Colquest Energy

National Labor Relations Board - Board Decisions

Oct 29, 1993

312 N.L.R.B. 1133 (N.L.R.B. 1993)

1133
312 NLRB No. 178
COLQUEST ENERGY
1 On July 14, 1993, Administrative Law Judge Hubert E. Lott
issued the attached decision. The Respondent filed exceptions, a sup-
porting brief, and a reply brief to the answering brief filed by the
Charging Party.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
The Respondent further contends that the judge’s findings are
tainted with bias and prejudice against the Respondent. We find this
allegation to be without merit. Our review of the record and the
judge’s decision reveals no evidence that he prejudged the case,
made prejudicial rulings, or demonstrated bias.
Colquest Energy, Inc. and United Mine Workers of
America, AFL–CIO. Cases 10–CA–25168–1 and
10–RC–14023
October 29, 1993
SUPPLEMENTAL DECISION, ORDER, AND
CERTIFICATION OF REPRESENTATIVE
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The issue presented in this case is whether employ-
ees Rick Foust and Delbert Buckner were agents of the
Union and interfered with employee free choice in the
election by threatening eligible voters.1
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings,2 and conclusions, to certify the Union
as the employees’ bargaining representative, and to re-
affirm its Order in 302 NLRB No. 166 (May 15, 1991)
(not reported in Board volumes).
ORDER
The National Labor Relations Board reaffirms the
Order in 302 NLRB No. 166 (May 15, 1991), and or-
ders that the Respondent, Colquest Energy, Inc.,
Clairfield, Tennessee, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of valid ballots have
been cast for United Mine Workers of America, AFL–
CIO, and that it is the exclusive collective-bargaining
representative of the employees in the following appro-
priate unit:
All production and maintenance employees, in-
cluding carrier operators, utility employees, shop
employees, roof bolters, fire bosses, laborers, me-
chanics, tractor operators, miner operators, and
maintenance employees employed at the Employ-
er’s facilities (Mines #1, #2, #3 and Machine
Shop) in Clairfield, Clairborne County, Ten-
nessee; EXCLUDING: All clerical and professional
personnel and supervisors as defined in the Act.
Also excluded are independent truckdrivers.
Ronald Ramsey, Esq., for the General Counsel.
Robert Ouillen and Herbert Sanger Jr., Esqs., for the
Respondent/Employer.
Robert Weaver, Esq., for the Charging Party/Petitioner.
DECISION
STATEMENT OF THE CASE
HUBERT E. LOTT, Administrative Law Judge. This case
was heard in Knoxville, Tennessee, on March 1, 1993.
The petition for election among the Employer’s production
and maintenance employees was filed by the United Mine
Workers of America, AFL–CIO (UMW) on May 18, 1990.
Election was held on June 29, 1990, with the following re-
sults: eligible voters 75, votes cast for the Petitioner 39,
votes cast against the Petitioner 30, challenge ballots 6, and
valid votes plus challenges 75.
On July 6, 1990, the Employer filed timely objections to
the election which were overruled in a report or objections
issued by the Region on August 31, 1990. The Region in that
report also certified the UMA as the bargaining representa-
tive of the Employer’s employees.
On January 18, 1991, the Board adopted the Region’s
findings and recommendations and certified the UMW as the
bargaining representative of the employees in the following
appropriate unit:
All production and maintenance employees, including
carrier operators, utility employees, shop employees,
roof bolters, fire bosses, laborers, mechanics, tractor op-
erators, miner operators and maintenance employees
employed at the Employer’s facilities (Mines #1, #2, #3
and Machine Shop) in Clairfield, Clairborne County,
Tennessee; Excluding: All clerical and professional per-
sonnel and supervisors as defined in the Act. Also ex-
cluded are the independent truck drivers.
On March 18, 1991, the Region issued a complaint alleg-
ing violations of Section 8(a)(1) and (5) of the Act because
Respondent refused to recognize and bargain with the UMW.
On April 11, 1991, the Region followed up with a Motion
for Summary Judgment which was granted by the Board on
May 15, 1991 (302 NLRB No. 166) (not reported in Board
volumes).
