Collins Mining Co.

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 221 (N.L.R.B. 1969)

COLLINS MINING COMPANY
C. E. Collins and O . C. Collins, d/b/a Collins
Mining Company and United Mine Workers of
America , District No. 6. Cases 9-CA-4126-1, -2,
9-CA-4318-1,-2, and 9-RC-7089
June 30, 1969
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND ZAGORIA
On November 29, 1968, Trial Examiner David S.
Davidson issued his Decision' in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. The Trial Examiner also found
that the Respondent had not engaged in other unfair
labor practices alleged in the complaint and
recommended dismissal of those allegations. He
further found that certain of the Union's objections
to the election in Case 9-RC-7089 should be
sustained, and recommended that the election be set
aside. Thereafter, the Respondent filed a Motion for
Disclosure and exceptions to the Trial Examiner's
Decision and a supporting brief.' The Charging
Party filed a brief in opposition to Respondent's
Motion for Disclosure and an answering brief to
Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in these cases, and hereby adopts
the findings, conclusions,' and recommendations of
the Trial Examiner,' only to the extent consistent
herewith.
.The Trial Examiner issued an errata on December 4 , 1968, correcting
typographical errors in his Decision.
'The Respondent 's request for oral argument is hereby denied , as in our
opinion , the record , including the exceptions and briefs , adequately
presents the issues and positions of the parties.
'The Respondent has excepted to the Trial Examiner 's credibility
resolutions, but we are not persuaded that a clear preponderance of all the
relevant evidence is contrary to the Trial Examiner's credibility findings
Standard Dry Wall Products , Inc., 91 NLRB 544, enfd 188 F.2d 362
(C.A 3).
'Subsequent to the issuance of the Trial Examiner's Decision, the
Respondent filed a motion for disclosure . We have examined the
arguments in support of the motion and find that the motion lacks merit.
The record clearly shows the Trial Examiner , in all respects , conformed to
Section 102 . 118 of the Board ' s Rules and Regulations , Series 8, as
amended , which is patterned after the Jencks Act , 18 U S.C. 3500.
Accordingly, the motion is denied . See N L. R.B. v. Clement Brothers Co.,
407 F.2d 1027 (C.A. 5).
221
1. We agree with the Trial Examiner, for the
reasons stated in his Decision, that Respondent
violated Section 8(a)(1) and (3) of the Act.'
2. For the reasons detailed hereafter, we do not
agree with the Trial Examiner's further finding that
the Respondent refused to bargain in violation of
Section 8(a)(5) of the Act nor with his
recommendation that a bargaining order is
warranted here.
The record discloses that at the beginning of the
Union's organizing campaign, the Union sent
identical letters with an enclosed authorization card
to as many employees whose names and addresses it
could obtain from employee contacts. The letters,
after informing the employees of the organizing
attempt, contained, along with campaign statements,
the following:
If you are interested, will you please sign and
return the enclosed card in the self-addressed
stamped envelope provided for this purpose.
Signing this card will not obligate you in any way,
and no one will see these cards except the
undersigned and the organizer in charge of your
area. Our only reason for securing the cards are
because the law requires proof that at least 30
percent of the employees at a given mine want the
Union before they will conduct a secret election.
NO REPRESENTATIVE OF THE COMPANY
IS PERMITTED TO SEE THESE CARDS AT
ANY TIME. [Emphasis supplied.]
The enclosed authorization cards were not so
limited but contained language designating the
Union as bargaining representative. The record
establishes that at least 25 cards of the 67 received
were mailed back to the Union." Although the Trial
Examiner did not have the benefit of our decision in
Silver Fleet, Inc., 174 NLRB No. 141, which issued
subsequent to his Decision, he concluded that
because of the representations used in securing the
cards, the mailed cards could not be counted as
valid designations of a bargaining representative
under the principles set forth in Levi Straus and
Co., 172 NLRB No. 57, and McEwen
Manufacturing Co., 172 NLRB No. 99. He
thereafter concluded, however, that the Union did
represent a majority of employees because in
addition to signing authorization cards, a substantial
majority of Respondent's employees joined in a
strike called after a union-sponsored meeting at
which it was decided to strike in protest of alleged
discriminatory discharges and layoffs.
In essence, the Trial Examiner has found that
while the initial solicitation and delivery of the
authorization cards was for a conditional purpose,
namely an election, the substantial employee support
'Absent exceptions thereto, we adopt , pro forma, the Trial Examiner's
dismissal of certain alleged 8(a)(l) and (3) violations.
`The Trial Examiner found there were 86 employees in the appropriate
unit at the time of the demand and that 63 of those in the unit had signed
cards Four employees who had signed cards are not within the appropriate
unit Accordingly, their cards are not counted
177 NLRB No. 55
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the subsequent strike indicated that a majority
of the employees wanted the Union to represent
them for bargaining. Accordingly, the Trial
Examiner recommended , inter alia , the setting aside
of the election and an order requiring the
Respondent to bargain with the Union.
Although we agree with the Trial Examiner's
initial conclusion that the authorization cards
received in the mail were solicited for a conditional
purpose and are unreliable for the purpose of
establishing majority,' we find, contrary to the Trial
Examiner, that in the circumstances related,
employee support for the strike is insufficient to
either validate the previously executed authorization
cards or to establish that a majority of employees
designated the Union as its bargaining
representative. It is significant, and the record
shows, that the strike was not called for the purpose
of recognition, but was called in protest against the
unfair labor practices which preceded it.
Respondent's refusal to recognize did not occur until
sometime after the strike was called. Moreover,
despite Respondent's unfair labor practices which
preceded the strike, the Union did not allege an
unlawful refusal to bargain in its initial charges filed
at the commencement of the strike, and accepted a
settlement almost 2 months later which
contemplated an election . In these circumstances we
do not feel it has been established that a majority of
the employees wanted the Union to represent them.
Accordingly, we shall dismiss those portions of the
complaint alleging a violation of Section 8(a)(5). In
these circumstances, we do not deem it appropriate
to base a bargaining order on the unfair labor
practices found to have occurred, and therefore do
not adopt that part of the Trial Examiner's Decision
which recommends that Respondent be ordered to
bargain with the Union.
However, we conclude, in agreement with the
Trial Examiner, that the Petitioner's objections to
the election in Case 9-RC-7089 have merit. Since
the challenges are sufficient to affect the results of
the election, we will direct that they be opened and
counted,' and should the Petitioner receive a
majority of the votes thus tallied, we shall direct the
Regional Director to certify it as the bargaining
representative of the employees in the appropriate
unit. However, if the Petitioner fails to receive a
majority of the votes cast, including the challenged
ballots, we shall direct that the election be set aside
and a second election be conducted.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, as
modified herein , and orders that the Respondent, C.
E. Collins and O. C. Collins, d/b/a Collins Mining
Company, Hanging Rock, Ohio, its officers, agents,
successors , and assigns , shall take the action set
forth in the Trial Examiner's Recommended Order,
as so modified:
1. Delete paragraph 1(i) of the Trial Examiner's
Recommended Order.
2. Delete paragraph 2(e) of the Trial Examiner's
Recommended Order and renumber the subsequent
paragraphs consecutively.
3. Delete the last two indented paragraphs
(including the unit description) from the Appendix
attached to the Trial Examiner' s Decision.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed insofar as it alleges unfair labor
practices not specifically found herein.
IT IS HEREBY DIRECTED that the Regional Director
for Region 9 shall, pursuant to the Board's Rules! and
Regulations , within 10 days from the date of this
Direction, open and count the ballots of John
DeLong, Curtis Leffingwell, James Bradshaw, Otis
Martin , Lee Middleton, James Edward Jenkins, and
Charles Wall and, thereafter, prepare and cause to
be served upon the parties a revised tally of ballots,
including therein the count of said challenged
ballots; and
IT IS HEREBY FURTHER DIRECTED that if the results
according to the revised tally indicate that the
Petitioner has received a majority of total votes
cast, including the above-named challenged ballots,
the Regional Director shall certify the Petitioner as
the exclusive representative for collective-bargaining
purposes of the employees in the appropriate unit.
However, if the revised tally of ballots shows that
the Petitioner has not received a majority of the
total ballots as provided above, then it is ordered
that the election held on June 13, 1967, be set aside,
and that Case 9-RC-7089 be severed and remanded
to the Regional Director for Region 9 for the
purpose of conducting a new election among the
employees in the unit found appropriate, at such
time as the Regional Director deems that the
circumstances permit the free choice of a bargaining
representative . In the event that a second election is
necessary , the following shall apply:
[Direction of Second Election' omitted from
publication.]
'Silver Fleet, Inc. 174 NLRB No. 141, Levi Strauss & Co, 172 NLRB
No. 57, and 175 NLRB No 57; Cumberland Shoe Corporation, 144
NLRB 1268, enfd . 351 F 2d 917 (C. A. 6). In agreeing that the cards here
are unreliable, Member Jenkins relies on the fact that the cards were
solicited with the representation that it was "only" for purposes of an
election and does not rely on the majority viewpoint set forth in Silver
Fleet, Inc, supra
'We hereby affirm the Trial Examiner 's resolutions of challenged ballots
'In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them . Excelsior
Underwear Inc, 156 NLRB 1236; N L.R.B. v Wyman-Gordon Company.
394 U .S 759. Accordingly, it is hereby directed that an election
eligibility list, containing the names and addresses of all the eligible voters,
must be filed by the Employer with the Regional Director for Region 9
COLLINS MINING COMPANY 223
within 7 days after the date of issuance of the Notice of Second Election
by the Regional Director . The Regional Director shall make the list
available to all parties to the election No extension of time to file this list
shall be granted by the Regional Director except in extraordinary
circumstances Failure to comply with this requirement shall be grounds
for setting aside the election whenever proper objections are filed.
TRIAL EXAMINER ' S DECISION
STATEMENT OF THE CASE
DAVID S . DAVIDSON , Trial Examiner : On December 7,
1966, United Mine Workers of America , District 6,
hereinafter referred to as the Union , filed the original
charge in Case 9-CA-4126, ' alleging that Respondent had
violated Section 8(a)(1) and (3) of the National Labor
Relations Act, as amended , by discriminatorily
discharging Robert Johnson and Curtis Leffingwell on
December l and 2, 1966, respectively , and by other acts
and conduct . On December 19, 1966, the Union filed
amended charges , 9-CA-4126-1 and 9-CA-4126-2 , alleging
in addition that Respondent discriminatorily discharged
James Bradshaw on December 8, 1966, and
discriminatorily discharged Ray Bowman , John DeLong,
and Clyde Matthews on December 14, 1966.
On December 19, 1966 , the Union filed the petition in
Case 9- RC-7089 seeking an election among Respondent's
coal mining and distribution employees.
On February 6, 1967, the Acting Regional Director for
Region 9 approved a settlement agreement disposing of
the charges in Cases 9 -CA-4126- 1, -2 without issuance of a
complaint , contingent upon compliance with its terms and
provisions as set forth in more detail below.
After hearings held during April 1967, on May 15,
1967, the Regional Director for Region 9 issued his
Decision and Direction of Election in Case 9-RC-7089
pursuant to which an election was held among
Respondent' s coal mining and distribution employees on
June 13 , 1967. The tally of ballots showed that 34 ballots
were cast for the Union, 40 were against, 7 were
challenged , and I was void . Thereafter , on June 19, 1967,
the Union filed timely objections to conduct affecting the
results of the election.
On June 21 , 1967, the Union filed its charge in Case
9-CA-4318 - 1 in which it alleged that Respondent on
various dates had discharged , refused to rehire, or refused
to reinstate 18 named employees for discriminatory
reasons , that since December 14, 1966 , Respondent had
refused to recognize and bargain with the Union, and that
Respondent by other acts had violated Section 8(a)(1), (3),
and (5 ) of the Act . ' On July 20 , 1967, the Union filed an
amended charge in Cases 9-CA-43 18-2 adding three names
to the list of those alleged to have been discriminated
against by Respondent.
On October 31, 1967, the Regional Director for Region
9 issued an order withdrawing approval of the settlement
agreement in Case 9-CA-4126- 1, -2 on the ground that
Respondent had failed to comply with its terms and had
engaged in additional conduct violative of Section 8(a)(1)
and (3) of the Act. On the same date the Regional
Director issued a consolidated complaint in Cases
9-CA-4126- 1, -2 and 9-CA-4318 - 1, -2 alleging a number
of independent violations of Section 8(a)(1), both before
and after the date of the settlement agreement, 6
discriminatory discharges, refusal to reinstate 15
employees in accordance with the terms of the settlement
agreement , other instances of discrimination , and a refusal
to bargain with the Union since December 15, 1966.
On November 9, 1967 , Respondent filed its answer
denying the commission of any unfair labor practices.
On January 11, 1968, the Regional Director for Region
9 issued his Supplemental Decision in Case 9 - RC-7089,
finding that the Union ' s objections to the election and the
challenged ballots raised substantial and material issues of
fact which were also the subject of the allegations in the
consolidated complaint . Accordingly, he ordered that Case
9-RC-7089 be consolidated with the unfair labor practice
cases for purposes of hearing and decision.
A hearing was held before me in Ironton , Ohio, from
February 6 through 9, and April 1 through 5, 1968. At the
close of the hearing oral argument was waived and the
parties were given leave to file briefs which have been
received from the General Counsel , the Charging Party,
and Respondent.
Upon the entire record in this case and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent is a partnership engaged in mining,
processing , and selling coal at Hanging Rock, Ohio.
During the year prior to the issuance of the complaint, a
representative period , Respondent sold products valued in
excess of $50,000 which it shipped directly to points
outside the State of Ohio . I find that Respondent is an
employer engaged in commerce within the meaning of the
Act and that assertion of jurisdiction herein is warranted.
II. THE LABOR ORGANIZATION INVOLVED
United Mine Workers of America, District No. 6, is a
labor organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged Presettlement Violations
1. Introduction
A number of the violations attributed to Respondent
are alleged to have occurred before the execution of the
settlement agreement which was approved on February 6,
1967, and set aside by the Regional Director on October
31, 1967 . The merits of the alleged presettlement
violations are properly reached only if it is established
that the terms of the settlement agreement were breached.
As I find below that after executing the settlement
agreement Respondent committed a number of violations
of the Act, many of which were .in express violation of the
terms of the settlement agreement, I have concluded that
the Regional Director was justified in setting aside the
settlement agreement.3
Since the facts are more easily understood if presented
chronologically, I will set forth my findings and
conclusions relating to the alleged presettlement violations
before those relating to the alleged postsettlement
violations, having first satisfied myself, however , that the
'A copy of this charge was served on the Respondent on December 9,
1966.
'A copy of this charge was served on Respondent on June 23, 1967.
'Lock Joint Pipe Company , 141 NLRB 943. See .also J. E Hamilton &
Sons, Inc., 120 NLRB 1468, 1480; N.L.R.B v. Bangor Plastics, Inc., 392
F.2d 772 (C A. 6).
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
postsettlement violations occurred , for the reasons set
forth later in this Decision.
2. The beginning of the Union's organizing campaign
Some time during October or November 1966 the
Union made contact with some of Respondent's
employees and started a campaign to organize them. On
or about November 25, 1966 , the Union sent identical
letters to a number of Respondent ' s employees whose
names and addresses it had obtained from some of its
employee contacts .' Enclosed with the letters were blank
authorization cards which the employees were invited to
sign and mail back to the Union . A number of employees
signed the cards and returned them to the Union as set
forth below in greater detail . Around this time union
organizers and employees also directly solicited other
employees to sign cards , and a number of additional
signatures were obtained in this fashion. During
November and December union organizers met on several
occasions with groups of Respondent ' s employees.
3. Alleged independent violations of Section 8(a)(1)
before the strike
Starting around the time the union letters were mailed
and continuing until December 14, Respondent partners
Oakley and Coleman Collins questioned a number of
employees about the letters and cards they were sent by
the Union.' Oakley Collins approached a number of
employees individually while at work and asked them' if
they had received letters from the Union . Some of the
employees indicated that they had not.' Collins asked
several employees to bring the letter and enclosed card to
him if they did receive it.' Coleman Collins similarly
questioned Oscar McCann.'
'The record does not establish the number or identity of all the
employees who were sent the letter
'The following findings are based on the testimony of the employees
involved in the incidents described. Oakley Collins, who appeared as a
witness, did not contradict any of their testimony as to what he said to
them during the period before December 14, except in isolated respects as
indicated below. Coleman Collins, who also testified, denied that he
questioned any employees about the cards, but conceded that he knew that
cards and letters were sent to employees and that he was aware of the
union activities at the time He testified that employees voluntarily
informed him of these activities Two of the employees who testified to
Coleman Collins' activities were employees of Respondent at the time of
the hearing, and the detailed testimony of another, Robert Johnson, which
concerned activity of both Oakley and Coleman Collins, was in the main
uncontradicted. Coleman Collins' testimony was for the most part
conclusionary in form, and he did not impress me as credible in his
explanation of the layoff of John DeLong or in other respects set forth
below. Accordingly, I have credited the testimony of the various witnesses
for the General Counsel who testified as to the statements made to them
by Coleman and Oakley Collins before December 14
'Garland Wmeka, Andrew Sorrell, Bascom Owens, Lee Middleton,
Frank Laber, William Howell, Willie Martin, James Aldridge, Oscar
McCann, John DeLong, Ray Bowman, Carlton Malone, Carl Shepherd,
and Lawrence Otworth.
'Wmeka, Sorrell, Laber, Carlton Malone, Carl Shepherd, and Howell.
John DeLong testified that although he had received the letter, signed a
card, and returned it, he answered negatively. Bowman answered that he
had received the letter.
'Willie Martin, James Aldridge, John DeLong, Carlton Malone, Carl
Shepherd, and Lawrence Otworth. At the time he spoke to Shepherd,
Collins also stated that he could not operate under the United Mine
Workers and that there was not going to be a union there.
'Former employee Clyde Matthews attributed similar questioning to
Supervisor Pete Chaffins. Chaffins denied interrogating Matthews. As I
have found Matthews' testimony inaccurate in some other respects, i.e., in
On one occasion Oakley Collins asked Garland Wineka
if he had signed a card and told him he did not like
anyone to work for him who lied. Collins told Wineka
that he did not want anything more to do with Robert
Johnson because Johnson had lied to him." Wineka did
not respond.
On another occasion Oakley Collins stopped Harlan
Harbolt at work and said that he had gotten the
ringleader . Harbolt said he did not know who that was,
and Collins stated that it was Curtis Leffingwell."
Nothing further was said at that time. A few days later
Oakley Collins stopped Harbolt again at work and asked
him if he had attended the union meeting the previous
night. Harbolt replied that he had not. Collins commented
that there was a man who had a list of those who were
there and that he did not think Harbolt's name was on it.
He told Harbolt to go back to work. On another occasion
Collins asked Harbolt where he had obtained a card that
Harbolt had given to Harold Cade, another employee.
Harbolt replied that he obtained it in the shop. Collins
asked where, and Harbolt said it was just there on a
bench. Collins told Harbolt that he could not operate
under union wages and left.
During the period before December 14 Oakley Collins
stopped Johnny Sparks at work and asked him if he had
signed a union card . At first Sparks said that he had not.
Collins told him not to lie about it, and Sparks then said
he had signed a card. Collins then said that Sparks knew
he should not have signed it. Sparks replied that he did
not know that and had no reason not to sign the card. On
another occasion on December 11 Oakley Collins asked
Carlton Malone if Harlan Harbolt was giving out union
cards . Malone replied that he had never seen one of them.
In fact he had signed a card at this time.
On December 12 or 13 Collins called Dayton Minix to
the office and asked him if he had signed a card. Minix
replied that he had. Collins told him that he was the only
operator on the hill who had signed and that was all he
had to say to him. On December 12, Oakley Collins asked
Clyde Matthews if he had gone to a union meeting. There
had been a meeting the previous night at Curtis
Leffingwell ' s house . Collins asked if some other employees
had been there, named Sorrell, and asked about Clayton
Henderson and one or two others. Matthews replied that
Collins would have to ask Henderson and that he did not
know. Collins asked Matthews if he had signed a union
card , and Matthews answered that he had . Collins asked
him why, and Matthews replied that it was because of the
security the Union had. Collins told Matthews he would
see how much security he had in a few days."
On December 12 Oakley Collins asked William Malone
if he had attended the union meeting the night before.
Malone said that he had. Collins asked him if he signed a
card. Malone did not reply, and Collins said he would not
work a "damn man" that had anything to do with the
Union or was running with it."
Around December 12 or 13 Oakley Collins asked Otis
Martin if he had received a letter . Martin said that he had
not. Collins told Martin that he knew that if he signed the
connection with the identity of employees whose signatures he obtained on
authorization cards , I have credited Matthews only as to those portions of
his testimony which are uncontradicted.
"This exchange occurred shortly after the discharge of Johnson under
circumstances set forth below.
"Leffingwell had been discharged under circumstances set forth below.
"Matthews' testimony as to this conversation was not denied and is
credited.
"Malone's testimony as to his conversation with Collins was undenied
COLLINS MINING COMPANY 225
card and the Union got in Collins could not operate.
Collins told him that if he got a letter not to say anything.
About the same time with Coleman Collins present,
Oakley Collins asked Willie Martin , brother of Otis, if he
had received a card . Martin said that he had , that he had
signed it , and mailed it in. Collins told Martin that he did
not think Martin would have treated him that way and
said that Martin should have given him the card.
On December 13 Coleman Collins stopped James
Jenkins at work and asked him if he had signed a card.
Jenkins first said that he had not, although in fact he had.
Coleman Collins talked to him further about moving to
another piece of equipment to take Johnny Sparks' place.
Collins told him that he was going to have to do
something about Sparks and that Sparks had signed a
union card and had attended some union meetings.
Jenkins started to return to work, but then turned back
and told Collins that he had attended one union meeting,
that he was going to another at Southpoint that night, and
that Coleman Collins was welcome to come if he wanted.
During this period Oakley Collins asked Andy Jack
Akers if he had been at a union meeting which was held
at Curtis Leffingwell's house. Collins asked Akers who
was there. Akers replied that he did not know the men
well enough to tell him. Collins asked if he was going to
the next meeting and Akers said that he was. On the
evening of December 14 as Lawrence Otworth was getting
ready to leave Oakley Collins asked him if he was going
to the union meeting at the Southpoint hall. Otworth said
he did not know. Collins said he was going to have two
men there checking the names of everyone who went into
the hall. Otworth replied that they would see him
because he was going.
On one occasion Foreman Pete Chaffins told Clayton
Henderson that he did not think that Respondent could
operate under union regulations given the mining
conditions that existed."
