Dove Coal Co.

National Labor Relations Board - Board Decisions

Jan 19, 1965

150 N.L.R.B. 1142 (N.L.R.B. 1965)

1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employees may communicate directly with the Board 's Regional Office, 1200 Rialto
Building, 906 Grand Avenue , Kansas City, Missouri , Telephone No. Baltimore
1-7000 , Extension 731, if they have any question concerning this notice or com-
pliance with its provisions.
Dove Coal Company and Lark Coal Company and United Mine
Workers of America , District No. 28. Cases Nos. 5-CA-2721
and 5-CA-2722. January 19, 1965
DECISION AND ORDER
On October 8, 1964, Trial Examiner Lee J.• Best issued his Deci-
sion in the above-entitled proceeding, finding that the Respondents
had engaged in and were engaging in certain unfair labor practices
alleged in the complaint and recommending that they cease and desist
therefrom and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. The Respondents filed joint
exceptions to the Trial Examiner's Decision and a joint brief in
support thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in
connection with this case to a three-member panel [Members Fan-
ning, Brown, and Jenkins].
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 brief, and the entire record
in this proceeding, and hereby adopts the Trial Examiner's findings,
conclusions, and recommendations with the following modification.
The Trial Examiner has concluded that the Respondents violated
Section 8(a) (1) of the Act by engaging in surveillance of a union
meeting during the course of the Union's organizational campaign
at both mines. We do not agree. The record clearly demonstrates
that the Union had called a meeting to be held at an outdoor, open
site which was located 4 feet off a main highway; that, as employees
of the Respondents were gathering for this meeting and before it
began, Jess Nelson, president of Respondent Dove Coal Company
and manager of Respondent Lark Coal Company, drove past this
area at a moderate speed without stopping or slowing his automobile;
that this main highway served as a connecting link between the
mines and the mine supply house, the meeting site being located
somewhere between these two points; and that this highway was a
link in a route which led to Nelson's home, and Nelson was seen pass-
ing the meeting site at 4:30 p.m., which was shortly after the com-
pletion of the daytime shift at the mines . The evidence establishes,
150 NLRB No. 108.
DOVE COAL COMPANY 1143
and we find, that Nelson was not driving on this highway for, the
purpose of engaging in surveillance of the Union's scheduled meet-
ing. Accordingly, we will order that the complaint be dismissed
insofar as it alleges that the Respondents engaged in such unlawful
surveillance.
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 Order recommended by the Trial Examiner and orders
that the Respondents, Dove Coal Company and Lark Coal Company,
their officers, agents, successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order, with the follow-
ing deletion.
The following words are deleted from subparagraph 1(a) : "engag-
ing in or creating the impression of surveillance of organizational
meetings".1
IT IS HEREBY FURTHER ORDERED that the complaint herein be, and
it hereby is, dismissed insofar as it alleges violations of the Act not
found herein.
1 The words "engage in surveillance of their meetings ," are likewise deleted from
the notice.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
These proceedings under Section 10(b) of the National Labor Relations Act, as
amended , 29 U.S.C. 151 et seq. (herein called the Act) were heard pursuant to notice
before Trial Examiner Lee J. Best at Grundy, Virginia, on May 26 and 27, 1964, with
all parties present and represented by counsel. Based upon separate charges filed on
February 24, 1964, by United Mine Workers of America, District No. 28 ( herein
called the Union or Charging Party), the General Counsel of the National Labor Rela-
tions Board on April 16, 1964, issued a consolidated complaint against Dove Coal
Company and Lark Coal Company (herein collectively called Respondents, and
individually called Dove and Lark, respectively), alleging in substance that the
Respondents have engaged in and are engaging in unfair labor practices within the
meaning of Section 8(a) (1) and (3) of the Act, affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
The consolidated complaint more particularly alleges that on various dates on and
after December 15, 1963, the Respondents by their officers, agents , and supervisors
(1) threatened employees with economic reprisals if they selected the Union as their
collective-bargaining representative ; ( 2) interrogated employees concerning their
union activities ; ( 3) kept under surveillance the meeting places, meetings, and activi-
ties of employees 'engaged in concerted activities for the purposes of collective bargain-
ing or other mutual aid or protection; (4) promised economic benefits to employees if
they would refrain from assisting , supporting, and becoming or remaining members
of the.Union; and (5 ) discriminated in regard to hire or tenure of employment to
discourage membership in a labor organization by terminating the employment of Ray
Hutchinson, Joseph H. Barton, Ledford Osborne, Charles R. Dixon, Leo Bennett, and
Ferrell Lester, because they engaged in concerted activities with other employees for
the purposes of collective bargaining or other mutual aid or protection . Respondents
filed an answer denying all allegations of unfair labor practices.