Thereafter, Respondent filed a petition for review with the
United States Court of Appeals for the Sixth Circuit and the
Board cross-petitioned for enforcement of its Order. On June
2, 1992, the court granted Respondent’s petition for review
holding that Respondent was entitled to a hearing on its Ob-
jection 3 which was filed in the representation proceeding.
On November 6, 1992, the Board accepted the remand and
ordered a hearing for the limited purpose stated in the court’s
opinion.
Objection 3 reads as follows:
Employee free choice was interfered with by the UMW
as a result of threats by agents of the UMW made to
1134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employees of the employer eligible to vote in the elec-
tion.
The parties were afforded an opportunity to be heard, to
call, to examine and cross-examine witnesses, and to intro-
duce relevant evidence. Since the close of hearing, briefs
have been received from the parties.
On the entire record, and based on my observation of the
demeanor of the witnesses, and in consideration of the briefs
submitted, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is at all times material, a Tennessee corpora-
tion with an office and place and business located in
Clairfield, Tennessee, where it is engaged in the mining and
sale of coal. Respondent, during the past calendar year,
which period is representative of all times material, sold
from its Clairfield, Tennessee mines coal valued in excess of
$50,000 directly to Copper-Glo Fuels, Inc., within the State
of Tennessee. Copper-Glo Fuels, Inc., a West Virginia cor-
poration with an office and place of business located in
Clairfield, Tennessee, from which it is engaged in the proc-
essing and sale of coal, during the same period, sold and
shipped from its Clairfield, Tennessee plant, coal valued in
excess of $50,000 directly to customers located outside the
State of Tennessee.
The Company admits, and I find, that it is an Employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act, and the parties admit, and I find, that
the Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. OBJECTION 3
In support of its objection, the Employer offered two wit-
nesses.
Sam Perry testified that he worked as a flyboy in the mine
from 1 year before the union campaign until September
1990. He was part of a section crew in mine 1 with 12 other
miners. Perry testified that early in the campaign several em-
ployees wore UMW hats and stickers including Rick Faust
who worked in Perry’s crew. Perry asserts that sometime
Faust told him that he was sent out to organize the Com-
pany. He stated that Lonnie Boshears, Danny Muse, and
Faust were active in getting employees to sign union cards.
Faust also talked in favor of the Union telling employees that
if they did not vote the Union in they would probably lose
their jobs and that the Union offered them job protection.
Perry admitted that he told the other employees that they
did not need a union, that if the Union won the election, they
would lose their jobs. Perry claimed that everyone knew how
he felt about the Union.
Perry further testified that sometime either June 16 or 6,
1990, he was in the mine alone with Faust when Faust told
him they needed the Union. Perry disagreed and Faust then
said, ‘‘Don’t you know that your house could burn.’’ Perry
replied that he had insurance and laughed it off.
Faust also told him that he waited alone down on the high-
way (waiting for a ride to work) and something could happen
to him.
Later that day in the ‘‘dinner hole’’ with the whole crew
present, Perry called Faust a union steward and Faust agreed
repeating his threat that Perry’s house could burn. An argu-
ment ensued and Face Boss Don Kennedy broke it up.
Faust testified that he did not call the police because
Union Representative Freddy Wright had mentioned in a
meeting a week or two before the election that the Union had
a judge and sheriff under the Union’s control and nothing
would happen to the members if they were arrested. Instead
he bought a gun. The same day the threats were made, Perry
related them to another employee, John England, who rode
with him. He also told his family and Assistant Supervisor
Dwayne England about the threats.
After the threats were made, he attended a union meeting
at Careyville Holiday Inn (no date given) where Freddy
Wright cautioned all employees not to make threats and told
them about an election he lost because someone threatened
to burn down an employee’s house. At a second meeting he
attended a week before the election at Jellico Holiday Inn,
Wright again cautioned employees not to threaten anyone.
