Exeter Coal Co.

National Labor Relations Board - Board Decisions

Sep 27, 1965

154 N.L.R.B. 1678 (N.L.R.B. 1965)

1678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to engage in concerted activities for the purpose of collective bargaining or other
mutual aid or protection, and to refrain from any or all such activities, except to the
extent that such right may be affected by an agreement requiring membership in a
labor organization as authorized in Section 8(a)(3) of the Act
2. Take the following affirmative action which is deemed necessary to effectuate
the policies of the Act.
(a) Post in its store at Albuquerque, New Mexico, copies of the attached notice
marked "Appendix." 6 Copies of said notice, to be furnished by the Regional Direc-
tor for Region 28, shall, after being duly signed by Respondent, be posted by it imme-
diately upon receipt thereof, and be maintained for a period of 60 consecutive days
thereafter, in conspicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 28, in writing, within 20 days from
the date of receipt of this Decision, what steps It has taken to comply herewith.
6 In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice In the further event that the Board's Order 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"
71n the event that 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 Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT threaten employees with discharge for engaging in union
activities.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employeees in the exercise of their right to form, join, or assist labor
organizations, to bargain collectively through representatives of their own
choosing, to engage in concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, and to refrain from any or all such activi-
ties, except to the extent that such right may be affected by an agreement requir-
ing membership in a labor organization, as authorized in Section 8(a)(3) of the
Act.
MONTGOMERY WARD & CO., INCORPORATED,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, 1015 Tijeras
Street, NW., Albuquerque, New Mexico, Telephone No. 247-0311
Exeter Coal Company and Odis Ritchie, William Prater, Jr.,
Carter Hicks. Cases Nos. 9-CA-2997-1, 9-CA-2997-2, and 9-C-4-
2997-3. September 27,1965
DECISION AND ORDER
On March 9, 1965, Trial Examiner Jerry B. Stone issued his Deci-
sion in the above-entitled proceeding, finding that Respondent had
154 NLRB No. 141.
EXETER COAL COMPANY 1679
engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner 's Deci-
sion. Thereafter , Respondent filed exceptions to the Trial Examiner's
Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended , the National Labor Relations Board has
delegated its powers in connection with this proceeding to a three-
member panel [Members Brown , Jenkins , and Zagoria].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed . The Board has considered the Decision,
the exceptions , and the entire record in the case, and hereby adopts the
Trial Examiner 's findings , conclusions , and recommendations , as modi-
fied herein.
We find no illegal threat in Foreman Harvey's talk with employee
Bill Robinson on September 7 and in President Riddle's statements to
employees Herbert Combs and Sam Everage on September 10 and 15,
respectively . The testimony in the record as it bears upon these inci-
dents is vague and ambiguous and does not clearly demonstrate that
Respondent was threatening employees in the manner found by the
Trial Examiner.
The Trial Examiner found that Respondent 's September 16 layoff
of 12 employees was aimed at discouraging United Mine Workers
activity among the employees and that Respondent included Ritchie,
Prater, and Hicks in the group without any intention of recalling
them, thereby discharging them in violation of Section 8(a) (3) of the
Act. However, we believe that this finding is not supported by a pre-
ponderance of the evidence . The Trial Examiner was persuaded that
the layoff , because of its timing , was designed to demonstrate to the
employees that it "meant its threat" to close the plant if the employees
continued to favor the UMW. As indicated , however , the record will
not support a finding that such threat was made before the layoff.
Also, the record does not show that the Respondent knew or suspected
the identity of the UMW adherents , particularly among those who
were laid off on September 16.1 Indeed , so far as appears , only six in
the latter group signed UMW cards ; there is no indication as to the
union sympathies of the others . Finally, we are not persuaded that
"rashy" or "dirty coal " might not have necessitated a layoff on Sep-
tember 16. Thus , while there are suspicious circumstances attending
the layoff, we do not find that a preponderance of the evidence estab-
lishes a discriminatory motivation therefor.
'It appears that other employees were involved in this layoff, several being laid off
on September 17.
1680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, Nye are persuaded that Respondent unlawfully discrimi-
nated against Ritchie, Prater, and Hicks in the matter of their recall
from layoff. In this connection, we find of particular significance the
Trial Examiner's findings, more fully explained in his Decision, that :
Respondent had a decided preference for the Southern Labor Union
over the UMW as the employees' bargaining agent and, on Septem-
ber 18, Foreman Harvey even threatened that President Riddle would
close the mine before working under the UMW; Ritchie, Prater, and
Hicks signed UMW cards and attended the September 14 UMW meet-
ing; Ilicks was observed distributing UMW cards to the employees on
September 11; during the week of September 24, all the laid-off
employees except Ritchie, Prater, and Hicks, were notified to return to
work; thereafter, when Foreman Harvey was asked about the recall
of Ritchie and Hicks, he replied that President Riddle had said "he
[Riddle] wasn't going to fool with any of them that he had laid off," 2
especially Hicks who was a "troublemaker"; before Respondent re-
turned Ritchie and Prater to work on October 29 and November 22,
respectively, it hired a former employee who had voluntarily quit
prior to the September 16 layoff; and, while failing to reinstate Hicks
to his job, Respondent hired several new employees in December 1863
and February 1964.
On the basis of the foregoing and the entire record, we conclude that
Respondent had singled out Ritchie, Prater, and Hicks as the ones pri-
marily responsible for the employees' shift of allegiance to the UMW ;
that its unexplained delay in recalling Ritchie and Prater was in retali-
ation against these employees because of their suspected role in the
UMW activity ; and that its failure and refusal to reinstate Hicks must
likewise be attributed to Respondent's resentment against UMW activ-
ity. Accordingly, we shall order the reinstatement of Hicks as the
Trial Examiner has done but shall award backpay to him, Ritchie, and
Prater only from the date each would have been recalled absent the
discrimination against him.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, as modified
herein, and orders that the Respondent, Exeter Coal Company, Carrie,
Kentucky, its officers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's Recommended Order, as so
modified :
2 We agree with the Trial Examiner that this was a reference to the laid -off employees
who had not yet been recalled ; namely, Ritchie , Prater, and Hicks.
EXETER COAL COMPANY 1681
1. Delete paragraph 1(a) of the Trial Examiner's Recommended
Order and substitute the following :
"(a) Discouraging membership in or activities on behalf of United
Mine Workers of America, or in any ether labor organization of its
employees, by delaying or denying reinstatement or otherwise discrimi-
nating in regard to the hire or tenure of employment or any terms and
conditions of employment of any of its employees."
2. Delete paragraph 2(c) of the Recommended Order and substi-
tute the following :
"(c) Make whole William Prater, Jr ., Odis Ritchie, and Carter
Hicks for any loss of pay they may have suffered by reason of the dis-
crimination against them in the manner set forth in the section of the
Trial Examiner' s Decision entitled `The Remedy ,' as modified herein."
3. Delete paragraph 3 of the Appendix and substitute the following :
WE WILL NOT discourage membership in, or activities on behalf
of, United Mine Workers of America , or any other labor organi-
zation of our employees , by delaying or denying reinstatement or
otherwise discriminating in regard to the hire or tenure of employ-
ment or any terms and conditions of employment of any of our
employees.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges and amended charges filed on October 14 and 25, 1963, respec-
tively, by Odis Ritchie, an individual (Case No. 9-CA-2997-1), William Prater,
Jr., an individual (Case No. 9-CA-2997-2), and Carter Hicks, an individual (Case
No. 9-CA-2997-3), the General Counsel for the National Labor Relations Board,
by the Regional Director for Region 9 (Cincinnati, Ohio), issued a complaint dated
April 30, and amendments to the complaint dated May 1 and June 3, 1964, against
Exeter Coal Company (herein sometimes called Respondent or Employer) alleging
violations of Section 8(a)(1) and (3) of the Act. The Respondent's answer denied
certain of the commerce allegations and in effect denied commerce jurisdiction.
The Respondent's answer denied that the Union was a labor organization and
denied the commission of unfair labor practices. At the commencement of the
hearing the parties entered into stipulations, and there were amendments to the
pleadings by the parties reducing the issues herein to whether Respondent had
committed unfair labor practices.