All parties were afforded full opportunity to be heard, to examine and cross-examine
witnesses , to introduce evidence pertinent to the issues involved , to present oral argu-
ment on the record , and in due course to file written briefs with the Trial Examiner, all
of which have been given due consideration.
1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, and from my observation of the witnesses; I
make the following:
FINDINGS OF FACT
I. BUSINESS OF RESPONDENTS
'Dove Coal Company and Lark Coal Company are separate corporations dulyorgan-
ized and existing under the laws of the Commonwealth of Virginia , each having-its
place of business in Big Rock, Virginia , where, each is engaged in the mining of coal.
Both mines are operated under the management of Jess Franklin Nelson as president
of Dove Coal Company and manager of Lark Coal Company. Other supervisors at
the Dove mine included Mine Foreman Joe Sweet and Section Foreman' William
Workman. At the Lark mine was Foreman David Boyd. -
In the course and conduct of their mining operations both Dove and Lark annually
deliver and ship products valued in excess of $50,000 to other enterprises directly
engaged in the shipment of such products to points outside the Commonwealth of
Virginia . I find, therefore , that the Respondents are engaged in commerce , within the
meaning of Section 2 ( 6) and (7) of the Act.
II. LABOR ORGANIZATION INVOLVED
United Mine Workers of America, District No. 28, is a labor organization within
the meaning `of Section 2(5) of the Act, existing in whole or in part for the purpose of
representing employees in dealing with employers concerning grievances, labor
disputes , wages, rates of pay, hours of employment, and conditions of work.
III. THE UNFAIR LABOR PRACTICES
A. Interference, 'restraint, and coercion
Prior to 1963 Jess Nelson was superintendent for the Ames Mining Company at
Fayette, West Virginia, where his employees were represented by Local 7831, United
Mine Workers of America, District No. 29. After the Ames mine was closed,down,
Nelson became general manager for the Dove and Lark mines at Big Rock, Virginia,
and hired several of his old employees from Ames on condition that these newly
opened mines would be operated on a nonunion basis. - The imposition of this condi-
tion has continued to the present time , and undoubtedly constitutes interference,
restraint , and coercion of employees in the exercise of the rights guaranteed in Section
7 of the Act.
Thereafter in the early part of 1964 representatives of United Mine Workers,of
America, District No. 28, made efforts to organize the employees. working at the Dove
and Lark mines in Big Rock, Virginia . The principal organizational activities occurred
during the week beginning on Monday, February 3, 1964. At the solicitation of
District Representative Ray Thorribury union authorization cards were signed by
approximately 18 employees , including Ray Hutchinson at the Lark mine and.-Leo
Bennett, Joseph H. Barton, Charles R. Dixon, Ferrell Lester,and Ledford Osborne at
the Dove mine . Employees were requested to attend a meeting with union representa-
tives at the Weller Yard bridge at 4 p.m. on Tuesday, February 4, 1964. -
Leo Bennett (employee ) credibly testified that Jess Nelson stopped him as he was
leaving the Dove mine on Tuesday afternoon, February 4, 1964, and inquired, "What
is this I hear about the mine being organized ." Thereupon =Nelson accused him,of
being the instigator of the union activities , and said: "You know I need you,-but I
would much rather see you quit and go back to West Virginia, and get you ajob in
the union mines than to stay here and keep the men upset and talk-to them, about
organizing the mine-that the mine would be closed down before it would be
operated under a union contract." -
Ferrell Lester (employee ) credibly testified that Jess Nelson' came to his house
about dark on the evening of February 4, 1964, inquired whether he had signed a
union card, and said : "If you sign that card , you know what it means." ,
Noah Vance (employee) credibly testified that Jess Nelson talked to him.on. the
evening of February 10, 1964, inquired whether he had signed a union card, whether
he was going to sign one, and said: "You've got an awful good job-you make good
money-if you do-just go away and forget to come back [or words to that effect]."