There can be little doubt Respondent by its
presettlement conduct violated Section 8(a)(1) of the Act.
Respondent engaged in widespread interrogation of
employees relating to the receipt of union literature, the
signing of union cards, and attendance at union meetings.
The record discloses not only the absence of any lawful
purpose for the interrogation , but that the questioning was
on a number of occasions accompanied by other coercive
remarks and unlawful instructions and requests to
employees to bring to Respondent literature and cards
received from the Union . Oakley Collins conveyed to
Harlan Harbolt, Lawrence Otworth , and Dayton Minix
the impression that union meetings and their union
activities were under surveillance .' Both directly and
indirectly, Oakley and Coleman Collins conveyed to
Garland Wineka, Harlan Harbolt , Clyde Matthews,
William Malone , and James Jenkins the threat that
employees would be discharged because of their union
activities . I find that by this conduct Respondent
interfered with, restrained , and coerced employees in the
exercise of their rights quaranteed by the Act and that
Respondent thereby violated Section 8(a)(1) of the Act."
Further conduct during this period alleged to violate
Section 8 (a)(1) is considered in the following section as it
is factually related to the alleged discrimination there
considered.
"Chaffins so testified . Henderson testified that Chaffins told him that if
the Union came in , Respondent would have to close up. Henderson was
not examined in any detail as to the exact words used by Chaffins, and his
version is not greatly divergent from Chaffins, whom I have credited
4. Alleged violations of Section 8(a)(3)
a. Robert Johnson
On November 28, Coleman Collins showed truckdriver
Robert Johnson a letter from the Union and asked him if
he had received one like it . Collins asked him to bring it
in when he did. Johnson replied that he could not say
because he did not know what it was . Coleman told
Johnson that his brother Oakley wanted to see Johnson in
the office. Johnson went to the office. Oakley also asked
him if he had seen the letter . Oakley explained that the
letter was from the United Mine Workers and stated that
Respondent could not run under the Union . He said that
if the Union came in , he and Coleman would have to go
back to milking cows. Oakley asked Johnson if he would
bring the letter to him. Johnson replied , as he had to
Coleman, that he had not received the letter at that time.
Oakley asked Johnson if he would let him know when he
received the letter . Johnson said that he guessed that he
could . Oakley said that he did not want any guess.
Johnson then said that he would let him know . Oakley
told Johnson to stick with him and he would protect
Johnson and his family.
That evening Johnson, whose mail was delivered to him
at a company store operated by Respondent , received the
letter from the Union . Johnson next reported for work on
December 1 . On that day Coleman Collins asked him if
he had brought the letter with him . Johnson replied that
he had not. Coleman Collins told him that Respondent
would not need him to work that day . Johnson did not
leave immediately, but remained to repair a flat tire.
While he was so engaged Coleman Collins again
approached him. Johnson told Coleman that he did not
want to be identified as the one who brought the letter in.
Oakley Collins, who was present, asked Johnson what that
meant. Johnson explained that he did not want to be
known among the employees as the one who turned letters
over to Respondent . Oakley stated that it was not the one
who turned the letter over to the Company , but the one
who turned it over to the Union, who had the bad name.
Oakley told Johnson that he did not want anything as
"cheap" as him around and that he could come in and get
his money."
"In addition to this evidence, there was testimony by William Malone
that he observed Respondent's Office Manager Arlen Sturgil in a
telephone booth next to the parking lot at the union hall at night after a
union meeting on December 11. Sturgil denied that he was in the telephone
booth on this or any related occasion and was corroborated by his wife as
to his whereabouts on the night of December 11. I have concluded that
Malone's testimony in this regard cannot be accepted as accurate and
accordingly dismiss the paragraph of the complaint based on Sturgil's
alleged surveillance.
"R. W. Inc, d/b/a K-Mart Foods. 170 NLRB No. 67 (interrogation),
Poray. Inc., 160 NLRB 697, 703-704 (requests to turn over union
literature); J P. Stevens and Co., Inc., 163 NLRB No. 24, enfd. as
modified 388 F.2d 896 (C.A 2) (impression of surveillance); Biederman
Furniture Company, 164 NLRB No. 12, enfd . 397 F.2d 282 (C.A. 8),
(threats). For reasons set forth below in conjunction with alleged
postsettlement violations , I do not find that Respondent violated Sec.
8(aXl) by the statements by Oakley Collins to Harbolt that he could not
operate under union wages, by Collins to Otis Martin and Carl Shepherd
that he could not operate if the Union got in, and by Foreman Chaffins to
Clayton Henderson that he did not think that Respondent could operate
under union regulations
"Although Coleman Collins denied interrogating any employee about
anything relating to the Union, Oakley Collins did not deny Johnson's
testimony as to the circumstances of his discharge, except that with respect
to the statement that Respondent could not run with a union , he testified
that he said basically the same thing to all employees in this regard, that it
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On December 6, Johnson returned to Oakley Collins'
office to ask whether he could get his job back, taking
with him the letter from the Union which he had received
and the authorization card which he had signed and which
Union Representative Russell had returned to him . Collins
took the letter and told Johnson he would let him know
about a job."
On December 13, Johnson received a message at the
company store that he was wanted at Respondent's office
on the next day. Johnson reported and Oakley Collins told
him that he was not fired or permanently laid off. Collins
asked Johnson if he was responsible for the filing of unfair
labor practice charges over his discharge. Johnson replied
that he was not. Collins asked him if he had signed
anything to that effect, and Johnson said that he had only
signed up at the unemployment compensation office.
Collins also asked Johnson whether he attended a union
meeting the night before and if he knew who was there."
Collins told Johnson that it would be better if he stayed
home for a while.
The uncontradicted evidence leaves no doubt that
Johnson's discharge on December 1, 1966, was caused by
his union activities. The discharge was preceded by
interrogation of Johnson and the promise that if Johnson
would stick with him Collins would protect him. When
Johnson balked at turning over the letter he received from
the Union and stated that he did not want to be identified
as the one who brought it in , thus indicating that he was
not sticking with Collins, Collins responded by stating
that it was the one who turned it over to the Union who
had a bad name and summarily discharged Johnson.
Although Collins indicated after charges had been filed
that Johnson had not been fired or permanently laid off,
Collins did not reinstate him at that time and questioned
him further as to his role in the filing of the charges. The
inference of discrimination to be drawn from the General
Counsel ' s evidence is strong and more than sustains the
General Counsel's burden of proof.'" No evidence has
been offered by Respondent to establish any other cause
for Johnson's discharge. Accordingly, I conclude that
Johnson's discharge violated Section 8(a)(3) and (1) of the
Act. I conclude also that Collins' interrogation of Johnson
and his promise of security to Johnson if Johnson stuck
with him constituted further independent violations of
Section 8(a)(1) of the Act.
b. Curtis Leffingwell
Around the time of Johnson's discharge, on a date not
made clear in the record , Oakley Collins called Curtis
Leffingwell into his office while Leffingwell was at work.
Collins asked him if he had been talking with the union
men.21 Leffingwell said that he had not. Collins told him
that Leffingwell was going to mess around and knock a
hundred men out of work and that Collins would "scrap
the damn place" before he would go into the United Mine
Workers. Leffingwell told Collins that he had talked to
was economically impossible for him to operate with a union. I have
credited Johnson's detailed testimony as to the events leading up to and
surrounding his discharge
"Collins also said that Curtis Leffingwell had told him that Johnson had
signed a card and sent it in . Collins asked Johnson how Collins was to
know that Leffingwell had not given Johnson another card so that he
would have one to give to Collins
"It is not clear from the record whether Johnson said that he did or did
not attend.
"Heck's Inc. 156 NLRB 760, 762-763, enfd. as modified 386 F 2d 317
(C.A. 4)
some wage and hour men . Collins told him that he should
not have let them come around and talk to him and
described the car that the union representatives were
driving."
Thereafter on a date also not made clear by the record,
but clearly before December 13, Oakley Collins called
Leffingwell and asked Leffingwell if he had gotten one of
the union cards. Leffingwell replied that he had and that
he had signed it and sent it back to the Union. Oakley
Collins said that he should not have done that. Collins
said he would call Leffingwell back in a while and let him
know when to come into the office.
A while later Coleman Collins came to where
Leffingwell was working and called him out from under a
truck he was greasing. Oakley Collins came into the
garage shortly thereafter and asked Coleman if he had
gotten the keys. Leffingwell gave Coleman the keys.
Oakley told Leffingwell he was firing him because his
work was unsatisfactory. Oakley said that Leffingwell's
father and grandfather had worked for Respondent and if
he had lasted that long he could have stayed with
Respondent a hundred years "if he had not done that."
Collins also told him that he would not have thought that
Leffingwell would have "done a thing like that" and that
it was like he had stabbed him in the back. r' Oakley
Collins told Leffingwell that if he bothered him anymore
he was going to get the law after him. Leffingwell
punched out and left.
The uncontradicted evidence establishes that Collins
first interrogated Leffingwell, threatened him that his
union activities could cost all of Respondent's employees
their jobs, and conveyed to him the impression that his
union activities were under surveillance. Then, when
Leffingwell thereafter in reply to further interrogation
revealed that he had nonetheless signed a union card,
Respondent discharged him. The asserted ground for the
discharge was contradicted by the concurrent comment
that Leffingwell could have stayed with him for 100 years
if he had not done "that" with obvious reference to
Leffingwell's union activities. 24 As in the case of Johnson,
although the General Counsel clearly met his burden of
proof, no countervailing evidence was offered to show that
Leffingwell's work had been unsatisfactory or that Collins'
remarks at the time of the discharge referred to anything
other than Leffingwell's union activities. Accordingly, I
conclude that Leffingwell's discharge violated Section
8(a)(3) and (1) of the Act. I conclude further that Collins
in his conversation with Leffingwell unlawfully
interrogated Leffingwell concerning his union activities,
created an impression of surveillance of Leffingwell's
union activities , and threatened that he would close down
because of the union activities."
"Leffingwell was one of the employees with whom the Union had made
early contact, and he had helped in assembling the list of employees'
names which the Union used in mailing its letters . He had been visited at
his home by union representatives , and some early meetings between union
representatives and employees had taken place there.
"Leffingwell ' s testimony as to his conversations with Oakley Collins
leading up to and surrounding his discharge was not contradicted
"Although Leffingwell's testimony as to the latter comment was elicited
by a leading question , it, like Leffingwell ' s other testimony, was not denied
by Oakley Collins , and I have credited Leffingwell' s testimony in its
entirety
"As set forth above , after Leffingwell's discharge , Oakley Collins told
Harbolt that he had gotten the ringleader and identified him as
Leffingwell
"Unlike most other instances in which I have found that Collins related
remarks concerning a shutdown to Respondent 's inability to operate under
the Union , in this instance Collins' threat was not tied to any assertion
COLLINS MINING COMPANY 227
c. James Bradshaw
On the morning of December 8, James Bradshaw was
called to the office from his place of work. Oakley Collins
asked him if he had received a letter from the Union in
the mail and what he had done with it. Bradshaw replied
that he had filled out the card and sent it back to the
Union. Collins told Bradshaw that he did not think that
Bradshaw would treat him that way because he was like
one of the family. Collins asked him why he had signed
the card. Bradshaw replied that he thought it would make
it a better place to work if the Union represented the
employees. Collins told Bradshaw that he had heard about
40 men had signed cards. Bradshaw said that the only one
he knew about was himself. Oakley Collins told Bradshaw
that he no longer needed his kind of worker around there,
and Coleman Collins told Bradshaw to get whatever he
had at the garage, leave, refrain from talking about it, and
never come back again. Bradshaw left.26
As in the case of Johnson and Leffingwell, the
uncontradicted testimony of Bradshaw establishes prima
facie that following his interrogation by Oakley Collins
and his admission that he had signed a union card,
Bradshaw was discharged because of that admission. No
evidence was offered by Respondent to support any other
explanation for the discharge which I find violated Section
8(a)(3) and (1) of the Act. I find further that the
interrogation of Bradshaw violated Section 8(a)(1) of the
Act.
d. The December 14 layoffs
On December 14, Oakley Collins called the drivers of
Respondent' s heavy hauling equipment into his office.
Collins said he was not getting enough coal out of the hill.
He asked them if they had attended a union meeting that
night and said he had a list of names of those who
attended the meeting on December 11, holding up a list in
his hand . Collins told them that he was going to cut back
employment by at least 20 percent . One of the drivers,
Carlton Malone , asked for and received a voluntary layoff
at that time.
About three that afternoon John DeLong was called to
the office . Coleman and Oakley Collins were there.
Oakley Collins told DeLong that he was going to have to
cut back in production about 50 percent and in view of his
age, DeLong ought to step aside and let some younger
men have it . He was given a layoff slip , and junior men
were retained whose work he could do . DeLong was 66
years old at the time . Oakley Collins told him that if he
needed help in getting his social security , Collins would
help him . DeLong said he had everything already
arranged.
DeLong had been injured and partly disabled in 1963.
He had returned to work after 6 months ' recuperation,
however , and had worked steadily until the time of his
layoff. He had signed up for social security in July 1966 in
order to receive medicare benefits , but he had drawn no
retirement benefits before his layoff and according to
DeLong was not thinking of retiring at that time."
that it would be impossible for him to operate under the Union.
"Bradshaw testified to these events without contradiction.
"Coleman Collins testified that Respondent had let DeLong work after
he was injured but told him "that possibly we would have to let him out if
we seen that maybe he couldn ' t do his job. And that's what happened." No
other evidence was adduced to show that there had been any change in
DeLong's work prior to his discharge . Oakley Collins, who informed
DeLong of the layoff, testified in the representation proceeding but not
That afternoon, about 3:30, Oakley Collins gave
bulldozer operator Clyde Matthews a layoff slip. He told
Matthews it looked like he was going to have to cut back
production as much as 50 percent. Matthews asked if he
was the youngest dozer man Collins was cutting. Collins
said he did not know.28
On the same day, welder Ray Bowman was called into
the office. Both Oakley and Coleman Collins were there.
Oakley Collins told him that the coal business was slack
and they were going to lay him off as he could draw
unemployment compensation. Bowman said that Collins
had just hired a man up there the day before. Oakley
Collins did not respond.21
DeLong, Matthews, and Bowman had all signed union
cards prior to their layoffs. There is no evidence that
Respondent had knowledge that DeLong and Bowman
had done so. Matthews had revealed that he had signed a
card in response to interrogation by Oakley Collins. At
that time on December 12 when Matthews stated that he
had signed for the security that the Union offered, Collins
replied that he would see how much security he had in a
few days. While the record does not establish that DeLong
and Bowman were selected for discharge because of their
union activities, it does support the inference that the
decision to lay off employees at this time was motivated
by the employees' union activities. Thus the layoffs came
after a 2-week period of intensive interrogation, creation
of the impression of surveillance, threats, and the
discriminatory discharges of three employees. At the time
Oakley Collins announced to the hill drivers that there
would be a layoff, he asked them about their attendance
at a union meeting and conveyed to them the impression
that he had a list of those who had attended a meeting a
few days before.
Although the inference of discriminatory motivation
might have been overcome by some explanation of a cause
for the layoffs unrelated to the employees' union activities,
none was offered." To the contrary, the evidence indicates
Respondent's coal production in previous years showed
little variation during December and its employment had
remained relatively constant for a number of months prior
to December 14 despite minor variations in coal
production from month to month. The discharges which
preceded the layoffs had already reduced the number of
employees on Respondent's payroll below its lowest point
for the previous 6 months. Nothing in the previous 3
years' record of operations indicated the likelihood or
need for a 20-percent cutback in employment or a
50-percent cutback in production, and in explaining the
slow restoration of production after the strike which began
on December 14 after the layoffs occurred, Oakley and
Coleman Collins testified only to losses of business due to
the strike and not to any which preceded it. In these
circumstances I conclude that the decision to lay off
employees on December 14 was caused by the union
activities of the employees and that the layoffs therefore
before me.
'The evidence is in dispute as to whether Matthews was the least senior.
"According to Bowman , a man named Reily was hired the day before as
a welder, and Bowman was the oldest welder. Respondent ' s payroll records
show that a John Reily appeared on Collins' timber operation payroll from
December 5 through 15 , 1966, that he appeared on the Collins' mining
payroll from December 16 through 31, 1966, and that he did not appear
thereafter on either payroll . Apart from Bowman's testimony and the
stipulation based on the records, there is no other evidence as to the
employment of Reily or the circumstances of Bowman 's layoff.
"The only explanation offered related to the reason for selecting DeLong
for layoff
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violated Section 8(a)(3) and (1) of the Act." I find also
that Collins in his remarks to the hill drivers interrogated
them , created an impression of surveillance, and
threatened retaliation for their union activities all in
violation of Section 8(a)(I).
5. The beginning of the strike and alleged violations
during the strike
On December 13, an impromptu union meeting was
held at the home of Curtis Leffingwell. A number of
employees present expressed sentiments in favor of
striking Respondent . They decided that a larger meeting
should be called which all employees would have an
opportunity to attend before taking any action, and a
meeting was scheduled for the following night at the
Southpoint Steelworkers hall. On December 14 the
meeting was held . A motion was made and seconded to
shut Respondent ' s business down . After substantial
discussion , the employees voted to strike . Reasons
advanced in support of the action were that three men had
been discharged because of the organizing campaign, three
had been laid off, and there were threats of more layoffs.
The strike began that night following the meeting. It is
clear that the strike was caused by Respondent's conduct
which I have found violated the Act and was an unfair
labor practice strike.
The following morning Coleman Collins asked Oscar
McCann why the men had struck . McCann told him that
they went out because of the discharges and layoffs and
for the Union. Oakley Collins told McCann he was going
to get an injunction . He said that he could not operate
under a union and would not meet with the union
officials . Several other employees were present at the
time.
At the outset of the strike on December 15, as Oakley
Collins testified, a few employees appeared for work. The
rest stayed away from work and production was largely
stopped.
During the strike Oakley Collins made several attempts
to induce other employees to return to work at various
times during the strike both by direct personal appeal and
by letter. On several occasions Oakley Collins held
meetings with small groups of employees for this purpose."
During the strike Collins telephoned Charles Wall after
most union meetings and asked him how many employees
attended. On one occasion he asked Wall if Andy Sorrell
had been there. Wall's testimony to this effect was
uncontradicted , but his further testimony was disputed
that in late January, at Oakley Collins ' request, he visited
Collins' home where Collins gave him $20 and asked him
to go down and see what he could do to break up the
strike or get the employees back to work , promising to fix
'Arnold ware. Inc, 129 NLRB 228.
"According to Bascom Owens, dunng these meetings Collins told the
employees that he would raise them considerably if they returned to work
but was not allowed to say how much. Owens testified also that Collins
told the men that he just could not compete under a Mine Workers
contract and that signing it would be like signing his own death warrant.
Owens' testimony in this regard was contradicted and for reasons set forth
more fully below, I do not credit it It is clear however that on these as
well as other occasions Collins said he did not think that he could compete
or operate under the Mine Workers contract. According to William
Howell, dunng the stoke Oakley Collins offered him a sizable amount of
money to return to work, telling him he would pay him $2.75 an hour, an
increase of 75 cents an hour above his prestrike pay, and that he would be
the only welder working for him. For reasons set forth later in this
Decision, I have not credited Howell as to this incident.
him up "real good" if he succeeded.
Both Oakley Collins and Mrs. Collins, who was
present, denied that any money was given to Wall on this
occasion . Collins testified that he asked Wall if he would
return to work , but made no promises to him. I have
credited Collins, as corroborated by his wife, in his denial.
There is evidence that a few times during the strike
Oakley Collins was seen driving by a Southpoint hall
when union meetings were being held there." Collins
testified that he often had occasion to drive past the union
hall, which was located on a highway leading to a plant to
which Respondent sold coal . He recalled seeing some of
the employees gathered in front of the hall on two or
three occasions, but denied that he went there for
purposes of surveillance.
I find that Collins' interrogation of Wall about
attendance at union meetings further violated Section
8(a)(1) of the Act. However, as the Steelworkers hall was
located adjacent to a busy public highway which,
according to his uncontradicted testimony , Collins
traveled on occasion for legitimate purposes , I conclude
that the evidence is insufficient to establish that Collins
drove by the hall for the purpose of engaging in
surveillance during the strike, and I find no other
violations based on Respondent ' s conduct during the
strike."
B. The Union 's Request For Recognition
On December 14, 1966, the president of the Union
mailed a letter to Respondent in which he stated that the
Union had been authorized by a majority of Respondent's
employees to represent them as their collective- bargaining
agent and requested a meeting with Respondent. Two or
three days after the strike began , Union Representative
Russell attempted to contact Oakley Collins by telephone
and left word for Collins to call him, but Collins never
returned his call.
On December 30, the Union's attorney sent Respondent
a further letter, in which he stated that the earlier letter of
the union president had not been answered, restated the
Union's majority claim , offered to prove the majority by
means of a card check, and again requested a meeting.
On January 20, 1967, in a letter to Respondent's
attorney rejecting a proposal for an agreement to settle
the Union' s charges , the union president again stated that
the Union was the sole collective-bargaining agent of the
employees and requested a meeting for purposes of
negotiations.
On January 31, after Respondent had signed a
settlement agreement which was to be forwarded to the
Union, the Union's attorney wrote Respondent's attorney
that the only matter which remained was the question of
recognizing the Union as the bargaining representative of
Respondent's employees . He asked for written
acknowledgment of the Union' s representative status and
in lieu thereof, again suggested a card check to confirm
the Union's majority.
Insofar as the record shows, Respondent made no
response to the Union's requests for recognition.
Respondent at no time acquiesced to the Union's request
for recognition, and during the strike, Oakley and
Coleman Collins took the position that they would not
talk with the Union' s representatives.
"Franklin Carmon and Willie Martin so testified.
"I note in this regard that the complaint does not allege that
Respondent's efforts to induce employees to return to work during the
strike violated the Act.
COLLINS MINING COMPANY 229
C. The Settlement Agreement to the settlement agreement , it was used by Respondent
with their knowledge and without objection until the June
1967 charges were filed.
On January 28, 1967, Respondent signed an informal
settlement agreement disposing of the charges in Cases
9-CA-4126-1, -2. The president of the Union signed the
agreement on February 3, 1967, and the Acting Regional
Director for Region 9 approved it on February 6, 1967.
The agreement provided for posting of a notice and
compliance by Respondent with all the terms and
provisions of the notice. It also provided for backpay in
amounts to be computed later for the six employees
alleged in the charges to have been discriminatorily
discharged . Contingent upon compliance with the terms
and provisions of the settlement agreement , the agreement
provided that no further action would be taken with
respect to the charges.
