Double A Coal Co

National Labor Relations Board - Board Decisions

May 22, 1992

307 N.L.R.B. 689 (N.L.R.B. 1992)

689
307 NLRB No. 115
DOUBLE A COAL CO.
1 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.
In the last paragraph of the section of the judge’s decision, enti-
tled, ‘‘3 Employees of Double A,’’ the judge inadvertently identified
Double A, rather than the Union, as the exclusive bargaining rep-
resentative of the unit employees.
2 In affirming the judge’s finding that the Respondent violated Sec.
8(a)(5) by unilaterally changing its hiring practice of employing indi-
viduals on the contractual laid-off panel, we note that this bargaining
obligation arose from the Respondent’s pledge made directly to the
Union before it hired any employees that it would honor the panel
rights of laid-off employees of Jewell Ridge, the predecessor em-
ployer. This obligation did not arise from the terms of the Union’s
contract with Jewell Ridge. As a successor employer, the Respond-
ent was not required to assume any of the terms of the predecessor’s
contract, but the Respondent did make a commitment to the Union
that it would follow the substance of the contract term requiring hir-
ing from the panel, and therefore made this rehiring procedure a
condition of employment that would not be changed without bar-
gaining with the Union.
3 We agree with the judge, for the reasons he stated, that the Re-
spondent Double A Coal Co., Inc. was the Employer of the miners
who worked at the Double A mine 1 and 2 and find it unnecessary
to pass on his alternative joint employer finding regarding Respond-
ent and Double A Coal Co.—Partnership and Zapp Mining, Inc. We
note that this modification has no effect on the judge’s rec-
ommended Order, which is solely directed at Respondent Double A
Coal Co., Inc.
1 All dates are from April 6, 1988, to April 5, 1989, unless other-
wise stated.
Double A Coal Co., Inc., Double A Coal Co.—Part-
nership, and Zapp Mining, Inc. and United
Mine Workers of America and District 28,
United Mine Workers of America. Case 11–
CA–13266
May 22, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On October 30, 1991, Administrative Law Judge
Marion C. Ladwig issued the attached decision. The
Respondent, Double A Coal Co., Inc., filed exceptions
and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Double A Coal Co., Inc.,
Double A Coal Co.—Partnership, and Zapp Mining,
Inc., Whitewood, Virginia, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order.
Patricia L. Timmins, Esq., for the General Counsel.
Mr. James M. Ashby (Mark M. Lawson, Esq., of Bristol, Vir-
ginia, on the brief), for the Respondent.
James J. Vergara, Esq., of Hopewell, Virginia, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Administrative Law Judge. This case
was tried in Tazewell, Virginia, on January 17–18, 1991. The
charge was filed on April 4, 19891 (amended June 28, 1989,
and March 29, November 23, and December 11, 1990). The
complaint was issued March 30, 1990, and amended January
3, 1991.
James Ashby, president of Double A Coal Co., Inc. (Dou-
ble A), signed a contract to operate Pittston’s closed 12A
mine, promising to honor the recall rights of laid-off panel
members and agreeing not to subcontract the mine without
Pittston’s written consent. Later, while negotiating with the
Union for an agreement to cover the mine employees, Ashby
took actions obviously designed to undercut the Union’s ma-
jority status.
After hiring very few panel members, Ashby orally sub-
contracted both parts of the mine to his mine managers,
without notifying the Union—yet continued the union nego-
tiations. He retained control over the operations and contin-
ued reporting to the Labor Department the use of the as-
sumed name, Double A Mining Inc., as the business’ legal
identity. This case arose (a) when the mine managers failed
to employ any of the panel members except the five that
Ashby directed to be employed and (b) when these five panel
members were assigned fewer hours and, at Ashby’s direc-
tions, paid lower wage rates than nonpanel employees, dis-
couraging support for the Union.
The primary issues are whether Double A, the Respondent,
through President Ashby’s conduct, unlawfully discriminated
against panel members and refused to bargain in good faith
with the Union, violating Section 8(a)(1), (3), and (5) of the
National Labor Relations Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel, Double A, and the Union, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent Double A, a corporation, mined coal near
Whitewood, Virginia, where, during the 12-month period be-
ginning August 1988, it mined and trucked coal valued over
$50,000 to Jewel Ridge Mining Corporation, which annually
sells goods valued over $50,000 directly outside the State.
Double A admits and I find that it is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
690 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of the Act and that the Union (United Mine Workers of
America and District 28, United Mine Workers of America)
is a labor organization within the meaning of Section 2(5) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Bargaining as Pittston’s Successor
On April 6, 1988, James Ashby, as president and sole
stockholder of Double A Coal Co., Inc. (Double A), signed
a contract (G.C. Exh. 2) with Jewell Ridge Coal Corporation
(a company in the Pittston Coal Group) for Double A to
mine Pittston’s coal in its closed 12A mine as an inde-
pendent contractor (Tr. 48–50, 74). Ashby agreed in the con-
tract (par. 34) that Double A, as a successor, would hire em-
ployees from the Jewell Ridge panel of employees laid off
from the 12A mine. Ashby also agreed (par. 24) not to sub-
contract any part of the mine without Jewell Ridge’s ‘‘writ-
ten consent.’’
On May 31 Jewell Ridge gave written notice to the Union
(C.P. Exh. 3) that the 12A mine had been contracted to Dou-
ble A and that ‘‘This operator has agreed to be a successor’’
under the National Bituminous Coal Wage Agreement of
1984 (the BCOA agreement). Sometime in August, before
opening the mine, Ashby—along with the Double A Labor
Consultant Arville Sykes—met with the Union and began
bargaining for a collective-bargaining agreement to cover the
employment of production and maintenance employees at the
12A mine (Tr. 17–18, 148–149, 153, 233–238).
This bargaining, between Double A and the Union, contin-
ued until after the Union’s strike against Pittston began on
April 5 (Tr. 149, 152–155, 160, 168, 233). In none of the
bargaining sessions did Ashby or Sykes give any indication
that Ashby had subcontracted any part of the 12A mine (Tr.
154, 221).
B. Failure to Honor Panel Rights
1. Contractual provisions
Paragraph 34, ‘‘Successorship,’’ of Double A’s contract
with Jewell Ridge (G.C. Exh. 2) provided that Double A
‘‘specifically agrees to hire from the panel in accordance
with the expired provisions of Article IA(h)(2)–(6)’’ of the
BCOA agreement (G.C. Exh. 5). That article 1A(h)(2) pro-
vides that Pittston’s contractor or ‘‘lessee-licensee’’ (Double
A) must make ‘‘offers of employment’’ to the senior quali-
fied panel members. It also provides that ‘‘The lessee-li-
censee shall not be required to make more than one such
offer of employment to each such Employee.’’
The contractual requirements for the offer of employment
(or ‘‘notice of recall’’) are specified in article 17(e) of the
BCOA agreement. The notice is to be sent by certified mail
to the laid-off employee’s last known address, giving the
panel member ‘‘four calendar days after receipt’’ of the no-
tice to accept the offer (Tr. 246). If ‘‘the Employee rejects
a job which he has listed as one to which he wishes to be
recalled or fails to respond within four calendar days after
receipt of such notice or accepts but fails to report for work
in a reasonable time his name shall be removed from the
panel at that mine and he shall sacrifice his seniority rights
at that mine.’’ Article 17(e) also provides that ‘‘The super-
intendent of the mine and the Recording Secretary of the
local union shall be joint custodians of the panel records.’’
2. Purported ‘‘recall’’ notices
The evidence clearly shows that President James Ashby
had no intention of honoring the recall rights of all the laid-
off panel members.
Although Ashby informed the Union that he was going to
call the panel for employees, he failed to follow the estab-
lished procedure for offering jobs to panel members. As
Union Field Representative Donnie Lowe credibly testified,
the lessee should get in touch with the local union recording
secretary to review the panel forms and the available jobs.’’
