Bill's Coal Co., Inc.

National Labor Relations Board - Board Decisions

Apr 27, 1973

203 N.L.R.B. 274 (N.L.R.B. 1973)

274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bill's Coal Company , Inc. and International Union,
United Mine Workers of America . Cases 16-
CA-4588 and 16-CA-4728
April 27, 1973
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
On November 16, 1972, Administrative Law Judge
Eugene F. Frey issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief'
and has decided to affirm the rulings, findings,2 con-
clusions of the Administrative Law Judge and to
adopt his recommended Order as discussed below.
Our dissenting colleague would dismiss the 8(a)(3)
allegations of the complaint. In his view the nine em-
ployees laid off on December 9, 1971, were terminat-
ed for legitimate business reasons and were not the
objects of unlawful discrimination.
We find, on the contrary, substantial evidence to
justify the conclusions of the Administrative Law
Judge that the selection of the employees in question
was based upon unlawful considerations, and that the
layoffs were for the purpose of ridding the Respon-
dent of union adherents.
We see no profit in emphasizing the Respondent's
claim that its business was in an economic slump and
a layoff was justified. As no exceptions were taken to
the Administrative Law Judge's finding to the con-
trary, such finding stands unrefuted. The basic issue,
and the only issue, is whether or not the nine employ-
ees laid off on December 9, 1971, were selected on the
basis of discriminatory motivation.
As fully detailed in the Administrative Law Judge's
Decision, the Respondent's union animus has been
fully established and involved key supervisors in the
i Respondent 's request for oral argument is hereby denied , as the record,
including its brief, adequately presents the issues and the positions of the
parties
2 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board 's established policy not to overrule
an Administrative Law Judge 's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions were incorrect Standard Drv Wall Products, Inc, 91 NLRB 544,
enfd 188 F 2d 362 (C A 3) We have carefully examined the record and find
no basis for reversing his findings
weeks immediately preceding the layoff in aggressive
and blatant conduct violative of Section 8(a)(1) of the
Act to undermine the union. Our dissenting colleague
has no disagreement with these findings and would
adopt the "independent 8(a)(1) findings," as indeed
he must, on the basis of credibility findings fully sup-
ported by the record. Obviously, considerations as to
the merits of the 8(a)(3) allegations must be viewed
against such background and conduct. Moreover, we
feel that the timing of the discharges, on a day other
than a payday, immediately after Respondent re-
ceived a petition for an election, is a factor which
cannot be ignored. Thus, we agree with the Adminis-
trative Law Judge that, in the factual circumstances
involved herein, the Respondent's defenses must be
viewed with close scrutiny and that a prima facie case
of discrimination was presented requiring cogent evi-
dence to overcome the inferences of discrimination.
As for the unquestioned reliance on the use of a
form of "seniority" by our dissenting colleague to
justify the "objective bases for the layoffs," we note
that the "job classification seniority" was not based
on prior practice or precedent, but on careful and
calculated deliberation. On December 3, 1971, the
day after the Respondent received notice from the
Union that it represented a majority of its employees
and requested a bargaining session , the Respondent
considered an immediate layoff on a "plantwide"
mode of retrenchment. However, it was advised by its
counsel not to lay off employees until further consul-
tation. At a second discussion on December 6, ac-
cording to Respondent's testimony, it was advised to
lay off employees strictly according to seniority with-
in the present job classification. The record shows
that there were only approximately 40 employees in-
volved in the operation and that many of the job skills
were interchangeable.
As for the job seniority basis allegedly used, as set
forth in the Administrative Law Judge's Decision, it
was followed more in form than in substance, and was
breached in the case of almost half of the employees
involved. Contrary to our dissenting colleague, we
give little weight to the excuse given by the Respon-
dent that plantwide shifting of employees in an opera-
tion as small as the Welsh mine would have been a
burdensome task. Significantly, had plant seniority
been followed, key union adherents would have been
kept at work. Using "job seniority" meant that all
nine of the union adherents doing production work
were affected. In further supporting the inferences
that the Respondent's method of layoff was discrimi-
natory, weight must be attached to the fact not only
were all nine employees laid off union adherents, but
they represented all the production employees who
had signed union cards. The mathematical probabili-
203 NLRB No. 35
BILL'S COAL COMPANY
ties of this occurring by chance are extremely remote.
In imputing knowledge of union activity to the Re-
spondent, we rely not only upon the Board's "small
plant theory," which the Administrative Law Judge
found applicable, but also the Respondent' s union
animus and its persistent and affirmative attempts to
seek from its employees knowledge of their union
adherence or that of their fellow employees both be-
fore and after the December 9, 1971, layoff.
Of particular significance in this regard was the
admission of the owner, Patch, to Collins, one of the
employees laid off, when Collins came to the mine on
December 11, 1971, to get his final pay and retirement
checks, "I don't know who all signed union cards, but
I bet by God I have thinned them out." We find that
this is an admission that the Respondent used discri-
minatory methods and knew, or at least suspected,
that some of the employees laid off were union adher-
ents. Whether the Respondent was totally right in
making the selection, of course, does not mitigate the
illegality of its conduct since discrimination based on
fear or belief that an employee is a union adherent is
unlawful . See N.L.R.B. v. Link-Belt Company, 311
U.S. 584, 590; N.L.R.B. v. Wichita Television Corpora-
tion, Inc., d/b/a KARD-TV, 277 F.2d 579, 583 (C.A.
10), cert. denied 364 U.S. 871.
Based upon the above consideration, we conclude
that the General Counsel has sustained his ultimate
burden of proof that the nine employees in question
were laid off for discriminatory purposes and that the
use of the job seniority criteria was a pretext to cloak
the discriminatory motivation for their selection. Ac-
cordingly, we find no basis for disturbing this find-
ing.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Bill's Coal Company, Inc.,
Miami, Oklahoma, its officers, agents, successors, and
assigns, shall take the action set forth in the said rec-
ommended Order.
CHAIRMAN MILLER, concurring in part and dissenting
in part:
Like my colleagues, I would adopt the Administra-
tive Law Judge's findings of independent 8(a)(1) vio-
lations. Unlike them, however, I would dismiss the
8(a)(3) allegations of the complaint with respect to the
7 See Santa Rita Mining Company A Division of Home-Stake Production
Company, 200 NLRB No. 144.
275
December 9 layoff because I find, as did the Adminis-
trative Law Judge-whose findings my colleagues en-
tirely adopt-that Respondent was economically
justified in making the layoff at that time. The record
offers abundant proof of the poor economic condition
of Respondent at the time of this layoff. It had recent-
ly lost all its contracts with customers but one and,
while that one was its prime contractor, he was or-
dering coal at the minimum contract amount and
owed Respondent over $200,000 that eventually had
to be collected through court action. Nor was there
then in sight any foreseeable relief of the economic
crisis facing Respondent whose efforts to acquire new
contracts and borrow money to meet current operat-
ing expenses had gone for naught.
The Administrative Law Judge acknowledges the
dire financial straits in which economic misfortune
had placed Respondent and that measures had to be
taken to alleviate them. In his Decision, he noted that
"General Counsel attacks this impressive testimony of
the downtrend in Respondent's business only in a
collateral way"; and later therein: "[O]verall, the re-
cord tends to support Respondent's claim that its
business was in an economic slump which would sup-
port a layoff." Nevertheless, the Administrative Law
Judge-mistakenly joined, in my opinion, by my col-
leagues-finds that the nine employees were discrimi-
natorily laid off primarily because, subsequent to the
layoff, Respondent attempted to induce Collins to spy
on union activities and because Respondent did not
uniformly follow seniority within classification in the
cases of Green, Riley, and Collins who could have
been transferred to other jobs and, therefore, Respon-
dent was using job classification seniority as a pretext
to eliminate union adherents. My colleagues also rely
on Respondent's union animus and a statement by
Respondent's owner to Collins that "I don't know
who all signed union cards, but I bet . . . I thinned
them out" 4 as further support for finding the layoffs
discriminatorily motivated. I think their reliance on
the foregoing factors is misplaced in light of the coun-
tervailing economic reasons justifying the layoff and
the lack of substantial evidence on which to establish
knowledge of individual union activities on the part of
the laid-off employees.
It is axiomatic that discrimination in selection for
layoff must be judged against a background of
Respondent's knowledge of the alleged discrimina-
tees' union activities. This record lacks any direct evi-
4 My colleagues characterize this as an admission by Respondent of discri-
minatory motive in making the layoff. To me , the entire statement is more
readily interpretable as an admission of lack of any knowledge of whom
among the laid-off employees was or wasn 't for the Union; the part of it that
speculates on the thinning of the ranks of union supporters merely reflects
the owner's conjecture about the layoff' s possible impact on the union cam-
paign rather than an admission of guilt in conceiving the layoff.
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dence of employer knowledge of union activity of the that the employees selected for layoff on December 9
employees selected for layoff and, further, insufficient were objects of unlawful discrimination, and I would
evidence upon which to infer such knowledge. Union not adopt the findings of the Administrative Law
activity of the alleged discriminatees was only mini- Judge in this regard.
mal, consisting mainly of signing union cards, and a
few instances of attendance at union meetings, which
took place away from the mines. Indeed, there is abso-
lutely no showing that they engaged in any union
activity at the mines, which, in my view, would be the
only proper context for invoking the "small plant"
doctrine. Furthermore, contrary to the findings of the
Administrative Law Judge, Respondent selected for
layoff those employees with the lowest seniority in
each of the respective job classifications.
When it is the practice to utilize seniority as the
determinant of the order in which employees are laid
off for economic reasons, grounds for a discriminato-
ry or pretextual, rather than a bona fide, layoff must
be that the seniority basis was not followed. But, that
is not the case here; job classification seniority was
followed without question in all nine instances of lay-
off and there is no evidence that employees who were
retained in the same classification had less seniority
than the employees who were laid off. Although the
Administrative Law Judge found Respondent acted
discriminatorily towards Green and Riley, he con-
cluded that Respondent "technically" applied seniori-
ty in classification to them. Nonetheless, the
Administrative Law Judge found this "technical" ap-
plication of job classification seniority was a "pretext"
as it applied to them. This reasoning does not with-
stand close scrutiny. I am unable to understand how
seniority becomes a pretext when it is the standard
used and followed in selection of employees for a
justified layoff.'