Ledford Osborne (employee) credibly testified- that Section Foreman William
Workman told him on Friday, February 7, 1964, that the Company would quit work
before they would organize-that if they organized , they would just,quit work.
It'is admitted by Jess Nelson that he was apprised of the organizational activities. by
an unnamed stranger, who applied for employment on February 4, 1964; thereupon, he
accosted -Leo Bennett about 3:30 p.m. and accused him of being the instigator of such
DOVE COAL COMPANY 1145
activities-that he also inquired of Charles Dixon about 3 p .m. on February 4, 1964,
as to what was going on about the organizational activities , but did not promise him
a raise in pay, although he had previously told Dixon that he needed a leadman and
discussed with the mine foreman the possibility of promoting Dixon to that position.
Jess Nelson further admits that following his conversations with Dixon and Bennett he
drove past the site at which Bennett had arranged for a meeting of employees with
union representatives , and shortly thereafter that night interviewed approximately 11
employees at or near their respective homes for the purpose of discouraging them from
joining the Union . Employees interviewed that night included John Mullins, Danny
Fraley, Rufus Sinclair , Jack Dodson , Avery Fuller, Ferrell Lester , Clarence Wilburn,
Clarence Workman , and Deward E. Cameron . , In each instance he inquired whether
the employees had already signed or intended to sign a union card , and told him that
he could not operate the mines except as presently operated under nonunion condi-
tions. Foreman David Boyd from the Lark mine was present at these interviews.
B. Discrimination
Ray Hutchinson was first employed by Respondent in October 1963 to help install
the Lark mine about 200 yards from the Dove mine. Upon completion of this con-
struction work, he accepted a permanent job in the Lark mine. At the time of his
permanent employment in January 1964, Jess Nelson said to him: "Well, you under-
stand this is not a union job, don't you? Furthermore, it never will be." Thereafter,
on February 4, 1964, Hutchinson signed a union authorization card, and solicited his
fellow employees to do so. Upon reporting for work next day on Wednesday, Feb-
ruary 5, 1964, he was stopped at the entrance to the Lark mine by Foreman David
Boyd, who said: "Hutchinson, we've got to let you go. I got to thinking last night
about that rope you broke yesterday evening, and we can't have any more of that.
You've either got to go or I've got to go. I've got to get rid of you." Thereupon,
Hutchinson appealed to Superintendent Jess Nelson, who said: "I can't go over Dave's
head." Thereby Ray Hutchinson was discharged and replaced in his job by another
man. It is admitted by Foreman David Boyd that he had discussed the matter with
Jess Nelson , while interviewing other employees concerning their union activities,
and that Nelson authorized the discharge of Ray Hutchinson. It is contended by
Respondents that Hutchinson was discharged for carelessness in permitting ropes to
be broken in connection with operations of the continuous miner machine. Under
all circumstances of this case, I find such contention to be a mere pretext and that
the true reason for the discharge of Ray Hutchinson was his support of organizational
activities by the Union.
Leo Bennett has been working in the coal mines for approximately 36 years. Prior
to his employment at the Dove mine at Big Rock, Virginia, he had worked for Super-
intendent Jess Nelson at Ames Mining-Company in West Virginia. At that time he
was treasurer of Local Union 7831, United Mine Workers of America, District 29.