Pursuant to appropriate notice, a hearing was held before Trial Examiner Jerry
B. Stone at Hazard, Kentucky, on June 24 and 25, 1964. All parties were repre-
sented at the hearing, participated therein, and were afforded the right to present
evidence, to examine and cross-examine witnesses, to offer oral argument, and to
file briefs.
Upon the entire record in this case, and from my observation of the witnesses,' I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER INVOLVED
The facts pertaining to the business of the Employer involved herein are based
upon the pleadings and admissions therein and the credited testimony of A. C.
Riddle.
I All credibility resolutions made with respect to the witnesses ' testimony are based on
a composite evaluation of witness demeanor and logical consistency of the evidence.
206-446-66-vol. 154 107
1682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent Exeter Coal Company, a Kentucky corporation, has its principal
office and place of business located at Carrie, Kentucky, where it is engaged in the
mining and processing of coal.
Walkott Coal Company, Inc., is a Kentucky corporation with its principal office
and place of business located at Hazard, Kentucky, where it is engaged in the leas-
ing and subleasing of mining property and the sale of coal.
Respondent (Exeter Coal Company) engages in approximately 40 percent of its
mining on property subleased from Walkott Coal Company, Inc., and sells approxi-
mately 90 percent of the coal that it mines to Walkott Coal Company, Inc.
F. C. Medaris, president of Walkott Coal Company, Inc., holds the office of vice
president of Respondent but owns no interest in Respondent.
Respondent, during a representative 12-month period, sold coal valued in excess
of $50,000 to Walkott Coal Company, Inc., who in turn during the same period,
sold and shipped coal valued in excess of $50,000 to purchasers located outside the
State of Kentucky. As conceded by the Respondent, it is found and concluded that
Respondent is now, and has been at all times material herein, an employer engaged
in commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The facts pertaining to the United Mine Workers of America, are based upon a
stipulation by the parties and a totality of the evidence in this case.
United Mine Workers of America, herein called the Union, is now and has been,
at all times material herein, a labor organization as defined in Section 2(5) of the
Act.
The facts pertaining to the Southern Labor Union are based upon a composite of
the credited testimony of Riddle, Shepherd, Robinson, Freeze, Rose, Combs, Ritchie,
Prater, and Hicks.
It is undisputed that men purportedly representing Southern Labor Union solicited
employee signatures to union cards and dues checkoff cards, and that one of these
men requested a meeting with President Riddle because he "had a majority" of the
employees signed up. It is obvious that the request for a meeting was for the pur-
pose of recognition and bargaining with Respondent. Under such circumstances I
conclude and find that the Southern Labor Union is and has been at all material
times herein a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The Events of September 7 to 10, 1963 2
Apparently sometime shortly before September 7, 1963, several men representing
themselves to be Southern Labor Union representatives saw Acy Riddle, Respond-
ent's president, and told him they wished to talk to his employees.3 Riddle told the
men that they could talk to his employees.
The Events of September 7, 1963 4
On Saturday, September 7, 1963, Noah Harris, a representative of the Southern
Labor Union, appeared on the premises of Respondent, around 7 a m.5 Harris
spoke to the Respondent's employees (who were close to the lighthouse just prior to
going to work) about his union and handed to the employees pamphlets (concern-
ing insurance benefits) and cards (by which the employee authorized the Union to
represent the employee as regards collective bargaining and by which the employee
3 The facts as to the events of September 7, 1963, are based upon a composite of the
credited uncontradicted testimony of Riddle, Prater , Robinson , Shepherd , Freeze, Rose,
Hicks, Combs, and Ritchie.
3 Riddle's testimony does not reveal the exact timing of this event. Prater's testi-
mony reveals that apparently there had been employee discussion that the Southern
Labor Union had been at the mine on Friday, September 6, 1963. From all the evidence
and the sequence of other events , I find it reasonable to place this event as sometime
shortly before September 7, 1963.
4 Prater Impressed me, both from his demeanor and sureness in testimony , as the most
reliable witness in the establishment of the time of this event . I fix the time of this
event as September 7, 1963, in accordance with Prater 's testimony.
6 Apparently Harris was accompanied by another individual . The question and answers
of some of the witnesses referred to "They."
EXETER COAL COMPANY 1683
authorized the employer to deduct dues from the employee's wages for the Southern
Labor Union). Some of the employees signed the cards and returned them to
Harris, and several of the employees refused to sign the cards.
While Harris was talking to the employees and soliciting their signature to the
cards, Respondent Supervisor Harvey was present. Employee Bill Robinson spoke
to Supervisor Harvey and told Harvey that be did not want to fool with signing the
card and asked Harvey what he thought about it. Supervisor Harvey told Robin-
son that he thought that signing the card was a "mighty good thing," that if it came
to a point of work that if-he were going to have to sign something that he might as
well sign the card, and that "there comes a time we have to sign this or something
or other if we worked." Robinson thereupon authorized another employee to sign
the card for him and affixed an "X" thereto on the card. When Harris was solicit-
ing signatures to cards from employees, Respondent's Supervisor Harvey asked Har-
ris if he could join the Union and stated that he would like to get in "on that" with
the boys. Harris told Harvey that he could not join because he was a foreman.
Harvey told Harris that he was a workman and worked.
It is clear from the foregoing that Respondent's Supervisor Harvey threatened
employees that their job security depended upon their signing Southern Labor Union
cards and coercively urged employees to sign cards for the Southern Labor Union.
Such conduct constitutes Respondent's conduct that interfered with, restrained, and
coerced employees in the exercise of their right to engage in union activity or to
refrain from engaging in union activity and is violative of Section 8(a)(1) of the
Act. I so conclude and find.
The Events of September 9, 1963
Apparently on Monday morning, September 9, 1963, Harris or some other per-
sons representing themselves to be Southern Labor Union representatives, saw
Respondent Acy Riddle at his home and told Riddle that he had been talking to
Riddle's men, that he had the majority signed up, and that the men had agreed that
they wanted to meet with Riddle (and apparently with Harris) at the mine at 3:30
p.m.6 Riddle replied that he would try to be there.
Around 3:30 p.m., on September 9, 1963, Noah Harris, accompanied by another
person , was again at Respondent 's premises (at a point close to where Respondent's
employees parked their cars) and attempted to secure employees' signatures to
cards as they left work for home and to select officers for a union local. Supervisor
Harvey was again in the vicinity and remarked to some of the employees that he
would join the Union but could not.7 Some of the employees refused to sign the
Southern Labor Union cards. Carter Hicks told Harris that he did not think the
Southern Labor Union belonged to the United Mine Workers and that the Southern
Labor Union must be "awfully sweet" because the mine operators were going pretty
well over it. One or more of the employees told Harris that what he was offering
was insurance papers and that they already had that, that they did not want his
union . Harris named some of the employees who had signed cards and stated that
he had a majority, that it did not matter what they said, that he would take the
employees he had and have a union . The employees then proceeded to get in their
cars and go home.
Respondent's President Riddle, who was late for the 3:30 p.m. meeting, met some
of the employees and was told by them that they did not want the Union. Riddle
told the employees that it was all right with him, that it was none of his business
but they ought to make up their minds because he was a busy man.
6 Riddle's testimony as to this event did not specifically fix the time. From the
sequence of the other events, I find it reasonable to fix the time of occurrence as indicated
on the morning of September 9, 1963. The fixing of the time otherwise , however, would
not affect the findings as to the issues involved.
7 Combs testified to two events but his testimony is relatively unspecific as to time.
It is clear that the first event to which he testified occurred around quitting time and
at the "mouth" of the mine. Since Harvey on September 7, 1663, asked about and was
told about his status , and since Combs testified to the fact thai' Harvey stated that he
(Harvey) could not join the Union, I find it reasonable to fis;fhe first event testified
to by Combs as occurring on September 9, 1963, and to find that Harvey was present
September 9, 1963. In any event the placing of the events testified to by Harvey on
other dates within approximately a week or two before September 16, 1963, would not
affect ultimate findings herein.