The situation is no different as to Collins, an older
employee with a sketchy employment history and a
bad attendance record, who was unable to get along
with the production foreman. Collins had been and
was actually engaged in painting at the time of the
layoff and was not in the classification of "oiler" as
he claimed. Whether his particular job was finished or
not, as the only painter in Respondent's employ, Col-
lins was properly laid off under the same standards
applied to others-his job classification seniority.'
Thus, while the advent of the Union and
Respondent's opposition to unionization of its em-
ployees gives rise to suspicion, in my opinion, this
suspicion does not amount to evidence of discrimina-
tory motivation capable of overcoming the strong
economic justification shown and the resultant selec-
tion for layoff based on the nondiscriminatory stan-
dard of job classification seniority. Accordingly, I
disagree with my colleagues that the General Counsel
has established by a preponderance of the evidence
5 To require Respondent to transfer Green, Riley. or Collins to other Jobs
which they may have previously held, as the Administrative Law Judge
suggests . would also require Respondent to transfer other employees to previ-
ously held jobs, which would result in an alternative plant-type seniority, a
choice that did not appeal to Respondent because of the confusion in num-
erous transfers that Respondent sought to avoid
6 Even if Collins had been classified as an "oiler." he would also have been
properly laid off as Respondent laid off all "oilers"
DECISION
STATEMENT OF THE CASE
EUGENE F. FREY. Administrative Law Judge: This case
was tried before me on May 23, 24, and 25, 1972, at Miami,
Oklahoma, with General Counsel and Respondent partici-
pating through counsel and the Charging Party (herein
called the Union) appearing by a representative, after pre-
trial procedures conducted in compliance with the National
Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq.
(herein called the Act). The issues raised by the pleadings,'
are whether or not Respondent , Bill's Coal Company, Inc.,
(1) coerced employees in exercise of their rights under the
Act by interrogation about their union activities , promises
and grants of benefits if they would spy on employees'
union activities and would refrain from supporting the
Union, threats of physical violence to employees and to
close its mine and discharge employees , and threats of other
reprisals for continued support of the Union, and (2) dis-
charged nine employees and transferred another to harder
work because of their union activities, in violation of Sec-
tion 8(a)(1) and (3) of the Act.
At the close of the testimony, I reserved decision on
Respondent 's motion to dismiss the complaint as to the
charges of violation of Section 8(a)(3); that motion is dis-
posed of by the findings and conclusions in this Decision.
All parties waived oral argument , but written briefs filed by
General Counsel and Respondent on July 5, 1972 (after an
extension of time for filing granted by the former Chief
Trial Examiner), have been carefully considered by me in
preparation of this Decision which was signed and released
by me on November 10, 1972, for distribution to the parties
in the usual course.
Based on a review of the entire record ,2 observations of
The issues arise on an amended consolidated complaint issued April 21,
1972, by the Board's Regional Director for Region 16 , after Board investiga-
tion of a charge filed by the Union on December 20, 1971, in Case 16-
CA-4588 and a charge filed by the Union on March 29. 1972, in Case
16-CA-4728 , and answer of Respondent admitting jurisdiction but denying
the commission of any unfair labor practices The cases were consolidated
for trial by order of the Regional Director dated April 21, 1972
2 By letter of June 20 , 1972, the reporter who transcribed the record ad-
vised all parties and the Administrative Law Judge that page 79 of the record
should be corrected to clarify an alleged remark of Bill Patch to Clifford
Collins to the effect "but I'll bet , by God , I've thinned them out" As this
correction accords with trial notes kept by the Administrative Law Judge and
BILL'S COAL COMPANY
witnesses on the stand, and analysis of briefs submitted, I
make the following:
FINDINGS OF FACT
I JURISDICTION. AND STATUS OF LABOR ORGANIZATION
Respondent is an Oklahoma corporation operating a coal
mine at or near Welch, Oklahoma, from which it mines,
sells, and distributes coal. Up to December 1971, it also
operated a small mine near Fort Scott, Kansas, but that
facility is not directly involved in the issues in this case. In
the past year before issuance of the consolidated com-
plaints, in the course of its business Respondent has had a
direct annual outflow of products from the Welch mine
valued in excess of $50,000, and in the same period it has
had a volume of business from all sales and performance of
services valued in excess of $500,000. Respondent admits,
and I find on the above facts, that Respondent is and has
been an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
The above-named Union is a labor organization within
the meaning of Section 2(5) of the Act.
11 THE ALLEGED UNFAIR LABOR PRACTICES
A. Preliminary Facts
At all material times mentioned herein Bill Patch, two
Murdaugh brothers, owners of Respondent,3 Foreman
Leon Walker, and Foreman Gary Clower were agents of
Respondent and supervisors within the meaning of Section
2(11) of the Act. All five directly supervised mining opera-
tions at the Welch mine, where Respondent ran a strip-
mining operation with the use of mining equipment such as
draglines which strip dirt and rock cover from coal seams,
loaders with large blades and shovels which push aside dirt
and rock from the coal and load such debris and the coal
in trucks for removal from the pits, internal trucks to trans-
port coal to the tipple for grading, cleaning, and washing,
and over-the-road trucks for transportation of coal to cus-
tomers. Respondent also employed drillers and dynamite
men to blast and break up rock cover and then the coal
itself, other employees to run the tipple and washer and load
over-the-road trucks, and a few to operate "dossers," or
forms of bulldozers, to push dirt and rock back into old pits
and level the ground to comply with state reclamation laws.
Union activity began at the mine in September 1971 when
employees Orville Langley, Thomas Rogers, and Clifford
Collins conferred in a nearby town with Myrl Miller, an
organizer for the Union, and received union authorization
cards from him which they solicited other employees at their
homes to sign. Rogers and Langley signed cards shortly
after they got them, and upon their solicitation employees
Collins, John D. Smith, Billy Rogers, Thomas R. Green,
his recollection of this portion of the testimony, the requested correction of
the record is hereby made The reporter's letter is marked in evidence as
Court's Exh I
J Patch owned 50 percent of the stock in Respondent, the two Murdaughs
owned the rest.
277
Paul Tucker, William L. Grayson, Don McKinzie, Earl S.
Riley, and J. R. Doerflinger signed cards at their homes or
other points away from the mine. None of the card signers,
on instructions from the Union, ever let Respondent's offi-
cials or supervisors know of their union adherence. Aside
from Tom Rogers , Langley, and Collins, the union activity
of the other named card signers was limited to that act plus
attendance of a few at one union meeting on December 6,
1971.
Respondent had known much earlier in 1971 that the
Union was calling strikes in other areas of the nation in
protest against official action removing its president from
connection with the administration of the UMW miners'
pension fund. However, Respondent hadno knowledge that
the Union might direct any activities against its Oklahoma
operations until mid-June 1971, when Patch learned that
Foreman Walker had received anonymous calls ordering
him to shut down the Welch mine with vague threats against
his family if he did not. Patch at once assembled the Welch
employees, telling them of the threatening calls to Walker,
expressing fear that there might be violence toward them or
damage to the mine operation, and asking if they wanted to
keep on working or have him shut down the mine. They
voted to continue working, indicating that "they" (outsid-
ers) could not tell the men when to shut down.
Respondent first learned of specific union activity at
Welch about October 1, when truckdrivers Bill and Hugh
Lester and Frank Ferry told Patch they had signed cards
authorizing the Union to represent them. Patch indicated
some displeasure by telling Hugh Lester and Ferry that he
had been "good to them." When the three indicated they
would like to get out of the Union, and asked Patch how to
do it, he suggested they each write a letter to the Union
repudiating it.
On or about November 29, 1971, the Union sent Respon-
dent a letter to its Welch office, claiming a majority of its
employees at its strip mine located "in the State of Oklaho-
ma" had chosen the Union as their bargaining representa-
tive and requesting an early meeting for collective
bargaining. Patch received the letter December 1. On De-
cember 2, Patch sent a short reply to the Union stating "our
good faith doubt that you represent an uncoerced majority
of our employees in an appropriate unit" and suggesting the
Union avail itself of "an administrative procedure available
to you." On December 7, 1971, the Union filed a petition
for election with the Board in Case 16-RC-5859, and the
Board the same day sent Respondent the usual notice of
such filing. This letter was mailed and received by Respon-
dent "in due course of the mails."
B. The October 28 Meeting With Employees
Early on the morning of October 28 Patch received a
report from Foreman Harold E. Card of the Fort Scott mine
that he had learned from his employees the night before that
the Union had solicited them to sign union cards on the 27th
and, when they refused, a union agent had told them they
could go back to work if they signed up, but if they did not
the Union would shut down the mine . It also claimed that
it had a majority of the workers at the Welch mine signed
up. On the basis of this report, Patch had the Welch foremen
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assemble the Welch employees at noon in the shop building
to advise them of the situation at Fort Scott and ask them
if they wanted to continue work or have the mine shut
down. About 23 employees attended the meeting, including
internal truckdrivers and some over-the-road drivers. Patch
and owner Lloyd Murdaugh with Foreman Walker attend-
ed for management. The pit or production employees, who
included most of the union adherents, gathered in informal
clusters along two sides of the shop, while most of the other
employees stood or sat across from them along the other
sides; however, there was nothing visible on any employees
to distinguish union adherents from other employees, and
some union adherents mingled with other employees.
Patch told the employees Respondent was having union
trouble at Fort Scott, related what Card had reported to
him, said the Welch mine might have trouble, with possible
violence, and asked the group if they wanted to continue
work or close the mine down. They indicated generally they
wanted to continue work.
Patch said he had heard someone from the Union had
come to Welch to sign up the employees, and asked if any
workers knew about it, if any had signed cards or knew who
was organizing there. When no one answered these ques-
tions , he said "I guess we don 't have a problem after all."
He then argued against the Union, comparing its pension
plan with that of Respondent, saying the Union was no
good and that the employees would not get any benefits
from any money they paid to it. He also said he would like
to give them a raise, but the cost of coal had gone up so
much that he could not give it at that time; he added "the
best way to get a raise is to call the union man off the job
and give me his name and address." He also told them that
"if the Union comes in the front door, I will go out the back
door," that he would not negotiate with or have anything to
do with the Union.