Both are involved with the recall of the senior qualified laid-
off panel members. (Tr. 148–149, 153.)
Instead of following this procedure and sending recall no-
tices to the senior qualified panel members for specific jobs,
Ashby bypassed the local union and sent out letters notifying
panel members of ‘‘recall’’ meetings.
On August 18, about 2 weeks before one portal of the 12A
mine (called Double A mine 1, Tr. 13) was to open, Ashby
sent out 18 purported ‘‘recall’’ letters. The letters stated that
‘‘some’’ of the 12A mine employees were being recalled and
announced a meeting at 9 a.m., August 20, for those ‘‘ac-
cepting this RECALL.’’ (R. Exh. 14.) These letters thus gave
a maximum of 1 day—not the required 4 days—after their
receipt for the panel members to ‘‘accept.’’ They did not
offer any particular job to accept.
The ‘‘recall’’ letters were sent to 17 of the 77 persons on
the local union’s copy of the panel (G.C. Exh. 6; R. Exh.
14). These 17 panel members were David Blankenship, Jerry
Clark, Fulton Cole, Basel Cooper, Fred Hale, Bride Hess,
Joshua Hicks, Roy Lawson, Clarence McGlothlin, Jimmie
McGuire, Harold Mounts, Alex Mutter, Robert Pruitt, Arlin
Russ, Larry Sizemore, James Ward, and Troy Wimmer. The
18th letter was sent to John Van Huss, who was not on the
local union’s copy, but was on Double A’s copy of the
panel, as discussed below.
Eight of the eighteen letters were received either on or
after August 20, giving these panel members (Clark, Cole,
Cooper, Hess, McGlothlin, McGuire, Mounts, Mutter, and
Sizemore) no time to ‘‘accept’’ before the 9 a.m., August 20
meeting (R. Exh. 14).
On August 27 Double A sent a second group of purported
‘‘recall’’ letters, signed by Superintendent W. P. Corbett.
This time the letters announced a meeting on August 31, giv-
ing a maximum of 3 days—not the required 4 days—after
receipt for the panel members to ‘‘accept.’’ The letters still
were not recall letters to the senior qualified panel members,
offering them particular jobs. They were sent to 3 of the
same panel members (Cooper, Fred Hale, and McGlothlin)
and to 12 others (James Atwell, Shannon Chapman, Donald
Cochran, Donny Kinder, Douglas Lester, Bobby Mullins,
James Reed, Richard Smith, Marvin Street, James Vance,
Jerry Vance, and John Wilson). Three letters (to Atwell,
Cooper, and Kinder) were received on or after the date of
the 9 a.m., August 31 meeting. (R. Exh. 14.)
Double A employed only five of the panel employees
when it began operating mine 1 about August 31 or Septem-
ber 1 (G.C. Exh. 3, p. 1; Tr. 174). They were Andy Brown,
George Cantrell, Joshua Hicks, Roy Lawson, and Clarence
McGlothlin (Tr. 18–19). Although Douglas Lester and Alex
691DOUBLE A COAL CO.
Mutter checked ‘‘RECALLED ACCEPTED’’ on their no-
tices (R. Exh. 14), neither of them was employed.
A total of 32 ‘‘recall’’ letters had been sent. Four of them
(to Robert Pruitt, Reed, Wilson, and Woodward) were re-
turned (R. Exh. 14). As found, five panel members (‘‘the
Five’’) were hired to work in mine 1. None of the other
panel members who were sent the August 18 or 27 letter has
ever been sent a recall letter to a particular job, with the re-
quired 4-day notice.
On September 15 Ashby sent a third group of six pur-
ported ‘‘recall’’ letters, announcing a meeting on September
23. These letters (to William Bandy, Thomas Jackson, Lee
Walters, Dallas Whited, Randall Whited, and Douglas Whitt)
gave the required 4 days to respond, but still failed to offer
particular jobs to the senior qualified panel members. One
letter (to Bandy) was returned. (R. Exh. 14.) The only two
of these panel members who were hired were Dallas Whited
and Douglas Whitt. As discussed below, they were employed
briefly in mine 1 before it was shut down, but were not re-
called when it was reopened.
As revealed by the certified mail receipts in evidence (R.
Exh. 14), no meeting notices were sent to the remaining 43
of the 81 panel members on Double A’s and the local
union’s copies of the panel (see ‘‘Stipulated panel mem-
bers,’’ below). These 43 panel members were Raymond
Baldwin, Ralph Barnett, Lowell Batton, James Blakenship,
Albert Byrd, Bert Clevenger, James Crockett, Charlie Daw-
son, Raymond Dawson, Virgil Deel, Jerry Elswick, James
Hackworth, Paul Hale, Wesley Harlow, William Hicks, Paul
Hill, Donnie Keen, Otis Keen, Dennis Kennedy, Darrell
Lawson, Bennie Lester, James Lester, Edward Mabe, Win-
fred McGlothlin, Buford Mitchell, Ralph Mullins, Edward
Newberry, Jeffrey Plaster, Billy Price, Timothy Pruett, Jef-
frey Rapp, Kenneth Ray, Donald Reedy, Joe Rutter, Curtis
Shrader, Barry Smith, Jeff Stiltner, Michael Stiltner, Alvie
Street, Joe Vance, Leslie Vandyke, Bill Wimmer, and Troy
Wimmer.
I note that Double A did not retain copies of most of the
meeting notices, but that it introduced into evidence the cer-
tified mail receipts and the return receipts (many of them in
multiple copies) showing when the notices were sent (R.
Exh. 14).
Based on this evidence and all the circumstances, I find
that Double A’s sending the purported ‘‘recall’’ notices was
largely a pretense of honoring the recall rights of the laid-
off panel employees.
3. Stipulated panel members
Meanwhile the Union was complaining to President Ashby
in contract negotiations ‘‘that he wasn’t hiring off the
panel.’’ Ashby’s response was that he felt ‘‘he had called off
the panel.’’ In one negotiating session he asked if the Union
‘‘would furnish him a copy of all [the Union’s] panel
sheets’’ and said ‘‘he would review them.’’ The Union gave
him copies of the panel sheets, but to no avail. (Tr. 153–154,
257.) At the trial Ashby asserted that he used both the
Union’s and Pittston’s copies of the panel sheets to ‘‘get the
amount of people that worked there’’ at the mine (Tr. 258).
The panel that Double A used in the summer of 1988 is
not in evidence. The 63-person panel that Double A intro-
duced into evidence (R. Exh. 3) is Pittston’s January 1991
copy, reflecting changes made in the intervening 2 years (Tr.
240, 256, 291–296). I discredit Ashby’s claim (Tr. 262) that
he had that panel in his possession since April 1988.
The parties stipulated (Tr. 264) that if this case goes to
compliance, both copies of the panel (G.C. Exh. 6, the local
union’s copy, and R. Exh. 3, Pittston’s 1991 copy) are to be
used by the compliance officer in determining who have
panel rights to the 12A mine. I find that two other panel
members who were on the panel that Ashby used in 1988
should also be included.
They are John Van Huss, to whom Ashby sent the August
18 ‘‘recall’’ letter (R. Exh. 14) and Paul Hill. The complaint
alleged that since December 1988, Double A has failed and
refused to hire Hill and nine other panel members (David
Blankenship, James Blankenship, Jerry Clark, Bert
Clevenger, Basel Cooper, Fred Hale, Alex Mutter, Robert
Pruitt, and Dallas Whited), as well as ‘‘others unknown at
this time.’’ Ashby admitted at the trial (Tr. 260–261) that
these 10 persons (including Hill) were persons ‘‘on the panel
sheets I had’’ and that ‘‘they should have been considered
for recall.’’
I find that there was a total of 81 panel members: 77 on
the local union’s copy of the panel (G.C. Exh. 6) and 4 addi-
tional panel members (Paul Hill and John Van Huss, dis-
cussed above, and James Hackworth and Kenneth Ray, who
are on Pittston’s 1991 copy, R. Exh. 3, but not on the local
union’s copy, G.C. Exh. 6).