1684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Events of September 10, 1963 8
One of the employees who refused to sign a Southern Labor Union card on Sep-
tember 9, 1963, was Herbert Combs. After thinking the matter over, Combs
returned to work the next morning , and at the lighthouse secured a Southern Labor
Union card and signed it and gave it to one of the men that had been soliciting cards
the day before.
Later that day, Respondent 's President Riddle , Supervisor Harvey and Combs
were in the lighthouse . On this occasion Riddle said to Combs, "it looks like we
might as well just make Herbert one of the mine committeemen ." Combs told
Riddle that he did not want anything to do with it. Riddle then stated that it looked
like he would have to shat the mine down.
It is clear from the foregoing that President Riddle threatened an employee that
his job security depended upon his accepting a position as mine committeeman and
thus was coercively urging said employee to become a mine committeeman. Such
conduct constitutes Respondent's conduct that interfered with, restrained, and
coerced an employee in the exercise of his right to engage in union activity or to
refrain from engaging in union activity and is violative of Section 8(a)(1) of the
Act. I so conclude and find.
Around 3:30 p.m., on September 10, 1963, when the employees of Respondent
left work they encountered some men in cars adjacent to the main highway. These
men asked the employees to sign United Mine Workers union cards and a number
of the employees signed United Mine Workers cards.
The next day Carter Hicks took several United Mine Workers cards with him to
work and commenced attempting to secure and did secure signatures to the cards.
On occasion when Hicks attempted to secure, and secured signatures to cards,
Supervisor Harvey was present. One of the employees that Hicks asked to sign a
card was named Stanley Patrick. Patrick refused to sign the United Mine Workers
union card, stating that he had signed a Southern Labor Union card.
United Mine Workers Union Meeting on September 14, 1963
On Saturday, September 14, 1963, Hicks, Ritchie, Prater, and apparently 15 other
of Respondent's employees attended a United Mine Workers union meeting at Allays,
Kentucky.
The Events of September 15, 1963 9
On Sunday, September 15, 1963, President Riddle was sitting in a car (in front of
a church) with a person named Sam Everage. Employee Stanley Patrick came up
and got in the car with Riddle and Everage. Riddle, Patrick, and Everage engaged
in a discussion about Respondent's employees signing United Mine Workers cards
and about Carter Hicks' actions in connection therewith. Riddle thereupon made a
statement that he was going to lay off some men and commenced to drive away to
look for Hicks to notify him of his layoff.
Considering the uncontradicted credited aspects of Everage's testimony set forth
above, Respondent's other acts of illegal threats and interference with employees'
Section 7 rights found previously and later in this Decision, and Respondent's dis-
criminatory layoff of employees on September 16, 1963 (found later in this report),
and Respondent's discriminatory action relating to Hicks' recall to employment, I
conclude and find that the evidence preponderates for a finding that Respondent by
its President Riddle threatened employees with discharge on September 15, 1963,
because of their union activity. I conclude and find that this conduct of Respond-
ent constituted conduct violative of Section 8 (a) (1) of the Act.
8 As indicated previously I have fixed the first event to which Combs testified as having
occurred on September 9, 1963. The second event was described by Combs as occurring
on the next day in his direct testimony, and as on the next day or two in his cross-
examination testimony. I find it reasonable to fix the time of the second event as being
on September 10, 1963, .apd in any event the variance of a day or two would not affect
the ultimate findings herein.
O The facts as to the i vents of September 15, 1963, are based upon the uncontradicted
credited portions of te. timony of Sam Everage. Everage's demeanor and testimony
revealed him to be a hostile and reluctant witness and extremely interested in not saying
anything adverse to Respondent. I find his credited testimony to constitute almost
reluctant admission of certain facts. Excepting as to his credited testimony, Everage's
other testimony is completely impeached by a prior sworn statement given to a National
Labor Relations Board agent by Everage and received into the record in this case.
EXETER COAL COMPANY 1685
Events of September and October 1963 10 and the Recall to Work
of Certain Employees
On September 16, 1963, the Respondent laid off around 12 employees and told
some of the laid-off employees that the reason for the layoff was "Mashy" or dirty
coal. Among the employees laid off were William Prater, Jr., Carter Hicks, and
Odis Ritchie. The Respondent, as part of this layoff, apparently laid off some
employees on September 17, 1963.11
After the layoff of September 16, 1963, Respondent commenced recalling laid-off
employees on the next day. Laid-off employee Bill Robinson, a coal loader, was
recalled after being off work 1 day. Robinson who had worked on the left side of
the mine before the layoff was placed to work on the right side of the mine. Laid-
off employees Richard Freeze and Herbert Combs, coal loaders, were recalled after
being off work for 2 days and were placed to work at the same places they had been
working prior to the layoff.
Apparently shortly after September 16, 1963, Ritchie telephoned President Riddle
and complained that his pay was $2 short. President Riddle became angry, told
Ritchie that he went by his books, and hung up the telephone.
The Events of September 18, 1963 12
On September 18, 1963, employee Bill Robinson, while riding a man-trip (with
fellow employees) into the mine to go to work, observed Foreman Harvey talking
to employees in another man-trip car. Robinson proceeded to then go to and get
in the same man-trip car with Harvey and asked Harvey what he had been saying.
Harvey told Robinson in effect that President Riddle had said that the employees
had turned down the Southern Labor Union, that the employees had a right to
belong to any union they wanted, but that before he could work under the UMW
(United Mine Workers) that he might as well pull his steel (close the mine up).
Considering the foregoing, I conclude and find that Respondent, by Foreman
Harvey, threatened employees with loss of their jobs if they supported the United
Mine Workers. Such a threat is violative of Section 8(a) (1) of the Act. I so
conclude and find.
On September 24, 1963, Respondent reemployed Gentry Patrick, an employee
who had quit work with Respondent a week before the September 16, 1963, layoff.13
During the week of September 24 to 27, 1963, Respondent notified all of the employ-
ees who were laid off, excepting Hicks, Prater, and Ritchie, to return to work.14
Apparently the employees who received notice to return to work, returned to work
during the week of September 24 to 27, 1963, and during the first week in October
1963.15
"The facts relating to the events of September and October 1963 are based uh.,a
admission in the pleadings and a composite of the credited testimony of Ritchie, Hicks,
Prater, Robinson, Freeze, Rose, Shepherd, Combs, Patrick, Hurt, and Clemons
11 Stipulated evidence reveals that an employee named Benton Cornett was laid off on
September 17, 1963. Respondent's answer in effect admits that 14 employees were laid
off in connection with its September 16, 1963, layoff. At the hearing General Counsel did
not agree that 14 were laid off. It appears likely that Respondent's answer alluded to
the total number of employees laid off on or about September 16 and included several
employees laid off on September 17, 1963.
12 The facts as to the events of September 18, 1963, are based upon the credited un-
contradicted testimony of Robinson. General Counsel witness Rose testified to this or a
similar event but his testimony does not reliably place the event as of September 18, 1963
"The facts relating to Gentry's employment are based upon the credited testimony
of Hurt. Respondent by counsel's questions and part of Riddle's testimony appeared to
take a position that Patrick was reemploved because he had only been off sick.
Patrick's testimony revealed that Foreman Harvey clearly knew that Patrick had quit.
Riddle in his testimony also referred to the fact that Patrick had quit From the fore-
going and the evidence, I am convinced that Respondent knew that Patrick had quit
work a week before the September 16, 1963, layoff.
11 Respondent's answer to the complaint herein admits in effect that all employees
were given written notice, between September 24 to 27, 1963, to return to work. Evidence
and stipulations otherwise reveal that Hicks, Prater, and Ritchie did not receive notifica-
tion to return to work until a later date.
15 Benton Cornett, an employee laid off on September 17, 1963, returned to work on
October 1, 1963. Prior to the layoff Cornett had been employed at cutting coal, although
at times he worked at loading coal. Cornett was recalled and placed at loading coal,
a job which, because of the nature of the work, allowed him to work more and thus
ieceive more pay.