The agreement and the notice obligated Respondent to
refrain from ( 1) discouraging membership in the Union by
discharging or laying off any of its employees or otherwise
discriminating in regard to their hire or tenure of
employment; (2) interrogating employees concerning their
membership in, sympathies for, or activities on behalf of
the Union ; (3) engaging in surveillance of union meetings;
(4) creating the impression that it had engaged in
surveillance of employee union activities; (5) threatening
to close its operations or force employees out of their jobs
if they chose to be represented by the Union; (6)
instructing its employees to submit to them letters and
cards received by the employees from the Union , and (7)
otherwise interfering with, restraining , or coercing its
employees in the exercise of their rights guaranteed by
Section 7 of the Act. Respondent also stated in the notice,
which it posted pursuant to the settlement agreement, that
it had offered Robert Johnson , James Bradshaw, Ray
Bowman , John DeLong , and Clyde Matthews immediate
and full reinstatement to their former or substantially
equivalent positions , that it would make these employees
whole for any loss of pay they might have suffered by
reason of discrimination against them, that it would offer
Curtis Leffingwell immediate and full reinstatement to his
former or a substantially equivalent position , and that it
would make Curtis Leffingwell whole for any loss of pay
which he might have suffered by reason of the
discrimination against him from the date of the
discrimination to the date of his reinstatement.
Respondent further undertook to offer to all employees
who participated in the strike on and after December 14,
1966, and who had not previously been reinstated,
immediate and full reinstatement to their former or
substantially equivalent positions without prejudice to
seniority or other rights or privileges , dismissing if
necessary any persons hired on or after December 14,
1966, who were not employed by Respondent on that
date . Respondent agreed , in the event that employment
was not available , to place the strikers on a preferential
hiring list to be established in accordance with employees'
seniority pursuant to which they were to be offered
reinstatement to their former or substantially equivalent
positions for a period of 1 year from the date of
establishment of the list before reinstating or employing
any other individual for work.
Pursuant to the agreement Respondent established a
seniority list by department or job classification as the list
to be followed in determining the order in which strikers
were to be offered reemployment. Although it does not
appear that this list was formally approved by the parties
D. Alleged Postsettlement Violations of Section
8(a)(1)
1. Introduction
The complaint alleges a number of violations of Section
8(a)(1) of the Act after the execution of the settlement
agreement, mostly during the period immediately
preceding the election . Most of the allegations relate to
statements and other conduct of Oakley Collins.
The evidence as to Oakley Collins during this period
comes from a number of witnesses , many of whom were
still employed by Respondent at the time of the hearing.
Some of their testimony was undenied , much of it denied
in general conclusionary terms, and some of it was
specifically denied . In general , I am persuaded that most
of the employee testimony is to be credited . Although I
have not discredited Oakley Collins' testimony in its
entirety , many of his denials were too general to overcome
the detailed specific testimony of employees , and it is
clear without regard to their content that the
conversations in which the violations are alleged to have
occurred did take place. One cannot ignore the fact that
Collins was not questioned about most of the
conversations, nor was he questioned even generally about
some of the coercive statements attributed to him. It is
true that Collins was not intensively cross -examined, and
indeed a deliberate decision appears to have been made by
counsel for the General Counsel and the Charging Party
not to cross-examine as to most of his direct testimony. In
some respects the absence of searching cross-examination
makes the burden on the Trial Examiner greater, as the
record affords less basis for evaluating the testimony of
Collins and weighing it against that of the employees.
That absence should not weigh against Respondent, but
neither should the General Counsel's failure to ask all that
he might have asked weigh against the failure of Collins'
direct testimony in many instances to meet the testimony
of the General Counsel 's witnesses.
In assessing credibility I have also considered the fact
that Collins has been repeatedly elected to public office
and obviously enjoys a good reputation in his community.
One can neither ignore this fact nor overreact to it. The
fact is that the conduct of Collins here in question is not
his conduct as a public official but as a citizen engaged in
his private business.
In setting forth the resolution of credibility issues, one
is impressed with the fact that one can never fully
articulate all of the considerations which contribute to the
conclusion. Some impressions register during the hearing
while listening to the witnesses and observing the way they
speak and testify. While not true of all of the General
Counsel ' s witnesses , most of them seemed to reflect
considerable respect for the Collins brothers and
awareness of their dependency upon Respondent for their
livelihood. That most of them had strong feelings for the
Union is also clear , but I am persuaded overall that there
was no conspiracy among them to invent a series of
similar incidents to undermine their Employer' s position.
In that posture the strong similarity between many of the
incidents which occurred during this period lends strength
to the conclusion that most if not all of them occurred.
A number of witnesses testified to statements by Collins
varying in specific content but all generally to the effect
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Respondent could not operate with the Union and
would be forced to close down if the Union won the
election. With exceptions noted below, Collins did not give
his version of the specific conversations but testified
generally as to what he said to employees in this regard.
He testified that he told employees that economically it
would be impossible for him to operate under the union
contract because wage increases, welfare fund
contributions, and many other things would increase his
costs. He denied, however, that he ever threatened that
Respondent would go out of business if the Union won the
election. As I understand Collins' testimony the
distinction drawn by him was between telling employees
what the economic consequences of the advent of the
Union would be and telling them simply that Respondent
would close down because they chose to be represented by
a union. As I view the testimony of the employees, there
is no essential conflict between most of them and Collins
in this regard." I have credited the varying versions of the
employees, as illuminated by Collins' explanation, leaving
for later consideration whether in the context in which the
statements were made they constituted threats.
A number of employees also testified as to varying
statements by Collins to the effect that Collins promised
them wage increases if the Union lost the election. Collins
again with a few exceptions considered below did not give
his version of these conversations but testified that he
generally told the employees that he could not talk about
or promise money because of the settlement agreement.
However, he testified further that before the Union
appeared at the mine he had promised employees a raise
after an anticipated consolidation of mining operations at
a single pit located at Fox Hollow, and that on an
occasion or two when employees asked him about money,
he mentioned to them the earlier promise he had made
that when an electric shovel he had purchased went into
operation at Fox Hollow, he would give them a raise.
Thus, Collins conceded that while he claimed to
employees that he could not talk money, he did on some
occasions talk money, albeit tieing the discussion to an
earlier promise. Some of the employee witnesses testified
that Collins made no promises to them and others stated
that he said he could not talk money. However, some of
the latter group and others testified that Collins did in
fact promise increases, not contingent on the electric
shovel becoming operative at Fox Hollow, but contingent
upon a union loss in the election. The evidence shows that
in fact increases were granted to most employees
immediately after the union election and considerably
before the electric shovel became operative at Fox
Hollow. Considering this circumstance and the fact that a
number of witnesses who were employed by Collins at the
time of the hearing testified contrary to Collins, many of
whom impressed me as basically candid, with some
exceptions as indicated below I have credited the
employees' version of their conversations in this regard
and have rejected Collins' general version of what he told
employees with respect to wages during the preelection
period.
A number of employees also testified as to comments
by Collins indicating knowledge of the voting intentions or
attendance at union meetings of the employees. In a
number of instances, they testified that Collins referred to
or exhibited to them lists which he described as showing
"Collins' threat to Curtis Leffingwell before the strike , however, does
not fall in this category, and I have credited Leffingwell as indicated
above.
who was for or against the Union or who had attended
union meetings . With exceptions considered below, Collins
did not deny generally or specifically that he made the
statements attributed to him in this regard, but denied
only that he had any lists in his car other than the
eligibility list for the election and the preferential hiring
list. In most instances this limited denial does not meet
the employee testimony, and I have generally credited
employee testimony in this regard except as noted below.
Another major category of employee testimony
concerns interrogation by Collins as to their union
activities and how they were going to vote in the election.
Collins denied generally that he asked employees how they
were going to vote during the preelection period. Again
considering the status of the witnesses at the time they
testified and the favorable impression made by many of
them, I have credited their testimony in this regard,
except as noted below.
2. Statements attributed to Oakley Collins
On the basis of the above considerations, I make the
following findings as to statements made by Oakley
Collins to the following employees based on their
testimony, noting where appropriate other special
considerations and those instances in which Collins
testified as to his version of specific conversations.
a. Andrew Sorrell
About 2 or 3 weeks before the election Andrew Sorrell
stopped by Respondent's office to pick up his check.
Oakley Collins called him into his office. Collins asked
Sorrell how he felt about the union election. Sorrell
replied he was going to vote for Andy (Sorrell). Collins
said he could not run under the Union but that the
employees would get a substantial raise after the election.
Collins did not state any amount and said that he could
not. Collins said he would try to operate the place with
the raises for 6 months if he won the election. Collins told
Sorrell that he had a list and was going to put Sorrell
down "over here." Sorrell did not see the list, but Collins
said something about its color. Sorrell said he would not
hurt Collins and that Collins could take that anyway he
wanted to. There was a paper lying on Collins' desk but
Sorrell did not know what it was. Collins asked Sorrell
how his "buddy" Homer Jenkins felt about the election.
Sorrell replied that he did know, that sometimes Jenkins
felt one way and sometimes the other, and that he could
not tell Collins how Jenkins felt.
b. Carl Shepherd
On the day before the election Collins came to Carl
Shepherd's house and asked him if he was going to the
election." Shepherd said he was. Collins said he had a list
of names of persons who were at the union hall. Collins
held it up, showed it to him, and said Shepherd's name
was on it." Shepherd said that he did not care and that he
was there. Collins named some of the speakers who were
there including Union Representative Waters and one or
two others.
"Shepherd was not recalled by Respondent until after the election
"Shepherd testified that the list he was shown had names written in
pencil Shepherd was shown a copy of the eligibility list prepared for the
election and testified that he did not remember seeing it before and did not
know if Collins had that list with him at the time of his visit
COLLINS MINING COMPANY 231
c. Harold Cade e. Donald Cade
In early June Oakley Collins spoke to Harold Cade
about the election at the mine . Collins told him that if he
won the election he would give Cade a raise and that if he
lost he would have to shut the mine down. Cade had
another conversation with Collins about a week after the
election. Collins asked him if he had been attending union
meetings . Cade said that he had. Collins took a list of
those who attended meetings out of his pocket, read the
names to him, and folded it back up. The list which
Collins read appeared to Cade to be accurate.
d. Franklin Carmon
Sometime after the representation case hearing around
the time the date of the election was set, Collins spoke to
Franklin Carmon and his brother Arthur on the day after
a union meeting. Collins asked if they went to the
meeting. They said they did. Collins asked them why.
Franklin Carmon said that he wanted to find out what
was going on and when the election was going to take
place. Collins said that if there was anything going on that
Carmon should know, Collins would let him know.
About a week before the election in early June, Oakley
Collins came to the hill where Franklin Carmon was
working and talked to him about the election. Collins
asked him which way he was going to vote. Carmon
answered that he did not know. Collins had two sheets of
paper with him. He said he had the names of those who
were going to vote for him on one list and those who were
going to vote against on the other . He said that Carmon's
name was on the list of those that he figured were against
him. Collins asked Carmon if he would vote for him so
that he could move his name to the other list. Carmon
said he would not do like some of the others and lie to
Collins by telling him that he would vote for him and then
do otherwise. Collins said he did not want him to lie to
him. Collins told him not to mention the conversation to
anyone.
On various other occasions following union meetings,
Collins asked Carmon who was present and how many
attended . On occasion when Carmon did not state the
correct number, Collins corrected him."
On June 10, Collins went to Carmon's house to talk
with him . A union meeting was scheduled for the
following day. Collins asked Carmon if he was going to
the meeting. Carmon said he was. Oakley Collins asked
him if he would stay home. Carmon replied that he had to
go because his wife was planning to help with a planned
family dinner. Collins asked him to talk with her to see if
he could not get her to stay home. They talked further
about the election and how long Carmon had worked with
him. Collins said that if the Union came in it would run
him out of the business and that it looked as if Carmon
did not care too much about it. Collins told him that if he
did not care for himself he should think about some of the
older men who could not get a job anywhere else and
would be run off the job if he helped vote the Union in.39
"Carmon testified that these incidents occurred both during the strike
and before the election.
"Collins did not testify as to this conversation with Carmon although he
denied making a request to Aldridge not to attend union meetings. I have
credited Carmon
Oakley Collins talked to Donald Cade about the Union
several times after Cade returned to work and before the
election. Cade testified that several times after union
meetings Collins spoke to him on the job and told him to
stay away from union meetings. On one occasion shortly
before the election when Cade took his truck to the
garage for repairs Oakley Collins told him he ought to
decide which side he was on because he had a red list and
a blue list and the ones on the red list were going out of
there when the thing was over. Collins had a couple of
pieces of paper in his pocket which he lifted part way out
and shoved back without showing them to Cade. °°
On one occasion Collins asked Cade who was at the
union meetings. Cade declined to tell him. Collins showed
him a list and said he already knew who was there and
would tell him how many were there.
Later on a Monday following a Sunday union meeting
at which food had been served, Oakley Collins stopped
Cade on the job and asked if he had been at the Sunday
meeting. Cade answered that he had. Collins asked if he
took his wife. Cade said yes. Collins asked why he went.
Cade said they served them a good dinner there. Collins
said he should not have gone and that if he wanted a good
dinner Collins would have bought it for him.
On several different occasions Collins told Cade that it
was impossible for him to operate under the Union and if
the Union was voted in he would shut the place down.
Collins also told him that if the Union did not win he
would give them an overtime premium and a raise, but he
would not tell him how much the raise would be.
f. Andy Jack Akers
On June 10 on his way home from work Andy Jack
Akers stopped at Lester Robinson's house with Union
Representative Russell and William Malone. After a while
Akers left, stopped at Johnny Sparks' home, and then
went to his own home. Shortly after he arrived home
Oakley Collins arrived there. Collins asked Akers if
Robinson was trying to get him to vote for the Union.
Collins did not make any threats of retaliation in the
event Akers voted for the Union or promises in the event
that he voted against it . Collins never talked wages or
promotions with him. However, Collins told him at the
time that he would make things right for him if he voted
for the Company which he took as a promise.
g. Clayton Henderson
Around June 1 Oakley Collins told Henderson that
they would get a raise starting after June 15. Collins said
nothing else in connection with the increase and did not
condition it on the election. On another occasion Collins
said that he could not afford to run the plant under the
Union and would shut it down if it went union.
On Friday, June 9, Oakley Collins and Pete Chaffins
came to Henderson . Collins showed him a sample ballot
and told him he wanted him to get in there and vote no
on June 13. That was all he said on that occasion.
On June 12, the day before the election, Collins spoke
to Henderson as he was going to work. Collins told him
the Union was slacking off and that there were not as
many members attending union meetings."'
"Although Collins testified that he did not tell Aldridge to stay away
from union meetings, he did not similarly testify as to Cade I have
credited Cade.
"There had been a meeting the previous day, Sunday , June I l
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
h. Johnny Sparks
On June 5, 1967, Oakley Collins stopped Johnny
Sparks at work and asked him to get into his car . Sparks
did. Collins said he was not supposed to talk about the
Union but that if the Union came in it would be
impossible for him to operate under the contract and he
would have to shut down and sell his equipment before he
went bankrupt . Collins said if it did not get in he would
give them all a nice raise in their pay." Collins pulled a
piece of paper out of his pocket and said he had been
around to the men and wanted them to sign that they
were not going to vote for the Union . Collins asked if he
could put his name on it. Sparks told him yes. Collins
signed Sparks' name and put an X in front of it . Sparks
did not see what else was on the paper.
i. Curtis Leffingwell
The day before the election Oakley Collins came to
Curtis Leffingwell ' s house and told him that he wanted
him to be sure to vote right . Collins told him that if he
ever needed a favor not to be afraid to ask him.
Immediately after the election, Collins came to his house
and asked him how he voted . Collins mentioned that he
was pretty sure that he had Lee Middleton' s vote. Both
Leffingwell and Middleton cast challenged ballots . Collins
said he thought he had it won."
j. Carlton Malone
Two or three weeks before the election Oakley Collins
came to the home of Carlton Malone and asked him if he
would vote against the Union. Collins said that it would
be impossible for him to run under union conditions and
that if Malone voted against the Union he would be sure
of a job." Malone had not returned to work for
Respondent at that time . Collins told him that just about
every man had said he would vote against the Union, but
did not say how he knew.
k. James Jenkins
On June 12 Oakley Collins visited the home of James
Jenkins . Collins said he had come to see him about the
election and would like Jenkins to help him out in the
election . Jenkins said he would . Collins said if the Union
came in he could not operate under their ridiculous prices,
especially with the 40 -percent royalty , and they would all
be out of jobs . Collins asked Jenkins if he worked with
George Sparks at Clark Wire where Jenkins was working
while awaiting recall . Jenkins said that he did . Collins
asked him to talk to Sparks and said that Sparks would
vote for Collins if Jenkins spoke to him.
1. Lawrence Otworth
On June 5 Lawrence Otworth, who had not yet been
recalled to work , was called to Respondent ' s office.
"Collins said he was not supposed to discuss money with them , but did
not say that he could not.
"Collins did not deny this testimony , but conceded that after the election
he had asked an individual who had cast a challenged ballot how he had
voted on advice of counsel because they wondered about it.
"Collins did not testify as to the statement attributed to him by Malone
that if Malone voted against the Union , Malone would be sure of a job.
Collins told Otworth he would have to lay the law down
to him. Otworth replied that Collins could not lay the law
down to him because he was not working . Collins said
that he had intended to put Otworth back to work, but if
Otworth was going to talk like that, Collins did not know
that he would. Collins then asked Otworth if he had
decided how he was going to vote in the election. Otworth
replied that he would vote the way he wanted and no one
would know how he voted. Collins said it would be all
right with him if Otworth did not vote at all. Otworth
asked Collins what would happen if the Union lost the
election. Collins told Otworth he would give him a quarter
raise but that Otworth should be quiet and not tell the
Union about it. Otworth then reminded Collins that when
he was called in he thought he was going to be put back
to work. Collins told him he would take a chance with
him and to report on June 7 for work.
in. Frank Laber
Around August 1 when Frank Laber was recalled to
work, Oakley Collins asked him if he had signed any
statements for the Board . Laber replied that he had, and
Collins told him not to sign any more. Collins also told
him not to go to any more union meetings."
n. James Aldridge
Testimony of James Aldridge that in early May Oakley
Collins asked him not to go to union meetings or fool
around with the Union was specifically denied by Collins
who gave a different version of their conversation. The
fact that this relatively unimportant conversation was
singled out for specific denial when so many more
significant conversations were either ignored or denied in
only general terms by Collins persuades me that Collins
should be credited in this denial."
o. Willie Martin
On the day before the election , Oakley Collins visited
Willie Martin at his home and asked him to persuade his
son-in-law, Andy Jack Akers, to vote against the Union.
Martin said his son -in-law would make his own decision
and Martin would not interfere with him . Collins named a
number of individuals , including the wives of some of the
employees, and asked if they had been at the union
meeting on the previous day. Martin replied that he did
not pay much attention to who came and went . Collins
also asked what Bascom Owens had said about Collins at
the meeting . Collins told Martin that he could not operate
under the Mine Workers contract."
"I have credited Laber over Collins' general denial that he questioned
any employees about whether they had given statements to the Board
"Aldndge also testified that on an unspecified date he asked Collins if
he was going to give a raise and that Collins replied that he was going to
give a big one. Aldridge conceded that the Union was not mentioned at the
time Lacking more specifics as to the timing and context of this exchange
as well as Aldridge's further testimony that Collins had never promised
him a raise , which was ambiguous as to the time period referred to, I find
this testimony insufficient in any event to establish a promise of an
increase related to the election.
"I have credited the testimony of Martin as to this conversation insofar
as it was not contradicted. Oakley Collins denied other testimony of
Martin, who was never recalled after the strike. As I have noted, in his
testimony, Collins was asked specifically about the testimony of only a few
COLLINS MINING COMPANY
p. Oscar McCann
One afternoon about a week before the election Oakley
Collins called Oscar McCann to the office and asked him
which way he was going to vote. McCann said he did not
know. Oakley Collins said that if the Union came in he
would probably have to go bankrupt and asked if he
wanted to see him go bankrupt. McCann said he did not
want to see anyone go bankrupt. Collins asked him if he
could give him a definite answer before the time of the
election on how he was going to vote. McCann said he
would try to do so. Collins said he was going to work his
friends more than his enemies and that he could not work
his enemies.
On the Monday before the election Oakley Collins
talked to McCann in the parking lot. He asked McCann
if he had made up his mind how he was going to vote.
McCann said he would have to let him know. Collins
again told him that he could not operate under union
conditions. Collins asked him who was at the union
meeting that Sunday. McCann testified that he did not
know the faces of all of them and there was not much he
could tell him about that. Collins asked him what kind of
food had been served at the meeting . McCann told him,
and Collins said jestingly that he could have done that."
q. Bascom Owens
Bascom Owens testified to two conversations with
Collins, one a week before the election and the other just
before the election. Collins specifically denied the remarks
attributed to him by Owens. Owens testified that another
employee, Orville Self, was present at the first of these
conversations, but Self was not called as a witness.
Owens' testimony on cross-examination left some doubt as
to the extent to which his testimony was colored by
feelings of partisanship for the Union. Accordingly, I have
not credited Owens as to these conversations.
of the many witnesses called by the General Counsel and otherwise met the
remaining testimony with general denials or left it uncontradicted. I have
attached greater weight to the specific contradictions which required
Collins to focus on the identity of the witnesses who testified to the
contrary than upon his general denials which were unaccompanied by any
recital of Collins' version of the specific conversations to which the General
Counsel's witnesses testified.
"McCann was one of the witnesses to whom Collins addressed himself
directly in his testimony. Collins testified that it was not true that he told
McCann he would probably go bankrupt if the Union came in , he would
work his friends more than his enemies, or that he asked McCann who
attended union meetings . He testified that he told McCann on two or three
different occasions merely that it would be economically impossible for
him to operate with the Union and McCann said he believed that He
testified that his conversations with McCann were friendly and he never
asked McCann to do anything . While, as I have indicated , this testimony
gives me more pause than Collins' general denials, I have concluded that
McCann is to be credited . McCann was employed at the time of the
hearing and gave every appearance of candor in his testimony When
testifying concerning physical examinations for drivers which the General
Counsel contended were required for discriminatory reasons , McCann
readily conceded that he was told that an examination would be required
before the Union ever appeared on the scene. His testimony discloses a
conversation in many respects similar to those described by other
witnesses, and I am convinced that in two or three conversations with
McCann, Collins did not restrict himself to the simple repetition of the
statement that it would be economically impossible for him to operate In
addition to his testimony on which the above findings are based McCann
also testified that at the time of his second conversation with Collins, he
saw a list of names with red and blue check marks on it on Collins' car
seat As he did not testify that Collins made any reference as to this list, I
find it unnecessary to make any findings with respect to this testimony
r. Ronald Bruce
233
On June 11, 1967, Collins came to the home of Alfred
Turvey, father-in-law of Ronald Bruce, and drove Bruce a
short distance away to talk with him. At first they talked
about hunting and fishing. Then Collins told Bruce he had
come to talk to him about the election. What happened
thereafter is in dispute. According to Bruce, Collins asked
him if he would vote against the Union, and Bruce did not
tell Collins either way. Bruce testified that Collins told
him that if the Union got in they would both be out of a
job, but according to Collins he stated merely that it
would be economically impossible for him to operate with
the Union. Bruce testified that during this conversation
Collins gave him some money, told him not to tell anyone
about it, and asked Bruce if he had any gas in his car.