4. Operation of Double A mine 1
a. Separate payroll for panel members
On August 3, about 4 weeks before Double A began oper-
ating Double A mine 1, Superintendent Corbett filed the re-
quired legal identity report (C.P. Exh. 1) with the U.S. De-
partment of Labor’s Mine Safety and Health Administration
(MSHA). As MSHA Inspector Supervisor Jim Franklin testi-
fied, this report is required by the Mine Act to be filed to
show responsibility for operating the coal mine in compli-
ance with MSHA regulations. It must be filed before the
mine is opened and must be resubmitted to reflect the change
‘‘anytime they make any kind of modification.’’ (Tr. 121–
123, 137.)
The August 3 legal identity report (C.P. Exh. 1) gave Dou-
ble A Mining Inc. as the official business name of the mine
1 operator and named James Ashby as president of the cor-
poration and W. P. Corbett as superintendent in charge of
health and safety. There is no direct evidence why the offi-
cial business name was incorrectly given as Double A Min-
ing Inc. rather than Double A Coal Co., Inc., the Respondent
Double A, whose president is James Ashby and which admit-
tedly operated the mine when it opened.
From the date of opening until Double A temporarily shut
down the mine about the third week in October, Double A
placed ‘‘the Five’’ panel members on a separate Double A
payroll (G.C. Exh. 3). Joshua Hicks was the miner operator
on the first shift, Andy Brown and Clarence McGlothlin
were the roof bolters, and George Cantrell and Roy Lawson
were the shuttle car operators (Tr. 18–19). The other first-
shift employees (including such maintenance employees as
an electrician or mechanic, Tr. 15) and all the second-shift
employees were presumably on a different payroll (not in
evidence).
692 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The five were being paid $6.875 or $7.50 and $8.125 an
hour (G.C. Exh. 3). These rates were about half the union
wage rates and were substantially lower than the going non-
union rates, as discussed later. The evidence does not dis-
close the wage rates that Double A was paying its mine 1
employees on its second payroll.
All the other production and maintenance employees on
the first and second shifts were nonpanel employees, until
sometime before the temporary closing of mine 1, when
Double A hired two additional panel members. One was Dal-
las Whited, the miner operator on the second shift. His name
appears on the payroll with the names of the five for the pay
period ending October 29, showing that he worked 2 hours
on the first shift before the closing. The other was electrician
Douglas Whitt, who worked 80-1/2 regular hours and 8 over-
time hours on the first shift during that last pay period. (Tr.
178; G.C. Exh. 3, p. 5.) I infer that he was hired to work
on the power-unit problem, which left the mine equipment
without any power (Tr. 30, 175).
Both Whited and Whitt were paid $8.125 an hour (G.C.
Exh. 3, p. 5). Neither of them was recalled after the shut-
down (Tr. 178, 220).
At the time of the shutdown, a Double A foreman in-
formed the five about the problem with the power unit, stat-
ed that the mine would be idle until further notice, and
promised that ‘‘When they got the thing fixed, they would
give us a call’’ (Tr. 175).
b. Change in mine managers
Around mid December, Double A mine 1 was reopened
and the mining of coal was resumed (R. Exh. 7; G.C. Exh.
4, p. 3). By that time, Double A President Ashby had re-
placed Superintendent Corbett with Bobbie Cline. The
MSHA legal identity report, effective December 13 (not in
evidence), gave the same assumed name Double A Mining
Inc. as the official business name of the operator (Tr. 127–
128). On February 24 Cline filed an update (C.P. Exh. 2),
again giving Double A Mining Inc. as the official business
name. It named James Ashby as president of the corporation,
Bobby Cline as superintendent in charge of health and safety,
and (Foreman) Lewis Tramel also as operator. No additional
legal identity report was filed until after April 16–30, 1989,
when Superintendent Bobby Cline shut down mine 1 (but re-
sumed production for about 2 weeks in June 1989, Tr. 120,
127; R. Exh. 7, pp. 9–11).
Despite Double A’s promise to recall the five when the
mine reopened, none of them was recalled to resume his job
in mine 1. The mine was staffed entirely with nonpanel em-
ployees, who were on Double A’s payroll and who were paid
with Double A checks bearing Ashby’s signature. (G.C.
Exhs. 4 & 6; R. Exh. 12.)
I discredit Ashby’s claim (Tr. 60, 78) that ‘‘I told [Bobby
Cline] he would have to hire off the panel’’ and gave Cline
‘‘a copy of the panel sheet[s] to call from.’’ I also discredit
Ashby’s claim (Tr. 78) that Cline asked ‘‘who worked for
me that I had called off the panel’’ and that he gave Cline
‘‘their names and addresses where [Cline] could call these
people back to work.’’ Particularly in view of fact that none
of the five and none of the other panel members was em-
ployed at mine 1 after it was reopened, I infer the opposite
to be true—that Ashby directed Cline not to hire any of the
panel members. (By his demeanor on the stand, Ashby im-
pressed me as a most untrustworthy witness who was willing
to fabricate any testimony that might help Double A’s
cause.)
Having inferred that President Ashby directed Super-
intendent Bobby Cline not to hire any of the panel members
at mine 1, I find that Ashby had no intention of honoring
the panel members’ recall rights since December 1988 at that
mine.
5. Operation of Double A mine 2
Shortly after mine 1 was shut down in October, President
Ashby selected Dean Baldwin to operate Double A mine 2,
the part of the 12A mine with a portal on the other side of
the mountain. Baldwin acted as superintendent of the mine
and Donald (Jackie) Sparks as a foreman. (Tr. 13, 24, 74, 83,
185, 192–193, 208).
On November 3 Foreman Sparks filed the MSHA legal
identity report (G.C. Exh. 7). It gave Double A Mining Inc.
(the same name as the mine 1 operator) as the official busi-
ness name of the mine 2 operator and James Ashby as the
principal officer. It listed ‘‘Owner’’ James Ashby, Jackie
Sparks, and Dean Baldwin as partners. On December 20
Sparks filed an update (G.C. Exh. 8), changing the official
business name to Double A Mining Co. and omitting
Ashby’s name. On December 30 Sparks file a correcting
legal identity report (R. Exh. 1), effective December 23,
again giving Double A Mining Inc. as the official business
name and adding James Baldwin as a partner (Tr. 137). No
additional legal identity report was filed for mine 2 until
after the April 5 strike began against Pittston.
Ashby gave incorrect testimony about the operation of
mine 2. He claimed (Tr. 24) that at the time Baldwin began
operating the mine, the five panel members transferred there.
In fact, Baldwin began hiring employees at mine 2 on Octo-
ber 26 (G.C. Exh. 4, p. 9), and the five were not employed
there until about 7 or 8 weeks later around mid December,
several weeks after coal was being mined (R. Exh. 6, p. 1;
G.C. Exh. 4, p. 1; Tr. 178, 216–218).
Ashby later claimed ‘‘I instructed Mr. Baldwin that he
would have to follow the Pittston contract and hire off the
panel’’ (Tr. 40, 60) and ‘‘I also furnished [Baldwin] a copy
of the panel sheet to call from’’ (Tr. 78). In fact Baldwin,
like Superintendent Bobby Cline at mine 1, hired nonpanel
employees exclusively, except the five in December as
Ashby directed on the urging of panel employee Cantrell (Tr.
176–177, 182, 191, 216–218).
Under these circumstances I infer that Ashby had not told
Baldwin that he would have to hire from the panel, but that
he had instead directed Baldwin—like Cline at mine 1—not
to hire any panel members. Furthermore, because of Ashby’s
other conduct to discourage union support, I infer that
Ashby’s belated direction to employ the five at mine 2 was
a defensive measure—not a change in his antiunion policy.
Having inferred that President Ashby directed Super-
intendent Dean Baldwin not to hire any of the panel mem-
bers at mine 2 (excepting later the five), I find that Ashby
had no intention of honoring panel members’ recall rights
since December 1988 at that mine.
