others,” had engaged in improper conduct during the critical

1 The Regional Director’s report on objections (GC Exh. 1(k)) incorrectly states that the
election was conducted on May 20 and 21. (Tr. 602.)
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2
preelection period, including threatening employees with bodily harm and distributing false and 5
fabricated documents. Accordingly, the Employer requested a rerun election. (GC Exh. 1(d) and
(k).)
Thereafter, on May 27, June 29, and July 22, the UMWA filed a series of unfair labor
practice charges against the Employer. The Union alleged that the Employer had engaged in 10
various unlawful conduct, both before and after the election, including threatening employees
with mine closure and job loss and discharging a prominent union supporter (Waller). (GC Exh.
1(e), (i)(attachment), and (g).)
On July 22, the NLRB Regional Director issued a report and order directing a hearing on 15
the Employer’s election objections. The same day, on behalf of the General Counsel, he also
issued a complaint on the Union’s charges. As subsequently amended on August 16, the
complaint asserted, among other things, that the Employer’s unlawful conduct rendered a fair
rerun election unlikely and that a remedial bargaining order should therefore be issued, based on
the Union’s initial 93-percent card majority, under the authority of NLRB v. Gissel Packing Co., 20
395 U.S. 595 (1969). (GC Exh. 1(k) and (n).)
Pursuant to the Regional Director’s order consolidating the cases, a hearing on the
foregoing election objections and unfair labor practice allegations was held before me over 9
days between August 29 and September 30 at the Federal courthouses in Benton, Illinois and 25
Paducah, Kentucky. Thereafter, on November 4, 2011, the General Counsel, the Union, and the
Employer, filed posthearing briefs.2
Based on the briefs and the entire record,3 for the reasons fully set forth below, I find that
the Employer’s election objections are without merit and that the UMWA should be certified as 30

2 In the absence of any opposition, the transcript is corrected as set forth in my November 8,
2011 Notice to Show Cause, which has been added to the record as ALJ Exh. 1. I also grant
Counsel for the General Counsel’s unopposed motion to correct his brief to include pages that
were inadvertently omitted due to a scanning error.
3 In making credibility findings, all relevant and appropriate factors have been considered,
including the demeanor of the witnesses; whether their testimony is corroborated or consistent
with the documentary evidence and/or the established or admitted facts; and “inherent
probabilities, ‘and reasonable inferences which may be drawn from the record as a whole’”
(Daikichi Corp., 335 NLRB 622, 623 (2001), enfd. 56 Fed. Appx. 516 (D.C. Cir. 2003)
(unpub.), quoting Shen Automotive Dealership Group, 321 NLRB 586, 589 (1996)). I have also
considered the apparent interests, if any, of each witness in the outcome of the representation
and/or unfair labor practice proceedings, including (with respect to employee witnesses)
whether, and the degree to which, the witness had openly supported or opposed the Union during
the election campaign. See, e.g., T. Steele Construction, Inc., 348 NLRB 1173, 1175 fn. 2
(2006); and Suniland Furniture Co., 158 NLRB 62, 65 (1966), enf. denied on other grounds 387
F.2d 123 (5th Cir. 1967). See also Northern Wire Corp. v. NLRB, 887 F.2d 1313, 1317 (7th Cir.
1989). However, this factor has only been considered in conjunction with other factors, as a
possible or likely motive for the witness to fabricate, embellish, or deny the alleged objectionable
or unlawful events, and not as a determinative factor in itself. See A-W Washington Service
Station, 258 NLRB 164 fn. 1 (1981).
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3
the unit employees’ properly elected exclusive collective-bargaining representative. I further5
find that the Employer committed several of the alleged pre- and post-election unfair labor
practices, including discriminatorily discharging Waller. However, I deny the General Counsel’s
request for a remedial Gissel bargaining order.
I. EMPLOYER’S ELECTION OBJECTIONS10
The party seeking to overturn the results of a secret-ballot election has the burden of
showing, by a preponderance of the evidence, both that the alleged conduct actually occurred,
and that the conduct warrants a rerun election. See, e.g., Tony Scott Trucking, Inc. v. NLRB, 821
F.2d 312, 316 (6th Cir. 1987), cert. denied 108 S.Ct. 230 (1987). Here, the Employer filed five 15
objections to the election, each of which allegedly warranted a new election (GC Exh. 1(d)).
However, it withdrew the last two of the objections at the hearing (Tr. 1957). Further, as
discussed below, with regard to the remaining three objections, the Employer has failed to fully
satisfy its burden in one respect or the other under the relevant standards.
20
Objection 1
The Employer’s first objection alleges that “the Union, by its officers, agents, and/or
others, during the critical period, intimidated, restrained, and/or coerced eligible employees,
rendering their free choice in the election impossible” (GC Exh. 1(d)). In support, the Employer 25
cites the following:
(1) two alleged threats by employee Waller;
(2) an alleged threat by employee Kirkman;
(3) an alleged threat by employee Pinkston; 30
(4) four alleged anonymous threatening phone calls;
(5) an alleged threat by Union Recording Secretary Bradley; and
(6) two instances of alleged intimidating conduct by Union Vice President Shires,
Pinkston, and another union supporter. (E. Br. 28–40).
35
A. Whether the alleged conduct actually occurred.
1. Waller’s alleged threats.
Waller, 53, has approximately 28 years mining experience and worked as a ram car driver 40
at the Willow Lake mine for over 7 years prior to his May 27 discharge (Tr. 553–554). Although
he was not an officer or agent of the UMWA,4 he was a vocal union supporter. Indeed, not only
did he admit using the word “scab” quite a lot underground (in reference to nonunion workers),
he also admitted making up an unflattering song about scabs, which he sang at the mine during
the relevant period (Tr. 557–558, 590–592, 605).5 45

4 The Employer’s posthearing brief (p. 38) appears to concede this. In any event, the record
indicates that Waller was never an officer or agent of the Local in any capacity (Tr. 511, 561,
579, 580, 607).
5 The lyrics of the song, which begin “I’m proud to be a coal mining scab…” (and appear to
be very loosely based on the song “Coal Miner’s Daughter,” by Loretta Lynn), were aptly
JD–74–11
4
As indicated above, the Employer alleges that Waller made two objectionable threats 5
prior to the May 19 and 20 election and his subsequent discharge: the first to employees Pezzoni
and Koerner, and the second to employee Kirk.
a. Waller’s alleged threat to Pezzoni and Koerner.
10
To establish the first threat, the Employer presented the testimony of Pezzoni and
Koerner. Pezzoni is a shift leader and was an eligible voter in the election. He openly expressed
his opposition to the UMWA both at the mine and on Facebook (Tr. 1654–1656, 1672, 1676,
1695; GC Exhs. 8 (A crew), 12; CP Exh. 8). Koerner is a new employee who was hired on April
11, was not an eligible voter (although it is not clear he or others knew this), and had not yet 15
openly expressed his views at the time he alleges the threat occurred (Tr. 1341, 1365, 1408; Jt.
Exh. 1; GC Exh. 25).
Both Pezzoni and Koerner testified that the alleged threat occurred while they were
working together, i.e. side-by-side, underground. However, beyond this, their accounts diverge. 20
For example, Pezzoni testified that Waller said, “You [better] vote UMWA, or scabs like you
won’t work here” (Tr. 1654). See also his May 26 statement to the Company, GC Exh. 9, p. 6
(Waller said, “you better vote UMWA or a scab like you won’t work here”); and his June 5
pretrial NLRB affidavit, GC Exh. 25 (Waller said, “you better vote UMWA or your scab ass is
gone”). Koerner, however, specifically denied Pezzoni’s version (Tr. 1409). He testified that 25
Waller said, “If the Union gets in, we’ll take care of these scabs” (Tr. 1342). Compare also his
May 26 statement to the Company, GC Exh. 9, p. 9 (which asserted that “several comments”
were made that “if union gets in we will take care of scabs” (emphasis added)).
Similarly, Koerner testified that the incident occurred on his second day of work at the 30
mine (i.e. around April 12), which was over a month before the election (Tr. 1342). However, in
a previous written statement to the Company on May 26, Pezzoni stated that the incident
occurred only about 2 weeks before the election (i.e. around May 5). (GC Exh. 9, p. 6). Although
Pezzoni later testified at the hearing that the incident occurred earlier, this was in response to a
leading question from the Employer’s counsel (“Do you recall being with [Koerner] his first days 35
on the job and Wade Waller made a comment to him?”). (Tr. 1653.) Moreover, Pezzoni
admitted on cross-examination by counsel for the General Counsel that, when he last met to
discuss his forthcoming testimony with the Employer’s counsel the week before the hearing
resumed on September 27, Koerner and several other Company witnesses were “all in there
together” and “we was all going over our time line to make sure that when we broke down, 40
…nothing changed” (Tr. 1679–1681).6

described at the hearing by employee Koerner as “disgusting” (Tr. 1349–1350). However, the
record indicates that vulgar language is common at the mine (Tr. 217, 251, 395, 525, 874, 1440,
1784). In any event, the Employer does not contend that the song justifies either overturning the
election or terminating Waller.
6 See also Koerner’s testimony, Tr. 1393–1394 (confirming that Pezzoni and several other
Company witnesses were present when he met and discussed his forthcoming testimony with the
Employer’s counsel). Arguably, the collective, “round-table” manner in which the Employer’s
counsel interviewed Pezzoni, Koerner, and some of the other Company witnesses prior to their
testifying (see fn. 53, below) was inconsistent with the purpose of the sequestration order issued
JD–74–11
5
Koerner also testified that he and Pezzoni were the only witnesses to Waller’s comment5
(Tr. 1342). However, Pezzoni testified that “another gentleman” had walked by with Waller (Tr.
1654). See also his May 26 statement to the Company, GC Exh. 9, p. 6 (“Waller and another
walked by. . .”). Pezzoni also testified that he told Koerner not to worry about it, and vote
whatever way he wanted (Tr. 1654, 1672). However, Koerner denied that Pezzoni said this or
anything else after Waller’s comment (Tr. 1409–1410). 10
Reasonable factfinders might disagree whether the foregoing differences between
Pezzoni’s and Koerner’s accounts are “minor and explicable” or evidence of embellishment or
“invention.” Advocate South Suburban Hospital v. NLRB, 468 F.3d 1038, 1046 (7th Cir. 2006).
However, there are other substantial reasons to doubt their testimony about the alleged incident. 15
For example, Pezzoni testified that the Company had told employees to report any harassment
during the campaign, and that he took Waller’s comment as a threat. Yet neither he nor Koerner
ever mentioned the incident to anyone until May 26, after the Union won the election, when as
indicated above they both gave statements to the Company’s human resources senior manager,
Gossman. (Tr. 1367, 1655, 1668–1669; GC Exh. 9, pp. 6, 9). 20
Further, both Pezzoni and Koerner had pecuniary and/or personal interests in testifying
for the Company against Waller. Both remained employees of the Company at the time of the
hearing, and thus had “reason to testify in its favor and avoid the ire of [their] superiors.”
Advocate South Suburban Hospital, 468 F.3d at 1046. In addition, Pezzoni was a strong 25
opponent of the Union during the campaign, and, as discussed below, Koerner had other
problems with Waller that he had likewise reported to management.7 Finally, both gave
incredible testimony on these and other matters as well.

at the request of the General Counsel at the start of the hearing. At that time, I specifically
advised counsel (all experienced labor attorneys) that the order was being issued “consistent with
the Greyhound Lines Board decision” (which sets forth a model order providing, inter alia, that
“no witness may discuss with other potential witnesses either the testimony that they have given
or that they intend to give.” 319 NLRB 554, 554 (1995) (emphasis added)). (Tr. 19–20.) I also
reminded counsel of the sequestration order, as well as their duty to enforce it, at the end of the
first week of hearing, before the Respondent put on its case (Tr. 1167–1171). Although I did not
specifically forbid counsel from talking to multiple, corroborating witnesses simultaneously, this
was arguably implicit and therefore reasonably encompassed within the express terms of the
Greyhound order. See State v. Presley, 514 P.2d 1234, 1236 (Ariz. 1973). See also Aalon v.
State 247 Ga.App. 37, 39, 543 S.E.2d 78, 80 (Ga.App. 2000); and State v. Dodge, 564 P.2d 312,
313 (Utah 1977). However, I have found no clear Board guidance on the matter. Further, while
the General Counsel and the Union properly argue that close scrutiny should be given to the
testimony of the Employer’s witnesses who participated in such group interviews with other,
corroborating witnesses, they do not specifically argue that the sequestration order was violated.
Finally, I would reach the same credibility resolutions herein regardless of whether the order was
violated. Accordingly, I find it unnecessary to decide the issue.
7 Although Koerner was ineligible to vote based on his hire date, like Pezzoni he was listed
as a vote against the UMWA in the Company’s preelection poll of the supervisors in early May,
as well as in the third, postelection poll conducted in June (GC Exh. 8 (A crew)). However,
there is no other evidence to corroborate the polls, which are clearly hearsay as to whether
Koerner was actually, rather than merely perceived to be, against the Union. Accordingly, I have
JD–74–11
6
Waller, of course, also had a strong motivation to deny the incident, which he repeatedly 5
did before and at the hearing (Tr. 588, 590, 593, 1932; GC Exh. 9, p. 8). However, unlike
Pezzoni and Koerner, Waller impressed me a credible witness overall. He testified in an earnest
and even manner, demonstrated good memory and recall, and was not overly defensive or
evasive. Moreover, he readily admitted to a number of things that could be used against him,
including, as noted above, that he used the word “scab” a lot and wrote and sang an unflattering10
song about scabs.
Accordingly, for all the foregoing reasons, I find that the Employer has failed to establish
by a preponderance of the evidence that the first alleged threat occurred.
15
b. Waller’s alleged threat to Kirk.
In support of the second alleged threat, the Employer presented the testimony of Kirk.
Kirk has been employed as an examiner at the mine for several years and, like Pezzoni, openly
expressed his opposition to the UMWA both at the mine and on Facebook (Tr. 514–515, 1737,20
1743, 1768; GC Exhs. 8 (B crew), 12, 13, 26). Kirk testified that Waller made the threat to him
one evening on the midnight shift while they and another employee (Carrigan) were dressing
near each other in the bathhouse. Kirk testified that, after he put down his helmet, which had
several “Vote No” stickers on it, Waller said to Carrigan:
25
“I'll show you how to handle motherfuckers like this.” And he kind of put
his head towards me, and he said, "You pick something up and you hit them
in the fucking head with it, that's how you handle scabs." And I just really
didn't pay much attention. He went on along the same grounds, and after I
got dressed, he said, "Hey, Kirk, you need any stickers?" And he had a 30
"Vote No" sticker, and I proceeded to tell him no, I didn't need any more, but
if he needed some, I could get him some. And his comment after that was,
"Go ahead and vote no and be a fucking scab." (Tr. 1737, 1750)
However, there are significant problems with Kirk’s testimony. For example, both in his 35
June 4 pretrial NLRB affidavit (GC Exh. 26) and at the hearing (Tr. 1737), Kirk stated that the
incident happened about a week before the election (i.e. around May 12). Indeed, he seemed
certain of this, as he testified that it was just 3 or 4 days before he learned of a verbal
confrontation that Waller admittedly had with another employee (Craig) on May 21 (Tr. 1740).
See also Kirk’s June 4 affidavit, GC Exh. 26 (Craig told him about his verbal confrontation with 40
Waller “a day or so” after Waller’s bathhouse statement). However, Waller testified, and the
Company’s payroll records confirm, that from March 30 until his discharge on May 27, Waller
worked the midnight shift only once: on May 5 (Tr. 647, 1986–1988; GC Exh. 27). Further, he
was on vacation in Florida from May 6 through May 17 (Tr. 580; GC Exh. 4).
45
There are also other substantial reasons to doubt Kirk’s testimony. For example,
although Kirk testified that he took Waller’s statement “very seriously” (Tr. 1739), he admitted
that he never mentioned it to anyone until after the Union won the election and Craig told him

given the Employer’s polls no weight in evaluating Koerner’s interests in the outcome of this
proceeding.
JD–74–11
7
about his confrontation with Waller (GC Exhs. 9, 26; Tr. 1752, 1756). In addition, as both a 5
current employee and strong opponent of the UMWA, he had both a pecuniary and personal
interest in providing evidence to support the Company’s objections to the election. And, as
discussed below, his testimony about other alleged incidents lacked credibility as well.
Moreover, both Waller and Carrigan denied that the incident ever occurred (Tr. 577, 606, 10
2090–2091). I credit their testimony as it is consistent with other, undisputed evidence and their
overall testimony and demeanor and the record as a whole provide no substantial reason to
discredit it. Although Carrigan (like many of the miners who testified) admitted to having
problems hearing (Tr. 2090), Kirk alleged that Waller spoke in a loud voice and that Carrigan
was dressing right next to Waller (GC Exh. 26). Further, Carrigan exhibited only mild difficulty15
hearing in the courtroom. Finally, while the Company’s poll results indicate that Carrigan was
believed by his supervisors to be in favor of the UMWA in May and June (GC Exh. 8 (third
shift)), there is no other evidence of Carrigan’s union sympathies to corroborate the polls, which
as noted earlier (fn. 7) are clearly hearsay as to whether Carrigan was actually a union supporter.
In any event, the Employer does not specifically contend that Carrigan should be discredited for 20
this (or any other) reason, and I would credit Carrigan even assuming the Company’s polls were
accurate. See fn. 3, above.
Finally, I reject the Employer’s suggestion (Br. 30) that an adverse inference should be
drawn from the Union’s failure to also call Local Financial Secretary Clayton to testify about the25
alleged incident. The Employer cites Kirk’s testimony that Clayton was present in the bathhouse
at the time. However, Kirk initially testified that Clayton was “just kind of floating around
there” (Tr. 1738). Although he subsequently testified that Clayton was “approximately 20 feet”
away, this was in response to a leading question (“And you say he was nearby?”). Further, Kirk
never specifically testified that Clayton actually witnessed the incident or reacted to it in any 30
way. In any event, given the other evidence presented at the hearing, which as discussed above
persuasively discredits Kirk’s allegations, there was no real need to call Clayton to testify. An
adverse inference is therefore inappropriate. One Stop Kosher Supermarket, 355 NLRB No. 201,
slip op. at 2 fn. 3 (2010). See also Advocate South Suburban Hospital, 468 F.3d at 1049.
35
Accordingly, for all the above reasons, I find that the Employer has failed to establish, by
a preponderance of the credible evidence, that either of the alleged threats by Waller actually
occurred.
2. Kirkman’s alleged threat to Kirk.40
The Employer also alleges that another employee, Kirkman, made a preelection threat to
Kirk. Kirk testified that, during a shift change, while he was coming into the unit, Kirkman
passed him going out and said, "Look at that fucking hat. I ought to burn your fucking
house down" (Tr. 1743). 45
Again, however, there are substantial reasons to doubt Kirk’s testimony. First,
although Kirk testified that Kirkman’s entire unit was going out at the time, he never identified
any other employee who would have witnessed the incident. (Counsel never asked him.)
Second, although the incident allegedly occurred sometime before the election, Kirk admitted 50
(Tr. 1767) that, like the alleged incident with Waller, he never mentioned it to anyone, either at
JD–74–11
8
the mine or on Facebook, until after the Union won the election when he gave his May 265
statement to the Company (GC Exh. 9, p. 4). Third, as discussed above, as a current employee
and strong opponent of the Union, Kirk has both a pecuniary and personal interest in bolstering
the Company’s objections and overturning the election.
Further, Kirkman denied that he ever made this or any other comment to Kirk about 10
Kirk’s opposition to the Union (514–515). Kirkman is a 5-year employee of the mine and
serves as a miners’ safety representative under the Mine Safety and Health Act (MSHA).
He also briefly served as union steward for his crew before the Boilermakers disclaimed interest
on April 15 (Tr. 503–504), and openly supported the UMWA in the election campaign (Tr. 505).
However, there is no evidence that he has held any position with the UMWA or otherwise served 15
as its agent since that time. Nor is there any evidence that he has a history of similar conduct or
that the Employer has ever disciplined him for similar conduct.8 Moreover, his overall
testimony and demeanor betrayed no substantial reason to discredit him. On balance, therefore, I
conclude that his testimony is worthy of belief despite his interest in preserving the Union’s
favorable election results.20
Accordingly, like Waller’s alleged threats, I find that the Employer has failed to establish,
by a preponderance of the credible evidence, that the alleged threat by Kirkman actually
occurred.
25
3. Pinkston’s alleged threat to Hansen.
The Employer alleges that another employee, Pinkston, also made a preelection threat.
Pinkston was a union steward and member of the bargaining committee until the Boilermakers
disclaimed interest on April 15, and he supported the UMWA during the campaign (Tr. 869, 881, 30
898, 916–917, 2036, 2041).
To prove this allegation, the Employer presented the testimony of Morrow, a former
employee at the mine. Morrow testified that one day just before the election, as he and another
employee (Hansen) were waiting to go underground, Pinkston approached and had the following 35
exchange with Hansen:
Pinkston . . . asked him, he had heard he had changed his mind, that he was
not going to vote for the Union. [And Hansen] said, you know, I'm really not
sure, I just want to have a job. Pinkston then went and turned and said that, 40
with your past history, with your work[ers] comp case and the amount of
work you have missed, they'll fire you right off the bat. (Tr. 1867.)
However, there are substantial reasons to doubt Morrow’s testimony. First, Pinkston and
Hansen, the two parties to the conversation, disputed Morrow’s version. They readily admitted45
that the conversation occurred and that Pinkston was concerned about whether Hansen had
actually changed his mind about voting for the UMWA. Both also confirmed that Hansen had a
history of absenteeism due to illness, and that the Boilermakers Union had helped him retain his