C. The October 30 Meeting With Employees
On the morning of October 29, the Fort Scott mine was
visited by about 38 carloads of men, well over 100 in all,
whose spokesman, one Elmer R. Robison, accused Fore-
man Card of hauling coal and demanding that the mine shut
down and "honor" the UMW strike. Although Card ex-
plained the mine was not hauling coal but only doing main-
tenance work on machinery, the union group still demanded
that the mine shut down. Card complied, sending his four
or five employees home to avoid the possibility of violence
and harm to them. To induce the shutdown, the union men
also claimed that the Union already had a majority of em-
ployees at Welch signed up, that the Fort Scott mine "might
dust as well go union." That evening Card reported these
events to Patch at his home, indicating the employees had
wanted to continue work, but Card shut down to avoid
trouble.
About 10 a.m. on October 30, Patch had the Welch em-
ployees assembled in the same way at the same place as on
the 28th; the foremen told the men there was trouble at the
Fort Scott mine and Patch wanted to find out from them
whether they wanted to continue work in face of the trouble
at Fort Scott and the possibility of a picket line at Welch,
or have Welch shut down. The pit employees, including
most union adherents , loosely grouped themselves on one
side of the building as at the earlier meeting. The three
owners of Respondent, both Welch foreman, and Card were
present . Patch told the men the above reason for the meet-
ing, outlined the trouble at Fort Scott, and had Card tell
them in detail what had occurred there. In telling the story,
Card also said that when he first told his employees on the
29th that the Union would "march on us" and asked his
four employees to gather in the mine office for safety while
he spoke to the union men, one employee had asked to be
allowed to continue to run his machine, saying that if any
union men came back to stop his machine , "I'll drop the
dragline on his head ." Card replied he wanted no violence,
and ordered the employees to stay in the office.
Patch then told the employees someone might get hurt if
the Union came to Welch, and asked them if they wanted
to have the mine shut down or continue to work. They
indicated they wanted to continue to work.
Patch then asked how many employees had signed union
cards . No one answered . He said he knew a union agent
named Miller from Tulsa, Oklahoma was "amongst you,"
and that "3 of you" had signed union cards. He said the
employees did not have to talk to the union men if they
came to their homes, did not have to let them in the house,
they could "just throw them off your place." He also said
"if the Union comes in the front door I will go out the back
door, but I will not drop a dragline bucket on you." He
added "I cannot fire you because the Government won't let
me, but if I find out you signed a union card, I will just work
you one or two days a week." He also said he could pay
them the union scale but he could not pay another 80 cents
a ton and "send all those thousands of dollars back East to
those gangsters."
Patch then said he had talked to his foremen last night
and he felt he had one of the best bunch of workers he ever
had, all were doing a real good job, and he would like to give
them a pay raise, however he could not afford it then, as the
City of Springfield had not paid him in 10 months but when
he got the money he would give them a raise.
Patch said he was in process of having his tax accountant
rewrite his retirement program for workers to make it legal
in accordance with some new laws, and he thought it might
be a better plan after rewriting it, but did not give any
details of how it would be better, or for whom. He did not
say benefits would increase , or that he was putting more
money in it. He told them the purpose of rewriting it was
to make sure the men did not pay Federal taxes on the
money that went into the plan, but only after they took it
out on retirement.
D. The December 1 Meeting With Employees
Patch received the Union's demand for recognition early
on December 1, and at once convened the Welch employees
about noon in the same way and at the same location, as in
the earlier meetings . Patch , Lloyd Murdaugh, both foremen,
Mrs. Patch , and the company secretary were present. The
workers again grouped themselves loosely by occupation,
with most of the union adherents ranged along the west side
of the shop.
When Patch walked in , he told the men in an angry tone
BILL'S COAL COMPANY 279
and manner that he had received the Union's claim that it
had signed up over 50 percent of the Welch employees, and
showed them the letter. He asked them generally "Is this
true? How many of you have joined the Union?" When no
one answered, he said "I will ask you one more time, has
anybody signed a union card?" No one answered. Patch
then walked over toward employees Tom Rogers and Or-
ville Langley, who were standing beside a truck in the mid-
dle of the shop but near the union adherents, and asked
them and Don McKinzie individually if they signed union
cards. He also asked Rogers and Langley if they attended
union meetings. Each said no in answer to the various ques-
tions. Patch then commented that someone was lying, that
the Union must be lying since no one signed a card, and "we
have no problem." He then said "I could understand some
of you new employees signing a union card, but I cannot
understand why any of my old hands would sign, because
I have been good to you." He added "If I find that any of
you old men signed a card, I'll whip your ass not once but
every time I meet you on Main Street, and if I need any help
I am sure Peewee (another employee) will help me." There
was some laughter at this remark.
One employee sitting across the room from the union
adherents suggested "Why don't you tell them to take the
letter and shove it?" Patch replied "That's a good idea."
Another worker suggested the men should all sign a letter
repudiating the Union. Patch replied that was a good idea,
too, and said he would just write that on the bottom of the
letter and mail it back. He then remarked that if some men
had signed with the Union, and he wrote this on the letter,
he would be in trouble with the Union. After a whispered
conversation with his wife, Patch announced he would write
on a separate piece of paper a statement that the signers
wanted nothing to do with the Union. He wrote this out on
a sheet and passed it among the employees to sign.
At some point in this discussion, Patch told the employees
that he would have nothing to do with the Union, would not
negotiate or even talk with it, they were only "gangsters,
crooks and cheats," but if it came in, he would just sell out
his share of the operation and move elsewhere; 4 he added
that the two Murdaughs had as much interest in the Welch
mine as he did, and that he could sell his interest for $5
million.
While the renunciation paper was circulating among the
employees, Patch distributed copies of Respondent's coal
contract with the City of Springfield, Missouri, among the
men. He had underlined in it a clause permitting Springfield
to require shipment of coal by railroad instead of trucks if
the transportation cost per ton by truck went too high. He
mentioned this to the employees, and also said the contract
gave the employees plenty of work for 10 years, and that
Respondent would have to hire more workers each syear as
the scale of required deliveries went up each year. Patch
also stated that he could afford to pay the union wage scale
4 He also gave his opinion that union benefits were not as good as those
Respondent gave its employees
s Some employees, like Clifford Collins and Tom Rogers, read clauses in
the contract requiring escalated deliveries , and pointed them out to other
workers. The contract called for minimum delivery of 80.000 tons a year in
1970 through 1973, then 135,000 tons a year with gradual increases yearly up
to 400,000 tons in the last year
to the employees, which would cost him only 20 cents a ton
more, but that he could not afford to pay the Union an
additional 80 cents a ton to be sent to "those gangsters back
East," for that would raise the price of coal to Springfield
so high he would be forced to ship it by rail instead of truck.
He pointed out the contract clause covering this situation,
and added that if the cost of producing coal got too great,
he might lose that contract to a cheaper producer; he added
that his production cost per ton was already 30-40 percent
higher than other coal producers.
Patch also told the men that he would give them a 12-1/2-
percent raise if it was approved by the Federal Price Board,
and if Springfield paid him what it owed on its contract.
When the renunciation paper reached Orville Langley
and Tom Rogers , they told Patch they would not sign it.
When he asked why, they said it was illegal and might keep
them from getting a job elsewhere. Patch then told them
directly "We have been having a lot of trouble with you
guys sitting and talking ," and that the foremen were com-
plaining about it. He asked Walker and Clower if this was
true, and they replied "That's right." Patch then said that
during a visit to the mine pit the day before , he saw Rogers
sitting on his loader, idle and talking to another employee,
and that when Patch came up, the other employee walked
away, but Rogers continued to sit idle on his loader while
Patch was walking around the pit. Patch said he had been
thinking of firing both men for some time, and had talked
to their foremen about it. Langley retorted, "there has been
nothing but trouble since you hired Walker" and, "I have
had hell with Leon ever since he came on the job." Patch
then told both men angrily that they were "fired as of right
now."
At this point, two other employees, including John D.
Smith, spoke up saying they did not want to sign the renun-
ciation paper. Smith also told Patch he could not "go along
with" what Patch had done to Rogers and Langley, as Patch
had no proof they had signed union cards, that "right was
right and wrong was wrong," and that he would sign the
paper only because he did not want to lose his job. Patch
then angrily pointed to Smith and said "John, you are -"
but did not complete the sentence, and then told Smith he
would not get fired if he did not sign the paper, no one
would, but that he had fired Rogers and Langley because
they were "goofing off on their jobs."
Langley and Rogers argued to Patch that they were doing
their jobs. Patch replied that when they worked they did a
"perfect job" but they had been "goofing off too much."
Both men said they needed their jobs and the pay they were
getting, and wanted to keep on working. Patch replied he
wanted them on the job "or we would have fired you long
ago," as they had worked for him a long time . Patch asked
the whole group of employees how many thought he should
fire Rogers and Langley. No one raised his hand or spoke
up. He asked how many thought he should keep them on,
and a few raised their hands. Employee Herbert Gamble
said he did not think it was right for Patch to ask employees
to vote on that, as "it is between you and the two employ-
ees." Patch then said "I lost my head," and told Rogers and
Langley that if they would "work out your differences with
Leon," they could go right back to work. He suggested they
come to his office and "talk it out, hatch out our differ-
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ences." Both said they would.
After the meeting ended, Rogers and Langley went into
the plant office where Patch said he was glad to see that they
were "interested" in their jobs. He asked if they wanted
Foreman Walker present, and they said no. He then asked
if they had signed union cards, and each said no. He asked
if they knew anyone who had, and each said no. Patch
reminded them that he had said at the meeting he would not
even talk to the Union, and then said "I will go with you
boys to talk to the Union, to help you get out of it." Patch
then told both they were as good loader operators as there
were anywhere, that he could replace them but would not
because it would take 3 months to break in someone else,
that they took good care of his machinery, and that Langley
"loaded the cleanest coal that ever came out of a pit," and
that as far as he was concerned, they could go back to work.
He turned to Foreman Walker, who had come in during the
discussion, and asked if that was okay with him. Walker
said it was, and Patch told both men to go back to work,
keep their mouths shut, and "just forget about the Union."
They both went back to work that day, and have worked for
Respondent ever since.'