After the Ames mine was closed down, Bennett accepted employment with Jess Nelson
at the Dove mine on May 16, 1963', to maintain the-rubber conveyor belts by which
coal was transported from inside the mine. Beginning on Tuesday, February 4,
1964, Bennett assisted District Representative Ray Thornbury in soliciting member-
ship in the Union and arranged for a meeting with employees at the Weller Yard
bridge that evening. At the end of the day shift that afternoon, Superintendent Jess
Nelson accused Leo Bennett of being the instigator of the organizational activities,
and told him that the mine would be closed down rather than operate under a union
contract. Shortly thereafter Jess Nelson drove slowly past the Weller Yard bridge
and observed Leo Bennett there in conference with Union Representatives Thornbury
and Clark. Throughout that same evening Jess Nelson in company with Foreman
David Boyd drove around from house to house interviewing individual employees
concerning their activities and sympathies in behalf of the Union. It clearly appears
that by such conduct the Respondents were on February 4, 1964, engaging in sur-
veillance and interference with the organizational activities of its employees. There-
after, on Thursday, February 6, 1964, Superintendent Jess Nelson again accosted
Leo Bennett and informed him that the mines would-remain in operation, but would
not operate under a union contract. On the following Saturday,- February 8,'.1964,
Superintendent Jess Nelson called Leo Bennett long distance at his home in West
Virginia , told him that his services were no longer needed at the Dove mine, that he
did not want any union organizers, and directed him to stay in West Virginia and
get himself a job in - a union mine . Nelson offered to send Bennett his tools and
equipment from the hotel in Big Rock,, Virginia, but Bennett postponed the matter by
saying that he had some unfinished business to look after at the Dove mine. On Mon-
day, February 40, 1964, Leo , Bennett reported for work at the Dove mine about 6:25
1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a.m. and inquired of Jess Nelson whether he still had a job. Nelson replied that he
had made that clear enough in his telephone conversation on the previous Saturday-
that he was cutting back to half a crew because the coal had gotten dirty. Thereupon,
Leo Bennett was laid off indefinitely, but during the last week in April 1964, was
recalled to work and continued his employment at the Dove mine until he voluntarily
quit on May 15, 1964, to accept a more desirable job near his home in West Virginia.
Ferrell Lester was employed as a "supply boy" on the "hoot owl shift" at the Dove
mine from 12:15 a.m. to 8 a.m., but sometimes worked on the day shift from 8 a.m.
to 3:45 p.m. It was his duty to procure and assemble supplies needed in the opera-
tion and maintenance of machinery and equipment on the day shift. Lester was
solicited by Leo Bennett to sign a union card on February 4, 1964, and was told to
meet the union representatives for that purpose at the Weller Yard bridge. At the
end of his shift on that afternoon Lester proceeded in his automobile towards the
Weller Yard bridge, but observed that Superintendent Jess Nelson was following close
behind him in another automobile. Consequently he passed the bridge without stop-
ping, but observed Leo Bennett and the two union representatives waiting at that
point. Later that evening about dark, Superintendent Jess Nelson in company with
another man drove up to Lester's home on the Rock Lake Road, and inquired whether
he had signed a union card. When informed in the negative, Jess Nelson said: "If
you sign it, you know what it means." Ferrell Lester thereupon postponed his deci-
sion to affiliate with the Union, but finally did sign a card on Thursday, February 6,
1964. Thereafter, on Monday, February 10, 1964, he was indefinitely laid off by
Mine Foreman Joe Sweet without any explanation whatever. On April 13, 1964;
Superintendent Jess Nelson went to see Ferrell Lester and offered him reemployment,
in a substantially equivalent position, but Lester declined to accept because he now
had another job.
Joseph H. Barton 'was formerly employed by Superintendent Jess Nelson at the
Ames mine at West Virginia. When reemployed at the Dove mine, Nelson told him
that it would be operated on a nonunion basis. Barton worked as a machine helper,
pan-up man, and supply boy. He drove a truck to and from the mine each day, and
transported with him a majority of employees on the evening shift, including Section
Foreman William Workman. He signed a union card at Grundy, Virginia, on Feb-
ruary 4, 1964, openly advocated the Union, and when Mann Neal (employee) refused
to sign a union card, Barton denied further transportation to him in his truck. These
facts were well known to Section Foreman Workman. Barton was laid off by Section
Foreman Workman after a consultation with Superintendent Jess Nelson on Monday,
February 10, 1964. He was recalled to work on Monday, May 25, 1964; in a job
that is substantially equivalent to his position prior to the layoff.
