Carbonex Coal Company

National Labor Relations Board - Board Decisions

Jul 27, 1982

262 N.L.R.B. 1306 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carbonex Coal Company and United Mine Workers
of America and International Union of Operat-
ing Engineers, Local 627, AFL-CIO, Party to
the Contract. Case 16-CA-8500
July 27, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On January 30, 1981, Administrative Law Judge
Earldean V. S. Robbins issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions, a supporting brief, and a supple-
mental statement in support of its exceptions; the
Charging Party filed exceptions, a supporting brief,
its brief to the Administrative Law Judge as a brief
in support of the Administrative Law Judge's De-
cision, a reply brief to Respondent's exceptions,
and a supplemental brief in support of the Adminis-
trative Law Judge's Decision; the Party to the
Contract filed exceptions and a supporting brief;
and the General Counsel filed a brief in support of
the Administrative Law Judge's Decision.
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
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt her recommended Order.
1. Subsequent to the filing of briefs, Respondent
and the Charging Party filed various motions and
statements regarding remarks made by each other
in their briefs. The motions are denied. The Board
is capable of evaluating such remarks.
2. The Charging Party requests the Board, as an
additional remedy, to order Respondent to repay
Charging Party for all litigation expenses, to mail
the notice to employees to present and former em-
ployees of the Roger Mine, to read the notice to
assembled employees of the Roger Mine, and to
publish the notice in a local newspaper. The re-
quest is denied. An award of litigation expenses is
appropriate only when a respondent raises patently
I Respondent and the Charging Party have excepted to certain credi-
bility findings made by the Administrative Law Judge. It is the Board's
established policy not to overrule an administrative law judge's resolu-
tions with respect to credibility unless the clear preponderance of all of
the relevant evidence convinces us that the resolutions are incorrect.
Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d
362 (3d Cir. 1951). We have carefully examined the record and find no
basis for reversing her findings.
The Administrative Law Judge's Decision incorrectly lists the date
Kenny Shipley was offered a job as 5-10-79; the correct date as shown
in the record is 4-10-79.
frivolous defenses. Neely's Car Clinic, 242 NLRB
335 (1979), citing Tiidee Products, Inc., 194 NLRB
1234 (1972). Although we find Respondent's de-
fenses here to be without merit, we are unable to
conclude that they constitute patently frivolous de-
fenses. Special notice remedies, such as those re-
quested, are designed to meet special situations not
present in this proceeding. Here, the regular notice-
posting requirement recommended by the Adminis-
trative Law Judge is sufficient to inform employees
of their rights.
3. We agree with the recommended Order of the
Administrative Law Judge in its entirety, including
the requirements that Respondent withdraw and
withhold all recognition from the International
Union of Operating Engineers, Local 627, AFL-
CIO, herein called Operating Engineers, as bar-
gaining representative of employees at the Defiance
Mine and that Respondent recognize and bargain
with the United Mine Workers of America, herein
called Mine Workers, as the exclusive bargaining
representative of employees at the Defiance Mine.
See Fraser & Johnston Company, 189 NLRB 142
(1972). The recommended Order, which we are
adopting, is appropriate and necessary to remedy
Respondent's unfair labor practices because (1) Re-
spondent has committed serious and extensive
unfair labor practices, (2) a majority of Roger Mine
employees would in all likelihood have transferred
to the Defiance Mine had Respondent not violated
the Act, (3) the remedy reasonably restores the ap-
proximate status quo ante, and (4) any lesser
remedy would be ineffectual.
Respondent has committed pervasive violations
of the National Labor Relations Act, all directed
toward depriving the Mine Workers of its right to
represent employees at the Roger Mine, including
unlawfully refusing to notify and bargain with the
Mine Workers about the transfer of unit work from
the Roger Mine to the Defiance Mine; discrimina-
torily accelerating the opening of the Defiance
Mine; and discriminatorily transferring employees
represented by, and hiring employees through the
hiring hall of, the Operating Engineers to work at
the Defiance Mine without recalling unit employ-
ees. In addition, Respondent prematurely recog-
nized the Operating Engineers as bargaining repre-
sentative at the Defiance Mine; unlawfully ex-
tended its bargaining agreement with the Operating
Engineers to the Defiance Mine and entered into a
successor bargaining agreement with the Operating
Engineers both containing union-security, checkoff,
and hiring hall provisions; and unlawfully required
employee applicants for the Defiance Mine to use
the Operating Engineers hiring hall. These multiple
262 NLRB No. 159
1306
CARBONEX COAL COMPANY
violations of Section 8(a)(1), (2), (3), and (5) of the
Act warrant the extensive remedy herein. 2
Although the mine workers were on strike (an
unfair labor practice strike) at the Roger Mine,
there were, when the Defiance Mine was opened, a
sufficient number of Roger Mine employees who
had been laid off or who had applied for reinstate-
ment to constitute a majority of the ultimate em-
ployee complement at the Defiance Mine. As the
Defiance Mine is only 5 miles or less from the
Roger Mine and as equipment and managerial per-
sonnel were transferred from the Roger Mine to
the Defiance Mine, employees from the Roger
Mine, in the normal course of business, would be
expected to be transferred to the Defiance Mine.
However, Respondent's unfair labor practices pre-
vented, obstructed, and effectively prohibited such
transfers of employees. Absent Respondent's unfair
labor practices, it is extremely probable that Roger
Mine employees would have transferred to the De-
fiance Mine in sufficient number to constitute a ma-
jority of employees at the Defiance Mine. As the
collective-bargaining unit would follow such trans-
fer of equipment and personnel (or here a part of
the unit, as only part of the Roger Mine operations
were superseded by the Defiance Mine), Respond-
ent would be obligated to bargain with the Mine
Workers at the Defiance Mine. This is what the
recommended Order requires.
There can, as recognized by the Administrative
Law Judge, be no certitude here, but the lack of
certainty is caused by Respondent's unfair labor
practices. The nature of the unfair labor practices
prevents complete restoration of the status quo
ante. In all likelihood, as is indicated by the facts
set forth herein and in the Administrative Law
Judge's Decision, had there been no violations of
the Act, the Mine Workers would have been the
lawful bargaining representative at the Defiance
Mine. Although the Operating Engineers, which is
the bargaining representative at other of Respond-
ent's mines, is adversely affected by our Order, it is
highly improbable that it would have achieved rep-
resentative status at the Defiance Mine absent Re-
spondent's unfair labor practices. One labor organi-
zation should not benefit, however fortuitously,
from unfair labor practices directed at another
labor organization.
2 As found by the Administrative Law Judge, the partial closings of
the operations at the Roger Mine and the opening of the Defiance Mine
were discriminatorily motivated; Respondent moved, rather than closed,
a part of its operations; Respondent failed to bargain over the effects of
its decision; and Respondent committed other related violations of the
Act. For these reasons, among others, First National Maintenance Corpo-
ration v. N.L.R.B., 452 U.S. b66, 682 (1981), is distinguishable. As the
Court stated therein, "An employer may not simply shut down part of its
business and mask its desire to weaken and circumvent the union by la-
beling its decision 'purely economic."'
Because of the nature of Respondent's strip
mining operations, the recommended Order is nec-
essary to provide an effective remedy. The record
contains extensive evidence regarding the availabil-
ity of the type of coal involved and limitations on
its recovery due to the terrain, the depth of the
coal vein, and Respondent's leasehold rights to
mine a particular location. In sum, the economical-
ly recoverable coal at any one mine is limited.
Thus, to stay in business, Respondent must periodi-
cally open new mining operations, and, in the
normal course of business, Respondent would be
expected to transfer both equipment and personnel
from the depleted mine to the new operation.
Where, as here, the new mine is opened in relative-
ly close proximity to the old mine, employees at
the old mine would be expected to transfer to the
new mine. This is what in all likelihood would
have happened here if Respondent had not unlaw-
fully prohibited it, and this is the status quo ante
which the recommended Order restores. 3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Carbonex Coal
Company, Tulsa, Oklahoma, its officers, agents,
successors, and assigns, shall take the action set
forth in the said recommended Order, except that
the attached notice is substituted for that of the
Administrative Law Judge.
' The instant case is distinguishable from the Board's decision in Joseph
Magnin Company. Inc., 257 NLRB 656 (1981), in which the Board re-
fused to order that the employer recognize and bargain with the union in
its newly opened store in the absence of a demonstration of majority sup-
port among the employees in the new store Here, unlike Joseph Magnin,
there was evidence indicating that, but for Respondent's unfair labor
practices, a sufficient number of employees would have transferred from
the Roger Mine to the Defuiance Mine to demonstrate that the Union
would have obtained majority status at the Defiance Mine and that Re-
spondent transferred work, equipment, and managerial personnel from
the Roger Mine to the Defiance Mine. Under these circumstances, we are
satisfied that imposition of a bargaining order at the Defiance Mine is
warranted.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
1307
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT do anything that interferes
with, restrains, or coerces our employees with
respect to these rights. More specifically,
WE WILL NOT recognize International Union
of Operating Engineers, Local 627, AFL-CIO,
as the exclusive bargaining representative of
any of our employees in the appropriate bar-
gaining unit described below for the purpose
of dealing with us concerning grievances,
labor disputes, wages, rates of pay, hours of
employment, or other terms and conditions of
employment, until we have complied with the
provisions of the Board's Order requiring us to
bargain with the United Mine Workers of
America and thereafter, unless and until Local
627 shall have been certified by the Board as
representative of any such employees.
WE WILL NOT give any force or effect to
the collective-bargaining agreement adopted
and executed on June 1, 1979, covering our
employees at the Defiance Mine in the appro-
priate unit described below, or to any modifi-
cation, extension, or renewal of such agree-
ment, provided, however, that nothing herein
shall require us to vary or abandon any wage,
hour, seniority, or other substantive feature of
our relations with such employees under that
agreement or prejudice the assertion by these
employees of any right that they may have
thereunder.
WE WILL NOT encourage membership in
Local 627, or any other labor organization, or
discourage membership in United Mine Work-
ers of America or any other labor organiza-
tion, by applying, maintaining, or enforcing an
invalid collective-bargaining agreement con-
taining union-security, checkoff, and hiring
hall provisions, or by discriminating in any like
or related manner in regard to the hire or
tenure of employment or any other term or
condition of employment.
WE WILL NOT refuse to bargain collectively
with United Mine Workers of America con-
cerning the transfer of employees, and other
effects upon the employees, resulting from the
transfer of unit work from the Roger Mine to
the Defiance Mine and our refusing to bargain
collectively with respect to rates of pay,
wages, hours of employment, and other terms
and conditions of employment, with United
Mine Workers of America as the exclusive
representative of our employees in the follow-
ing appropriate unit:
All production and maintenance employ-
ees, including truckdrivers, employed by us
at our Roger Mine and Defiance Mine, near
Chelsea, Oklahoma, excluding all other em-
ployees, coal processing and loading em-
ployees, office clerical employees, guards
and supervisors, as defined in the Act.
WE WILL NOT unilaterally change the terms
and conditions of the employment of our rep-
resented employees without bargaining with
their exclusive collective-bargaining repre-
sentative.
WE WILL NOT engage in direct bargaining
with our represented employees in derogation
of the bargaining rights of their exclusive col-
lective-bargaining representative.
WE WILL NOT discriminate, with regard to
employees' hire or tenure of employment or
any other term or condition of employment,
against our employees represented by United
Mine Workers of America and in favor of em-
ployees represented or referred by Local 627
based on the identity of their collective-bar-
gaining representative.
WE WILL NOT transfer work out of the
above-described unit, or accelerate a decision
to make such transfer, because of the union ac-
tivities or sympathies of employees in said
unit.
WE WILL NOT refer employee applicants to
the Local 627 hiring hall prior to employing
them at the Defiance Mine or refuse to employ
any applicant at the Defiance Mine who has
not been referred by Local 627.
WE WILL NOT hire new employees into a
bargaining unit at a time when there are out-
standing applications for reinstatement from
striking employees in said unit.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed to them by
Section 7 of the Act.
WE WILL withdraw and withhold all recog-
nition from International Union of Operating
Engineers, Local 627, AFL-CIO, as the col-
1308
CARBONEX COAL COMPANY
lective-bargaining representative of any of the
employees in the appropriate unit described
above, until we have complied with the provi-
sions of this notice requiring us to bargain
with the United Mine Workers of America
and thereafter, unless and until the Board shall
have certified Local 627 as such representa-
tive.
WE WILL reimburse each of our present and
former employees, excepting those employees
who were active members of Local 627 prior
to their employment at the Defiance Mine, for
all initiation fees, reinstatement fees, dues, and
other moneys paid or checked off pursuant to
said unlawful union-security contract, with in-
terest.
WE WILL, upon request, bargain collectively
with United Mine Workers of America con-
cerning the transfer of employees, and other
effects upon the employees, resulting from the
transfer of unit work from the Roger Mine to
the Defiance Mine.
WE WilI bargain in good faith with the
United Mine Workers of America, as the ex-
clusive representative of Defiance Mine em-
ployees as part of the above-described appro-
priate unit, and embody in a signed agreement
any understanding reached.
WE WIL.L offer to as many Roger strikers
and laid-off employees as are presently re-
quired at the Defiance Mine, reinstatement at,
or transfer to, the Defiance Mine to their
former or substantially equivalent positions,
without prejudice to their seniority or other
rights and privileges, discharging, if necessary,
present Defiance Mine employees not in that
group of strikers and laid-off employees.
WE WI LL offer to Roger strikers, who were
discriminatorily denied reinstatement at Roger
Mine, reinstatement to their former or substan-
tially equivalent positions at the Roger Mine
without prejudice to their seniority or other
rights and privileges discharging, if necessary,
any replacements hired after the commence-
ment of the strike.
WE WILL. place all Roger strikers and laid-
off employees for whom we have no immedi-
ate position available at either the Roger Mine
or the Defiance Mine on a preferential hiring
list for reinstatement at either the Roger Mine
or the Defiance Mine and offer them immedi-
ate and full reinstatement on the same condi-
tions as above as vacancies occur.