E. Conclusions as to the Meetings
I find, as Respondent contends, that Patch called the
meetings of October 28 and 30 to find out the employees'
desires about continuing work or shutting down the Welch
mine in the face of probable union activity there, as at Fort
Scott, and that the employees knew of this purpose and
voted informally both days to continue to work. This pur-
pose in itself does not appear illegal or even antiunion, for
Patch apparently had in mind only protection of the Welch
mine and its employees against violence or harm ; I note that
a similar meeting for the same purpose, called in June 1971,
is not claimed as background proof of union animus. Before
December 1, however, Patch had only a second-hand report
that the Union claimed majority status at Welch, and when
he interrogated employees at both meetings about their
union adherence and knowledge of union activity, he did
not advise them that his questions were designed to de-
termine the truth of the Union's claim, nor did he assure
them in any way that there would be no reprisals against
them if they answered his question, and he made no provi-
sion for them to answer the questions in a secret ballot. As
he did not take these steps long recognized by the Board as
minimum requirements to avoid a finding of coercive atmo-
sphere otherwise inherent in such polling or interrogation of
employees,' I must conclude that the interrogation at both
meetings was coercive and that Respondent thereby violat-
ed Section 8(a)(1) of the Act.
Although Patch concluded from the failure of the em-
ployees to answer his questions on October 28 that "we have
no problems," he made it clear at both meetings that if the
6 The facts as to the three meetings are found from a composite of credible
testimony of various witnesses of General Counsel, as corroborated in sub-
stantial part by testimony of witnesses of Respondent and admissions of
Patch Testimony of Patch and other witnesses of both sides at variance with
the findings is not credited
' Struksnes Construction Co, Inc, 165 NLRB 1062, 1063
Union organized the Welch mine, he would "go out the
back door" and refuse to deal with it in any way. that while
he could not discharge employees in such circumstances, he
could retaliate by reducing their days of work; and that he
would give them a raise in the future when he could afford
it, but the best way for them to get it was to get rid of the
Union and its organizer. The clear threat to "go out the back
door" if the Union came in, which in context was tanta-
mount to a threat to shut down the mine, and the threat of
refusal to recognize the Union as their bargaining agent,
and to reduce their workdays, and promise of a raise only
if they repudiated the Union, were clearly coercive remarks
which also violated Section 8(a)(I) of the Act, and further
emphasized the coercive nature of the attendant interroga-
tion of employees, as well as negating the claim that the
interrogation was a bona fide effect to "call the Union's
bluff" and determine whether it in fact had majority sta-
tus 8
Although Patch had formal notice of the Union's claim
of majority status in hand when he addressed to the employ-
ees on December 1, he still did not tell them his questions
about their union adherence were solely to find out if the
Union's claim was true, nor did he give them any assurance
against reprisals if they answered his questions, or call for
a secret ballot. To the contrary, although he ostensibly took
their silence again as an indication that "we have no prob-
lem," he went on to threaten his older employees with physi-
cal reprisals if he found out they joined the Union, which
in all the circumstances was clearly coercive and violative
of Section 8(a)(1) of the Act .9 Further, Patch' s instant dis-
charge of old hands Langley and Rogers as soon as they
refused to sign the statement renouncing the Union, in light
of his admission that receipt of the Union's letter made him
angry and acted in part to cause their instant public dis-
charge, indicates that this action was well calculated to
impress the men that they would suffer a like fate if they
joined the Union and Respondent learned of it. Hence, the
instant discharge of the two, though shortly regretted and
reversed by Patch at the behest of the employees, was coer-
cive and a further violation of Section 8(a)(1) of the Act.
Again, the threat that Respondent would refuse to bargain
with the Union if it organized the mine, and the promise of
a wage raise in the future, were both coercive remarks in
similar violation of the Act.10 Finally, I find that Respon-
8 1 find no clear evidence of a coercive offer of a better retirement plan in
Patch 's mention on the 30th of the revision of his retirement plan to conform
to new Federal laws At most , he gave his opinion that its revision in accor-
dance with the new law might give the men some benefit later
9 1 cannot accept Respondent 's contention that the "whip your ass" remark
was merely a, asual and joking example of similar rough talk used by the men
with Patch and among themselves daily at the mine , for Patch admitted that
when he received the Union's letter he was "real mad." "really furious," and
came into the meeting and acted with "blood in my eyes" I am satisfied that
his angry attitude and tone of voice were probably apparent in making the
"whip your ass" remark to the men and it was well calculated to impress them
that he was quite likely to make some physical retaliation on any who joined
the Union
10 1 find no merit in Respondent's claim that the promise of a raise was
similar to that given by it as a matter of policy in past years, because there
is no proof of the number , timing, and circumstances of such raises in past
years which might serve to negate the compelling inference that the instant
offer was given to induce workers to renounce the Union. when made in
context with the other unfair labor practices at this meeting , and while
employees were being urged to renounce the Union in writing
BILL'S COAL COMPANY
dent further coerced employees in violation of the Act by
Patch's interrogation of Langley and Rogers in the office
about their union activity and that of other workers, and his
remarks impliedly conditioning their return to work upon
their renunciation of the Union.
I also find from uncontradicted testimony of J. R. Doer-
flinger, John D. Smith, and Clifford Collins that: On the
night of October 27, Foreman Walker called Doerflinger at
his home to ask if he knew anything about any union activi-
ty at Welch, and Doerflinger replied he did not. On the
afternoon of October 29, Walker asked Smith in the mine
garage if he had signed a union card. Smith said he had not,
but would if there was a need for it. On December 9, right
after Collins' layoff, Patch asked Collins if he had signed a
union card. Collins said no. Patch then told him privately
that Collins "would be taken care of," would be kept on the
payroll even though he was laid off, and Patch would give
him Christmas money if he needed it, that he would pay
Collins if he would find out who signed union cards and tell
it to Patch. On December 11, when Collins visited the mine
to get his final pay and retirement check, Patch again asked
him if he had signed a union card, and then mentioned the
men laid off, saying "I don't know who all signed union
cards, but I'll bet, by God, I have thinned them out"; he
again told Collins he would be kept on the payroll although
Patch could not pay him by check. About 2 weeks later,
Patch telephoned to Collins at his home and asked if he had
information for Patch. Collins replied no, that he seen no
one and heard nothing.I I These interrogations were clearly
more than casual incidents and were not accompanied by
any of the requisite assurances noted above; hence I find
that Respondent thereby further violated Section 8(a)(1) of
the Act. The promise to pay to Collins for reporting on
union activities of other employees was likewise a coercive
violation of Section 8(a)(I) of the Act.
F. The December 9 Layoffs
Respondent admits that it terminated Clifford Collins,
John D. Smith , William (Billy) Rogers , J. R. Doerflinger,
Thomas R. Green , Earl S . Riley , Don McKinzie , William
L. Grayson , and Paul Tucker on December 9, 1971, claim-
ing they were laid off because its business had been falling
off for some months before , and on that date it had only one
contract left, with little or no present or future prospect of
securing more contracts , so that a reduction in force was a
necessity . Respondent 's recently displayed union animus,
its unfair labor practices of October and early December
which strongly indicated Patch was likely to take reprisals
against employees , even as drastic as discharge , for their
suspected union adherence , and the timing of the layoffs on
a day other than payday , 12 only 5 or 6 days after the Decem-
ii I do not credit Patch 's general denial of any offer of money to Collins
for information about union activity, in light of Patch 's clear union animus
manifested by illegal interrogation and threat s of reprisal at the three meet-
ings
2 Patch admitted the workweek was from Monday night to Monday night,
the men turned in their time on Tuesdays and were paid that day every 2
weeks As December 9 was a Thursday, it was not clearly a normal time for
terminating worker -, from a bookkeeping standpoint , whether the actual
paydays in November and December were November 30, or December 7 or
281
ber I meeting , present a prima facie case of discrimination
which requires that this defense be anaylzed closely and that
Respondent adduce cogent evidence in support which must
be adequate to overcome the inferences of discrimination.
I find from credible testimony of Green, Tucker, Smith,
Rogers , and Doerflinger , that , at the time of layoff or when
receiving his final paycheck , each was told by his foreman
or Patch or both that he was being laid off reluctantly
because Respondent had lost its contracts , and had only the
Springfield contract left; and some were also offered good
recommendations to help in seeking another job. Admis-
sions of Grayson, Riley, Green, Tucker, Rogers, and Mc-
Kinzie also show that , aside from signing a union card, the
union activity of each was none or minimal , and each took
steps at the suggestion of the Union to hide their activity
from Respondent. These facts tend to show lack of compa-
ny knowledge of the union activities of these men and that
it released them only reluctantly for economic reasons. The
same conclusion is warranted in the case of Doerflinger:
Walker's illegal interrogation of him on October 27 did not
reveal any union activity by him or company knowledge of
it; although he attended the three meetings of employees
noted above and some union meetings on unidentified
dates , he did not sign a union card until mid-November, and
there is no substantial proof that his union adherence came
to the attention of Respondent until after his layoff, when
Walker privately complimented him on his work and said
he would use his influence to try to get his job back as soon
as he could; in this talk Doerflinger volunteered that he had
been active in the Union, and Walker replied "I would have
bet my life you were not, but I respect you for telling
me.,, 13
The same lack of knowledge cannot be inferred as to
Smith: Respondent knew as early as October 29 that he
might sign with the Union "if there was a need for it," and
his open reluctance on December 1 to sign the renunciation
of the Union at Patch 's request , as well as his complaint
about the abrupt discharge of Langley and Rogers which
contained indicia of discrimination , made it clear to Re-
spondent that he did not approve of Patch's antiunion ac-
tions at that meeting , and impel the inference that Patch had
good reason to believe that he favored a union at the
mine.13
Besides Respondent 's prior knowledge of Smith 's union
sympathies, I must find from Patch's discriminatory treat-
ment of Langley and Tom Rogers on December 1, and his
boast to Collins on December 11, that he had "thinned out"
the union adherents, plus his remark to the men on October
31 that he knew a named union agent was soliciting them
and three employees had already signed cards, all occurring
in a small mine operation employing only about 31 produc-
14
13 This conversation is found from uncontradicted testimony of Doerfling-
er
141 make no finding of knowledge of union activity of specific union
adherents at the three meetings from the fact that they grouped themselves
together in loose fashion while Patch spoke , for even though this was a small
operation with no more than 40 employees it is clear from testimony of union
adherents that the employees grouped themselves mainly by occupation, and
it is significant that truckdrivers , of whom three had already revealed their
union affiliation to Patch, were not singled out by Patch for any direct
remarks, warnings, or threats such as he directed toward Langley and Rogers
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion men including internal and external drivers, that by
December 9 Respondent was well aware of the extent of the
Union's solicitation of employees, and strongly suspected or
probably knew which employees had signed cards."