1686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sometime after the recall of most of the employees and prior to October 24, 1963,
employee Shepherd asked Foreman Harvey about the recalling of Hicks and Ritchie.
Foreman Harvey told Shepherd that President Riddle had said that he was not going
to fool with any of them that he had laid off, that he especially was not going to
fool with Carter Hicks because he was a troublemaker.'6
The Recall to Work of Hicks and Ritchie
On October 24, 1963, Respondent notified Odis Ritchie and Carter Hicks to return
to work.17
Respondent's manner of notification of Ritchie was by a telephone call to Ritchie
by President Riddle. Riddle telephoned Ritchie at 9 p.m. on October 24, 1963, and
told him that he wanted him to come to work the next day. Ritchie told President
Riddle that he could not come to work the next day but that he would come back to
work.'s
Respondent' s manner of notification of Hicks was to send word to Hicks by fel-
low employee Rose that Hicks was supposed to return to work on Friday (October 25,
1963). Rose notified Hicks to this effect on October 24, 1963, at 5 p.m.'9 Hicks,
later the same night, called President Riddle that he could not be back the next
day (Friday) but that he would be back to work. Hicks also asked President Riddle
whether a Board representative had been around to talk to him and Riddle replied
that the man from the Board was not running his job and slammed the telephone
down 20
Apparently around this time the Respondent notified the State unemployment
board that it had offered jobs to Hicks and Ritchie.
Apparently Hicks and Ritchie conferred with each other on October 25, 1963,
and the two were then of the opinion that they should see their lawyer (H. B. Noble)
before they returned to work.2'
The Respondent did not operate the mine on Saturday, October 26, 1963. On
Monday, October 28, 1963, Hicks and Ritchie saw their attorney (H. G. Noble)
and were advised that they should return to work.
On Tuesday, October 29, 1963, Ritchie and Hicks returned to Respondent's mine
property for the purpose of going to work. After putting on their mining caps,
they walked out of the lighthouse to where Foreman Harvey was, and told Harvey
that they had reported for work. Harvey told Ritchie and Hicks that he did not
know whether they were going to work or not, that Riddle had told him the evening
before that if they (Hicks and Ritchie) came out, to send them home. Ritchie told
Harvey that Riddle had called him and told him to report to work. Harvey told
Ritchie that that was right but that he could not work him. Hicks told Harvey that
he and Ritchie were here ready to go to work. Ritchie told Harvey that it was
"okay," that he would just report. Foreman Harvey told Ritchie and Flicks that
18 Considering the fact that all of the laid -off employees were recalled by September 27,
1963, excepting Hicks, Ritchie, and Prater, I am convinced and find that Riddle's remark
about who he was not going to fool with was with reference to Hicks, Ritchie, and
Prater. The incident described is not alleged in General Counsel's complaint as being
violative of the Act. Accordingly no finding of violation in this respect is made. The
incident does, however , constitute evidence revealing Respondent ' s attitude toward Hicks,
Ritchie , and Prater.
17 Charges in the instant matter alleging discriminatory firing or layoff had been
filed on October 14, 1963, by Hicks, Ritchie , and Prater and had been served on Re-
spondent on October 17, 1963.
18 Ritchie credibly testified to the effect that his reason for not going to work on
October 25, 1963, was that he had broken a spring in his car and could not drive to
work, also he was going to a lawyer. Ritchie's testimony does not clearly reveal that
he told Riddle this reason, but in any event the evidence does not disclose that Riddle
made any protest to Ritchie at this time.
19 Respondent's President Riddle interjected from Respondent's counsel ' s 'table that he
had called Hicks on Wednesday night (apparently October 23, 1963). There was no
sworn testimony to this effect I credit Hicks' version of these events.
20 Hicks' reason for not returning to work on October 25, 1963, was that he wanted
to see his lawyer about what to do about returning to work.
"It is noted also that Ritchie is one of the Charging Parties in this matter and had
filed or caused to be filed charges on October 14, 1963 Ritchie had also signed an
amended charge form with reference to this case on October 24, 1963. The amended
charge was received in the Regional Office of the National Labor Relations Board in
Cincinnati , Ohio, at 9 a .m., on October 25, 1963.
EXETER COAL COMPANY 1687
they would go and see what Riddle said, that he would send a boy to see if Riddle
would let them work. Foreman Harvey thereupon sent an employee, named Ambur-
gey, to President Riddle's home. When Amburgey returned to where Harvey,
Ritchie, and Hicks were, he reported that President Riddle had said to put Ritchie
to work and to send Hicks home. Ritchie thereupon went to work and Hicks left to
go home.
Hicks left for home in his car and met Riddle in his (Riddle's) car a short dis-
tance away from the mine. The two stopped and Riddle asked Hicks what he was
doing there. Hicks told Riddle that he was supposed to have gone back to work
that day. Riddle told Hicks in effect that he no longer had a job at the mine.
On Wednesday, October 30, 1963, Ritchie met President Riddle as he left the
mine. Riddle called Ritchie away from the other employees. With Riddle at that
time were Foreman Harvey and employee Stanley Patrick. Riddle, Ritchie, Har-
vey, and Patrick went to the left of the mouth of the mine. President Riddle took
some papers out of his coat and asked Ritchie if he had signed "this paper?" 22
Ritchie looked at "the paper" and said that he had signed "the paper," and that
here was his signature. President Riddle asked Ritchie why he had gone "over
there" and sworn out "all these lies?" Ritchie asked Riddle what lies he was refer-
ring to. President Riddle told Ritchie that he had gone "over there" and sworn
that he (Riddle) had "followed you over" and had said things about the Union
and that Ritchie had heard him say things about the Union. Ritchie told Riddle
that he had not heard him say anything about the Union and that he had not gone
over there and sworn to it. President Riddle asked Ritchie who he had gone to,
had he "gone to the damn union." Ritchie told Riddle that he had not gone to the
Union, that he had gone and "got a lawyer." President Riddle then asked Ritchie
who the lawyer was. Ritchie did not tell Riddle who the lawyer was, and Riddle
thereupon walked away.
Considering all evidence and the foregoing, I conclude and find that Respondent
by President Riddle, by the interrogation of Ritchie and in the manner that the
interrogation occurred, illegally interfered with, restrained, and coerced an employee
in the exercise of Section 7 rights guaranteed by the Act, and that such conduct
violated Section 8(a) (1) of the Act.
The Discriminatory Discharges of Hicks, Ritchie, and Prater
The General Counsel's complaint paragraph No. 7 alleges that "on or about
September 16, 1963, that Respondent discharged employees Odis Ritchie, William
Prater, Jr., and Carter Hicks all because of their membership in, sympathies for,
and activities on behalf of the Union." The Respondent's answer denied this alle-
gation of the complaint by averrmg that "Paragraph 7 of the complaint is denied
in that there was no work at the time and 14 employees were laid off at the same
time, and written notice was given between the 24th day of September and 27th
day of September 1963, calling the men back to work; the first laid off being called
back first, and two of the men named herein are presently working for the Respond-
ent and the third man found more suitable work elsewhere and refused to come
back to work."
As indicated by previous findings herein: (1) President Riddle, shortly before
as on September 7, 1963, granted permission to men purporting to be Southern
Labor Union representatives to talk to his employees. (2) Foreman Harvey, on
September 7, 1963, was present when men purporting to be Southern Labor Union
representatives attempted to solicit employees to sign union cards and Foreman
Harvey threatened employees that their jobs depended upon signing such union
cards, and by such threats and other statements Harvey urged employees to sign
Southern Labor Union cards. Some of the employees signed Southern Labor Union
cards and several of the employees refused to sign the cards. (3) A man or men,
purporting to represent the Southern Labor Union, apparently on the morning of
September 9, 1963, told President Riddle in effect that the Southern Labor Union
represented a majority of Respondent's employees and arranged a meeting with
President Riddle for the afternoon. (4) Men purporting to be Southern Labor
Union representatives, again appeared on the afternoon of September 9, 1963, at
Respondent's mine, and in the presence of Respondent's Foreman Harvey attempted
to secure additional employees' signatures to cards. Respondent's Foreman Harvey
again made remarks designed to encourage employees to sign the cards by stating
2e Obvious reference to the amended charges in Case No. 9-CA-2997-1 signed by
Ritchie on October 24 and filed on October 25, 1963. The amended charges were served
on the Respondent on October 30, 1963.
