Cahaba Resources, Inc.

National Labor Relations Board - Board Decisions

Feb 15, 1984

268 N.L.R.B. 958 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cahaba Resources, Inc. and James Maxwell Chap-
man. Case I0-CA-18747
15 February 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 15 July 1983 Administrative Law Judge Wil-
liam N. Cates issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended
Order. 2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Cahaba Re-
sources, Inc., Birmingham, Alabama, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order, except that the attached
notice is substituted for that of the administrative
law judge.
I The Respondent has excepted to some of the judge's credibility find-
inpg. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
' The Respondent has requested oral argument. This request is hereby
denied as the record, the exceptions, and the brief adequately present the
issues and the positions of the parties.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT discharge or otherwise discrimi-
nate against any of you because you engage in pro-
tected concerted activity.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer James Maxwell Chapman imme-
diate and full reinstatement to his former job or, if
that job no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed
and WE WILL make him whole for any loss of earn-
ings and other benefits resulting from his discharge,
less any'net interim earnings, plus interest.
WE WILL notify him that we have removed from
our files ariy reference to his discharge and that the
discharge will not be used against him in any way.
CAHABA RESOURCES, INC.
DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge: This
matter was tried before me on April 22, 1983, at Bir-
mingham, Alabama. The hearing was held pursuant to a
complaint and notice of hearing issued by the Regional
Director for Region 10 of the National Labor Relations
Board, herein the Board, on January 11, 1983, and is
based on a charge which was filed on November 29,
1982,1 by James Maxwell Chapman, an individual, herein
Chapman. The complaint in substance alleges that
Cahaba Resources, Inc., herein the Respondent, on No-
vember 24, discharged, and thereafter failed and refused
to reinstate, its employee Chapman because he engaged
in concerted activities with other employees for the pur-
poses of collective bargaining and other mutual aid and
protection. The discharge is alleged to have been in vio-
lation of Section 8(aXl) of the National Labor Relations
Act, herein the Act. An amendment to the complaint
was issued on March 31, 1983. The Respondent filed
timely answers, both to the original and amendment to
the complaint, wherein it denies the commission of the
alleged unfair labor practices.
Upon the entire record made in this proceeding, in-
cluding my observation of each witness who testified
herein, and after due consideration of briefs filed by
counsel for the General Counsel and counsel for the Re-
spondent, I make the following
I All dates herein are 1982 unless otherwise indicated.
268 NLRB No. 144
958
CAHABA RESOURCES, INC.
FINDINGS OF FACT
I. JURISDICTION
The Respondent, an Alabama corporation, maintains
an office and place of business in Birmingham, Alabama,
where it is engaged in coal mining operations in Bibb
County and Shelby County, Alabama. In the course of
its business, the Respondent sold and shipped coal valued
in excess of $50,000 directly to Drummond Coal Sales,
Inc., also located in the State of Alabama, and Drum-
mond Coal Sales, Inc., in turn sold and shipped coal
valued in excess of $50,000 directly to customers located
outside the State of Alabama. The parties stipulated at
the trial, and I find, that the Respondent is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Brief Background
The Respondent operates a strip coal mining operation
in Bibb County and Shelby County, Alabama. The Re-
spondent commenced its operation in January 1982. The
strip mining area of operation worked by the Respondent
covers between 80 and 160 acres. In order to strip mine
the coal, the overburden, or material on top of the coal,
must be blasted away by explosives. After the overbur-
den is removed, the coal is then retrieved from the earth
by dragline type operations assisted by dozers. At all
times material herein, the Respondent operated one drag-
line, and it also operated a second dragline from approxi-
mately May to July and again from December 1982 until
the time of the trial herein. The coal at the Respondent's
operation is transported by truck 4 or 5 miles from the
pit area to a wash area. The Respondent, during its oper-
ation, contracted out the hauling of its coal from the pit
area to the wash area with one exception of approxi-
mately a 2-month period commencing in July at which
time it transported with its own vehicles the coal from
the pit to the wash area. Approximately 40 percent of
the coal mined is lost in the wash area; or, stated other-
wise, there is a 60-percent recovery rate from raw to
shippable coal. The coal is shipped out by rail after it
leaves the wash area. The employees, -at material times
herein, were paid an hourly wage plus a royalty bonus of
60 cents per clean ton of coal shipped. The royalty
bonus was divided among the hourly paid employees.