Charles R. Dixon was also formerly employed by Superintendent Jess Nelson at
the Ames mine in West Virginia. When rehired to work at the Dove mine in Big
Rock, Virginia, Nelson told Dixon that it would be operated under nonunion condi-
tions. Dixon signed a union authorization card at the U.M.W.A. headquarters in
Grundy, Virginia, on Tuesday, February 4, 1964, and later on that same day Super-
intendent Nelson inquired of him whether he knew anything about the organizational
effort. Dixon acknowledged that he did know something about it, and Superintendent
Nelson replied: "Well, you know what will happen, don't you. Well, they'll shut the
mines down. I am going to call my boss in Cincinnati tonight. We'll probably call
you out of the mines tonight. We can't afford to have a union here because we can't
pay the royalty on the coal." Thereupon Dixon requested a raise in pay, and Super-
intendent Nelson promised to discuss the matter with Mine Foreman Joe Sweet
whether to make him a crew leader. At the same time Nelson requested Dixon to
talk to the other men about signing those union cards and joining the Union. Dixon
reported to other employees what Superintendent Nelson had said to him, but did
not inform Nelson as to the results thereof. Thereafter, at the beginning of the
second shift on Monday, February 10, 1964, Superintendent Nelson called,Section
Foreman Workman outside the mine for a conference. Thereupon (a few minutes
later) Section Foreman William Workman announced that Dixon, Barton, and
Osborne were "cut off." Later that evening these three men went to see Mine Fore-
man Joe Sweet at his home to inquire why they had been laid off. Foreman Sweet
told them that production was being cut down on account of excessive ash in the coal,
but that he did not know that there was to be a layoff until he came out of the mine
at the end of the first shift about 3:45 p.m. Thereafter, on May 23, 1964, Charles R.
Dixon received a letter (Respondent's Exhibit No. 3) from Superintendent Jess Nelson
offering to recall him to work, but Dixon testified at the hearing on May 26, 1964, that
he would decline the offer because he had now obtained a job in West Virginia near
his home.
Ledford Osborne was employed at the Dove mine on the evening shift as pan-up
man on the chain conveyor. At the request of District Representative Ray Thornbury,
DOVE COAL COMPANY 1147
he signed a union card on February 3, 1964, and urged other employees to see Thorn-
bury on February 4, 1964. While engaged in conversation with Joe Barton and
others concerning the Union during the lunch hour on February 7, 1964, Osborne
heard Section Foreman William Workman make a statement to the effect that the
mine would "blow out" (shut down) if they organized the Union. Thereafter, on
Monday, February 10, 1964, Osborne was laid off along with Joe Barton and Charles
Dixon soon after they reported for work, after working overtime on the preceding
Saturday. On April 14, 1964, Ledford Osborne was notified to report back to work,
but failed to do so on account of sickness. Shortly thereafter,, he reported with a
doctor's certificate to Superintendent Jess Nelson, but was denied reemployment at
that time.
C. Dirty coal problem
It is contended by the Respondent Dove that its layoff of employees on Febru-
ary 10, 1964, was for the purpose of correcting the ash content of coal being delivered
to Purchasing Agent Henry S. Bailey for loading through tipples into railroad cars for
shipment to customers. The standard required by Bailey was that coal delivered by
his suppliers must not have an ash content in excess of 7 percent. Samplings of coal
delivered by Dove during the period in question show ash content as follows:
Date Percent Date Percent
December 13, 1963__________ 6.42 January 29, 1964____________ 5.06
December 20, 1963__________ 8.82 January 31, 1964___________ 6.93
January 6, 1964_____________ 6. 29 February 25, 1964___________ 5. 85
January 21, 1964____________ 9. 13 March 2, 1964______________ 6. 64
- January 29, 1964____________ 8. 38
The record shows by uncontradicted evidence that following the sampling of 8.82
percent dated December 20, 1963, the situation was corrected by moving operations
to another entry of the mine somewhat to the right of previous operations. This move
resulted in correcting the ash content from 8.82 to 6.29 percent, as shown above.