8 There is also no record evidence that the Employer has disciplined Kirkman for this alleged
incident.
JD–74–11
9
job at the mine. However, both denied that Pinkston told Hansen that the Company would 5
immediately fire him if the Union did not win the election. Rather, as Hansen testified,
[Pinkston] said, I heard you were going to vote non-union. And he said
what's going on, I thought you were on our side. And he said, you got in
trouble one time for occurrences and we went in and helped you. He said, I 10
thought you'd stick with us. And so this is not verbatim -- I don't recall
exactly what he said, but more or less, you know, who's going to help you if
you're going to get in trouble again? Was pretty much basically all that was
said. (Tr. 916, 918, 2076–2077.)
15
Second, although Morrow specifically identified two other employee witnesses who
might corroborate his version (Tr. 1868, 1873)―one of whom (Cullison) has consistently been
perceived by his supervisors as against the Union (GC Exh. 8 (C crew))―the Company never
called either to testify. See C & S Distributors, 321 NLRB 404 fn. 2 (1996) (party’s failure to
call an identified, potentially corroborating bystander is properly considered in evaluating 20
whether that party has carried its burden of proof by a preponderance of the evidence).9
Third, although Morrow no longer works at the mine, he is not a disinterested witness.
Morrow openly opposed the UMWA during the campaign; indeed, he admitted that, on another
occasion, when he saw Pinkston posting a prounion flyer on the bulletin board, he went up 25
behind Pinkston and “ripped” the flyer down and “threw it in the trash.” (Tr. 1869).10 Further, he
continues to work at another, nonunion mine owned by Peabody, which as indicated above is the
Employer’s parent company (Tr. 287, 415, 1817–1819, 1866, 1869, 2075, 2080). In contrast, as
reflected by the subject conversation itself, Hansen was at most a lukewarm or equivocal
supporter of the Union. See also Tr. 2075 (Hansen did not wear prounion stickers or otherwise 30
openly support the Union); and GC Exh. 8 (C crew) (indicating that Hansen was perceived by his
supervisors to favor the Union in April, oppose the Union in the May, and again favor the Union
in June).11

9 The other employee (Head) was listed as against the Union in both preelection polls, but for
the Union in the postelection poll. It is unnecessary to decide whether the failure to call
Cullison and/or Head warrants drawing an adverse inference, as I would find that the Employer
failed to carry its burden of proof regardless.
10 See also GC Exh. 8 (C crew). As described by Morrow, the flyer stated “Without the
UMWA, you better get used to being on your knees begging,” and showed a miner on his knees
begging another man standing over him (Tr. 1869). Although there are differences in the
accounts of what happened next, it is undisputed that Pinkston was upset by Morrow’s conduct
and called Morrow a “scab” (Tr. 1869, 2049–2050; CP Exh. 6, p. 3). However, the Employer
does not contend that any of Pinkston’s actions in connection with this incident (either his
posting the flyer or his reaction to Morrow’s ripping it down) constitute objectionable conduct
warranting a rerun election.
11 As noted above, GC Exh. 8 (poll results) is clearly hearsay as to whether employees were
actually for or against the Union, rather than just perceived to be by their supervisors. However,
in this instance there is corroborating evidence. See Dauman Pallet, Inc., 314 NLRB 185, 186
(1994) (corroborated hearsay is admissible and entitled to some weight in Board proceedings).
Accord: Conley Trucking, 349 NLRB 308, 310 (2007), enfd. 520 F.3d 629 (6th Cir. 2008).
JD–74–11
10
For all the foregoing reasons, I find that Hansen’s version is the more credible 5
description of the conversation. Accordingly, like the alleged threats by Waller and Kirkman, I
find that the Employer has failed to establish, by a preponderance of the evidence, that the
alleged threat by Pinkston actually occurred.
4. Alleged anonymous threatening phone calls10
As indicated above, the Employer also alleges that the election should be set aside
because of four anonymous threatening phone calls to employees prior to the election. In
support, the Employer presented the testimony of the three employees who allegedly received the
anonymous calls: Pezzoni, Koerner, and Glover.15
a. Alleged calls to Pezzoni.
As discussed above, Pezzoni openly opposed the Union, both at the mine and on
Facebook. Pezzoni testified that he received two calls prior to the election. In the first, the 20
anonymous caller asked Pezzoni about his vote, and when Pezzoni indicated that he did not
know, the caller said “there is more than one way to skin a cat.” In the second, the anonymous
caller said he had seen what Pezzoni had posted on Facebook, and “scabs like him would be
taken care of or dealt with at home or at work.” (Tr. 1656–1658.)
25
Again, however, there is substantial reason to doubt Pezzoni’s testimony. For example,
Pezzoni testified that the second call in particular bothered him because “we work in a very
dangerous environment anyway, and accidents can happen and may look like an accident” (Tr.
1658). However, he admitted that he never contacted the phone company or the police to
investigate who had made the anonymous calls (Tr. 1688). Nor did he inform anyone at the 30
Company about the calls until at least a week after the second call, on May 22, after the Union
won the election, when he gave a statement to the Company about them (Tr. 1688; CP Exh. 6, p.
7). Finally, although he had previously mentioned the second call on his Facebook page, at that
time he simply said:
35
Well, I got a call from a dumb fuck telling me to watch it. He seen what I put
on Facebook. He would not say who he was, and that’s about right, I have
the right to say anything I want to at home or at work, as well as any one of
us do. What makes you right or me wrong? (Tr. 1684).
40
I find that, at a minimum, Pezzoni has embellished or exaggerated what was said in the
calls. Specifically, I discredit his testimony that the first anonymous caller said that “there is
more than one way to skin the cat” or made any similar statement or threat. As there is no other
evidence of the call, I therefore find that the Employer has failed to establish that any such
statement or threat was made. See generally 300 Exhibit Services & Events, Inc., 356 NLRB No. 45
66, slip op. at 1 fn. 2 (2010) and cases cited there (uncontradicted testimony need not be accepted
as true if it contains improbabilities or there are other reasonable grounds for believing it is
false). As for the second call, I find that the Employer has adequately established, at most, that
the anonymous caller said that he had seen what Pezzoni had posted on Facebook and to “watch
it.” 50
JD–74–11
11
b. Alleged call to Koerner.5
As discussed above, Koerner was hired shortly after the election petition was filed.
Koerner testified that, a few weeks before the election, he received an anonymous phone call
saying “I better vote for the Union, could be bad for my family and accidents happen
underground” (Tr. 1361–1362). See also his previous May 26 statement to the Company, GC 10
Exh. 9, p. 9 (“I . . .received threatening phone call pertaining to upcoming union election. Was
told be concerned about family and also things could happen underground to look like accident.
Better vote UMWA.”)
However, again, I discredit Koerner’s testimony. Like Pezzoni, Koerner admitted that he 15
“didn’t say nothing to nobody” about the anonymous call until after the Union won the election.
Further, his only explanation for not doing so was, “I just figured it was just somebody, just stuff
going on; I didn’t worry about it.” (Tr. 1362.)12
I find it inherently improbable that Koerner would not have been worried about such a 20
call, or that he would not have told anyone about it. Like the alleged second anonymous call to
Pezzoni, the call on its face threatened both him and his family with serious injury. Further, as
discussed elsewhere in this decision, Koerner’s testimony was not credible with respect to
various other matters as well. Accordingly, as there is no other evidence of the alleged call, I
find that the Employer has failed to establish that it actually occurred. See generally 300 Exhibit 25
Services, above.
c. Alleged call to Glover.
Glover is also a relatively new employee, but was hired a month prior to the election 30
petition, and was therefore eligible to vote in the election. Glover testified that, a few days after
he sustained an injury, he received an anonymous call on his way to work. Glover testified that
the caller just said, “if we don’t go union, you will lose your job over your
injury.” And I asked who it was, and they hung up. (Tr. 1855)35
Unfortunately, there are also substantial reasons to doubt this testimony. First, Glover
admitted that he had simply “pulled” the tendons and ligaments in his shoulder; that he only
missed a half shift of work; and that he was placed on light duty by the Company (Tr. 1855,
1863). Thus, it does not appear he was in any real danger of losing his job at that time. Second, 40
although Glover testified that he told “some people” at work about the call, he never identified
on the record who they were (the Employer’s counsel never asked him), and they were never
called to corroborate his testimony. Third, Glover admitted that he opposed the Union during the
campaign (Tr. 1863), and there is no evidence that he ever mentioned the call until May 24, after
the Union won the election, when he gave a statement to the Company (CP Exh. 6, p. 2). 45

12 It is also noteworthy that Koerner appeared to testify that he actually received more than
one call. See Tr. 1361 (“I had received phone calls . . .”). However, as indicated above, he only
mentioned receiving one call in his previous, May 26 statement to the Company (E. Exh. 12).
JD–74–11
12
Finally, Glover did not impress me as a particularly reliable witness overall. For 5
example, he denied ever hearing any rumors about the mine shutting down, or any employees
expressing concern about the mine shutting down, if the UMWA won the election (Tr. 1861).
However, there is overwhelming evidence that such rumors were rampant and a primary concern
and subject of conversation among employees See Tr. 114–115, 119, 220, 446, 526, 678, 728–
730, 880, 957, 985, 1011–1012; GC Exh. 12; and E. Exh. 22.10
For all the foregoing reasons, therefore, I discredit Glover and find that the Employer has
failed to establish that the alleged call actually occurred. See generally 300 Exhibit Services,
above.
15
5. Recording Secretary Bradley’s alleged threat to Pezzoni.
The Employer also alleges that a preelection threat was made to Pezzoni by Bradley, who
has served as Local recording secretary for both the Boilermakers and the UMWA. Pezzoni
testified that, on his way to the mine one day to get his paycheck, Bradley and several other 20
unknown union supporters approached his vehicle to give a him a flyer at a stop sign near the
mine. Pezzoni testified that Bradley
asked me how I was feeling about the vote, and I said I don't know. And he
later went to say that it didn't look good on me because I hadn't been going to 25
no union meetings. So I said well, I'll take your piece of paper, and I took
the piece of paper and went on in to work. And then came back out, and
nobody stopped me when I came out. (Tr. 1659) 13
Pezzoni’s testimony is generally consistent with his May 22 statement to the 30
Company (CP Exh. 6); and his June 5 NLRB statement (GC Exh. 25), both of which state
that the incident occurred on May 12, a week before the election. Further, unlike the more
serious alleged threats by Waller and the anonymous caller(s), it is not surprising that
Pezzoni would have waited until after the election to report Bradley’s comment, which, as
discussed infra, is ambiguous and relatively innocuous. 35
Moreover, although Bradley denied making such a comment to Pezzoni (Tr. 1962),
he admitted that he handed out flyers on the bypass road in front of the mine (Tr. 1975).
And he never denied that he and other union supporters approached and had a conversation
with Pezzoni at the stop sign. (Counsel never asked him.) 40
Finally, there is no reason to believe that Bradley would not have had such a
conversation with Pezzoni. Although Pezzoni openly opposed the Union during the
campaign, it is entirely possible that Bradley would not have known this because he had
been out on workers’ compensation since September of 2010 (Tr. 1974). 45

13 The Employer also presented evidence that, on a separate occasion, Bradley put a UMWA
sticker on the grille of another employee’s truck that was parked at his chiropractor’s office.
Indeed, Bradley readily admitted that he did so (Tr. 1963, 1982). However, the Employer’s
posthearing brief does not cite this conduct as a basis for overturning the election.
JD–74–11
13
Accordingly, notwithstanding Pezzoni’s dubious credibility overall,14 I find that the 5
Employer has shown, by a preponderance of the evidence, that Bradley did have a
conversation with Pezzoni at the stop sign and that it was consistent with Pezzoni’s
description.
6. Alleged intimidating conduct by Union V.P. Shires, Pinkston, and another 10
union supporter.
In support of this allegation, the Employer presented the testimony of Shoulders.
Shoulders is a 4-year employee who works as a water pumper on the midnight shift (11 p.m.–7
a.m.) and openly opposed the Union during the campaign (Tr. 1881–1882, 1894, 1899–1900). 15
Shoulders testified that two essentially identical incidents occurred in the bathhouse after his
shifts ended on May 19 and May 20, the days of the election. Shoulders testified that, on May
19,
I went around there to my basket to get ready to take a shower and 20
everything, and . . . Pinkston, Shires, and another gentleman -- I don't know
what his name was, was sitting at the end of the bench where my basket was
at. But as I came in, one of my friends asked me, he said, have you voted
yet? And I looked at my watch and I said, well, it's quarter after. I said can I
go like this? Being dirty. And my―he said yeah. Because I knew at 7:30 25
they would close the polls, I'd have to come back at 9:00 to vote. So I went
and voted, and when I came back, Shires and Pinkston and this other guy was
still sitting there on my same bench where I dress, and they sat there and
kicked back, their arms like this [folded], their feet out . . . And right there,
right down from my basket, and they stayed there, and the whole time I was 30
trying to get undressed and take my shower, and they was there when I left
too. (Tr. 1885.)
Similarly, Shoulders testified that,
35
[t]he next day [May 20] my routine is I go over and talk to my partner on the
day shift. And I was a little bit longer that day, I believe, and I came over.
There's a bar comes down our baskets hang off of, with a bunch on either
side. Well, the next day they're opposite of my basket or behind it, leaning
up against the bar, like the bar is going across here and all three of them is 40
like this, and my basket is on the other side like right here. And they sat
there and stared at me, mad, and everything, all three of them, never said a
word. It was―made me uneasy. I'm trying to get undressed and take a
shower and go home. There's three grown men standing there, frowning with
their arms [folded] up there on the rail. (Tr. 1890–1891.)45

14 See NLRB v. Universal Camera Corp., 179 F.2d 749, 754 (2d Cir. 1950), revd. on other
grounds 340 U.S. 474 (1951).
JD–74–11
14
Shoulders testified that, on both occasions, he felt that the three were “up to no 5
good.” He said he felt this way because he knew that Shires, the local union vice president,
and Pinkston were mad at him because he had previously told the local union president
(Fort) that he did not support the UMWA. In addition, they did not normally dress near
him and were not usually there when he took a shower. (Tr. 1886–1887, 1890–1891).
10
However, there are significant problems with Shoulders’ testimony. For example,
Shoulders testified that all three men were dressed in their work bibs on May 19. But, it is
uncontroverted that Shires did not work on May 19 and only came to the mine that morning
to set up for the first voting session. It is also uncontroverted that he was escorted off the
property after the polls opened at 6 a.m. (an hour before Shoulders’ shift ended), and did 15
not return until just before the afternoon session began at 2 p.m. (Tr. 2012–2013, 2021,
2038.)15
Moreover, Shoulders never identified the “friend” in the bathhouse who reminded
him to go vote on May 19 (the Employer’s counsel never asked him). Nor was he or any 20
other employee called to corroborate Shoulders’ testimony that Shires, Pinkston, and
another individual were hanging out in the bathhouse on either day.16

Finally, although Shoulders testified that there are one or two other employees he
talks to every day (Tr. 1890, 1894), there is no evidence that he ever told them or any other 25
anyone else about the incidents until 4 days later, on May 24, when he gave a statement to
the Company (CP Exh. 6, p. 5).
For all the foregoing reasons, I discredit Shoulders’ testimony about the incidents in
its entirety. Rather, I credit Shires and Pinkston, who both denied the alleged incidents30
(Tr. 914, 2012–2014, 2021–2023, 2039). Accordingly, I find that the Employer has failed
to establish by a preponderance of the evidence that the alleged incidents actually occurred.
B. Whether the conduct found warrants setting aside the election.
35
As discussed above, the Employer has adequately established that two of the alleged
preelection incidents actually occurred: (1) the anonymous call to Pezzoni where the caller stated
that he had seen what Pezzoni posted on Facebook and that Pezzoni should “watch it”; and (2)
Recording Secretary Bradley’s comment to Pezzoni that it did “not look good on” him for not
going to union meetings. However, for the reasons discussed below, the Employer has failed to 40
establish that these two incidents warrant a new election, either individually or cumulatively.