Based on production and sales, the hourly paid employ-
ees took a 10-percent pay cut in July.
B. Discharge of Chapman
Chapman worked for the Respondent from February 4
to November 24 as a driller's helper. Chapman was as-
signed as a helper to Virgil Greer. Chapman and Greer's
normal workday was 7 a.m. to 3 p.m.; however, on some
days, Chapman and Greer did not receive their work as-
signments for that day until after 7 a.m. Chapman
worked under the supervision of Foreman James Watts.
All employees, including Chapman, from both the 7
a.m. to 3 p.m. work shift and the 3 p.m. to 11 p.m. work
shift had a meeting with management at the dragline in
early November. Superintendent Hardesty, Foreman
Watts, and Management Consultant A. E. Burgess were
present.2 At the early November meeting, the employees
found out that two additional employees had been added
to those among whom the royalty payment would be di-
vided. The two added employees were parts runner
Kenny Gregory and office worker Clark Junkins.
Adding two employees to those among whom the royal-
ty payment would be divided caused the overall amount
that each employee received to be reduced percentage
wise.
Chapman testified the employees took no immediate
action regarding the royalty payment, however, they
talked about it among themselves thereafter. Chapman
stated those discussing it were mechanics Bobby Burle-
son, Lynn Pate, and Glenn Pope along with Greer and
himself. The discussions took place at lunch and in the
morning hours before the employees went to work.
Chapman asserts the employees discussed the fact that
the two added employees had asked the Respondent for
a pay raise, but instead of getting an hourly raise they
had been given a portion of the other employees' royalty
bonus. Chapman stated the employees felt as though they
had helped finance a pay increase for employees Greg-
ory and Junkins.
During the second week in November, Chapman and
Greer spoke with Foreman Watts about the Respondent
adding the two additional employees to the royalty
bonus payment. Chapman stated he told Foreman Watts
the employees were unhappy that the Respondent had
divided the bonus money 23 ways instead of 21 ways
without their first being told or asked about it. Chapman
asserts Foreman Watts replied that he (Chapman) always
had something to say about most anything that came up,
and that "he was all the time stirring up trouble and
trying to stir up some shit." Chapman explained to Watts
that the two employees who had asked for a raise had
their raise financed by their fellow workers in that the
Respondent added them to the royalty bonus payment.s
Approximately during the third week in November, all
employees from both work shifts again met at the drag-
line in the pit area with Superintendent Hardesty and
Foreman Watts. The meeting was called to discuss holi-
day pay. Chapman testified that, when the employees
first came to work at the Respondent, it was explained to
them that they would receive the same holiday benefits
a Burgess at all times material herein was a management consultant for
the Respondent. It is undisputed in this record that Burgess hired James
Watts and promoted him to foreman. Foreman Watts testified Burgess
was good at making suggestions to Superintendent Hardesty and himself
on a regular basis with respect to how things ought to be handled at the
pit. Burgess made suggestions with respect to where the dragline should
be set up and what drilling pattern should be used in spacing and placing
explosives to move the overburden from the coal. Further, it is also un-
contradicted that Burgess hired driller Greer for employment with the
Respondent. I am persuaded that the Respondent has, as alleged by coun-
sel for the General Counsel, placed Burgess in a position with actual au-
thority sufficient to make him an agent of the Respondent within the
meaning of Sec. 2(13) of the Act, and I so find.
s Greer corroborated the testimony of Chapman with respect to the
early November meeting and of the fact that Chapman and others, in-
cluding himself, discussed the matter among themselves, and that he and
Chapman spoke with Foreman Watts about the two extra employees
being added to the royalty bonus.
959
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as employees represented by the United Mine Workers
Union. The employees were told at this late November
meeting that they would not be getting some holidays
such as Christmas Eve. During the meeting, the subject
of royalty bonus payment was discussed. Mechanic Bur-
leson testified they discussed the fact that the employees
were upset about the way the addition of the two em-
ployees to the royalty bonus had come about. Chapman
testified he stated to the group that he had already dis-
cussed the matter with Foreman Watts and again stated
the employees were not happy about the way the bonus
matter had been handled. Chapman testified he also
asked Superintendent Hardesty when the men would re-
ceive back the 10-percent cut in pay they had taken in
July. Chapman asserted Hardesty replied, after figuring
on his calculator, they would receive back in approxi-
mately 6 months the 10-percent cut they had taken.4
Chapman testified he discussed with his fellow worker
Greer the fact that the number of hours they worked
was not always accurately kept by the Respondent.