WE WILI. make whole each of the above-de-
scribed strikers and laid-off employees for any
loss of earnings they may have suffered as a
result of the discrimination against them, plus
interest.
CARBONEX COAL COMPANY
DECISION
STATEMENT OF THE CASE
EARLDEAN V. S. ROBBINS, Administrative Law Judge:
The hearing in this matter was held before me in Tulsa,
Oklahoma, on various dates in June and August 1980.
The charge was filed by United Mine Workers of Amer-
ica, herein called the Union or UMW and served on Car-
bonex Coal Company, herein called Respondent or Car-
bonex, on May 18, 1979. A first amended charge was
filed by the Union and served on Respondent on Octo-
ber 12, 1979. The complaint which issued on December
31, 1979, alleges that Respondent violated Section
8(a)(1), (2), (3), and (5) of the National Labor Relations
Act, as amended, herein called the Act.
The principal issues herein are:
(1) Whether Respondent rendered aid, assistance, and
support to International Union of Operating Engineers
Local 627, AFL-CIO, herein called OE or Local 627,
and discriminated against its employees represented by
UMW by granting recognition to, bargaining with, and
giving effect to a collective-bargaining agreement with,
Local 627 as the exclusive collective-bargaining repre-
sentative of employees at its Defiance Mine notwith-
standing that at the time Respondent did not employ a
representative segment of its ultimate employee comple-
ment at said mine; and by complying with the exclusive
hiring hall provisions of said collective-bargaining agree-
ment; and by requiring job applicants to acquire member-
ship in Local 627 prior to employment at the Defiance
Mine.
(2) Whether Respondent refused to bargain with
UMW in violation of Section 8(a)(5) of the Act and dis-
criminated against its employees in violation of Section
8(a) 3) of the Act by unilaterally granting wage increases
to, and engaging in direct bargaining covering shift
schedules with, unit employees at its Roger Mine; and by
performing work at its Defiance Mine which had previ-
ously been performed by unit employees at its Roger
Mine, without notification to, or bargaining with, UMW.
(3) Whether Respondent violated Section 8(a)(1) and
(3) of the Act by hiring new employees at its Roger
Mine to perform work previously performed by employ-
ees on strike at the Roger Mine even though said strikers
have made unconditional offers to return to work.
Upon the entire record, from the demeanor of the wit-
nesses, and after due consideration of post-hearing briefs
filed by the parties, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent, an Oklahoma corporation, is engaged in a
coal mining operation near Chelsea, Oklahoma. During
the 12 months preceding the issuance of the complaint
herein, a representative period, Respondent in the course
1309
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and conduct of its business operations has had gross sales
in excess of $50,000 and has sold and shipped goods
valued in excess of $50,000 to customers located outside
the State of Oklahoma.
The complaint alleges, Respondent admits, and I find
that the Respondent is now, and has been at all times
material herein, an employer engaged in commerce and
in operations affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find
that UMW and Local 627 each is now, and has been at
all times material herein, a labor organization within the
meaning of Section 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction and Background
Respondent is engaged in the strip mining of coal at
various locations in Oklahoma. Respondent is a subsidi-
ary of Petroleum Reserve Corporation, herein called
PRC, which is owned by Skye Resources Ltd., a public-
ly held Canadian corporation. Although there is some
dispute as to when and why PRC began its present
method of handling its coal mining activities in Oklaho-
ma, it is undisputed that commencing some time prior to
the hearing herein, and continuing to date, it has utilized
a multicorporation structure comprised of Respondent,
PRC Resources Corporation, herein called PRC Re-
sources, and Chaparral Productions, Inc., herein called
Chaparral.
PRC Resources owns the land and coal leases utilized
in the mining operation. Chaparral owns most of the
major equipment used in the mining operation and Re-
spondent is the operating company. Respondent. in its
mining operations, leases equipment from Chaparral and
coal reserves from PRC Resource. Frank Podpechan is
president of all four companies. William L. Peacher is
executive vice president of PRC, treasurer of Respond-
ent, and vice president of both Chaparral and PRC Re-
sources. Different people hold the various other offices
in these companies.
Respondent has operated four mines, the Porum Mine,
the Stigler Mine, the Roger Mine, and the Defiance
Mine. In 1975, PRC acquired a 50-percent interest in the
Carbonex Mineral Partnership which owned Porum
Mine, an operating mine, located roughly 90 miles south
of Tulsa, Oklahoma. The other 50 percent of that part-
nership was owned by the Carbonex Mining Partnership
which was comprised of a group of German individuals.
In 1976, PRC established the Stigler Mine, solely owned
by it, located 100 to 110 miles south of Tulsa. In that
same year, the Roger Mine commenced operation. The
Roger Mine was owned by PRC Carbonex Partnership.
PRC had a 55-percent interest in that partnership and the
other 45 percent was owned by the Roger Mine partner-
ship comprised of a group of individual German inves-
tors.
Although Respondent was in existence, at least by
1976 or 1977, it owned no interest in the Porum, Stigler,
or Roger Mines. PRC and the Carbonex Mining Partner-
ship each owned 50 percent of Respondent's stock. Ac-
cording to William L. Peacher, executive vice president
of PRC, Respondent was formed solely as an operating
company to operate the Stigler Mine on the behalf of
PRC and to operate the Porum and Roger Mines on
behalf of the respective partnerships. It had a written
management contract dated August 15, 1974, covering
the Porum Mine, and one dated August 15, 1975, cover-
ing the Roger Mine.
According to Peacher, effective July 1, 1977, PRC
purchased the interest of its partners in the partnerships
which owned the Porum and the Roger Mines and also
acquired all of Respondent's stock. At the same time,
Peacher testified, PRC began utilizing PRC Resources
and Chaparral as the owner of its coal leases and equip-
ment. As indicated below, Charging Party questions this
alleged timing since the assignment of mining leases, and
certain deeds, though dated July 1, 1977, were not re-
corded until November 2 and 4, 1977. Also the transfer
of title to certain trucks are dated January 31, 1978, and
recites in lieu of an excise tax receipt number, "change in
company name," and the bookkeeping entries reflecting
the transfer of ownership of other equipment from the
various partnerships' to Chaparral were not made until
March 1978.
It is undisputed that since 1974 or 1975, Respondent
has operated the four mines mentioned above whenever
those mines were in operation. All of the mines are en-
gaged in strip mining whereby work is performed in
areas called pits. The width of the pits depend upon the
size of the earth-moving equipment. For the equipment
used by Respondent, the width is around 70 feet. The
length of the pit is determined by property, road, or coal
boundaries; the longer the pit the more cost efficient the
operation due to the more efficient utilization of the
earth-moving equipment. Once the overlay of rock,
shale, and dirt is removed from atop a seam of coal, it is
referred to as the spoils and is cast to one side. When the
coal is removed from one pit, another pit is started im-
mediately adjacent thereto. The spoils from the second
pit is cast into the first pit as backfill and so on until the
entire area is mined.2
Since it commenced operations, Respondent has mined
three different seams of coal-a high sulphur coal known
as Iron post coal or Fort Scott coal, a low sulphur coal
known as Sequoyah or crow berg coal, and the Stigler
seam which contains both high sulphur and low sulphur
coal. To distinguish it from the low sulphur coal mined
at Stigler, Respondent referred to the high sulphur coal
from the Stigler seam which was mined at Porum, as
Porum coal.
Although it is not absolutely clear from the record, it
appears that the Stigler Mine and the Porum Mine were
basically one-pit operations, except that during some
period of time in 1977 and 1978, Porum had two pits.
Similarly, it is not clear from the record as to the
number of pits at the Roger Mine when it commenced
The books never reflected PRC's sole ownership.
2 The term "pit" or "pit property" is also used to descrinbe a particular
property being mined that is a series of contiguous pits as described
above which comprises the total area mined in one location
1310
CARBONEX COAL COMPANY
operating in 1976. However, it appears that there was
only one and it is clear that in May 1977 there was only
one pit at the Roger Mine, the Page pit, which mined
Sequoyah coal. The Nowatta-Fort Scott pit which
opened in June or July 1977 about 1-1/4 miles from the
Page pit operated through May 1978 mining Fort Scott
coal. The Holly-Sequoyah pit which mined Sequoyah
coal opened about February 1978. The Holly-Fort Scott
pit opened in approximately April 1978, mining Fort
Scott coal about 4 miles from the Page pit. As of Sep-
tember 1978, the Roger Mine was operating three pits-
the Page pit, the Holly-Sequoyah pit, and the Holly-Fort
Scott pit.3
Heavy earth-moving equipment is used to remove the
overburden. Basically a piece of heavy-duty equipment
called a drill is used to drill holes of about 6-1/2-inch di-
ameter into:the overburden down to the coal. Explosives
are loaded into the hole and exploded so as to loosen the
rock and soil. The overburden is removed usually either
by a dragline or a front-end loader, both of which are
pieces of heavy-duty equipment. Occasionally, a scraper
is used. Once the overburden is removed, a loader is
used to clean the coal (scrap off the bone and blue
shale), remove and load it into trucks. Sometimes a piece
of equipment called a broom is used to help clean the
coal. The trucks transport the coal to river barges or a
coal-loading facility known as a tipple, where it is
dumped or conveyed onto the mode of transport used to
transport the coal to the customer. Other equipment used
by Respondent are bulldozers and service trucks.
Production personnel employed by Respondent are
dragline operators, dragline oilers, loader operators,
scraper operators, bulldozer operators, drillers who oper-
ate the drills, shooters who load the explosive into the
holes, mechanics, handwelders, and service truck opera-
tors. The trucks used to transport the coal to the tipple
are not owned by PRC or any of its subsidiaries nor are
the drivers or any other person on these trucks employ-
ees of PRC or any of its subsidiaries. Day-to-day super-
vision at the mines is performed by a mine superintend-
ent, who has overall responsibility for the operation of
the mine, and pit foremen who direct the work of the
employees.
The Porum and Stigler Mines were located about 18
to 20 miles apart and at some point in time, they shared a
superintendent, some employees, and some equipment. In
September 1976, Local 627 commenced an organizing
campaign among Respondent's employees. Subsequently,
following a third-party card check, Respondent recog-
nized Local 627 as the statutory bargaining representa-
tive of its employees at the Porum and Stigler Mines.4 In
December 1976, Respondent and Local 627 entered into
a col!hcrive-bargaining agreement which provided, inter
alia:
" One employee witness mentioned a fifth pit, the Roger-Fort Scott pit
which was in operation at sometime during his period of employment
which wsas from September 1977 until the time of the October 1977
strike It is unclear as to the exact period during which the pit was in
operation
4 Local 627's organizational efforts at the Roger Mine were unsuccess-
ful
ARTICLE III
SCOPE OF WORK
This Agreement shall include all mining of fossil
fuel products and mine plant activities including op-
eration and maintenance, the necessary site and
access preparation work, erection and assembly of
mining machinery and equipment, and all related
activities except that this Agreement does not apply
to other construction activities customarily recog-
nized as being building construction.
ARTICLE IV
RECOGNITION
The Employer recognizes the Union as the exclu-
sive bargaining representative for all employees of
the Employer employed in surface and/or under-
ground industrial mining activities within the geo-
graphical area of the State of Oklahoma, excluding
all office and clerical employees, professional em-
ployees, guards and watchmen, and supervisors as
defined by the National Labor Relations Act, as
amended, and excluding all employees at the Roger
Mine near Chelsea, Oklahoma.
ARTICLE XX
JOB VACANCIES AND SENIORITY
1. Permanent job vacancies will be posted on bul-
letin boards and all employees who feel qualified
may apply ...
4. If the Employer opens a new mining operation
covered by this Agreement employees at existing
mining operations shall have the right to request a
transfer to such new mining operation; such request
shall be made within fourteen (14) days after notifi-
cation by the Employer of the opening of the new
mining operation. In the event such transferee is
laid off at such new mining operation, the transferee
shall for one year from date of lay-off, be given a
preferential right to fill any job vacancy at any
other mining operation of the Company covered by
this Agreement, subject to the job bidding rights of
employees permanently assigned to such other
mining operations. Such transferee shall be placed
on the seniority roster based upon his original date
of hire with the Company.
5. It is understood that Porum-Stigler operation is
a single mining operation.
Subsequent agreements effective from June 1, 1978,
through May 31, 1979, from June 1, 1979, through May
31, 1981, contain identical provisions.
On June 20, 1978, a Board-conducted election was
held among Respondent's production and maintenance
employees at the Roger Mine. UMW won the election
1311
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and was certified on June 28, 1978, as the exclusive bar-
gaining representative of said employees. Thereafter,
UMW and Respondent engaged in contract negotiations
but no contract was consummated. Sometime between
June 20 and July 14, 1978, Respondent laid off 18 of its
60 to 70 employees at the Roger Mine. Following an un-
successful attempt to secure a collective-bargaining
agreement, UMW commenced a strike against Respond-
ent at the Roger Mine on October 2, 1978. The picketing
continued until sometime in November 1978.
On November 13, 1978, a complaint issued in Cases
16-CA-7964 and 16-CA-8116 alleging that Respondent
had engaged in certain unfair labor practices. 5 Subse-
quently, the Board affirmed the findings and conclusions
of the Administrative Law Judge that Respondent violat-
ed the Act in the following regards:
1. By threatening its employees with mine closure
because of their union activities; interrogating its
employees about their union activities; creating the
impression of surveillance of its employees' union
activities; soliciting grievances of its employees in
order to discourage the employees' union activities;
soliciting employees' assistance in determining its
employees' willingness to form a company union;
informing its employees it would be futile to sup-
port the United Mine Workers of America; direct-
ing its employees to remove Union stickers from
their helmets; threatening its employees with termi-
nation of employment because of their union activi-
ties; soliciting its employees to support another
labor organization or a company union; and promis-
ing its employees economic benefit in order to dis-
courage their union activities; Respondent has en-
gaged in unfair labor practices within the meaning
of Section 8(a)(l) of the Act.