On the issue of economic necessity, the record shows 16
that: Starting as a one-man machinery operation about
1948, Patch built up Respondent's business to the point
where it operated the first mine in 1964 and moved to the
Welch site in 1968 in order to produce for the first Spring-
field contract which was signed in 1969 and called for 40,
000 tons a year over 5 years. That contract was modified in
1970 to cover a 10-year period with increasing tonnages
each year as found above. In 1970 Respondent also secured
three or four smaller I-year contracts with various termina-
tion dates up to December 1, 1971, calling in total for about
48,000 tons. To meet deliveries on these contracts Respon-
dent ran its Welch mine 6 days a week in 1971 up to Decem-
ber 9 with an increasing workforce which totalled about 40
(including 16 production workers and internal truckdrivers,
and 15 over-the-road drivers), in October and up to the
layoff. In this period Respondent had little employee turn-
over, except for truckdrivers. About 75 percent of the
monthly production at Welch was produced for the Spring-
field contract, the remainder coming from Welch and Fort
Scott combined.
To handle these contracts, particularly the Springfield
requirements, Respondent invested in a new dragline, two
new loaders, two rock drills, five trucks and a dosser, all of
which were in use before the layoff. In addition, Respon-
dent was slowly moving a large shovel, which could handle
8 yards of material at each scoop, toward the Welch pits;
on December 9, it was about 9 miles from that mine. Re-
spondent bought this shovel forjunk in 1969 and repaired
and modernized it at an expense of over $200,000, intending
to use it at Welch for anticipated expanded production;
Patch hoped to have it in production by mid-1971, but
because of breakdowns enroute and delays in getting neces-
sary parts, the shovel did not reach Welch and go into
production until about March 17, 1972.
All of Respondent's small contracts ran out or were can-
celled earlier by customers by December 1, on which date
only the Springfield contract was extant, with that customer
calling only for minimum tonnage each month, and 1,500
tons still to be shipped on a Parsons , Kansas . contract. Thus
for several months before the layoff, Respondent was pro-
ducing about 12,000 tons a month, using part to meet its
commitments on the Springfield and Parsons contracts but
stockpiling the remainder, so that at the layoff date it had
accumulated the largest coal stockpile in its history. At that
time no employees were working overtime, except one dril-
15 1 consider the Board's "small plant theory " for imputation of knowledge
of union activity applicable here, where most of the production men worked
daily in the same pits or came in contact with each other and the drivers in
the same locations or at nearby buildings See Malone Knitting Company, 152
NLRB 643, 647, 648 (80-90 employees), affd 358 F 2d 880. 883 (C A I.
1966), and compare Springfield Garment Manufacturing Company. 152 N LRB
1043, 1054 (over 400 employees ), and W A Shaeffer Pen Company, 199
NLRB No. 21 (350 employees).
16 These facts appear from credible testimony of Patch , with corroboration
from former employee Howard S Berry, Foreman Card, and contract truck-
er Flanigan
ler and the shop mechanic occasionally.
When Patch saw his small contracts beginning to phase
out in mid-1971 he made continued efforts from July on-
ward to secure repeat orders by bidding and also new orders
by delivery of "trial" shipments to certain potential custom-
ers. He lost out on the repeat orders when he was underbid.
In the last months of 1971 he sent "trial shipments" to six
or seven potential municipal and private customers, but at
the time of hearing had no secured firm contracts from any.
He also tried to persuade Springfield to take its contract
maximum of 100,000 tons a year, but without success; he
only shipped the minimum of 82,000 tons on that contract
in 1971. At December 1, Springfield owed him over
$200,000 for past deliveries, and Respondent was able to
secure payment only after civil suit, in which it collected
about $300,000 then due in April 1972.
In the face of termination of his small contracts, failure
to secure repeat orders or new contracts, and failure of
Springfield to pay him promptly, which made it difficult for
Respondent to meet current operating expenses or even to
borrow money for that purpose," Patch testified that he
began to think seriously about a layoff, late in November
after early cancellation of a Desoto, Kansas, contract for
20,000 tons. In discussion with his co-owners and foremen
about that time, all agreed a layoff was the only way to
reduce expenses and survive. Patch also testified that, after
receipt of the Union's letter claiming majority status, he
knew that if an employer laid off men who held union cards
he might have to pay them backpay and reinstatement (ob-
viously if the layoff were found violative of the Act), and he
"wanted to make sure I do it right so I won't have to do
this," so he hired present counsel. Before the actual layoff
he had considered shifting employees around to jobs they
formerly held when making the layoff, but "that sounded
very confusing." In a conference with counsel on December
3 he was advised not to layoff any employees until further
consultation. At a second discussion on December 6, coun-
sel advised him to lay off employees strictly according to
seniority within present job classifications.
General Counsel attacks this impressive testimony of the
downtrend in Respondent's business only in a collateral
way. Patch's optimistic statements to the employees on De-
cember I about the prospect of long-continued employment
inherent in escalation features of the Springfield contract,
which had 7 or 8 years to run, and his promise of a substan-
tial raise if he could get Federal Government approval,
clearly weight against the claim of declining business. Patch
admitted that the employees got a raise sometime before he
testified in May 1972. On the other hand, a continuation of
Respondent's depressed operation can be inferred from
credible testimony of Patch and Michael P. Flanigan indi-
cating that since the layoff Respondent has been operating
with a workforce of only 26, including only 9 or 10 produc-
tion men; that up to May 1972, Springfield has been calling
for only the minimum of 80,000 tons a year under its con-
" Patch testified credibly that if Springfield had paid for deliveries
promptly, Respondent would have had working cash sufficient to maintain
the present workforce and avoid a layoff , so that he could have produced
normally to stockpile coal over the winter Lacking ready cash, however, he
was forced to close down the Fort Stott mine on December 17, 1971. laying
off its foreman and the whole work crew
BILL'S COAL COMPANY
tract; the mine has had only one pit in operation since
December 1971; and since February, and as late as April
1972, Flanigan's trucks have been hauling fewer loads than
normally from pit to tipple, since Respondent has been
digging less coal.
I have also considered uncontradicted testimony of Flan-
igan that in a private conversation with Patch on April 3,
1972, Patch indicated that Flanigan would not make any
money with his truck at the mine "until this thing is settled,"
referring to the "union trouble," and suggested that Flani-
gan remove his truck from the mine "until this thing is
settled, and then we will go to producing coal and we can
both make some money, as things will improve." These
remarks afford some support for the theory that Respon-
dent has been deliberately keeping its operation at a low
level since the layoff, while stockpiling what coal it digs, in
order to bolster the appearance of a genuine drop in busi-
ness and legitimate economic layoff. While it is hard to
believe, at first blush, that a small operator like Respondent
would deliberately refrain from seeking new business or
build up its operation over a period of almost 6 months after
December 1971 and jeopardize the continuance of its whole
operation in order to support the economic defense, a small
but significant item of proof supporting that theory is
Patch's admission that he in April 1972, finally collected up
to $300,000 owing him from Springfield, which is undoubt-
edly a nice cushion of ready cash on which to survive while
running his operation at a low level.18
Overall, the record tends to support Respondent' s claim
that its business was in an economic slump which would
support a layoff. On the nature of the layoff, Respondent
claims the nine men noted above were chosen for layoff
strictly on the basis of seniority within classification. How-
ever, the record does not support the claim that Respondent
applied this criterion to all uniformly.
Patch testified that Smith, Tucker, and Billy Rogers, the
entire group of oilers on draglines, were laid off because the
dragline operation was cut back to one shift, idling the other
machine, and he operated the remaining one with dragline
operators Bill Goodwin and Harry Tyler together, one run-
ning it 9-10 hours a day, the other acting as his oiler and
operating the machine while the operator ate lunch; in this
way the machine ran the extra-long shift without any down
time.
McKinzie was laid off, as the dragline operator junior in
service to Goodwin and Tucker, when his dragline was shut
down. Respondent recalled him to help run that machine on
February 18, 1972, when second shift was needed because
the big shovel was not yet ready for operation. When the
shovel began operations March 17, 1972, Dragline Operator
Tyler was transferred to operate it, but McKinzie took his
place on the dragline on the other shift with Paul Tucker,
18 Flanigan 's testimony shows that during 1972 at least he has been a
contract hauler for Respondent , using his own truck and hiring his own
driver, and getting paid only according to the tonnage hauled. Hence, he is
not clearly an "employee" of Respondent within the meaning of the Act, and
since Patch 's conversation with him and his driver was private , and there is
no proof that either man was engaged in union activities. Patch 's remarks to
them do not amount to coercive threats to employees of loss of earnings if
they continued to give assistance to the Union I will recommend dismissal
of par 7(a) of the complaint , as amended
283
who was also recalled on February 18, as his oiler and relief
operator. Although Tucker was the least senior of the three
oilers laid off, Patch says he recalled him in preference to
Smith because of Smith's disrespectful conduct toward
Walker when told of his initial layoff and toward the owners
and the company secretary, thereafter. Smith admits that
when Walker stated the economic reason for his layoff,
Smith charged he was laid off because the employees were
trying to "go union," and when Walker denied it, Smith
called him a liar and cursed at him. Patch testified that when
Lloyd Murdaugh later repeated the economic reason to
Smith he "mouthed" off in some unidentified way to Mur-
daugh and the company secretary. These uncontradicted
facts afford cogent reason for not applying seniority on
recall of Smith. However, Patch gives no reason why he did
not recall Billy Rogers instead of Tucker, where Rogers
apparently had more seniority than Tucker and had started
work in December 1970 as oiler on McKinzie's machine;
recall of Rogers would seem to be indicated, if seniority was
the criterion, and almost dictated as a matter of business
prudence, considering that the McKinzie-Rogers team had
apparently long worked satisfactorily in the past.
I find no clear proof, and General Counsel does not cite
page references , nor did he subpena company records, to
show that Tyler had less seniority than McKinzie to support
the claim that seniority was ignored without explanation in
his case. Tyler did not testify in the case. In any event, recall
of McKinzie in 1972 when the need for his services arose is
a factor which weighs strongly against the claim of discrimi-
nation.
Grayson was hired as a welder in the shop in August 1971.
Patch says he was laid off as the junior of the two welders
in length of service. General Counsel argues that cross-
examination (apparently of Patch) shows that Grayson had
more seniority as a welder than one Harley Malone who was
hired in September 1971, after having worked for Respon-
dent earlier and quitting March 1, 1971; although junior to
Grayson in their last employments, Malone was not laid off.