Chapman and Greer discussed this matter on numerous
occasions as well as specifically on Tuesday, November
23. Chapman and Greer discussed among themselves the
fact that there had to be a better way to keep their time
and, as a result of their discussion, they decided to raise
the matter with Management Consultant Burgess. Chap-
man wanted to see if Burgess would let them be respon-
sible for their own time and turn it on a weekly basis.
Later that same day, November 23, Chapman and
Greer spoke with Foreman Watts. Chapman asked Watts
if Management Consultant Burgess would be coming to
the vicinity that afternoon. Watts told Chapman that
Burgess would be, and Chapman asked if he could talk
to Burgess when he got to the pit area. Chapman asserts
Watts "stammered around" for a few minutes and then
asked him what he wanted to talk with Burgess about.
Chapman told Watts he wanted to speak with Burgess to
ascertain if there was a better way to keep up with their
hours of work. Chapman testified that Foreman Watts
"got mad and raised his voice and said, 'If you want to
stir up some shit, I can fix you up.... You're all the
time bitching about something . . . I'll fix a meeting with
Mr. Burgess but I'm going to let him know about you
not having your coolers in the truck and being ready to
go to work at work time, which is 7 o'clock. I've been in
the yard several times ten minutes after seven and you
wouldn't be ready to go to work.' And he stomped off
mad." Chapman testified Watts also told him he was
always starting up trouble. Greer corroborated the testi-
mony of Chapman and added that the conversation,
"well, it got a little heated and I just made the sugges-
tion that we cool it and go back to work." Greer further
testified that Foreman Watts told Chapman before Watts
left, "If you want to play these kind of games, both of us
can play them." Chapman testified this was the first time
he had ever asked for a meeting with Burgess to discuss
timekeeping. Chapman testified he did not see Burgess
that day.
The next day, November 24, Foreman Watts brought
Chapman his paycheck and told Chapman it was his last
4 Greer and Burleson corrborated Chapman's testimony in essential re-
spects regarding this meeting.
day of work. Chapman told Foreman Watts okay and
immediately proceeded to the yard area at the Respond-
ent's facility. Chapman testified he was looking for Su-
perintendent Hardesty so he could find out what had
brought about his discharge. Chapman found Superin-
tendent Hardesty talking to mechanic Burleson, Manage-
ment Consultant Burgess, and Foreman Watts. Chapman
asked Hardesty if he could tell him what had happened.
Hardesty told him not really, that Management Consult-
ant Burgess and Foreman Watts had come to him and
told him that when he gave Chapman his paycheck it
would be a good day to get rid of him. Chapman asked
Hardesty if he had found any fault with the way he per-
formed his job. Hardesty told him he had not.
Chapman called Management Consultant Burgess that
evening at home and inquired of him what had happened
that day, that he felt he had been unfairly dismissed from
his job. Burgess told Chapman he was sorry he felt that
way. According to Chapman, Burgess stated that Har-
desty and Watts needed to make room for a laboratory
employee. Burgess told Chapman "they're looking for
someone to run the lab and somebody to help Virgil
[Greer] on the days that he has got a shot [explosives] to
load." Chapman told Burgess if they were going to train
someone for that job he believed he could learn to oper-
ate the laboratory.
Chapman testified he then called Foreman Watts and
asked him what had happened. Watts told Chapman a
number of things had happened. One, he had observed
Chapman and Greer many mornings without their cool-
ers in their trucks ready to go to work. Chapman testi-
fied he told Watts that that reason would not hold water,
that when they were not at work it was because either
Superintendent Hardesty or Watts had failed to tell
Greer and himself what their job assignment would be
on that day. Chapman testified Watts then said some-
thing about all of the trucks having mechanical problems
when Chapman drove them. 5 Chapman testified he told
Watts that Burgess had said that the oil plug incident on
one of the trucks would not be held against him. Watts
then told Chapman that he (Chapman) had something to
say about the royalty payment when Junkins and Greg-
ory were added to those among whom the payments
were divided. Chapman told Watts that the two employ-
ees deserved more money but the way it was done was
not fair to the other working employees. Chapman asked
Watts if he could say in any way that he had not done
his job right, and Watts told him he could not.