15 According to the Company’s campaign materials, there were three voting sessions on May
19: 6–7:30 a.m., 2–3:30 p.m., and 10–11:30 p.m. On May 20, there was just one session, from
6–7:30 a.m. See GC Exh. 22, p. 15.
16 Although Shoulders testified that employees on the unit who run coal get out later than
him, between 8:30 and 9 a.m., he admitted that some of the mechanics and sometimes the
electrician get off work at the same time he does (Tr. 1899). He also admitted that, while no
other employees were dressing near him on May 19, there “might have been a few” employees
“around.” (Tr. 1886.)
JD–74–11
15
1. Anonymous call to Pezzoni. 5
Anonymous phone calls and other preelection campaign conduct that cannot be attributed
to either the employer or the union are evaluated under the so-called “third-party” standard. To
establish that such conduct warrants overturning the election, the objecting party must show that
the conduct was “so aggravated as to create a general atmosphere of fear and reprisal rendering a 10
free election impossible.” Mastec Direct TV, 356 NLRB No. 110, slip op. at 3 (2011) (citing
Westwood Horizons Hotel, 270 NLRB 802, 803 (1984)); and Electra Food Machinery,
279 NLRB 279 (1986). See also Textile Workers v. NLRB, 736 F.2d 1559, 1562 (D.C. Cir.
1984).17
15
Whether vague comments like “watch it” would reasonably engender fear of reprisal
obviously depends on the surrounding circumstances. Where both the speaker and the context
are known and the comment could reasonably be construed as an improper or unlawful threat to
retaliate against protected activity, the Board has found such comments to be coercive and
therefore unlawful. See, e.g., ITT Federal Services Corp. 335 NLRB 998, 1002 (2001) (finding 20
that manager’s comment to an employee that whoever had posted certain union signs and decals
“better watch out” violated Section 8(a)(1) of the Act).
Here, however, neither the speaker nor the context is known. The caller was anonymous.
And it is unclear which of Pezzoni’s Facebook comments the anonymous caller was referring or 25
responding to. The record contains several preelection comments that Pezzoni posted to the
Facebook page of Section Foremen Henderson on May 12 and 13. (Pezzoni and approximately
24–33 other employees were among Henderson’s 460 Facebook “friends”). See GC Exhs. 12
and 15; and Tr. 1052, 1054, 1089, 1093, 1262.18 They include two May 12 posts making
derogatory comments about Pinkston and Local President Fort, and a May 13 post urging 30
UMWA supporters to go work elsewhere (GC Exh. 12, pp. 4–5, 17). However, Pezzoni’s
prehearing NLRB affidavit states that he received the second anonymous call after he posted
comments on May 14 stating that he was concerned the mine would shut down (GC Exh. 25).
Further, regardless of which of Pezzoni’s posts prompted the anonymous caller to tell 35
him to “watch it,” the caller’s comment could reasonably be interpreted as a lawful warning
rather than an improper threat. Thus, if the comment was in response to Pezzoni’s derogatory
posts about Pinkston and/or Fort, it could reasonably be interpreted as a warning that such public
comments might have undesirable legal consequences. See generally Causes of Action for
Internet Defamation, 32 Causes of Action 2d 281 (Updated August 2011). And if the comment 40

17 Cedars Sinai Medical Center, the primary case relied on by the Employer, is
distinguishable. Although the Board in that case applied the less restrictive standard for party
conduct in evaluating anonymous threatening phone calls (whether the conduct has “the
tendency to interfere with employees’ freedom of choice”), the Board emphasized that it was
doing so because no party had filed exceptions to the judge’s use of that standard. 342 NLRB
596, 597 nn. 10 & 12 (2004).
18 Henderson testified that a total of about 25 of his Facebook friends are mine employees
(Tr. 1093), but the General Counsel counts 33 based on a comparison of General Counsel
Exhibit 15 (the list of Henderson’s Facebook friends) and Joint Exhibt 1 (the list of employees
on payroll as of April 9, 2011).
JD–74–11
16
was in response to Pezzoni’s expressed concern about the mine shutting down, it could 5
reasonably be interpreted as a warning that such public comments could be used either directly
or indirectly against the Company to support a rerun election if the Union lost. See Frates, Inc.,
230 NLRB 952 (1977) and cases cited there.19
Moreover, even assuming, arguendo, that the comment would more likely be interpreted 10
as an improper threat than a lawful warning, it was a relatively tame threat in the context of the
Employer’s workplace. As fully discussed below with respect to the Employer’s disparate
treatment of Waller, much more direct and explicit threats of physical harm during arguments
among employees were a frequent and tolerated occurrence at the mine.
15
Finally, there is no record evidence that any employee at the mine actually read Pezzoni’s
post about the call on his Facebook page, or otherwise knew about the call, prior to the election.
(As noted, there is no record evidence regarding Pezzoni’s Facebook page or his “friends.”)
Accordingly, for all the foregoing reasons, I find that the Employer has failed to establish 20
that the anonymous caller’s bare comment that Pezzoni should “watch it” was so aggravated as
to create a general atmosphere of fear and reprisal rendering a free election impossible. See
generally Mastec Direct TV, above, and cases cited therein.
2. Recording Secretary Bradley’s comment to Pezzoni.25
As noted above, preelection conduct by party representatives or agents is evaluated under
a different standard. In order to establish that such conduct warrants overturning the election, the
objecting party must show that that the conduct has “a reasonable tendency to interfere with
employee free choice.” See, e.g., Randell Warehouse of Arizona, Inc., 347 NLRB 591, 597 30
(2006). In applying this standard, the Board considers a number of factors, including the number
and severity of the incidents and whether they would likely cause fear among the employees; the
number of employees subjected to the conduct; whether the incidents occurred close to the
election date; the extent to which the conduct was disseminated among employees; and the
closeness of the final vote. See Taylor Wharton Division Harsco Corp., 336 NLRB 157, 158 35
(2001), citing Avis Rent-A-Car System, 280 NLRB 580, 581 (1986). See also Family Service
Agency San Francisco v. NLRB, 163 F.3d 1369, 1383 (D.C. Cir. 1999).
Here, as discussed above, Bradley made the subject comment to Pezzoni only about a
week before the election, and the vote was relatively close (219–206). However, the comment 40
was not particularly severe. Bradley simply stated that it “did not look good on” Pezzoni that he

19 Of course, it is also possible that an agent or ally of the Company made the anonymous
call to manufacture a later objection in the event the Union won the election. See Textile
Workers, 736 F.2d at 1568 (“ordering a rerun election on the basis of anonymous incidents can
be devastatingly unfair to the majority of employees who have voted for the union; an
unscrupulous employer could encourage anonymous pro-union incidents in order to give it
grounds for use later to reverse the election result if it loses.”) Or the caller might have been
responding to some other offensive comment, not directly related to the election, that Pezzoni
may have posted on his own or someone else’s Facebook page. (Pezzoni’s Facebook page is not
in evidence.)
JD–74–11
17
was not attending union meetings, in response to Pezzoni’s statement that he did not know how 5
he was going to vote. If this was a threat of physical harm, it was wearing an unusually thick
veil. In context, Bradley’s comment would more reasonably be interpreted as a mere expression
of skepticism about Pezzoni’s professed uncertainty. In any event, there is no evidence that
Bradley or any other UMWA officer or agent made any similar comments to any other
employees. Nor is there any evidence that Pezzoni mentioned Bradley’s comment to anyone 10
prior to the vote.
Applying the relevant factors, therefore, I find that the Employer has also failed to
establish that Bradley’s isolated comment to Pezzoni warrants overturning the election.
Accordingly, as the Employer has failed to establish that any of the other alleged threats actually 15
occurred, I find that the Employer’s first objection is without merit.
Objection 2
The Employer’s second objection alleges that the Union “distributed false and fabricated 20
documents indicating that the Employer was the same legal entity as Patriot Coal, falsely
suggesting the Employer was currently a signatory to the BCOA [Bituminous Coal Operators
Association] collective bargaining agreement.” The Employer asserts that this conduct was
“calculated to misinform employees” into “believing that all they had to do [to] get the BCOA
agreement was to vote for the Union―the collective bargaining agreement had already been 25
negotiated on their behalf.” (GC Exh. 1(d); E. Br. 41–42.)
In support of this objection, the Employer submitted into evidence a series of documents
(E. Exh. 21) which purport to show a link between Peabody Energy and Patriot Coal. The first
document is a single page. The top half of the page contains contact information about Peabody, 30
including its address in St. Louis (701 Market Street). The bottom half contains similar contact
information about Patriot Coal Corporation, including the identical address. Local Union
President Fort admitted that someone in the union office printed the contact information off the
companies’ separate internet website pages, and that he put them together on a single page and
posted it on the bulletin board in the wash house during the campaign in order to show that the 35
companies had the same address. He testified that he did so because the Company was telling
employees in the antiunion meetings that they were unrelated companies and that Peabody would
never sign the BCOA. He also admitted that he handwrote “WHAT DO YOU THINK? DID
THEY LIE?” which appears in the margin of the page. (Tr. 126–128, 188, 190–194; see also CP
Exh. 3.)40
The additional documents include: (1) a prounion flier that begins “PEABODY COAL
ALREADY SIGNED THE NATIONAL AGREEMENT”; (2) the cover page of the 2007 Coal
Wage Agreement between the UMWA and six coal companies, including “Peabody Coal
Company, LLC”; and (3) the signature page of the agreement, showing that it was signed by the 45
President of Peabody Coal Company, LLC (with the same listed St. Louis address above). Fort
likewise admitted that the Union placed these documents on a table at one of the local union
meetings for employees to read and take with them (Tr. 131; See also CP Exh. 5, and U. Br. 56–
57, 62–63).
50
JD–74–11
18
Finally, the documents also include selected pages from separate 10-K forms filed by 5
Patriot Coal and Peabody Energy, as well as a list of officers of Patriot Coal that likewise
appears to have been obtained off the internet. Like the first document, these documents include
handwritten notes in the margins, including one on the 10-K forms stating “Peabody Still
Affiliated w/Patriot Coal,” and several on the list of Patriot officers indicating that all or some of
the officers are “affiliated with Peabody,” “Former Peabody,” or “Peabody.” The record 10
indicates that these documents were also passed around at a union meeting, (Tr. 474–475, 482).
However, there is no evidence that it was the Union, as opposed to just one of its supporters, that
did so. Fort denied posting or distributing them, and the record indicates that many employees
did their own internet searches and brought the information to union meetings (Tr. 189, 482,
2028, 2037). 15
The Employer also presented Joseph Klingl, Peabody’s former vice president for labor
relations and a consultant to its unionized subsidiaries since 2005, to testify about the history of
Peabody Energy and Patriot Coal. Klingl acknowledged that Peabody Energy (formerly known
as Peabody Holding Company) used to own various unionized subsidiaries, including Peabody 20
Coal, and that Peabody Coal was still Peabody Energy’s subsidiary at the time Peabody Coal
executed the Coal Wage Agreement with the UMWA in January 2007. Klingl also
acknowledged that Peabody Energy created Patriot Coal as part of its plan to spinoff some of its
less productive underground mines, and that Patriot Coal shared the same address when it was
part of Peabody Energy. However, he testified that Peabody Energy did, in fact, spinoff the 25
mines in October 2007, including the Peabody Coal and other mines listed on the 2007
Agreement; that the Peabody Coal name was dissolved at that time; and that Patriot Coal now
owns the mines. He further testified that Peabody Energy and Patriot Coal no longer share the
same address, employees, executives, or assets, and that they are now listed as separate
independent companies on the New York Stock Exchange (BTU and PCS, respectively) and 30
have no corporate relationship. (Tr. 1317–1321, 1331–1332.)
The Union made no real attempt to refute Klingl’s testimony that there is no longer any
corporate relationship between the two companies. Nevertheless, for the reasons set forth below,
I find that the Employer has failed to establish that the posting or distribution of the above-35
described documents by union officials or supporters suggesting otherwise warrants overturning
the election.
As recently summarized by the Seventh Circuit:
40
Under Midland National Life Ins. Co., 263 NLRB 127, 133 (1982), the Board will
not “probe into the truth or falsity of the parties' campaign statements, [or] set
elections aside on the basis of misleading campaign statements. [It] will, however,
intervene in cases where a party has used forged documents which render the
voters unable to recognize propaganda for what it is.” The rationale for the rule is 45
that employees are “ ‘mature individuals who are capable of recognizing
campaign propaganda ... and discounting it.’ ” Id. at 130 (quoting Shopping Kart
Food Market, Inc., 228 NLRB 1311, 1313 (1977)).
NLRB v. E.A. Sween Co., 640 F.3d 781, 784–785 (2011). See also Somerset Valley 50
Rehabilitation & Nursing Center, 357 NLRB No. 71 (2011).
JD–74–11
19
Here, it is not clear which of the above-described documents the Employer contends were 5
fraudulent. The Employer’s posthearing brief initially states that the Union distributed “a fake
document” (without specifying which one), but then appears to argue that all of the
“Peabody/Patriot documents” were “fake” (Br. 42). In any event, the Employer has failed to
meet its burden. There is no contention or evidence that any of the information that the Union or
its supporters obtained off the internet was altered in any way. For example, the Employer never 10
introduced any documentary evidence to show that, at the time of the campaign, Patriot Coal’s
website listed a different address than Peabody Coal’s website.
Moreover, the employees could easily identify the documents as campaign propaganda.
Thus, it is obvious that the first document was spliced together from two websites: the bottom 15
half with Patriot Coal’s information had different lettering and was placed at an odd angle from
the top half with Peabody’s information. See also Tr. 482. As indicated above, both it and most
of the other documents also had handwritten notations on them. And the Union showed
employees where to go on the internet if they wanted to look up the information for themselves
(Tr. 474).20
Further, Albertson’s Inc., 344 NLRB 1357 (2005), the only case cited by the Employer, is
distinguishable. In that case, the letter distributed by the union was “clearly fake” and the union
remained silent even after the employer provided clear evidence to the union that it was not
authentic. Here, as indicated above, there is no evidence that the circulated documents were 25
fraudulent. And while it is undisputed that the Employer repeatedly told the employees during
the campaign that there was no relationship between the two companies (GC Exh. 22; Tr. 734,
888, 973, 1152–1155, 1230, 1815), there is no record evidence that it provided them or the
Union with any documentation of this.
30
Finally, there was certainly reason for the Union and the employees to remain skeptical in
the absence of such documentation. As indicated by Klingl, the companies have a complicated
history. See also the testimony of Mine Foreman Carter and Mine Manager Francescon, Tr.
1558, 1700 (initially testifying that they worked for “Peabody Coal” before being corrected by
the Employer’s counsel that they work for Peabody Energy); and Peabody Vice President of 35
Midwest Underground Operations Benner, Tr. 1456, 1486 (initially testifying that he is
employed by Peabody Energy, but later testifying that he is employed by “Peabody Investment
Corporation,” and ultimately agreeing with the General Counsel that “it is confusing”).20
Accordingly, for all the foregoing reasons, I find that the Employer’s second objection is 40
likewise without merit.21

20 Counsel for the Employer represented on the first day of hearing that Peabody Investment
“employs and is the payroll function for Peabody Energy.” (Tr. 56). And as discussed infra,
Benner admitted that he made the decision to discharge Waller from the Big Ridge Willow Lake
mine. However, the relationship between Peabody Investment and Peabody Energy and Big
Ridge (and Patriot Coal, if any) was never fully addressed or explained by Klingl, Benner, or any
other former or current officer of Peabody.
21 For the same reasons, I would reach the same conclusion under the broader rule adopted by
the Sixth Circuit in Van Dorn Plastic Machinery Co. v. NLRB, 736 F.2d 343, 348 (1984)
(election may be set aside “where no forgery can be proved, but where the misrepresentation is
JD–74–11
20
Objection 35
The Employer’s third objection alleges that the Union sent a letter and other documents
and notices to employees’ homes falsely representing that Fort was an elected official of the
UMWA and giving the impression that the UMWA was already the collective-bargaining
representative of the unit even before the election. In support of this objection, the Employer10
cites an April 18 letter authored by Fort. The letter is addressed to the Company’s HR
Coordinator and advises that,
[a]s of April 15, 2011, Local S-8 is no longer a part of the International
Brotherhood of Boilermakers. The operating name for Local S-8 will be Coal 15
Miners Local Lodge S-8, AFL-CIO. Everything with Local S-8 stays and
operates the way it has in the past except that it will be handled through our Local
Office and Local Officers. Our dues, fees and assessment structure will stay the
same it has always been. Effective April 15, 2011 all dues, fees and assessments
and all reports to do with the following should be sent directly to Local Lodge S-8 20
Secretary Treasurer. . . Clayton. . . (E. Exh. 18).
As indicated by the Union, however, this letter is not at all supportive of the Employer’s
objection. The letter was addressed to the Company, not to employees, and there is no evidence
that the letter was distributed to employees. Further, it is signed by Fort as “Local Lodge S-8 25
President” and does not even mention the UMWA. Finally, as the Employer concedes (Br. 43),
unlike in Albertson’s, supra, the letter was not a forgery.
At the time it filed its objections, the Employer also submitted another letter authored by
Fort. See GC Exh. 1(k). The letter is unaddressed and undated, but was obviously and
admittedly sent to the unit employees sometime during the campaign (Tr. 122, 194). In addition, 30
unlike the April 18 letter to the Company, it is signed by Fort as “President, UMWA Local
#5929.” (CP Exh. 2.) However, the Employer’s posthearing brief does even mention the letter.
In any event, I find that this letter also fails to support the objection. It is uncontroverted
that the Local was, in fact, chartered by the UMWA in early May, after it obtained its 93 percent
card majority and the Boilermakers disclaimed interest, and that the charter designated Fort as 35
president (Tr. 183, 1972–1973). It is also undisputed that the Company had previously notified
all employees, shortly after the Boilermakers contract expired and it disclaimed interest on April
15, that the mine was now “union free.” See Tr. 130; and CP Exh. 4 (“Did You Notice? You
have more money in your paycheck today. That’s because the mine is now union-free, and there
is no longer a dues checkoff requirement. . .”). And nothing in Fort’s letter suggested otherwise. 40
Rather, the letter urged the employees to “vote for the UMWA” so that it could “negotiate a good
contract” for them.
Accordingly, like the Employer’s first and second objections, the Employer’s third and
last objection is without merit. 45

so pervasive and the deception so artful that employees will be unable to separate truth from
untruth and where their right to a free and fair choice will be affected”). See generally Somerset
Valley, above.
JD–74–11
21
In sum, contrary to the Employer’s contention, there is no evidence that “the Union 5
orchestrated a campaign to intimidate and mislead employees” (Br. 28). Nor do any of the two
alleged preelection incidents that occurred provide a sufficient basis, either individually or
cumulatively, to set aside the results of the May 19 and 20 secret-ballot election. See generally
Textile Workers, 736 F.2d at 1569; and NLRB v. Lake Holiday Associates, Inc. 930 F.2d 1231,
1238 (7th Cir. 1991). As the UMWA received a clear majority of the votes in the election (there 10
were no challenged ballots), it is therefore properly certified as the exclusive collective-
bargaining representative of the unit employees under the National Labor Relations Act.
II. EMPLOYER’S ALLEGED UNFAIR LABOR PRACTICES
15
As indicated above, the General Counsel alleges that the Employer, through its
supervisors and/or agents, committed a number of unfair labor practices before and after the
election, including making numerous threats of mine closure and job loss and discharging
Waller, in violation of Section 8(a)(1) and (3) of the Act.22 Just as the Employer had the burden
to prove its objections to the election, the General Counsel has the burden of proving these unfair 20
labor practice allegations by a preponderance of the evidence. For the reasons set forth below, I
find that the General Counsel has done so with respect to several of the alleged pre and post-
election 8(a)(1) violations, as well as the alleged post-election 8(a)(3) discharge of Waller.
A. Alleged 8(a)(1) violations25
1. Section Foreman Henderson
The General Counsel alleges that most of the unlawful mine-closure statements were
made by Henderson. Henderson has been a miner for about 8 years, and has worked at the 30
Willow Lake mine since February 2010. He is the section foreman (or “face boss”) on the A
crew, unit 4, and an admitted supervisor and agent (Tr. 1068–1069; GC Exh. 1(n), (r).).
a. Henderson’s alleged statement to “Gibby” in mid-April.23
35
In support of this allegation, the General Counsel presented the testimony of one of two
Gibbons brothers employed at the mine (who will be referred to here by his nickname “Gibby” to
distinguish between the two). Gibby has worked at the mine for 3 years and was assigned to A
crew, unit 5 during the relevant period. He was a strong and open supporter of the UMWA
during the campaign. (Tr. 928, 957, 974; GC Exh. 8.). 40