According to Bruce, Collins told him to fill up his tank
and go around and see if he could get some of the other
employees to vote against the Union. Collins testified that
he gave Bruce $9 in cash because Bruce told him he did
not have any gas in his car, did not have any food for his
children, and was in dire need. Since Bruce had been out
of work for a long time, Collins testified that he told
Bruce that if he needed money he would loan him a few
dollars until he came back to work when it could be
deducted from his pay. According to Collins he informed
his office manager of the amount of the loan shortly after
it was made and it was deducted after Bruce returned to
work. Bruce conceded that he had been out of work since
December, but he denied that he asked to borrow money
at that or any other time, although it was a common
practice for employees to borrow money and repay it
directly or through a payroll deduction.
According to Bruce, during their conversation Collins
told him that if he defeated the Union, Bruce would be
called back to work in a week or two and would be
making $100 a week. Collins testified only that he told
Bruce that anyone could make $100 or more providing
they worked.
It is clear that after Bruce returned to work in
December 1967, which was after issuance of the complaint
herein, a deduction in the amount of $9 was made for a
loan from his December 31, 1967, pay. Bruce testified
without contradiction that at the time of the deduction, he
asked Collins why it was made, and Collins replied that
he had borrowed the money, which Bruce disputed."
In support of Collins' version, Arlen Sturgil,
Respondent's office manager, testified that Collins told
him of the loan at the time it was made and that he made
a note to place in Bruce 's personal file until it was repaid.
The note, bearing a date of June 17, 1967, was received in
evidence.
There is some basis to discount the December
deduction from Bruce's wages, as Bruce promptly
protested the deduction and at the time Respondent had
been apprised of the allegation in the complaint that
Collins had given money to employees to induce them to
persuade other employees to vote against the Union. The
disparity in the date of the note, which shows a date after
the election whereas the conversation by all accounts
occurred before the election, also raises some question as
to its validity. On the other hand, I am struck by the fact
that although the complaint alleged no specific amount of
money, both the note and the deduction were in the
"Although Respondent ' s office manager testified that Bruce did not
dispute the deduction , Collins did not contradict Bruce' s testimony in this
regard.
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
amount which Bruce testified he was given 6 months
earlier. In the light of Sturgil's corroboration of Collins
and the lack of likelihood that Collins would have recalled
the precise amount which he gave to Bruce had he not
recorded it close to the time of their conversation, as well
as the improbability that he would have recorded the
amount if he did not anticipate repayment, I have
concluded that Collins is to be credited as to the
circumstances under which Bruce was given the money.
Lacking confidence in Bruce 's testimony as to the loan, I
further credit Collins' version of their conversation.
s. William Howell
William Howell testified in some detail as to
conversations between him and Oakley Collins in which
Collins asked him to observe union meetings for him and
offered him money to spend in trying to obtain
information from employees and to induce them to vote
against the Union. According to Howell, Collins gave him
$20 on five occasions and $40 on a final occasion at
weekly intervals for 6 weeks before the election." The
testimony of one witness , Carlton Malone, whom I have
otherwise found credible, was offered to corroborate
Howell by showing that Howell had sought to induce
Malone to vote against the Union by offering him a dollar
which he described as Respondent ' s money . Howell also
testified to several other conversations with Collins on
which allegations of the complaint were based.
Howell ' s testimony was placed in sharp issue. Collins
denied most of it in considerable detail, testifying that on
two occasions he made loans to Howell in the amount of
$20 each but that he never gave money to Howell in the
circumstances Howell described . He also denied that he
asked Howell to observe union meetings. Howell's
reputation for veracity was attacked by the testimony of
two witnesses , and Howell ' s admission that he was a
heavy drinker was amplified by further evidence of his
alcoholic history. Testimony was also introduced to
contradict denials of Howell that he had made threatening
statements concerning a nonstriker during the strike.
Despite the concentrated attack on Howell ' s testimony,
there is some cause to doubt its success . Although Collins
testified that he loaned Howell $20 on two occasions
during the 6 weeks before the election , no evidence of
repayment by Howell was offered, despite the fact that he
was continuously employed during this period by
Respondent ." It is also clear from the testimony of
Arthur Dickens and the lack of disavowal from Collins
that Howell furnished information to Respondent
concerning attendance at union meetings, although it is
not conceded that Respondent requested it.
However , there are other offsetting considerations.
Despite the fact that Howell claimed to have received
$140 above his regular pay during the 6 weeks before the
election , he conceded that he requested a $20 loan from
Dickens during the same period . Although he denied
borrowing money from both Collins brothers during this
period, he conceded that he had done so on other
occasions. This testimony raises both a question as to why
he would have needed additional funds at this time and
why he went to Dickens for a loan if he had no
outstanding loans from either Collins . Although Howell
"Howell also testified that Collins gave him $28 every time he sat out on
a Saturday, but this testimony was not further explained.
"The lack of this evidence is in marked contrast to the evidence offered
with respect to Bruce.
testified that he was given money by Collins to drink and
talk with other employees and to try to solicit their votes
against the Union , there is scant evidence to show that
Howell did what was asked beyond observing union
meetings and reporting as to who was there . Howell
testified that Collins named some employees that he
wanted Howell to talk to and that he told Howell certain
things to say to them . Yet despite the fact that some of
the named employees were called by the General Counsel
and the complaint alleged that Howell was an agent of
Respondent, none were asked whether Howell had spoken
to them about these matters , and indeed only a single
witness testified to solicitation by Howell . In view of the
attack on Howell's credibility the failure to show greater
evidence of his antiunion activity raises doubt.
While one may argue that Howell's reputation and
drinking habits made him an ideal choice to serve as a
paid informer , since his credibility could be readily
attacked if it developed that he was a double agent, one
may not ignore the fact that his reputation and drinking
habits raise serious questions as to his credibility, going as
they do, not only to his veracity but also to his reliability
as an observer and reporter. Also it may be questioned
whether one in his position is not more likely than one
with a more stable history to volunteer his services in the
hope of currying favor or gaining future reward."
In sum, there is sufficient cause to doubt Howell's
crediblity that I am not persuaded that he should be
credited. It may well be that Howell's testimony in these
areas was not wholly without foundation and that Collins
made some of the statements that Howell testified were
made to him, but there is sufficient doubt so that I do not
rely on Howell's testimony where contradicted. I do find,
however , upon consideration of his testimony in
conjunction with that of Oakley Collins and Dickens, that
Howell did volunteer information as to attendance at
union meetings to Collins and Dickens.
t. Concluding findings
The evidence set forth above establishes a number of
the violations of Section 8(a)(1) alleged in the complaint.
Thus, during the period before the election Oakley Collins
questioned a number of employees about their voting
intentions , " the union sympathies of other employees,90
whether they were going to vote ," attendance at union
"In this connection a puzzling fact is that when Respondent gave a
general increase on June 16 , 1967, Howell was not given the increase, and
resigned on the following day because he did not get a raise At that time,
at his request , he was given a letter of recommendation by Oakley Collins.
However , on June 20, Howell returned to ask to be reemployed and was
employed It would seem that if Howell had served as an observer at
Respondent's request and had been given money to spend in drinking with
other employees, he would not have been denied the pay increase generally
given to other employees , thereby giving him a reason to reveal his
activities to the Union, particularly if as he testified , he had been offered
an increase during the strike to return to work Nonetheless, even if
Howell had acted as a volunteer , as Respondent had long tolerated his
drinking and had paid him at a higher rate of pay than most of its other
employees, it is difficult to understand why he was not given an increase at
this time It seems clear that as Collins testified, for one reason or another,
he believed it would be good for Respondent if Howell quit and he did
nothing to stop him. While the reason may be unclear , it seems less likely
that Collins would have seen fit to permit Howell to quit because of
dissatisfaction if Howell was in a position to make revelations damaging to
Respondent than if he had merely volunteered information to Respondent
"Andrew Sorrell , Franklin Carmon , Carlton Malone, Lawrence
Otworth , Oscar McCann
"Andrew Sorrell
"Carl Shepherd, Oscar McCann.
COLLINS MINING COMPANY
meetings , 66 why they attended union meetings," and the
union activities of other employees ." In addition , Collins
asked Frank Laber whether he had signed statements for
the Board and asked Curtis Leffingwell how he had cast
his challenged ballot . All of this questioning exceeded the
bounds of any proper inquiry, and particularly in the
context of the other coercive statements which frequently
accompanied the interrogation , violated Section 8 (a)(1) of
the Act. By various comments Collins also created the
impression that he was maintaining a surveillance over
their union activities by keeping lists of those for and
against the union" and lists of those who attended union
meetings , "" describing who attended or what happened at
union meetings," indicating awareness of meetings with
union representatives," and stating that he knew the
voting intentions of the other employees." This conduct
also violated Section 8(a)(1).
Collins also told a number of employees both that he
could not operate the mine under the Union but would
give them raises if the Union was defeated ." In some
instances he told employees he could not operate with the
Union without mentioning the increases ," ' and vice versa."
In one instance without being specific , Collins told Andy
Jack Akers he would make things right for him if he
voted for Respondent. He also told Curtis Leffingwell that
if he ever needed a favor, not to be afraid to ask him. He
told Carlton Malone before Malone returned to work that
he could not operate with the Union but that if Malone
voted against the Union he would be sure of a job. Collins
told McCann that he would work his friends more than
his enemies.
Collins' statements that he could not operate under the
Union must be considered in the context of the Union's
campaign . In its initial letter to the employees , the Union
set forth the wages and benefits paid employees under
union contract in strip mining operations . Those wages
and benefits exceeded by far those granted by Respondent.
As the Union sought to organize Respondent's employees
by pointing to these as benefits the employees would
derive from a union contract , it was not unreasonable for
Respondent to reply by pointing out that it would be
economically impossible for it to operate and pay these
benefits . Although I am persuaded that Collins said more
than merely that it would be economically impossible for
him to operate , I am also persuaded from the testimony
of Collins and the employees that after the settlement
Collins' statements to the effect that he would be forced
to shut down were not intended to and did not convey the
thought that Respondent would shut down in retaliation
for the employees ' union activities but as a consequence of
the impossibility of operating under the terms of the
contract which the Union advertised. This far Collins was
entitled to go without violating the Act."
"Harold Cade, Franklin Carmon , Donald Cade, and Willie Martin.
"Franklin Carmon
"Andy Jack Akers.
"Andrew Sorrell , Franklin Carmon , Donald Cade, and Johnny Sparks.
"Carl Shepherd , Harold Cade, and Donald Cade.
"Carl Shepherd , Franklin Carmon , Clayton Henderson , and Willie
Martin.
"Andy Jack Akers.
"Carlton Malone.
"Andrew Sorrell , Harold Cade , Donald Cade , and Johnny Sparks.
"Carl Shepherd (Shepherd conceded that he was never promised
anything to vote a,Qeytainsway), Franklin Carmon , Clayton Henderson,
James Jenkins, and Qscar McCann.
"Clayton Henderson and Lawrence Otworth
"Wilmington Heating Services , Inc., 173 NLRB No . 15, Wagner
235
However, Collins did not stop at this point, for at times
coupled with this prediction of the consequences of a
union victory and at times independently, Collins told the
employees that a union loss would bring them a wage
increase and an improved overtime allowance. Although
there is some evidence, as set forth below, that
Respondent had told the employees before the Union
campaign started that there would be a wage increase
when a new shovel became operative at Fox Hollow, what
he said before the election did not merely repeat that
promise . Rather Respondent promised an increase if the
Union lost the election and made good on its promise
immediately after the election and before the condition of
the earlier promise was satisfied. I find that the promises
of wage increases before the election violated Section
8(a)(1) of the Act." Also unlawful were Collins' less
specific offer to Akers to make things right for him if he
voted against the Union, his solicitation of Curtis
Leffingwell to ask a favor of him if he ever needed it, his
implied promise of employment to Carlton Malone, and
his combined threat and promise to Oscar McCann that
he would work his friends more than his enemies which
contained promises of benefit and a threat of reprisal in
violation of Section 8(a)(1) of the Act.
Finally, I conclude that Collins' statements to Lawrence
Otworth at the time of Otworth's reemployment carried
with them a threat of reprisal in violation of Section
8(a)(1). While there is some ambiguity in Collins'
statement that he would have to lay the law down to
Otworth, Collins' questioning of him as to his voting
intentions and his comment that he would take a chance
with him support the conclusion that by laying the law
down to Otworth Collins referred to Otworth's union
activities and not to his work. Absent any contrary
explanation, I conclude that Collins sought to convey to
Otworth that his chances for employment were related to
his response both then and in the future.
I do not find, however, that Collins' requests to
employees to stay away from union meetings or his
request to them to vote no (as distinguished from his
questioning of them as to their voting intentions) were
violative of the Act. In view of my disposition of Howell's
and Bruce's testimony, I also conclude that the allegations
of the complaint that Howell was an agent of Respondent
through whom Respondent violated the Act, as well as the
allegations that Respondent bribed both Howell and Bruce
should be dismissed."
3. Alleged surveillance
A number of witnesses testified that they saw Oakley
Collins in the vicinity of the Steelworkers hall at
Southpoint, Ohio, on several occasions at times when
Respondent's employees were attending union meetings
there. Several employees testified simply that they saw
Collins drive by the hall without stopping.'° Collins
conceded that he drove by the hall on many occasions and
two or three times as he passed he saw some of his
employees gathered in front of the hall. The entrance to
the union hall parking lot is located on a heavily traveled
Industrial Products Co., Inc, 170 NLRB No. 157.
"Phillips Industries , Inc, 172 NLRB No. 32
"Further allegations that Denver Richards was an agent of Respondent
through whom it engaged in additional violations of Sec. 8(a)(l) were
dismissed on motion at the hearing.
"Frank Carrico , Clyde Matthews, Andy Jack Akers, and Frank Laber.
According to Akers, the horn of Collins' car was sounded and Collins
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
highway which the hall faces. The highway runs from
Ironton to Southpoint where the plant of one of
Respondent's customers is located. Collins had cause to
go to Southpoint from time to time in connection with
business and other matters."
In dispute is whether Collins did more than drive by the
hall and on one or more occasions entered the parking lot
of the union hall or an adjacent restaurant to stop there.
Collins denied that he ever was on the grounds of the
union hall, with one exception which occurred after the
events herein. Five witnesses testified otherwise. Carl
Shepherd and James Jenkins who were employed by
Respondent at the time of the hearing, and Lester
Robinson, who was not, testified that on Sunday, April
16, during a union meeting, a group of men, including
them, left the hall and observed Collins in his car on the
parking lot between the hall and an adjacent restaurant.
According to them, Collins drove out of the lot onto the
highway while they were watching.
William Malone , who was employed by Respondent at
the time of the hearing, also testified that he saw Collins
on the parking lot near the hall on April 16.'= According
to Malone, it was at night after the end of the meeting
around 9:30 p.m. when he saw Collins.
Willie Martin, who was also not employed by
Respondent at the time of the hearing, testified that he
saw Collins pulling out onto the highway from the parking
lot. Martin was confused, however, as to the date of this
incident which he first placed during the strike, and then a
week before the election.
Shepherd and Jenkins both of whom were employed at
the time of the hearing impressed me favorably as
witnesses. Shepherd in particular was direct and to the
point in his answers both on direct and cross-examination
and readily conceded that no threats or promises were
made to him and that he was never asked to vote against
the Union by Respondent. Robinson, although not an
employee at the time of the hearing also impressed me as
credible.
Although there are differences in the details described
by them, after careful reflection I am persuaded that
Shepherd, Jenkins, and Robinson sought to convey
truthfully what they observed on the occasion with
discrepancies in their versions flowing either from failure
of observation during a short interval of time or failure of
recollection. I am not persuaded that these failures are
sufficient to warrant the conclusion that their testimony
that they saw Collins on parking lot were fancied or
invented, and I credit their testimony that Collins drove
onto the parking lot near the Southpoint hall on April 16
where he was observed by some of the employees.
In the case of Malone, I have rejected his testimony
with respect to another incident of alleged nighttime
surveillance . Malone's identification of the day as a
weekday and his placement of the time of the incident
later than the other witnesses and after the end of the
meeting leaves in doubt whether he was describing the
same incident as the other witnesses. I do not rely on his
testimony as to this incident. As for Martin, it is difficult
to tell from his brief testimony when the incident which he
described occurred and whether it was the same incident
as that described by Shepherd, Jenkins, and Robinson. I
base no further findings on his testimony in this regard.
As for those occasions when Collins was observed
merely driving by the Southpoint hall, for the reasons set
forth above in connection with similar incidents during the
strike, I find the evidence insufficient to establish that
Collins sought thereby to engage in surveillance of the
employees' union activities. However, absent any evidence
to show a purpose unrelated to observation of union
activities, I conclude that Collins' presence on the parking
lot near the hall was not coincidental and was for the
purpose of engaging in surveillance of the meeting in
violation of Section 8(a)(1) of the Act. In reaching this
conclusion I have considered the abundant additional
evidence, much of which is uncontradicted, which
establishes Collins' continuing interest both before and
after execution of the settlement agreement in the identity
of employees attending union meetings.
4. The wage increase
On Friday, June 16, 1967, 3 days after the -election,
Oakley Collins assembled the employees and told them
that he was trying to work out increases for them and that
no one on the job would make less than $100 a week if
they came out and worked. A number of employees were
given increases effective that date." At this time
Respondent also started to pay at least some of its
employees time and a half for overtime work.
Oakley Collins testified that before the union
organizing campaign started, when Respondent purchased
a Marquette electric shovel and made plans to consolidate
its mining operations at Fox Hollow, Collins had told
some of the employees that there would be a reasonable
wage increase when the shovel got to Fox Hollow. Until
the strike Respondent mined at two separate locations.
Two weeks after the strike, mining activities at one of the
locations, LaGrange, were terminated and Respondent
began to move equipment from LaGrange to Fox Hollow
to consolidate operations and equipment at that location.
Although the Marquette shovel had been purchased a year
before, it had not been moved to Fox Hollow at the time
the increase was given and did not in fact become
operative until late 1967, at the time when Andrew Sorrell
and Bascom Owens were transferred from operators' to
oilers' duties."
A number of employees testified that they had heard
rumors before the Union appeared on the scene that there
would be increases after Fox Hollow got into production,
although none of them testified that they heard this
directly from Collins. Two employees testified that they
heard that the raise would be given when a shovel was
moved from Superior to Fox Hollow."
I have credited the testimony of Collins that
Respondent had communicated to employees an intent to
grant future increases at the time it began to formulate its
plans with respect to Fox Hollow. As to the exact nature
of the promise, i.e., whether it was contingent on Fox
Hollow getting into production, the move of the shovel
waved It is not clear whether they were describing the same or separate
incidents.
"Although several employees testified that they saw Collins pass the hall
on a Sunday , Collins testified without contradiction that Respondent's
trucks made deliveries to Southpoint on Sundays and that maintenance
problems sometimes required that he go to Southpoint on Sundays.
"Malone described the time as a weekday evening . However, April l6
was a Sunday
"It is not clear whether any employee other than Howell failed to
receive an increase . To the extent that the record indicates, the increases
ranged from 15 to 35 cents an hour and amounted to increases of 10
percent or more above previously existing hourly rates
'This is clear from the testimony of Collins and Laber, as well as
Sorrell and Owens.
"This was evidently a different shovel from the Marquette shovel and it
arrived at Fox Hollow before the election
COLLINS MINING COMPANY 237
from Superior , or the arrival of the Marquette shovel,
while the testimony of the employees as to the rumors is
to some extent more favorable to Respondent ' s position
than that of Collins, I again credit Collins. Collins
certainly was in a better position than his employees to
know what he had in mind. Collins not only testified that
he had promised the increase to take effect when the
Marquette shovel went into operation at Fox Hollow, but
he testified further that when he announced the increases
after the election, he told the men he was trying to work
out a reasonable increase even though the shovel had not
gone into operation yet, explaining that they were in the
process of moving the machine into the area at that time.
I conclude accordingly that Collins had told at least some
of the employees before the union campaign that there
would be an increase when the Marquette shovel became
operative at Fox Hollow."
Although the increases were not granted until after the
election , the increases were unlawfully promised before the
election in the event the Union lost and were granted in
fulfillment of the unlawful promise . The grant no less than
the promise interfered with employee rights and violated
Section 8(a)(l) of the Act.77 As the increase was granted
at a time when the results of the election were
indeterminate because of the challenged ballots and the
possibility that objections would be filed, it must be
viewed as an attempt to further undermine the Union in
the event of either a certification or a second election."
E. The Alleged Postsettlement Violations of Section
8(a)(3)
1. Introduction
Following execution of the settlement agreement, a
period of confusion appears to have existed. Although the
agreement was approved on February 6 and the notice
was posted by Respondent on February 13, the employees
remained on strike until February 20 and did not respond
to Respondent ' s representations that the charges had been
settled . Respondent made efforts to recall employees, but
few employees responded to the recall before February 20.
On or about that date pickets were removed, and
employees began to return to work as called by
Respondent . At that point, although Respondent had
initially indicated to some employees that they had lost
reemployment rights by rejecting offers of reinstatement,
Respondent again offered reemployment to employees as
needed in order of seniority , with exceptions discussed
below, without regard to whether they had refused
reinstatement before February 20.
The complaint alleges that following the settlement
Respondent engaged in further acts of discrimination by
requiring employees to take physical examinations as a
"Collins testified twice that he had told the men there would be an
increase when the shovel arrived at Fox Hollow and once that he told them
there would be an increase when it became operative there . The record
does not indicate the interval , if any , between the time it arrived at Fox
Hollow and the time it became operative in late 1967. However, the time it
became operative would appear more significant in relation to the timing
of a wage increase than the time of the arrival of the shovel, and I
conclude that it was Collins ' stated intent to relate the increase to the
operation of the shovel if, indeed , there was any practical difference in the
two versions.