8 Chapman testified that the Respondent had contracted out the haul-
ing of its coal from the pit to the wash area for a period of time; howev-
er, for approximately 2 months, the Respondent transported its own coal
in its own trucks from the pit to the wash area. The trucks utilized by the
Respondent were old ones that had been part of the equipment owned by
Burgess Mining and Construction Corporation. Chapman testified the
trucks had transmission problems, they overheated, and had rear-end and
drive shaft problems. Chapman stated he had never been disciplined for
any matter arising out of his driving a truck. Greer testified employees
had a lot of problems with the trucks during the time the Respondent
hauled its own coal from the pit to the wash areas. Greer stated he had
problems with the trucks he drove, and Chapman's problems with the
trucks were no different than problems encountered by any of the other
drivers. Greer also confirmed that no drivers were disciplined during this
period.
960
CAHABA RESOURCES, INC.
Greer testified that, after Chapman was discharged, he
used a driller named Johnny Price to assist him in setting
off explosive charges to remove the overburden from the
coal. Greer's testimony in this respect was corroborated
by Superintendent Hardesty who testified that Price was
hired on November 29, which was the first working day
after Chapman was discharged on a Wednesday before
Thanksgiving.
Pit Foreman Watts testified he told Chapman it was
his last day of work on November 24, and he would not
be needed anymore. Watts testified Chapman said okay
and walked off.
Watts testified Chapman called him at his home the
night he was discharged and asked him why he had been
laid off. Watts gave Chapman a number of reasons for
his discharge. One of the reasons Watts gave for Chap-
man's discharge was that he was a troublemaker. Watts
testified what he meant by troublemaker was "just his at-
titude toward me in general." Watts further explained
that, when he would correct Chapman for driving too
fast or correct him for other things, Chapman would
make smart remarks back to him. Watts also told Chap-
man he was discharging him for abusing equipment, not
being able to operate equipment safely, being late on the
job, and trying to leave the job early. Watts testified that
most of the mechanical problems with the trucks during
the time the Respondent was hauling its own coal from
the pit to the wash area were caused by Chapman.6
Watts stated that a couple of days or so after Manage-
ment Consultant Burgess and Superintendent Hardesty
informed the employees that two additional employees
had been added to the number of employees that the
bonus would be split among, Chapman talked to him
about it. Chapman wanted to know why the Respondent
had decided to make the change without talking to the
employees about it. Watts testified Chapman also wanted
to know why the royalty bonus was taken to give the
two extra employees a pay raise. Watts testified he did
not consider Chapman's questions to be a complaint.
Watts testified he was not present at a subsequent meet-
ing with the employees where several pay issues were
discussed.
Watts testified there were occasions when Chapman
and Greer's work hours were not properly turned in, and
it sometimes resulted in their being short hours. Watts
acknowledged that Chapman asked him on November 23
if Management Consultant Burgess was coming to the pit
area that day and, if he were, he wanted to talk to him.
Watts testified that he asked Chapman if there were any-
thing he could do for him, and Chapman told him no,
that he wanted to talk to Burgess about being short in
his pay. Watts testified Chapman stated he was tired of
Watts not correctly turning in his time worked. Watts
testified, "I got, you know, high voiced with him there,
the same way he did with me to start with. That's about
the extent of it. I said, he'll be here this evening and you
can talk to him." Watts also testified he told Chapman
that he had shorted him on hours before, but that he had
always paid him. Watts testified that Chapman's asking
6 Watts acknowledged that Chapman was never given any written
warnings involving any discipline with respect to the trucks. Watts stated
that the Respondent did not give written warnings.
about talking to Burgess had nothing to do with his dis-
charge. He stated the decision to let Chapman go had ac-
tually been made 3 days earlier.
Superintendent Hardesty testified that, about 2 weeks
before Chapman was discharged, he, Burgess, and Watts
talked about ways to maximize profits. Hardesty testified
Burgess had asked if the Respondent was creating make
work for Chapman when he was not shooting explosives.
Hardesty testified he told Burgess that the Respondent
was, and that it did not need Chapman 5 days a week.