Thereafter a pocket of jackrock was encountered from January 21 to 29, 1964, but
this situation was corrected by submitting a new channel sample on January 29, 1964,
in which the ash content was only 5.06 percent. All samplings thereafter submitted
show ash content of less than 7 percent, and there is no evidence of complaints by
Purchasing Agent Henry S. Bailey since January 29, 1964. Bailey testified that he had
never refused to accept deliveries of coal when the ash content was less than 7 percent.
I am, therefore, convinced that Respondents' contention that employees were laid off
on February 10, 1964, because of dirty coal was a mere pretext to break up the union
organizational activities in progress at that time.
Concluding Findings
From background evidence in this case, it appears that Superintendent Jess Nelson
started operations at Big Rock, Virginia, with the determination to avoid representa-
tion of his employees by the United Mine Workers of America or any other labor
organization. When apprised of the organizational activities on February 4, 1964, he
admittedly initiated countermeasures to discourage membership in the Union. First
he interrogated Leo Bennett and Charles R. Dixon at the Dove mine concerning the
union activities, and made it clear to them that he would close down the mine rather
than operate under a contract with the Union. Then he drove past the Weller Yard
bridge on Highway 406, where a union meeting had been scheduled. At the home of
John Mullins (employee) about dark he picked up Foreman David Boyd from the
Lark mine, and in company with him visited a large number of employees at their
homes until late in the night. In each case the individual employee was interrogated
with respect to his intentions about signing a union card and was notified that the
mines would not continue to operate if the Union was organized. From a preponder-
ance of the evidence I find that the Respondents on and since February 4, 1964,
engaged in and are engaging in interference, restraint sand coercion of its employees
by interrogation, surveillance, and threats of economic reprisal, in the exercise of the
rights guaranteed in Section 7 of the Act.
Following the wholesale interviewing and interrogation of employees, and after
consultation with Superintendent Jess Nelson, Foreman David Boyd discharged Ray
Hutchinson (employee) at the Lark mine on February 5, 1964, allegedly for careless-
ness in allowing ropes to be broken in operation of the continuous miner machine:
In the light of other conduct of Foreman Boyd and Superintendent Nelson, I am con-
vinced' that Ray Hutchinson was discharged because he had concurrently signed a
union authorization card on February 4, 1964, and was supporting the current orga-
nizational activities. I find, therefore, that by discharging Ray Hutchinson (em-
1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployee) on February 5, 1964, Respondent Lark has discriminated and is discriminat-
ing in regard to hire or tenure of employment to discourage membership in a ,labor
organization within the meaning of Section 8 (a) (3) of the Act.