2. By laying off and thereafter refusing to rein-
state its employees named below on the dates oppo-
site their respective names, because of its employees
union activities, Respondent has engaged in and is
engaging in unfair labor practices within the mean-
ing of Section 8(a)(1) and (3) of the Act:
Junior A. Berry
Ed Davenport
Derrell L. Jordan
Jimmy E. Legates
Charles R. Lewis
James M. Lewis
Jerry D. Magnes
Wayne M. Moore
Rex Daniel Rymer
Paul D. Pinkston
James Presfield
Howard W.
Robinson
Roy J. Stephenson
William R. Swick
Hooley G.
June 28, 1978
June 29, 1978
June 29, 1978
June 27, 1978
June 28, 1978
June 28, 1978
June 29, 1978
June 23, 1978
June 27, 1978
June 29, 1978
June 29, 1978
June 20, 1978
June 20, 1978
July 14, 1978
' Consolidated therewith were certain allegations of unfair labor prac-
tices committed by UMW A settlement agreement was approved dispos-
ing of these allegations and the cases against UMW were served from
those against Respondent.
Thompson
Howard M. Timms
Mark W. Walker
Pete Triplett
June 21, 1978
June 28, 1978
June 28, 1978
June 28, 1978
3. By engaging in surface bargaining and not bar-
gaining with a sincere intention to arrive at an
agreement with the above-named labor organization
as the exclusive bargaining representative of all the
employees of Respondent in the appropriate unit,
Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(5) of the Act.
4. Respondent, by engaging in the above-men-
tioned unfair labor practices, caused and prolonged
a concerted work stoppage and strike by various
employees in the above-described unit, commencing
on or about October 2, 1978, at its Roger Mine.
5. Respondent, by terminating and thereafter re-
fusing to reinstate its employees named below on
October 2, 1978, because of its employees involve-
ment in the above-mentioned strike, has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act:
William Robinson
Edward Williams
Lester Robinson, Jr.
6. Respondent, by subcontracting 100 percent if
its hauling operations on or about June 28, 1978,
and laying off two of its trucker employees (includ-
ed among those employees named in subparagraph
4, above) because of its employees union activities
and without bargaining with the above-named labor
organization, has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(l), (3) and (5) of the Act.
As a remedy, the Board ordered, inter alia:
1. Reinstatement and backpay for the laid off and
terminated employees.
2. That the initial period of UMW's certification
as the bargaining representative of production and
maintenance employees, including truckdrivers, at
Respondent's Roger Mine be construed as begin-
ning on the date Respondent commences to bargain
in good faith with UMW.
3. That Respondent offer to strikers, upon their
unconditional applications to return to work, 6 im-
mediate and full reinstatement to their former posi-
tions or, if those positions no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority and other rights and privileges, dis-
missing, if necessary, persons hired on or after Oc-
tober 2, 1978, and make them whole for any loss of
earnings they may suffer as a result of Respondent's
refusal, if any, to reinstate them in a timely fashion
6 The Administrative Law Judge found that although the picketing
stopped during November 1978, the facts failed to show that the Union
had ended the strike or made an unconditional offer for the employees to
return to work.
1312
CARBONEX COAL COMPANY
by paying to each of them a sum of money equal to
that each would have earned as wages during the
period commencing 5 days after the date on which
each unconditionally offers to return to work to the
date of Respondent's offer of reinstatement, less any
net earnings during such period. The Board has
found that the 5-day period is a reasonable accom-
modation between the interests of the employees in
returning to work as quickly as possible and the em-
ployer's need to effectuate that return in an orderly
manner. Accordingly, if Respondent herein has al-
ready rejected, or hereafter rejects, unduly delays,
or ignores any unconditional offer to return to
work, or attaches unlawful conditions to its offer of
reinstatement, the 5-day period serves no useful pur-
pose and backpay will commence as of the uncondi-
tional offer to return to work.7
4. That Respondent bargain in good faith with
UMW and reestablish its own hauling operations to
the extent those operations existed prior to the June
20, 1978 election.
B. The 8(a)(3) and (5) Allegations Involving Conduct
at the Roger Mine
i. The shift change
The facts as to the shift change are undisputed. Prior
to April 1979,8 the dragline operators and oilers worked
8-hour shifts, 6 days a week. On April 2, while the drag-
line was being repaired, three employees who worked on
the dragline approached Larry Gallo, superintendent of
the Roger Mine9 and told him they had worked out a
12-hour schedule which they would like to have institut-
ed. They further said that they had previously worked a
12-hour schedule.1 0 The following day, March 3, Gallo
discussed the possibility of such a schedule change with
these three employees and two or three other employees.
The change went into effect on March 4. Gallo admits
that there was no notification to, or consultation with,
UMW.
Respondent argues that this alleged violation is barred
by Section 10(b) of the Act. The complaint initially al-
leged that the conduct involving the shift schedules oc-
curred on June 15, but during the course of the hearing
the date was amended to March 2 to conform to the evi-
dence. Respondent's argument is based on the fact that
such an allegation was not specifically contained in a
charge until the first amended charge filed on October
12. I find no merit in this contention. The original charge
filed on May 18 alleges, inter alia:
Since on or about November 15, 1978, the above-
named Employer, through its officers, agents and
representatives, has refused to bargain collectively
with the United Mine Workers of America, a labor
organization, chosen by a majority of its employees
in the appropriate unit as their collecitve-bargaining
Newport News Shipbuilding and Dry Dock Company, 236 NLRB 1637
(1978).
' All dates hereinafter will be in 1979, unless otherwise indicated.
9 Gallo assumed this position on October 1, I978.
'O One of the draglines had been operated on 12-hour shifts in 1978.
representative, by refusing or failing to bargain with
the United Mine Workers of America relative to the
terms and conditions of employment at the Employ-
er's Defiance Mine.... By the above and other
acts, the above-named Employer has interfered
with, restrained, and coerced employees in the exer-
cise of the rights guaranteed in Section 7 of the
Act.
It is thus clear that the substance of the allegation of the
amended charge is sufficiently related to the allegations
contained in the original charge so as to render the
amendment timely under Section 10(b) of the Act.
N.L.R.B. v. Jack LaLanne Management Corporation, 539
F.2d 292, 294-295 (2d Cir. 1976); Schraffts Candy Com-
pany, 244 NLRB 581, fn. 1 (1979).
I similarly find no merit in Respondent's assertion that
the rearrangement of the shift schedule did not really
constitute a change inasmuch as Respondent had worked
12-hour shifts on another dragline in a previous year. Re-
spondent's reliance on KDEY Broadcasting Company, a
wholly owned subsidiary of North America Broadcasting
Company, 225 NLRB 25 (1976), and Kal-Die Casting Cor-
poration, 221 NLRB 1068 (1975), is misplaced. Thc
change involved herein does not involve routine produc-
tion scheduling nor is this a situation where the working
schedule is frequently changed. Similarly misplaced is
Respondent's reliance on Citizens National Bank of Will-
mar, 245 NLRB 389 (1979), where the Board dismissed
an allegation of a refusal to bargain by effectuating a uni-
lateral change in work schedule inasmuch as the Union
had not requested bargaining. Here, contrary to the situ-
ation in that case, there is no evidence that the Union
had actual notice of the change prior to its implementa-
tion. Accordingly, since it is undisputed that Respondent
implemented this change in the shift schedule without
notification to or consultation with UMW, I find that
Respondent thereby violated Section 8(a)(l) and (5) of
the Act. Florida Steel Corporation, 235 NLRB 941 (1978).
2. The wage increase
By letter dated September 24, Russell E. Wienecke,
vice president of Respondent," informed Steve Galati,
director of UMW's western region, that Respondent
planned to institute a wage increase. The body of the
letter reads:
Since the employees at our Roger mine have not
had a wage increase since October 1, 1978, Car-
bonex expects to institute the attached wage sched-
ule on October 14, 1979.
If you have any comments or questions, please let
me know.
UMW did not respond directly but on October 9, it filed
the first amended charge herein which alleges, inter alia,
that Respondent has refused to bargain with UMW by
announcing a wage increase. On that same date UMW's
attorney, Richard Noble, informed Respondent's attor-
ney, Richard Barnes, that UMW wished to resume nego-
II Wienecke is also secretary of PRC Resources.
1313
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tiations and requested available dates during the latter
part of October and early November. No mention was
made of Wienecke's September 24 letter.
Gallo admits that a couple of days before Respondent
learned of the filing of the amended charge, he informed
unit employees that they would be granted a wage in-
crease. Upon learning of the filing of said charge, Gallo
told employees that the charge had been filed and that it
would be determinative of whether they received a wage
increase.
On October 23, Wienecke sent a mailgram to Galati,
the body of which reads:
ON SEPTEMBER 24, 1979, WE WROTE YOU CONCERN-
ING OUR PROPOSAL TO GRANT A WAGE INCREASE AT
THE ROGERS MINE, SINCE THE LAST INCREASE FOR
ANY OF THOSE EMPLOYEES WAS THAI' IMPLEMENT-
ED OCTOBER 1, 1978, AS AN INTERIM WAGE IN-
CREASE DURING COLLECTIVE BARGAINING WITH
YOUR UNION. TO DATE, WE HAVE HEARD NOTHING
FROM YOU AND ASSUME YOU HAVE NO OBJECTIONS
TO OUR PROPOSAL. THE PAYROL. FOR THE PERIOD
COMMENCING OCTOBER 14, 1979, WILL BE MADE
SHORTLY AFTER OCTOBER 28.
HOWEVER, WE RECEIVED A PUZZLING AMENDMENT
TO NLRB CASE NUMBER t6-CA-8500, SIGNED BY
RICHARD W NOBLE. IN THAT AMENDMENT, MR
NOBLE ALLEGED THAT OUR COMPANY HAS REFUSED
TO BARGAIN WITH THE UMWA "BY BYPASSING THE
EMPLOYEES REPRESENTATIVE AND BARGAINING DI-
RECTLY WITH EMPLOYEES AND BY ANNOUNCING A
WAGE INCREASE WITHOUT BARGAINING WITH THE
UNITED MINE WORKERS."
WE ASSUMED THERE WAS A BREAKDOWN IN COM-
MUNICATION BETWEEN YOURSELF AND MR NOBLE.
HOWEVER, IF THIS IS YOUR UNION'S METHOD OF RE-
SPONDING TO A I.EGITIMATE PROPOSAL AND A RE-
QUEST FOR COMMENT THEREON WE ARE VERY DIS-
TURBED. THESE EMPLOYEES HAVE HAl) NO WAGE
INCREASE FOR OVER A YEAR, AND WE MUST
ASSUME THAT YOUR USE OF ADMINISTRATIVE
CHARGES TO HARASS THE EMPLOYER INTO WITH-
HOLDING A WAGE INCREASE IS AN ATTEMPT TO PE-
NALIZE THE EMPLOYEES AT THE ROGERS MINE. WE
REMIND YOU THAT ALL OF THOSE PERSONS ARE EM-
PLOYEES WHO ABANDONED YOU UNION'S STRIKE
WHICH BEGAN IN OCTOBER, 1978, AND CROSSED
YOUR PICKET LINE AND RETURNED TO WORK. WE
WILL NOT BE A PARTY TO ANY DIRECT OR INDIRECT
ATTEMPT TO DISCRIMINATE AGAINST THESE INDI-
VIDUALS.
IF YOU HAVE SPECIFIC COMMENTS TO MAKE CON-
CERNING OUR PROPOSAL, PLEASE BY IN TOUCH
WITH US AT YOUR EARLIEST CONVENIENCE, OTHER-
WISE WE WILL ASSUME EITHER YOU HAVE NO OB-
JECTION OR THAT YOUR OBJECTION IS FOUNDED
UPON AN ATTEMPT TO DISCRIMINATE AGAINST PER-
SONS WHO HAD ABANDONED YOUR STRIKE.
Gallo testified that he, Wienecke, and William
Peacher, executive vice president of PRC and treasurer
of Respondent, made a joint decision to distribute copies
of the above mailgram to unit employees. Thereafter, a
copy was handed to each employee at work and a copy
was mailed to each employee on leave. According to
Gallo, they decided to distribute copies of the mailgram
because he had previously told employees that they
would be receiving a wage increase and this distribution
was an explanation of why they would not be receiving
such increase. Subsequently, unit enployees were granted
a wage increase.
On October 24, Noble sent a letter to Wienecke, the
body of which states:
This letter will acknowledge receipt of your tele-
gram of October 24, 1979 to Mr. Steve Galati rela-
tive to the proposed unilateral implementation of a
wage increase at Carbonex Coal Company's Rogers
Mine. Apparently, you are unaware of the United
Mine Workers of America's prior requests to reopen
negotiations.
I direct your attention to Mr. Steve Galati's letter
of April 18, 1979 requesting the reopening of nego-
tiations. Mr. Galati followed up on the letter of
April 18 with a letter dated May 2, 1979, again re-
questing that negotiations be commenced and a
statement of available dates for the commencement
of further negotiations. Your chief negotiator, Mr.
Richard L. Barnes, responded to Mr. Galati by
letter dated May 2, 1979 stating that the Company
had no proposals to offer other than those previous-
ly submitted and that the Company would offer no
further proposals save a proposal on subcontracting.
Apparently, Carbonex Coal Company's position rel-
ative to its initial proposals remains the same despite
the Administrative Law Judge's finding that the
Company engaged in surface bargaining.
On October 9, 1979 I corresponded with your
chief negotiator, Mr. Richard L. Barnes, requesting
a resumption of negotiations and a commitment as
to available dates for negotiations in late October or
early November, 1979. There has been no response
to this request for the resumption of negotiations.