On the day Chapman was discharged, November 24,
Watts came to Hardesty and told him that in view of
their earlier discussions it was as good a day as any to
discharge Chapman. Hardesty testified he told Watts to
be sure the Respondent did not need him and that it
would not hurt production. Hardesty testified Watts told
him Respondent was creating work for Chapman, and
that Respondent could get anyone to help Greer set ex-
plosive charges. Hardesty testified that he was aware at
the time Chapman was discharged that he was slow get-
ting out of the pit area, and that he had problems with
the trucks when he drove at the time when the Respond-
ent hauled coal from the pit to the wash area in its own
trucks.
Hardesty testified Chapman made no effort to talk
with Burgess on the day he was discharged even though
he came to the area where Burgess and others were
present. Hardesty testified that Chapman did, however,
call him that night at home and asked him why he had
been discharged. Hardesty testified he told Chapman,
"Mac, this is just between you and I, but you know why.
You have a personality conflict with James Watts." Har-
desty testified it was very obvious that there was a per-
sonality conflict between Chapman and Watts. Hardesty
testified that Chapman came to him and complained
about his hours being shortened. Hardesty testified he
told Chapman that it was he, Hardesty, and not Watts,
who shortened Chapman on the incident he was com-
plaining about.
Superintendent Hardesty acknowledged on cross-ex-
amination that production had stabilized at the mine by
August, and that Chapman had accepted and worked
overtime as late as the week of his discharge. Hardesty
also acknowledged that economic considerations were
not the only reasons for discharging Chapman. Hardesty,
likewise, acknowledged that a second dragline was start-
ed in December, and that driller Johnny Price had been
utilized to assist Greer in blasting the overburden from
the coal.7
Management Consultant Burgess testified he received a
telephone call at his home from Chapman on November
24 and, in the conversation, Chapman asked him if he
knew why he had been discharged. Burgess testified he
told Chapman it was because of a reduction in force.
Burgess testified Chapman mentioned that he had heard
the Respondent was going to hire a laboratory techni-
cian, and he felt he could be trained for the job. Burgess
could not recall whether he replied to Chapman or not,
7 Price was hired the first workday after Chapman's discharge.
961
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but that if he did, he probably told him it would take a
long time to train an individual for the laboratory.
Burgess asserted that, a few weeks prior to Chapman's
discharge, Burgess had a discussion with Superintendent
Hardesty and Foreman Watts about manpower, and he
told them they ought to reduce their work force. Chap-
man was doing what Burgess considered to be clean up
work. Burgess testified that, after his conversation re-
garding manpower reduction, nothing else was said
about it until Chapman called him at his home. Howev-
er, Burgess acknowledged he had been told that after-
noon, prior to Chapman's call, that Chapman had been
terminated.
Counsel for the General Counsel contends that the dis-
charge of Chapman clearly violated Section 8(a)(1) of
the Act because Chapman was discharged for engaging
in concerted activity protected by the Act. Counsel for
the General Counsel contends the concerted activity in-
volved two aspects with one pertaining to wages which
concerned the royalty system at the Respondent, and the
other aspect involved hours of employment as it related
to timekeeping of those hours worked. Counsel for the
General Counsel contends that, when the timekeeping
matter was brought to the attention of management and
a request was made by Chapman to discuss the matter
with Management Consultant Burgess, he was dis-
charged. Counsel for the General Counsel contends that
the evidence clearly demonstrates that the Respondent
had knowledge of Chapman's involvement in both con-
certed activities. Counsel for the General Counsel con-
tends it is not necessary to show that the individual who
acted as spokesperson for the group, i.e., Chapman in the
instant case, needed to be authorized or selected by his
fellow employees to speak or act on their behalf. Coun-
sel for the General Counsel contends it is only necessary
for her to show that the issues discussed were issues of
mutual concern to employees and that they involved
wages, hours, or working conditions and that they were
brought to the attention of management.
Counsel for the General Counsel contends that Chap-
man was given no reason for his discharge at the time of
his discharge, and that, thereafter, he was given varying
and conflicting reasons for his discharge. Counsel for the
General Counsel argues that it is difficult to figure out
the Respondent's defense as it advanced various reasons
from various of its witnesses as to why Chapman was
discharged.