693DOUBLE A COAL CO.
C. Discouraging Union Support
The evidence is clear that when the five were finally em-
ployed at mine 2 in December, following their layoff from
mine 1 in October, they were discriminated against both in
the number of assigned hours and their wage rates.
Concerning assigned hours, panel member Cantrell
credibly testified, ‘‘if something broke down or if for what-
ever reason they were going to send some people home, the
five of us would always get sent home’’ (Tr. 179, 182–183).
President Ashby admitted that some nonpanel employees had
more hours assigned than the five (Tr. 69–70). His defense,
‘‘That was out of my control,’’ is discussed later.
Concerning wage rates, Ashby was meanwhile restricting
the five’s wages to the top rates he had offering the Union
in negotiations, $7.50 and $8.125 an hour (Tr. 18, 168), even
though the going nonunion rates were higher. Double A’s
own payroll records show that the minimum nonunion wage
rate being paid nonpanel employees was $10 an hour. At
both mines 1 and 2 the rates were $10, $10.625, and $12.50
an hour. The only exceptions in the record were $13.75 paid
electrician John Alley and $7.50 briefly paid John Merrick
before he was terminated January 7. (G.C. Exh. 4, pp. 4, 7,
11; Tr. 182.)
It is undisputed, as Cantrell credibly testified, that the five
repeatedly asked the mine 2 managers about a raise. This
was in the mine office when Superintendent Dean Baldwin,
Foremen Jackie Sparks, and all the mine employees were
present. The answer, usually given by Baldwin, was always
the same, that ‘‘Mr. Ashby wouldn’t allow them to pay us
any more.’’ (Tr. 185–186, 191, 213.) I discredit Ashby’s
claim (Tr. 60) that he did not set any wages.
The five’s wage rates of $7.50 and $8.125 were never
raised to the minimum nonunion wage being paid the
nonpanel employees. This discrimination against panel em-
ployees, openly attributed to the directions of President
Ashby, obviously discouraged support for the Union.
D. Oral Subcontracting
1. Initial action
At the time Double A temporarily shut down Double A
mine 1, President Ashby and Labor Consultant Sykes were
in negotiations with the Union for a collective-bargaining
agreement to cover the employment of production and main-
tenance employees at the Pittston 12A mine (both mine 1
and mine 2). Yet, Ashby was undercutting the Union’s ma-
jority status by failing to fulfill his promise to honor the re-
call rights of the laid-off panel members.
As found, Ashby and Superintendent Corbett had sent out
meeting notices to only 32 of the 81 panel members. Ashby
had employed only the five (Andy Brown, George Cantrell,
Joshua Hicks, Roy Lawson, and Clarence McGlothlin), plus
two other panel members (Dallas Whited and Douglas Whitt)
for a short time before the shutdown. The other employees
on the first and second shifts at mine 1 had all been
nonpanel employees.
The Union was contending in negotiations that Ashby was
required under Double A’s contract with Pittston to pay the
union scale—about twice the wage rates that Ashby was pay-
ing the panel employees (Tr. 157, 219). Of course if Ashby
employed other union panel members, the Union would be
in a stronger position to negotiate an increase in the wage
rates.
Ashby then ignored his contractual agreement with Pittston
not to subcontract any part of the 12A mine without
Pittston’s written consent. In late October he selected Dean
Baldwin to operate Double A mine 2. He entered into an oral
subcontract with him, agreeing to pay him for the tons of
clean coal mined and permitting him to hire the mine em-
ployees and pay them from the tonnage revenue (Tr. 24–26,
40–42, 70, 108).
Ashby denied at the trial that he took this action to avoid
honoring the laid-off employees’ panel rights. He testified as
follows (Tr. 95):
Q. So, your way to beat this [Pittston] contract was
merely to subcontract it out to someone else and then
they were free to hire whoever they wanted and to heck
with the panel rights, is that your testimony?
A. No, sir. I’m not trying to beat this contract.
Ashby claimed that honoring the panel rights was merely
a matter between him and Pittston (Tr. 94):
Q. Do you have any written permission to sublet
Double A Mine which written permission is required by
this [Pittston] agreement?
A. No, I do not. May I reply to that? This is not up
to this Court to decide about this contract. If Pittston
doesn’t like the way that I’m operating my operation
and abiding [by] my contract, it’s between Pittston and
[me]. Let them tell me to remove myself from the
premises and I’ll abide by their contract.
Contrary to the denial, I find that Ashby entered into the
oral subcontract to avoid his written commitment and his
promise to the Union in negotiations to employ laid-off panel
employees, as well as to undercut the Union’s majority sta-
tus.
2. Unsuccessful experiment
This initial subcontracting arrangement—under which
Double A would make tonnage payments to Superintendent
Baldwin, who would hire the mine 2 employees and paid
them from the tonnage revenue—was not a satisfactory ar-
rangement. Baldwin did not have sufficient financial re-
sources for an independent operation.
Although Baldwin was paying nonunion wages (substan-
tially below the union scale), he had to get a $5200 loan
from Double A, repaying it in installments on March 14 and
27 as deductions from his tonnage payments (R. Exh. 6, pp.
7–8). Also, while receiving the coal production checks from
Double A, he failed to pay a total of $19,941.12 to five mine
employees for so-called ‘‘contract labor’’ in the mine. He
gave these employees IOUs on January 31 and February 1
and 2 for the unpaid wages. Furthermore, as panel employee
Cantrell credibly testified, ‘‘There were [nonpanel employ-
ees] that came and left’’ and ‘‘It was general knowledge
around that they wasn’t getting paid.’’ (G.C. Exh. 4, pp. 9–
13; Tr. 34–37, 218). President Ashby admitted that in a De-
partment of Labor wage and hour suit in the U.S. district
court, Double A was required to pay the IOUs and other un-
paid wages at mine 2 (Tr. 38–39, 96–98).
694 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Meanwhile, Baldwin was making purchases in Double A’s
name and not paying for them. When creditors contacted
Double A bookkeeper Kay Willard, she ‘‘asked for copies of
the invoices so I could see who signed them and it was Dean
Baldwin.’’ (Tr. 276, 287; R. Exh. 6, pp. 5–6.)
Experience proved this subcontracting experiment to be
unsuccessful.
3. Employees of Double A
By the time Double A mine 1 was reopened in December,
Double A President Ashby was orally subcontracting both
mines 1 and 2, but exercising more control over the employ-
ees.
Under this new subcontracting arrangement, the mine em-
ployees were placed on Double A’s payroll and compensated
directly with Double A paychecks bearing President Ashby’s
signature (Tr. 34, 184, 336–338, 343; R. Exh. 12). Double
A withheld Federal income taxes, paid Federal and state un-
employment and other taxes, and paid the premiums for
workmen’s compensation, required under Double A’s Pittston
contract (Tr. 81, 322–323, 338; G.C. Exh. 2, par. 12A). At
mine 2 as found, Ashby determined the wage rates of the
panel employees, forbidding any increases above the wage
rates offered the Union in negotiations. Ashby would visit
the mine, and the mine managers would say that ‘‘Ashby
won’t let us do this or Ashby won’t let us do that,’’ dem-
onstrating his control over the operation. Mine employees be-
lieved that Ashby was in charge. (Tr. 185–187, 190–192,
195, 208, 213).
On the second day of the strike (April 6, 1989), President
Ashby treated the striking panel employees as ‘‘our employ-
ees,’’ notifying them in writing that if they did not report to
work by 7 a.m., April 10, they would be ‘‘permanently re-
placed’’ (G.C. Exh. 10).
When first questioned at the trial about his responsibility
for the operation of the mines, Ashby testified as follows (Tr.
78–79):
A. I was responsible for the production, seeing the
coal’s produced. I was responsible for the mines being
maintained and driven on project[ion] and I was respon-
sible for the contract that Pittston had given me to see
that this work was done.