1688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in effect that he would join if he could . On this occasion a number of employees
refused to sign Southern Labor Union cards and otherwise by remarks in effect
rejected the Southern Labor Union . The man or men, purporting to represent the
Southern Labor Union , told the employees in effect that they had a majority of the
employees signed up and were going to proceed to form a union . When Riddle
arrived for his expected meeting with the Union , he learned from employees that
the employees had rejected the Southern Labor Union . ( 5) On September 10, 1963,
employee Herbert Combs who had refused to sign a Southern Labor Union card
on September 9, 1963 , signed a Southern Labor Union card . Later that day,
Respondent 's President Riddle , in the presence of Foreman Harvey , told employee
Combs in effect that the Respondent might as well make Combs a mine commit-
teeman . When Combs replied that he did not want anything to do with it, Presi-
dent Riddle stated in effect that it looked like he would have to shut the mine down.
(6) On September 10, 1963, away from work , a number of employees signed
United Mine Workers union cards. (7) On September 11, 1963, Carter Hicks solic-
ited and obtained signatures of employees to United Mine Workers cards in the
presence of Foreman Harvey . ( 8) On September 14, 1963, apparently 16 of
Respondent 's employees attended a United Mine Workers union meeting. (9) On
Sunday, September 15, 1963, President Riddle was engaged in a discussion with
employee Sam Patrick and a man named Everage about the employees ' union activ-
ity with reference to the United Mine Workers and of Carter Hicks' actions in con-
nection therewith , and Riddle stated that he was going to lay off some men and
commenced to leave to look for Hicks . ( 10) On September 16, 1963, the Respond-
ent laid off a number of men, apparently 12 in number , and on September 17, 1963,
Respondent laid off at least 1 man. Some of the employees laid off were told that
the layoff was made because of dirty or rashy coal . ( 11) On the first several days
after the September 16, 1963 , layoff, Respondent recalled several of the laid-off
employees . Robinson , a coal loader who had worked on the left side of the mine,
was returned to work on the right side of the mine. Freeze and Combs, coal load-
ers, were recalled to work and placed to work on the same places that they had
been working. ( 12) Shortly after September 16, 1963 , laid-off employee Ritchie
complained to Riddle that his pay was $2 short; President Riddle angrily replied
that he went by his books . ( 13) On September 18, 1963, Respondent 's President
Riddle told employee Robinson , in effect , that before he could work under the
United Mine Workers that he would have to close the mine up. (14 ) On Septem-
ber 24 , 1963 , Respondent employed Gentry Patrick , an employee who had quit, as
a coal loader . ( 15) During the week of September 24-27, 1963, Respondent
recalled to work all of the laid -off employees not previously recalled , excepting
Ritchie, Hicks, and Prater. ( 16) Shortly after the recall of the employees during
the week of September 24 to 27, 1963 , President Riddle was asked by employee
Shepherd about whether he was going to recall Hicks and Ritchie . President Rid-
dle replied that he was not going to fool with any of them that he had laid off, that
he especially was not going to fool with Carter Hicks because he was a trouble-
maker . ( 17) On October 17, 1963, Respondent was served with charges filed by
Hicks, Prater , and Ritchie alleging in effect that Respondent had discriminatorily
fired or laid them off. (18 ) On October 24, 1963 , Respondent notified Hicks and
Ritchie to return to work. On this day Hicks and Ritchie told President Riddle in
effect that they would come back to work but could not report the next day. Hicks
asked Riddle if the National Labor Relations Board representative had been to see
him, and President Riddle told Hicks that the man from the "Labor Board" was
not running his job. ( 19) On October 29, 1963 , Hicks and Ritchie reported for
work and were told by Foreman Harvey in effect that Riddle had left word not to
use them , to send them home. After a discussion , Harvey sent word for instruc-
tions from President Riddle, and received a reply to use Ritchie but to send Hicks
home. A short time later, Riddle and Hicks met each other and Riddle told Hicks
that Hicks did not have a job. (20 ) Prater was recalled and returned to work on
November 22, 1963.
Considering the foregoing and all the evidence , it is clear that Respondent uti-
lized threats to shut the mine down as a means of encouraging employees to join or
assist the Southern Labor Union and as a means of dissuading employees from join-
ing or assisting the United Mine Workers. It is also clear that the Respondent knew
before the September 16, 1963 , layoff that its employees had rejected the Southern
Labor Union and that Carter Hicks and other employees were engaging in United
Mine Workers activity . The timing of the September 16, 1963 , layoff, closely fol-
lowing the employees union activities (United Mine Workers Union ) and in con-
nection with the foregoing , is (1) strongly persuasive that the Respondent laid
employees off on September 16, 1963, in retribution for their failure to support the
EXETER COAL COMPANY 1689
Southern Labor Union and for their support of the United Mine Workers union,
and (2 ) strongly persuasive that the September 16, 1963, layoff constituted a demon-
stration that the Respondent meant its threats.
Considering all of the evidence and (1) that all employees were returned to work
within 11 days after the layoff excepting Prater, Hicks, and Ritchie, (2) that Hicks
was clearly known to be an active United Mine Workers supporter, and (3) that
President Riddle stated , in answer to questions about the laid-off employees and
specifically about Ritchie and Hicks, that he was not going to recall the laid-off
employees, that Hicks was a troublemaker, the evidence is strongly persuasive that
Respondent attributed the employees' rejection of the Southern Labor Union and the
support of the United Mine Workers union to the union activity of Hicks, Prater, and
Ritchie. From the evidence and the foregoing, it is strongly persuasive that the
Respondent felt that as to most of the employees that a temporary layoff demonstrated
its threat to close the mine if the employees did not adhere to its suggested "union
adherence" and "nonadherence" policy, but that as to Prater, Hicks, and Ritchie that
the layoff amounted to a discharge.
A summation of Respondent 's asserted defense reveals that Respondent contended
that the September 16, 1963, layoff was because of dirty or rashy coal and a high ash
content in the coal , and that the laid-off employees had been recalled or had refused
to be recalled to work.
General Counsel witnesses credibly testified with respect to the question whether
rashy, dirty, or bad coal existed at the places where they were working. Shepherd
testified that he worked on the left of the mine and that there was no dirty coal
where he worked. Shepherd was not laid off. Rose did not testify to whether there
was bad coal or not but testified that he was not laid off on September 16, 1963.
Robinson testified to the effect that he was working on the left of the mine at the
time of the layoff, that there was no bad coal there, and that he returned to work
after the layoff to the right side of the mine. Freeze testified to the effect that there
was no bad coal where he was working , and again to the effect that he did not know
bad coal. Freeze testified further that he returned to work after the layoff to the
same place. This reveals that a bad coal condition did not exist at the place that
Freeze was working before the layoff. Combs testified to the effect that he returned
to work after the layoff to the same place he had been working before the layoff.
Ritchie testified to the effect that the mine had had bad coal conditions, that such
conditions were not present on September 16, 1963, as the operations had driven by
the condition , that there was sufficient area for the coal miners , 20 in number, to
continue mining. Prater testified to the effect that there was no dirty coal where he
was working on September 16, 1963, that he had encountered dirty coal over a week
before but had not worked in the area since. Hicks testified that there was no rashy
coal condition at the place that he was working on September 16, 1963. Shepherd
testified to the effect that employees were working on the right side of the mine at
the time of the layoff.
I found Shepherd , Robinson , Freeze, Rose, Combs , Ritchie, Prater, and Hicks to
all appear to be frank , forthright , and truthful witnesses . Their testimony with
respect to the rashy or dirty coal condition is not contradicted by evidence of specific
nature. President Riddle testified to the effect that the layoff was because of rashy
or dirty coal and a high ash content but his testimony was not specific otherwise.