It is equally clear from a preponderance of the evidence that Leo Bennett, Joseph
H. Barton, Charles R. Dixon, Ferrell Lester, and Ledford Osborne were laid off indefi-
nitely on Febrauary 10, 1964, for the purpose of discouraging membership in the
Union, thereby constituting discrimination in regard to hire or tenure of employment
within the meaning of Section 8 (a) (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The conduct of Respondents set forth in section III, above, occurring in connection
with the operations described in section I, above, has an intimate and substantial rela-
tion to trade, traffic, and commerce among the several States, and tends to lead to
labor disputes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in and are engaging in the unfair,
labor practices set forth above, I shall recommend that they cease and desist therefrom,
and take certain affirmative action designed to effectuate the policies of the Act. I
shall recommend that the Respondent Lark Coal Company offer to Ray Hutchinson
immediate and full reinstatement to his former or substantially equivalent position 1
without prejudice to his seniority or other rights and privileges of employment; and
make him whole for any loss of pay and other emoluments he may have suffered by
reason of the discrimination against him by the payment to him of a sum of money
equal to that he would normally have earned as wages from February 5, 1964, to the
date on which Respondent Lark shall offer him proper reinstatement as herein pro-
vided, less his net earnings 2 during that period. I shall further recommend that the
Respondent Dove Coal Company shall in a similar manner offer rein'statement to
Ledford Osborne, and make him whole for wages lost by him from February 10, 1964,
to the date on which Respondent Dove shall offer him proper reinstatement as herein
provided. I shall further recommend that Respondent Dove Coal Company shall, in
the manner aforesaid, make whole Leo Bennett for wages lost from February 10 to
April 27, 1964, when he was recalled to work; Joseph H. Barton for wages lost from
February 10 until May 23, 1964, when he failed to accept a bona fide recall to work;
Charles R. Dixon for wages lost from February 10 to May 23, 1964,, when he failed
to accept a bona fide recall to work; and Ferrell Lester for wages lost from Febru-
ary 10, to April 13, 1964, when he declined to accept further employment by the Re-
spondent Dove. Such backpay shall be computed on a quarterly basis in the manner
prescribed by the Board in F. W. Woolworth Co., 90 NLRB 289-294, and shall in-
clude interest at 6 percent per annum as prescribed by the Board in Isis Plumbing
& Heating Co., 138 NLRB 716.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Dove Coal Company and Lark Coal Company are employers engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. United Mine Workers of America, District No. 28, is a labor organization within
the meaning of Section 2(5) of the Act.
3. By interrogation concerning their organizational activities, observing and watch-
ing their designated meeting place, and threatening to close down their coal- mining
operations if they formed a labor organization, the Respondents interfered with,
restrained, and coerced their employees in their exercise of the rights guaranteed in
Section 7 of the Act. -
4. By discrimination in regard to the hire or tenure of employment of Ray Hutchin-
son, Leo Bennett, Joseph H. Barton, Charles R. Dixon, Ferrell Lester, and Ledford
Osborne, to discourage membership in a labor organization, thereby interfering with,
restraining, and coercing employees in the exercise of the rights guaranteed in Section
7 of the Act, the Respondents have engaged in and are engaging in unfair labor prac-
tices within the meaning of Section 8(a) (1) and (3) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
1 See The Chase National Bank of the City of New York, an Juan, Puerto Rico , tBranch,
65 NLRB 827. . -
z See Crossett Lumber Co., 8 NLRB 440. , -
DOVE COAL COMPANY ' 1149
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact, conclusions of law, and the entire
record in the case, and pursuant to Section 10(c) of the Act, I recommend,that
Respondents Dove Coal Company and Lark Coal Company, their officers, agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) -Interrogating employees concerning their organizational intentions and activ-
ities, engaging in or creating the impression of surveillance of organizational meetings,
threatening to close down mining operations or engage in other economic reprisals if
the employees join or form a labor organization; or in any other manner interfering
with, restraining, or coercing their employees in the exercise of their right to self-
organization, to form, join or assist United Mine Workers of America, District No.
28, or any,other labor organization, to bargain collectively through representatives of
their own choosing, or to engage in other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection; or to refrain from engaging in
any or all of such activities.
(b) Discouraging membership in United Mine Workers of America, District No.
28, or anyother labor organization, by laying off, discharging, or otherwise discrim-
inating in regard to the hire or tenure of employment of employees who join or engage
in concerted activities for the purpose of collective bargaining or other mutual aid or
protection.
2. Take the following affirmative action designed -to effectuate the policies of the
Act:
(a) Offer to Ray Hutchinson and Ledford Osborne' immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice to their
seniority or other rights and privileges of employment.
(b) Notify Ray Hutchinson and Ledford Osborne, if either of them is serving in
the Armed Forces of the United States, of their rights to full reinstatement upon
application in accordance with the Selective Service Act and the Universal Military
Training and Service Act of 1948, as amended, after discharge from the Armed Forces.