Q. And, you were responsible for the total operation,
were you not?
A. In one sense, yes.
Seventeen months earlier on August 4, 1989 (when Double
A was seeking an injunction against the Union’s picketing),
Ashby had admitted in a state court proceeding: ‘‘I make one
hundred percent (100%) of the decisions’’ (Tr. 105). When
questioned about his state court testimony at the trial, Ashby
testified, ‘‘I’m well aware of that testimony’’ (Tr. 81). He
was prepared, however, to modify his earlier admission. He
testified, ‘‘I do have total control,’’ but added, ‘‘when it
comes to production’’ (Tr. 106).
To the contrary I find that his control over the mines was
not limited to production. The evidence shows that he deter-
mined where the panel employees would work (in mine 2,
instead of mine 1 as they had been promised), as well as
how much they could be paid. He testified that when he
wanted a person hired, he would say to go and see a certain
person and ‘‘give me as a personal reference.’’ He claimed,
however, that ‘‘to tell any other person that they had to hire
them, I couldn’t do that. I couldn’t tell them that they could
be fired.’’ (Tr. 60–61.)
Ashby was more candid in his state court testimony on
August 25, 1989. He then testified (Tr. 87–88) that ‘‘if I
have got a man I want hired, I send them to see [the super-
intendent and operator].’’ When asked in the state court,
‘‘Who decides when to fire people?’’ he answered ‘‘More or
less’’ two individuals. He explained that if the person ‘‘is
working at the face, the boss I have got hired for the face
would fire him. If he is working belt lines or outside, prob-
ably [the superintendent] would fire him. Then they would
inform me of it.’’ Although there were new Double A sub-
contractors (not involved in this proceeding) at mines 1 and
2 at the time of his state court testimony, Ashby was then
testifying how the mines had been operated.
At mine 1 the new arrangement proceeded as President
Ashby had decided. All the production and maintenance em-
ployees were placed on Double A’s payroll (G.C. Exh. 4)
and paid with Ashby’s Double A checks (R. Exh. 12). At
mine 2 the five (the panel members Ashby directed to be
employed) were likewise placed on Double A’s payroll. Dou-
ble A bookkeeper Kay Willard testified that she wrote the
paychecks also for the other mine 2 employees ‘‘that Mr.
Baldwin turned in’’ and would have written their paychecks
if she had known of others (Tr. 314–315), but ‘‘we had great
difficulty getting the information from Dean Baldwin’’ (Tr.
282). Finally, after the strike began, Ashby replaced Baldwin
with another subcontractor.
I find it was not merely a matter of paying the employees
directly to make sure the men and taxes were paid (Tr. 315)
or, as bookkeeper Willard revealed (Tr. 349), of Bobby Cline
at mine 1 and Dean Baldwin at mine 2 not having the money
for workmen’s compensation. Nor was it, as President Ashby
claimed, that Cline ‘‘could not produce a down payment for
workman compensation, so therefore, I told him it would be
all right [for me] to pay his people’’ (Tr. 101). I find that
Ashby was exercising greater control over the employees in
his operation of the mines.
At one point on cross-examination, Ashby testified (Tr.
83): ‘‘I hired Dean Baldwin. I hired Bobby Cline.’’ After
weighing all the evidence I find this testimony to be literally
true. Notwithstanding the manner of their compensation, I
find that Ashby employed them as superintendents and that
they managed the mines under his authority. I agree with the
General Counsel that (contrary to the opinion of bookkeeper
Willard, Tr. 280, 289) Double A was the employer of em-
ployees both at mines 1 and 2 and that it ‘‘exercised control
over essential terms and conditions of employment of the
employees.’’ I find that at mine 1, under the new oral sub-
contracting arrangement, Double A was the employer of all
the production and maintenance employees from December
until June 16–30, 1989, when Superintendent Bobby Cline
last managed the mine. I also find that at mine 2, from De-
cember until the April 5 strike, Double A was the employer
of not only the five and other employees on the Double A
payroll, but also the remaining production and maintenance
employees whose names Superintendent Dean Baldwin failed
to report to the Double A bookkeeper for inclusion on the
payroll. Double A Mining Inc. remained the official business
name of the operator and, as determined in the wage and
695DOUBLE A COAL CO.
hour suit in the U.S. district court, Double A was responsible
for paying their wages if Baldwin failed to pay them from
his Double A tonnage payments.
I therefore find that at all material times, Double A was
the exclusive collective-bargaining representative of employ-
ees in the following appropriate unit:
All production and maintenance employees of Double
A Coal Co., Inc. at its Buchanan County, Virginia coal
mines, but excluding all guards and supervisors as de-
fined in the Act.
4. Production statements
a. Terms of oral arrangements
In the absence of written subcontracts, Double A placed
the financial terms of the oral arrangements in the ‘‘State-
ment of Coal Produced,’’ which Double A prepared for each
mine after receipt of the mining fee from Pittston.
The coal from mines 1 and 2 was transported to the coal
processing plant operated by Ramar Coal Co., which is a
separate company owned by Ashby (Tr. 10). After the coal
was processed, Double A delivered the clean coal to Pittston
(Tr. 16), which deducted various mine expenses (such as
power rental and engineering fees) from Pittston’s mining fee
and paid Double A the balance (R. Exhs. 6 & 7; Tr. 47).
(All Pittston’s dealings were with Double A and none with
the unauthorized subcontractors.) Double A then prepared
separate production statements for mines 1 and 2, computing
its tonnage payment for the clean coal produced at the mines
(Tr. 47).
Beginning with the semimonthly period December 15–31
(when the new subcontracting arrangement went into effect),
‘‘Gross Wages’’ ($4467.66 for mine 1 that period and $2555
for mine 2) were deducted by Double A from the tonnage
payment on the production statements (R. Exh. 6, p. 3; R.
Exh. 7, p. 1). (No deductions for wages had been made on
the mine 2 production statements for November 16–30 and
December 1–15, R. Exh. 6, pp. 1–2.)
At mine 1 until June 16–30, 1989, and at mine 2 until the
April strike, deductions were made also for ‘‘Employers
Share FICA,’’ ‘‘Federal and State Unemployment,’’ and
‘‘Workmen’s Compensation.’’ In addition, there were semi-
monthly deductions of $625 for ‘‘Retainer Fee ($1,250.00
Monthly)’’ to reimburse Double A for payments made to
Labor Consultant Sykes (evidently for dealing with, or avoid-
ing dealing with, the Union). (R. Exhs. 6 & 7, Tr. 338–339.)
Further deductions were made for the repayment of loans
to Bobby Cline at mine 1 and Dean Baldwin at mine 2. At
mine 1 for the periods January 16–31 and February 1–15,
Double A deducted $1575 and $1500 as loan payments. Also
for February 1–15, Double A began taking a semimonthly
deduction of 50 cents a ton as loan payments. At mine 2,
as found, Double A took deductions totaling $5200 on March
14 and 27 (for the periods February 16–28 and March 1–15)
as loan payments. Also at mine 2, Double A took deductions
for Baldwin’s purchases charged to Double A: $420.30 for
January 16–31 and $290 for February 1–15.
I note that President Ashby claimed: ‘‘The original agree-
ment was [that Cline and Baldwin] would work for me for
a salary, but they wanted to change it and I saw no reason
why not to change it, so they could be contractors’’ (Tr.
101). Yet he later testified that the subcontracting agreements
were oral at first and ‘‘I wanted . . . a written contract
signed with these people,’’ but when ‘‘I had tried to get
Dean Baldwin and the other people’’ to sign, ‘‘they always
had an excuse’’ for not signing (Tr. 109).
b. Operating names
The production statements reveal the actual names that
Bobby Cline was operating under at mine 1 and Dean Bald-
win at mine 2. These names were not reported to the U.S.
Department of Labor and they were concealed from the
Union.