"N L.R.B. v Exchange Parts Company, 375 U.S. 405; Noma Liles
Corp, 170 NLRB No. 142
"Ralph Printing & Lithographing Co., 158 NLRB 1353, enfd. as
modified 379 F.2d 687 (C.A. 8).
condition of reinstatement, subcontracting work to avoid
reinstating employees who were discharged in December
1966, requiring reinstated employees to perform additional
duties to avoid reinstating other employees, offering
Curtis Leffingwell reinstatement to a position which
Respondent knew that Leffingwell was incapable of
performing to force him to reject the offer, and refusing to
reinstate 15 named employees in accordance with the
terms of the settlement agreement because of their union
activities and in order to discourage membership in the
Union."
2. The requirement of physical examinations
Four employees, all truckdrivers,80 testified that at
various times following the strike, they were asked to visit
a doctor supplied by Respondent to take physical
examinations in order to become eligible to return to
work. None had taken physical examinations previously.
When Otis Martin was asked to take the physical he was
told that it was required by the Interstate Commerce
Commission, and Oscar McCann was told that a physical
examination would be required even before the union
activity began , but he did not take it until after the strike.
I find, as Coleman Collins testified, that Respondent
had been told by an ICC examiner in September 1966
that Respondent had to have all its drivers examined
before January 1, 1967.81 For reasons unrelated to the
union activities of the men the matter was not pursued
before the strike began, but there can be little doubt that
the institution of the requirement of physical examinations
at the time of reinstatement of the drivers was attributable
to ICC requirements and not to any desire to discriminate
against the drivers in their reinstatement . Accordingly, I
find no merit in the allegation of the complaint that
Respondent discriminatorily required the physical
examinations in violation of the Act.
3. The subcontracting
A brief description of Respondent's operations is
required to place the facts relating to this issue in context.
Respondent operates a strip mine . In order to reach the
coal, overburden , which lies above a seam of coal and
consists of dirt and rock or shale , must first be removed.
The coal is then removed. A small portion of the coal
mined by Respondent is sold as raw coal . Raw coal is
delivered directly to the customer from the mine without
further processing . The remainder is separated from slate
or other impurities and taken to the Respondent' s tipple
where it is washed and screened , and then delivered to
customers. Respondent owns two types of heavy hauling
equipment known as cat wagons and Dart haulers which
are utilized to haul coal from the pit to the tipple. It also
owns a number of tractors and trailers which haul coal
over the road to customers.
Respondent conceded that after the strike it used some
independent contractors to haul coal for it , but denied that
the use of the outside haulers was discriminatorily
motivated. Both Oakley and Coleman Collins testified
"At the hearing a motion to dismiss the allegations of the complaint as
to 2 of the 15 named employees, Franklin Carmon and Ted Sergeant, was
granted in the absence of any evidence to support the allegations as to
them.
"Otis Martin , Carl Shepherd, Oscar McCann, and James Aldridge.
"I have credited Coleman Collins in this regard . His testimony is
corroborated by the testimony of Oscar McCann and an ICC report dated
September 27, 1966, which was received in evidence.
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that at the time Respondent started to utilize independent
contractors after the strike, all of Respondent' s equipment
in operating condition was manned , and the contract
haulers were used to supplement Respondent' s hauling
capacity rather than to replace any portion of it.
Following the strike, it appears that Respondent did not
utilize any independent or contract haulers to haul coal
for it until sometime in July 1967.83 The contract haulers
carry loads smaller than those carried by Respondent's
trucks, and for the most part have been utilized to haul
raw coal directly from the pit to two of Respondent's
customers who purchase raw coal.
During the strike one of the customers, a large
industrial plant located at Southpoint, started to purchase
coal from a number of different sources as Respondent
could not fill its needs. It has continued to buy from
multiple sources since the strike. The effect of the increase
in its sources has been that each day many more trucks
made coal deliveries to that plant than before the strike.
Congestion has increased at the unloading area and the
number of round trips a single truck can make in one day
between Respondent's pit and the plant has been reduced.-
At the time the subcontractors began to haul coal,
Respondent's monthly production had been restored
nearly to prestrike levels and in the months which
followed it equaled or exceeded them.
Although the record establishes that some of
Respondent's drivers were not recalled at any time after
the strike, the evidence is uncontradicted that at the time
Respondent started to utilize contract haulers, all of its
operable hauling equipment was manned," and no
evidence was offered to show that Respondent had the
capacity to employ more drivers rather than utilize
independent haulers."
While there is uncontradicted evidence that the earnings
of William Malone, a cat wagon driver, declined during
the period after his recall when independent haulers were
used, Respondent offered testimony, which was also
uncontradicted, that its cat wagons were old and in poor
operating condition so that they were frequently down for
repairs. Although as set forth below there is some
evidence to indicate that Respondent was not anxious to
employ Malone, on the state of the record before me I
cannot conclude that the use of the independent haulers
rather than the poor condition of the cat wagons was
responsible for the decrease in Malone's work
opportunities.
Accordingly, I conclude the evidence is insufficient to
support the conclusion that the independent haulers were
used to evade Respondent' s obligations to reinstate and
"Although the testimony of Coleman Collins at one point indicates that
contract haulers were used immediately after the strike, Oakley Collins
testified that after the strike the first contract hauler appeared on the job
in July . His testimony is essentially corroborated by William Malone who
testified that the contract haulers first appeared after he returned to work
in May, James Aldridge who testified that they first appeared in July, and
Dayton Minix who testified that they first appeared in August
"These findings were based on the uncontradicted testimony of Coleman
and Oakley Collins. Their testimony indicates that a similar problem exists
in connection with deliveries to other customers as well
"Oakley and Coleman Collins so testified.
"Coleman Collins testified that at the time of the hearing Respondent
had 9 or 10 tractor-trailers in operation , and utilized 8 contract haulers all
of whom did not haul for Respondent every day. Collins had 10 trucks of
its own in use before the strike . There is no explanation in the record for
the decrease in the number of drivers needed by Respondent to man its
equipment after the strike , but it would appear that the burden was on the
General Counsel to establish that Respondent could have utilized
additional drivers to overcome the explanations offered by Respondent.
employ its drivers who supported the Union rather than,
as Oakley Collins testified, to supplement Respondent's
capacity to deliver coal and increase its production.
4. The offer of reinstatement to Curtis Leffingwell
The complaint alleges that Respondent required some
employees to perform additional duties to avoid
reinstatement of other employees who were discharged in
December 1966. The complaint also alleges that
Respondent offered Curtis Leffingwell reinstatement under
the terms of the settlement agreement to a job which he
was incapable of performing in order to force him to
reject the offer. As both allegations relate to Curtis
Leffingwell they will be considered together.
Curtis Leffingwell had worked for Respondent for
about 12 years before his discharge. At the time of his
discharge he worked from 6 p.m. to 7 a.m. each night. He
greased Respondent's trucks, changed their oil and filters,
and did other mechanical work around Respondent's
garage . Leffingwell was considered a mechanic's helper.86
At some point after Leffingwell's discharge Oakley
Collins visited his home. Collins told him that he was
sorry he had fired him and would admit that he made a
mistake.87 However, he did not offer Leffingwell
reinstatement at that time.
Around May 1, Leffingwell was called to Respondent's
office. Coleman Collins told him he wanted Leffingwell to
return to work as a mechanic on the hill equipment.
Leffingwell said he did not think he could do the work.
Collins expressed a contrary opinion and said that if he
called Leffingwell's brother, Sam, back they could do the
work together, but that he could not call Sam because
Garland Wineka had not yet been recalled. Collins said
that he could not do what he wanted to because of the
NLRB's supervision of the implementation of the
settlement agreement. Leffingwell told Collins to give him
a week or two to make a decision, and Collins agreed to
give him time.B" Leffingwell was in business for himself
cutting pulpwood at the time and had some equipment
that he wanted to get rid of. He told Collins that he would
need 2 weeks to wind up his business. Leffingwell in fact
made arrangements with another man to learn to operate
Leffingwell's equipment and take it over, but Leffingwell
became dissatisfied with the way he treated the equipment,
and Leffingwell went back to cutting wood.
Immediately after their May 1 conversation, Collins
sent Leffingwell a letter dated May 2, 1967, confirming
their conversation. The letter stated "It is mutually
understood your employment is dependent upon your
ability to perform the duties of a mechanic." An
immediate reply was requested. Leffingwell did not answer
the letter and did not return to the office to discuss the
matter further. However, sometime after receiving the
letter he met Coleman Collins by chance and told him
that he could not return. He was not offered a job
thereafter.
Leffingwell testified that he had done some mechanical
work in his prior employment but could not do all that
was required of a mechanic. As he saw it under the terms
offered him, he would be required to do all kinds of
mechanical work if he accepted the job.
"All witnesses, including Coleman Collins, and mechanics Gordon
Salyers and Frank Russell , who testified for Respondent, so described
Leffingwell
"Leffingwell so testified without contradiction
"Leffingwell testified to this conversation without contradiction.
COLLINS MINING COMPANY 239
Three drivers testified without contradiction that after
the strike the truckdrivers were required to grease their
trucks and change their oil and oil filters . " These duties
had been performed by Leffingwell before the strike, and
no explanation was offered for the transfer of these duties
to the drivers after the strike.
Although the evidence indicates that Leffingwell's
rejection of Respondent's offer of reinstatement may have
rested at least in part on his difficulties in disposing of his
log cutting equipment, it is clear that Leffingwell was not
offered reinstatement to his former or a substantially
equivalent position as required by the settlement
agreement. As will be seen below, Respondent later
sought to justify passing over Garland Wineka to recall
Lee Middleton on the ground that Middleton was a
mechanic while Wineka was only a helper . Respondent
offered evidence at the hearing to establish that
mechanics, unlike helpers, were expected to perform a full
range of mechanical work. Yet Leffingwell, who had not
worked as a mechanic before the strike, was explicitly told
in Coleman Collins' letter of May 2, confirming their
conversation , that his employment was dependent upon his
ability to perform the duties of a mechanic . Whatever
additional reasons Leffingwell may have had for rejecting
the offer, it is clear that Leffingwell, as he told Collins,
did not consider himself qualified to do a mechanic's
work, and it is impossible to say that his response would
have been the same if he had been offered reinstatement
to his former job.
I conclude therefore , at the very least , Respondent
failed to comply with the terms of the settlement
agreement by offering Leffingwell reinstatement to his
former or a substantially equivalent position , and that his
rejection of the offer of a different job did not extinguish
his reinstatement rights.
As noted the complaint alleges that in offering
Leffingwell a mechanic's job, Respondent's purpose was
to force him to reject reinstatement and that Respondent
reassigned some of his former duties to other employees
to avoid reinstating him. There is evidence to support
these allegations. As set forth above, Leffingwell was an
early supporter of the Union and allowed his home to be
used for organizational meetings . Oakley Collins let
Leffingwell know that union organizers had been seen at
his house, and after Leffingwell was discharged, Collins
told another employee that he had gotten the ringleader.
One may not ignore the settlement agreement as an
indication that Respondent changed its ways after its
execution , and indeed Leffingwell himself testified that
Oakley Collins communicated an apology to him at some
point after his discharge. However, measured against
Respondent' s other postsettlement conduct found herein to
have violated the Act, one is drawn to the conclusion that
Respondent's desires to frustrate the Union's efforts to
become the representative of its employees overcame any
good intentions it may have had and colored its treatment
of Leffingwell. If the offer to Leffingwell was made in
good faith and out of a desire to offer him improved
employment because his old job was not then available, it
is impossible to understand why Leffingwell was treated
thereafter as having quit his job when he sought to vote in
the representation election . That Respondent at all times
took the position that Leffingwell was obligated to accept
the offer , in contrast to its treatment to Wineka, who if
anything appeared more qualified than Leffingwell to do a
mechanic ' s work , supports the contention that
"James Aldridge , Oscar McCann, and Donald Cade.
Respondent's offer was not made in good faith. That
Respondent's offer was intended to avoid rather than
fulfill its obligation to Leffingwell also appears from the
transfer of some of his former duties to the drivers. While
these were not Leffingwell ' s sole duties , one cannot
overlook the fact that Respondent's witnesses testified that
during this period it was suffering considerable mechanical
difficulty with some of its older equipment, and indeed
when it recalled Frank Laber in August, Laber was
assigned to work part time as a mechanic's helper despite
the fact that he had previously driven a fuel truck full
time. Thus, it is difficult to conclude that Respondent
could not have utilized Leffingwell's services in his former
capacity. To be sure the inference as to Respondent's
motivation in offering Leffingwell the mechanic's job and
transferring some of his former duties to other employees
is not so strong that it could not have been overcome by
plausible explanations for these actions. But both were
unexplained. I conclude accordingly on the record before
me that Respondent offered Leffingwell reinstatement to a
job he could not perform either to force him to reject
reinstatement or to put him in a position from which it
could justify a later discharge if Leffingwell accepted and
that Respondent assigned duties formerly performed by
him to other employees to avoid offering him
reinstatement to his former job thereby violating Section
8(a)(3) and (1) of the Act.
5. Alleged refusals to reinstate strikers in accordance
with the settlement agreement
a. Andrew Sorrell
Sorrell had been employed since 1953 and worked as a
diesel dragline operator before the strike. Sorrell was third
in order of seniority among the dragline operators on the
preferential hiring list . Immediately after the posting of
the settlement agreement Oakley Collins attempted to find
Sorrell to recall him to work. Sorrell was absent from his
Ironton address during part of this period and Collins did
not find him. He recalled a less senior operator. Within a
week, around February 20, Sorrell telephoned Collins and
asked him if he wanted to talk with him. Collins told
Sorrell that he wanted him to come back to work at the
end of that week. Collins told him that he had been
looking for him for about a week to ask him to return to
work, had been unable to reach him, and had to call
someone else in ahead of him. Within a week thereafter
Sorrell returned to work.99
Even if Sorrell's recall occurred several days after he
spoke to Collins, as Sorrell testified, I find that
Respondent's recall of Sorrell complied with the terms of
the settlement agreement under these circumstances. To
the extent, if any, that Sorrell's recall was deferred due to
earlier recall of a junior employee, the deferral was due to
circumstances not within Respondent's control."
"Sorrell and Collins were in basic agreement as to the content of their
conversation , and disagreed only as to whether Sorrell was asked to come
to work immediately or 6 days later Sorrell 's version of the conversation
corroborates Collins' testimony that Collins had been looking for Sorrell
and had sent word with other employees that he wanted to speak with
Sorrell.
"Evidence was also offered that in January 1968 Sorrell and another
dragline operator, Bascom Owens, were transferred to jobs as oilers,
apparently in conjunction with the replacement of a diesel draghne, which
they had formerly operated , by an electric stripping shovel . Although the
General Counsel adduced some evidence which seemed to be for the
purpose of showing that Sorrell and Owens should have been given jobs
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. Charles Wall
Charles Wall operated a loading shovel before the
strike . The evidence is in some conflict as to an alleged
offer of reinstatement to Wall. All witnesses are agreed
that a call to which several persons listened on extention
telephones was made from Respondent ' s offices to Wall
sometime between February 16 and 19 . According to
Respondent' s witnesses, Wall was told there was a
settlement agreement and was asked to return to work.
They testified, although with minor variation as to the
words used , that Wall indicated that he might come down
and talk it over with them . According to Wall , he could
not hear clearly during the telephone conversation and did
not hear any offer of employment. He testified that he
said that he would come down and talk to them to find
out what the call was about . Wall never went to
Respondent' s office . However, thereafter , on February 19,
Wall tried to reach Oakley Collins at his home by
telephone and on February 21 and 23, he tried to call him
at Respondent's office. He was not successful in reaching
either Collins on any of these occasions."
As set forth above , there was a period of confusion with
respect to the recall of strikers following the execution of
the settlement agreement . The Union maintained its
picket line until February 20, and prior to that date,
employees generally refused to return to work apparently
entertaining doubt that a settlement agreement had been
entered and that the strike was ended. As Coleman
Collins testified, Respondent did not regard these refusals
as quits but started again at the head of the list to recall
employees after the pickets were withdrawn . In these
circumstances , whatever the exchange between Wall and
Oakley Collins during the telephone call, I am persuaded
that Wall's failure to return to work after the call was not
to be construed by Respondent as a rejection of a timely
offer of reinstatement and that Wall did not thereby lose
his reinstatement rights under the settlement agreement.
Thus by removing Wall from further consideration for
reinstatement , Respondent violated the terms of the
settlement agreement.
At the same time, however, it is not clear that after the
strike ended there was an opening to which Wall should
have been recalled . The agreement required only that
Respondent recall strikers in accordance with the order of
listing on the preferential hiring list for a period of 1 year
from the date of the establishment of the list . Prior to the
strike Dayton Minix and Charles Wall operated loading
shovels at Respondent ' s two pits . There are also three
other loading shovel operators listed on the preferential
hiring list , one of whom , Donald Shepherd, was senior to
Wall and two of whom, Robert Joseph and David Miller,
were junior . The evidence is not at all clear as to how
many shovel operators were required and utilized by
Respondent after the strike . Respondent consolidated its
mining operations at the Fox Hollow area shortly after
the strike. Although Respondent continued to utilize two
loading shovels located about I mile apart from each
other, Dayton Minix, a shovel operator who was senior to
Charles Wall, operated both shovels alternately and there
is no evidence that any shovel operators , other than
operating the electric stripping shovel , the complaint does not allege
discrimination against them in this respect. In any event, even if this issue
was properly before me, the evidence does not establish that Sorrell and
Owens were qualified to operate the electric stripping shovel.
"That the calls were made was corroborated by Wall's telephone bill on
which they were listed as toll calls There is no indication whether he left
word that he had called or asked to be called back
Minix, were employed following the strike ." In these
circumstances I conclude that the General Counsel has
failed to establish that there was a job opening for Charles
Wall to which he should have been recalled following the
end of the strike pursuant to the settlement agreement.
c. James Richards
Richards was a bulldozer operator before the strike.
Although the General Counsel contended that Richards
was not properly reinstated in accordance with the
seniority date shown for him on the preferential hiring list,
the General Counsel also sought to establish that the date
shown for Richards on the preferential list was improper
and that Richards should have been third rather than fifth
in order of seniority . While it is arguable that Richards
should have been given an earlier seniority date on the
basis of his testimony that he was laid off because of lack
of work for a period of 8 months during the early portion
of his employment, I conclude that the order of listing on
the preferential hiring list must be considered binding for
purposes of determining whether Respondent complied
with the settlement agreement . The settlement agreement
provided that Respondent was to reinstate employees in
accordance with the preferential hiring list. That list
showed Richards as fifth in order of seniority and no
attempt was made, insofar as the record shows , to have
the list corrected prior to the hearing in this case.
There is also no evidence to support the General
Counsel' s contention that Richards was not recalled in
accordance with his position on the list . Henderson and
Sprouse, both of whom were recalled, appeared above
Richards on the preferential hiring list . Richards was not
recalled until 2 or 3 weeks before the hearing in this case
at which time he refused reinstatement. There is no
evidence that any employee who operated a bulldozer and
was junior to Richards was recalled prior to the offer of
reinstatement made to Richards . Accordingly, I conclude
that Respondent did not violate the obligation that it
undertook under the settlement agreement with respect to
the recall of Richards.
d. Clayton Henderson
Clayton Henderson was a bulldozer operator who
appeared third on the seniority list of bulldozer operators.
Henderson testified that he was recalled on June 5 and
that at the time of his recall there were only two other
bulldozer operators working , both of whom were senior to
him. He was returned to work on the night shift although
he had been working days before the strike . There is no
evidence, however, that Henderson was recalled out of
turn.
The major question raised as to Henderson was whether
replacements who worked as bulldozer operators during
the strike were permitted to continue operating bulldozers
after the strike , at a time when Respondent should have
"Attempts were made to establish that Clifford Giles was employed
during the strike and retained for a time after the strike ended to operate a
loading shovel The evidence establishes that Clifford Giles first appeared
on Respondent ' s payroll on January 16 , 1967, and last appeared on its
payroll on March 24 , 1967. Coleman Collins testified that Giles was hired
during the stoke and operated a small loading shovel . However, the
evidence does not establish in what capacity Giles was employed after the
strike. In any event for reasons set forth in greater detail below in
connection with the reinstatement of Otis Martin , I conclude that any
failure to displace Giles immediately would not establish the existence of
an opening to which Wall should have been recalled
COLLINS MINING COMPANY 241
recalled Henderson . The evidence in this respect shows
that Pete Mullins and Ed Shope had both operated
bulldozers during the strike." According to Coleman
Collins , however , when Respondent began to reinstate
strikers, both Shope and Mullins stopped operating
bulldozers and returned to their former employment.
Respondent ' s payroll records raise some question as to the
accuracy of Collins' testimony, but apart from those
records, there is no affirmative evidence to show that in
fact Shope and Mullins performed bulldozer operator's
work after February 20, 1967." There is some evidence
also that on occasion Foreman Pete Chaffins and grader
operator C.J. Malone operated bulldozers, but there is no
evidence to indicate that the operation of bulldozers by
either of them was more than occasional. I conclude that
the evidence does not establish the failure to reinstate
Henderson in accordance with the terms of the settlement
agreement.
e. Otis Martin
Otis Martin had been an over-the-road truckdriver for
Respondent before the strike started. A few days before
the end of the strike Martin refused an offer of
reinstatement because the pickets had not been removed.
Sometime in March or April Martin was called in by
Coleman Collins who told him that he would need a
physical examination before he could return to work."
Martin was examined. Collins told him that he would
notify Martin when to come back to work. On April 20
Foreman Chaffins, who was Martin's stepfather, stopped
at Martin's house and told him that Coleman Collins
wanted Martin to report for work the next day. Martin
replied that he was working at Clark Wire and would
have to give notice there before he could return to work
for Respondent. Chaffins reported to Collins the next day
that Martin said he could not return then because he
wanted to give notice at Clark Wire. Collins sent Martin
a letter dated April 22 which stated "This letter is to
confirm your notification on 4/2067, by Pete Chaffins, to
return to work on 4/21/67." This letter was received by
Martin on April 24. In the meantime , on the evening of
April 23 Oakley Collins telephoned Martin at Clark Wire
where Martin was working on the 11 p.m. to 7 a.m. shift.
Collins asked Martin to report for work the following
morning . Martin replied that he would be too tired to
work the next morning and that he wanted to give notice
to Clark Wire.