The United Mine Workers of America is willing
and has sought the resumption of collective bargain-
ing negotiations relative to any subject appropriate
for collective bargaining. Your Company has
chosen not to avail itself of these many offers to
resume negotiations. If your position is now
changed, please advise as to a recommended date
and site for the resumption of negotiations.
Wienecke responded, by letter dated October 31, ad-
dressed to Noble, the body of which reads:
Carbonex has, on several occasions, afforded the
United Mine Workers an opportunity to respond to
the Company's proposal to increase the wage rates
at the Rogers mine since they have not had an in-
crease in wages in over a year. To date we have
not received any direct response to the proposal.
Consequently, we will implement the increase as
proposed.
1314
CARBONEX COAL COMPANY
Your interpretation of the letter of May 2, 1979,
from Mr. Barnes to Mr. Galati, is in error. Neither
the May 2 letter, nor any other of which I am
aware, contains the statement with regard to further
Company proposals that you attribute to Mr.
Barnes. Furthermore, contrary to your conclusion
that the Company has chosen not to avail itself of
opportunities for negotiations, Mr. Barnes specifical-
ly stated in the May 2 letter that the Company was
willing to meet and to bargain and he solicited ad-
vance copies of further proposals to be made by the
Union, if any, in order to save time during the an-
ticipated face-to-face meetings. Presumably, howev-
er, the Union had no intention of making any fur-
ther bargaining proposals, as none were forthcom-
ing. In fact, to my knowledge, neither you nor the
Union chose to respond in any manner to the May
2 letter.
In addition, on May 29, 1979, in preparation for the
expected continuation of collective bargaining ses-
sions, Mr. Barnes wrote to Mr. Harrison Combs
with the International Union requesting certain in-
formation. Mr. Barnes has informed us that, despite
follow-up requests, the Union has chosen not to re-
spond to this letter as well.
Notwithstanding the Union's lack of cooperation
with regard to the reasonable requests for informa-
tion that the Company has made, we are still will-
ing to meet and to bargain. We would, however, re-
iterate the requests contained in the May 2 and May
29 letters and ask that the requested information be
provided as soon as possible.
We would suggest Tulsa as the site for further
meetings. Mr. Barnes will not be available until
after November 6. If you would suggest a date or
dates subsequent thereto, we will make arrange-
ments for a meeting. We would propose that either
a Federal Mediator be present at all future sessions
or that the parties agree on a procedure for taking
minutes.
Noble replied by letter dated November 2 addressed to
Wienecke the body of which reads:
This letter will acknowledge receipt of your
letter of October 31, 1979.
The United Mine Workers of America has con-
sistently responded to Carbonex Coal Company's
proposal for increasing wages by requesting further
face to face negotiations Consistently since mid-
April, 1979 the United Mine Workers of America
has requested such negotiations. It is now the posi-
tion or has it always been your position that there
can be no face to face negotiations without propos-
als other than those alreadv made being submitted?
Am I to understand fromn your letter of October
31, 1979 that Carbonex Coal Company is unwilling
to discuss and/or modify any of the proposals made
in any of the previous negotiations sessions?
Both the Western Region Office and I are un-
aware of any requests for information made to Mr.
Harrison Combs. It would seem that if you do in
fact want information, the appropriate individual to
contact would [sic] Mr. Steve Galati, who has been
assigned to negotiate any agreement with Carbonex
Coal Company on behalf of the affected employees
in the International Union. If you still want any in-
formation which was the object of Mr. Barnes' May
29, 1979 letter, please forward a copy of that letter
to Mr. Galati or myself.
The United Mine Workers of America suggest
that negotiations be resumed on November 19, 1979
and November 20, 1979, in Tulsa, Oklahoma. Please
advise as to whether these dates are acceptable.
The United Mine Workers of America has no ob-
jection to the presence of a Federal Mediator at any
bargaining session. However, the United Mine
Workers of America would strenuously object to
the taking of minutes of any negotiating session
other than the individual notes of the parties' nego-
tiators.
Please advise as to whether Mr. Barnes remains
the Company's chief negotiator. Since it appears
that his availability is essential to future negotia-
tions, communication would be facilitated if there is
only one Company representative with whom we
correspond.
By letter dated November 9, Barnes responded to
Noble's November 2 letter. This letter states, inter alia:
Your letter to Mr. Wienecke is nonresponsive. The
Company's various letters regarding collective bar-
gaining have been abundantly clear. Any alleged
misunderstanding on your part is apparently a prod-
uct of your own imagination. The Company's posi-
tion is now and always has been to enter negotia-
tions without constraint. We have given the Union
lengthy explanations for the rejection of each and
every proposal rejected. The Union has not yet
convinced the Company that such rejection is un-
warranted.
. * * e
The Company has asked me to continue to counsel
them during negotiations. I am unavailable Novem-
ber 19 and 20 because of negotiations with the Fur-
niture Workers in another city. December is spotty
because of preparation for the resumption in early
January of a complex and lengthy trail. Please fur-
nish a list of all available dates between November
21 and January 6.
Thereafter by letter dated November 13, an associate
of Noble informed Barnes that the Union's schedule was
flexible and suggested that, in view of Barnes' tight
schedule, he propose a date for negotiations. By letter
dated November 17, Barnes listed 10 dates between No-
vember 6 and December 28 on which he would be avail-
able for negotiations. Neither the November 13 nor the
November 17 letter made any specific reference to the
proposed wage increase. In fact throughout the inter-
1315
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
change of correspondence the union representatives
never mentioned specifically the proposed wage increase,
other than the reference in the November 2 letter.
Rather, its consistent response was to request general
contract negotiations.
Respondent argues that the failure of UMW to specifi-
cally request bargaining as to the proposed wage in-
crease constitutes a waiver of UMW's statutory right to
bargain as to the wage increase. In so doing, Respondent
relies on that line of cases which hold that it is incum-
bent upon a union which has notice of an employer's
proposed change in terms and conditions of employment
to timely request bargaining in order to preserve its right
to bargain on that subject. See Citizens National Bank of
Willmar, supra, and cases cited therein at fn. 6.
Such reliance is mistaken, in the circumstances herein.
UMW's request to reopen contract negotiations encom-
passes a request to bargain regarding wages in the con-
text of other contract proposals. However, even assum-
ing, arguendo, that such is not the case, Respondent's re-
liance is still misplaced. The Board in Carbonex Coal
Company, 248 NLRB 779 (1980), affirmed the Adminis-
trative Law Judge's conclusion that during the contract
negotiations which took place in August and September
1978 and which Respondent broke off on September 15,
allegedly because of the unfair labor practice proceed-
ings, Respondent had engaged in surface bargaining
without a sincere intent to arrive at an agreement with
UMW and ordered Respondent to bargain in good faith.
On April 18, by letter, UMW requested the reopening of
negotiation, claimed the Defiance Mine as being within
the unit represented by it, suggested several possible
dates in April and May, but stated that it would meet at
Respondent's convenience. After receiving no response
from Respondent, UMW by letter dated May 2, reiterat-
ed its request for bargaining and further stated, "contin-
ued failure on your part to respond to our requests can
only lead us to take further actions available to us under
the law."
Respondent responded by letters dated May 2 and 8,
neither of which suggested dates for negotiation sessions.
The body of the May 2 letter states:
Your letter to the company dated April 14, 1979,
has been referred to me for response because of
present litigation between the company and your
union, and the several legal problems referred to in
you letter.
Of course, the company is willing to meet and to
bargain. However, from its vantage point there ap-
pears to be little or no hope of progress. First, is the
matter of company proposals that have been at-
tacked in the administrative proceedings before the
NLRB. Until final resolution of the propriety or le-
gality of those proposals, the company is unwilling
to withdraw them. Perhaps you are now willing to
reconsider your rejection of these proposals, or to
offer real counterproposals rather than reproposing
previous rejected proposals.
Second, are the additional items on which the
parties reached an impasse. The comnpany has fully
explained its position on rejecting all of those union
proposals, and is presently awaiting some response
from you other than a reproposal of previously re-
jected proposals.
My review of the bargaining indicated only two
areas which were not fully explored, those being
wages and subcontracting. The company did reject
any wage increase other than the tonnage bonus,
but the agreement for temporary implementation of
that plan expired December 31, 1978. Subcontract-
ing was on the agenda for September 14-15, 1978,
but was never discussed. The company's proposal
dated September 14, 1978, is enclosed.
All of the employees of Carbonex Coal Company
who work within the State of Oklahoma, except
those working at the Roger Mine, are members of
the International Union of Operating Engineers, and
have been covered by a collective bargaining agree-
ment with Local 627 of that union since 1976.
Therefore, the company could not lawfully bargain
with your union concerning the employees at the
Defiance Mine, or any other mine in Oklahoma
except the Roger Mine for which your union
became the certified bargaining representative in
June 1978.
You were furnished a copy of the current Oper-
ating Engineers contract during the September 14-
15, 1978, negotiating season with Carbonex.
With the exception of Article II, Section (d) and
(f), the company has had no counterpropals from
you. It would appreciate advance copies of them so
that they can be reviewed prior to meeting. Such
review usually saves a great deal of meeting time.
The body of the May 8 letter states:
Apparently your May 2, 1979, letter and my
letter to you crossed in the mail.
Obviously the Company is concerned about the
resumption of picketing or a strike. Please let us
know at your earliest convenience if you do not in-
clude picketing or a strike as being within "actions
available to us under the law."
Thereafter there was no communication between Re-
spondent and UMW regarding contract negotiations until
UMW's request for bargaining on October 9. In this
regard, I note that Respondent's September 24 letter re-
garding its intent to institute a wage increase does not re-
quest bargaining as to an increase. Rather it flatly an-
nounces that Respondent expected to institute a unilater-
ally determined wage schedule on October 14 and states
"If you have any comments or questions, please let me
know." Thus, Respondent notified UMW of its intent to
institute a wage increase at a time when UMW's request
for contract negotiations was outstanding and while Re-
spondent's bad-faith surface bargaining was still unreme-
died.
It is well settled that, absent extenuating circum-
stances, an employer violates Section 8(a)(5) of the Act
by instituting unilateral changes in terms and conditions
of employment during the course of negotiations with its
employees' bargaining representative at a time when no
1316
CARBONEX COAL COMPANY
impasse exist. N.LR.B. v. Benne Katz, etc. d/b/a Wil-
liamsburg Steel Products Co., 369 U.S. 736 (1962); Winn-
Dixie Stores, Inc., 243 NLRB 972 (1979); Laredo Packing
Company, 241 NLRB 184 (1979). The mere fact that the
employees had not had a wage increase for a year is not
in itself such a compelling business justification as to
constitute an extenuating circumstances justifying Re-
spondent's unilateral action. Winn-Dixie Stores, Inc., supra
at fn. 9. Also any possibility of extenuating circumstances
is negated by Respondent's announcement of the wage
increase to employees prior to UMW's response, and its
distribution to employees of copies of the mailgram,
which I find was carefully calculated to place upon the
Union the onus of any failure to grant a wage increase.
It is also apparent that no impasse existed, Respondent
admits this in its May 2 letter. Further there can be valid
impasse while Respondent's bad-faith bargaining is unre-
medied. See United Contractors, Incorporated, JMCO
Trucking Incorporated, 244 NLRB 72 (1979). According-
ly, in these circumstances, I find that Respondent violat-
ed Section 8(aXl) and (5) of the Act by unilaterally,
without bargaining with UMW, granting a wage increase
to unit employees at the Roger Mine.
C. The Alleged Refusal To Reinstate Strikers at the
Roger Mine
As set forth above, in a previous proceeding, the
Board upheld the finding of the Administrative Law
Judge that the October 2, 1978, strike at the Roger Mine
was an unfair labor practice strike from its inception and
ordered Respondent to offer the unfair labor practice
strikers, upon their unconditional applications to return
to work, immediate and full reinstatement, dismissing, if
necessary, any persons hired on or after October 2, 1978.
Carbonex Coal Company, 248 NLRB 779 (1980).
Some of the employees began crossing the picket line
to return to work around October 17 or 18, 1978, at
which time Respondent began operating one shift,
mining Sequoyah coal at the Page pit. Gradually it went
back to a three-shift operation, but the scope of the oper-
ation never returned to the prestrike level. The picketing
continued until sometime in November 1978. No strike
settlement agreement or collective-bargaining agreement
was ever reached between Respondent and UMW, nor
did UMW make any offer on behalf of the strikers to
return to work prior to the opening of the Defiance
Mine.
From the time the mine resumed operations during the
strike and throughout the first quarter of 1979, the active
employee complement consisted solely of returning strik-
ers or those employees who crossed the picket line.
However, as some of these employees left Respondent's
employ, they were replaced with new employees not-
withstanding that strikers who had made unconditional
applications to return to work had not been reinstated.
According to Peacher, Gallo had hired these new em-
ployees on his own initiative due to ignorance of the sit-
uation. Peacher did not learn of this acticn until some
time later. They discussed how to handle the situation
and decided that Respondent had made the mistake, not
the replacements, and thus it would be grossly unfair to
simply terminate the replacements. Therefore, they elect-
ed not to terminate the replacements so as to reinstate
the strikers.
The new employees were hired on the following dates:
Farris, Doug 5-30-79
Farbro, Bobby W. 8-23-79
Howell, Rick R. 7-24-79
Patton, Billy L. 9-8-79
Andrews, William 8-20-79
Lockart, Glen A. 10-8-79
Striking employees made unconditional offers to return
to work and were reinstated as follows:
Name
Pinkston,
John
A.
Pinkston,
Tim
Robinson,
Lester
Robinson,
William
Lewis,
Edward
J.
Robinson,
Howard
Phifer,
Bernie
L.
Apple-
gate,
Jay
Shipley,
Kenny
Meek,
George
Keith,
Mac A.
Fowler,
A. C.
Green-
way,
Carl
Cartw-
right,
Delbert
Williams,
Edward
D.