For mine 1, as discussed above, the August 3 legal identity
report to the Labor Department (C.P. Exh. 1) gave the as-
sumed name Double A Mining Inc. as the official business
name of the operator and named James Ashby as president
of the corporation and W. P. Corbett as superintendent in
charge of health and safety. That offical business name re-
mained unchanged in the December 13 report (Tr. 127–128)
and also in the February 24 update (C.P. Exh. 2), which
named Ashby as president of the corporation, Bobby Cline
as superintendent in charge of health and safety, and (Fore-
man) Lewis Tramel also as operator.
The production statements (R. Exh. 7), however, show that
after mine 1 was reopened in December, Zapp Mining Inc.
was the actual operating name. That name, to whom Double
A made the coal production checks payable, was not dis-
played at the site and was not reported to the Labor Depart-
ment or to the Union (Tr. 120, 154, 160, 186, 221). As
found, the employees were on the Double A payroll and
were paid with Double A checks bearing President Ashby’s
signature.
For mine 2, the same Double A Mining Inc. was given as
the official business name of the operator on the November
3 legal identity report (G.C. Exh. 7). The report showed
James Ashby to be the principal officer and listed ‘‘Owner’’
James Ashby, Jackie Sparks, and Dean Baldwin as partners.
The December 20 update (G.C. Exh. 8) changed the official
business name to Double A Mining Co. and omitted Ashby’s
name. The December 23 correcting legal identity report (R.
Exh. 1) again gave Double A Mining Inc. as the official
business name and listed Jackie Sparks, James Baldwin, and
Gary (Dean) Baldwin as partners. This was the last report
filed before the strike.
The production statements and the coal production checks
show that until January 10, Double A’s name was being
used, with the mine number added. The production state-
ments showed the name to be Double A Coal Company 2,
and the checks were made payable to Double A Coal Co.,
Inc. 2. Beginning January 25 the name was D & R Coal
Company. (R. Exh. 6, pp. 3–4; R. Exh. 13, p. 17.) None of
these names was displayed at the site or reported to the
Labor Department or to the Union (Tr. 120, 132, 154, 160,
186, 221; R. Exh. 1).
E. Written Subcontracts
1. When signed
The evidence is not clear when the written subcontracts
were signed. President Ashby testified on August 4, 1989, in
the state court that he had not ‘‘subcontracted any of these
operations,’’ that ‘‘I have hired other people to run these op-
696 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
erations for me,’’ but ‘‘no contract’’ had been signed (Tr.
116). Later on August 25, 1989, he testified that ‘‘a sub-
contract would require a written agreement . . . . It is strict-
ly against Pittston’s contract for me to subcontract.’’ (Tr.
115.)
At the trial he testified that ‘‘when we were preparing for
this case,’’ he discovered that bookkeeper Willard had got
the Zapp Mining Inc. subcontract (at mine 1) signed, ‘‘I
don’t know when,’’ by telling ‘‘them that they had to sign
it, before they got their payroll checks’’ (Tr. 86–87). (Double
A’s first answer in this proceeding was filed April 12, 1990,
G.C. Exh. 1(i).) The evidence does not reveal whether the
subcontract (which was backdated to November 29, 1988, R.
Exh. 15) was signed before or after Ashby’s August 1989
testimony in state court, when he denied that any contract
had been signed. The last two coal production checks to
Zapp Mining Inc. were dated July 12 and September 1, 1989
(R. Exh. 13, pp. 3, 7).
Concerning mine 2, there are two subcontracts in evi-
dence, both dated October 24, 1988. The typing on one (R.
Exh. 4), which Willard testified was the first one signed (Tr.
274), states that the agreement is between Double A and
‘‘Double A Coal Co.-Partnership (Jackie Sparks, Dean Bald-
win and Raymond Baldwin).’’ A line is drawn through the
name of Jackie Sparks, and James Gibson is interlined.
Ashby admitted at the trial that ‘‘There never was a Double
A Coal Company partnership’’ (Tr. 51). (As found, the ac-
tual operating names were Double A Coal Company 2 and
Double A Coal Co., Inc. 2 until January 10 and D & R Coal
Company after that date.)
Bookkeeper Willard testified (Tr. 274–275, 278) that Jack-
ie Sparks had been a partner, but when this subcontract was
signed, Dean Baldwin marked out Sparks’ name and wrote
in James Gibson’s name and the date. Although Willard re-
called (Tr. 317) that the subcontract was signed around that
date, October 24, I find that she was in error. Sparks was
still a purported partner at mine 2 (a) when he signed the
November 3 MSHA legal identity report for Double A Min-
ing Inc. (G.C. Exh. 7), (b) when he signed the December 20
report for Double A Mining Co. (G.C. Exh. 8), and (c) when
he signed the December 30 correcting report for Double A
Mining Inc. (R. Exh. 1). Moreover, his signature appears as
an endorsement (along with Dean and Raymond Baldwin) on
Ashby’s December 12 and 23 and January 10 Double A coal
production checks to Double A Coal Co., Inc. 2 (R. Exh. 13,
p. 17), showing how he was being compensated as foreman
on those dates.
I therefore find that Ashby’s first subcontract with Super-
intendent Dean Baldwin—backdated to October 24—was
signed sometime after January 10, whenever James Gibson
replaced Jackie Sparks as a mine 2 foreman (Tr. 190).
Willard testified that Ashby’s second mine 2 subcontract
(R. Exh. 5) ‘‘may have been’’ signed 2 or 3 months later
(or it ‘‘could have been’’ 2 to 6 weeks later) and that Dean
Baldwin also backdated it October 24 (Tr. 275–276). This
contract was between Double A and ‘‘D & R Coal Com-
pany-Partnership (Dean Baldwin and Raymond Baldwin)’’
and was signed by Dean Baldwin, James Gibson, and Ray-
mond Baldwin.
Despite Ashby’s testimony in the state court proceeding in
August 1989 that there were only ‘‘mutual agreements,’’ no
written contract (Tr. 108), he claimed at the trial that Dean
Baldwin signed the D & R subcontract ‘‘in my presence’’
after ‘‘I found out’’ Baldwin was operating the mine in the
name of ‘‘Double A Coal Company’’ (Tr. 87). (Ashby’s first
Double A check to D & R Coal Co., R. Exh. 13, p. 21, was
dated January 27.) When later asked about his state court tes-
timony, however, Ashby gave a different version. He testi-
fied (Tr. 109) that ‘‘There was a verbal contract first . . . .
Then it changed from a verbal to a signed agreement which
I had tried to get Dean Baldwin and the other people . . .
to sign and they always had an excuse, well, [Willard] told
me that she would not give them their check until they
signed it, so therefore, they signed it.’’
Thus the contradictory evidence fails to show when the
subcontract for mine 1 (dated November 29) and the two
subcontracts for mine 2 (both dated October 24) were actu-
ally signed.
2. Sham contracts
Whenever the written subcontracts were finally signed,
they did not reflect the actual subcontracting arrangements.
The documents (R. Exhs. 4, 5, & 15) are identical, except
for names and dates. The ‘‘base price of $ll for each ton
of clean coal mined’’ in paragraph 7A is left blank in all
three documents. The apparent reason is that before the con-
tracts were signed, President Ashby had already agreed orally
to increase the price he would pay his superintendents for
mining the coal. The production statements show that at
mine 1, he paid $18.95 a ton for the period December 16–
31, but raised it to $19.25 for January 1–15 and again to
$19.75 for February 1–15. At mine 2, where the working
conditions were ‘‘a whole lot rougher,’’ as panel employee
Cantrell credibly testified (Tr. 179), Ashby began paying
$19.45 a ton for November 16–30 and raised it to $19.75 for
January 1–15, a month before paying that higher price at
mine 1.
Paragraph 4 provides that the Contractor (subcontractor)
shall ‘‘employ, direct, supervise, discharge and fix com-
pensation and working conditions of its employees and shall
be solely responsible of their payment,’’ holding Company
(Double A) ‘‘harmless’’ from any and all related claims, and
‘‘shall exercise complete control over its employees.’’