While Patch was cross-examined in detail about the others
laid off, I find nothing in that examination, and General
Counsel does not cite any page references there or in other
testimony, mentioning Malone or the details of his employ-
ment record as stated in argument. Records of Respondent
on Malone were not subpenaed by General Counsel. Hence,
Patch's explanation for his layoff stands without substantial
contradiction.
Doerflinger had first been employed in September 1969,
quit work in March 1970, and returned in late August or
early September 1971 as a rock driller or "shooter," which
job he had held at time of layoff. Patch testified he was laid
off as the least senior of the two drillers on the payroll, but
admits he had also run a loader in the past. General Counsel
argues equivocally that Doerflinger had "more seniority
than Berry, if he had not lost his seniority," intimating that
Doerflinger's overall loss of seniority by quitting in March
1970 made him junior to driller Howard S. Berry only on
the drilling job. The argument is besides the point, however,
as Berry's testimony clearly shows he became a driller in
June 1971, several months before Doerflinger became a
driller, which supports the defense of layoff by seniority
within classification. The claim of an inconsistent use of this
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
criteria by comparison with the alleged Grayson-Malone
situation is not tenable, lacking record proof of Malone's
employment history.19
Collins was first employed by Respondent in 1962 as a
common laborer, then quit and was rehired in June 1968
and worked at times as an oiler on a dragline and at times
as loader operator. In early 1971 he was a driller for some
months under Foreman Walker. His drilling work was satis-
factory, but he admits he did not get along well with Walker,
and he was absent a total of 21 days for illness up to August
1971; on his last such absence, Walker discharged him be-
cause he did not report in sick. Patch rehired him shortly
after on his application and plea that he needed the money
to put his son through school, giving him a temporary job
to paint the big shovel while it was enroute to its worksite,
both to let him earn money and at the same time keep him
away from Walker; Patch told him he would be considered
for the job of oiler on the shovel itself after the painting was
done and the shovel was in production. Although Patch
testified that he was laid off because the painting job was
finished, and Respondent had no other work for him, Patch
refutes his own claim by admitting that on December 9 the
paint job was not quite finished, and on that day he also had
Collins at work repairing a broken cylinder on the shovel.
There is no testimony showing who finished the paint job,
or when, nor when the cylinder repair was finished. Patch
says he did not send Collins back to the drilling job because,
although he was a good driller, he had a bad attendance
record there and could not get along with Walker; however,
despite his solicitude for Collins and his personal problems,
Patch did not later recall Collins (as he did McKinzie) as
oiler on the big shovel when it went into operation in March
1971 but instead tried to induce him to act as a nonpayroll
employee paid secretly to spy on union activities for Re-
spondent as found above , while assuring him in January
1972 that "maybe things will shape up one of these days,
and you can go back to work." Patch also testified Collins
was laid off for his past unsatisfactory work, but admits he
was not told this on December 9. This reason is more indica-
tive of an outright discharge than a layoff for lack of work.
Since Patch's own testimony on the reason is self-contradic-
tory and refutes the claim that there was in fact no work for
Collins, the only indication of motive left in the record are
Patch's threats of physical violence toward any "old hands"
he discovered supporting the Union, and his rather blunt
boast to Collins on December 11, 1971, that he felt he had
"thinned out" those whom he suspected or believed to be
union adherents. The same inference of discrimination aris-
es from his failure to recall Collins, after trying unsuccess-
fully to induce him to spy on his fellow workers' union
activity with promises of pay and of reemployment at some
future time . On all the pertinent facts I must conclude that
Respondent has failed to prove the economic defense as to
Collins in a manner adequate to rebut the case of discrimi-
nation against him shown otherwise in the record. I con-
clude that Respondent discharged Collins on December 9,
1971, under pretext of an economic layoff, in violation of
Section 8(a)(1) and (3) of the Act.
19 Malone did not testify
On December 9, 1971, Green was operating the tipple and
washer on second shift. He was laid off, as Walker told him,
because of the cutback in that operation to one shift, which
was handled at the time and thereafter by Bullard, brother-
in-law of Walker. Bullard was senior to Green in this opera-
tion, having started in it about September 1970, while Green
was transferred to it sometime after his initial hiring on
October 1, 1971. Green's union activity was minimal as
noted above, and while it appears that Bullard had on De-
cember 6 asked Green if he signed a union card and got a
negative reply, there is no credible proof that Bullard re-
ported this query and its result to Walker, his brother-in-
law. Hence, while Respondent may have suspected or be-
lieved that Green was a union adherent for reasons noted
above, there is a dearth of substantial and persuasive proof
that Green, as an individual case considered by himself, was
chosen for layoff other than on the basis of seniority in
classification . However, I have found that Respondent dis-
charged Collins for discriminatory reasons under cloak of
an economic layoff, and there is other proof indicating that
Patch was trying by that subterfuge to "thin out" the union
adherents. The record shows that since he was hired about
October 1, 1971, Green had performed three different jobs,
running a pit truck, operating the tipple and loading over-
the-road trucks , and at times running a "dosser" used in
levelling off old diggings to comply with state reclamation
laws. For reasons considered hereafter in analyzing his and
other workers' background experience, I must conclude that
while Respondent applied seniority in classification techni-
cally in laying him off, a discriminatory motive also played
a part in his selection, so that his layoff also violated Section
8(a)(1) and (3) of the Act.
Riley was hired November 1, 1971, as an over-the-road
trucker, but operated a loader in the pit from about Novem-
ber 15 to December 6. Patch says he was laid off as the least
senior among the loader operators. However, the record
shows that since December 6, when he drove his loader to
a Kansas town for repairs, he had been shifted to relief
operation of over-the-road trucks until his layoff. At termi-
nation Foreman Clower said he was laid off because opera-
tions had slowed down , and Respondent was taking some
trucks off the road. Clower does not dispute this. Patch
admits he may not have had the least service among the
over-the-road truckdrivers. Since his last fob was as a truck
operator, it appears clear that Patch's selection of him for
lack of seniority in his priorjob is open to suspicion, particu-
larly where his foreman offered a reduction in truck opera-
tion as the reason at time of layoff. Even that reason is
suspect, lacking proof of the extent of reduction in the over-
the-road truck operation, and in light of Patch's admission
that he was not the junior on that job. Patch admitted that
Riley, in his short service, had also operated the "dosser" at
times, and on December 9 Respondent still had up to 2
weeks of reclamation work to do with that machine. Neither
Patch nor Walker gave any reason why Riley was not trans-
ferred again to that work, or who in fact did it after the
layoff. Considering the discriminatory treatment of Collins
and the evidence of Patch 's intent to eliminate union adher-
ents as much as possible , I must conclude that the seniority
criterion was put forth only as a pretext in his case, and that
Respondent's desire to clean out the suspected union adher-
BILL'S COAL COMPANY
ents played a substantial part in his selection for layoff, so
that his termination also violated Section 8(a)(3) and (1) of
the Act.
It is clear from Respondent's treatment of each of the
nine men laid off that (I) it did not follow seniority as
claimed in the layoff of Riley, and in recalling Tucker in
preference to Billy Rogers; and (2) it discriminated against
Collins, an old hand and one of the three main union solici-
tors, by laying him off though his work at the time was not
finished, and offered to recall him later only if he acted
illegally as a spy of union activities of employees. Riley was
not the junior in the over-the-road truck job at layoff. In
addition, it is significant that Patch at first was prepared to
move men to other jobs they could do, rather than laying
them off, a normal mode of retrenchment which enables an
employer to keep valued men at work, and changed this
mode of retrenchment only after consultation with counsel,
giving only the vague excuse that shifting men around was
"very confusing." As Patch indicated he had personal feel-
ings of sympathy for Collins because of his infirmities and
financial problems, this excuse is palpably false in his case
when Patch took the uneconomic course of terminating him
while he still had two jobs to finish, and did not transfer him
back to either of his old jobs of loader-operator or oiler on
a dragline; in the latterjob he probably had as much if not
more experience than the three oilers laid off, and certainly
more than Tucker who was recalled as an oiler. In like
manner , Patch laid off Green who in his'short tenure had
learned three operations, one of which (reclamation work
with a "dosser") was a continuing operation, and Riley, who
had also done that work as well as run over-the-road trucks,
anotherjob which continued after the layoffs. If Patch had
followed his original inclination and kept these three men
at work, he would have retained three union adherents. His
failure to do so, or to recall them later, is consistent with his
boast to Collins of "thinning out" the suspected union ad-
herents, and impels the conclusion that his sudden and nov-
el use of the seniority-in-classification criterion was a
pretext because it fortuitously gave him a criterion which
labor organizations at times seek to protect job security, to
get rid of nine suspected union adherents whom he would
otherwise have kept at work during the depressed period in
the business. I therefore conclude that he used the technical
criterion as to the whole group, hoping that it would suffice
to support his elimination of at least these suspected union
adherents, all of whom were production employees as con-
trasted to truckdrivers. These considerations strongly impel
the conclusion that General Counsel has sustained his ulti-
mate burden of proof that Respondent terminated the nine
men because it believed or suspected their union adherence,
using the technical seniority criterion as a pretext to cloak
this real motive for their selection.
Respondent notes, and the record clearly shows, that Re-
spondent did not try to get rid of old hands Tom Rogers and
Orville Langley by this method, although Patch's rough
treatment of them on December I indicates he probably
knew or suspected them of union activity. This militates
somewhat against the inference of discriminatory layoff of
the nine, and leads to analysis of the reason for the later
transfer of Langley.
285
G. The Transfer of Orville Langley
Langley, now 56 years old, was hired by Respondent in
1960 and has worked as a loader operator ever since up to
his transfer of March 16, 1972, to a tipple job, except for 6
to 8 months as an operator and oiler on a dragline. He was
instrumental in bringing the Union to the Welch mine and,
with Tom Rogers and Collins, comprised the most active
organizing group of employees during the union campaign.
His abrupt discharge with Tom Rogers on December 1
under circumstances found above shows that Patch dis-
charged both in a fit of anger for their poor work perfor-
mance but in a context which strongly indicates that their
refusal to accede to Patch's request to sign an antiunion
document played a part in their discharge, and that Patch's
treatment of them before the whole work force was well
calculated to coerce employees in their continued adher-
ence to the Union.