22 Jurisdiction is uncontested. As indicated above, the Employer is an Illinois corporation
that operates an underground coal mine in Equality, Illinois. The Employer admits, and I find,
that it sold and shipped over $50,000 in goods outside of the State, and purchased and received
over $50,000 in goods from outside the State, in the 12 months ending June 30, 2011, and that it
is engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The
Employer also admits, and I find, that the UMWA is a labor organization within the meaning of
Section 2(5) of the Act.
23 This is one of several 8(a)(1) allegations added to the complaint at the hearing. See Tr.
925–927; and GC Exh. 1(t).
JD–74–11
22
Gibby testified that, in mid-April, right after the election date was set, he and Henderson 5
had a brief, private conversation above ground about the Union. Gibby testified that the election
was “all the talk all the time” at the mine during that period, and that Henderson told him,
“you know, if you vote the UMWA in, [the] mine will close. It will shut the mine down."
Gibby responded that it was better to shut it down than work as a scab, and the
conversation ended. (Tr. 941–942, 982.)10
Henderson denied that he made any such statement. Indeed, he testified that he and
Gibby “hardly ever spoke”―that they “never [had] really talked”―as they were on
different units. (Tr. 1638–1640.)
15
Henderson, however, impressed me as one of the least credible witnesses in the
proceeding. He was a markedly evasive and poor witness overall. For example, he was initially
reluctant to even admit that the Company wanted employees to vote “NO” in the election (Tr.
1072–1074, 1130)―even though this is both obvious and heavily documented. Similarly, he
initially testified that he did not know whether the Employer was concerned about which 20
employees did or did not support the Union. However, he later admitted that the Company had
asked him several times which employees in his unit he thought would vote for the Union, and
that he was present at a meeting when all of the A crew section foremen provided this
information to Mine Manager Francescon. (Tr. 1073–1080). Further, as discussed above, there
is no dispute that the Company did, in fact, conduct such polls among its supervisors. See GC 25
Exh. 8.
Henderson also repeatedly testified that the Company instructed him and other
supervisors to talk to employees about the UMWA only if asked, and that he followed this
instruction and only talked to employees if he was asked about his past experience with the 30
UMWA at another mine (Liberty). (Tr. 1129–1132, 1631.) However, no such restriction was set
forth in the Company’s “NLRB Election Conduct Guidelines” for the supervisors. The
guidelines advised that the supervisors were “free to communicate facts, opinions and
experiences,” but not to “SPIT”―spy, promise, interrogate, or threaten (GC Exh. 14, pp. 3–4).
Nowhere did the guidelines say that the supervisors could only share “facts, opinions, and 35
experiences” if asked. In fact, the guidelines specifically instructed the supervisors to “make
sure you make one-on-one contact” with each of the employees on their last shift and “encourage
them to vote ‘NO’” before they go to vote (GC Exh. 14, p. 5). See also employee Shepherd’s
testimony, Tr. 1254 (Henderson approached him and asked why he thought the Union would
help the mines.) 40
Henderson also testified that, when he told employees about his experience at Liberty
(which he testified closed about a year after the UMWA was voted in), he just said that the
UMWA had failed to support the miners after the mine closed.
45
Q. And did you basically say the same thing to all the people you spoke
to about the Liberty situation?
A. Yes.
Q. All right. And can you tell us what you would say to employees when
you did speak about the Liberty situation?50
JD–74–11
23
A. I just told them to think what's right for them, because when I was at 5
Liberty, we were running good. They brought UMWA in, they were
supposed to be behind us. The mine shut down, we didn't get any severance
pay, no job placement. It was just like we paid all the dues for nothing.
Q. Okay. So those are the words that you used?
A. Yes.10
Q. To people? So I take it you didn't -- do I understand correctly your
concern was with how the UMWA treated you after the mine closed?
A. Yes.
(Tr. 1631–1632, 1648.) However, Henderson admitted that he personally believed that Liberty 15
had been shut down because of the UMWA (Tr. 1085, 1648). And, as indicated above, the
Company told him he was free to share his opinions.
Moreover, there are substantial reasons to disbelieve Henderson’s denial of this
particular conversation with Gibby. For example, although Henderson testified that he 20
would not have talked to Gibby because he was on a different unit, on earlier examination
he had admitted that he frequently talked about the election, not only with the employees on his
crew, but with employees who dressed beside him and who he got diesel for. (Tr. 1631). Indeed,
he admitted that he talked to one employee (Hooven) every day before shift, usually in the diesel
barn, even though Hooven, like Gibby, worked on unit 5 rather than unit 4 (Tr. 1094–1096). See 25
also Tr. 945, 948.
On examination by the General Counsel, Henderson also admitted that he personally
believed that the mine would shut down if the UMWA was voted in; that the employees would
be voting themselves out of a job (Tr. 1087–1088). He likewise admitted that he thought the 30
employees had actually put him on the unemployment line when he heard the UMWA had won
the election (1090, 1096–1097). As discussed below, this is graphically confirmed by two posts
he made on his Facebook page shortly after the vote tally (sans any mention of his experience at
Liberty).
35
I also reject the Employer’s various arguments why Gibby’s testimony should be
discredited. The Employer first argues that it is highly improbable that Henderson would have
made the alleged threat of mine closure to Gibby because of the professional training he
received. However, Henderson made the alleged statement to Gibby early in the campaign, and
the record fails to establish that he had been fully trained at that time. See Tr. 1121. 40
The Employer also argues that Gibby should be discredited because he admittedly did not
mention this or any other mine closure statement by Henderson in the pretrial affidavit he gave to
the NLRB investigator on June 14 (Tr. 977). However, Gibby explained that he was never asked
by the investigator about any such statements by Henderson (Tr. 982), and counsel never offered 45
the affidavit or any other evidence into the record to impeach his explanation.
The Employer finally argues that Gibby should be discredited because of his personal
animosity toward Henderson. However, Gibby freely offered during direct examination, without
any prompting from counsel, that he did not “care that much” for Henderson, explaining that 50
their personalities do not click (Tr. 959, 986, 1001). Further, Henderson himself could cite only
JD–74–11
24
one prior incident, when he and Gibby had “a little argument, I guess,” over the easiest and 5
quickest way to put a pinner in the mine face (Tr. 1638–1639.).
Finally, while Gibby was certainly not a disinterested witness given his strong
sympathies for the Union, he impressed me overall as one of the more credible witnesses in the
proceeding. He testified in an even and earnest manner, and his demeanor otherwise betrayed no 10
reason to discredit him.
Accordingly, for all the foregoing reasons, I credit Gibby and find that the General
Counsel has adequately established, by a preponderance of the evidence, that the alleged
statement was made. I also find that the statement violated the Act. Although supervisors 15
have the right to express their opinions to employees about the economic consequences of
union activity, it is well established that such opinions “must be carefully phrased on the
basis of objective fact to convey [a] . . .belief as to demonstrably probable consequences beyond
[the employer’s] control.” NLRB v. Gissel Packing, 395 U.S. at 618. Here, the credited facts
indicate that Henderson did not provide any factual context whatsoever, much less an 20
objective basis beyond the Company’s control, for his belief that the mine would shut down
if the UMWA won the election. Rather, he made an unqualified statement that the mine
would shut down if the UMWA won the election. See, e.g., Guardian Industries Corp. v.
NLRB, 49 F.3d 317, 322–323 (7th Cir. 1995), enfg. in relevant part 313 NLRB 1275 (1994)
(supervisor’s statement to employee that “if we got a union in there we'd be in the 25
unemployment line” violated 8(a)(1)).
Contrary to the Employer’s suggestion (Br. 20), the mere fact that Henderson was a low-
level supervisor, and thus did not himself have authority or say in deciding whether the mine
would shut down, does not render his statement noncoercive. See Pickering & Co., 254 NLRB 30
1060 (1981) (remarks by low-level supervisors can be just as coercive as those by other
supervisors and managers), recently cited with approval in TCB Systems, Inc, 355 NLRB No.
162, slip op. at 2 (2010). See also Central Transport, Inc. v. NLRB, 997 F.2d 1180, 1190 (7th
Cir. 1993), enfg. in relevant part 306 NLRB 166 (1992) (rejecting employer’s argument that
shop manager’s statement to employees that the terminal would probably close because of the 35
union election did not violate 8(a)(1) because he was a low-level supervisor).
Henderson’s statement also is not mitigated by the fact that his superiors subsequently
communicated, during the employee captive-audience meetings, objective facts about other
UMWA-represented mines that had closed (GC Exh. 22; Tr. 424).24 See Smithfield Foods, Inc., 40

24 Whether the Company’s formal “union free” meetings―or “scab school” as some
prounion employees derisively called them (Tr. 512)―were mandatory is not critical to the
allegations in this case. There is no allegation that anything objectionable or unlawful was said
or done in the meetings, or that the last meeting was held within 24 hours of the election in
violation of the Peerless Plywood rule (107 NLRB 427 (1953)). However, the credibility of
witnesses clearly is critical. It is therefore worth noting that I discredit Operations Manager
Schmidt’s testimony that the meetings were nonmandatory and that employees could choose not
to attend (Tr. 1810). First, given the substantial resources invested in planning and conducting
the meetings, as well as the opportunity cost to the mine in lost production time, it is inherently
improbable that Schmidt would have permitted all of the employees to skip the meetings without
JD–74–11
25
347 NLRB 1225, 1228 (2006) (statements to several employees by company consultant and5
supervisor that there was a good chance the employer would close the plant, or that the employer
would close the plant, if the union won the election, violated 8(a)(1) even though the employer’s
top officials repeatedly and lawfully described to employees in speeches, videos, and letters how
the three previous unionized occupants of the facility had closed).
10
Nor is Henderson’s statement cured or rendered harmless by other general statements
made by his superiors that the Company could not lawfully threaten employees and would
bargain in good faith if the Union was elected (GC Exh. 22; Tr. 1241–1242).25 As discussed
below, this was not the only unlawful statement by a supervisor; the record indicates that
Henderson made several such statements to employees before or after the election, and that other 15
supervisors made similar statements as well. To excuse these statements simply because high-
level managers made lawful statements would encourage unprincipled employers to adopt a two-
tier campaign strategy, one lawful and one unlawful, knowing full well that the former would
insulate the latter. Such a two-tier or two-track strategy could obviously prove quite effective, as
first-line supervisors normally have the most regular contact with the employees and may be 20
viewed as more trustworthy or likely to reveal the company’s true intentions than corporate
“suits.” See Garvey Marine, Inc. v. NLRB, 245 F.3d 819, 824 (D.C. Cir. 2001), enfg. 328 NLRB

excuse or penalty. Second, there is no documentation that Schmidt ever communicated that the
meetings were voluntary; indeed, the record indicates the opposite. See Mine Manager
Francescon’s testimony, Tr. 1719 (he thought the meetings were mandatory); Section Foreman
Carter’s testimony, Tr. 1573 (he did not know whether they were mandatory or not); employee
Gibbons’ testimony, Tr. 464 (he asked not to go to one of the meetings, but was told he had
to); and employee Gibby’s testimony, Tr. 980, 986, 988 (he attended the meetings because he
was on the clock and told to go by his boss, even though he “hated every second of each one of
them” and “did not want to be in there”). Although three of Schmidt’s other subordinate
managers or supervisors―Human Resources Senior Manager Gossman, Supervisor Hendricks,
and Section Foreman Stephenson―testified that the meetings were nonmandatory, their
testimony is particularly unpersuasive. Gossman did not testify that the meetings were
nonmandatory (Tr. 1943) until after he heard Schmidt testify. (Gossman was the Employer’s
designated trial representative and therefore exempt from the sequestration order. Tr. 20.)
Further, when previously called as a 611(c) adverse witness on the second day of hearing (Tr.
298), Gossman appeared to agree with the Union’s counsel that they were “captive audience
meetings held at the workplace that all employees were required to attend” (Tr. 423). With
respect to Hendricks, his testimony is weak on its face; although he denied that the meetings
were mandatory, he acknowledged (consistent with the testimony of the Gibbons brothers) that
employees could not “just take a break if they wanted to,” and that he was unaware of any other
options (Tr. 1779). As for Stephenson, as discussed infra, there is little reason to believe
virtually any of his brief testimony (Tr. 1911).
25 The record indicates that the Company also showed a video to employees in which a paid
actor stated, “We are not saying that being UMWA means our mine will close.” (Tr. 1945).
However, Peabody Vice President Benner, who presented at all of the meetings (Tr. 1457, 1488),
testified that he did not himself ever assure employees the mine would not be shut down if the
UMWA won (Tr. 1503). (Although the record includes a Facebook post reporting that he had
made such assurances to one employee (E. Exh. 22), it is clearly hearsay (Tr. 463), is not
corroborated, and the Employer’s posthearing brief does not rely on it.)
JD–74–11
26
991 (1999) (noting that, in such circumstances, “a reasonable [employee] would . . . likely . . . 5
conclude[] that [management’s] public statements were primarily for show while the [first-line
supervisor or agent’s] private warnings reflected management’s actual position”).
Finally, while there is no overt evidence that the Employer intentionally adopted such a
strategy, as indicated above its campaign guidelines (GC Exh. 14) instructed the supervisors to 10
make contact with employees and urge them to vote “NO,” and did not specifically caution that
their opinions should be carefully expressed on the basis of objective facts beyond the
Employer’s control. The guidelines simply cautioned that their opinions could not be a “threat.”
Cf. Garvey Marine, above (finding that campaign statements by boat pilots were attributable to
the employer and unlawful where the employer had specifically instructed them to convince the 15
deckhands to vote against the union, even though the employer had also informed the pilots that
they were expected to stay within the limits of the law). And see generally Passavant Memorial
Hospital, 237 NLRB 138 (1978) (setting forth requirements for effective repudiation of unlawful
conduct).
20
The Employer makes no attempt to distinguish the above-cited legal authority. Nor does
it cite any contrary authority. Accordingly, considering the totality of the circumstances, I find
that Henderson’s statement to Gibby (as well as several of his other alleged statements discussed
below) had a reasonable tendency to engender fear that the mine would be closed if the Union
was elected, and therefore violated Section 8(a)(1) of the Act. 25
b. Henderson’s alleged preelection statements to Shepherd.
The General Counsel also alleges that Henderson made two unlawful statements to, or in
the presence of, Shepherd. Shepherd is an 8-year employee of the mine who, like Gibby, was 30
assigned to the A crew and openly supported the Union during the campaign (Tr. 1214, 1229).
Shepherd testified that Henderson made both of the statements on the same day, when the belts
were down.
I was up on his unit. And he comes up to my ram car. And he said do you 35
mind talking to me about this union stuff. And I'm like, no, I don't care to.
He asked me why I thought the Union would help the mines. And I told him
that I thought it would help the mines, a happy workforce, and make it a
safer place. We had a conversation about that. And he was really respectful.
He never―it was a conversation. And he said that he felt like if we voted in 40
the Union, if the Union wins that from what he's being told that the mines
would shut down.
. . . .
And I asked him why he thought that. And he said, well, just by everything
that is being said to him that he feels like it would shut down.45
. . . .
[W]e sat there at the ram car and we talked for a while about that. . . And he
said, well, the belt is going to be down for a while, he left and told
everybody to take dinner. So I went to the dinner hole and everybody was
talking about the union stuff, and then I overheard Daniel saying that yeah, if 50
they vote the Union in, this place is done, they're going to shut it down.
JD–74–11
27
5
With respect to both the statement to him and to the crew, Shepherd testified that these were
Henderson’s exact words as he recalled them. (Tr. 1253–1255.)
Henderson, however, denied making these specific statements. He testified
10
I remember having a conversation because I only had Shepherd on my unit,
probably less than five times. And I remember everyone was talking about
union stuff, but [] Stevens―he's on my left side, miner man. Blake is my
right side miner man, and most of the time they don't come―all the car
drivers ain't at the feeder―usually ain't at the feeder whenever that goes 15
down, and I talked with them, but it was my right car drivers only. It was
Shepherd and Dewayne, I believe; [] Collins had walked over there. . . .The
only thing that was said from me was telling my story again about Liberty.
Henderson also denied that anyone in management had ever told him the mine would be 20
shut down if the UMWA was voted in. (Tr. 1642–1646).
Again, I find that Shepherd’s testimony is more worthy of belief. Like Gibby, Shepherd
impressed me overall as one of the more credible witnesses in the proceeding. Although he
was likewise not a disinterested witness, his testimony was not always favorable to the 25
General Counsel. Moreover, notwithstanding their different views of the UMWA,
Shepherd was actually one of Henderson’s “friends” on Facebook (Tr. 1262; GC Exh. 15).
In contrast, as fully discussed above, Henderson was a particularly poor witness overall.
Further, while none of the other employees at the dinner hole were called to corroborate 30
Shepherd’s testimony about Henderson’s statement, the record indicates that they are all
regularly assigned to the unit and supervised by Henderson, and thus might very well be
reluctant to testify against him. See Advocate South Suburban Hospital, 468 F.3d at 1046. See
also Flexsteel Industries, 316 NLRB 745 (1995), enfd. mem. 83 F.3d 419 (5th Cir. 1996), and
cases cited therein. In any event, given the clear credibility differences between the two 35
witnesses, Shepherd’s testimony alone is sufficient to establish that the statements were made.
Accordingly, I find that the General Counsel has established by a preponderance of the
evidence that Henderson made the alleged statements. For the reasons fully discussed earlier, I
also find that the statements had a reasonabe tendency to engender fear that the mine would be 40
shut down if the UMWA was voted in, and therefore violated Section 8(a)(1) of the Act.
c. Henderson’s May 20 postelection Facebook posts.
The General Counsel also alleges that two comments Henderson admittedly posted on his 45
Faceboook page shortly after the votes were tallied unlawfully threatened employees with mine
closure. The first comment was posted at 10:10 a.m. and stated:
how can you bee so blind to vote the damn umwa in they shut every down
that they represent and you think peabody is goin to stand for them??? We 50
aint loaded shit aint got a bargaining chip and most all you ignorant fucks
JD–74–11
28
that strutted around with your camo we are everywhere shirts are the kind of 5
people that need the union…….excuse me while i go vomit and and start
sending out resumes.
The second comment was posted shortly thereafter, at 10:36 a.m., and stated:
10
sick to my stomach because i get my son on all 3 of my days off now when this
mine shuts down ill have to go back to driving 50 miles to get two off or stay
around here and work 6 and 1.
(GC Exh. 12, pp. 1, 2; GC Exh. 13, p. 1 (duplicate); Tr. 1089–1090.)2615
For the same reasons discussed above regarding Henderson’s other mine-closure
statements, I find that the foregoing posts violated Section 8(a)(1) of the Act. Contrary to the
Employer’s unsupported contention, it is immaterial that the comments were made by Henderson
on a social media site when he was not at work. As noted above, approximately 25–33 of his 20
Facebook “friends” were employees at the mine (see fn. 18 and accompanying text). Further, on
its face, the first comment was addressed directly to the mine employees who voted for the
UMWA (“how can you be[] so blind . . .”). Cf. Bruce Packing Co., 357 NLRB No. 93 (2011)
(supervisor’s interrogation of employee about union activity violated 8(a)(1) even though the
conversation occurred after the employee’s shift and the supervisor was her friend and godfather 25
to one of her sons); Regal Health and Rehab Center, Inc., 354 NLRB No. 71, slip op. at 48
(2009), reaffirmed and incorporated by reference 355 NLRB No. 63 (2010) (nursing director’s
statements to employee violated 8(a)(1) even though the statements were made while driving
with employee to a restaurant after work); Wake Electric Membership Corp., 338 NLRB 298,
299–300 (2002) (general foreman’s statements to employee violated 8(a)(1) even though they 30
were made at the employee’s home outside of work hours and the foreman was intoxicated);
Electronic Data Systems Corp., 305 NLRB 237, 238 (1991) (supervisor’s comment to employees
in breakroom violated 8(a)(1) regardless of whether he intended it merely as a “friendly