To the contrary, first, President Ashby claimed that he di-
rected the subcontractors ‘‘to hire off the panel’’ (although,
as found, he directed them not to hire any of the panel mem-
bers, except the five at mine 2). Second, Ashby directed that
the five be recalled and employed at mine 2, not at mine 1
as they had been promised when Double A temporarily shut
down mine 1. Third, Ashby fixed the wage rates of the five
at $7.50 and $8.125 an hour (the top rates offered the Union
in negotiations) and prohibited any increase in their wage
rates, although the nonpanel employees were being paid $10,
$10.625, and $12.50 an hour at both mines 1 and 2.
Fourth, as found, Double A ‘‘exercised control over essen-
tial terms and conditions of employment of the employees.’’
Fifth, all the mine 1 mining employees and a substantial
number of the mine 2 employees were being kept on Double
A’s payroll and paid directly with Ashby’s Double A pay-
checks. Sixth, President Ashby treated the striking panel em-
ployees as ‘‘our employees,’’ notifying them in writing that
if they did not report to work, they would be permanently
replaced. Seventh, the U.S. district court held Double A re-
697DOUBLE A COAL CO.
sponsible for the payment of a large amount of unpaid wages
at mine 2.
Paragraph 5 of the subcontracts provides that the subcon-
tractor will hold Double A ‘‘completely harmless’’ for any
fines or penalties—but President Ashby admitted paying
mine 2’s MSHA fines (Tr. 51).
Paragraph 12 states that it is expressly agreed that the sub-
contractor ‘‘will perform the work . . . as independent con-
tractors’’ and provides that the subcontractor ‘‘shall exercise
exclusive control over its work force and direct the manner,
method, and mode of work.’’ To the contrary, as found,
Ashby admitted at the trial that he was ‘‘responsible for the
production, seeing the coal’s produced,’’ and ‘‘for the con-
tract that Pittston had given me to see that this work was
done.’’ In the state court proceeding, he also admitted: ‘‘I
make one hundred percent (100%) of the decisions.’’
Furthermore, neither Superintendent Bobby Cline at mine
1 nor Superintendent Dean Baldwin at mine 2 had sufficient
financial resources to operate as independent contractors. As
found, Double A bookkeeper Willard revealed that neither
Cline nor Baldwin had the money to provided the required
workmen’s compensation for the mine employees.
The subcontract at mine 1 (R. Exh. 15) was between Dou-
ble A and Zapp Mining Inc. and was signed by Bobby Cline.
In the absence of Cline as a witness, there is no evidence
whether the corporation had any assets and whether it was
incorporated during the shutdown of mine 1, solely for this
subcontracting. Bookkeeper Willard testified (Tr. 315) that
she was told that Cline and (Foreman) Lewis Tramel were
officers. The lack of corporate assets appears to be indicated
by the inclusion of Superintendent Cline and Foremen
Tramel and Glenn Fields on the Double A payroll (G.C. Exh.
4). They not only received an undisclosed amount of net
compensation from Double A’s coal production checks to
Zapp Mining Inc., but they also received biweekly salary
checks (Cline $1399.18, Tramel $1353.81, and Fields
$1171.13) in compensation, as shown by the Double A pay-
checks in evidence (R. Exh. 12).
Concerning mine 2, the first written contract (R. Exh. 4)
was between Double A and a purported partnership, ‘‘Double
A Coal Co.-Partnership (James Gibson, Dean Baldwin, and
Raymond Baldwin),’’ which President Ashby admitted did
not exist, testifying (Tr. 51): ‘‘There never was a Double A
Coal Company partnership.’’ As found, the official business
name reported to the Labor Department was Double A Min-
ing Inc. (an assumed name that Double A had used when op-
erating mine 1). As shown by Double A’s coal production
checks, Double A’s corporate name was being used at mine
2, with the mine number added (Double A Coal Co., Inc. 2).
I find that there was no formal partnership at mine 2, at
least until the name D & R Coal Company was first used
January 25, and that the name ‘‘Double A Coal.-Partner-
ship’’ in the document was a mere afterthought.
After weighing all the evidence I find that the backdated
subcontracts, belatedly signed after weeks or months of oper-
ations under oral understandings, were not intended to incor-
porate the actual terms of the arrangement. I find instead that
they were a sham, devised by President Ashby as a defensive
measure.
F. Concluding Findings
1. Pattern of deception
The deception began August 3 when Double A (Double A
Coal Co., Inc.) adopted the assumed name Double A Mining
Inc. for the official business name to report to the Depart-
ment of Labor as the operator of mine 1, which Double A
began operating about August 1 or September 1. Such a
name, so similar to Double A’s actual corporate name, could
be used without alerting the Union of any unauthorized sub-
contracting.
President Ashby next informed the Union in negotiations
that he was going to call the panel for employees (as re-
quired in his contract to operate Pittston’s closed 12A mine).
But he did not follow the established procedure for offering
jobs to panel members. Instead, Ashby and his super-
intendent on August 18 and 27 and September 15 sent pur-
ported ‘‘recall’’ notices to a total of 32 of the 81 panel mem-
bers. As found, this was largely a pretense of honoring the
recall rights of the laid-off panel employees.
Ashby hired only five of the panel members, plus two oth-
ers who were employed only a short time before the October
shutdown of mine 1. When the Union repeatedly complained
in negotiations that Ashby was not hiring from the panel, he
responded that ‘‘he had called off the panel.’’
While continuing to negotiate with the Union for an agree-
ment to cover all the production and maintenance employees,
Ashby kept mine 1 closed until he secretly entered into an
oral subcontracting arrangement with Superintendent Bobby
Cline. As found, Ashby did so to avoid his written commit-
ment and his promise to the Union to employ laid-off panel
employees, as well as to undercut the Union’s majority sta-
tus. Also as found, Ashby directed Cline not to hire any
panel members, kept all the employees on Double A’s pay-
roll, and exercised control over the essential terms and condi-
tions of their employment.
Meanwhile at mine 2, Ashby also entered into a secret oral
subcontract with Superintendent Dean Baldwin and directed
him not to hire any panel members. Around mid December,
as a defensive measure, Ashby directed that the five panel
members be employed there, instead of being recalled to
mine 1 as promised. As at mine 1, Ashby exercised control
over the essential terms and conditions of employment. To
discourage support for the Union, he caused the five to be
assigned fewer hours of work and paid lower wages than the
nonpanel employees.
Ashby continued to negotiate with the Union until after
the April 5 strike began, without giving the Union any indi-
cation that he would later contend that the production and
maintenance employees were no longer Double A employees.
Finally, at some undetermined time, Ashby required Su-
perintendents Bobby Cline and Dean Baldwin (along with
their foremen) to sign backdated subcontracts, which are
found to be a sham, devised as a defensive measure.
2. Violations found
Double A contends in its brief (at 13) that the ‘‘General
Counsel failed to prove a prima facie case against the Em-
ployer [Double A Coal Co., Inc.] upon any of the issues
raised in the Complaint.’’ It argues (at 7) that ‘‘Double A
Coal Company-Partnership, and Zapp Mining, Inc. . . . were
698 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
solely responsible for all employment terms and conditions,
including wages and hours, and the Employer was not.’’
Double A contends (Tr. 8) that the ‘‘General Counsel did
not prove that since December 1988 Employer failed and re-
fused to hire [named panel members] because they joined,
supported, or assisted the Union.’’ It also contends (at 12)
that the ‘‘General Counsel did not prove that the Employer
assigned less hours of work or paid lower wages to employ-
ees hired from the 12A panel.’’ It further contends (at 12)
that the ‘‘General Counsel did not prove that the Employer
refused to bargain collectively with the Union’’ by making
unilateral changes.
As found above, I agree with the General Counsel that
Double A was the employer at all material times.
Concerning the alleged failure and refusal since December
1988 to hire laid-off employees on the Pittston 12A mine
panel, I find that the General Counsel has made a prima
facie showing sufficient to support the following inferences.