After Patch openly reprimanded 20 and discharged Lang-
ley for talking too much and not working, and reinstated
him almost immediately upon the clear condition that he
and Rogers stay away from the Union, Langley's work per-
formance improved for a while, but after a month or so
Walker began getting complaints from the pit truckdrivers
that Langley was not loading their trucks fully. Patch also
got complaints from Walker that Langley was again begin-
ning to waste time by talking to Rogers and not working.
On March 16, 1972, Walker ordered Langley to work on the
tipple. When Langley asked why, Walker replied the truck-
drivers had complained he was not loading them fully.
Langley argued he was, but Walker repeated the order.
Langley complained that on the washer he would be work-
ing in water which would be bad for his arthritis, and he
would also have to climb up and down stairs. Walker still
sent him to the washer. At end of work that day Langley
asked Patch why he was transferred. Patch said Walker was
the boss, that Langley and Rogers had talked together too
much, caused much friction, and were not doing their jobs.
Langley argued they could not keep busy when the dynami-
ter or "shooters" did not "keep the rock shot up ahead of
us to move the coal."21 The above facts are found from
credited testimony of Walker and Wilbert N. Brown.
General Counsel claims Langley was transferred to the
washer job, a more arduous task than running a loader in
the pit, because of his union membership and activity. Ac-
cording to Langley his duties on the washer were more
difficult and hazardous in these respects: When he started
his shift, he had to grease the washer and crusher wheel, and
prime a water pump some distance away, all of which took
him about 25 minutes. While the washer and large crushing
wheel were running, he often had to stop the crusher and
crawl under it to remove by hand large chunks of rock
20 Langley admits he considered Patch's criticism of his poor work perfor-
mance as a reprimand
21 In the sequence of work in the pit, Tom Rogers first scrapes dirt off a
coal seam with his small loader, and Langley loads it into trucks for removal.
Drillers or "shooters" then drill holes in the rock cover and break it up with
dynamite blasts, and Rogers then pushes it into piles which Langley scoops
up and loads into trucks. The "shooter" then blasts the coal seam itself in
like manner, and Rogers and Langley in turn pile and scoop rock for loading
and removal to the tipple
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which had jammed it; this operation became more frequent
after the big shovel began operation because the broken
coal it scooped up contained more and larger chunks of
rock than was the case when draglines and loaders were
handling the coal and separating rock from it. In releasing
the jams, Langley has to climb several sets of steps to get
to the wheel; and while removing the jammed rock, must
work in water at times, which was bad for his arthritis. At
times the rocks were so large he had to call on Tom Rogers
to help him remove them; if Rogers was not available Lang-
ley had to break them up with a sledge hammer. After coal
has gone through the crusher and washer, Langley loads the
over-the-road trucks with coal from the stockpile. He indi-
cates he was required to load when not occupied with pull-
ing rocks out of the crusher or even the hopper into which
the pit trucks dumped their loads, but Patch allowed him
almost from the beginning to do this with the loader he had
used in the pit. He also had to use the loader to scoop up
coal dumped by pit trucks at the washer, and load it into a
grating of heavy bars on the hopper. While doing this on
April 6, 1972, he dumped a load containing a very large rock
which he was unable to drag off the grating with the loader
scoop, so had to roll it by hand; as he did so his foot slipped
between the grate bars , bruising his leg and twisting his
back. This required absence from work for hospitalization
for X-rays and treatment until May 22, 1972, when he called
Foreman Clower to ask about a return to light work. Clower
replied the mine had no light work, so he could not recall
him.
Langley testified his job in the pit had been much easier
because he sat on and operated the loader all the time,
leaving it only to lubricate it once in the morning and rarely
thereafter to pick large rocks out of a coal pile by hand; the
latter operation was infrequent because up to March 17,
1972, the coal produced for the Springfield contract by the
draglines was much smaller in size than that produced by
the big shovel, hence rocks mixed with it were more easily
handled by the pit loaders without manual work. In addi-
tion, operation of the pit loader almost never required the
operator to stand or work in water, nor to climb stairs or
walk long distances.
I note from the type of operation at Welch as shown by
the record that outside jobs in a strip coal mine are obvious-
ly far from easy, pleasant, or lacking in hard physical work
as well as some occupational hazards . Bearing this in mind,
I find in the record cogent proof that the tipple and washer
job in fact involved more pleasant working conditions with
far less physical labor and strain on the operator than a pit
loading job. Bothjobs had about the same requirements for
preparing machinery at start of shift: lubrication of loader
with possible change of oil and oil filter, lubrication of the
grinder wheel in the washer once a day, using two short
flights of stairs to reach it, and simple priming of a nearby
water pump. Thereafter, the washer operator put the wheel
and washer in operation merely by pushing electrical con-
trol buttons in one of two locations, and then merely
watched the wheel and washer mechanism operate, occa-
sionally regulating the opening of the feed door controlling
the amount of coal dropping from the hopper to the wheel,
to prevent too much coal or large rock from going into
wheel at once, which might cause jams. If the door is proper-
ly operated, jams usually occur no more than once a day
and most of the time only once in several days or a week.
At times, he may have to stop the operation to break up and
clear a rock jam by hand or with a sledge hammer, and if
the jamming rock is too large he can call upon other loaders
or workmen to help him remove them by hand. At least
once, while he ran the washer before his injury, Langley
procured the help of Tom Rogers to push large rocks from
the conveyor belt to the ground so that Langley could re-
move them in his loader. However, the presence of such
rocks on the belt indicates that Langley may have been lax
in letting them go through the feed door in the first place.
When he was injured on April 6, trying alone to manhandle
a large rock on the hopper grating, he was apparently acting
abnormally, for he was clearly trying to load the hopper
himself, a task the pit truckdrivers were required to do, and
he fails to explain why he did not secure the help of Tom
Rogers or someone else in removing the rock as he did on
other occasions 22 Hence , this accident is far from substan-
tial proof that the washer job was extrahazardous.
When not doing the above tasks, the washer operator also
watches for coal falling from the sides of the conveyor belt,
and on infrequent occasions would spend about 10 minutes
a shift in cleaning up such rock and coal under the hopper
or belt with a shovel. The remainder of his time is spent in
watching the operation, except when over-the-road trucks
come to the washer and are loaded by him. When loading,
the operator runs the machine on level ground for short
distances and short periods. Since the physical work is inter-
mittent, the operator often has opportunity to leave the
washer for a few moments to relax and get coffee from a
nearby mine office. All work on the washer is done in the
open air with much of it well above ground level, and none
of it requires the operator to work standing in water; at
times he must remove water from the coal hopper with a
pump, but does not get wet doing it. In contrast, operation
of a pit loader requires the operator to sit on it all day,
running it constantly over rough and bumpy ground, endur-
ing a rough ride which is hard on the back. In fair weather,
he is always operating under hot and dusty conditions;
while the loaders now have cabs, closing the windows makes
them very hot, and open windows let the dirt and dust in.
The operator often has to manhandle large rocks out of the
rough coal when they cannot be moved by the loader, and
at times this must be done in rainy weather or standing in
pools of water which often collect in the pit, which can be
hard on a man with arthritis. 3 When not loading trucks, the
operator is required to use his loader to clean rock off the
face of the coal seam or the high wall of the pit, or to keep
truck pathways cleared of fallen rock so that the trucks can
easily move in and out of the pit. When not doing these
things, he has the duty to help the drillers load "shots" of
22 Walker testified credibly that a rock this size can be broken up with
proper use of the loader shovel and then either pushed through the grating
or removed with the loader shovel, and that it was the job of the pit trucks
to dump loads into the hor per ; Langley had no duty to do that. This indicates
Langley on this occasion was hurt because he tried to do something, in an
inefficient and dangerous manner, which he was not paid to do.
23 Although Langley claimed his arthritis was worse on the washer job,
there is no proof from him or otherwise that up to the time of his injury in
April he had any absences from that job due to illness.
BILL'S COAL COMPANY
dynamite, or to clear drainage areas to prevent water pools.
Hence, a loader operator attending to his duties properly is
constantly moving his machine around the pit doing various
jobs , including that of getting down from the loader at times
to move rock by hand.24
I am satisfied from all the above facts that Respondent
has adduced credible and substantial proof indicating that
the washer job was less arduous or hazardous than that of
loader operator in the pit, which is sufficient to rebut the
testimony of Langley and others to the contrary; hence
General Counsel has failed to sustain the burden of proving
that essential element of his claim.
In addition, the record contains substantial evidence
showing that the sole reason for Langley's transfer was to
separate him physically from Tom Rogers while at work,
after he had reverted to his old habit of wasting worktime
of both by talking to Rogers. While I have found that the
abrupt discharge of both on December 1 was probably
tinged with discriminatory motive, the record clearly shows
that Langley's delinquency was one of long standing, and
that Patch had ample justification at that time for discharg-
ing both for talking too much on company time. Credible
testimony of Walker, Clower, Berry, and Patch, and admis-
sions of Tom Rogers and Langley, show that: Both employ-
ees had long been guilty of talking together frequently on
company time, keeping their loaders idle, while pit trucks
sat waiting for loads; when truckmen often complained to
Walker about this , he repeatedly gave both men oral repri-
mands, in accordance with company policy, but with only
temporary success; at times, he had to warn both to start
work promptly in the morning and not leave the job early;
when their constant talking brought more complaints from
truckers after August 1971, and their idle periods length-
ened, and Patch complained to Walker about rising pit
costs, Walker told him about their constant talking, failure
to load trucks promptly, and to handle other portions of
their duties, which tended to slow down the whole produc-
tion operation. Both foremen recommended their discharge
or transfer in September and October 1971, but Patch fore-
bore to take that action, feeling both were good workers
when working and that they would improve if given repri-
mands. However, when Patch noticed Langley boldly sit-
ting idle in the pit on November 29, even after Patch walked
by and observed him, Patch decided they should be dis-
charged and told both foremen on the 30th of his decision.
They approved the action. After their discharge on Decem-
ber 1, following the admitted final reprimand of Langley by
Patch for his idleness of the 29th, Patch repented and took
them back partly on condition that they "keep their mouths
shut" and do their work. After reinstatement, their produc-
tion shot up the next day and continued good for some time.
It was only after they began to lapse into their old talking
habits again at the expense of production that Walker rec-
ommended they be separated and Patch agreed. When he
transferred Langley, Walker kept Tom Rogers on the big
loader because of his experience and put Don Bullard on
the other one and pit production improved substantially.