Considering his (Riddle 's) testimony as a whole, his evasiveness as to his knowing
that Southern Labor Union men had visited him , in connection with all the evidence,
his furtive manner when testifying , I do not find his testimony reliable or trust-
worthy.23 Respondent's other evidence as to rashy or bad coal, as to ash content, or
as to impurities was not developed to the extent that it can be ascertained that it
pertains to the places that the employees were working on September 16, 1963.
General Counsel's rebuttal witness Clemons testified, however, to the effect that
Bruce Clemons and Carter Hicks had worked at a place where there was rashy coal
about a week before the layoff. From my observation of witnesses Shepherd, Robin-
son, Rose, Combs, Ritchie, Prater, and Hicks, and their testimony, I am convinced
that they knew what they were testifying about when they used the words dirty, rashy,
or bad coal, and that they are credible witnesses . I credit their testimony with regards
to the coal conditions.
211 note that in considering Riddle's testimony and the credibility thereof that I have
considered in respect thereto all of the evidence in the case touching upon the question
of rashy, dirty, or bad coal, including Lindon's testimony, the mine map, and Lindon's
engineering reports.
1690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As indicated previously, Respondent's President Riddle testified as an adverse wit-
ness for the General Counsel. Riddle testified briefly to the effect that the January 16,
1963, layoff was because of dirty or bad coal and a high ash content.24 Respondent's
main evidence in support of its defense consisted of testimony from witness Lindon,
a mine map, and engineering reports by Lindon. Lindon, a mining engineer, works
for Kentucky River Coal Corporation, and makes inspections of the mine for the
purpose of checking on royalty payments with reference to coal mined, and to keep
up with mining conditions. Lindon credibly testified to the effect that the mine map 25
introduced into evidence truly and correctly reflected the mine conditions at the mine.
Lindon testified that certain places where dates were indicated on the mine map repie-
sented where employees were working on such dates.
Lindon's testimony, as related to the mine map, reveals that in time sequence the
Respondent's employees commenced working at places toward the front of the mine
and on the "main heading" in 1962 and subsequent thereto proceeded to work pro-
gressively toward the back of the mine on places along the "main heading" and on
places branching off the "main heading" known as first and second right, first and
second left, and on a place off of "first right" off the "main heading."
Lindon's testimony, as related to the mine map, reveals that: (1) Respondent's
employees worked at the places between the front of the mine along the "main head-
ing" and before "first right off the main heading" on November 3 and December 2,
1962, and on January 9, 1963, and that the mine map shows notations of "rash"
along side the places the employees worked on November 3 and December 2, 1962.
(2) Respondent's employees worked at a place on "first left off the main heading"
on May 25, 1963.26 (3) Respondent's employees worked on a place on "first right
off of first right off the main heading" on June 5, 1963. (4) Respondent's employees
worked on two places on "first right off of first right off the main heading" on July 6,
1963. On the mine map nearby to one of the date notations with reference to July 6,
1963, is a notation of "rash." However, Lindon's testimony with reference to this
notation of "rash" keyed it to a date notation of November 20, 1963, which was next
to the "rash" notation also. (5) Respondent's employees worked on a place on
"second left off of the main heading" on September 14, 1963. (6) Respondent's
employees worked on a place on "first right off the main heading" on October 12,
1963. (7) Respondent's employees worked on a place on "first right off the main
heading" on October 12, 1963. (8) Respondent's employees worked on a place on
"second right off the main heading" on October 27, 1963. (9) Respondent's employ-
ees worked on two places on "first right off of first right off" on November 20, 1963,
and that notations of "rash" are indicated alongside the places where the employees
worked on November 20, 1963. (10) Respondent's employees worked on a place
on "first right off the main building" on November 20, 1963, and that a notation of
"rash" is indicated on the mine map next to the place where the employees worked
on November 20, 1963. (11) Respondent's employees worked on a place on "second
right off the main heading" on November 20, 1963. (12) Respondent's employees
worked on places on a "cross over" between "first and second right off the main
heading" on January 1 and 31 and February 6, 1964. (13) Respondents' employees
worked on places on "second right off the main heading" on January 31, 1964.
(14) Respondent's employees worked on several places-apparently "third right off
the main heading" on January 31, and on January 1, 1964. (15) Respondent's
employees worked at a place on "second left off the main heading" on January 31,
1964.
Lindon's testimony with respect to the pulling of steel or track out of an area
appeared confused. It is not clear whether he understood originally that the ques-
tions propounded to him was with reference to September 1963. His testimony on
direct examination appeared to be to the effect that the "steel" and "track" had been
pulled as of the time of his September 19, 1963.27 inspection. On cross-examination
his testimony revealed that he did not know the time of the September 16, 1963,
layoff and was not sure when the "track" or "steel" was pulled. The question in this
regard were with reference to "first right off of first right off the main heading."
24 As indicated previously I found Riddle's testimony in this regard unreliable and do
not credit it.
26 Respondent's Exhibit No 5.
26 Unless indicated specifically herein, the mine map contained no reference of "rash"
along the dates indicated on the mine map.
27 Apparently when the mine operator ceases operating in an area, and the use of
"steel" and "track" over which apparently coal is hauled is no longer necessary, he "pulls
the track and steel" for use elsewhere.
EXETER COAL COMPANY 1691
Noting that "rash" notations are at places dated November 20, 1963, on "First right
off of first right off the main heading" it does not appear likely that the "track" or
"steel" were pulled from the area prior to November 20, 1963.28
Lindon also testified to the fact that there could be several reasons for the "pulling
of steel and track." One would be that the coal in the area was not marketable, and
the other was that the employer could use the "steel and track" at another place for
more economical haulage of coal.
Although from Lindon's'testimony it is not established that the "steel" and "track"
was pulled around September 16, 1963, I am convinced that if the "steel and track"
were assumed to have been pulled, that the credited testimony of rebuttal witness
Clemmons refutes any inference that the reason for the pulling of the "steel" and
"track" was because of bad coal. Clemmons, a trackman, credibly testified to the
effect that around September 16, 1963, that Respondent had track in about 18 places,
and that in only 2 of the places, and about a week before the layoff, had the bad coal
condition been encountered. The evidence as a whole only reveals three such places,
and all being places that were not being worked on September 16, 1963. This does
not reveal a sufficient number of places of "bad coal" to require the "pulling of steel"
or "track" for the places of around 13 employees. In any event, as indicated previ-
ously, the dates noted on the mine map with reference to November 20, 1963, and
the "rash" notations thereby, reveal that employees worked in the area where
Respondent contends the track was "pulled" on November 20, 1963. Considering
all the foregoing I find that the "steel or track" were not "pulled" until after Novem-
ber 20, 1963.
Lindon's testimony, as related to an engineering report of May 17, was to the effect
that he had calculated "percentages" with regards certain apparent "samplings" made
on May 8, 1962, and that based on this he would evaluate the "coal" condition as bad.
From the reports it appears that the "samplings" were made at the points of inter-
section of cross entries with the "main headings." Considering all of the testimony
and the evidence, I do not find the report and the evidence otherwise sufficiently tied
up to determine that the "samplings" pertained to the areas where employees were
working in September 1963. Lindon's testimony, the results thereof, and my conclu-
sion thereto, with reference to his report of April 12, 1963, as to his inspection of
March 29, 1963, are substantially the same as with reference to his May 17, 1963,
report:
Lindon's August 16, 1963, report with reference to an inspection on August 7, 1963,
reveals some indication of crumbling coal apparently causing coal loaders to "gob
some loose coal." Lindon noted that he "did not notice any excessive amounts of
loose coal being gobbed." Lindon's report further revealed that:
First right cross entry has driven around the rashy coal condition which
existed for sometime. The rash was not present any where at the time of this
inspection. Places will be driven to right off of first right to feel out the extent
of rashy coal condition. First right cross entry was approximately 200 feet
from the Clark Pratt property line.
The above reference to feeling out the rashy coal condition, when considered
with the mine map, apparently refers to the "rash" condition noted with respect
to the places where "rash" was noted with respect to the working areas along the
"main heading." (Notations next to the working places of November 1962 and
December 1962.)