Jordan,
Derrell
Offer To Ofere Job
Return
11-13-78
11-13-78
11-13-78
3-05-80
3-10-80
11-19-79
11-13-78 3-19-80
(dragline)
4-14-80
(scraper)
11-13-78
11-13-78
11-14-78
11-22-78
11-29-78
10-09-78
12-10-78
1-11-79
Reinstated Refused
3-10-80
3-18-80
11-26-79
(quit 2-26-
80)
3-21-80
4-19-80
11-15-78
(deceased)
5-14-79
(quit)
4-05-79
5-10-79
3-28-80
4-11-79
4-05-79
4-16-79
10-18-78
4-04-80
4-16-79
1-11-79 1-11-79 1-11-79
1-18-79 4-11-79 4-16-79
3-07-79
4-12-79
3-21-80
11-15-79
4-03-80
Striker Kenneth Shipley testified without contradiction
that on the date he heard that the picket line had been
removed, he telephoned Gallo who confirmed that the
1317
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
picketing had ceased. Shipley asked if they were going
to reinstate anyone. Gallo said, if it were up to him, they
would but he would have to check with the Tulsa office.
A week or two later, on November 29, 1978, Shipley
went to the Roger Mine and made an unconditional offer
to return to work.
Striker A. G. Fowler testified that about a month after
the picketing ceased, he went to the Roger Mine. His un-
contradicted testimony is that he asked Gallo if there
was any chance of returning to work. Gallo said, "No.
But if I have my way, I would put you all back to work.
They won't let me. I would like to show them what I
could do." Gallo further said something to the effect that
they had lost some of the best hands. Fowler was not of-
fered reinstatement until April 1.
The complaint alleges that at various times subsequent
to the strikers' unconditional offer to return to work, Re-
spondent has hired new employees at its Roger Mine to
perform work previously perfr -ned by the striking em-
ployees. Respondent argues tnat this issue is not properly
before me inasmuch as iT is duplicative litigation of a
backpay issue, in another proceeding, apparently refer-
ring to the order to reinstate the strikers with backpay
where appropriate, and inasmuch as it was not alleged in
the charge herein. Further. Respondent argues, in any
event it would not constitute a violation of Section
8(a)(l) inasmuch as the hiring of new employees rather
than reinstating strikers was inadvertent rather than in-
tentional and was not inherently destructive of employ-
ees' rights.
I find no merit in any of these arguments. The original
charge specifically alleges a refusal to reinstate strikers
upon termination of an unfair labor practice strike. The
allegation that Respondent hired new employees rather
than reinstating the strikers is intertwined with the alle-
gation of refusing to reinstate the strikers. Thus, there is
no substantial variance between the charge and the com-
plaint.
As to being duplicative litigation, the Administrative
Law Judge specifically found in the prior proceeding
that the facts failed to show that the Union had made an
unconditional offer for the strikers to return to work.
Further, the Administrative Law Judge made no findings
of fact or conclusions of law as to a refusal to reinstate
strikers or as to the hiring of new employees and there
has been no backpay proceeding related thereto. Thus,
the issue herein has not been litigated and the issue is
properly before me.
Respondent admits that new employees were, in fact,
hired at the Roger Mine rather than reinstating the strik-
ers who had made unconditional offers to return to
work. I do not credit Peacher and Gallo insofar as their
testimony tends to indicate that this was an inadvertent
error on Gallo's part due to ignorance of the situation.
Gallo was superintendent of the Roger Mine when the
strike commenced. He could not possibly be ignorant of
the strike or of the strikers' offers to return to work.
Further, ignorance of Respondent's legal obligation to
reinstate the strikers is no defense.
Contrary to Respondent's argument, there is probably
nothing more inherently destructive of employees' rights
than the failure or refusal to reinstate strikers who have
offered to return to work while at the same time filling
vacancies with new hires. Thus, the Board and the
courts have long held that hiring new employees in the
face of outstanding applications for reinstatement from
striking employees, without regard to whether they are
economic or unfair labor practice strikers, is presump-
tively a violation of Section 8(a)(l) and (3) of the Act,
irrespective of the employees' intent or union animus
unless the employer sustains the burden of establishing
legitimate and substantial business justification for such
conduct. N.LR.B. v. Fleetwood Trailer Co., 389 U.S. 375
(1968); N.L.R.B. v. Great Dane Trailer, Inc., 388 U.S. 26
(1967); The Laidlaw Corporation, 171 NLRB 1367 (1968);
Pillows of California, 207 NLRB 369 (1973).
Respondent has not met this burden. Thus, even with-
out regard to the finding in the prior proceeding that the
strikers were unfair labor practice strikers. Respondent
was obligated to rehire strikers rather than the six new
employees that it hired.' 2 Accordingly, I find that by
hiring the new employees rather than the strikers who
had previously made unconditional offers to return to
work, Respondent has violated Section 8(a)(1) and (3) of
the Act. Charging Party argues, and apparently the Gen-
eral Counsel joins in such argument, that Respondent's
failure to recall employees found in the previous pro-
ceeding to have been laid off in violation of Section
8(a)(1) and (3) of the Act is intertwined with and insepa-
rable from Respondent's refusal to rehire strikers and
therefore constitutes an independent violation of Section
8(a)(1) and (3) of the Act. Further, Charging Party
argues, even though the complaint contains no allegation
as to failure to recall laid-off employees, the issue was
fully litigated.
I disagree. The record does contain exhibits showing
new hires and their initial date of employment and the
dates strikers and laid-off employees offered to return
and were offered reinstatement. However, no evidence
was adduced in support of the laid-off employees' entitle-
ment to those jobs given to new hires. Certainly, in the
circumstances herein, the entitlement of the strikers to
these jobs must be considered. Accordingly, I find that
the failure to recall laid-off employees was not fully liti-
gated and in the absence of a specific allegation in the
complaint, no finding of a violation can be based there-
on.
D. The Opening of the Defiance Mine and the
Complaint Allegations Related Thereto
i. Facts
During the first week in October 1978, Respondent
made, or accelerated, a decision to open a new mine
about 4 miles from the Roger Mine. Respondent reached
an oral agreement with the property owners in May or
June 1978 to lease the coal rights underlying the location
of the new mine; however, it was not until sometime in
October that the signatures on the lease of all the owners
were secured. These leases are referred to herein as the
" The strikers' status as unfair labor practice strikers is immaterial
herein since no new employees were hired prior to their unconditional
offers to return to work.
1318
CARBONEX COAL COMPANY
Payne-Kell leases. According to Peacher, immediately
prior to the October 2 strike, Fort Scott coal was being
mined at the Holly-Fort Scott pit at the Roger Mine. In
May or June 1978, when agreement was reached as to
the Payne-Kell leases, Respondent made the decision
that, when it finished mining the Holly-Fort Scott pit, it
would begin mining Fort Scott coal on the Payne-Kell
properties.
At or about that same time, Peacher testified, he and
Respondent's president, Frank Podpechan, began consid-
ering whether the Payne-Kell properties would be mined
as a separate mine. Podpechan felt that centralized man-
agement was not working for Respondent. Peacher felt
they should continue with centralized management, that
is, mining several pits concurrently at one mine. Accord-
ing to Peacher, it is more complex for a superintendent
to manage two pits than it is to manage one pit.
Peacher also testified that the principal advantage of
operating two pits at the same mine is that certain equip-
ment, with operator, can be shared and, of course, man-
agerial and clerical personnel and an office is shared, re-
sulting in lower administrative cost and overhead. How-
ever, sharing equipment causes scheduling problems and
even if you eliminate the need to share equipment, the
superintendent has to be responsible for a larger oper-
ation, which requires more skill. The primary require-
ment for a successful multiple-pit operation is managerial
skill and Respondent just did not have the qualified man-
agerial personnel to make it work successfully. Porum
and Roger each had three different superintendents in
1978. James Smith, the superintendent of the Roger
Mine, was terminated in June 1978. They were not
having much success securing a replacement. Instead,
William Benes, Respondent's vice president in charge of
planning was acting superintendent of Roger Mine. Re-
spondent employed the services of a management search
firm in 1978, but, in a 6-week period, only one candidate
for superintendent was obtained.
Essentially, according to Peacher, while operating two
pits at one mine has the potential for reducing cost, there
is also the risk that management ability and coordination
will be deficient. In the latter circumstance, you not only
lose the economy of scale that you hoped to achieve in
the first place but you would be worse off than if you
had a separate mine for each pit. Peacher further testified
that the saving on overhead of operating the pit on the
new property under an existing mine would be relatively
minor, representing maybe 2 percent of Respondent's
production. As to equipment they could possibly have
utilized one less coal loader and scraper, resulting in a
saving in capital investment. Because of the distance,
track equipment such as a bulldozer could not be shared.
The coal loader and the scraper are rubber-tired vehi-
cles.
Peacher testified that, nrior to the strike, Respondent
anticipated that by the end of February or some time in
March, the Holly-Fort Scott pit would have been mined
to the point where further mining would not have been
economically feasible, that is, the amount of overburden
which had to be removed to obtain a ton of coal was too
high. 1 At that time the new mine would be opened.
However, the strike intervened and Peacher admits that
the strike caused Respondent to accelerate the date for
opening the new mine.
According to Peacher, in order to meet its contractual
obligation to furnish customers with Fort Scott coal after
the strike commenced, Respondent decided to open up
the Payne-Kell leases. The reason these particular leases
were chosen was because coal there had a very low strip
ratio, comparable to that at the Holly-Fort Scott of 12-
to-i and there were estimated reserves of 160,000 tons of
coal. Respondent had no other substantial reserves of
Fort Scott coal with anywhere close to the low strip
ratio of the Payne-Kell leases. The Holly-Fort Scott pit
only had roughly 50,000 tons remaining.
Peacher admits that the strike was the sole reason that
Respondent began mining on the Payne-Kell leases prior
to exhausting the economically recoverable reserves at
the Holly-Fort Scott pit at the Roger Mine. In order to
obtain a permit to mine the Payne-Kell leases. Respond-
ent was required by the State to post a reclamation bond.
According to Peacher, Respondent is not bondable by an
insurance company so it has to post a cash bond. Re-
spondent was required to post a $62,000 bond in cash
before it could commence mining on the Payne-Kell
leases. According to Peacher, Respondent did not have
the necessary cash available so it requested a release
from its bond on the Holly lease, which included the
Holly-Fort Scott pit, to the extent that the surface had
not been disturbed. They were given a release in the
amount of about $65,000, which was then used to post
the $62,000 bond for the Payne-Kell leases.
As to why Respondent did not resume mining at the
Holly-Fort Scott pit once the picketing ceased, Peacher
testified that steps had already been taken to obtain a re-
lease of the Holly bond. Further, according to Peacher,
Respondent still did not know specifically what the
strike was about. The strike had not been settled and, as
far as they knew, the picketing could resume at any time.
Also, the opening of the Payne-Kell leases was simply an
acceleration of the timetable for doing something they
would have done anyway. Therefore, it did not seem
reasonable, at that point, to risk being shut down once
again should the picketing resume.
The new hire mine, called the Defiance Mine, pro-
duces Fort Scott, coal. Immediately prior to the strike,
the Roger Mine had three active pits-the Page pit
where the Page dragline was mining Sequoyah coal, the
Holly-Sequoyah pit where the Monitowoc dragline was
mining Sequoyah coal, and the Holly-Fort Scott pit
where a 992 loader was mining Fort Scott coal. When
production recommended at Roger following the com-
mencement of the strike, only the Page pit was in oper-
ation except for a very brief period when the Holly-Se-
quoyah pit was operating.
According to Peacher, the employee complement at
Roger was too small to operate more than one pit. Gallo
testified that when production started around October 17
'3 Employee witness Wayne Moore testified that from his observation
prior to strike, there was enough coal left for 6 to 8 months of mining at
the Holly-Fort Scott pit.
1319
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or 18, they worked only one 8-hour shift. 14 After the
picketing ceased they went to a three-shift operation. As
indicated above, one striker returned to work on Octo-
ber 18, six offered to return on November 13, one on
November 14, one on November 22, one on November
29, and one on December 10. Only two of these were of-
fered reinstatement prior to March. No other striker of-
fered to return to work prior to January 11.
The new mine, called the Defiance Mine, opened
during the first week of January, mining Fort Scott coal.
Peacher admits that thereafter, the coal mined at Defi-
ance was the only Fort Scott coal being mined by Re-
spondent and that it was used to fulfill Respondent's con-
tractual obligations to supply customers with Fort Scott
coal which prior to the strike had been supplied from the
output of the Holly-Fort Scott pit at the Roger Mine.
No Fort Scott coal has been mined at Roger since the
commencement of the strike. The Defiance Mine is lo-
cated about 5 miles from the Holly-Fort Scott pit at the
Roger Mine's and the coal mined at Defiance is from
the same seam of coal as that at the Holly-Fort Scott.
Both Growitz and Gerald Ellis, business manager of
Local 627, admit that in early or mid-December 1978,
Growitz and Ellis had a conversation during which
Growitz informed him of Respondent's plan to open the
Defiance Mine. Ellis said their collective-bargaining
agreement required that a notice be posted at Porum
giving Porum employees an opportunity to transfer to
Defiance and that all new employees hired at Defiance
must be referred through the Local 627 hiring hall.
Growitz agreed to do so allegedly so as to conform with
the requirements of the collective-bargaining agreement
between Local 627 and Respondent at the Porum-Stigler
Mines which provide that Porum and Stigler are a single
mining operation and that Respondent recognize Local
627 as the collective-bargaining representative of all of
its production and maintenance employees in its mining
operations in the State of Oklahoma excluding the Roger
Mine.