In his affidavit he admitted that Faust never said he was
a union steward. He also stated in his affidavit that after the
threats, he and Faust remained friends and talked daily. He
testified that he thought Faust was warning him about what
someone else would do to him, but the Board agent did not
put it in the affidavit. He further stated in his affidavit that
the threats were made on June 5, 1990. He testified on cross
that he signed a union authorization card before the election,
at the first union meeting held at Perryville Holiday Inn. His
union authorization card was offered into evidence and is
dated July 2, 1990.
He finally testified on cross that when the Southern Labor
Union represented the employees at Colquest, he opposed it,
and on redirect he stated that although he initialed and signed
his Board affidavit, he did not have his eyeglasses with him,
so he was not able to read it.
Leon Jeffers testified that he worked for the Employer dur-
ing 1990 as a roof bolt operator in section 2 with 10 other
employees and he left the Company before the strike started
on October 1, 1990. He drove a Volkswagen to work with
employees Kenneth McCormick and Mike Martin.
He testified that crewmembers Delbert Buckner (Bo) and
Carl Morgan talked in favor of the Union and a couple of
weeks before the election, at the dinner hole in front of other
crewmembers, Buckner told Morgan there would be a special
meeting at the White Oak fire department. Jeffers testified
that sometime in May or June, a week or two before the
election in the dinner hole in front of the whole work crew,
Buckner asked him how he would vote. Jeffers said he
would probably vote against the Union. Buckner then stated
to Jeffers that his mind could probably be changed. Some-
body might overturn your car. He stated that he probably
mentioned the threat to the employees he rode with and his
wife.
On cross-examination, Jeffers admitted that he worked
with Buckner everyday after the threat and they talked to
each other but he never mentioned the threat to Buckner. He
also stated that after the election and the allegation was
made, Buckner talked to him about it and said he was not
mad at Jeffers.
For the Union, International Representative Freddy Wright
testifed that he had no special committees of supporters or
1135COLQUEST ENERGY, INC.
an inplant organizing committee. Neither Faust, Buckner,
Muse, or Morgan had any special status with the Union and
had no authorization to do anything other than be members
of the bargaining unit. No one received money from the
Union other than strike benefits. Wright did not know who
Faust and Buckner were at the time the objections were filed.
He further states that they held no position with the Union.
Wright testified that he had several informal meetings with
employees by the side of the road and two formal meetings
at Cove Lake and Jellico. The first meeting was held around
the first of June (June 3) and the second meeting was held
around June 24. At these meetings he instructed the employ-
ees not to make threats and gave two instances where he had
elections overturned at Sequstchie Valley Company in south-
ern Tennessee and Brownie Street Collieries in Kentucky
where an employee threatened another that his house could
burn and the other involved a threat to overturn an employ-
ee’s Volkswagen. Sam Perry was present at the meeting
where these other elections were discussed. He remembers
that Perry was present because he signed a union card at the
meeting, which was the only union card to be signed after
the petition was filed. Perry also talked to Wright at the time
he signed the authorization card.
Delbert Buckner testified that he worked for Colquest up
to July 1990. He was not active in the campaign, held no
position in the Union and was not paid any money by the
Union. He attended all the union meetings where Wright told
employees not to threaten anyone.
He stated that he found out about the alleged threat to turn
over Jeffers’ Volkswagen from Wright. That same day, he
called Jeffers and asked why he made the allegation. Jeffers
replied, ‘‘Bo, I’m sorry, I was pressured into it by the com-
pany.’’ Jeffers apologized to Buckner who said, ‘‘Leon, you
know I wouldn’t do anything like that.’’ Jeffers replied, ‘‘I
know it, I was just pressured into it.’’
Rick Faust testified that he worked with Perry at Colquest
and remained there until the strike on October 1, 1990. He
stated that he was for the Union but he held no special job
in the campaign. He was never on any committee and was
never paid by the Union. He was not a union steward but
Perry called him that. He further testified that he never
threatened Perry or tried to change his mind about the Union.
He stated that sometimes Perry was for the Union and some-
times he was against it; however, he did tell Faust that he
got the Southern Labor Union out of Colquest and he would
get the UMW out. He further testified that after a union
meeting at Jellico, Perry asked him if an election could be
overturned if somebody claimed their house got burnt. Perry
attended the meeting when this incident was discussed be-
cause Perry wanted Faust to buy him some Kentucky Fried
Chicken after the meeting.