26 All Facebook posts are quoted exactly as they appeared; no attempt has been made to
correct misstrokes or misspellings, expand abbreviations, or add punctuation. Henderson at
some point also indicated that he “liked” the following comment posted on his Facebook page by
an employee on May 13, prior to the election:
These union guys kill me, especially the ones who have never worked umwa but
yet they know so much about it, if they vote that joke of a union in and they shut
us down I hope you people can’t find a job, and if you think perimeter cuts will
stop them you have lost your mind because they can cut perimeters over at
wildcat, and if you thin…k that isn’t they’re plan then why are we parking new
equipment over at the plant and why are there 3 management jobs unfilled and the
warehouse has quit stocking stuff that we normally keep, we are not loading shit
and they have about had they’re fill of us to begin with and this will be the final
nail in the coffin! (GC Exh. 12, p. 4.)
However, there is no allegation that he violated the Act by doing so. Cf. Mashantucket Pequot,
356 NLRB No. 111 (2011) (employer argued that former employee’s Facebook comment should
be attributable to the union because a union agent had indicated agreement with it by pushing the
“like” button).
JD–74–11
29
warning”); and Progressive Mine Workers, District 1 v. NLRB, 187 F.2d 298 (7th Cir. 1951), 5
enfg. 89 NLRB 1490 (1950) (local union president’s comments to employees violated 8(b)(1)A)
even though the conversation occurred at their homes and he stated that he was speaking to them
“as a friend”).
Moreover, even if Henderson had not intended his Facebook posts to be seen by the 10
Willow Lake employees, it was virtually certain under the circumstances, and therefore
reasonably foreseeable, that they would be (Tr. 1090). Indeed, he received several responses,
including a favorable one from unit employee Craig (“Ill puke arm in arm with ya”), and an
unfavorable one from Waller’s spouse (“IM THANKFUK N U CAN DELETE ME IF U WANT
TO! IM PROUD OF THE MEN THAT VOTED N STRUTTED THEIR SHIRT!”). (GC Exh. 15
12, p. 2.)27 Accordingly, the Facebook posts clearly violated the Act. See generally National
Assn. of Government Employees (IBPO), 327 NLRB 676, 680 (1999), enfd. mem. 205 F.3d 1324
(2d Cir. 1999), and cases cited there (a respondent’s statement to a nonemployee may properly
be held unlawful if it is reasonably foreseeable that employees would learn of it).
20
d. Henderson’s alleged May 20 postelection statement in the bathhouse.
The General Counsel alleges that Henderson also made an unlawful statement in the
bathhouse later the same day, after the second shift. In support of this allegation, the General
Counsel presented the testimony of Shepherd and Gibby. Shepherd testified that, on May 20, 25
after completing the second shift,
I'm coming out of the shower. I'm going to my basket to get dressed. Earlier
in the day, when Gibby come through, he gave me a UMWA hat. It's a black
one with gold letters. And put it in my basket. I never even tried it on yet. I 30
got dressed. [Henderson] comes in the bathhouse. I go over to the mirror,
put it on, looking at it. [] Henderson approaches me and says, looks at me
and says . . .I hope you're fucking happy that you just voted all these people
out of their fucking jobs. . . [H]e was mad. And we was pretty nose to nose.
And I've never seen him that way. And I had to walk away. (Tr. 1220.)35
Gibby testified that he likewise heard Henderson make such a statement. Specifically, he
testified that, as he was coming out of the shower, he saw Henderson up towards the opposite
corner of the bathhouse and heard him say, “I hope you’re happy. You voted yourself out of a
job. You voted us out of a job.” He did not, however, notice who Henderson was talking 40
to. (Tr. 971–972).
As for Henderson, he denied making any such statement in the bathhouse (Tr. 1087,
1641). Indeed, he denied that he ever “personally” (i.e. in person) told anyone that he was
upset about the election results (Tr. 1089). However, he admitted that he worked the 45

27 Henderson admitted that his May 20 posts on his own Facebook page would also have
appeared on the “CoalMinerPeabodyYes” website (Tr. 1091), which, according to Waller’s
spouse, is a website “just for the guys out there that work to blab” (Tr. 1067). See also Tr. 1053,
1066; GC Exh. 13, pp. 20–21.
JD–74–11
30
second shift that day (Tr. 1089).28 As discussed above, he also admitted that he believed in 5
his mind at the time that the employees had just voted themselves out of a job.
On balance, I find that the testimony of Shepherd and Gibby, which is essentially
consistent and corroborative, is more worthy of belief. First, given Henderson’s angry rant
on Facebook, it is not improbable (even considering his previous training) that he would 10
have made a similar angry comment to Shepherd (who, as indicated above, was one of his
Facebook “friends”) later the same day. Second, as discussed above, both Gibby and
Shepherd impressed me as particularly credible witnesses, whereas Henderson was an
exceptionally poor witness overall.
15
Accordingly, considering all the relevant factors, I find that the General Counsel has
adequately established that the alleged statement was made. I further find, for the same
reasons set forth above with respect to Henderson’s other statements, that the statement
violated Section 8(a)(1) of the Act.
20
e. Henderson’s alleged statements to Hooven and Wise on May 21
The General Counsel alleges that Henderson also made unlawful statements the
following day, on May 21. In support of this allegation, the General Counsel presented the
testimony of Hooven and Wise. Hooven has been employed at the mine since November 2010. 25
He is assigned to A crew, unit 5, and reports to the shift leader on that unit (Davis), who runs the
unit in the absence of a section foreman. (Tr. 716, 1070, 1077–1078, 1138.) Hooven was one of
the most outspoken supporters of the Union; indeed, he testified that nobody was more
outspoken than him except Waller (Tr. 731, 762).
30
Hooven testified that, after the shift, around 12:30 at night, he was approached in the
parking lot by Pezzoni (who, as discussed earlier, is a shift leader and openly opposed the
Union).
[Pezzoni] asked me, he said I'm going to need to talk to you. I was like okay. 35
So we had a conversation. We were talking about the Union. He asked me if
I had ever intimidated someone or been intimidated. And I said no. I said,
no, I've never been intimidated before or I haven't intimidated anyone. And
he said, well, I'm just saying that.
40
[A]nd about this time here comes [Henderson]. And he's sore. He's mad
about the Union, about how the vote went. . . .He was coming from the
bathhouse. . . .And as he passed us, he turned around and he said […] I told
[Pezzoni], I said, well, everybody knows how I voted and how I felt, and I
said it's over. And that's when he was, like I said, a couple of steps passed 45

28 It is uncontradicted that the section foremen must complete certain paperwork at the end of
every shift, and that everybody else is therefore usually gone by the time they take their showers
(Tr. 1526, 1634, 1693–1694). However, May 20 was obviously not an ordinary day. Moreover,
both Shepherd and Gibby did, in fact, testify that Henderson entered the bathhouse well after
them.
JD–74–11
31
us. He turned around and he was pointing at me. . . . And [] Henderson said I 5
hope you're happy, you just put us all on the G.D. unemployment line. I
mean that was his exact, pretty much his exact words. He said that's fine,
that's fine, he said, because Peabody knows. They've got a list. They know
everybody that was wearing their hats, putting stuff in their cars, and putting
those things in your cars, wearing your shirts in and out. 10
And about this time that's when [] Wise come and he heard him. [Wise] had
actually passed us. And when he kind of got loud, [Wise] come over and
interrupted and interceded for me. Because I mean I just put my head down,
because I already felt bad enough. They had already made me feel, you 15
know, they had already made me feel bad for doing what I thought was right.
And . . . [Wise] said to [Henderson] and he's like we're just working for a
better day. And he started, you know, they just walked off. And that was
pretty much the end of that. (Tr. 724–725.)
20
As indicated above, Wise also testified about this incident. Wise has been a mine
employee for 6 years. He is assigned to the A crew as well, but is on unit 2 and reports to Section
Foreman Parkinson (Tr. 234; see also Tr. 833, 1078.) He was also an open union supporter
during the campaign (Tr. 239–240). Wise testified that:
25
I was leaving the bathhouse and I heard [] Hooven and [] Henderson arguing.
And so I―presently [] Hooven had told me that he had been harassed by
different individuals at work. And when I walked out, I heard them arguing.
And I thought I could go over and see if maybe I could help. And when I
approached I asked [] Henderson if―why he was being such a sore loser 30
about the election. And he told me he wasn't a sore loser and that we all
were going to be unemployed. So I asked him why he thought we would [be]
unemployed. And he told me to use my head, that Peabody will wait until
the TVA contract runs out and shut the doors. (Tr. 235.)
35
Both Pezzoni and Henderson denied that Henderson made any of the foregoing
statements to Henderson and Wise. Indeed, Henderson denied that he even had a
conversation with Hooven or Wise in the parking lot that day. (Tr. 1634–1635, 1664.)
Again, on balance, I find that the testimony by Hooven and Wise is more credible. 40
First, their accounts are generally consistent and corroborative. Although there are parts of
each that are not addressed by the other, this is consistent with their testimony that Wise
came along after Hooven and Henderson had already begun their conversation, and that
Wise and Henderson walked off together after Wise intervened.
45
Second, Pezzoni admitted that he works the same shift and time period as
Henderson, and that the shift ends at 11:30 (Tr. 1692 1693). Although he testified that he
and other employees are usually gone by the time Henderson and other section foremen
leave (see fn. 28, above), Pezzoni admitted that he will sometimes see his section foreman
in the parking lot after the shift (Tr. 1694). 50
JD–74–11
32
Third, it is undisputed that the Company began collecting statements from 5
employees after the election to support filing objections to the election (Tr. 346). Indeed,
Pezzoni gave such a statement to the Company the following day (CP Exh. 6). Thus, it is
not surprising that Pezzoni, who admitted having “a lot of” conversations with Hooven (Tr.
1664), would have asked Hooven in the parking lot about whether he had ever been
intimidated or intimidated anyone during the campaign. Indeed, Pezzoni never specifically 10
denied have the conversation. (Counsel never asked him.)
Fourth, as noted earlier, Henderson also admitted that he talked to Hooven
frequently, including about the Union (Tr. 1094–1096). And given Henderson’s previously
discussed statements on Facebook just a day earlier, it is not improbable that he would 15
have made similar statements to Hooven and Wise.
Fifth, Hooven had previously reported Henderson’s May 21 statements, including
Henderson’s comment about the Company keeping a list, in the affidavit he gave the NLRB
investigator on June 14 (Tr. 799–800). Hooven could not have known about the existence 20
of such lists at that time unless someone had told him.29 The Employer did not produce the
lists (i.e. the results of its supervisory polls) until the first day of hearing, in response to the
General Counsel’s August 8 subpoena, after I rejected the Employer’s assertion that any
such documents were protected by the attorney-client and work product privileges (Tr. 24–
57).30 25
Finally, unlike Henderson and Pezzoni,31 Hooven and Wise generally impressed me
as credible witnesses. Although the Employer cites various reasons why Hooven should be
discredited, none has any substantial basis. For example, at the hearing, the Employer’s
counsel made much of the fact that Hooven hugged and goosed Henderson in the hallway 30
outside the courtroom prior to testifying, arguing that this evidenced a psychiatric
condition affecting his competency to testify (Tr. 741–745).32 Counsel make the same

29 Hooven alleged in his affidavit that Davis had made a similar statement to him about the
Company keeping a list of union supporters (Tr. 797). See also Tr. 726 (Davis told him in mid-
May that he needed to watch his back; that he had an “X” on his back; and that he was making
himself a target by wearing prounion hats, etc.). However, like Henderson, Davis denied making
any such statements to Hooven (Tr. 1604).
30 The subpoena requested “for the period April 1, 2011 to the present, all documents
regarding the union sentiments of Respondent’s employees, including but not limited to
documents identifying which employees did or did not support the Union . . .” (GC Exh. 1(p)).
31 Regarding Pezzoni (who was also a Facebook “friend” of Henderson’s), see the discussion
of the Employer’s election objections, above. See also Tr. 1672–1673 (initially denying that he
thought the mine would close if the employees voted for the UMWA; subsequently
admitting that he posted a comment on Facebook stating something like that; but testifying
that he did not really believe that and posted the comment only “because I was pissed at
other people out at the mines, things they were saying”).
32 The issue arose when counsel attempted to question Hooven on cross-examination about
whether he takes any psychiatric medication or has received any psychiatric treatment.
Following a discussion of the matter (outside the presence of the witness), I sustained the
Charging Party’s objection.
JD–74–11
33
argument in the Employer’s posthearing brief (Br. 19). However, while goosing is 5
undoubtedly rare among courthouse lawyers, it is apparently common among coal miners.
As Mine Manager Francescon, one of the Employer’s own witnesses, testified:
[I]f you've ever worked in a coal mine, there's goosing going on. If you want
to bring up anything with hands, it's all the time going on as far as the 10
goosing and this and that . . . there’s a lot of goosing going on. (Tr. 1716.)
See also Tr. 1705. Further, Hooven testified, without contradiction, that Henderson gooses
him all the time at work. He also provided an eminently reasonable explanation why he
gave Henderson a hug: 15
because I wanted to prove that there was no kind of barrier between the
UMWA and what I felt in my heart. Just because I'm out there with my
union brothers, that doesn't mean that me and him still can't talk. We've still
got to run coal. We've still got to work together. We've still got to even 20
maybe fish one day together, hopefully, and we'll start talking next. (Tr. 773–
775).
The Employer also summarily argues that Hooven should be discredited because he
“was implicated in giving willfully false testimony” to the NLRB investigator against 25
Davis (Br. 16). The Employer appears to be referring to Davis’ testimony that Hooven
voluntarily confessed that he had given such false testimony in a conversation they had
underground in mid to late July. According to Davis, he was walking by the feeder when
Hooven, who was the feeder watcher that day, asked him to come over and talk for a few
minutes. Hooven was visibly upset, emotional, and crying, and Davis thought that he might 30
be hurt or sick. However, instead, Hooven told him that he had given an affidavit to the
NLRB stating that Davis had made various unlawful comments during the campaign, and
that the affidavit was not true. Hooven told him that Fort, the union president, had asked
him to “write the affidavit on me.” (Tr. 1586–1588.)
35
The Employer argues that Davis’ account of this conversation is uncontroverted
because Hooven never rebutted it. However, this is incorrect; Hooven specifically
addressed the alleged incident. He acknowledged that he had a conversation with Davis
about his NLRB affidavit, but testified that it was prompted by the unusual way Davis was
treating him that day. Hooven testified that Davis was “acting differently,” not joking and 40
laughing as usual, and was being “real hard and dogging” him. When Hooven asked Davis
what was wrong, Davis replied, “you know good and GD well what’s going on. . . I know what
was written about me.” Davis told him “from now on you’re going to be on the feeder, and
that’s where your ass is to stay.” Hooven admitted that, after this, he did break down and
cry, both from the pressure and because he thought he had gotten Davis in trouble. 45
However, he testified that he simply told Davis that the Union had asked him to give a
statement to the NLRB about what he recalled happened during the campaign. He
specifically denied both that he gave false testimony about Davis to the investigator, and
that he ever made a contrary confession to Davis. (Tr. 775, 782–789, 795.)
50
JD–74–11
34
Moreover, I find that Hooven’s version of the conversation has the greater ring of 5
truth. It is inherently improbable that Hooven would have initiated such a conversation
with Davis for no reason. Further, although Davis initially testified that he did not know
that Hooven had given the affidavit or what it alleged at the time of the conversation (Tr.
1598), he later admitted on cross-examination that the Company had previously met with
him and recited the allegations set forth in the NLRB’s letter to the Company (Tr. 1609, 10
1617). I find that either Davis was told by the Company that Hooven had made the
allegations, or that he had independent knowledge of this (either because he remembered
who he made the alleged statements to or found out by other means) prior to his
conversation with Hooven.33
15
There are also other substantial reasons to question Davis’ testimony. Although
Davis is still a shift leader and was eligible to vote in the election, he essentially runs
Hooven’s unit in the absence of a section foreman. Further, he is “next in line” to be a
section foreman (Tr. 1070). He also openly opposed the Union during the campaign. See
Tr. 1590–1593. Thus, he had both a pecuniary and a personal interest in testifying for the 20
Company. Finally, as discussed below, he gave incredible testimony with respect to
various other matters, including the events leading to the May 27 discharge of Waller.
Accordingly, notwithstanding their own interests in the outcome of this proceeding,
I credit Hooven and Wise and find that the General Counsel has adequately established, by 25
a preponderance of the evidence, that Henderson made the alleged statements to them. I
further find that the statements to Hooven and Wise violated the Act. The mine-closure
statements were unlawful for the same reasons discussed above with respect to
Henderson’s other, similar statements. As indicated by the General Counsel, the “keeping
a list” statement to Hooven was likewise unlawful, as it suggested that the Company 30
intended to take unspecified reprisals against employees who had openly supported the
Union in the election.34
f. Henderson’s other alleged statements.
35
The General Counsel also alleges that Henderson made numerous other unlawful
statements of a similar nature to or in the presence of Gibby, Shepherd, and Hooven from about
mid-April to May 20, 2011. One of these allegedly occurred in mid-May, and the others on
“more precise dates unknown to the General Counsel.” However, it is unnecessary to delay a
decision to address these allegations as they involve the same individuals as similar violations 40
already found above, and the General Counsel failed to call corroborating witnesses or offer
other substantial evidence that Henderson’s additional statements were heard or disseminated to
other unit employees. Thus, the additional alleged violations would be cumulative and add
nothing of significance to either the scope of the cease and desist order or the justification for the
requested Gissel bargaining order. See, e.g., Regency House of Wallingford, Inc., 356 NLRB 45

33 Neither Hooven’s affidavit nor the NLRB’s letter to the Company describing the
allegations against Davis were introduced into the record.
34 The General Counsel does not contend that this statement unlawfully created an impression
of surveillance. See generally United Charter Service, Inc., 306 NLRB 150 (1992).
JD–74–11
35
No. 86, slip op. at 6 fn. 15 (2011); Evergreen America Corp., 348 NLRB 178 fn. 3 (2006); and 5
Abramson, LLC, 345 NLRB 171 fn. 1 (2005).
2. Section Foreman Bowlin
The General Counsel also alleges that Bowlin, another section foreman and admitted 10
supervisor, made an unlawful mine-closure statement to an employee during the campaign. In
support of this allegation, the General Counsel presented the testimony of Frailey. Frailey has
worked at the mine for 8 years, and was assigned to Bowlin’s crew and unit (B crew, unit 4)
during the relevant period. (Tr. 1007.)
15
Frailey testified that the conversation occurred about 3 weeks before the election, when
he was underground working by himself cutting a crosscut. He testified that
we had some free time, the belts went down and I had backed the miner up
out of the cut and [Bowlin] had come over to me and said I need to talk to 20
you. And so he proceeded on telling me, you know―I was like what about
you know? And he said, well, I want to tell you about the Union. . . . He just
was talking against it, things like that, and was telling me that if we voted the
Union in, that they would shut the mine down. So then I asked him, well,
how do you know? He said, well, I have 30-something years and he said I've 25
seen it happen before. They'll shut the mine down. . . .He went on with the
conversation that if they did vote the Union in―or we did vote the Union in,
that within a year, that the mine would be shut down. (Tr. 1008–1010.)
I credit Frailey’s testimony for several reasons. First, Bowlin confirmed that he and 30
Frailey had a conversation about the Union, as well as some of the details in Frailey’s account.
See Tr. 1916 (confirming that he said something about being around a long time). Second,
Bowlin initially offered only a weak denial that he had made the alleged statement about the
mine shutting down. See id. (“not that I recall;” “I don’t recall that”). Third, Bowlin’s own
description of the conversation did not have the ring of truth. Thus, he testified that Frailey 35
initiated the conversation about the Union and asked him what he “thought about what was
going to happen.” Bowlin testified that “I told him I couldn't comment on that, and I said
he'd have to make up his own mind.” (Tr. 1916.) However, as previously discussed, the clear
weight of the evidence, including the Company’s own campaign guidelines (GC Exh. 14),
indicates that the section foremen were expected by the Company to initiate contact with their 40
employees and share their negative experiences with and opinions about the Union. Fourth,
Bowlin subsequently acknowledged that he did, in fact, tell other employees about his
experiences with the UMWA, when he was asked by the employees (Tr. 1917). Thus, it is
unlikely he would have refused to do so with Frailey.
45
Finally, there are no substantial reasons in the record to discredit Frailey. While the
Company’s poll results indicate that Frailey was believed by his supervisors to be in favor of the
UMWA (GC Exh. 8 (B crew)), there is no other evidence of Frailey’s union sympathies to
corroborate the polls, which as previously discussed are clearly hearsay as to whether Frailey
was actually a union supporter. In any event, the Employer does not contend that Frailey should 50
JD–74–11
36
be discredited for this (or any other) reason, and I would credit Frailey even assuming the 5
Company’s polls were accurate. See fn. 3, above.
Accordingly, I find that the General Counsel has adequately established by a
preponderance of the evidence that Bowlin made the alleged statement to Frailey. Like
Henderson’s mine-closure statements, I also find that the statement violated Section 8(a)(1) of 10
the Act, as it was unqualified, without any expressed factual context or objective basis beyond
the Company’s control.35
3. Compliance Supervisor Clarida
15
The General Counsel also alleges that Compliance Supervisor Clarida (likewise an
admitted supervisor) made an unlawful mine-closure statement during the campaign. In support
of this allegation, the General Counsel presented the testimony of Kirkman. As previously
discussed above in the objections case, Kirkman is one of the miners’ safety representatives
under MSHA. He was also briefly a steward for the Boilermakers until it disclaimed 20
interest, and he openly supported the Union during the campaign.
Kirkman testified that, in early May, while he and Clarida were escorting an MSHA
inspector underground, the two of them started talking about all the graffiti around the mine
(“Vote NO,” “Vote Yes”), and how tacky it looked.25