Respondent did not notify 1UMW of the opening of the
Defiance Mine. Harvey Haynes, business representative
for UMW admits that he first heard in late November
1978 about the Defiance Mine being opened. The record
does not establish exactly what knowledge he acquired
or how he acquired it. Roger employees were not grant-
ed the opportunity to transfer to Defiance. However,
from December 5 through 12, 1978, Respondent posted a
notice at the Porum Mine notifying employees that it
was opening a new mine and that, in accordance with ar-
ticle XX of its current collective-bargaining agreement
with Local 627, employees at the Porum Mine may,
prior to December 18, request a transfer to the new
mining operation. The job openings listed were up to
four each dragline operators and oilers,' 6 one heavy-
14 It is not clear from the record as to the number of employees work-
ing at this time.
tsI ]his distance is by passenger vehicle. Heavy-duty equipment ex-
ceeding 10 tons has to travel by a different route which may be longer,
i6 Apparently this would be one each for each of three regular and
one relief shift.
equipment operator, one driller/shooter combination, one
driller, one welder/mechanic, and one utility.
Around the first or second week in Janua;y, the Man-
itowoc 4600 dragline was transferred from the Roger
Mine to the Defiance Mine. Prior thereto, the Man-
itowoc had been at the Roger Mine since October 1978,
but, during the remainder of the year, according to
Gallo, it was utilized at Roger only for 4 to 6 weeks.
The Page dragline was the one used constantly at Roger
during this period. A drill and a 992 front-end loader
was also transferred from Roger to Defiance and, on two
occasions, Roger loaned Defiance a bulldozer for a short
period of tirme. Gallo further testified that Roger and De-
fiance shared a motor grader or blade and also a water
truck.
Scraper operator Kenneth Shipley testified that they
also shared spare tires for the scrapers. Employee Wayne
Moore testified that Roger and Defiance have also
shared a broom, a welding truck, and a service truck.
The first three production and maintenance employees
at Defiance began working on January 8. They were all
new hires referred for employment at Defiance from the
Local 627 hiring hall. Jim Cooper was superintendent.
Ellis testified that on January 9 or 10 he approached
Cooper at the Defiance Mine site. The three employ-
ees-Vermon Barnes, Cullus Jones, and Billy Brashaw-
were with him. Ellis told Cooper Local 627 represented
the employees at Defiance Mine and he had the employ-
ees there with him to prove it. Growitz admits that Re-
spondent began implementing the Porum Local 627 col-
lective-bargaining agreement at the Defiance Mine from
the first day an employee commenced working at Defi-
ance, including checkoff of supplemental dues, requiring
all applicants for employment to be referred through the
Local 627 hiring hall, requiring employees to become
and remain members of Local 627 after their 30th day of
employment, and making contributions to various benefit
funds.
A fourth employee began work on January 14 and a
fifth commenced working on January 15. At least one
was a new hire referred by Local 627. Five additional
employees commenced working during the 2-week pay-
roll period ending February 23. At least four of them
were new hires referred by Local 627. Five more em-
ployees commenced working during the payroll period
ending March 9. All of them were new hires referred by
Local 627. During the ensuing month there was some
slight turnover but the employee complement remained
at 15 employees until the payroll period ending April 20
when 4 employees were hired increasing the employee
complement to 18. At least two of these four employees
were new hires referred by Local 627. Thereafter no
new employees were hired until July 31, when one em-
ployee was hired, another emp!oyee was hired on Sep-
tember 13 and one was hired on December 19. No other
employees were hired in 1979.
The record does not contain payroll records past the
payroll period ending May 18 so it is unclear whether
the employee complement thereafter prior to September
1320
CARBONEX COAL COMPANY
dropped below 18.17 However, it is clear from the list of
Defiance employees and their hire dates that, prior to
July 31, the total employee complement did not exceed
18. It is not clear from the record whether the two em-
ployees hired in July and September were replacing em-
ployees who had severed their employment or whether
their hire constituted an increase in the employee com-
plement. Growitz testified that as of mid-September the
employee complement at Defiance was between 15 and
20 employees.
The record does not directly indicate what employees
transferred from Porum to Defiance. Richard Growitz,
Respondent's executive vice president, testified in a pre-
vious proceeding that he thought three employees trans-
ferred from Porum to Defiance but that he could not
recollect their names. Peacher testified that three trans-
ferred but also gave no names. However, the record con-
tains a list of Defiance employees and their hire dates.
Only two of the employees on that list show an original
hire date prior to the commencement of their employ-
ment at Defiance, Rick Boyd and Tom Green. Boyd's
original hire date was in 1977. He commenced working
at Defiance on April 4. Tom Green, who began work at
Defiance on April II11, was originally hired at the Roger
Mine in 1977. He left his employment for some period of
time but began working again at the Roger Mine in Oc-
tober 1978 prior to the strike. He returned to work at
Roger the day after the picket line went up and worked
there throughout the period of the strike.
The record also contains a list of the employees re-
ferred by Local 627 to Defiance which indicates that
these were already members of Local 627 or shows the
date they began paying dues to Local 627. With three
exceptions, this information shows that all persons re-
ferred by Local 627 to Defiance were either already
members of Local 627 (13 employees), or began payment
of dues to Local 627 within the month following their
employment (7 employees). However, three Defiance
employees are not listed as having been referred by
Local 627. They are Boyd, who was mentioned above,
Carl Stubblefied, who began work at Defiance on Febru-
ary 9, and George Reece, who began work on January
14. Since neither of these three appear on the list of
Roger employees prior to the strike, it would seem that
Boyd, Stubblefield, and Reece are the three employees
mentioned by Growitz and Peacher who transferred to
Defiance and I so find. The record does not establish any
interchange of employees between Defiance and Porum,
or Defiance and Roger.
As set forth above, on April 18, UMW requested the
reopening of negotiations and also stated that it specifi-
cally wanted to address the issue of employees currently
employed at Defiance. In its May 2 letter to Respondent,
UMW repeated its request and claimed, on the basis of
its Roger certification, that it represented Defiance em-
ployees. On May 2, by letter, Respondent declined to
recognize UMW as the representative of the Defiance
employees on the grounds that all of its employees in its
17 An employee has been treated herein as part of the employee com-
plement even though he did not appear on the payroll for a particular
payroll period if he reappeared on the payroll in succeeding payroll
period. Salaried employees were not counted.
mining operations in Oklahoma, excluding those at
Roger, had been represented by Local 627 since 1976.
On May 18, the date it filed the original charge herein,
UMW filed a unit clarification petition in Case 16-UC-
98 seeking a ruling that the employees at the Defiance
mine constituted an accretion to the existing Roger Mine
unit. Subsequently on October 29., the Acting Regional
Director issued a Decision and Order in which he found
that the production and maintenance employees of the
Defiance Mine have a separate identity apart from those
at the Roger Mine and do not constitute an accretion to
the existing Roger unit. Accordingly, the unit clarifica-
tion petition therein was dismissed.
In May, Respondent and Local 627 began negotiations
for a new collective-bargaining agreement covering the
Porum and Defiance Mines. During the second negotia-
tion session, in May, Ellis showed Respondent authoriza-
tion cards from a majority of the employees at Defiance.
The negotiations culminated in an agreement and, on
June 1, Respondent and Local 627 executed a collective-
bargaining agreement covering the Porum and Defiance
employees which is effective by its terms from June 1,
1979, through May 31, 1981. As was true of the preced-
ing agreements between Respondent and Local 627, this
collective-bargaining agreement provides for Local 627
membership and maintenance thereof as a term and con-
dition of employment, dues checkoff,"' and that all ap-
plicants for employment be obtained, if available,
through the Local 627 hiring hall. If Local 627 is unable
to furnish qualified workmen within 48 hours, then Re-
spondent may hire from any available source.
In addition to Tom Green. another employee who had
worked at Roger prior to the strike was employed at De-
fiance. This was Leon Moore, who was hired on April 2.
Three other Roger employees applied for work at Defi-
ance and were told by the Defiance superintendent that
they would have to be referred by the Local 627 hiring
hall. They were A. C. Fowler, who applied in January,
Hooley Thompson, who applied around the last of Feb-
ruary or first of March, and John Lewis, who applied in
August.
According to Fowler when he telephoned Local 627
and asked if there were any chance of him going to
work at Defiance, he was told there was no chance but
that they would take his name and address and call him
if he were ever needed. He was never called. Tom
Greenl, who was on withdrawal from Local 627, went to
the Local 627 hiring hall several days after he talked to
the Roger superintendent. He was referred to Defiance
for employment. He paid his reinstatement fee but denies
that he was required to do so as a condition of referral.
He also signed a Local 627 authorization card.
The General Counsel and Charging Party contend that
Respondent's illegal motivation is shown by certain state-
ments made by its agents, some of which are established
by the testimony of James Smith, former superintendent
of Roger, in the prior unfair labor practice proceeding
regarding statements made by Growitz and Respondent's
18 In practice only supplemental dues are checked off
1321
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
president, Frank Podpechan.'9 Specifically, Smith credi-
tably testified that on May 12, 1978, Podpechan instruct-
ed him to inform the employees that Respondent would
not negotiate with UMW but that if the employees
wanted to form an independent union or join the Operat-
ing Engineers he would discuss it. Podpechan said if the
employees voted to be represented by UMW, Respond-
ent would be shut down and they would lose their jobs.
He also said he was moving the trucking operation in
order to rid Respondent of the troublemakers.
Smith further testified that around the end of May
1978, Podpechan discussed with him a mine plan where-
by Respondent would reduce the number of employees
at Roger Mine to 30, but would maintain the same level
of production. Podpechan also said that, if Smith had not
increased the employee complement, UMW would not
have commenced its organizational campaign, that UMW
wanted to organize Roger Mine because it was the
second largest mine in the area. Podpechan further said
he knew the identity of the troublemakers and wanted
them laid off, that, by cutting the employee complement
to 30 men, they could rid Respondent of the troublemak-
ers and UMW would not bother about organizing such a
small min- Podpechan said he wanted the layoff imple-
mented immediately. Smith said he thought the timing
was bad, that the employees would think and know it
was motivated by their union activities. Podpechan
agreed to wait for a period of time after the election
before implementing the layoff. Podpechan further said
he had toyed with the idea of making each pit a separate
mine so that each mine would have a limited number of
employees, that the mines would be separately organized
under different company names so as not to be a target
for union organization.
Smith also testified that he met with Growitz,
Peacher, and Barnes on May 11, 1978. During the course
of this meeting, Growitz said the truckdrivers and two of
the tipple operators were union organizers and trouble-
makers and that another corporation would be formed so
they would not be employees of Respondent. They also
discussed forming other companies that would own the
19 For reasons that are unclear, the General Counsel and Charging
Party initially chose not to rely on the findings and conclusions of the
Administrative Law Judge in the prior proceedings (248 NLRB 779) but
rather introduced Smith's testimony under Rule 804(bXI) of the Federal
Rules of Evidence. Thereafter when Podpechan and Peacher testified in
denial of Smith's assertion, Charging Party and General Counsel argued
that they were estopped from doing so because the issue had been litigat-
ed in the prior proceeding.
In essence, Podpechan testified that he did not make the statements re-
garding what he would do to avoid unionization. He admits that he said
he was against unionization because of the cost but contends he also said
that it was up to the employees. He further testified that his conversation
with Smith was essentially a discussion of a mine plan which dealt with
projected staffing of the mine. He also admits that he expressed a belief
that unions were not interested in small mines. I think the General Coun-
sel and Charging Party are in no position to rely on the doctrine of es-
toppel since notwithstanding that the Administrative Law Judge in the
prior proceeding credited Smith and that his findings were completely fa-
vorable to them, they chose to place the issue before me. However, the
estoppel issue is not decisive since, in any event, I would not credit Pod-
pechan's and Peacher's belated denials as to the making of such state-
ments. They both testified in the prior proceeding. They did not deny
Smith's testimony nor were they specifically questioned in that regard.
Considering the obvious critical import of Smith's testimony as to illegal
motivation, I cannot assume that this omission was merely inadvertence.
coal leases and equipment and do the hauling and load-
ing so that Respondent would own no assets.
UMW representative Harvey Haynes and employee
Pete Triplett testified that in September 1978 they had a
conversation with Growitz in the superintendent's office
at Roger. At some point Gallo and Weinecke were
present but then left. At a time when neither Weinecke
nor Gallo was present Growitz told Haynes he had
heard rumors that a strike would be called and asked if it
were true. Haynes denied knowledge of any such plans.
Growitz said if there was a strike, Respondent would
close the Roger Mine and transfer the men and equip-
ment to Porum. Growitz said that would be a hardship
on the employees who lived in the vicinity of the Roger
Mine. Growitz testified that he did have a conversation
with Haynes and Triplett that day but he does not recall
whether anything was said with regard to strike rumors.
He does not recall saying that if the employees went on
strike, production would be moved from Roger to
Porum.
Hooley Thompson testified that during mid-June
during a casual encounter with Podpechan away from
Respondent's facilities, he inquired as to the progress of
the mining and asked what Podpechan thought of the
union deal. Podpechan replied, "Oh, I'll just keep it in
court a couple of years and it will be throwed out, and
people move away, and everybody will forget about it,
and it will be over with." Thompson said he was not
going anywhere.
2. Conclusions
The complaint alleges that Respondent has violated
Section 8(a)(l), (3), and (5) of the Act by performing
work at its Defiance Mine which had previously been
performed by unit employees at the Roger Mine, without
notification to or bargaining with UMW; and has violat-
ed Section 8(a)(1), (2), and (3) of the Act by granting
recognition to Local 627 at the Defiance Mine and by
giving effect to a collective-bargaining agreement with
Local 627 as the exclusive collective-bargaining repre-
sentative of employees at the Defiance Mine notwith-
standing that at the time Respondent did not employ a
representative segment of its ultimate employee comple-
ment there.
Respondent argues that the opening of a new facility is
a decision lying at the core of entrepreneurial control
within the meaning of the Supreme Court's decision in
Fibreboard20 and thus Respondent had no obligation to
bargain as to this decision with UMW or any other
union. Further, Respondent argues, there could be no re-
fusal to bargain since UMW never requested bargaining
about the Company's decision either to open the Defi-
ance Mine or as to the possible effect of such opening on
employees of the Roger Mine. Respondent also argue
that the Defiance Mine was opened for sound business
reasons-principally the acquisition in mid-1978 of the
Payne-Kell reserves which had the most favorable strip
ratio of any reserves of over 100,000 tons available to
0o Fibreboard Paper Products Corporation v. NL.R.B., 379 U.S. 203
(1964).