Karl Morgan testified that he worked with Jeffers and he
never heard Buckner threaten Jeffers.
Danny Muse testified that he worked with Perry and Faust
at Colquest and he never heard Faust threaten Perry. He fur-
ther testified that Perry told him that he was the one that ini-
tiated the petition to get rid of the Southern Labor Union and
that if the UMW was voted in, the Company would not ac-
cept it and they would be out of a job. He testified that he
attended union meetings where Freddy Wright talked about
not threatening others. Wright did mention a house burning
threat and a threat to overturn an automobile.
Analysis and Conclusions
After observing the witnesses and listening to their testi-
mony, I can only arrive at one credibility resolution. The
Employer’s witnesses were deceptive, evasive, and their tes-
timony was completely fabricated. It is much more than a
coincidence that their alleged threats exactly matched what
Wright stated, at the union meetings, was sufficient to have
an election overturned.
I credit all the Union’s witnesses when they stated that
they did not threaten Perry or Jeffers and I credit Buckner
when he testified that Jeffers told him the Company pres-
sured him into alleging he was threatened. I further credit
union witnesses when they testified that Perry was antiunion
and told them he was instrumental in getting rid of another
union and would do the same to the UMW. Perry showed
bias throughout his testimony and the Union’s witnesses cor-
roborated his bias against the Union. Perry’s reasons for not
calling the police and not reading his Board affidavit are pre-
posterous.
Another major reason for discrediting the Employer’s only
two witnesses is that their testimony was uncorroborated. Ac-
cording to their own testimony, dozens of crewmembers, as
well as supervisors, heard these threats but no one was of-
fered to corroborate their testimony. Moreover, they testified
that they repeated these threats to other employees, super-
visors, and family members but not one was offered for cor-
roboration.
The credible evidence supports the finding that none of the
Colquest employees were agents of the UMW. Although the
Employer’s objection refers only to agents of the UMW; in
brief, it apparently wants me to consider third-party conduct
as well. The Company should have alleged third-party con-
duct, if it wanted it considered. Moreover, it should have of-
fered the testimony of the many witnesses available to it to
support its contention and corroborate its two witnesses but
it did not. Therefore, the presumption is that if they had
called other witnesses, they would not have supported its
third-party assertion. Having already discredited their only
two witnesses, I find that no threats were ever made.
Employer’s counsel complains about my disallowing an
offer of proof. There was sufficient offer of proof on the
record for me to decide that it would be inappropriate to
retry the Yablonski murder case.
In conclusion, I recommend overruling Employer’s objec-
tion to Objection 3 and certifying the UMW. It is further rec-
ommended that the Board find Respondent in violation of
Section 8(a)(1) and (5) of the Act.
CONCLUSIONS OF LAW
1. Respondent/Employer is engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. United Mine Workers of America, AFL–CIO is a labor
organization within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees, including
carrier operators, utility employees, shop employees, roof
bolters, fire bosses, laborer mechanics, tractor operators,
mine operators and maintenance employees employed at the
Employer’s facilities (mines #1, #2, #3, and machine shop)
in Clairfield and Clairborne County, Tennessee; excluding:
All clerical and professional personnel and supervisors as de-
fined in the Act, also excluded are the independent truck
1136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
drivers constitute a unit appropriate for collective bargaining
within the meaning of Section 9(b) of the Act.
4. Employer’s Objection 3 should be overruled in its en-
tirety.
5. United Mine Workers of America, AFL–CIO is the cer-
tified bargaining representative of the employees in the
above-described unit.
6. Respondent violated Section 8(a)(1) and (5) of the Act
by refusing to recognize and bargain with United Mine
Workers of America, AFL–CIO.
Recommendations
It is recommended that the Board:
1. Overrule Employer’s Objection 3.
2. Certify United Mine Workers of America, AFL–CIO as
the collective-bargaining representative of Respondent’s em-
ployees in the above-described unit.
3. Find that Respondent violated Section 8(a)(1) and (5)
of the Act by refusing to recognize and bargain with the cer-
tified bargaining representative (UMW).