On April 26, Martin's wife wrote a letter for him which
he signed and mailed to Oakley Collins. The letter stated
"You asked me to return to my old job as truckdriver on
full-time. I want to do so and I want to give proper notice
to Clark Wire Co. So I want you to let me know in
"The settlement agreement provided that replacements hired during the
strike who were not in the employ of Collins Mining Company on
December 14, 1966, were to be dismissed if necessary so that strikers could
be reinstated . Shope and Mullins appear to have been on Respondent's
timber operation payroll before the strike and were transferred to the
mining company payroll during the strike where they remained until the
latter part of March.
"For reasons set forth below in connection with Otis Martin , I would in
any event conclude that the General Counsel failed to establish that an
opening existed to which Henderson should have been recalled even if they
were not promptly removed from the bulldozers.
"Before this, shortly after the strike ended , Collins told Martin there
were no jobs because he had not returned to work when he was called.
However, it is clear that Respondent did not treat Martin or others
similarly situated as having forfeited their reinstatement rights.
writing the exact date and time to return to Collins
Mining Co. to work, I will give proper notice to Clarks.
Please let me know as soon as possible." Martin received
no reply to this letter.97
Earl Jenkins who was junior to Martin returned to
work as a truckdriver on February 17 and worked
thereafter." Several new drivers were hired during the
strike. Payroll records indicate that at least two of them,
Lowell Blanton and Truman Rice, continued to work until
March 13, 1967."
There are three questions which must be answered with
respect to Respondent's failure to reinstate Martin. The
first and easiest is whether Martin should have been
recalled immediately after the strike to work in place of
Earl Jenkins, a junior driver. Pay records refute Jenkins'
testimony that he returned to work 2 weeks before the end
of the strike, but they also establish that he returned on
February 17 during the period of confusion which
followed execution of the settlement agreement and the
end of the strike on February 20. Although the strikers'
rights to reinstatement were not extinguished by refusing
to return until the strike ended, the settlement agreement
provided only for displacement of employees hired during
the strike. It did not provide for displacement of former
employees who worked during the strike or of strikers
who had already been reinstated. As Jenkins was
reinstated before the end of the strike, under the terms of
the agreement his displacement was not required to make
room for strikers who appeared above him on the
preferential hiring list. Accordingly, I conclude that
Respondent was not required to reinstate Martin on
February 20 in place of Jenkins who returned a few days
before.
More difficult is the question posed by Respondent's
failure to displace drivers hired during the strike
immediately upon its conclusion to make room for
returning strikers. Although the evidence shows that two
drivers hired during the strike remained on Respondent's
payroll for 3 weeks after the strike ended, it is not clear
whether they were replaced by other drivers when they
left, and no explanation was offered for the failure to
displace them earlier. However, if they were replaced, it
appears that they must have been replaced by drivers
having greater seniority than Martin who, rather than
Martin, were entitled to earlier reemployment. If not
replaced, it would appear that there was at most 3 weeks
work available for Martin and one other driver, as there is
no allegation that Respondent curtailed its production and
employment at that time to avoid reinstating strikers.
Although the record strongly suggests that Respondent
was less than prompt in displacing employees hired during
"These findings are based on the composite of the testimony of Martin,
Chaffins , and Coleman Collins . Although Martin displayed considerable
confusion as to the sequence of events, the letters , registered mail receipts,
and the testimony of Martin and Chaffins in the representation hearing on
April 24, contemporaneous with the events , make the sequence clear.
Where Martin's testimony is in conflict with that of Chaffins, I have
credited Chaffins whose recollection appeared to be better than Martin's.
With respect to the telephone conversation between Martin and Oakley
Collins on the night of April 23, only Martin testified and I have credited
Martin's testimony in that regard except to the extent that the letter which
was written on April 26, contradicts his testimony that Collins stated that
work would probably not be full time.
"Although Jenkins testified that he returned to work about 2 weeks
before the end of the strike , the date of his return was stipulated from
Respondent's payroll records.
"Harold Cade testified that there were five new employees driving
tractor-trailers when he returned to work . According to Cade they worked
for a while and then left.
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the strike, I find it difficult to conclude on the facts before
me, including the confusion which followed the settlement
agreement and the consolidation of Respondent ' s mining
operations at the Fox Hollow area , that the retention of
the drivers for 3 weeks after the strike is sufficient to
establish that there were full-time driving jobs available
for the striking drivers from which the new hires should
have been displaced immediately after the strike in order
to comply with the settlement agreement.
The final question is whether Martin was given a
sufficient offer of reinstatement in April so that his failure
to return at that time may be deemed to have terminated
his reinstatement rights.
Martin was offered reinstatement to his former job on
April 20 and 23. In both instances he was asked to report
on the following day. In both instances it appears that he
declined the offer because of his desire to give proper
notice to Clark Wire where he had obtained employment
after going on strike and in the second instance because he
would be too tired to work for Respondent immediately
after coming off of the night shift at Clark Wire. In his
conversation with Oakley Collins on April 23, Martin
testified that Collins stated that he would have to get
someone to return in Martin ' s place, and James Aldridge
was recalled, reporting for work 2 days later.
There can be no doubt that Martin was offered his
former job but on terms which required that he promptly
sever his employment at Clark Wire and return
immediately to Respondent . Insofar as the record shows,
Martin did not indicate what he considered proper notice
to Clark Wire to be, and when he asked for opportunity
to give such notice , Respondent did not indicate any
period of time that he might be allowed before reporting
to work. Both Coleman Collins' letter confirming the offer
conveyed through Chaffins' and Oakley Collins' telephone
message indicated rather that an immediate return was
required . When Martin sought to pursue the matter
further in his written response, Respondent did not reply.
The reporting dates given Martin first by Coleman and
then by Oakley Collins were not reasonable under the
circumstances . Martin had the right to take interim
employment and could not have been expected to await
recall at some indefinite future time without finding other
work . That he resisted severing that employment without
notice was not unreasonable . When Respondent requested
Martin to return and discovered his reason for refusing to
report on the dates requested , the burden was on
Respondent to adjust its offer to give Martin a reasonable
time within which to conclude his interim employment and
return .' In these circumstances I conclude that
Respondent' s offer to Martin was not a valid
unconditional offer of reinstatement,' and Respondent did
not comply with the terms of the settlement agreement in
passing over Martin to reinstate Aldridge and failing
thereafter to reinstate Martin as other openings arose.
'Although Coleman Collins testified that he sent the letter to give
Martin time to come in , the letter did not indicate that Martin had time
but if anything conveyed that Martin had already failed to report in the
time allowed him, making any action on his part to give notice to Clark
Wire both futile and destructive of his own interests without assurance that
a job awaited him after working out his notice.
'Phis is not to say that Martin was entitled to establish the amount of
time which he required to give notice Had Respondent set a reasonable
date in response to Martin's objections and had Martin then taken the
position that he wanted a longer period , a different question would be
presented . Here Martin twice was offered reinstatement on terms which
gave him no opportunity to give notice to his interim employer, and was
given no alternative after stating his objection.
f. James Aldridge, Oscar McCann and Willie Martin
James Aldridge, Oscar McCann, and Willie Martin
were, like Otis Martin, employed as over-the-road
truckdrivers before the strike. Aldridge and McCann, in
that order, were immediately below Otis Martin in order
of seniority on the preferential hiring list. Although Willie
Martin appeared to believe that he should have been
recalled ahead of Aldridge, he was next to last among the
drivers on the preferential hiring list, and that position
appears to have been warranted by a break in his service
in 1966.'
Aldridge was recalled on April 25, as set forth above,
when Otis Martin failed to report on April 24. McCann
was recalled on May 22. The only driver junior to
Aldridge and McCann at work when they were recalled
was Earl Jenkins. For reasons set forth above, I have
found that Respondent was not required to displace
Jenkins, who returned before the end of the strike, to
make room for other drivers. Likewise, I have found the
record insufficient to establish that there were permanent
jobs available for the drivers immediately after the
conclusion of the strike. In the case of Willie Martin who
was never recalled, there is no evidence that there was any
job opening which his seniority entitled him to fill at any
time prior to the hearing herein. Accordingly, I conclude
that the General Counsel failed to establish that
Respondent refused to reinstate James Aldridge, Oscar
McCann, or Willie Martin in compliance with the terms
of the settlement agreement.
g. William Malone
As set forth Respondent utilizes two kinds of hauling
equipment to haul coal from the pit to the tipple. One is
known as a DW-20 hauler or a cat wagon. The other is
known as a KW Dart hauler. After the strike Respondent
had three Darts and five cat wagons. The Darts were
relatively new and in good operating condition . The cat
wagons had been purchased between 1959 and 1961 and
were in poor condition, having an expected life from 4 to
6 years. Of the five cat wagons, Respondent found it
difficult to keep more than one in operating condition at
any time after the strike.
The cat wagons hold a 40-ton load in contrast to Darts
which hold a 60-to 70-ton load. The cat wagons are slower
than the Darts and can make approximately five round
trips between the pit and the tipple in an 8-hour day. The
Darts can make six or more round trips during that length
of time . There is evidence that cat wagon drivers require
some instruction in the operation of Darts before they can
drive them , but the amount of instruction is in dispute.
Before the strike William Malone drove a cat wagon.
Malone joined the strike. Malone was recalled to work
after the strike on May 1, 1967. At the time of his recall,
Oakley Collins told him that he had been in the Union
with both feet and that he wanted to have a long talk with
him.'
Among the combined group of cat wagon and Dart
drivers, Malone was second in seniority as shown on the
'Harrah 's Club, 158 NLRB 758, 759, 762, J. H Rutter-Rex
Manufacturing Company, 158 NLRB 1414, 1533-34, enfd. as modified 399
F 2d 356 (C.A. 5).
'Although Martin contended that he was justified in quitting his job
because of working conditions , there is no evidence that Martin was
treated differently from any other employee when Respondent dated his
seniority from the date of his most recent hire
'Malone testified to this conversation without contradiction
COLLINS MINING COMPANY
preferential hiring list and he was senior among the cat
wagon drivers. Harold Cade, Johnny Sparks, and Donald
Cade were all recalled to work before Malone.' All three
were listed as Dart drivers on the preferential hiring list,
and Sparks and Donald Cade were junior to Malone.
The General Counsel contends that Malone should have
been offered reinstatement to drive a Dart ahead of
Sparks and Donald Cade, and that after his recall
Malone's work opportunities were limited.
Malone had driven Darts on occasion before the strike
when the regular Dart drivers were absent.' Donald Cade
testified that at the time the strike started there were only
two Darts on the job and he was driving a cat wagon, but
he had regularly driven a Dart before that. It appears that
all of the Dart drivers started out as cat wagon drivers,
and were transferred to Darts as Respondent acquired
them. Harold Cade, who was the first to drive a Dart, was
given instruction by a factory representative in operating
the Darts. Thereafter, he instructed the other employees
when they were assigned to Darts.'
Although William Malone denied that he had ever
refused to drive a Dart, Coleman Collins testified that
Malone in the past had refused to drive a Dart under any
circumstances. He testified that Malone had driven a Dart
with one or two of the other drivers and had made several
trips on his own, but when he sought to induce Malone to
drive a Dart on a regular basis as a relief driver, Malone
refused. The circumstances lend more support to Collins'
version than Malone's, for it appears that Donald Cade,
who was considerably junior to Malone was trained and
assigned to Darts before the strike when Respondent only
had two Darts. Although there is no evidence that
Respondent followed a strict seniority policy, it appears
likely that Malone, a more experienced driver, who had
driven Darts on a few occasions, would have been given
the opportunity to drive the newer Darts on a regular
basis ahead of a younger driver. I credit Collins that
Malone had indicated before the strike that he did not
want to be assigned to drive the Darts.
I conclude that the driving of Darts was substantially
equivalent to driving cat wagons. Both types of equipment
served the same purpose, with the newer Darts being used
to replace older cat wagons. The Dart drivers were
selected from among the cat wagon drivers, and the
amount of training, if any, required to qualify Malone,
who had previously driven Darts on several occasions, was
at most minimal. However, the finding that Dart driving
was substantially equivalent to cat wagon driving does not
determine the order in which the drivers were to be
recalled and assigned . The settlement agreement provided
for establishment of a preferential hiring list without
setting forth the standards to be used in compiling the list.
Although the Union does not appear to have participated
in formulating the list, there is no evidence of objection to
it until this proceeding. The list sets forth all truckdrivers,
including over-the-road, dump truck, fuel truck, cat
wagon, and Dart drivers in a single listing in order of
relative seniority, but indicating subclassifications within
Sparks was recalled on February 27, and Donald Cade, on April 5.
Harold Cade was recalled before Sparks.
'Malone , Sparks, and Donald Cade so testified without contradiction.
'Sparks and Donald Cade testified that their instruction consisted of
riding with Harold Cade on one or two round trips between the pit and the
tipple Carlton Malone , a cat wagon operator , testified that at the time he
was trained to drive a cat wagon, he was given 2 days ' instruction on a
Dart and felt that he would want another week 's training before starting to
drive one on his own . Coleman Collins testified that it would take a week
or two before he would consider a man trained to drive a Dart on his own.
243
the group. It is not contended generally that the
subclassifications were to be ignored in recalling drivers.'
While it may be that Respondent might have ignored the
distinction between Dart and cat wagon drivers in
determining the order in which to recall them, I find it
difficult to conclude that Respondent was compelled to do
so, unless the evidence establishes that Respondent was
discriminatorily motivated in refusing to recall Malone
ahead of Sparks and Donald Cade to drive a Dart.
There is some evidence to suggest such a motivation. In
addition to Oakley Collins' comment to Malone at the
time of his recall that Malone had been in the Union with
both feet, Malone also testified, without contradiction,
that on July 24 Collins asked him and Johnny Sparks if
they had said anything to two of the independent haulers
on the job. When Malone replied that he had not, Collins
said he " wished to hell" that Malone would get a job and
leave . Sparks testified, without contradiction, that when
he was recalled, Oakley Collins told him that he was
supposed to recall Malone ahead of Sparks, but Malone
was not qualified to drive Darts and Collins wanted
Sparks to say that Malone was not qualified because he
knew that the Board would get on him for not calling
Malone back.'° While Collins' comments to Sparks
indicate concern that Collins' determination might be
challenged and a desire for Sparks' support if it was
challenged, it must be recalled that Sparks had also
revealed to Collins his support of the Union before the
strike, and indeed insofar as the record shows, most if not
all of the reinstated strikers had been militant in their
support of the Union. While some suspicion is raised by
Collins' comments to Malone and the fact that Malone
could easily have qualified to drive a Dart, in the absence
of evidence that those who were recalled in advance of
Malone were deemed by Respondent to stand in a
materially different position than Malone vis-a-vis the
Union, I find the evidence insufficient to support the
conclusion that Respondent considered the
subclassifications of Dart drivers and cat wagon drivers
separately for purposes of discriminating against Malone
or evading its obligation to comply with the settlement
agreement.
The second question relates to Malone's employment
after his recall. Before the strike Malone had worked
approximately 130 hours during each bimonthly pay
period. After his return to work the hours worked by
Malone over each 15-day pay period gradually declined.
In the last pay period in September Malone worked
104-1/2 hours. Thereafter, he did not work in excess of
100 hours again in a 2-week period. He worked as little as
37-1/2 hours in the first half of November, and averaged
slightly over 80 hours for the 3 pay periods which
followed. Malone quit shortly thereafter. The complaint
does not allege that Malone was discriminatorily
discharged, but evidence was adduced to establish that
after the strike Respondent changed its practice with
respect to permitting drivers to assist in the repair of their
'Thus there is no contention that Aldridge and McCann who were
over-the-road drivers should have been recalled to drive Darts ahead of
Sparks and Donald Cade who were junior to them or that Carl Shepherd,
the dump truck driver , should have been recalled ahead of Aldndge who
wasjunior to him.
"Donald Cade also testified that when he was recalled Oakley Collins
told him that he was being recalled ahead of Malone because Malone was
not qualified to drive a Dart and Cade was. Malone testified that in April
at the time of the representation hearing he asked Oakley Collins why he
had not been recalled , and Collins replied that Malone was not qualified to
drive Darts.
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vehicles.
Malone testified that before the strike when his vehicle
broke down he worked in the shop to help repair it but
did not do so after the strike . James Jenkins testified
similarly that before the strike cat wagon drivers were
permitted to work 6 or 7 days a week whether or not their
equipment was down, but that since his recall they had
been given 2 or 3 days of work a week and were sent
home when their cat wagons were down , unless the repair
could be completed quickly or another cat wagon was
available to drive . He testified that he had worked in the
shop helping with repairs only 1 day since his recall.
According to Jenkins over-the-road drivers and Dart
drivers were allowed to remain at work and help with
repairs more frequently than cat wagon drivers . According
to Coleman Collins it was company policy not to send
drivers home if their equipment could be fixed in a
reasonable time and to assign them to other vehicles or
jobs when the breakdown was prolonged.
Malone testified that in some instances his shorter
hours were due to breakdowns ." Jenkins also testified that
there was frequent downtime on the cat wagons and that
they generally broke down after every 2 or 3 days of
operation.
Apart from whether Malone might have worked more
in helping to repair cat wagons , there is no evidence that
Malone was sent home when there was equipment
available for him to drive or other work he could have
performed . The evidence indicates that the cat wagons
were in poor condition and that breakdowns were
frequent . The evidence does not indicate that William
Malone was treated differently with respect to the amount
of work he was given than Carlton Malone or James
Jenkins who were also cat wagon drivers , nor does it
suggest any reason why these drivers as a group should
have been singled out for disparate treatment which
outweighs the explanation offered that their equipment
was in singularly poor condition . In these circumstances, I
conclude that the evidence fails to establish a failure to
reinstate Malone in compliance with the settlement
agreement.
h. Lawrence Otworth
Lawrence Otworth is listed on the preferential hiring
list as the junior of two grader operators . Otworth was
operating a grader at the time the strike started and
joined the strike. According to him , he was the only
grader operator except during the winter when Cliff
Malone ran a grader to help keep the snow off the roads.
Otworth returned to work on June 7, 1967, after being
called to Respondent's office on June 5, and speaking to
Oakley Collins as set forth above.
According to Otworth, Cliff Malone and a man named
Giles operated the grader before he was reinstated. C.J.
Malone appears on the preferential hiring list as a grader
operator with greater seniority than Otworth. Although
there is some evidence that Malone served as foreman at
the LaGrange pit for a number of months before the
strike, he had been a grader operator before that, and the
LaGrange pit was shut down approximately 2 weeks after
the end of the strike. The Giles referred to by Otworth
appears to be the same Giles who was hired during the
strike and in whose place it is contended that Wall should
have been reinstated . Particularly in the absence of any
"Malone testified that he lost no time due to illness during this period
but was off work voluntarily for 3 or 4 days at the most after his recall.
challenge to the preferential hiring list until the hearing in
this case, I conclude that Otworth was not entitled to
operate the grader in place of Malone . For reasons set
forth in connection with Charles Wall and Otis Martin, I
conclude that even if Giles operated a grader until March
24 when he left Respondent's employ, the General
Counsel has not established that Giles' earlier
displacement would have resulted in an opening to which
Otworth should have been recalled.
i. Frank Laber
Laber drove a fuel truck before the strike hauling fuel
to Respondent's heavy equipment . He also changed the oil
of that equipment. He was the only employee so employed
at that time. Several days before the pickets were
removed, Coleman Collins telephoned Laber and asked
him if he would return to drive a tractor-trailer over the
road. Laber told him that he would not because he only
drove the fuel truck. Laber testified that he did not return
because he knew nothing about the strike being over."
During the first part of March, Laber visited Collins with
Otworth. At that time Collins told Laber his name was
taken off the roster and he would not be able to return.
Later the same day Collins telephoned Laber to tell him
that he was mistaken.
During the first part of August, Oakley Collins called
Laber and asked him to come in. He went to
Respondent's office, and Oakley Collins asked him to
return to work driving the fuel truck, doing mechanical
work, and driving over the road. Laber returned and
thereafter performed these duties and also occasionally
worked on barges at Respondent's river tipple. Since
Laber's return to work, Laber has spent 4 to 5 hours three
times a week driving the fuel truck and the rest of his
time at other duties . No one else has driven the fuel truck
since his recall.
Before the strike when Respondent mined coal at two
separate pits, Laber hauled fuel full time to the heavy
equipment operating at the two pits . Shortly after the
strike Respondent confined its mining to the Fox Hollow
pit. The consolidation of operations resulted in a reduction
of the amount of heavy equipment in use requiring fuel,
although the diesel dragline, which was later replaced by
an electric dragline, was still operating when Laber
returned to work . After his recall Laber no longer
changed the oil or filters on heavy equipment as he had
before the strike.
During the strike several people shared the driving of
the fuel truck, including Coleman Collins , Jim Ison, Earl
Ison , and Marvin Collins. After the strike until Laber's
recall, Jim Ison mostly drove it.
It is clear that even after Laber's recall the driving of
the fuel truck was no longer a full -time job . Immediately
after the strike, Respondent' s production and sales were
substantially reduced below their prestrike levels and only
gradually returned to their prestrike levels, reaching them
around the time of Laber's recall . Thus, it would appear
that before Laber 's recall, the services of the fuel truck
were even less needed than after . In these circumstances,
it would appear that there was no full-time fuel truck job
available to which Laber should have been recalled and
that some combination of fuel truck duties with other
duties was inevitably required.
"Coleman Collins testified essentially the same as Laber as to this
conversation.
COLLINS MINING COMPANY
It is true that a portion of Laber's former duties were
never restored to him . However, the General Counsel did
not establish the extent to which those duties occupied
Laber before the strike, and in view of the amount of time
spent by Laber driving the fuel truck even after the strike,
it appears that Laber ' s other prestrike duties occupied
only a minor portion of his time . In view of the
consolidation of operations and the decreased level of
operations before Laber 's recall , it is doubtful that the
addition of these duties to the driving of the fuel truck
would have amounted to a full-time job before Laber was
recalled . Accordingly , I conclude that Respondent was not
obligated under the terms of the settlement agreement to
recall Laber before August.
j. Garland Wineka and Samuel Leffingwell
Garland Wineka and Samuel Leffingwell are both listed
on Respondent ' s preferential hiring list under the heading
of truck mechanics . Wineka is fourth on the list and
Leffingwell is last . The dates which appear next to
Leffingwell ' s name and the name of Martin Collins who is
seventh on the list above Leffingwell indicate that
Leffingwell was in fact senior to Collins, but this
discrepancy is unexplained ." Before the strike Leffingwell
worked as a mechanic and performed all kinds of
mechanical work on Respondent 's equipment . Although
Wineka also claimed that he was a mechanic, this claim
was disputed . I find that Wineka was employed as a
mechanic' s helper, relying on the testimony of Middleton,
who worked nights with Wineka, as well as Respondent's
witnesses . Wineka worked on brakes and power steering,
but otherwise worked as a helper to Middleton on other
kinds of mechanical work.