I told him that I didn't think it needed to be there, that it looked bad and
being a little bit cocky, I said it didn't matter, we was going to win the vote
anyway. . . .[Clarida] told me that if we did win the vote, that they would
shut the mine down, and I told him that it was their mine, they can do with it 30
what they want to do with it. (Tr. 504 505.)36

35 At the hearing, the Employer tried to cast doubt on whether Bowlin was referring to the
Company or the Union when he allegedly said “they” would shut the mine down. However,
Frailey testified that he was certain that Bowlin was referring to the Company, noting that
Bowlin specifically stated during the course of their conversation that “Peabody would not run
under a UMWA contract.” (Tr. 1016.) As indicated above, aside from citing Bowlin’s
testimony, the Employer’s posthearing brief offers no specific reason why Frailey’s
testimony in this or any other respect should be discredited.
36 Union President Fort testified that Kirkman told him about Clarida’s statement the next
day, in the bathhouse (Tr. 118). Although this testimony was at least arguably nonhearsay under
FRE 801(d) (out of court statements offered to rebut an express or implied charge of recent
fabrication), in response to the Employer’s hearsay objection, counsel for the General Counsel
stated that Fort’s testimony was being offered only to establish “dissemination” (which became
the code word and signal throughout the hearing that evidence was being offered solely to
support issuance of a Gissel bargaining order). Indeed, counsel made this statement even
knowing that Fort’s testimony was corroborated by Kirkman (and thus would have been
admissible under Board law even if it was hearsay). See Tr. 118, 505. Accordingly, and as the
General Counsel’s posthearing brief does not cite Fort’s testimony in support of the allegation, I
have given it no weight.
JD–74–11
37
Again, I credit Kirkman’s testimony. Like Bowlin, although Clarida denied that he made5
the alleged statement, he confirmed that he had such a conversation with Kirkman during the
MSHA inspection. He also confirmed some of the details of the conversation. See Tr. 1923
(“We were kind of laughing because everywhere you looked you saw vote no, vote yes, vote no.
We were commenting about that.”). Further, he gave inconsistent testimony on cross-
examination about other details. Thus, he testified that both he and Kirkman thought the graffiti 10
looked bad, but would only acknowledge that Kirkman “could [have]” commented about it
looking bad. It is not clear how Clarida could have known Kirkman thought the graffiti looked
bad if Kirkman did not say so. Clarida also gave weak testimony as to other details. Thus, he
testified that he “did not remember” Kirkman saying that the graffiti was unnecessary because
the Union was going to win anyway, but acknowledged that there was a “possibility” Kirkman 15
said that. (Tr. 1926.). Finally, as discussed earlier, Kirkman gave credible testimony in the
objections case.
Accordingly, I find that the General Counsel has adequately established by a
preponderance of the credible evidence that Clarida made the alleged statement to Kirkman. I 20
also find that the statement violated Section 8(a)(1) of the Act. Like the mine-closure statements
by Henderson and Bowlin, it was unqualified, without any expressed factual context or
objective basis beyond the Company’s control. Further, as discussed earlier, contrary to
the Employer’s contention, it makes no difference that Clarida only supervised nonunit
salaried workers and did not himself have the authority to shut down the mine.25
4. Fill-In Mine Manager Hendricks
The General Counsel also alleges that Hendricks, a fill-in mine manager and admitted
supervisor, made an unlawful statement to an employee. In support of this allegation, the 30
General Counsel presented the testimony of Gibbons (Gibby’s brother). Gibbons has worked at
the mine for 7 years and is on B crew. He was an open union supporter during the campaign.
He did not wear UMWA stickers on his hat because he is an EMT. However, he had prounion
stickers on his dinner bucket, which he hangs on a roof bolt close to where he works. (Tr. 439,
454). 35
Gibbons testified that the alleged statement was made on May 15 or 16, the last or second
to last day his crew worked prior to the election. Gibbons testified that he was working by
himself setting the miner up on unit 1, when Hendricks
40
come up and exchanged pleasantries briefly[.] [A]nd he asked me if I was
still supporting the Union, if I still planned on voting yes. I told him yeah,
and then he said, well, you know what they're saying. He said you might be
voting your job away, voting yourself out of a job, something like that. . . . I
told him I didn't give a damn. I said I'd as soon shut the damn doors on the 45
place because they've been screwing us ever since we've been there. (Tr.
440–441.)
Hendricks denied having such a conversation with Gibbons or making the alleged
statement. Although he admitted having daily conversations with Gibbons during that period, he 50
JD–74–11
38
testified that he never brought up the Union because he knew what Gibbons’ intent was. (Tr. 5
1774, 1777.)
I find that Gibbons’ testimony is more worthy of belief. As discussed above, the
Company’s election conduct guidelines specifically instructed the supervisors to make “one-on-
one contact” with each employee during the last shift before the election and encourage them to 10
vote “NO” (GC Exh. 14, p. 5). There was no exception listed for employees who had openly
supported the Union up to that time. Thus, as it is undisputed that the crew was not scheduled to
work on May 17, 18, and 19, Hendricks would have violated the Company’s instructions if he
did not have a conversation about the Union with Gibbons on May 15 or 16.
15
Further, Hendricks did not impress me as a particularly reliable witness generally. For
example, as previously noted (fn. 24), he initially denied that the Company’s “union free”
meetings were mandatory, but later admitted that there were no other options. In contrast,
Gibbons impressed me as a credible witness overall.37
20
Accordingly, I find that the General Counsel has adequately established by a
preponderance of the evidence that Hendricks made the alleged statement to Gibbons. For the
same reasons discussed above, I also find that the statement violated Section 8(a)(1) of the Act.
5. Group Executive Meintjes25
The General Counsel also alleges that Peabody Group Executive Meintjes made an
unlawful statement that impliedly promised to pay for an employee’s education if the Union lost
the election. Meintjes allegedly made the statement to Hooven in mid-May. Hooven testified
that he had asked for, and was granted, the opportunity to talk personally with Meintjes near the 30
dinner hole after one of the captive-audience meetings. During the course of their conversation
about the union campaign, Hooven mentioned that he only had a high school degree, and still
needed a few credits to get an associates degree. Meintjes replied that it would be good for him
to finish school and get a degree in mechanics or electrical work because the Company always
needed mechanics and electricians. 35
And . . . I said, well, I haven't been to the school, the maintenance school or
anything. And [Meintjes] said, well, if this was a non-union coal mine, . . .I
could put you through school. He said maintenance school is [where to] get
your electrical card because I told him I didn't have my electrical card, either. 40
And he said I could put you through school, but he said. . .because it's union
. . .my hands are tied. (Tr. 717–719, 747–752.)

37 Contrary to the Employer’s posthearing brief (p. 23), Gibbons’ pretrial affidavit did not
state that the conversation with Hendricks occurred on May 18. The affidavit stated that the
conversation occurred “a day or so before the election, I can't recall a more specific date.”
Gibbons credibly testified that, when he gave the statement to the NLRB investigator, he
had forgotten that he had 3 days off before voting, i.e. that it was actually one or two work
days before the election. (Tr. 454.)
JD–74–11
39
Hooven testified that Mine Superintendent Hood was also present and heard the entire 5
conversation (Tr. 747).
The Employer did not call either Meintjes or Hood to testify. Hooven’s testimony
therefore stands unrebutted.38 Accordingly, as there is no other substantial basis to discredit
Hooven’s account, I find that Meintjes made the alleged statement to Hooven. 10
I further find that that the statement was unlawful. The Employer argues that Hooven
admitted that the conversation was cordial and that Meintjes made no overt promises or threats
(Tr. 764). However, the General Counsel alleges that the statement was an implied promise of
benefits if the Union lost the election. And the law supports the General Counsel’s allegation. 15
See, e.g., Centre Engineering, Inc., 253 NLRB 419, 421 (1980); Ranco Inc. 241 NLRB 685, 685
(1979); Hanover House Industries, 233 NLRB 164, 168 (1977); and Sandy's Stores, Inc., 163
NLRB 728, 735 (1967), enfd. in relevant part 398 F.2d 268 (1st Cir. 1968). The Employer’s
posthearing brief does not address any of this case authority. Nor does it cite any contrary
authority. Accordingly, I find that the statement violated Section 8(a)(1) of the Act as alleged.3920
6. Mine Manager Francescon
The General Counsel also alleges that Francescon, an A-crew mine manager and
admitted supervisor, made an unlawful statement. In support of this allegation, the General 25
Counsel presented the testimony of Bevis, and employee on Francescon’s crew. Bevis testified
that, in late May, shortly after the election, he and Francescon were having a personal
conversation and Francescon “said he hopes between all the voting and everything else that
went on up at the mine, that we all don't lose our jobs” (Tr. 837).
30
Bevis, however, was an extremely poor historian. For example, although he initially
testified that Francescon referred to “the voting,” he later testified only that Francescon
“probably” referred to the voting (Tr. 863). He also subsequently testified that he was not
sure if Francescon actually said “everything going on” (“It's been so long ago. . .I―I don't
know the exact words but that was my―I put them words in there, you know”). Further, 35
he testified that it was his “impression” that Francescon was referring to things such as the
mine’s low production and recent problems with MSHA (Tr. 859).

38 As indicated by the General Counsel, the Employer’s failure to call Meintjes in these
circumstances also warrants an adverse inference that his testimony would not have been
favorable to the Employer. See International Automated Machines, 285 NLRB 1122, 1123
(1987), enfd. mem. 861 F.2d 720 (6th Cir. 1988). However, I would reach the same conclusion
regardless.
39 Although the Employer’s answer denied that Meintjes is a supervisor or agent of the
Company within the meaning of the Act, the Employer’s posthearing brief does not argue for
dismissal on this ground. Further, it is undisputed that Meintjes is employed by Peabody (Tr.
1486), the Employer’s parent company. Accordingly, in agreement with the General Counsel, I
find that, at a minimum, Meintjes is an agent of the Employer within the meaning of Section
2(13) of the Act. See generally D & F Industries, 339 NLRB 618, 619 (2003) (Board applies
common law agency principles in determining whether an employee is an agent of an employer).
JD–74–11
40
Moreover, although Francescon admitted having a conversation with Bevis, he 5
likewise could not recall exactly what was said. And he confirmed Bevis’ “impression”
that he referred to the mine’s poor production and safety record. (Tr. 1706).
Accordingly, I find that the General Counsel has failed to prove this allegation by a
preponderance of the evidence. The allegation is therefore dismissed.10
7. Schmidt, Hood, and Benner
The General Counsel also alleges that Operations Manager Schmidt, Mine
Superintendent Hood, and Peabody Vice President Benner impliedly promised that employees’ 15
terms and conditions of employment would improve if the Union lost the election.40
Specifically, the General Counsel alleges that, following the Company’s third and last captive-
audience “union free” meeting in mid-May, Schmidt, Hood, and Benner told Gibby that
employees did not need a union―that management could do more for employees and treat them
better without a union―and that Schmidt also said that he wanted to pay employees better but he 20
could not now because he was bound by a contract. (GC Br. 58.).
I find that the General Counsel has failed to adequately prove this allegation as well.
There is no dispute that Gibby stayed after one of the captive audience meetings and expressed
concern to Schmidt and Benner that his mine manager (Francescon) was trying to get him fired. 25
There is also no dispute that a conversation ensued, not only about Gibby’s expressed concern,
but also about the union campaign in general. However, both Schmidt and Benner denied that
they said anything significantly different during the conversation than what they had said at the
meeting (Tr. 1460–1462, 1808–1812, 1827). Further, although both Gibby and Shepherd (who
was also present during part of the conversation) testified to the contrary, their separate accounts 30
about various other details of the conversation raise substantial doubts as to the accuracy of their
recollection of this particular event. For example, their testimony differed as to who reassured
Gibby that Francescon could not fire him (Shepherd said it was Benner; Gibby said it was
Human Resources Senior Manager Gossman, who he said was also there); how many or which
other employees were present during the first half of the conversation (Shepherd said two, 35
including Hooven; Gibby said about five and did not list Hooven among them); who specifically
made the alleged statements (Gibby said “they” made the first statement without specifying who
made it; Shepherd said that Schmidt and Benner made the statements; and neither specifically
testified that Hood made the statements); and when during the conversation the statements were
made (Shepherd said both were made while he was there; Gibby said the second was made after 40
Shepherd and the other employees had left). (Tr. 932–938, 1222–1225, 1243–1245.)
There were similar inconsistencies between the testimony of Schmidt and Benner. For
example, Benner agreed with Gibby that the conversation occurred after the third and last
meeting (Tr. 1475), but Schmidt testified that it was after the second (Tr. 1806). (Shepherd was 45
never asked.) On the other hand, Schmidt agreed with Gibby and Shepherd that Gibby initially
raised his concern about Francescon during the meeting, and was asked to hold it until after the
meeting (Tr. 1807, 1822); but Benner testified that Gibby first raised his concern after the

40 The complaint also includes an additional allegation involving Schmidt (par. 5(H)).
However, the General Counsel has withdrawn that allegation (GC Br. 63).
JD–74–11
41
meeting (Tr. 1473–1474). Like the inconsistencies between Gibby and Shepherd, these 5
inconsistencies raise doubts about the reliability of their recall of the event. However, as
indicated above, it was the General Counsel’s burden to prove that unlawful statements were
made by a preponderance of the evidence. That burden was substantially more difficult in this
instance, as it was not a brief conversation (according to Gibby, it lasted for at least 30 minutes),
and both Gibby and Shepherd confirmed that Schmidt and Benner did, in fact, repeat the same 10
things during the conversation that they had stated during the meeting (the lawfulness of which
have not been challenged). (Tr. 938, 992, 1225.)
In short, given all the foregoing circumstances, more was required to prove that the
statements made by Schmidt, Benner, and Hood during the conversation actually violated the 15
Act. Perhaps the burden could have been met with additional witnesses, such as Hooven (if he
was there) and/or one or more of the other employees (if more than one other was there). But,
none were asked to testify about the conversation. Accordingly, this allegation is likewise
dismissed.
20
B. Unalleged 8(a)(1) violations (Shift Leader Davis)
The General Counsel’s posthearing brief also requests that 8(a)(1) violations be found
based on certain unalleged statements made by Shift Leader Davis; specifically: (1) statements
Davis made to Hooven in mid-May that the Company was keeping a list of employees who wore 25
union shirts and hats, that he needed to watch his back, and that he had an “X” on his back (see
fn. 29, above); and (2) statements Davis subsequently made to Hooven after learning what
Hooven had alleged about him in his NLRB affidavit (see part II.A.1.e, above). The General
Counsel argues that the Employer was put on notice that such violations might be found when
the General Counsel amended the complaint on the fifth day of hearing to allege that Davis was 30
an agent of the Employer (Tr. 1117). The General Counsel further argues that the unalleged
violations were, in fact, fully litigated.
I reject the General Counsel’s arguments. First, the mere fact that Davis was added as an
alleged agent was not sufficient to give the Employer notice that the foregoing incidents would 35
be alleged as 8(a)(1) violations. The complaint alleges a total of 50 named individuals as
supervisors and agents of the Employer, and the vast majority of them are not, and never were,
the subject of any alleged violations in this proceeding.
Second, like these other alleged supervisors and agents, there were alternative reasons for 40
the General Counsel to allege Davis to be an agent. For example, as discussed below, he played
a central role in one of the incidents cited by the Company in support of Waller’s discharge. It
was therefore important for the General Counsel to establish his status as a Company agent
(which I find below he clearly was) to support the General Counsel’s contention that the
Company did not really believe Waller had committed the alleged offense or that it warranted 45
any discipline.
Third, Hooven had already testified about the incidents at the time the General Counsel
offered the agency amendment. Thus, there was no apparent reason why the incidents would not
have been added to the complaint as well if that was the General Counsel’s intention. 50
JD–74–11
42
Fourth, there were many possible reasons why the General Counsel might have chosen 5
not to amend the complaint to allege the additional violations; for example, because the evidence
was insufficiently corroborated; because the violations would be cumulative and have no
significant effect on the remedy and order; and/or because there is a need for a prompt resolution
of the consolidated representation case.
10
Fifth, the General Counsel did, in fact, specifically amend the complaint around the same
time to allege numerous other 8(a)(1) violations by other supervisors and agents, including the
allegations against Bowlin and Francescon, and additional allegations against Henderson. See
Tr. 925–927; GC Exh. 1(t). Expressio unius est exclusio alterius.41
15
Sixth, it cannot reasonably be concluded that the unalleged violations were fully litigated.
The facts underlying both emerged only incidentally during the hearing, relative to Hooven’s
overall credibility. Had the Employer been given adequate notice that the conversations were
actually being alleged as violations to support a cease and desist and Gissel bargaining order, it
might very well have chosen to alter its litigation strategy and/or present additional evidence to 20
rebut the General Counsel’s evidence. It also most certainly would have addressed the
allegations in its posthearing brief (which it did not).
Accordingly, the General Counsel’s request to find that Shift Leader Davis’ statements to
Hooven violated 8(a)(1) is denied. See Dilling Mechanical Contractors, Inc., 348 NLRB 98, 25
105 (2006); Stagehands Referral Service, 347 NLRB 1167 (2006); Allied Mechanical Services,
Inc., 346 NLRB 326, 329 (2006); Desert Aggregates, 340 NLRB 289, 292 (2003); and Mine
Workers District 29, 308 NLRB 1155, 1158 (1992). See also NLRB. v. Quality C.A.T.V., Inc.,
824 F.2d 542, 547 (7th Cir. 1987); and Conair Corp. v. NLRB, 721 F.2d 1355, 1372 (D.C. Cir.
1983).42 30
C. Alleged 8(a)(3) discharge of Waller.
The General Counsel’s last allegation is that the Employer discharged Waller in violation
of Section 8(a)(3) of the Act. 35
1. Factual background
As noted earlier, the Employer terminated Waller on the morning of May 27, the day
after it filed its objections to the election. The Employer had begun collecting statements from 40
employees to support the objections several days earlier. (Tr. 346; CP Exh. 6.) During the same
period, the Employer also collected statements from employees and supervisors about certain
additional alleged incidents involving Waller that occurred shortly after the election.