1322
CARBONEX COAL COMPANY
Respondent, coupled with the shutoff of Respondent's
Fort Scott coal sources caused by the strike.
As to its recognition of Local 627, Respondent argues
that in industries such as, but not limited to, construc-
tion, where there is regular movement of worksites, the
considerations affecting union recognition are somewhat
different than in manufacturing industries where the
workplace and the work force typically remain more
constant. In such industries, the argument continues, it is
proper under the Act to have bargaining units which en-
compass present and future sites and, once majority
status has been obtained, it is not necessary to demon-
strate or even achieve majority status at each new work-
site in order to retain such bargaining rights.
Respondent cites numerous cases, mostly involving the
construction industry or the presumption of majority
status as affected by high turnover rates and numerous
jobsites, in support of this argument and quotes exten-
sively therefrom. However, I find that Respondent's reli-
ance on the cases involving presumption of majority
status is misplaced in the circumstances herein. As to the
construction industry cases, the construction industry
enjoys a unique statutory status by virtue of Section 8(f)
of the Act, which specifically provides that it shall not
be a unfair labor practice for an employer engaged pri-
marily in the building and construction industry to make
an agreement with a labor organization of which build-
ing and construction employees are members covering
employees engaged in said industry because the majority
status of such labor organization has not been established
prior to the making of such agreement.
Respondent seems to be arguing that strip mining is so
similar to the building and construction industry that the
same consideration as to establishment of majority should
apply. I disagree. Whatever might be the efficacy of this
argument in other circumstances, here respondent has
not established an essential similarity between the two in-
dustries. Here, Respondent sought only to establish on
the record that similar equipment and skills are required
in strip mining and road construction. In its brief, it
argues that the transitory nature of jobsites is similar.
However, no attempt was made to establish any similar-
ity between the two industries as to what was probably
the most essential factor, relevant herein, leading to this
special statutory consideration for the building and con-
struction industry-the instable nature of the work force
including the necessity of hiring most employees on a
single project basis which would often effectively de-
prive building and construction employees of an oppor-
tunity for representation, if required to adhere strictly to
the requirements of Section 9(a) of the Act. Here, I con-
clude that Respondent has not established that the nature
of its operation is such that would tend to deprive its
employees of an effective opportunity for representation
unless some variation of the normal rule is fashioned.
It is well established that recognition of a union prior
to the employment of a representative complement of
employees, absent accretion, violates Section 8(a)(2) of
the Act, regardless of the employer's good faith or the
absence of a question concerning representation. General
Cinema Corporation, 214 NLRB 1074 (1974). It is also
well established that a new facility cannot be represented
legally by a union simply because the union and the em-
ployer are parties to a collective-bargaining agreement
covering a prior existing unit which contains a clause
whereby the employer agrees to recognize the union at
all its facilities in a particular geographic area including
those acquired after the execution of the contract. These
clauses can be read only to require recognition upon
proof of majority status by the Union.2 ' Houston Division
of the Kroger Co., 219 NLRB 388 (1975).
Here, the record is clear that at the time Local 627 of-
fered its initial proof of majority Respondent had em-
ployed only three employees at Defiance. Based on the
notice posted at Porum as to positions to be filled at De-
fiance, a representative complement would be, minimal-
ly, seven which would presuppose a one-shift, 5- or 6-
day operation. However, record evidence indicates that
Respondent's normal mode of operation was a three-
shift, 7-day operation. In such an operation, the repre-
sentative complement would be, minimally, 13.
Furthermore, in hiring the initial three employees, Re-
spondent implemented at Defiance the hiring hall provi-
sion of the Local 627 hiring Porum agreement and se-
cured these three employees through the Local 627
hiring hall. Thus, by giving effect to this agreement, Re-
spondent actually recognized Local 627 prior to the
hiring of any employees. Accordingly, I find that by
granting recognition, and giving effect to a collective-
bargaining agreement covering wages, hours, and other
conditions of employment with Local 627 as the exclu-
sive collective-bargaining representative of employees at
its Defiance Mine prior to the hiring of any employees at
said mine, Respondent violated Section 8(a)(1) and (2) of
the Act.
I further find that by giving effect to the union-secu-
rity and hiring hall provisions of said collective-bargain-
ing agreement, including referring employee applicants
to Local 627's hiring hall prior to their employment at
the Defiance Mine and refusing to employ any applicants
at the Defiance Mine who had not been referred by
Local 627, Respondent has violated Section 8(aX1), (2),
and (3) of the Act. General Cinema Corporation, supra;
The Wackenhut Corporation, 226 NLRB 1085 (1976).
I also find that the General Counsel has failed to estab-
lish, as alleged in subparagraph 16(c) of the complaint,
that Respondent required employee applicants to acquire
membership in Local 627 prior to employment at the
Defiance Mine.
As to the allegation that Respondent violated Section
8(a)(1), (3), and (5) when, without notification to or bar-
gaining with UMW, it commenced performing work at
the Defiance Mine which had previously been performed
by unit employees at its Roger Mine, Respondent admits
that upon the opening of the Defiance Mine, it com-
menced supplying coal for its Fort Scott coal contracts
from Defiance Mine production which contracts had
21 Apart from the status allegedly derived from the after-acquired
clause, Respondent does not contend, nor does the record establish, that
Defiance Is an accretion to the Porum Mine. See Melber Jewelry Cao. Inc..
and .D.S.-Orchard Park. Inc.. 180 NLRB 107 (1969); Rollins-Purle, Inc,
194 NLRB 709 (1971); The Wackenhut Corporation, 226 NLRB 1085
(1976); Arco Electronics, Inc. and Precision Film Capacitors Inc., 241
NLRB 256 (1979).
1323
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been previously filled with coal produced at Roger
Mine. Respondent further admits that the date of the De-
fiance Mine opening was accelerated by the strike at the
Roger Mine.
It is well established that the acceleration of a decision
to transfer unit work in order to avoid recognition of,
and/or bargaining with, the collective-bargaining repre-
sentative of the unit employees is violative of Section
8(a)(3) of the Act even where the initial decision to
effect the transfer is based on legitimate economic con-
siderations. Bridgeford Distributing Co., 229 NLRB 678
(1977). Charging Party argues that but for the strike and
UMW's status as statutory representative, the Payne-Kell
reserves would have been mined as part of the Roger
Mine. I find that assertion to be speculative and unsup-
ported by the record. However, as noted above, the ac-
celeration of the commencement of the mining of the
Porum-Kell reserves was admittedly motivated by the
strike. Respondent argues that this was strictly an eco-
nomic decision, that it had to fulfill its contracts for Fort
Scott coal and the strike prohibited it from doing so
from the production at Roger Mine. Consequently, it
was an economic necessity for it to commence mining
the Payne-Kell reserve and thus its conduct was not vio-
lative of the Act.
I find no merit in this asserted defense. Whatever the
appeal of this argument might be if Respondent's con-
duct was untainted by its unfair labor practices, the fact
is that the strike, which Respondent now offers as a de-
fense, was caused and prolonged by Respondent's illegal
conduct in discriminatorily laying off, and refusing to re-
instate employees, engaging in surface bargaining with
UMW and subcontracting certain of its operations be-
cause of its employees' union activity.22
Furthermore, hiring new employees through the Local
627 hiring hall in the face of outstanding applications for
reinstatement from Roger strikers and according to
Porum employees the opportunity to transfer to Defi-
ance while at the same time refusing to accord Roger
employees the same opportunity establishes unlawful dis-
crimination against Roger employees and in favor of
Porum employees and others represented by Local 627
based entirely upon the identity of their collective-bar-
gaining representative. Bridgeford Distributing Co., supra;
Rushton & Mercier Woodworking Co., Inc., 208 NLRB
123 (1973); Fraser & Johnston Company, 189 NLRB 142
(1971). Specific proof of intent is unnecessary since Re-
spondent's conduct inherently tends to discourage mem-
bership in UMW and is thus clearly inherently destruc-
tive of the Section 7 rights of its employees. 2s The Radio
Officers' Union of the Commercial Telegraphers Union,
AFL [A. H. Bull Steamship Company] v. N.LR.B., 347
U.S. 17 (1954); N.L.R.B. v. Great Dane Trailers, Inc., 388
U.S. 26 (1967); Ruston & Mercier Woodworking Co.,
supra; Bridgeford Distributing Co., supra. Accordingly, I
find that Respondent violated Section 8(a)(l) and (3) by
accelerating the date of the opening of the Defiance
Mine and the concomitant discrimination against Roger
22 Carbonex Coal Company. 248 NLRB 779 (1980).
s2 In view of this finding, it is unnecessary to reach the issue of specif-
ic antiunion motivation as asserted by General Counsel and Charging
Party.
employees by refusing to accord them the opportunity to
work at Defiance.
The complaint also alleges that this conduct violated
Section 8(a)(5) of the Act. Respondent admits that it did
not notify, or bargain with, UMW as to the opening of
the Defiance Mine. However, it contends that UMW
never requested bargaining, thus there could be no refus-
al to bargain. I find no merit in this argument. Although
UMW did acquire actual knowledge of some type in No-
vember 1978 of the opening of a new mine and made no
request to bargain prior to the opening of the mine, I
find that such a request would have been futile.
When UMW finally requested bargaining several
months thereafter, Respondent responded that it was
committed by its contract with Local 627 to recognize
Local 627 as the exclusive bargaining representative of
its employees at Defiance. A further indication of the fu-
tility of a request to bargain is Respondent's prehire rec-
ognition of Local 627 based on said contract and its re-
fusal to offer jobs at Defiance to the Roger strikers who
had applied for reinstatement and to the laid-off Roger
employees. In these circumstances a request to bargain is
not a prerequisite to a finding of a refusal to bargain.
As set forth above, admittedly the commencement of
mining at Defiance, with the concomitant supplying of
Fort Scott coal from Defiance to customers who had
previously been supplied with coal from the Holley-Fort
Scott pit at Roger Mine, resulted in the failure, after the
strike, to resume mining at the Holley-Fort Scott pit.
This constituted an effective transfer of unit work. It is
well settled that under the Act Respondent has an obli-
gation to give prior notification to its employees' statu-
tory representative and to afford it an opportunity to
bargain with respect to such a transfer of unit work and
its effect on unit employees. Fiberboard Paper Products
Corporation, 138 NLRB 550 (1962), enfd. 379 U.S. 203
(1964); Cooper Thermometer Company, 160 NLRB 1902
(1966), enfd. in pertinent part 376 F.2d 684 (2d Cir.
1967); Fraser & Johnston Company, supra; Helrose Bind-
ery, Inc. and Graphics Arts Finishing, Inc., 204 NLRB 499
(1973). This Respondent failed to do. Accordingly, I find
that Respondent thereby violated Section 8(a)(1) and (5)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent 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.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent violated Section
8(a)(l), (3), and (5) by its transfer of work from the
1324
CARBONEX COAL COMPANY
Roger Mine to the Defiance Mine without notification
to, and bargaining with. UMW and that it also violated
the Act by refusing to accord Roger employees the op-
portunity to work at Defiance, I must consider the Gen-
eral Counsel's and Respondent's contention that such
conduct requires that Respondent be ordered to recog-
nize UMW as the exclusive collective-bargaining repre-
sentative of the employees in the appropriate unit at the
Defiance Mine.
The Board has held that when an employer fails to
bargain with the Union concerning the conditions for
permitting the employees at the old location to transfer
to the new, it is reasonable to infer that a majority of the
employees would have transferred but for the employer's
violation of Section 8(a)(5), and that the Union is entitled
to retain its status as majority representative at the new
location. Fraser & Johnston Company, supra; HeIrose
Bindery, Inc., 204 NLRB 499 (1973); Allied Mills, Inc.,
218 NLRB 281 (1975). Here it is particularly likely that a
sufficient number would have transferred. Thus, as noted
above, a representative complement of employees at the
initial point when it would have been appropriate to es-
tablish majority status was 13. Thereafter, the employee
complement at Defiance was never more than 15 to 20.
Even though given an opportunity to transfer, only
three Porum employees in fact transferred, something
which can perhaps be explained by the fact that Porum
is 80 or 90 miles from Defiance. On the other hand, the
Roger Mine is only about 4 miles from the Defiance
Mine. Also, at the time the Defiance Mine commenced
operations in early January. there were outstanding ap-
plications for reinstatement dating from mid-November
1978 from I strikers. Within a week or 10 days after op-
erations commenced at Defiance at a time when Re-
spondent had hired only three to five employees at Defi-
ance, an additional three employees applied for reinstate-
ment. One of these strikers specifically sought employ-
ment at Defiance and was told he would have to be re-
ferred from the Local 627 hiring hall.
In addition, a number of Roger employees were on
layoff, 13 of whom had specifically requested reinstate-
ment in September and October 1978. Nine of them
made more than one request and two specifically re-
quested employment at Defiance with the same result as
with the one striker mentioned above. In these circum-
stances, the probability is extremely high that a sufficient
number of Roger employees, given the opportunity,
would have transferred to Defiance to comprise a major-
ity of the employee complement there. Furthermore,
even though it is impossible to know with certitude that
a sufficient number of Roger employees would have
transferred, the uncertainty arises from Respondent's il-
legal conduct and thus must be resolved against Re-
spondent.
Accordingly, I shall recommend that Respondent,
upon request, bargain collectively with UMW concern-
ing the effects upon the Roger employees of the transfer
of work from Roger to Defiance, particularly with re-
spect to the transfer of such employees. I shall also rec-
ommend that Respondent recognize and bargain collec-
tively with UMW as the exclusive bargaining representa-
tive of the employees in the appropriate unit at the Defi-
ance Mine unless the parties mutually agree to do other-
wise.