The Respondent contends that complaining on an indi-
vidual and personal basis about hours being short and
about not being told in advance about the royalty bonus
payment changes does not constitute protected concerted
activity. The Respondent contends Chapman did not
engage in any protected concerted activity. The Re-
spondent further contends it had no knowledge of any
concerted activity Chapman allegedly may have engaged
in. The Respondent argues the record does not demon-
strate it had any knowledge of employees' complaining
about work hours. The Respondent also argues that what
Foreman Watts meant when he told Chapman that one
of the reasons he was being discharged was that he was
a troublemaker related to his attitude in general toward
Foreman Watts and not any activities on the party of
Chapman. The Respondent contends in this regard that
Chapman was discharged because he had a personality
conflict with Foreman Watts. The Respondent also con-
tends Chapman was not needed on the job because he
was doing make work. The Respondent contends that all
employees hired since Chapman's termination have been
employees with skills for specific jobs that Chapman was
not qualified for. The Respondent contends Chapman's
discharge was totally free of any unlawful conduct on its
part.
With respect to credibility resolutions essential to a
disposition of the instant case, it is helpful to note the
matters which are not in dispute. It is undisputed that a
meeting took place at which it was made known to the
employees that two additional individuals would be
added to those among whom the royalty bonus would be
divided. The evidence establishes that the employees did
not discuss the situation at that meeting, but shortly
thereafter it was discussed by various employees both
among themselves and with management representatives.
I credit Chapman's testimony which was corroborated
by fellow worker Greer that the two of them in particu-
lar discussed the adding of the two additional employees
to the bonus split with Foreman Watts in the second
week of November. I credit Chapman's testimony that
Watts told him in response to the discussion about the
royalty split that he, Chapman, "always had something
to say about most anything that came up anyway, and
that [Chapman] was all the time stirring up trouble and
trying to stir up some shit." Watts acknowledged that he
had a conversation with Chapman about the royalty split
and that Chapman was concerned that the Respondent
had taken the action it did without discussing it with the
employees first.
It is undisputed that approximately during the third
week of November another meeting was held between
management and the employees at which a number of
work-related items such as holiday pay were discussed. I
find that at this meeting a number of employees raised
the issue of two additional workers being added to the
royalty payments. I credit the testimony of Chapman
that he, along with fellow employee Burleson and others,
brought the matter up, and that it was expressed by the
employees that they were unhappy with the manner in
which the two extra employees had been added to the
royalty payment list. I find that Chapman also inquired
at this meeting about the reinstatement of the 10-percent
cut in pay the employees had taken earlier in the year.
Chapman's testimony in this respect was corroborated by
that of Greer.
I credit the testimony of Burleson, Greer, and Chap-
man that the employees had discussed among themselves
the fact that two additional employees had been added to
the royalty bonus payment, and they were concerned
about it because they feared it would reduce the amount
of money they would receive, and they felt like they
were financing a pay increase for the two additional em-
ployees the Respondent had added to the royalty bonus
money.
I credit Chapman's and Greer's testimony that they
had some difficulty in having their hours of work accu-
962
CAHABA RESOURCES, INC.
rately recorded by the Respondent, and they were con-
cerned about it. I, likewise, credit their testimony that
they spoke with Foreman Watts about it on November
23. Foreman Watts, in his testimony, acknowledged that
Chapman asked him on November 23 if he could speak
with Management Consultant Burgess about the time-
keeping difficulties that he and Greer were encountering.
I credit Chapman's testimony that, when he asked Watts
about meeting with Burgess and told him what he
wanted to talk with Burgess about, Watts became angry
and said that Chapman "always had something to bitch
about ... was always stirring up trouble. That if [Chap-
man] wanted to talk to Burgess [he] could, but that he
would tell [Burgess] about all the times in the morning
when [he and Greer] weren't ready to go to work until
ten minutes after seven .... " Greer corroborated
Chapman's testimony and added that when Chapman
asked Watts about seeing Burgess with respect to the
problems with their hours being properly kept, "well, it
got kind of a little heated and I just made the suggestion
that we cool it and go back to work." I credit Greer's
testimony that Watts also stated before he left the con-
versation with the two of them that, "If you want to
play these kind of games, both of us can play them."