41 At the end of the hearing, counsel for the General Counsel also made a general motion to
amend the complaint “to conform to the testimony and evidence.” However, I denied the motion
as too vague and nonspecific, and counsel declined to offer any more specific amendments. (Tr.
2134–2136.)
42 I find that the Board’s recent decision in Bruce Packing Company, Inc., 357 NLRB No. 93
(2011) is distinguishable, as the 8(a)(1) allegation there had been fully litigated.
JD–74–11
43
Altogether, the following eight statements were collected that alleged or referenced conduct by 5
Waller (GC Exh. 9):
1) May 26 statement by employee Pezzoni:
I was shift leader on left side. Unit was down. Had to pull up miner cable. Had 10
[] Koerner helping. [] Waller and another walked by and said to you better vote
UMWA or a scab like you won’t work here. I told him to vote whatever he
wanted to. Just keep it to himself. This all occurred about two weeks before we
voted.
15
2) May 26 statement by employee Koerner:
I …received threatening phone call pertaining to upcoming union election. Was
told be concerned about family and also things could happen underground to look
like accident. Better vote UMWA. Also several comments made if union gets in 20
we will take care of scabs. Also had 2001 Dodge Ram Truck had scab scratched
in side of door.
3) May 26 statement by employee Kirk.
25
I had on 2 separate occasions where I thought someone that was prounion tried to
intimidate or threaten me because of my opinion. On the first, [] Waller worked a
midnight shift. He did not talk to me directly but talked to someone about me
loudly and at a distance of 2 feet. He stated that he should pick something up and
hit that scab motherfucker, that’s how you deal with fucking scabs. That if I 30
thought he was an old man he would pick up something and beat the fuck out of
that scab motherfucker. . . .
4) May 23 statement by Safety Supervisor Schiff:
35
On 5/20/2011, at the start of the 2nd shift, [] Waller came into the bath house and
started yelling: Fuck all you fucking scabs!
5) May 21 statement by Mine Manager Lawrence:
40
On 5-21-11 . . . Koerner came in the [mine manager’s] office and said someone
had scratch ‘Scab’ on his truck. I went outside and took picture of his truck.
This happened on 5/20/22 2nd shift.
[On] 5-21-11 at about 3:10 p.m. . . . Koerner came in the office and said that he 45
was afraid to go underground. I asked him what was wrong, one of the guys from
his unit told him to watch out for [] Waller. He also said that someone was giving
him a bad time.
He said that he has had phone calls before the election. They said to watch out for 50
your family. And that they would take care of things underground and make it
JD–74–11
44
look like an accident. [] Waller also told him that he could flag him all he wants 5
and he would not stop.
6) May 21 statement by employee Craig.
I was sitting in staging area in front of the food machine talking to [] Wiggins 10
when [] Waller confronted me about a few Facebook comments. He said “hey
[Craig] I hear you have a potty mouth on that Facebook.” I said yeah. He then
said “my wife didn’t appreciate that especially since you were directing it toward
me.” I said I never directed anything at anyone on there. He went on to say “fuck
you scab fuck you I’ll find you in the parking lot you scabby bastard.”15
He then left and within a minute he came back to a face to face confrontation and
said “anytime you want a piece of this old man come get it.” I then told him
again I never said anything about him or anyone explained myself and then he
walked away.
20
This was witnessed by [] Koerner, [] Wiggins, and [] Easley.
7) May 26 statement by employee Easley:
On about Saturday the 21st I seen [] Craig and [] Waller having a verbal 25
confrontation by the vending machines. Some words were exchanged on both
sides. [Waller] went back into the bathhouse and a few minutes later came back
out and told [Craig] they could go out to the parking lot or something to that
manner.
30
8) May 26 statement by Human Resources Senior Manager Gossman:
This morning I talked with [] Koerner about his witnessing an incident with []
Waller threatening [] Craig. Koerner did confirm that he had heard Waller tell
Craig that he didn’t appreciate his language on Facebook and that his wife had 35
been offended when reading it. Craig had replied that he had not directed
anything toward Waller or his wife and didn’t understand why he would be upset.
Waller got angry and told Craig he would catch him in the parking lot and take
care of the matter. After that comment Waller left the area. Within a few minutes
Waller returned and told Craig that he should meet him in the parking lot and that 40
if he wanted a piece of this old man just come and get it.
On the afternoon of the 26th, Gossman reviewed the information in the foregoing
statements with Peabody Vice President Benner.43 Benner gave Gossman “a green light” to
discharge Waller after offering him an opportunity to deny or explain the allegations.4445

43 The General Counsel alleges, the Respondent’s posthearing brief does not dispute, and I
find, that Benner is at least an agent of the Employer within the meaning of Section 2(13) of the
Act. See generally D & F Industries, 339 NLRB at 619.
44 These facts are necessarily based on the testimony of Gossman and Benner, the only two
witnesses to testify about their May 26 conversation. It is again noteworthy, however, that there
JD–74–11
45
Early the following morning, around 7 a.m., when Waller arrived for his shift, he was 5
immediately escorted to Gossman’s office. Gossman advised Waller that he had heard that he
had been threatening employees. He specifically mentioned the most recent alleged incident
with Craig, which Waller generally admitted, although he said they both had said “Fuck you” to
each other, and that he referred to meeting Craig “out in the road” rather than in the parking lot.
Gossman also asked Waller if he had ever “threatened an employee that he would not stop his 10
coal hauler for him no matter how much the employee flagged him down.” Waller denied that
he had ever done that or would ever do that. Gossman also asked Waller if he had yelled “Fuck
all you fucking scabs” in the bathhouse, and Waller denied that as well. Gossman then asked
Waller if he had told an employee that “you better vote UMWA or a scab like you won’t work
here anymore.” Waller denied that too.15
At that point, Gossman decided there was no point asking Waller any more questions and
handed him his termination letter, which he had prepared prior to the meeting. In its totality, the
letter stated as follows:
20
There have been several reports of certain employees threatening or
intimidating other employees in the last several weeks. As you are aware
this type of behavior is prohibited by Company policy. During our
investigation of the allegations you were implicated in this type of behavior.
There are numerous witness accounts and several occasions where threats 25
and/or intimidation appear to have been employed.
As stated above, this type of behavior is contrary to Policy and will not be
tolerated. For these reasons your employment with Big Ridge, Inc. Willow
Lake mine is terminated effective immediately. 30
(GC Exh. 23.) Waller responded that he could not believe what was happening, and the meeting
ended. He was then escorted to the parking lot with the personal effects from his basket.45

are several inconsistencies in their accounts. For example, Gossman said he reviewed the
information with both Benner and Operations Manager Schmidt, who both participated in the
meeting by conference call, and that the three of them together made the decision to terminate
Waller (Tr. 317, 319, 321–324, 2131.) Benner, however, said that he was present at the mine
that day and met with Gossman face-to-face; that his boss (Burggraf), Peabody Group Executive
Meintjes, and the Employer’s lead counsel (Garnett) and another attorney (Steffensmeier)
participated in the meeting by conference call; and that he (Benner) made the decision to
terminate Waller. Further, Benner did not mention Schmidt being present, either in person or by
phone. (Tr. 1462–1463, 1466, 1478, 1486, 1508.)
45 The foregoing summary of the meeting is based on the written account Gossman prepared
shortly after the meeting (GC Exh. 9, p. 8), Gossman’s testimony (Tr. 317, 321–322, 402, 1930–
1933), and Waller’s testimony (Tr. 573–575, 632–639). Although Waller testified that Gossman
asked him if he had “threatened to run over somebody if they kept flagging,” this is essentially
consistent with Gossman’s written account, i.e. even assuming that Gossman’s account is
accurate, it would reasonably be interpreted the way Waller described it. However, I discredit
Gossman’s account that Waller responded only that he “did not know anything about that.”
Although such a limited response would not be inconsistent with Waller’s testimony that he did
JD–74–11
46
2. Legal analysis5
The General Counsel argues, and the Employer does not dispute, that the analytical
framework set forth in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982), is the appropriate test for evaluating Waller’s discharge.
10
Under that test, the General Counsel must prove by a preponderance of the
evidence that union animus was a substantial or motivating factor in the
[discharge]. The elements commonly required to support such a showing are
union or protected concerted activity by the employee, employer knowledge of
that activity, and union animus on the part of the employer. 15
If the General Counsel makes the required initial showing, the burden then shifts
to the employer to prove, as an affirmative defense, that it would have taken the
same action even in the absence of the employee's union activity. To establish this
affirmative defense, “[a]n employer cannot simply present a legitimate reason for 20
its action but must persuade by a preponderance of the evidence that the same
action would have taken place even in the absence of the protected activity.”
Consolidated Bus Transit, 350 NLRB 1064, 1065 (2007) (citations omitted). See also Camaco
Lorain Mfg. Plant, 356 NLRB No. 143, slip op. at 4 (2011).25
Applying the foregoing analysis, for the reasons set forth below, I find that Waller’s
discharge violated Section 8(a)(3) of the Act as alleged.
a. Waller’s union activity30
There is no dispute that Waller actively and openly supported the UMWA during and
after the campaign. He frequently wore a camouflage UMWA shirt back and forth to work. He
put 8–10 UMWA stickers all over his hardhat. He even put on one of the Company “VOTE
NO” stickers and covered up half of it to read “VOTE UMWA.” He also distributed at least 100 35
UMWA stickers to other employees. And, as discussed above, he wrote and sang a derogatory

not know what Gossman was talking about―since Gossman did not offer any details and Waller
had never threatened to run over anyone with his coal hauler―I credit Waller’s testimony that he
also flatly denied that he did, or ever would do, such a thing. Finally, contrary to the Employer, I
find no significance in the fact that, according to Gossman’s account, when he told Waller there
were “a lot of” witnesses to the alleged incidents, Waller responded that he was “aware” of that.
First, Waller admitted to the incident with Craig in the staging area, and thus obviously had
personal knowledge that there were witnesses. Second, Gossman had revealed that one of the
other alleged incidents occurred in the bathhouse. Third, it is undisputed that, in fact, there were
no witnesses to the alleged “flagging” incident between Waller and Koerner at the
feeder―which as discussed infra has now evolved into the Employer’s primary justification for
Waller’s discharge. In any event, given the context of the conversation, it is clearly unreasonable
to conclude that Waller’s response was an admission that his prior denials were false, rather than
simply an acknowledgment that the Company had apparently found “a lot of” employees to
make allegations against him.
JD–74–11
47
song at the mine about “scabs” who did not support the UMWA. (Tr. 79–82, 236, 447, 507, 526, 5
554–559, 651, 732, 840, 881, 885.) In short, although many other employees also openly
supported the UMWA, and Waller himself did not claim to be the UMWA’s strongest supporter,
there is abundant evidence confirming that he was, in fact, one of the strongest and most
outspoken UMWA supporters at the mine (Tr. 84, 731).
10
b. Employer’s knowledge of Waller’s union activity
It is also undisputed that both Gossman and Benner were well aware of Waller’s strong
and open support of the Union prior to terminating him. Both of the Company’s preelection
polls, which Gossman kept in his desk, identified Waller as prounion. See GC Exh. 8 (A crew); 15
and Tr. 29. Further, as indicated above, several of the statements Gossman gathered and
reviewed with Benner specifically mentioned Waller’s strong prounion sympathies and/or
alleged conduct related to his prounion activities. See also Tr. 1466. Finally, the Employer filed
objections to the election based in substantial part on those allegations the day before discharging
Waller.20
c. Employer’s antiunion animus
The Employer’s antiunion animus is also well established by the record. As discussed
above, the Employer mounted an aggressive antiunion campaign in response to the UMWA’s 25
demand for recognition and election petition. Further, both before and after the election, several
supervisors and managers at various levels, including Section Foremen Henderson and Bowlin,
Compliance Supervisor Clarida, Fill-In Mine Manager Hendricks, and Peabody Group Executive
Meintjes, unlawfully threatened or promised benefits to employees.
30
Moreover, there is strong circumstantial evidence that the Employer’s antiunion animus
motivated the decision to discharge Waller. See generally Bally's Park Place, Inc. v. NLRB, 646
F.3d 929, 935–939 (D.C. Cir. 2011) (“most evidence of motive is circumstantial”); NLRB v.
Union-Tribune Publishing Co., 1 F.3d 486, 489– 493 (7th Cir. 1993) (“circumstantial evidence
that a dismissal was improperly motivated may be sufficient”); and NLRB v. Advance 35
Transportation Co., 965 F.2d 186, 190–194 (7th Cir. 1992) (“The Board is free to rely on
circumstantial as well as direct evidence in assessing motive”).
First, by all accounts Waller was a good employee. He was hard-working, experienced,
dependable, well-liked, and willing to fill in on his days off (Tr. 258–259, 269, 315–316, 446, 40
554, 659, 838, 1518, 1669). Although he had a reputation for being loud (which, again, Waller
himself freely admitted), he did not have a reputation for being violent (Tr. 159, 341, 605).
Further, until his discharge, he had never been called into the office or disciplined for even the
slightest infraction, safety-related or otherwise, over the entire 7 years of his employment at the
mine (Tr. 314, 568, 664).45
Second, heated arguments and angry confrontations in which employees threatened to
physically injure each other were both common, occurring weekly if not daily, and well tolerated
at the mine (Tr. 103–104, 161–162, 197–200, 218, 507, 525, 693, 871, 894, 1290, 1295, 1571,
2097–2098). It is undisputed that, since 2002, when Peabody acquired the Willow Lake mine 50
(Tr. 1339), the Employer had never prohibited or discharged any other employee for such
JD–74–11
48
conduct in the absence of any significant physical contact (Tr. 89, 378, 395–396, 525, 576, 1274, 5
1786–1787).
Indeed, the General Counsel presented several specific examples where managers or
supervisors were aware that an employee had threatened to physically injure another employee,
but either no discipline or only a 3-day suspension was issued. One example was an undisputed 10
incident in early 2010 when an employee (Lane), who already had a longstanding reputation as a
hothead, got mad and told an employee that he would shoot him if he had a gun in his truck,
simply because the employee had insisted that Lane put his reflective vest on. Although the
employee later reported this to his supervisor, and Lane subsequently admitted it, no action was
taken against Lane. (Tr. 1025, 1031–1035, 1274–1277, 1286–1287.)15
Another, more-recent example occurred in early May, when an employee (Tadlock) got
mad at another employee (Crissup) for calling him a “fucking scab” during a work related
argument. When Tadlock saw Crissup later in the office, he told Crissup he had “just made a
great enemy,” that he would “not always be here,” and that he would “catch” Crissup off the 20
property and “beat your guts out.” Although Section Foreman Carter witnessed the incident, no
disciplinary action was taken against Tadlock.46
Another recent example involved a confrontation on July 11 between Maintenance
Supervisor Hilliard and Section Foreman Stephenson in front of Mine Manager Hughes. Hilliard 25
was upset with Stephenson over a work-related issue earlier that day and started yelling at him in
the dinner hole. When Stephenson made a comment to Hughes that "I don't have to put up
with this," and that he was “going to the front office tonight after work," Hilliard came
over and said, "Don't talk behind my Goddamn back. I'll kick your fucking ass. I'm going
to quit here one of these days, and when I do, I'm going to come and look you up, son." 30
Stephenson replied, "Well, I'm not fucking hard to find," and said to Hughes, "I have two
witnesses that heard him threaten me." Hilliard replied, "That's not a threat; that's a
promise. If you want to walk around the corner, we can settle this now." The argument
died down at that point, and no disciplinary action was taken against Hilliard.47

46 The foregoing account is based on the credible testimony of Crissup, as well as employee
Cole, who witnessed the incident and generally corroborated Crissup’s testimony (Tr. 214–217,
226, 668–675, 684–685, 701–702, 710–711). See also Tr. 374–375, 378, 2127. Carter also
confirmed much of Crissup’s and Cole’s accounts, including that there was a confrontation
between Tadlock and Crissup. Although Carter attempted to minimize the incident, his
inconsistent answers to several questions raise substantial doubts about his testimony. For
example, he initially testified that he had to separate them (Tr. 1562–1563), but later denied that
he physically separated them (Tr. 1567). Similarly, he initially testified that they were just
arguing and cussing at each other and did not make any threats (Tr. 1562–1563), but
subsequently testified that he had “no recollection” of what Tadlock said to Crissup (Tr. 1568).
Accordingly, I discredit Carter to the extent his testimony differs with Crissup and Cole.
47 The foregoing account is based on the credible testimony of employee Bishop, who
witnessed the incident (Tr. 245–250). Stephenson also testified about the incident, and
confirmed that Hilliard was upset with him and called him an “ass” or “asshole.” He also
confirmed that Mine Manager Hughes was present and said something to Hilliard. However,
Stephenson otherwise attempted to minimize the incident and denied that Hilliard had made any
JD–74–11
49
Other examples include two recent incidents in March and July 2011, where the 5
Employer issued only 3-day suspensions to two employees (Bryan and Ashby) even though they
actually made physical contact during their heated arguments with other employees. See GC
Exhs. 10–11; and Tr. 93, 98, 377–384.48
Perhaps because of all the foregoing evidence, the Employer no longer even contends that 10
most of the alleged incidents described in the eight above-quoted statements warranted Waller’s
discharge. Although Gossman testified at the hearing that all of the alleged incidents in the eight
statements were the basis for Waller’s discharge (Tr. 330–331, 348), the Employer’s posthearing
brief does not cite any but the May 20 “flagging” incident with Koerner, i.e. it does not contend

threats, claiming that he has trouble hearing and did not hear what Hilliard said. (Tr. 1904–
1909.) I discredit his testimony in this respect. It is not only unbelievable on its face (he
exhibited at most mild difficulty hearing on the witness stand) but also contrary to what he told
another employee (Mocaby) shortly after the incident (Tr. 2112–2114). Further, Stephenson
gave similarly evasive and incredible testimony on other matters as well. For example, as
discussed above, the Company’s election conduct guidelines specifically instructed the
supervisors to make “one-on-one contact” with each and every employee before they voted and
encourage them to vote “NO.” (GC Exh. 14.) Nevertheless, when I asked Stephenson if the
Company had ever encouraged him to talk to employees about his opinions of the UMWA,
Stephenson replied:
A. No, not really. I mean, yes―but―
Q. No, yes?
A. Yes.
Q. In what way?
A. Just, you know―I mean, other than meetings―as far as personal one
on one, no.
Q. No what?
A. No, I didn't get involved in that.
Q. My question was did the Company encourage you to get involved in
it, by talking to other employees about your opinion of the UMWA?
A. They talked to us about, you know, what's going on, but as far as
encouraging us to do it all the time, no. (Tr. 1912.)
48 The General Counsel also presented evidence of several other, less recent examples. One
of these involved an actual physical confrontation in 2007 between Mine Managers Francescon
and Ward in the bathhouse. According to employee Holman, one of several employees who
witnessed the incident, Ward called Francescon a “suck ass,” after which Francescon grabbed
Ward and threw him to the floor, twice. Neither was ever disciplined for the incident. (Tr. 522–
524.) Although Francescon denied that any such confrontation ever occurred, and that he and
Ward had simply stumbled over a bench while kidding around (Tr. 1704), I find that Holman’s
testimony is more worthy of belief and I credit it. In another, undisputed example, which
occurred in 2005, an employee (Vaughan) allegedly threatened employees that he had a 9mm
gun in his truck and would go get it if he needed to. Then-Mine Superintendent Phillips (Hood’s
predecessor) confronted Vaughan about this alleged incident the next day. Vaughan at that time
initially denied it, but then admitted that he could have said that, because employees had been
teasing him. Vaughan was never disciplined; indeed, he was promoted to production supervisor a
month or so later. (Tr. 872–874, 891–894.)
JD–74–11
50
that any of the other alleged incidents involving Koerner, Kirk, or Craig set forth in the eight 5
statements reviewed by Gossman and Benner justified Waller’s discharge. Indeed, the Employer
now specifically admits that saying “fuck you” to an employee or calling an employee a “scab”
is not grounds for discharge. See Tr. 395 and Br. at 11 fn. 2. Further, notwithstanding
Gossman’s testimony, the Employer has never specifically contended in this proceeding that
Waller was responsible for the anonymous phone calls or scratching Koerner’s truck. (Waller 10
denied any involvement in the incidents, Tr. 565, and there is no evidence otherwise.)
Finally, the overwhelming weight of the evidence indicates that the Employer has never
really believed that the May 20 flagging incident was anything more than a routine work
dispute―certainly not that Waller actually threatened to run over or “kill” Koerner and other 15
employees (Gossman’s words, Tr. 388) with his coal hauler. As indicated above, the alleged
incident is the subject of just one sentence at the very end (almost as an afterthought) in the May
21 statement Mine Manager Lawrence submitted to Gossman. Further, the sentence simply
states “Waller also told [Koerner] that he could flag him all he wants and he would not stop,”
with no further details. 20
Moreover, Koerner did not even mention the flagging incident in his statement. Shift
Leader Davis also never provided a written statement about the incident, even though he was
running the unit the night,49 and Koerner, who was his feeder watcher, allegedly complained to
him shortly after the incident occurred (Tr. 1355, 1594–1596, 1611–1615).50 Indeed, there is no 25
evidence that Davis even bothered to talk to Waller about the incident at the time, even though
he knew that Waller would continue hauling and dumping coal at the feeder throughout the
remainder of the shift. Nor did he immediately report the incident to Lawrence, his mine
manager that evening, the Mine Superintendent, or any other management official (Tr. 1597).
30
Lawrence likewise did not take any action to immediately remove Waller from the
workplace when he found out about the flagging incident from Koerner on Saturday, May 21,
while investigating the incident between Waller and Craig. Rather, he simply filled out his
written statement based on his conversation with Koerner and left it in Gossman’s mailbox for
Gossman to find on Monday. After briefly interviewing Waller about his confrontation with 35
Craig and the alleged flagging incident (albeit without mentioning Koerner or where the incident
occurred), he also let Waller go ahead and work on Sunday, May 22. (Tr. 84–88, 571, 1432–
1437, 1445–1446; GC Exh. 4.)
Nor was any immediate action taken to remove Waller from the mine after Gossman was 40
eventually informed of the incidents on Monday morning, May 23 (Tr. 437, 1435, 1444–1445).