(c) Make whole its employees Ray Hutchinson, Ledford Osborne, Leo Bennett,
Joseph H. Barton, Charles R. Dixon, and Ferrell Lester for any loss of pay and other
emoluments each of them may have suffered by reason of the discrimination against
him by the payment to each of them of a sum of money equal to the amount he
normally' would have earned as wages from the date on which he was laid off or dis-
charged by the Respondents to the date on which Respondents shall offer or has
already offered proper reinstatement in the manner described and provided above in
section V entitled "The Remedy."
(d) Preserve and, upon request , make available to the Board and its agents, for
examination and reproduction, all payroll records, social security data, timecards,
personnel record and reports, and all other records in their possession which may be
necessary to analyze, compute, and determine the amounts of backpay and other
emoluments due and payable to each of these employees under the terms and condi-
tions specified in this Recommended Order.
(e) Post at the entrance to their coal mines, plant, and offices at Big Rock, Virginia,
copies of the attached notice marked "Appendix." 3 Copies of said notice, to be fur-'
nished by the Regional Director for Region 5, shall, after being signed by an author-
ized representative of the Respondents, be posted by the Respondents immediately
upon receipt thereof, and be maintained by them for a period of 60 consecutive days
from date of posting in conspicuous places, including all places where notices to em-
ployees are customarily posted . Reasonable steps shall be taken by the Respondents
to insure that said notices are not altered, defaced, or covered by any other material.
(f) Notify the said Regional Director for Region 5, Baltimore, Maryland, in writ-
ing; within 20 days from the date hereof, what steps Respondents have taken to comply
with this Recommended Order .4
3In the event that this Recommended Order be adopted by the Board , the words "a
Decision and Order" shall be subsituted for the words "the Recommended Order of a Trial
Examiner" in the notice. In the further event that the Board's Order be 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".
+ If this Recommended Order be 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 Respondents have taken to comply herewith."
1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To ALL EMPLOYEES
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:
WE WILL NOT interrogate our employees concerning their organizational activ-
ities, engage in surveillance of their meetings , or threaten to close down our
mining operations if they join or assist a labor organization.
WE WILL NOT discourage membership in United Mine Workers of America,
District No. 28, or any other labor organization , by laying off, discharging, or
otherwise discriminating in regard to the hire or tenure of employment or any
term or condition of employment of employees who join or engage in concerted
activities for the purpose of collective bargaining or other mutual aid of
protection.
WE WILL NOT in any other manner interfere with , restrain, or coerce our
employees in the exercise of their right to self-organization , to form , join, or
assist the above-named or any other labor organization , to bargain collectively
through representatives of their own choosing , and to engage in other concerted
activities for their mutual aid or protection, or to refrain from any or all of
such activities.
WE WILL offer Ray Hutchinson and Ledford Osborne immediate and full rein-
statement to their former or substantially equivalent positions without prejudice
to their seniority or other rights and privileges of employment, and make each
of them whole for any loss of wages and other emoluments he may have suffered
by reason of our discrimination against him.
WE WILL also make whole Leo Bennett , Joseph H . Barton, Charles R. Dixon,
and Ferrell Lester for any loss of wages and other emoluments each of them may
have suffered by reason of our discrimination against him to the date on which
he declined to accept reemployment by us.
All our employees are free to become or remain or refrain from becoming or
remaining members of the above-named or any other labor organization.
DOVE COAL COMPANY,
LARK COAL COMPANY,
Employers.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
NoTE-We will notify the above -named employees presently serving in the Armed
Forces of the United States, if any, of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Military Training and
Service Act of 1948, as amended , after discharge from the Armed Forces.
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.
Employees may communicate directly with the Board 's Regional Office, Sixth Floor,
707 North Calvert Street, Baltimore , Maryland , Telephone No. 752-8460 , Extension
2100 , if they have any question concerning this notice or compliance with its
provisions.
Modern Plating Corporation and Lodge 1096, International
Association of Machinists , AFL-CIO. Case No. 13-CA-6316.
January 19, 1965
DECISION AND ORDER
On November 16, 1964 , Trial Examiner Sidney D . Goldberg issued
his Decision in the above-entitled proceeding , finding that the Re-
150 NLRB No. 115.