Based on the credited facts taken in conjunction with
those not in dispute, it is clear that Chapman and his
fellow employees were concerned about and discussed
with management as well as among themselves their dis-
pleasure with the addition of two individuals to the roy-
alty payments. The discussions clearly involved terms
and conditions of employment. Such conduct and actions
on the part of Chapman and his fellow employees clearly
constituted concerted conduct which is protected by the
Act. Likewise, the record is just as clear that Chapman
and Greer were concerned about, and discussed among
themselves, the timekeeping procedure utilized by the
Respondent with respect to hours worked. This concern
was voiced by Chapman to the Respondent through
Foreman Watts, and an attempt was made to discuss the
matter with Management Consultant Burgess. Such con-
duct on the part of Chapman and Greer was concerted,
and inasmuch as it pertained to terms and conditions of
employment which was of mutual concern to all employ-
ees, it was protected concerted conduct within the mean-
ing of the Act. I am persuaded, based on the fact that
Chapman engaged in concerted activity protected by
Section 7 of the Act, and based on the fact that he was
told he was stirring up things and discharged after he re-
quested to speak with management about the way the
hours of work were kept, that counsel for the General
Counsel established a prima facie case sufficient to sup-
port an inference that protected conduct was a "motivat-
ing factor" in the Respondent's decision to discharge
Chapman. See Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (Ist Cir. 1981). Once the General Counsel
has established that protected conduct was a motivating
factor in the Respondent's decision to discharge Chap-
man, the burden then shifts to the Respondent to demon-
strate the same action would have taken place even in
the absence of the protected concerted conduct. I am
persuaded, as outlined below, that the Respondent totally
failed to meet its burden of demonstrating the same
action it took against Chapman would have been taken
even in the absence of his protected concerted activity.
The most fundamental aspect of the Respondent's failure
to meet its burden was demonstrated by the testimony of
Foreman Watts that one of the reasons he discharged
Chapman was because he was a troublemaker. The
record is void of any evidence that Watts ever explained
to Chapman what he meant by his considering Chapman
to be a troublemaker. I am persuaded that the Respond-
ent's post hoc explanation at trial as to what Watts meant
by his statement is of no avail to the Respondent. Watts'
attempt at trial to explain that "troublemaker" meant that
Chapman gave him what he considered to be "smart"
type answers to corrections or comments is nothing
more than an after the fact attempt at rationalizing the
unlawful actions the Respondent took.
I credit Chapman's testimony that when he called
Management Consultant Burgess on the day he was dis-
charged to find out why, he was told by Burgess that he
was discharged to make room for a laboratory employee.
Even if arguendo the testimony of Burgess was credited
that he told Chapman he was being discharged because
of a reduction in force and because he was performing
make work, I would still conclude that the Respondent's
defense in this respect failed. It would fail because, based
on the testimony of Greer and corroborated by Superin-
tendent Hardesty, the work had stabilized by August
and, therefore, a reduction in force was not necessary.
This is further borne out by the fact that the Respondent
hired employee Johnny Price the next work day follow-
ing Chapman's discharge and utilized him, as needed, to
work as a shooter's helper. Chapman had occupied the
shooter's helper position until his termination. The con-
tention of Burgess that Chapman was performing "make
work" is not borne out by the record evidence. For ex-
ample, Superintendent Hardesty testified that Chapman
had been working overtime and in fact had worked
overtime the week he was discharged.
The reasons advanced by Watts for the discharge of
Chapman in addition to the fact that Watts found him to
be a troublemaker were that Chapman, along with fellow
employee Greer, had been late starting work on occa-
sion, and that Chapman had problems with the trucks
that hauled coal during the time the Respondent deliv-
ered its own coal from the pit to the wash area. I credit
the testimony of Chapman and Greer that they were
never late starting work, but on occasion did not go im-
mediately to their assigned tasks because they had not at
the time been given assigned tasks. This record clearly
indicates problems existed with all the trucks and, based
on the credited testimony of Greer, Chapman encoun-
tered no problems that were of a different kind or nature
than those encountered by other employees who drove
the aged hauling trucks.
Superintendent Hardesty's testimony that the Respond-
ent was looking for a way to maximize its profits and
eliminated Chapman because of his having to perform
make work is, likewise, not borne out by the record in
that Hardesty acknowledged that the Respondent com-
menced operation of a second dragline after Chapman
was discharged. Although no one was hired specifically
963
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to replace Chapman, an employee was hired the next
workday after Chapman was discharged, and that em-
ployee was utilized when needed as a shooter's helper.