Others on the preferential hiring list were Frank
Russell , Gordon Salyers , Curtis Leffingwell , Willard
Russell, Lee Middleton, and Martin Collins. Frank
Russell , Salyers, and Middleton were mechanics . Curtis
Leffingwell ' s duties were described above in connection
with the offer of reinstatement to him . Although the
evidence is scant and not entirely uniform as to Willard
Russell and Martin Collins, I conclude from the testimony
of Frank Russell that both worked as helpers . In addition
to these employees , although listed on the preferential
hiring list as a welder , Carl Barton worked at least part of
the time in the shop after the strike . The record
establishes that Barton worked during the strike, but is
silent as to Martin Collins and Willard Russell in this
regard.
Although Wineka and Leffingwell were entitled to be
recalled ahead of those performing the same jobs who
were junior to them , the agreement did not provide that
they were to displace any former employees who were
working at the time of the settlement agreement. Since
one must assume that Respondent complied with the
agreement in the absence of proof to the contrary, the
burden was on the General Counsel to show that Willard
Russell and Martin Collins were not working at the time
of the settlement but were recalled out of turn . Absent
that evidence , I conclude that the General Counsel has
failed to show that Wineka should have been recalled in
place of Willard Russell or Martin Collins . Similarly as
the evidence establishes that Middleton , who was junior to
Wineka , was a mechanic, I conclude that the agreement
was not breached when Middleton was recalled before
"In several other instances, dates next to names indicate that names are
out of order on the list but none of the others appear to be material.
245
Wineka or Leffingwell who was junior to Middleton.
A somewhat different question arises from the
employment of Barton as a mechanic or helper after the
strike . It is not at all clear whether Barton had worked as
a mechanic or helper before the strike ."' His classification
on the preferential hiring list as a welder did not indicate
that he would be considered as a mechanic in matters of
reinstatement . The settlement agreement left unresolved
whether employees who worked during the strike and were
assigned new duties would be allowed to continue at those
duties . Again, however , I conclude that doubt must be
resolved in favor of Respondent , as the burden was on the
General Counsel to prove the alleged noncompliance with
the settlement agreement.
k. Concluding findings
I have found above that Respondent breached the
settlement agreement through a number of violations of
Section 8(a)(1) and in some instances by failing to
reinstate employees in accordance with the settlement
agreement or by improperly excluding them from further
consideration for reinstatement . These breaches were not
minor and justified setting aside the settlement agreement.
As a consequence one must not only consider the narrow
question of whether Respondent reinstated employees in
accord with the terms of the settlement agreement but
also whether Respondent fulfilled its larger obligation to
reinstate the strikers who were unfair labor practice
strikers . In considering this question , the terms of the
settlement agreement and the preferential hiring list are
no longer relevant . For example, the 1-year limitation on
recall rights and the order determined by the preferential
hiring list are no longer controlling. Having found that in
some respects Respondent failed to comply with its
reinstatement obligation under the settlement agreement
and improperly regarded some strikers as having rejected
adequate offers of reinstatement , it is clear that
Respondent did not fulfill its statutory obligation. There
are other questions also raised on the record as to
fulfillment of the statutory obligation. For example, in
several instances it appears that disclaimers of desire to
return to work were solicited by Oakley Collins from
employees at a time when there were no offers of
reinstatement to their former positions or inadequate
offers before them ." In my view , these questions need not
be decided at this time, but are properly deferred for the
compliance stages of this proceeding, as the findings
already made warrant a remedial order requiring
Respondent to reinstate unfair labor practice strikers to
the extent that they have not already been reinstated with
backpay for any period during which they were
improperly denied employment."
F. The Alleged Violation of Section 8(a)(5)
1. The appropriate unit and the Union ' s majority
The complaint alleges and Respondent admits that the
"Barton in fact had not been working when the strike started or for
some time before. However, the appearance of his name on the preferential
seniority list was not challenged.
"See Leeding Sales Co.. 155 NLRB 755.
'The Board regularly orders reinstatement of unfair labor practice
strikers upon application even where the strike is in progress at the time of
the hearing and no refusal to reinstate has been shown . See Louisville
Chair Company, Inc, 161 NLRB 358, 378-379, enfd. 385 F.2d 922 (C.A.
6). Here at the time of the heanng not all the strikers had been offered
reinstatement, and a similar remedy is warranted.
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
following employees of Respondent constitute a unit
appropriate for purposes of collective bargaining within
the meaning of Section 9(b) of the Act:
All production and maintenance employees employed
by the Respondent at its operations in Hanging Rock,
Ohio , including truck drivers , but excluding the
weighmaster and all other office clerical employees, all
saw mill employees , and all guards , professional
employees and supervisors as defined in the Act.
As indicated above , at the outset of the Union's
organizing campaign the Union mailed identical letters to
all the employees whose names and addresses it had
gathered . Enclosed with the letters were blank
authorization cards which the employees were solicited to
sign and return by mail to the Union . Of the 67 cards
received in evidence , 25 were mailed to the Union in
response to this solicitation.
The letter sent to the employees informed them that the
United Mine Workers was conducting an organizing
campaign at their mine and expressed the hope that they
would ultimately receive the high wages and other benefits
enjoyed by members of the mine workers all over the
country . It referred to an attached copy of wage rates
presently being paid miners under contract with the Union
and listed a number of the fringe benefits provided under
the Union's contract . The letter continued:
If you are interested, will you please sign and return
the enclosed card in the self-addressed stamped
envelope provided for this purpose . Signing this card
will not obligate you in any way, and no one will see
these cards except the undersigned and the organizer in
charge of your area . Our only reason for securing the
cards are [sic] because the law requires proof that at
least 30 percent of the employees at a given mine want
the Union before they will conduct a secret election.
NO REPRESENTATIVE OF THE COMPANY IS
PERMITTED TO SEE THESE CARDS AT ANY
TIME.
After a paragraph advising employees of their rights to
engage in union activities without reprisal, the letter
concluded with the following paragraph : "Rest assured
that your confidence will be strictly respected and neither
your employer or anyone else will learn of your interest in
this manner from us. It is for this reason that I mailed
this letter in a plain envelope so that no one will even
know that you received it unless you tell them so."
The blank authorization card enclosed with the letter
was titled "Application Card" and contained the following
statement to be subscribed to by the signer: "I hereby
express my desire to engage in concerted activity for the
purpose of self-organization and collective bargaining and
make District No. 6, United Mine Workers of America,
and its representatives my collective bargaining agent in
all matters pertaining to pay rates , wages, hours of
employment and other conditions of employment."
Several employees who mailed back cards testified that
they expected that there would be an election but most of
them also indicated that they wanted the Union to
represent them . There is no evidence that any employees
who signed cards as a result of oral solicitation by union
representatives or other employees were misled into
believing that the cards were signed for any purpose other
than that appearing on the face of the cards or were
induced to sign cards on the basis of any material
misrepresentation.
The refusal to bargain charge was not filed until June
21, 1967 , more than 6 months after December 14 when
the Union ' s first demand for recognition was made. I find
it unnecessary to decide whether or not the charge may be
said to relate back to the original charge against
Respondent , for the Union repeated its demand for
recognition on December 30 and thereafter . I find that
Respondent was faced with a continuing demand for
recognition at the start of the 10(b) period on December
23, 6 months before the charge was filed ." Accordingly,
the question to be answered is whether the Union was to
be considered the majority representative of Respondent's
employees on that date.
On December 14 when the strike began there were 85
persons on Respondent 's payroll, including some excluded
from the appropriate unit . Insofar as the record shows
only two or three additional employees were hired during
the next 2-week period who were replacements for striking
employees . As the strike was caused by Respondent's
unfair labor practices , the replacements are not properly
considered as part of the unit and the strikers continued
as employees. Accordingly , I find that on December 23,
the composition of the unit was the same as at the start of
the strike . Thus, the Union ' s majority is to be determined
on the basis of the payroll at the start of the strike.
Included on the critical payroll were Dewey Owens,
Hobart Mullens , Fred Steele, and Robert Russell.
Although evidence was taken before me only as to Owens,
in the representation proceeding evidence was taken on
which the Regional Director concluded that Owens and
Mullens were guards within the meaning of the Act, that
Steele was an office clerical , and that Russell was a
supervisor within the meaning of the Act . No evidence
was offered to indicate that these persons occupied any
other capacity at the time the strike began. Accordingly, I
conclude that they should be excluded from the
appropriate unit.
In the representation proceeding and in the hearing
before me there was also evidence which indicated that up
until the strike when Respondent operated at two pits,
C.J. Malone acted as a supervisor at one of the pits.
However , insofar as the record indicates this assignment
ended on December 14 and Malone reverted to the status
he previously held as an employee . While not entirely free
from doubt I conclude that Malone, whose name appears
on the payroll , was in the bargaining unit after the start of
the strike.
In addition to those names which appear on the
December 14 payroll, as I have found above that James
Bradshaw , Curtis Leffingwell , and Robert Johnson were
discriminatorily discharged between December 1 and 14,
they should be included among the employees in the
appropriate unit."
From these employees the Union had 61 cards of which
25 had been received as a result of the mail solicitation."
The Union had six additional cards signed by other
persons . Two of those , Cletus and James Friend were
found in the representation proceeding to be employees of
Respondent' s logging operation and therefore outside the
appropriate unit . No evidence was offered before me as to
"Hero Corporation, 149 NLRB 1283, enfd 363 F.2d 702 (C.A.D C.),
cert. denied 385 U S. 973.
"John Kinkel & Son . 157 NLRB 744, 758. For the same reasons I
conclude that John DeLong , Clyde Matthews, and Ray Bowman who were
laid off on December 14, but whose names appear on the December 14
payroll, are included in the unit.
"The Union obtained two additional cards after January 1, 1967.
COLLINS MINING COMPANY
the status of James Friend , and the testimony of Cletus
Friend is consistent with the facts on which the Regional
Director based his findings . I conclude that neither Cletus
nor James Friend was in the bargaining unit despite a
temporary assignment of Cletus Friend to the coal mining
operation at the time the strike began. Accordingly their
cards will not be counted.
Bernall Aldridge , whose card was received in evidence,
was employed until May 31, 1966, when he received a
disabling injury. He attempted to return to work in
September 1966 but after a brief trial found that he could
not do the work and he did not work thereafter. Although
Aldridge testified that he was told to come back when he
felt able by the tipple foreman, it does not appear that he
ever sought to do so thereafter. I conclude that Aldridge
did not have a reasonable expectancy of reemployment in
December 1966, that he should be excluded from the unit,
and that his card should not be counted.
A card was also received signed by Ernest Robinson.
Although Robinson signed his card on December 13 and
testified at the hearing , he was not questioned about his
employment at the time the strike started. However, he
was listed on Respondent's preferential hiring list as an
apprentice welder and in the representation proceeding he
testified that he worked until the strike began. It was
stipulated that he was eligible to vote as a laid-off
employee in that proceeding. Accordingly, I find that
Ernest Robinson should be included in the unit and his
card counted.
A card was also received signed by Harold Boggs. No
evidence was introduced before me as to Boggs' status,
but in the representation proceeding the parties litigated
whether he had refused reinstatement after the strike and
lost his recall rights . Boggs, whose name appears on the
preferential hiring list as a preparation plant employee,
testified in the representation proceeding that he worked
until the strike, which he joined. Accordingly, I conclude
that his name should have been included on the payroll
for December 14 and that his card should be counted.
The final card to be considered is that of Ronald
Howell, brother of William, who left Respondent's
employment in May 1966 to go into the Armed Services
and was in the service at the time of the strike. Under
established Board policy his card is excluded and he is not
counted as an employee in the unit."
With these additional cards it appears that there were
86 employees in the unit on December 30 of whom 63 had
signed authorization cards . Of their cards 25 were received
by the Union in response to the mailed solicitation.
Whether or not these cards establish a majority for the
Union at the time of its demand depends upon the effect
to be given the Union's letter set forth above, as the
Union did not have a majority unless the mailed cards are
counted.
In its recent decisions in Levi Straus and Co., 172
NLRB No. 57, and McEwen Manufacturing Company,
172 NLRB No. 99, the Board reviewed at length the
policies and principles which control determinations as to
the validity of union authorization cards as evidence of
designation of a bargaining representative.
After stating that the central inquiry in determining the
effect to be given authorization cards is whether the
employees by their act of signing clearly manifested their
intent to designate the Union as their bargaining agent,
the Board stated:
'•Aero Corporation , supra at 1291 Cf Photobell Company. Inc, 158
NLRB 738.
247
[T]he fact that employees are told in the course of
solicitation that an election is contemplated, or that a
purpose of the card is to make an election possible,
provides in our view insufficient basis in itself for
vitiating unambiguously worded authorization cards on
the theory of misrepresentation. A different situation is
presented, of course, where union organizers solicit
cards on the explicit or indirectly expressed
representation that they will use such cards only for an
election and subsequently seek to use them for a
different purpose; i.e., to establish the Union's majority
independently. In such a situation, the Board
invalidates the cards for a majority computation,
because the nature of the representation is such as to
induce a conditional delivery for a restricted purpose,
and there is apparent fraud when that restriction is
exceeded.
In a footnote following this quotation, the Board stressed
that its findings of misrepresentation will not be confined
to situations where employees are told in haec verba that
the sole or only purpose of the cards is to obtain an
election, but that the Board will look to substance rather
than form and determine whether or not the totality of
circumstances surrounding the card solicitation is such as
to constitute an assurance to the card signer that his card
will be used for no purpose other than to obtain an
election.
Here the Union's letter stated that "Our only reason
for securing the cards are [sic] because the law requires
proof that at least 30 percent of the employees at a given
mine want the Union before they will conduct a secret
election." Added force was given to this statement of
limited purpose by the statement which preceded it that
"signing this card will not obligate you in any way, and
no one will see these cards except the undersigned and the
organizer in charge of your area." These statements would
appear expressly to represent that the cards would be used
only for an election. It is true that the quoted portion of
the letter does state that the proof required for an election
is that the employees "want the Union" and not simply
that they want an election. But this statement, of itself,
would not appear to meet the conditional delivery theory
on the basis of which the Board invalidates cards delivered
for a restricted purpose. Were this the only evidence of
employees' intent, I would conclude that under the
principles of Levi Straus, these cards should not be
counted toward the Union's majority.
However the evidence shows that in addition to signing
cards, a substantial majority of Respondent's employees
joined in a strike called by the employees at a union
meeting. Nineteen of the employees who mailed their
cards to the Union appeared as witnesses at the hearing
before me and all 19 joined in the strike. Although it is
true that the strike was not for recognition, but was called
in protest against the discharges and layoffs which
preceded it, I find it highly unrealistic to restrict narrowly
the inference of support for the Union to the protest
which caused the strike. Instead there is every reason to
infer that by striking against what they viewed as acts of
retaliation against the employees because of their
organizational efforts, the striking employees intended to
demonstrate their support for the ultimate goal of those
efforts, recognition and bargaining . Accordingly, however
limited the purpose for which the Union sought the cards,
I conclude that by their conduct after signing them and
returning them to the Union, the striking employees
indicated that they wanted the Union to represent them
and not merely an election and that they did not intend to
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
restrict the authorizations which they signed to the limited
purposes for which they had been requested . Accordingly,
I conclude that the Union represented a majority of the
employees on the critical date.2'
2. The refusal to bargain
There can be no doubt that by Respondent's failure to
answer the Union's requests for recognition Respondent
refused to bargain with the Union." The question to be
decided is whether Respondent was obligated to do
otherwise. Despite Respondent's unfair labor practices
which preceded the strike, the Union did not charge
Respondent with an unlawful refusal to bargain in its
initial charges, and the Union accepted a settlement which
did not provide for bargaining and contemplated an
election. Had the election transpired without further
unfair labor practices, it would have resolved the matter.
But as I have found, Respondent committed additional
unfair labor practices which were in direct violation of its
settlement agreement. A number of these violations
occurred in the period immediately preceding the election,
and as I find below made a fair election impossible.
Specifically they were designed to induce employees to
abandon their union activity and support, thus destroying
the majority support that the Union enjoyed. I find that
the General Counsel has established that Respondent's
refusal to recognize and bargain with the Union was not
motivated by any good-faith doubt that the Union
represented a majority of its employees but by
Respondent's rejection of the collective-bargaining
principle and a desire to gain time in which to dissipate
the Union's majority, which Respondent had good reason
to believe existed when the employees struck. Accordingly,
I conclude that Respondent's refusal to bargain since
December 23, 1966, violated Section 8(a)(5) and (1) of the
Act. _'
In any event, apart from the violation of Section
8(a)(5), imposition of a bargaining order in this case
would follow directly as a matter of remedy for
Respondent's other substantial violations. As Respondent
sought thereby to prevent the Union from gaining
additional strength and to dissipate the strength it had
already achieved and Respondent prevented a fair
election, a bargaining order is required to remedy these
violations as well as Respondent's refusal to bargain.:'
Indeed, in the light of Respondent's breach of the
settlement agreement intended to remedy its December
1966 unfair labor practices, the case for a bargaining
order here is even more compelling than in the ordinary
situation in which the Board enters a bargaining order
after setting aside an election."
"Cf. Beaver Bros Baking Co., Inc., d/b/a American Beauty Baking
Co, 171 NLRB No. 98 ; T. C. Worthy Wholesale , Inc., 159 NLRB 1700,
Preston Feed Corporation, 134 NLRB 629, enfd . 309 F.2d 346 (C.A. 4),
and cases cited therein.
"Permacold Industries, Inc. 147 NLRB 885. Respondent also
communicated to employees that it had no intention of bargaining with the
Union.
"Noma Lites Corp, 170 NLRB No. 142; Heck's Inc., 172 NLRB No.
255.
"Noma Lites Corp., 170 NLRB No. 142; R. W. Inc., d/b/a K-Mart
Foods, 170 NLRB No. 67.
"As the Union's charges of violation of Sec. 8(aXI) and (3) were filed
contemporaneously with the December 1966 violations, Sec. 10(b) places
no impediment in the way of basing the bargaining order as remedy for
these violations on the Union 's demonstrated majority as of the start of the
strike.
It is true that one cannot be certain that Respondent
succeeded in destroying the Union's majority , for there
were sufficient challenged ballots to affect the results of
the election . But rather than await completion of litigation
over the challenged ballots and a count to determine
whether Respondent succeeded in its efforts to interfere
with the election , which inevitably would result in further
delay, as the Union was entitled to recognition even if it
lost the election , I conclude that effectuation of the
policies of the Act will best be served by recommending
entry of a bargaining order herein based on Respondent's
refusal to bargain and its other violations."
In reaching this conclusion I have considered the
evidence offered by Respondent as to misconduct by
employees during the strike . One witness testified that the
incidents he described occurred a few days after the strike
began ." Other witnesses either did not specify the timing
of what they described=" or placed it later in the striker'
Bearing in mind that the strike was heavily supported at
its outset and that Respondent did not respond to the
Union's initial request for recognition but indicated in
comments to employees at the outset of the strike that it
would not deal with the Union, I conclude that whatever
misconduct occurred , while not to be condoned , gave no
reasonable cause to believe that the Union ' s support by
the employees was coerced and did not excuse Respondent
from its obligation to bargain with the Union ." Moreover,
as the Union ' s majority at the outset of the strike could
not have been attributable to subsequent employee
conduct, the appropriateness of the bargaining order as a
remedy for Respondent' s other unfair labor practices
would not be affected by strike misconduct.
IV. THE REPRESENTATION CASE
A. The Objections to the Election
The objections to the election in essence allege as
grounds for setting aside the election the same conduct as
is alleged in the complaint to have violated Section 8(a)(1)
of the Act following execution of the settlement
agreement. I have found above that during the preelection
period and particularly during the 3-week period
immediately preceding the election, Respondent engaged
in substantial violations of Section 8(a)(1) and (3) of the
Act as set forth in section III , D, and E, above . It is clear
that Respondent's conduct which violated Section 8(a)(1)
and (3) during this period also interfered with the conduct
of a fair election ." In these circumstances, I conclude
that the objections to the election have merit and should
be sustained.
"Tonkin Corp. of California, 165 NLRB No. 61.
"Billy Bradshaw testified that starting 2 or 3 days after the beginning of
the strike he was followed , while driving a company truck, by striking
employees and union representatives who obstructed him by driving slowly
in front of him and attempting to crowd him off the road. He testified that
on one occasion a bottle was thrown at his truck.
"Millard Russell , Arthur Dickens, Gerald Lee Lipker . Russell and
Dickens could not identify the persons responsible for what they described.
Lipker testified that he was visited on a Sunday evening by strikers who
asked him not to work and told him that if he did , others might get mad.
The next night after he worked a window in his house and his car
windshield were broken by unidentified persons.
"Dewey Owens, Oakley Collins, Earl Jenkins, and Earl Ison.
"United Mineral & Chemical Corporation, 155 NLRB 1390, enfd. in
part 391 F.2d 829 (C.A. 2). Call, Burnup and Sims , Inc., 169 NLRB
1661, 1682 , enfd . 393 F.2d 412 (C.A. 1); C A Froedge Delivery and
Trucking Service, Inc., 172 NLRB No. 8.
"Playskool Manufacturing Company, 140 NLRB 1417.
COLLINS MINING COMPANY 249
B. The Challenged Ballots
Ordinarily in a case such as this where the challenged
ballots are sufficient to affect the results of an election,
before setting the election aside on the basis of objections,
the challenged ballots would be considered . If it were
determined that a number of challenged ballots should be
counted sufficient to affect the results of the election, the
usual procedure would be to remand the case for opening
and counting of the ballots. If the Union won the election,
it would be certified. If not, the election would be set
aside and a new election directed . Here, however, the
presence of the meritorious refusal -to-bargain charge and
the need for a bargaining order requires a different result.
In accord with the Board ' s Decision in Tonkin Corp. of
California, 165 NLRB No. 61, 1 conclude that the
election should be set aside and the representation petition
dismissed without further consideration of the challenged
ballots.
However, in order to avoid any possible necessity for
remand of this proceeding I shall also set forth by findings
as to the challenged ballots.
In the representation election , the ballots of John
DeLong, Curtis Leffingwell, James Bradshaw, Otis
Martin, Lee Middleton , James Edward Jenkins, and
Charles Wall were challenged.