The salient facts here are that Respondent kept two old,
24 The above facts are found from credible testimony of Walker, Berry,
Tom Rogers , Don Bullard , Paul P Morgan , and admissions of Langley
287
valuable hands at work, even though they were two of the
most prominent union adherents and Patch probably sus-
pected or believed they were such. Respondent's only reac-
tion to their talking was not discharge, as on December 1,
but to move Langley far away to a job no worse than, and
probably far easier, than the pit job, in order to stop their
chatter and hindrance of production. This was not disci-
pline of Langley in the usual sense, but an economic move
designed to improve production. Hence, the above facts
persuade me that the sole reason for the transfer was eco-
nomic. Even if I assumed that Patch knew or believed their
constant chatter was about union matters, and he had reins-
tated them on condition they stop talking about union mat-
ters, this would not prevent him from separating them if that
served to stop their chatter on worktime and keep them
working , for it is well settled by Board and court decisions
that working time is for work, and union membership or
activity of employees on worktime cannot immunize them
from employer action designed or necessary to require them
to use their working time only for work.2
On all the pertinent facts, I conclude that Respondent has
adduced substantial proof of a transfer of Langley solely for
economic reasons which is adequate to rebut the proofs
adduced by General Counsel to show discriminatory mo-
tive. At most the record raises only a suspicion that Langley
was transferred in whole or in part for an illegal motive, but
as suspicion is not proof, I must find that Respondent did
not violate the Act by that transfer and refusal to put him
back on his old job, and I will recommend dismissal of the
complaint in that respect.
While the retention of Tom Rogers and Langley at work,
though Respondent knew or suspected their prominent
union activity , and the legitimate transfer of Langley, mili-
tate to some extent against a finding of discrimination in the
December 9 layoff, I think these facts are not sufficient to
rebut that finding when based on the facts and circumstanc-
es considered above. I therefore make the finding of discri-
minatory layoff on all pertinent facts in the record as noted
above. In view of that finding, I find it unnecessary to
analyze or make findings on other, collateral facts in the
record relied on both General Counsel and Respondent in
support of their opposing contentions.
111. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section II, above,
occurring in connection with its operations described in
section I, above, have a close , intimate, and substantial
relation to trade , traffic , and commerce among the several
States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
IV THE REMEDY
Having found that Respondent has engaged in a variety
of unfair labor practices in violation of Section 8(a)(3) and
25 Peyton Packing Company, Inc, 49 NLRB 828, 843; Republic Cotton Mills,
101 NLRB 1475, 1479, Schwab Manufacturing Company v. N.L.R.B., 297
F 2d 864 (C.A. 5, 1962); N L R B v. Birmingham Publishing Company, 262
F 2d 2. 9 (C.A. 5. 1958).
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(1) of the Act, including discriminatory terminations of em-
ployment of employees, I shall recommend that Respon-
dent be ordered to cease and desist from such conduct and
from any other conduct infringing upon the rights guaran-
teed to its employees by Section 7 of the Act 2 and that it
take certain affirmative action designed to effectuate the
policies of the Act.
Having found that Respondent unlawfully laid off and
refused to reinstate nine employees named above (except
for recall of Don McKinzie and Paul Tucker), I recommend
that Respondent offer each (except McKinzie and Tucker)
immediate and full reinstatement to his former or substan-
tially equivalent position without prejudice to seniority or
other rights and privileges; in the event jobs are not avail-
able, Respondent shall place these employees on a preferen-
tial hiring list covering all its mine operations, and offer
them employment on a seniority basis in their former or
substantially equivalent positions as such employment be-
comes available and before anyother persons are hired for
such positions. Respondent shall make each of the above
individuals, including McKinzie and Tucker, whole for any
loss of earnings he may have suffered as a result of the
discrimination against him, by payment to him of a sum of
money equal to the amount he would have earned, absent
the discrimination, from the date of his discriminatory lay-
off to the date of a proper offer of reinstatement or place-
ment on a preferential hiring list , as the case may be, less
net earnings during said period, the backpay to be comput-
ed in the manner established in F. W. Woolworth Company,
90 NLRB 289, and to include interest at the rate of 6 percent
per annum, as required by Isis Plumbing & Heating Co., 138
NLRB 716.27
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce, and
the Union is a labor organization, within the meaning of the
Act.
2. By its unlawful layoff of Clifford Collins, John D.
Smith, William (Billy) Rogers, J. R. Doerflinger, Thomas
R. Green, Earl S. Riley, Don McKinzie, William L. Gray-
son, and Paul Tucker, and refusal to recall all of them
except McKinzie and Tucker back to work at their former
jobs, Respondent has discriminated against employees in
regard to their hire and tenure of employment and terms
and conditions of employment, thereby engaging in unfair
labor practices affecting commerce within the meaning of
Sections 8(a)(3) and 2(6) and (7) of the Act.
3. By the above conduct and by interrogation of employ-
ees regarding their union sentiments and activities, threat-
ening them with physical and economic reprisals because of
such activities, promising them benefits to refrain from such
activities, and offering them special employment or com-
pensation to spy on union or concerted activities of other
employees, Respondent has interfered with, restrained, and
coerced employees in the exercise of rights guaranteed to
26 N L R B v Express Publishing Company, 312 U S 426, 437, N L R B v
Eniwisile Mfg Co, 120 F 2d 532, 536 (CA 4, 1941)
27 The backpay period for McKenzie and Tucker should be tolled by the
date Respondent recalled each to his old job
them by Section 7 of the Act, thereby engaging in unfair
labor practices affecting commerce within the meaning of
Sections 8(a)(1) and 2(6) and (7) of the Act.
4. Except as found above, Respondent has not engaged
in any other conduct violative of the Act as set forth in the
complaint herein.
Upon the foregoing findings of fact, conclusions of law,
and the entire record herein, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 28
Respondent, Bill's Coal Company, Inc., Welch, Oklaho-
ma, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in International Union,
United Mine Workers of America, or any other labor orga-
nization of its employees, by laying off and refusing to
reinstate any of its employees or discriminating in any other
manner in respect to their hire or tenure of employment, or
any term or condition of employment, except as such right
may be affected by an agreement requiring membership in
a labor organization as a condition of employment, in con-
formity with the proviso to Section 8(a)(3) of the Act.
(b) Interrogating employees in a coercive manner regard-
ing their union sentiments or activities , threatening them
with physical or economic reprisals because of their union
sympathies or activities, promising them benefits to refrain
from such activities or to induce them to spy on union or
concerted activities of other employees, or in any other
manner interfering with, restraining, or coercing its employ-
ees in the exercise of rights guaranteed to them by Section
7 of the Act, except as such rights may be affected by an
agreement requiring membership in a labor organization as
a condition of employment, in conformity with the proviso
to Section 8(a)(3) of the Act.
2. Take the following affirmative action which will effec-
tuate the policies of the Act:
(1) Offer to Clifford Collins, John D. Smith, William
(Billy) Rogers, J. R. Doerflinger, Thomas R. Green, Earl S.
Riley, and William L. Grayson immediate and full rein-
statement to their former or substantially equivalent posi-
tions, without prejudice to seniority or other rights and
privileges, and, in the event jobs are not available, place
these employees on a preferential hiring list covering all its
mine operations, and offer them employment on a seniority
basis in their former or substantially equivalent positions as
such employment becomes available and before any other
persons are hired for such positions.
(b) Make the above-named individuals and Don Mc-
Kinzie and Paul Tucker whole for any loss of pay suffered
by them by reason of Respondent's discrimination against
them, in the manner set forth in the Section hereof entitled
"The Remedy."
(c) Preserve and, upon request, make available to the
28 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided in Sec 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions , and Order, and all objections thereto shall be deemed
waived for all purposes.
BILL'S COAL COMPANY 289
Board and its agents, for examination and copying, all pay-
roll records, social security records, timecards, personnel
records and reports, and all other records relevant and ne-
cessary to the determination of the backpay due and right
of reinstatement provided under the terms of this recom-
mended Order.
(d) Post at its mining operation and place of business at
Welch, Oklahoma, copies of the attached notice marked
"Appendix." 29 Copies of said notice, on forms provided by
the Regional Director for Region 16, after being duly signed
by Respondent's representative, shall be posted by it imme-
diately upon receipt thereof and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director for Region 16, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint herein be dis-
missed as to all allegations which have not been found
herein to be violations of the Act.
29 In the event that the Board's 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
WE WILL NOT discourage membership in International
Union, United Mine Workers of America, or any other
labor organization of our employees, by laying off or
refusing to reinstate any of our employees, or discrimi-
nating in any other manner in respect to their hire or
tenure of employment, or any term or condition of
employment, except as such right may be affected by
an agreement requiring membership in a labor organi-
zation as a condition of employment, in conformity
with the proviso to Section 8(a)(3) of the Ad.
WE WILL NOT interrogate employees in a coercive
manner regarding their union sentiments or activities,
threaten them with physical or economic reprisals be-
cause of their union sympathies or activities, promise
them benefits to refrain from such activities or to in-
duce them to spy on the union or concerted activities
of other employees, or in any other manner interfere
with, restrain, or coerce our employees in the exercise
of rights guaranteed to them by Section 7 of the Act,
except as such rights may be affected by an agreement
requiring membership in a labor organization as a con-
dition of employment, in conformity with the proviso
to Section 8(a)(3) of the Act.
WE WILL offer to Clifford Collins, John D. Smith,
William (Billy) Rogers, J. R. Doerflinger, Thomas R.
Green, Earl S. Riley, and William L. Grayson immedi-
ate and full reinstatement to their former or substan-
tially equivalent positions, without prejudice to
seniority or other rights and privileges. In the event
jobs are not available , we will place these employees
on a preferential hiring list covering all our mining
operations, and offer them employment on a seniority
basis in their former or substantially equivalent posi-
tions as such employment becomes available and be-
fore we hire any other persons for such positions.
WE WILL make the above-named individuals, and
Don McKinzie and Paul Tucker, whole for any loss of
pay they may have suffered by reason of our discrimi-
nation against them.
All our employees are free to become or remain, or to
refrain from becoming or remaining, members of the above-
named or any other labor organization.
BILL'S COAL COMPANY, INC.
(Employer)
Dated By
(Representative) (Title)
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 concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, Federal Office Building,
Room 8-A-24, 819 Taylor Street, Fort Worth, Texas 76102,
Telephone 817-334-2921.