49 The General Counsel alleges, the Employer’s posthearing brief does not dispute, and I find,
that Davis was essentially employed as an acting section foreman, and was an agent of the
Employer within the meaning of Section 2(13) of the Act, during all relevant times. See
generally D & F Industries, 339 NLRB at 619.
50 It is undisputed that, although flagging someone with a helmet light means “stop,” if there
is actually someone in the approach to the feeder, the feeder watcher is supposed to blow a horn.
It is also undisputed that Koerner did not blow his horn on the night of the alleged incident, or
tell anyone that he had done so. (Tr. 208–209, 264–265, 1105, 1188, 1349, 1390–1392, 1450,
1543, 1614.).
JD–74–11
51
Waller was permitted to work on May 24, as well as on his next two regularly scheduled days 5
off, May 25 and 26. (Tr. 357–359, 571; GC Exh. 4.)
Finally, like Koerner’s own statement, Gossman’s statement about his interview with
Koerner on the morning of May 26 makes no mention whatsoever of the flagging incident, much
less any threat to run over or “kill” Koerner or other employees. When asked about this at the 10
hearing, Gossman testified that Koerner verbally gave him the details of the incident, including
why he was flagging Waller: because “there was traffic in the area . . . other cars, could have
been cars, could have been people, whatever, and he had tried to flag Waller off at the feeder.”
However, on further examination, Gossman admitted that, in fact, Koerner never told him
anything about why he was trying to flag Waller, and that he never bothered to ask. (Tr. 360–15
365.)51 Gossman also admitted that he never interviewed the employee who, according to
Lawrence’s May 21 statement, Koerner said had warned him to “watch out” for Waller.52
In sum, the preponderance of the evidence clearly indicates that the Employer never
really believed that the incident was anything more than what Waller testified to at the hearing: 20
he and Koerner simply had a disagreement over whether the feeder was too gobbed up to
continue dumping his coal. Koerner “flagged” him with his helmet light to stop dumping so that
it would not get gobbed up, and Waller decided to override him and continue dumping because
he did not believe Koerner, who was new to both the mine and feeder watching, had any idea
what he was talking about, and the Company was pushing the crews to get their production 25
numbers up. (Tr. 465, 561–563, 611–616, 1801.)
Thus, the incident had nothing to do with threatening to run over or “kill” anyone,
because the car was already stopped at the feeder and dumping. Nor did it have anything to do
with “safety”―a word emphasized by Gossman and Benner in their testimony but which does 30
not appear anywhere in Waller’s discharge letter―or a fear that Waller’s conduct could result in
a repeat of a 2010 fatal coal hauler accident at the mine. (Tr. 348, 1464– 1467, 1509.) Rather,
this was simply how Gossman and Benner chose to spin the incident because they knew that the

51 Lawrence gave similarly inconsistent testimony. Compare Tr. 1447 (Koerner did not tell
him why he wanted Waller to stop), with Tr. 1459 (Koerner told him he wanted Waller to stop
because the feeder kept “bogging out” and he had to keep going back to reset it).
52 Gossman testified that he did eventually talk to the employee (Meadows) a week before the
hearing. When asked by counsel for the General Counsel what Meadows said, Gossman
testified:
[Meadows] said, yeah, he probably did. He was aware of the situation. He
knew about the―that [Waller] had given Koerner a hard time. He himself
was generally out of the way. He's a roof bolter, which means that normally
he wouldn't have that much association with Waller.
Q. I'm sorry. I'm not clear. Did [Meadows] remember telling that to
Koerner or not?
A. Yeah, he told me that he remembered talking to him.
Q. Okay. Did he, did he tell you that he told him beware of [] Waller?
A. No. (Tr. 372.)
JD–74–11
52
other alleged incidents alone were insufficient to justify discharging Waller given the Company’s 5
history of tolerating similar or worse conduct by others unrelated to union activity.53
d. Employer’s affirmative defense
As indicated above, the Employer argues that it would have discharged Waller even 10
absent his union activities because his alleged statement to Koerner at the feeder (“no matter how
many times you flag me I’m not going to stop”) threatened Koerner and his coworkers with
“possible grievous harm or death.” (Br. 8). However, in order to meet its burden under Wright
Line, the Respondent must show that it actually had a reasonable belief that Waller threatened
Koerner or other employees with such harm or death, and that it acted on that belief when it 15
discharged him. J.J. Cassone Bakery, Inc., 350 NLRB 86 (2007), citing McKesson Drug Co.,
337 NLRB 935, 937 (2002). See also Robert Orr/Sysco Food Services, LLC, 343 NLRB 1183
(2004) (while an employer has a legitimate concern about workplace violence, it is the Board's
function to determine whether the employer's actions were actually motivated by that concern).
20
Here, as fully discussed above, the Employer has clearly failed to meet its burden. The
overwhelming weight of the record evidence shows that, in fact, the Employer never really
believed that Waller had threatened the safety, health, or life of Koerner or anyone else, or that
the incident was anything other than a routine work dispute. Rather, Gossman and Benner
deliberately twisted Waller’s alleged statement into a threat to seriously injure or “kill” Koerner 25
and other employees to help bolster the Company’s allegations against Waller in the

53 To the extent Gossman, Lawrence, Davis, and Koerner gave testimony contrary to the
above findings, I discredit their testimony for all the reasons set forth here and previously with
respect to other alleged incidents. Among other things, therefore, I discredit Koerner’s testimony
that he felt threatened by Waller (Tr. 1342). Koerner admitted that he had been warned by
Hooven during his feeder-watcher training that some of the drivers would continue dumping
their coal even when he did not want them to. (Tr. 1381–1382.) I likewise discredit Davis’
testimony to the extent it supports Koerner’s testimony that he felt seriously threatened and was
afraid of Waller. I also discredit Davis’ testimony that he was not carrying a radio that night, and
thus could not have heard the argument Koerner described between him and Waller at the feeder
(Tr. 1597, 1622). Davis had previously testified that Koerner had “called me up” to the feeder to
tell him about the incident with Waller (Tr. 1594). Further, the record indicates that the section
foreman for each unit has a radio “at all times” because he is responsible for the unit (Tr. 1651);
that, although Davis is a shift leader, he is responsible for running his unit because there is no
section foreman assigned to his unit (Tr. 716, 1070, 1077–1078, 1138); and that he is therefore
likewise normally assigned a radio (Tr. 1621, 1651). Finally, although I would reach the same
credibility resolutions in any event, I note that Lawrence and Koerner admitted that they and
Davis all went over their testimony together as a group with Gossman and the Employer’s
counsel prior to testifying. (Tr. 1393–1394, 1442–1444; see also Tr. 1680–1681 (Pezzoni); and
Tr. 1995 (Gossman).) As previously noted (fn. 6), I agree with the General Counsel and the
Union that, in these circumstances, the testimony of each of these witnesses, to the extent it was
presented to corroborate the testimony of the other witnesses, warrants close scrutiny.
JD–74–11
53
election-objections case and remove from the unit one of the Union’s most vocal supporters in 5
advance of the requested rerun election. Cf. Swan Coal, 271 NLRB 862, 870–871 (1984).54
Accordingly, for all the foregoing reasons, I find that the General Counsel has proven, by
a preponderance of the credible evidence, that the Employer discharged Waller for
discriminatory reasons in violation of Section 8(a)(3) and (1) of the Act.10
CONCLUSIONS OF LAW
1. The Employer has failed to establish that the UMWA, by its officers, agents, and/or
supporters, engaged in objectionable conduct warranting a new election. 15
2. By threatening employees with mine closure, job loss, and other unspecified reprisals
if or because the employees supported the UMWA, and impliedly promising employees benefits
if the employees vote against the UMWA, the Employer has engaged in unfair labor
practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of 20
the Act.
3. By discharging Waller on May 27 because of his support for the UMWA and to
discourage other employees from supporting the UMWA, the Employer has also engaged in
unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and (1) and 25
Section 2(6) and (7) of the Act.
4. The General Counsel has failed to establish that the Employer violated the Act by the
statements allegedly made to employees during or after the campaign by Mine Manager
Francescon, Operations Manager Schmidt, Mine Superintendent Hood, Shift Leader Davis, and 30
Peabody Vice President of Midwest Underground Operations Benner.
REMEDY
Having found that the Employer has engaged in certain unfair labor practices, I shall 35
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate
the policies of the Act. Specifically, I shall order the Employer to cease and desist from
threatening employees with mine closure, job loss, or other unspecified reprisals, impliedly
promising employees benefits, or discharging employees, to discourage union activity. I shall
also order the Employer to offer reinstatement to Waller and make him whole for any loss of 40
earnings and other benefits suffered as a result of his unlawful discharge. Backpay shall be

54 The record indicates that Waller was initially awarded unemployment compensation
benefits following his termination (CP Exh. 7), but this was reversed on appeal when Waller
failed to appear (Exh. Exh. 16). (Waller had lost his home and did not get the notice in the mail.
Tr. 654–655.) In any event, there is no evidence that the state agency considered the same
evidence that was presented over the course of the 9-day trial in this proceeding, and the
Employer does not contend that the state agency did so (its posthearing brief does not even
mention the state agency’s determination). Accordingly, while I have considered the state
agency’s decision, I have not given it controlling weight. See generally Whitesville Mill Service
Co., 307 NLRB 937, 945 fn. 6 (1992).
JD–74–11
54
computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the 5
rate prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily as
required in Kentucky River Medical Center, 356 NLRB No. 8 (2010). I shall also order the
Employer to remove from its files any reference to Waller’s discharge and to notify Waller in
writing that this has been done and that the discharge will not be used against him in any way.
10
Gissel Bargaining Order
As indicated above, the General Counsel and the Union also request a remedial Gissel
bargaining order. They contend that such an order is warranted because the Employer’s unfair
labor practices included several “hallmark” violations, which continued after the election, were 15
disseminated among the unit employees, and had a devastating impact as demonstrated by the
steep decline in the Union’s support between March to May, citing, e.g., Garvey Marine, Inc.,
328 NLRB 991 (1999), enfd. 245 F.3d 819 (D.C. Cir. 2001).
However, while all of the foregoing are well-established factors supporting the issuance 20
of a Gissel order, there are also many other factors, likewise frequently considered by the Board
and/or the courts, militating against such an order. For example, only a handful of supervisors,
managers, and employees were directly involved in the unfair labor practices. Further, while
there is evidence that the unfair labor practices were disseminated among employees, this is not a
small operation; there are three shifts with multiple crews and units. Moreover, the Union 25
actually won the election notwithstanding the Employer’s unfair labor practices. And, while its
victory was surprisingly narrow, given its large card majority, there is insufficient evidence that
the Employer’s unfair labor practices, rather than its lawful antiunion campaign (which, as
discussed above, included lawful discussion of UMWA-represented mines that had closed),
caused most of the decline in the Union’s support. See, e.g., Tr. 985. Nor is there sufficient 30
evidence that the Union’s support has continued to decline since the election due to the
Employer’s unfair labor practices, or that the Employer has actually taken steps to effectuate its
threats by closing the mine in retaliation for the Union’s election victory.
The Employer argues that the foregoing factors clearly tip the balance against a Gissel35
bargaining order. However, it is simply unnecessary at this point to resolve how the balance tips.
There is nothing left for a remedial Gissel bargaining order to remedy; the Union received a
majority of the votes in the election, there are no challenged ballots, and I have overruled the
Employer’s objections and issued an order certifying the Union as the exclusive collective-
bargaining representative of the unit (see below). In short, there is no need to issue a Gissel40
bargaining order as the Employer will be legally obligated to recognize and bargain with the
Union based on its certification.55

55 Power, Inc., 311 NLRB 599 (1933); and Pope Maintenance Corp., 228 NLRB 326, 348
(1977), enfd. 573 F.2d 898 (5th Cir. 1978), the primary cases cited by the General Counsel and
the Union, are distinguishable. In those cases, there were determinative challenged ballots that
had not yet been opened, and it was therefore unclear at the time of the decision whether the
union would win the election.
JD–74–11
55
The Union nevertheless argues that the Employer may delay recognition and bargaining 5
by appealing my decision and recommended order to the Board―which may soon again
temporarily lose its quorum due to political inaction (see New Process Steel, L.P. v. NLRB, 130
S.Ct. 2635 (2010))―and thereafter the court of appeals. This is certainly true. It is also true
that undue delay can be extremely harmful. See John C. Truesdale, Battling Case Backlogs at
the NLRB, 16 Lab. Law. 1, 2 (2000) (“The harmful consequences of . . . long delays are clear: 10
representation elections and labor disputes left unresolved; unfair labor practices left without
remedy; increased back pay liability for respondents; ineffective or unenforceable orders; and,
generally, an erosion of judicial respect for, and public confidence in, the Board. Lex dilationes
semper exhorret: The law abhors delays—and for good reason” (citations omitted).)
15
However, the Employer could also seek Board and court review of a recommended
Gissel bargaining order. And, given the several factors, discussed above, weighing against such
a remedial order here, it is far from certain that a district court would issue, or that an appeals
court would uphold, an interim injunction affirmatively requiring the Employer to comply with
the order while an appeal is pending. Compare NLRB v. Electro-Voice, Inc., 83 F.3d 1559 (7th 20
Cir. 1996), cert. denied 117 S.Ct. 683 (1997); and Barker ex rel. NLRB v. Regal Health and
Rehab Center, 632 F.Supp.2d 817 (N.D. Ill. 2009) (granting interim Gissel orders in small
bargaining units where, in addition to making numerous threats of plant closure, etc., the
employers discharged 25–30 percent of the unit employees, effectively killing the employees’
organizing efforts).25
Accordingly, the request by the General Counsel and the Union for a Gissel bargaining
order is denied.
Additional Remedies30
Finally, the General Counsel also requests a number of additional remedies pursuant to
GC Memorandum 11-08 (March 11, 2011). Specifically, the General Counsel requests that the
Employer be required to: (1) reimburse Waller for any excess in federal and state income taxes
he may owe from receiving a lump-sum backpay award; and (2) submit appropriate 35
documentation to the Social Security Administration so that Waller’s backpay will be allocated
to the appropriate periods. (GC Br. 103.)
The Employer offers no argument against these remedies in its posthearing brief, even
though it was given notice in the complaint that the General Counsel intended to seek them (GC 40
Exh. 1(i)). Further, the remedies do not on their face appear punitive in any way, and the Board
has never held that they are punitive or otherwise inappropriate. However, the Board recently
gave notice that, because such remedies have not been issued in the past, they should not be
granted in individual cases in the absence of a full briefing. Consumer Products Services, LLC,
357 NLRB No. 87, slip op. at 2 fn. 3 (2011). Thus, as no such briefing has yet occurred in this 45
case, and delaying a decision to solicit such briefing would clearly be improper for the reasons
set forth above, the General Counsel’s request is denied.
JD–74–11
56
Accordingly, on the above findings of fact and conclusions of law and on the entire 5
record, I issue the following recommended Certification of Representative56 and Order.57
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of valid ballots have been cast for the United Mine 10
Workers of America (UMWA), and that it is the exclusive collective-bargaining representative
of the following employees as described in the Stipulated Election Agreement:
All Production and Maintenance employees including Underground, Preparation
Plant and Underground Recovery employees employed by the Employer at the 15
Willow Lake Mine, Big Ridge Portal #1 and Big Ridge Portal #2, excluding all
other employees, laboratory technicians, sample takers, office clerical employees,
professional employees, guards and supervisors as defined in the Act.
ORDER20
The Respondent, Big Ridge, Inc., Equality, Illinois, its officers, agents, successors, and
assigns, shall
1. Cease and desist from25
a. Threatening mine closure, job loss, or other unspecified reprisals because employees
support the United Mine Workers of America (UMWA).
b. Promising employees benefits if they oppose the UMWA.30
c. Discharging or otherwise discriminating against employees because of their support
for the UMWA or to discourage employees from supporting the UMWA.
d. In any like or related manner interfering with, restraining, or coercing employees in 35
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
a. Within 14 days from the date of the Board’s Order, offer Waller full reinstatement to 40
his former job or, if that job no longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previously enjoyed.

56 See Fox-Woods Resort Casino, 356 NLRB No. 111, slip op. a 1 fn. 2 (2011); and
Talmadge Park, Inc., 351 NLRB 1241 fn. 4 (2007).
57 If no exceptions are filed as provided by Sec. 102.46 and 102.69 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Certification and 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.
JD–74–11
57
b. Make Waller whole for any loss of earnings and other benefits suffered as a result of 5
the discrimination against him, in the manner set forth in the remedy section of the decision.
c. Within 14 days from the date of the Board’s Order, remove from its files any reference
to Waller’s unlawful discharge, and within 3 days thereafter notify Waller in writing that this has
been done and that the discharge will not be used against him in any way.10
d. Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment records, timecards, personnel records
and reports, and all other records, including an electronic copy of such records if stored in 15
electronic form, necessary to analyze the amount of backpay due under the terms of this Order.
e. Within 14 days after service by the Region, post at its facility in Equality, Illinois
copies of the attached notice marked “Appendix.”58 Copies of the notice, on forms provided by
the Regional Director for Region 14, after being signed by the Respondent’s authorized 20
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted. In
addition to physical posting of paper notices, the notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site, and/or other electronic means, if the
Respondent customarily communicates with its employees by such means. Reasonable steps 25
shall be taken by the Respondent to ensure that the notices 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 proceedings, 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 Respondent at any time since April 15, 2011. 30
f. 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.
35
Dated, Washington, D.C., December 1, 2011
__________________________________40
Jeffrey D. Wedekind
Administrative Law Judge

58 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.”
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 Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT threaten you with mine closure, job loss, or other unspecified reprisals because
you support the United Mine Workers of America (UMWA).
WE WILL NOT promise you benefits if you oppose the UMWA.
WE WILL NOT discharge or otherwise discriminate against you because you support the
UMWA or to discourage your coworkers from supporting the UMWA.
WE WILL NOT in any like or related manner interfere, restrain, or coerce you in the exercise
of your rights under the Act.
WE WILL, within 14 days from the date of the Board’s Order, offer Waller full reinstatement to
his former job or, if that job no longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previously enjoyed.
WE WILL make Waller whole for any loss of earnings and other benefits suffered as a result of
our discrimination against him, in the manner set forth in the Board’s decision.
WE WILL, within 14 days from the date of the Board’s Order, remove from our files any
reference to Waller’s unlawful discharge, and within 3 days thereafter notify Waller in writing
that this has been done and that the discharge will not be used against him in any way.
BIG RIDGE, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
1222 Spruce Street, Room 8.302, Saint Louis, MO 63103-2829
(314) 539-7770, Hours: 8 a.m. to 4:30 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
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