At Double A mine 1 (until Superintendent Bobby Cline last
managed the mine about June 30, 1989) and at Double A
mine 2 (until Superintendent Dean Baldwin last managed the
mine in April), President Ashby’s determination to discour-
age membership in the Union was a motivating factor for his
directing the superintendents not to hire the union-rep-
resented panel members. Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982). Having rejected Double A’s denials that it
was responsible for hiring employees at the two mines, I find
that it unlawfully discriminated against the qualified, senior
panel members to undermine unionization of the mines, vio-
lating Section 8(a)(3) and (1) of the Act.
I also find that the General Counsel has made a prima
facie showing sufficient to support the inference that since
December 1988, Ashby’s determination to discourage mem-
bership in the Union was also a motivating factor for his
causing fewer hours of work to be assigned and lower wage
rates to be paid panel employees Andy Brown, George
Cantrell, Joshua Hicks, Roy Lawson, and Clarence
McGlothlin than nonpanel employees. Having rejected the
denials of responsibility, I find that Double A discriminated
against the panel employees, violating Section 8(a)(3) and
(1).
The evidence shows that Double A, after promising the
Union that it would honor the panel rights of laid-off Pittston
employees, adopted a practice of hiring employees from the
panel—by hiring panel members Andy Brown, George
Cantrell, Joshua Hicks, Roy Lawson, and Clarence
McGlothlin. I find that when Double A unilaterally changed
this hiring practice by directing its mines 1 and 2 super-
intendents not to hire panel employees, it unlawfully refused
to bargain in violation of Section 8(a)(5) and (1).
3. Alternate findings
The General Counsel contends in his brief (at 10) that
Double A has been the employer of the mine employees at
all material times, but ‘‘Alternatively, Double A and Bald-
win, and Double A and Zapp, are, each, joint employers.’’
Double A contends in its brief (at 3) that ‘‘General Counsel
did not prove Double A Coal Co.-Partnership and Zapp Min-
ing, Inc. were joint employers of Double A Coal Co., Inc.’’
As found, Double A was the employer of the production
and maintenance employees at all material times. Also as
found, President Ashby employed Bobby Cline at mine 1 and
Dean Baldwin at mine 2 as superintendents to manage the
mines under his authority.
Both Zapp Mining, Inc. (at mine 1) and the purported
‘‘Double A Coal Coal Co.-Partnership’’ (at mine 2) are al-
leged as respondents, but I consider them merely nominal re-
spondents. I find that they were merely the vehicles through
which Double A President Ashby sought to undermine
unionization of the mines. With no apparent assets and no
interest in the outcome of this proceeding, neither of them
filed an answer and neither was represented at the trial.
(Ashby asserted, Tr. 201, that Cline advised he could not ap-
pear because there was a warrant in Virginia for his arrest
and that Baldwin advised he would not appear.)
In the alternative, however, I find that if Zapp Mining and
the purported Double A partnership are found to have been
employers of employees on Double A’s payroll, the same
evidence that shows that Double A ‘‘exercised control over
essential terms and conditions of employment of the employ-
ees’’ both at mines 1 and 2 would establish that (a) Double
A and Zapp and (b) Double A and the purported Double A
partnership were joint employers. Schnabel’s Drivers for
Lease, 249 NLRB 1164 (1980).
CONCLUSIONS OF LAW
1. By failing and refusing to hire the qualified, senior em-
ployees on the Pittston 12A mine panel to discourage mem-
bership in the Union, Double A has engaged in unfair labor
practices affecting commerce within the meaning of Section
8(a)(3) and (1) and Section 2(6) and (7) of the Act.
2. By assigning five panel employees fewer hours of work
and paying them lower wage rates than nonpanel employees
to discourage membership in the Union, Double A further
violated Section 8(a)(3) and (1).
3. By unilaterally changing its hiring practice of employ-
ing panel members, Double A unlawfully refused to bargain
with the Union as the recognized collective-bargaining rep-
resentative of its production and maintenance employees.
REMEDY
Having found that Respondent Double A Coal Co., Inc.
has engaged in certain unfair labor practices, I find that it
must be ordered to cease and desist and to take certain af-
firmative action designed to effectuate the policies of the
Act.
Respondent Double A having discriminatorily failed and
refused to hire the qualified, senior panel members, it must
make them whole for any loss of earnings and other benefits,
computed on a quarterly basis from the dates in December
1988 of the failure and refusal to hire until the dates the sub-
contracting in issue ceased (June 30, 1989, at mine 1 and
April 5, 1989, at mine 2), less any net interim earnings, as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
plus interest as computed in New Horizons for the Retarded,
283 NLRB 1173 (1987). As stipulated at the trial, the deter-
mination of the panel rights shall be made at the compliance
stage of this proceeding.
Having assigned five panel employees fewer hours of
work and paid them lower wage rates than nonpanel employ-
ees to discourage membership in the Union, Respondent
Double A must make the panel employees whole for the lost
699DOUBLE A COAL CO.
2 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
3 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
hours of work and the difference between their wages and
the wages they would have been paid at the rates paid
nonpanel employees, plus the interest.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, Double A Coal Co., Inc., Whitewood,
Virginia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing or refusing to hire any employee on the Pittston
12A mine panel to discourage membership in the United
Mine Workers of America.
(b) Assigning panel employees fewer hours of work or
paying them lower wage rates than nonpanel employees to
discourage membership in the Union.
(c) Unilaterally changing the hiring practice of employing
panel members.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make the qualified, senior employees on the Pittston
12A mine panel whole for any loss of earnings and other
benefits suffered as a result of its discriminatory failure and
refusal to hire them, in the manner set forth in the remedy
section of the decision.
(b) Make panel employees Andy Brown, George Cantrell,
Joshua Hicks, Roy Lawson, and Clarence McGlothlin whole
for losses suffered as a result of its assigning them fewer
hours of work and paying them lower wage rates than
nonpanel employees in the manner set forth in the remedy
section.
(c) On request, bargain with the Union as the exclusive
representative of any current employees in the following ap-
propriate unit concerning terms and conditions of employ-
ment and, if an understanding is reached, embody the under-
standing in a signed agreement:
All production and maintenance employees of Double
A Coal Co., Inc. at its Buchanan County, Virginia coal
mines, but excluding all guards and supervisors as de-
fined in the Act.
(d) Preserve and, on 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 necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Mail to each of the 81 panel members on the Pittston
12A mine 1988 panel and, if currently mining coal at that
mine near Whitewood, Virginia post at the facility, copies of
the attached notice marked ‘‘Appendix.’’3 Copies of the no-
tice, on forms provided by the Regional Director for Region
11, after being signed by the Respondent’s authorized rep-
resentative, shall be mailed to the panel members and, if ap-
plicable, posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that posted notices are not altered, de-
faced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT fail or refuse to hire any employee on the
Pittston 12A mine panel to discourage membership in the
United Mine Workers of America.
WE WILL NOT assign panel employees fewer hours of of
work or pay them lower wage rates than nonpanel employees
to discourage membership in the Union.
WE WILL NOT unilaterally change the hiring practice of
employing panel members.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL make the qualified, senior employees on the
Pittston 12A mine panel whole for any loss of earnings and
other benefits resulting from our failure and refusal to hire
them, less any net interim earnings, plus interest.
WE WILL make panel employees Andy Brown, George
Cantrell, Joshua Hicks, Roy Lawson, and Clarence
McGlothlin whole for losses resulting from our assigning
them fewer hours of work and paying them lower wage rates
than nonpanel employees, plus interest.
WE WILL, on request, bargain with the Union and put in
writing and sign any agreement reached on terms and condi-
tions of employment for any current employees in the bar-
gaining unit:
700 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
All production and maintenance employees of Double
A Coal Co., Inc. at its Buchanan County, Virginia coal
mines, but excluding all guards and supervisors as de-
fined in the Act.
DOUBLE A COAL CO., INC.