Considering Respondent's evidence as a whole, Lindon's testimony, the mine map
reflecting conditions, and the mining reports, the evidence does not reveal that
"rash" or dirty coal, or impurities existed at the places that employees were work-
ing on September 16, 1963 .29 I reject Respondent's defense that the September 16,
23 This reasoning would appear to hold true In regards to any of the places noted
by dates on the mine map.
2D Lindon , on cross -examination , appeared to contradict his testimony that the mine
map constituted a true and correct reflection of mine conditions in September 1963, by
stating that in effect that the "rash" notations on the map could not be placed for every
few feet. Lindon did not however testify or point out any "rash" places other than
the ones noted on the map. Although Lindon admitted that he did not know when
the September 16, 1963, layoff occurred and did not know where the employees were
working on that date, he theorized that the employees were working on "first right off the
main heading" at a point between two dates-July 6 and November 20, 1963. At the point
he indicated he thought the employees were working, he testified that there was no
notation of "rash" on the mine map.
1692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1963, layoff was because of bad, dirty, or rashy coal, a high ash content, or because
of any bad coal condition.so
As indicated previously the facts of this case reveal Respondent's utilization of
threats of mine shutdown and loss of job security as a means to encourage employ-
ees to join and assist the Southern Labor Union and to dissuade employees from
joining or assisting the United Mine Workers union; the occurrence of the Sep-
tember 16, 1963, layoff shortly after Respondent's knowledge of the employees'
rejection of the Southern Labor Union and commencement of United Mine Work-
ers union activity are strongly persuasive that the layoff constituted an executed
threat of reprisal. The evidence herein which reveals that the "bad coal" condition
did not exist to any appreciable degree on September 16, 1963, at the places that
employees were working, when considered with all the evidence, reveals that the
September 16, 1963, layoff, allegedly because of "bad coal" was a pretextuous and
discriminatory layoff as retribution to employees because of their rejection of the
Southern Labor Union and their support of the United Mine Workers. I am per-
suaded and also conclude and find as indicated previously that the evidence is
strongly persuasive that Respondent considered Prater, Hicks, and Ritchie as the
principal ones responsible for the rejection of the Southern Labor Union and the
support of the United Mine Workers union and intended not to recall these employ-
ees to work. This in effect constituted that the layoff of Prater, Hicks, and Ritchie
amounted to a discharge for discriminatory reasons in violation of Section 8(a)(1)
and (3) of the Act. I am persuaded to this effect and so conclude and find.
The Respondent, in his answer, with respect to Prater, Ritchie, and Hicks, averred
that "the third man found more suitable work elsewhere and refused to come back to
work." Since the evidence reveals that Prater and Ritchie were recalled and returned
to work, it is obvious that the Respondent's answer referred to Hicks.
A summary of the more critical facts reveals that: (1) on October 24, 1963,
Respondent did notify Hicks and Ritchie around 5 p.m., to return to work on
October 25, 1963; (2) this offer was approximately 1 month after the September 16,
1963, discriminatory layoff in which Hicks, Prater, and Ritchie were in effect dis-
criminatorily discharged; (3) Hicks, Prater, and Ritchie had filed charges with the
National Labor Relations Board on October 17, 1963; (4) Hicks and Ritchie sepa-
rately called Riddle on the telephone on the night of October 25, 1963, and had told
President Riddle that they would return to work but not the next day; (5) there is
no evidence that Riddle protested when Hicks and Ritchie told him they would return
but could not return the next day; (6) President Riddle became angry when Hicks
asked him, at the time of Hicks' call relating to coming back to work, about whether
the National Labor Relations Board man had contacted him; (7) Respondent believed
Hicks, Prater, and Ritchie to be the principal ones responsible for the rejection of the
Southern Labor Union and the support of the United Mine Workers Union; (8)
Respondent had utilized and executed threats relating to job security to encourage
support of the Southern Labor Union and to dissuade support of the United Mine
Workers union ; (9) Hicks and Ritchie reported to work on October 29, 1963, and
Foreman Harvey informed them that President Riddle had instructed him not to hire
them; (10) Hicks and Ritchie persuaded Harvey to seek instructions from President
Riddle; (11) Riddle reconsidered and directed that Ritchie be employed and Hicks
be sent home; and (12) Riddle, late on the same day, told Hicks that he had no job.
The evidence does not reveal that Hicks refused to come back to work because he
had found more suitable employment. Hicks on October 24, 1963, told Riddle,
without protest, that he would return but not on Friday. On Tuesday, October 29,
1963, after a lapse of only 2 working days (October 25 and 28, 1963) Hicks reported
for work. In the meantime Hicks had contacted a lawyer for legal advice as to what
he should do in view of the unfair labor practice charges. This small lapse of time,
under the circumstances and for the reasons set forth, does not constitute an unreason-
able delay. Respondent, having discriminatorily laid off and discharged Hicks on
September 16, 1963, could not reasonably expect that Hicks would not have some
problems which would prevent his returning to work on such short notice. It appears
that President Riddle recognized this and therefore did not protest when Hicks and
Ritchie on October 24, 1963, told Riddle that they would return but not the next day.
s0I am convinced that if such bad coal conditions existed on September 16, 1963, that
Respondent would have reported the same to Lindon, that Lindon's September 19, 1963,
mining report would have specifically referred to the problem, and that the mine map
would have been posted accordingly. In evaluating and considering all of the issues in
this case, I have, in all instances, considered the logical consistency of all the evidence.
EXETER COAL COMPANY 1693
From all the facts set forth, I am convinced that Respondent, upon being apprised
by Hicks and Ritchie that they would return but could not return the next day, con-
sidered his offer of recall to work to Ritchie and Hicks to be extended for a reasonable
period of time and that Hicks and Ritchie so considered the offer.31 I am also con-
vinced that the facts reveal that President Riddle, on October 24, 1963, became angry
about the mention of the National Labor Relations Board man and relapsed into his
original intent to discriminate against Ritchie and Hicks. Respondent decided to
revoke his reinstatement offer to Ritchie and Hicks and instructed his foreman not to
hire Hicks and Ritchie. I am also convinced that the evidence reveals that when
Hicks and Ritchie reported to work on October 29, 1963, and persuaded Foreman
Harvey to inform President Riddle of their return that President Riddle again con-
sidered the reemployment of Hicks and Riddle but decided against the reemployment
of Hicks because of Riddle's strong feelings, "especially" against Hicks 32
Considering all the foregoing and all the evidence, I am convinced that Respondent
did not extend a reasonable and bona fide offer of reinstatement to Hicks, and I reject
any contention by Respondent to the effect that reinstatement and a full backpay
remedy is not appropriate for the remedying of the unfair labor practices engaged in
against Hicks.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relationship to trade, traffic, and commerce upon the
several States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, it will be
recommended that Respondent cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent violated Section 8(a)(3) and (1) of the Act by
the discriminatory layoff and discharges of William Prater, Jr., Odis Ritchie, and
Carter Hicks, and that Respondent has not reinstated Hicks but has reinstated Prater
and Ritchie, it is recommended that Respondent offer to Carter Hicks immediate and
full reinstatement to his former or substantially equivalent position, without prejudice
to his seniority and other rights and privileges, and make whole William Prater, Jr.,
Odis Ritchie, and Carter Hicks for any loss of earnings they may have suffered by
reason of such discrimination by payment to each a sum of money equal to that which
they normally would have earned as wages from the date of their layoff and discharge
to the date that Prater and Ritchie were reinstated and to the date that Hicks is or has
been offered reinstatement consistent with or in accordance with the recommendations
of this case, which ever applicable, less their net earnings during said period, with
31 Although the facts reveal, as indicated, that President Riddle's offer of "recall" was
extended for a reasonable period of time, I note the Board decisions in United States Air
Conditioning Corporation, 141 NLRB 1278, Eastern Die Company, 142 NLRB 601, and
White Sulphur Springs Company, 136 NLRB 375, and the District of Columbia Circuit
Court of Appeals decision in White Sulphur Springs Co. v. N.L.R.B., 316 F. 2d 410. As
I read the White Sulphur Springs Company case, 136 NLRB 375, the reinstatement offer
must be one extending a reasonable period of time for acceptance The District of
Columbia Circuit Court of Appeals in the White Sulphur Springs Company case reversed
the Board upon this point. The Board however, in the United States Air Conditioning
Corporation case (141 NLRB 1278), appears to have followed the reasoning of the Board's
decision in White Sulphur Springs Company, 136 NLRB 375, and it is noted that the
United States Air Conditioning Corporation case, in time, followed the issuance of the
District Court of Columbia Circuit Court of Appeals decision in the White Sulphur
Spring Company case. In any event it would appear that all of the facts may be con-
sidered in determining whether an offer, apparently good on its face, Is token or other-
wise not one in good faith. From all the evidence in the case and the clear hostility
that Respondent evidenced toward Hicks because of his union activity, it is extremely
suspicious as to whether Respondent intended to recall Hicks to work on an extended
permanent basis, or whether Respondent intended to recall Hicks until a pretextuous
reason could be found to get rid of Hicks
33 Elsewhere the facts reveal that President Riddle had special strong feelings toward
the recall of Hicks. I find from the evidence as a whole that the reason for this strong
feeling of hostility was Respondent's knowledge of Hicks' union activity.