Superintendent Hardesty's contention that one of the rea-
sons Chapman was discharged was because of all the
problems he had with the trucks when the Respondent
was hauling its own coal relates to matters that had
taken place some months earlier, and I am persuaded
was not one of the reasons for the discharge of Chap-
man. Hardesty acknowledged that economic consider-
ations were not the only factors leading to the discharge
of Chapman.
Finally, the Respondent suggests by way of brief that
Chapman was discharged because of a personality con-
flict between him and Foreman Watts. I am persuaded
by the record testimony herein that Chapman's persist-
ence in pressing the matter of the royalty bonus payment
and his concern that the employees' hours be properly
kept made it unpleasant for Foreman Watts. I am per-
suaded that whatever personality conflict existed be-
tween Watts and Chapman cannot serve as a defense to
the Respondent in this case. I am fully persuaded that
nothing Chapman did was so out of line as to remove
him from the protection of the Act. See Hamlet Steak
House, 197 NLRB 632 (1972), and Fairmont Hotel, 230
NLRB 874 (1977).
Accordingly, I conclude that each of the Respondent's
defenses fail to withstand scrunity and that the Respond-
ent's discharge of Chapman on November 24 violated
Section 8(a)(l) of the Act inasmuch as Chapman was dis-
charged because he engaged in activities protected by
Section 7 of the Act.
CONCLUSIONS OF LAW
1. Cahaba Resources, Inc., is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. The Respondent violated Section 8(a)(1) of the Act
when on or about November 24, 1982, it discharged and
thereafter failed and refused to reinstate its employee
James Maxwell Chapman for engaging in protected con-
certed activity.
3. The Respondent's unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices within the meaning of Section
8(a)(1) of the Act, I shall recommend that it cease and
desist therefrom and take certain affirmative action to ef-
fectuate the policies of the Act.
It having been found that the Respondent in violation
of Section 8(a)(1) of the Act unlawfully terminated the
employment of James Maxwell Chapman, I shall recom-
mend that the Respondent be ordered to offer him full
reinstatement to his former, or substantially equivalent,
position of employment without prejudice to his seniori-
ty or other rights and make him whole for any loss of
pay he may have suffered by reason of the discrimination
against him, with interest. Backpay shall be computed in
accordance with F. W. Woolworth Co., 90 NLRB 289
(1950). Interest shall be computed as prescribed in Flori-
da Steel Corp., 231 NLRB 651 (1977). See generally Isis
Plumbing Co., 138 NLRB 716 (1962). Further, it is rec-
ommended that the Respondent expunge from its files
any reference to the November 24, 1982, discharge of
James Maxwell Chapman, and notify him in writing that
this has been done and that evidence of his unlawful dis-
charge will not be used as a basis for future personnel
action against him. See Sterling Sugars, 261 NLRB 472
(1982). It is recommended that the Respondent post the
attached notice.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, pursuant to Section 10(c) of
the Act, I hereby issue the following recommended
ORDER 8
The Respondent, Cahaba Resources, Inc., Birming-
ham, Alabama, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
any of its employees for engaging in protected concerted
activity.
(b) In any other manner interfering with, restraining,
or coercing employees in the exercise of rights guaran-
teed them in Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act.
(a) Offer James Maxwell Chapman immediate and full
reinstatement to his former job or, if his former job no
longer exists, to a substantially equivalent position of em-
ployment without prejudice to his seniority and other
rights and privileges, and make him whole for any loss
of earnings he may have suffered by reason of the dis-
crimination against him in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) Expunge from its files any reference to the Novem-
ber 24, 1982, discharge of James Maxwell Chapman, and
notify him in writing that this has been done, and that
the evidence of his unlawful discharge will not be used
as a basis for future personnel actions against him.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payroll records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this recommended Order.
s If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
964
CAHABA RESOURCES, INC.
(d) Post at its Bibb County and Shelby County, Ala-
bama locations copies of the attached notice marked
"Appendix." g Copies of the notice, on forms provided
by the Regional Director for Region 10, after being
signed by the Respondent's authorized representative,
shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspic-
uous places including all places where notices to employ-
" If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
ees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
965