Having found that Respondent discriminatorily hired
at its Defiance Mine new employees through the Local
627 hiring hall and transferred Porum Mine new employ-
ees represented by Local 627 to Defiance without recall-
ing Roger strikers who had made application to return to
work and laid-off Roger employees because of the identi-
ty of their collective-bargaining representative, I shall
recommend that, to the extent it has not already offered
them jobs at Defiance, Respondent offer to as many of
said Roger strikers and laid-off employees immediate re-
instatement at, or transfer to, the Defiance Mine to their
former or substantially equivalent positions, without prej-
udice to their seniority or other rights and privileges, as
are presently required at Defiance Mine discharging, if
necessary, present Defiance Mine employees not in that
group of strikers and laid-off employees.
Since I have also found that Respondent discriminator-
ily hired new employees at the Roger Mine rather than
reinstating strikers, I shall recommend that, to the extent
it has not already done so, it offer said striker-discrimina-
tees reinstatement to their former or substantially equiva-
lent positions at the Roger Mine without prejudice to
their seniority or other rights and privileges, discharging,
if necessary, any replacements hired after the commence-
ment of the strike. I shall further recommend that all em-
ployees entitled to reinstatement at either the Roger
Mine or the Defiance Mine, as described above, for
whom Respondent has no immediate position available at
either the Roger Mine or the Defiance Mine be placed
on a preferential hiring list for reemployment at either
the Roger Mine or the Defiance Mine as positions for
which they are qualified become available.
To the extent that positions are available at both the
Roger Mine and the Defiance Mine at the time any em-
ployees are offered immediate reinstatement, said em-
ployees individually shall be given the option of choos-
ing the mine at which they desire reinstatement. In the
event any employees reinstated at the Roger Mine with-
out the option of choosing the mine at which they desire
reinstatement express a desire to transfer to the Defiance
Mine such empioyees shall be placed on a Defiance Mine
preferential hiring list and as positions become available
at the Defiance Mine for which they are qualified, Re-
spondent shall offer such position to them in the order of
the priority to which they are entitled as determined in
the compliance stage of this proceeding or by bargaining
with UMW, before new employees are hired.
Since the record is insufficient in this regard, it shall
be left to the compliance stage of this proceeding to de-
termine (1) whether the offers of reinstatement to jobs at
the Roger Mine made to strikers were valid; (2) which of
said strikers and laid-off employees already have re-
ceived valid offers of employment at Defiance; (3) which
employees shall be offered immediate reinstatement to
which mine and which of such employees shall be per-
mitted the option of choosing the mine to which they
desire reinstatement; and (4) which employees shall be
placed on a preferential hiring list and their order of pri-
ority thereon.
1325
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As to backpay, Respondent shall be required to make
whole each of said employees for any loss of earnings
they may have suffered as a result of the discrimination
against them by payment to them of a sum of money
equal to the amount which each of them normally would
have earned from the date of the discriminatory failure
to recall them, to the date of Respondent's offer of rein-
statement, less the net earnings of each during such
period, with interest thereon to be computed in the
manner set forth in F W. Woolworth Company, 90 NLRB
289 (1950), and Florida Steel Corporation, 231 NLRB 651
(1977).24
Having found that Respondent violated Section
8(aXl), (3), and (5) of the Act by unlawfully recognizing
Local 627 as the exclusive collective-bargaining repre-
sentative of its employees at the Defiance Mine, I shall
recommend that Respondent withdraw such recognition
from Local 627 both until it has complied with the bar-
gaining order described above, and unless and until
Local 627 has been certified by the Board as the exclu-
sive bargaining representative of its production and
maintenance employees at the Defiance Mine in the ap-
propriate unit.
I shall also recommend that Respondent cease apply-
ing the provisions of the Local 627 Porum-Stigler-Defi-
ance contract or any extension, renewal, or modification
thereof insofar as it applies to employees at the Defiance
Mine, provided, however, that nothing herein shall re-
quire Respondent to vary or abandon any wages, hours,
or other substantive features of its relations with its em-
ployees at the Defiance Mine which Respondent has es-
tablished in the performance of said contract or the pre-
ceding contract, or to prejudice the assertion by employ-
ees of any rights they may have thereunder.
Having found that Respondent unlawfully applied, and
enforced, as to Defiance Mine employees, the union-se-
curity and checkoff provisions of said contract and the
preceding Porum-Stigler Local 627 contract, I shall fur-
ther recommend that Respondent be required to reim-
burse the present and former Defiance Mine employees
for all initiation fees, reinstatement fees, dues, or other
moneys paid or checked off pursuant to said unlawful
union-security agreement with interest thereon to be
computed as prescribed in Florida Steel Corporation,
supra. Reimbursement, however, will not extend to any
such employees who may have voluntarily joined and
been active members (not on withdrawal) of Local 627
prior to their employment by Respondent at the Defi-
ance Mine.
Upon the foregoing findings of fact and the entire
record, I hereby make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. United Mine Workers of America and International
Union of Operating Engineers, Local 627, AFL-CIO,
each is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
a4 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
3. All production and maintenance employees, includ-
ing truckdrivers, employed by Respondent at its Roger
Mine and its Defiance Mine near Chelsea, Oklahoma, ex-
cluding all other employees, coal processing arid loading
employees, office clerical employees, guards and supervi-
sors, as defined in the Act, constitute an appropriate unit
for the purpose of collective bargaining within the mean-
ing of Section 9(b) of the Act.
4. By refusing to notify, and bargain with, the UMW
as to its intentions to cease mining Fort Scott coal at the
Roger Mine and to commence mining Fort Scott coal at
a new mine, called the Defiance Mine; and as to the
effect of such a transfer of unit work on the employees
in the appropriate unit at the Roger Mine particularly
their right to transfer to the Defiance Mine, Respondent
has violated Section 8(a)(5) and (1) of the Act.
5. By unilaterally, without notification or consultation
with the UMW, engaging in direct bargaining covering
shift schedules with certain unit employees at its Roger
Mine in derogation of the bargaining rights of UMW and
subsequently implementing the change in shift schedule
as agreed to with said employees, and by unilaterally,
without notification to or bargaining with UMW, grant-
ing a wage increase to unit employees at the Roger
Mine, Respondent has violated Section 8(a)(5) and (1) of
the Act.
6. By discriminatorily hiring new employees at the
Roger Mine at a time when there were outstanding ap-
plications for reinstatement from strikers, Respondent has
violated Section 8(a)(3) and (1) of the Act.
7. By discriminatorily accelerating the date of the
opening of the Defiance Mine and the concomitant trans-
fer of work from Roger Mine to Defiance Mine and by
discriminatorily transferring employees from its Porum
Mine and hiring new employees through the Local 627
hiring hall without recalling strikers who had applied for
reinstatement and laid-off unit employees, Respondent
has violated Section 8(a)(3) and (1) of the Act.
8. By prematurely recognizing Local 627 as the exclu-
sive bargaining representative of all production and
maintenance employees at its Defiance Mine at a time
when no employees had been hired; by unlawfully ex-
tending to said employees its contract with Local 627,
containing union-security, checkoff, and hiring hall pro-
visions, in effect at its Porum Mine; and by subsequently
executing and maintaining a collective-bargaining agree-
ment with Local 627 containing union-security, checkoff,
and hiring hall provisions; by referring employee appli-
cants to the Local 627 hiring hall prior to employing
them at the Defiance Mine and refusing to employ any
applicant at the Defiance Mine who had not been re-
ferred by Local 627, Respondent has violated Section
8(a)(3), (2), and (1) of the Act.
9. The record does not establish that Respondent has
required employee applicants to acquire membership in
Local 627 prior to employment at the Defiance Mine, as
alleged in subparagraph 16(c) of the complaint.
Upon the foregoing finding of facts, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
1326
CARBONEX COAL COMPANY
ORDER 2 5
The Respondent, Carbonex Coal Company, Chelsea,
Oklahoma, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Recognizing International Union of Operating En-
gineers, Local 627, AFL-CIO, as the exclusive bargain-
ing representative of any of its employees in the appro-
priate bargaining unit described below for the purpose of
dealing with Respondent concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or
other terms and conditions of employment, both until it
has complied with the provisions of this Order requiring
it to bargain with the United Mine Workers of America
and, thereafter, unless and until Local 627 shall have
been certified by the Board as representative of any such
employees.
(b) Giving any force or effect to the collective-bar-
gaining agreement adopted and executed on about June
1, 1979, covering Respondent's employees at the Defi-
ance Mine in the appropriate unit described below, or to
any modification, extension, or renewal of such agree-
ment, provided, however, that nothing herein shall re-
quire Respondent to vary or abandon any wage, hour,
seniority, or other substantive feature of its relations with
such employees under these agreements, or prejudice the
assertion by these employees of any right that they may
have thereunder.
(c) Encouraging membership in Local 627, or any
other labor organization, or discouraging membership in
United Mine Workers of America, or any other labor or-
ganization, by applying, maintaining, or enforcing an in-
valid collective-bargaining agreement containing union-
security, checkoff, and hiring hall provisions, or by dis-
criminating in any like or related manner in regard to the
hire or tenure of employment or any other term or con-
dition of employment.
(d) Refusing to bargain collectively with United Mine
Workers of America concerning the transfer of employ-
ees, and other effects upon the employees, resulting from
the transfer of unit work from the Roger Mine to the
Defiance Mine and refusing to bargain collectively with
respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment, with United
Mine Workers of America as the exclusive representative
of its employees in the following appropriate unit:
All production and maintenance employees, in-
cluding truckdrivers, employed by Respondent at
its Roger Mine and its Defiance Mine, near Chelsea,
Oklahoma, excluding all other employees, coal
processing and loading employees, office clerical
employees, guards and supervisors, as defined in the
Act.
25 In the event no exception, 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
(e) Unilaterally changing the terms and conditions of
the employment of its represented employees without
bargaining with their exclusive collective-bargaining rep-
resentative.
(f) Engaging in direct bargaining with its represented
employees in derogation of the bargaining rights of their
exclusive collective-bargaining representative.
(g) Discriminating with regard to employees' hire or
tenure of employment or any other term and condition
of employment, against its employees represented by
United Mine Workers of America and in favor of em-
ployees represented, or referred by Local 627 based
upon the identity of their collective-bargaining repre-
sentative.
(h) Transferring work out of the above-described unit,
or accelerating a decision to make such transfer, because
of the union activities or sympathies of employees in said
unit.
(i) Referring employee applicants to the Local 627
hiring hall prior to employing them at the Defiance Mine
or refusing to employ any applicant at the Defiance
Mine who has not been referred by Local 627.
(j) Hiring new employees into a bargaining unit at a
time when there are outstanding applications for rein-
statement from striking employees in said unit.
(k) In any other manner interfering with, restraining,
or coercing its employees in the exercise of the rights
guaranteed to them by Section 7 of the Act. 26
2. Take the following affirmative action which is
deemed to be necessary to effectuate the policies of the
Act:
(a) Withdraw and withhold all recognition from Inter-
national Union of Operating Engineers, Local 627,
AFL-CIO, as the collective-bargaining representative of
any of the employees in the appropriate unit described
above, both until Respondent has complied with the pro-
visions of this Order requiring it to bargain with the
United Mine Workers of America, and, thereafter, unless
and until the Board shall have certified Local 627 as
such representative.
(b) Reimburse each of its present and former employ-
ees, excepting those employees who were active mem-
bers of Local 627 prior to their employment at the Defi-
ance Mine, for all initiation fees, reinstatement fees, dues,
and other moneys paid or checked off pursuant to said
unlawful union-security contract, with interest.
(c) Upon request, bargain collectively with United
Mine Workers of America concerning the transfer of em-
ployees, and other effects upon the employees, resulting
from the transfer of unit work from the Roger Mine to
the Defiance Mine.
(d) Bargain in good faith with the United Mine Work-
ers of America, as the exclusive representative of Defi-
ance Mine employees as part of the above-described ap-
propriate unit, and embody in a signed agreement any
understanding reached.
(e) To the extent it has not already done so, offer to
Roger Mine strikers and laid-off enmployces reinstatement
at, or transfer to, the Defiance Mine to their former or
26 Respondent's prior Inre!n,:ied unfair labor practice and the nature
and extent of those found h'rein make a broad order appropriate
1327
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
substantially equivalent position, without prejudice to
their seniority or other rights and privileges in such num-
bers as Defiance Mine now needs, discharging, if neces-
sary, present Defiance Mine employees not in that group
of strikers and laid-off employees.
(f) To the extent it has not already done so, offer to
Roger strikers, who were discriminatorily denied rein-
statement at Roger Mine, reinstatement to their former
or substantially equivalent positions at the Roger Mine,
without prejudice to their seniority or other rights and
privileges discharging, if necessary, any replacement
hired after the commencement of the strike.
(g) Place all Roger strikers and laid-off employees for
whom Respondent has no immediate position available at
either the Roger Mine or the Defiance Mine on a prefer-
ential hiring list for reinstatement at either the Roger
Mine or the Defiance Mine and offer them immediate
and full reinstatement on the same conditions as above as
vacancies occur in the manner set forth in, section of this
Decision entitled "The Remedy."
(h) Make whole each of the above-described strikers
and laid-off employees for any loss of earnings they may
have suffered as a result of the discrimination against
them, plus interest.
(i) Post at its Roger Mine and Defiance Mine near
Chelsea, Oklahoma, copies of the attached notice marked
"Appendix." 27 Copies of said notice, to be furnished by
the Regional Director for Region 16 of the Board, shall
be duly signed and posted immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that said notices are not altered, defaced, or covered by
any other material.
(j) Mail copies of said notice to all Roger Mine em-
ployees on strike, including those who had made out-
standing applications to return to work or layoff status at
the time of the opening of the Defiance Mine who are
not presently employed at the Roger Mine or the Defi-
ance Mine.
(k) Notify the Regional Director for Region 16, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
:2 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
1328