1694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
backpay computed on a quarterly basis in the manner established by the Board in
F. W. Woolworth Company, 90 NLRB 289, 294, and with interest thereon as
prescribed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716.
As the unfair labor practices committed by the Respondent were of a character
which go to the very heart of the Act, it is recommended that the Respondent cease
and desist therefrom and cease and desist from infringing in any other manner upon
the rights of employees guaranteed by Section 7 of the Act.
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. United Mine Workers of America is and has been, at all times material herein, a
labor organization as defined in Section 2(5) of the Act.
2. Southern Labor Union is and has been, at all times material herein, a labor
organization as defined in Section 2(5) of the Act.
3. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
4. By interfering with, restraining, and coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act.
5. By discriminating in regard to the hire and tenure of employment of employees
thereby discouraging membership in or'activities on behalf of a labor organization,
Respondent has engaged in unfair labor practices within the meaning of Section 8(a)
(3) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER 33
Upon the basis of the foregoing findings of fact and conclusions of law and the
entire record in this case, and pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, it is recommended that Respondent, Exeter Coal Company,
Carrie, Kentucky, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in or activities on behalf of United Mine Workers
of America, or in any other labor organization of its employees, by discharging, laying
off, or otherwise discriminating in regard to the hire or tenure of employment or any
terms or condition of employment of any of its employees.
(b) Interrogating its employees concerning theirs or other employees' union affilia-
tion or activities, or protected concerted activities, in a' manner constituting inter-
ference, restraint, or coercion in violation of Section 8(a)(1) of the Act.
(c) Threatening employees with the closing of the mine, discharge, loss of job, or
other reprisals as a means of urging and coercing employees to join, support, or assist
the Southern Labor Union or any other labor organization, or as a means to dissuade
their support of, or because of employees activities on behalf of, United Mine Workers
of America or any other labor organization.
(d) In any other manner interfering with, restraining, or coercing its employees in
the exercise of their right to self-organization, to form labor organizations, to join or
assist United Mine Workers of America, or any other labor organizations, to bargain
collectively through representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or other mutual aid and
protection, or to refrain from any or all such activities, except to the extent that such
rights may be affected by an agreement requiring membership in a labor organization
as a condition of employment as authorized in Section 8(a) (3) of the Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action designed to effectuate the policies of the
Act:
33 In the event that this Recommended Order is adopted by the Board, the word "Order"
shall be deemed substituted for the words "Recommended Order". Additionally there
shall be deemed substituted for the first paragraph of the Recommended Order the fol-
lowing paragraph:
Upon the entire record in these cases, and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, the National Labor Relations Board hereby orders
that Respondent, Exeter Coal Company, Carrie, Kentucky, its officers, agents, succes-
sors, and assigns, shall:
EXETER COAL COMPANY 1695
(a) Offer to Carter Hicks immediate and full reinstatement` to his former or sub-
stantially equivalent position, without prejudice to his seniority and other rights and
privileges.
(b) Notify Carter Hicks if presently serving in the Armed Forces of the United
States of his right 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 William Prater, Jr., Odis Ritchie, and Carter Hicks for any
loss of pay they may have suffered by reason of the discrimination against them by
payment to each of a sum of money equal to the amount they normally would have
earned as wages from the date of their layoff and discharge to the date of the
Respondent's offers of reinstatement in the manner set forth in the section entitled
"The Remedy."
_(d) Preserve and, upon request, make available to the Board and its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records relevant or necessary to
the determination of the amount of backpay due and to the reinstatement and related
rights provided under the terms of this Recommended Order.
(e) Post at its premises in Carrie, Kentucky, copies of the attached notice marked
"Appendix." 34 Copies of said notice, to be furnished by the Regional Director for
Region 9,' shall, after being signed by the Respondent's representative, be posted by
Respondent immediately upon receipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 9, in writing, within 20 days from the
date of this Decision, what steps the Respondent has taken to comply herewith.35
31 In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "a 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".
351n the event that 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 the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL offer Carter Hicks immediate and full reinstatement to his former
or substantially equivalent position, without prejudice to his seniority or other
rights and privileges.
WE WILL make whole William Prater, Jr., Odis Ritchie, and Carter Hicks for
any loss of pay they may have suffered by reason of the discrimination against
them.
WE WILL NOT discourage membership in or activities on behalf of United Mine
Workers of America, or in any other labor organization of its employees, by
discharging, laying off, or otherwise discriminating in regard to the hire or tenure
of employment or any terms or conditions of employment of any of its employees.
WE WILL NOT interrogate our'employees concerning theirs or other employees'
union affiliation or activities, or protected concerted activities, in a manner con-
stituting interference, restraint, or coercion in violation of Section 8 (a)( I) of
the Act.
WE WILL NOT threaten employees with the closing of the mine, discharge, loss
of job, or other reprisals, as a means of urging and coercing employees to join,
support, or assist Southern Labor Union or any other labor organization, or as a
means to dissuade their support of, or because of employees activity on behalf of,
United Mine Workers of America or any other labor organization.
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 labor organi-
zations, to join or assist United Mine Workers of America, or any other labor
1696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organizations , to bargain collectively through representatives of their own choos-
ing, and to engage in other concerted activities for the purpose of collective bar-
gaining or other mutual aid and protection , or to refrain from any or all such
activities , except to the extent that such rights may be affected by an agreement
requiring membership in a labor organization as a condition of employment as
authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
All of our employees are free to become or remain , or to refrain from becoming
or remaining , members of United Mine Workers of America , or any other labor
organization.
EXETER COAL COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
NOTE.-We will notify Carter Hicks if presently serving in the Armed Forces of
the United States of his right 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.
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, Room
2023 , Federal Office Building, 550 Main Street , Cincinnati, Ohio, Telephone No. 381-
2200, if they have any questions concerning this notice or compliance with its
provisions.
Elsa Canning Company and Amalgamated Meat Cutters and
Butcher Workmen of North America , AFL-CIO, and Interna-
tional Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America , General Drivers Local Union 657.
Cases Nos. 23-CA-1768 and 23-CA-1851.1 September 27,1965
DECISION AND ORDER
On May 7, 1965, Trial Examiner John P. von Rohr issued his Deci-
sion in the above-entitled proceeding, finding that Respondent had
engaged in and was engaging in certain unfair labor practices within
the meaning of the National Labor Relations Act, as amended, and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion . Thereafter, the Respondent, the General Counsel, and the Charg-
ing Unions filed exceptions to the Descision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Jenkins and Zagoria].
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
1 Elam Canning Company, Case No. 23-RC-2190, which had been consolidated with
the above cases for hearing, was closed by a Board Order at the request of the Joint
Petitioners after the issuance of the Trial Examiner 's Decision . It is therefore unnec-
essary to consider the Trial Examiner 's recommendation that the election held pursuant
to that proceeding be set aside and a second election be directed.
154 NLRB No. 139.