Respondent contended at the representation hearing
that John DeLong had retired in December 1966 and
therefore was not eligible to vote in the election. The
Regional Director found on the evidence before him that
Respondent had retired DeLong because of his age and
his disability and that he therefore was not eligible to
vote." No review was sought .of the Regional Director's
Decision , but DeLong nonetheless appeared at the polls to
vote with a written statement seeking reconsideration of
his status. He was permitted to vote under challenge.
At the time of the hearing in the representation case the
settlement agreement was in effect providing for the
reinstatement of DeLong following his December layoff.
While Respondent contended that it had retired DeLong
in December, the settlement agreement necessarily
overrode that claim and gave DeLong status as an
employee eligible for recall at the time of the
representation case hearing and election . Respondent
contends, however, that the challenge to DeLong's vote
must be sustained because the Regional Director had
ruled that DeLong was ineligible to vote. While it is true
that in some circumstances the Board precludes the
parties from relitigating by way of challenges issues
previously disposed of in the representation hearing," its
practice is not invariable." Here the surrounding
circumstances support consideration of the challenge on
its merits . The challenged ballots do not present the sole
postelection issue . DeLong is the only employee whose
eligibility was affected by the determination affecting him.
The settlement agreement has been set aside , and, in
conjunction with the unfair labor practices, further
proceedings , including consideration of DeLong' s status,
were in any event required. Failure to consider his
challenge on its merits would result in conflicting results
in the representation and unfair labor practice
proceedings.
"The Regional Director' s Decision does not indicate the extent , if any,
to which he considered the settlement agreement , which had not yet been
set aside , in determining DeLong ' s eligibility.
"See Cruis Along Boats, Inc., 128 NLRB 1019. The Board's rule
102.67(f) provides only that failure to request review shall preclude the
Whether called a layoff or retirement, it is clear that
DeLong' s December separation was involuntary. Although
the claim was made before me that DeLong was laid off
because he could no longer do his work , that claim was
unsupported by any other evidence, and I have concluded
that the reduction in force of DeLong along with others
was motivated by Respondent 's opposition to the Union.
Whatever decision DeLong made after his layoff to seek
Social Security retirement benefits does not alter the
circumstances of his separation and does not deprive him
of the right to be offered reinstatement to remedy his
wrongful discharge . Accordingly, whether DeLong's status
is to be determined under the terms of the settlement
agreement in effect at the time of the election or on its
merits independent of the settlement agreement, I
conclude that he was eligible to vote.
Curtis Leffingwell's status was not litigated in the
representation hearing, except to the extent that his name
appeared on the preferential hiring list and he appears to
have been included among those whose eligibility to vote
was conceded . He was challenged by the Respondent,
however , on the ground that he had refused an offer of
reinstatement after the hearing . I have considered that
contention above and have found that the offer of a
mechanic' s job to Leffingwell did not extinguish his
reinstatement rights, I conclude that Leffingwell was
eligible to vote.
Bradshaw, Martin , Middleton , and Jenkins appeared on
the preferential hiring list. At the representation hearing
Respondent agreed that all employees on the list who had
not yet been recalled , except for 11, were laid-off
employees with a reasonable expectancy of recall and were
eligible to vote . Respondent contended that 9 of the 11,
including the 4 challenged employees, were permanently
employed by another employer and had refused offers of
reinstatement , making them ineligible to vote. The
Regional Director found that evidence as to these
employees was in conflict and did not permit . a reasonably
certain conclusion as to their status . Accordingly, he
provided that they be permitted to vote subject to
challenge.
James Bradshaw started to work for Respondent
around September 1, 1966." At first Bradshaw worked for
Collins on some houses , did mechanical work in the
garage , and at the time of his discharge on December 8,
1966, was driving a truck hauling lime. After his discharge
Bradshaw obtained employment at Clark Wire Company.
In early April , Oakley Collins visited his home and asked
Bradshaw to return to work , telling him that it would only
be for 1 to 3 days a week ." Bradshaw replied that he
could not accept a job on that basis when he had a
full-time job at Clark Wire but stated that he would
accept a full-time job." At that time Bradshaw signed a
statement dictated by Collins to the effect that he was a
permanent employee of Clark Wire and would not return
to Collins Mining if called to work.
parties from relitigating, in any subsequent unfair labor practice
proceeding , any issue raised in the representation proceeding.
'See Lake Huron Broadcasting Corporation , 130 NLRB 908.
"Bradshaw had worked for Respondent for about 5 years at an earlier
time but had quit.
"Bradshaw had received a written request to return to work during the
strike which he ignored.
"Bradshaw so testified without contradiction in the proceeding before
me. Oakley Collins testified in the representation case that he offered him
all the work they could give him and pointedly evaded stating whether he
indicated that it would be part time.
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bradshaw testified that when he was employed in
September by Respondent, he was hired to perform
temporary work. While employed, he worked a full
workweek." Insofar as the record shows he was not told
what the expected duration of his employment would be.
No evidence was offered by Respondent to establish the
expected duration of Bradshaw's employment.
As indicated above, it was Respondent's position at the
time of the representation proceeding that Bradshaw was
a permanent employee of Clark Wire and had refused an
offer of reinstatement. As the evidence before me
establishes that Bradshaw was not offered full-time
employment, and as interim employment taken after his
discharge does not establish intent not to return to work
for Respondent," I find that Bradshaw had not refused an
offer of reinstatement. The statement signed by Bradshaw
for Collins must be construed in the light of the offer of
work which had been made to him, and "It is axiomatic
that a discriminatee need not make a choice of
employment prior to receiving an unconditional offer of
reinstatement."" Accordingly, the statement signed by
Bradshaw did not extinguish his reemployment rights.
There remains to be considered whether Bradshaw was
ineligible because he was hired in September for
temporary work. The voting eligibility of employees
disputed on this ground "depends upon their status on the
date of eligibility and the nature of their prospects for
future employment. Specifically the Board has held that
so-called temporary employees `who are employed on the
eligibility date, and whose tenure remains uncertain, are
eligible to vote."'" On the record before me I can only
conclude that at the time of Bradshaw's discharge, his
tenure based on nondiscriminatory considerations
remained uncertain. As of the eligibility date, by virtue of
the settlement agreement which had not yet been set aside,
Respondent had agreed to reinstate Bradshaw without
distinguishing him from other discharged employees and
unfair labor practice strikers. Therefore, as of that date, it
would appear that unless Bradshaw had severed his
employment by refusing reinstatement, Respondent had
agreed to treat him in the same fashion as the other
employees on the preferential hiring list who had not been
recalled. Even if the settlement agreement is disregarded
because it was later set aside, I would conclude that as
Respondent discriminatorily discharged Bradshaw and
failed to establish any certain limit to his tenure, he is
entitled to reinstatement independent of the settlement
agreement . In these circumstances , I conclude that
Bradshaw was an eligible voter.
I have found that Otis Martin was offered
reinstatement to his former job but was not given a
reasonable time within which to sever his interim
employment and report for work. I have concluded
therefore that Martin's reemployment rights were not lost.
Accordingly, his position was no different than that of
others on the preferential hiring list. I conclude that he
was eligible to vote.
Lee Middleton first started to work for Respondent in
February 1960. For the first 6 weeks of his employment
he planted trees. After one other brief assignment he
started to work as a mechanic in the garage where he
"Bradshaw so testified Coleman Collins briefly described Bradshaw as a
part-time worker without further elucidation In these circumstances I have
credited Bradshaw.
"S A M Manufacturing Company, 165 NLRB No 59
"Leeding Sales Co, Inc, 155 NLRB 755, 757.
"Lloyd A Fry Roofing Company. 121 NLRB 1433, 1437
remained until the strike. Middleton did not work during
the strike. After the strike, in April 1967, Coleman
Collins telephoned Middleton and asked him if he would
come back to take the job he had before planting trees.
Middleton told Collins he had a promise of a job at Clark
Wire. Collins told him he would pay him $2.25 an hour if
he returned. Middleton asked if he would give him
anything steady like his regular job. Collins replied that he
could make no promises. Middleton conceded that he had
planted trees every Spring for the past 2 or 3 years, taking
from 6 to 8 weeks out from his work as a mechanic to
which he returned after the tree planting was over.
Middleton understood the offer in 1967 as for
employment just for the duration of the tree planting.
Middleton did not accept the job, but went to work at
Clark Wire. He returned to work for Respondent on
August 7. At that time Oakley Collins offered him his
former job at the shop as a mechanic. He has worked
since as a mechanic without further mention of tree
planting . At the time of his recall there was at least one
mechanic, Sam Leffingwell, junior to Middleton on the
preferential hiring list.
Despite Respondent's contention at the representation
hearing, it did not treat Middleton's rejection of the offer
of the tree planting job as extinguishing his reemployment
rights, and the evidence confirms that it was not an
adequate offer of reinstatement. Accordingly, I conclude
that Middleton's position was the same as that of the
others on the preferential hiring list who voted without
challenge and that he was eligible to vote in the election.
At the time the strike started James Jenkins was a cat
wagon driver. Jenkins did not work for Respondent during
the strike. On April 20, 1967, he started to work at Clark
Wire where he remained until August 12, 1967, when
Oakley Collins asked him to return to his old job. Jenkins
returned to work for Respondent. The fact that Jenkins
took interim employment while awaiting recall to his job
with Respondent did not extinguish his recall rights, as
Respondent appears to have recognized in recalling him.
No other basis is advanced sustaining the challenge to his
ballot. Accordingly, I conclude that he was eligible to
vote.
At the representation hearing, Respondent contended
that Charles Wall had been permanently terminated after
he had refused an offer of reinstatement." The Regional
Director found the evidence as to Wall in conflict and
provided that he be permitted to vote subject to challenge.
I have found above that the offer of reinstatement
rejected by Wall came before the end of the strike at a
time when Respondent conceded that it was not generally
treating rejection of reinstatement offers as terminating
employment rights. I have concluded that Wall's
reinstatement rights were therefore not extinguished.
Although I have also found that the General Counsel
failed to prove that an opening had occurred to which
Wall should have been recalled, his position at the time of
the election was no different than that of the other
employees on the preferential hiring list who voted in the
election . I conclude that he was eligible to vote.
While I recommend that the representation election be
set aside and the proceeding dismissed for the reasons set
forth above, if at any stage in this proceeding it should
become necessary to consider the challenged ballots, I
would recommend that all the challenges be overruled and
the ballots counted.
"The Regional Director ' s Decision places the date of the disputed offer
in April The transcript indicates that it was in February , consistent with
the evidence in the hearing before me
COLLINS MINING COMPANY 251
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Respondent's
operations described in section I, above , have a close,
intimate, and substantial relationship 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.
VI. THE REMEDY
As Respondent violated the terms of a settlement
agreement and engaged in substantial violations of the
Act, I shall also recommend that Respondent be ordered
to cease and desist from violating the Act in any other
manner.
In accord with recent decisions of the Board" I shall
recommend that Respondent be required to sign and post
a notice which informs its employees in simple and readily
understandable language of their rights, how they were
violated, and by what process they have been upheld. As it
appears that there are strikers who have not yet been
reinstated, I shall also recommend that copies of the
notice be sent to them.
Upon the basis of the above findings of fact and the
entire record in this case, I make the following:
Having found that Respondent violated Section 8 (a)(1),
(3), and (5) of the Act , I shall recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
As I have found that Respondent discriminatorily
discharged Robert Johnson, Curtis Leffingwell, James
Bradshaw , Ray Bowman, John DeLong , and Clyde
Matthews, I shall recommend that Respondent be ordered
to offer them immediate and full reinstatement to their
former or substantially equivalent positions , without
prejudice to their seniority and other rights and privileges,
and to make them whole for any loss of earnings they
may have suffered by payment to them of sums of money
equal to the amount each normally would have earned as
wages from the dates of their respective discharges to the
dates of offers of reinstatement , less net earnings, in
accordance with the formula set forth in F. W.
Woolworth Company , 90 NLRB 289, and Isis Plumbing
& Heating Co., 138 NLRB 716, excluding from the
backpay period any time that they joined the strike. To
the extent that these employees joined the strike their
reinstatement and backpay rights shall be determined in
accord with the availability of jobs for them relative to
other strikers as set forth in the following paragraph.
As I have found that the employees engaged in an
unfair labor practice strike from December 14, 1966, to
February 20, 1967, and that all the strikers were not
reinstated to their former or substantially equivalent jobs,
I shall recommend that Respondent be ordered to offer
reinstatement upon application to all strikers not
previously reinstated to their former or substantially
equivalent positions," without prejudice to their seniority
or other rights or privileges , dismissing , if necessary, any
persons hired or transferred in Respondent' s employ on or
after the beginning of the strike . In the event that there
are not sufficient jobs for all the striking employees, the
available positions shall be distributed among the striking
employees who apply for reinstatement in accordance with
such system of seniority or other nondiscriminatory
practice heretofore applied by Respondent in a reduction
in force in Respondent' s business . Those for whom no
employment is available shall be placed on a preferential
hiring list in accordance with such system and thereafter
shall be offered reinstatement as employment becomes
available before other employees are hired for such work.
I shall also recommend that Respondent make whole the
employees entitled to reinstatement for any loss of wages
they may have suffered by reason of Respondent's refusal
or failure to reinstate them on the basis set forth above
from the dates of Respondent ' s refusals or failures to the
dates of offers of reinstatement. Backpay is to be
computed in accordance with the formula set forth in the
paragraph above.
CONCLUSIONS OF LAW
1. Respondent, Coleman Collins and Oakley Collins, a
partnership, d/b/a Collins Mining Company, 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, District No. 6, is
a labor organization within the meaning of the Act.
3. All production and maintenance employees employed
by Respondent at its operations at Hanging Rock, Ohio,
including truckdrivers but excluding the weighmaster and
all other office clerical employees, all saw mill employees
and all guards , professional employees and supervisors as
defined in the Act constitute an appropriate unit for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
4. At all times since December 27, 1966, United Mine
Workers of America, District No. 6 has been and now is
the exclusive representative of the employees in the unit
described above for the purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
5. By interrogating employees about their union
activities, their attendance at union meetings , their voting
intentions , whether they signed statements for the Union,
and how they voted in the election; soliciting employees to
turn over to Respondent letters and authorization cards
received from the Union; creating the impression that
Respondent had engaged in surveillance of union
activities; engaging in surveillance of union meetings;
threatening to discharge employees because of their union
activities; promising employees employment and wage
increases if they voted against the Union; granting
increases to employees as a reward for voting against the
Union, discharging Robert Johnson, Curtis Leffingwell,
James Bradshaw , Ray Bowman , John DeLong , and Clyde
Matthews because of their union activities and those of
other employees; refusing to reinstate or treating as
ineligible for reinstatement Curtis Leffingwell, Charles
Wall, and Otis Martin; and refusing to bargain upon
request with United Mine Workers of America, District
No. 6 in the appropriate unit set forth in paragraph 3,
above , Respondent has engaged in and is engaging in
"Although the reinstatement obligation ordinarily extends to those
strikers who apply for reinstatement , by Respondent undertaking to
reinstate the strikers as part of the settlement agreement , any obligation on
the part of the strikers to apply for reinstatement was obviated at least
until the settlement agreement was set aside. Determination of the
obligation of the strikers thereafter and whether or not any of them had
removed themselves from further consideration for reinstatement is left for
the compliance stages of this proceeding.
"Harry F Berggren & Sons , Inc., 165 NLRB No. 52; J.P Stevens and
Co. Inc., 167 NLRB No. 37 and No. 38.
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unfair labor practices affecting commerce within the
meaning of Sections 8(a)(l), (3), and (5) and 1(6) and (7)
of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact,
conclusions of law, and the entire record in the case, and
pursuant to Section 10(c) of the National Labor Relations
Act, as amended, I hereby recommend that Respondent
Coleman Collins and Oakley Collins, a partnership, d/b/a
Collins Mining Company, its partners , agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Interrogating its employees concerning their union
activities, attendance at union meetings, voting intentions,
how they voted in representation elections, or the signing
of statements for a union.
(b) Soliciting employees to turn over to it letters,
authorization cards , or other materials received from a
union.
(c) Creating an impression of surveillance of union
activities.
(d) Engaging in surveillance of union meetings.
(e) Threatening to discharge employees or other
reprisals because of their union activities.
(f) Promising employment , wage increases, or other
offers of benefit in return for opposing a union.
(g) Granting wage increases or other benefits for voting
against a union.
(h) Discouraging membership in United Mine Workers
of America, District No. 6, or any other labor
organization , by discriminating in regard to the hire and
tenure of employees or any term or condition of their
employment.
(i) Refusing to bargain collectively in good faith
concerning rates of pay, hours of employment, and other
conditions of employment with United Mine Workers of
America, District No. 6, as the exclusive representative of
the employees in the appropriate unit described in
paragraph 3 of the section of the Decision entitled
"Conclusions of Law."
(j) In any other manner interfering with , restraining, or
coercing its employees in the exercise of their rights to
self-organization , to form labor organizations, to join or
assist United Mine Workers of America, District No. 6,
or any other labor organization, to bargain collectively
through representatives of their own choosing, and to
engage in any other concerted activities for the purposes
of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities, except to the
extent that such right may be affected by an agreement
requiring membership in a labor organization as a
condition of employment, as authorized in Section 8(a)(3) of
the Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer Robert Johnson , Curtis Leffingwell, James
Bradshaw , Ray Bowman , John DeLong , and Clyde
Matthews immediate and full reinstatement to their
former or substantially equivalent positions without
prejudice to their seniority or other rights and privileges
previously enjoyed and make them whole for any loss they
may have suffered by reason of the discrimination against
them in the manner set forth in the section of the above
Decision entitled "The Remedy."
(b) Upon application, offer immediate and full
reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges , to all those employees of Respondent
who went on strike on December 14 , 1966, or thereafter,
dismissing if necessary any persons hired on or after such
date , or if employment is not available , place such
employees on a preferential hiring list , in the manner set
forth in the section of this Decision entitled "The
Remedy," and make them whole for any loss of pay they
may have suffered by reason of Respondent ' s refusal or
failure to reinstate them as set forth in "The Remedy"
herein.
(c) Notify the employees entitled to reinstatement if
presently serving in the Armed Forces of the United
States of their right to full reinstatement upon application
in accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records , social security payment records,
timecards, personnel records and reports, and all other
records relevant and necessary to a determination of
compliance with paragraphs (a) and (b) above.
(e) Upon request , bargain collectively with United Mine
Workers of America, District No. 6 as the exclusive
representative of all employees in the appropriate unit and
embody in a signed agreement any understanding reached.
(I) Send to each of the striking employees who has not
previously been reinstated and post at its Hanging Rock,
Ohio, place of business, copies of the attached notice
marked "Appendix."" Copies of said notice , on forms
provided by the Regional Director for Region 9, after
being duly signed by the Respondent ' s representative, shall
be posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted . Reasonable steps shall
be taken by the Respondent to insure that said notices are
not altered , defaced , or covered by any other material.
(h) Notify the Regional Director for Region 9, in
writing , within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith."
I FURTHER RECOMMEND that the objections to the
election conducted in Case 9-RC-7089 be sustained, the
election set aside , and the petition therein dismissed.
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice. In the further
event that the Board ' s Order is enforced by a decree of a United States
Court of Appeals , the words "a Decree of the United States Court of
Appeals Enforcing an Order " shall be substituted for the words "a
Decision and Order."
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify said Regional Director, in
writing, within 10 days from the date of this Order , what steps Respondent
has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
COLLINS MINING COMPANY 253
After a trial at which all sides had the chance to give
evidence , it has been found that we violated the National
Labor Relations Act, and we have been ordered to post
this notice to inform our employees of their rights.
The Act gives all employees these rights:
To organize themselves
To form , join, or help unions
To bargain as a group through a representative
they choose
To act together for collective bargaining or other
mutual aid or protection
To refuse to do any or all of these things
We have also been ordered to assure our employees
that:
WE WILL NOT do anything that interferes with these
rights.
You are free to join United Mine Workers of
America , District No. 6, or any other union, and by
majority choice, to select any union to represent you
in bargaining with us.
WE WILL NOT fire you or punish you or treat you
differently in any way because you join a union or favor
a union.
WE WILL NOT ask you anything about a union or
union activities.
WE WILL NOT ask you to give us letters,
authorization cards , or anything else that a union gives
or sends to you.
WE WILL NOT spy on your union meetings or
activities and WE WILL NOT say or do anything to make
you believe that we are spying on your union meetings
or activities.
WE WILL NOT threaten to fire you or punish you or
treat you differently in any way if you join or work for
a union, or vote for a union , or talk to other employees
about a union.
WE WILL NOT give or promise anyone jobs or raises
or other benefits for opposing or voting against a union.
It has been found that when we fired or laid off
certain employees , we did this because these employees
or other employees were for the Union . It has been
found that this violated the Act.
WE WILL give these employees back their jobs and
seniority , and WE WILL make up any pay they lost
because they were fired with 6 percent interest. The
names of these employees are:
Robert Johnson Ray Bowman
Curtis Leffingwell John DeLong
James Bradshaw Clyde Matthews
It has been found that our employees who struck on
December 14, 1966 , had a right after the strike to go
back to the available jobs because they struck on
account of our unfair labor practices . It has been found
that we violated the Act when we did not give all the
strikers proper consideration for getting their jobs back.
WE WILL offer all of our employees who went on
strike on December 14, 1966, or after that date, a
chance to go back to their old jobs and seniority , letting
go, if necessary , any persons hired on or after that date.
If there are not enough jobs to put all the strikers back
to work , we will follow a fair system in filling the
available jobs, and we will put those for whom there
are no jobs available on a preferential hiring list. As
their former jobs become available , we will put the
employees on that list back to work before hiring any
new employees. We will also make up, with 6 percent
interest, any pay strikers lost because we did not put
them back to work properly.
It has also been found that we violated the Act when
we refused to bargain with United Mine Workers of
America , District No. 6.
WE WILL bargain , at its request, with United Mine
Workers of America , District No. 6, as the
representative of all our employees in the appropriate
bargaining unit about rates of pay , hours of work, and
other working conditions. If an agreement is reached,
we will sign a contract . The appropriate bargaining unit
is:
All production and maintenance employees at our
operations at Hanging Rock , Ohio , including
truckdrivers but excluding the weighmaster and all
other office clerical employees, all saw mill
employees and all guards, professional employees
and supervisors as defined in the Act.
Dated By
C.E. COLLINS AND O.C.
COLLINS D/B/A COLLINS
MINING COMPANY
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board ' s Regional Office , Federal Office
Building, Room 2407 , 530 Main Street , Cincinnati, Ohio
45202, Telephone 513-684-3686.