Garrison Coal Co., Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1965

154 N.L.R.B. 794 (N.L.R.B. 1965)

794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reflecting that the Union did not cause the Company to engage in unlawful dis-
crimination . Notwithstanding its position , I find no violation was committed by the
Company. Accordingly, the entire complaint will be dismissed.
Upon the foregoing findings of fact, and upon the entire record in the cases, I
make the following:
CONCLUSIONS OF LAW
1. Respondent Company is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Respondent Union is a labor organization within the meaning of the Act.
3. The allegations of the complaint that Respondent Union has engaged in unfair
labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act
have not been supported by substantial evidence.
4. The allegations of the complaint that Respondent Company has engaged in
unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act
have not been supported by substantial evidence.
RECOMMENDED ORDER
It is recommended that the complaint be dismissed in its entirety.
Garrison Coal Co., Inc. and Carl Roy Skeens and Donald Wil-
liams and Local No. 50, Reform Mine Workers Union, Party to
the Contract . Case No. 9-CA-3391. August 27, 1965
DECISION AND ORDER
On May 28, 1965, Trial Examiner John F. Funke issued his
Decision in the above-entitled proceeding, finding that Respondent
had not engaged in and was not engaging in certain unfair labor
practices as alleged in the complaint, and recommending that the
complaint be dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General Counsel filed
exceptions to the Trial Examiner's Decision together with a support-
ing brief and the Respondent filed an answering brief in support of
the 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 case to a three-member
panel [Members Fanning, Brown, 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
Examiner's Decision, the exceptions, and the entire record in the case,
and hereby adopts the Trial Examiner's findings, conclusions, and
recommendations.'
'We find no merit In the General Counsel's contention that the Trial Examiner's
credibility findings should be rejected , as the clear preponderance of all the relevant
evidence does not convince us that the credibility findings are erroneous . Standard
Drywall Products , Inc, 91 NLRB 544, enfd. 188 F. 2d 362 ( CA. 3).
154 NLRB No. 65.
GARRISON COAL CO., INC., ET AL.
ORDER
795
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, and orders
that the complaint be, and it hereby is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed November 25, 1964, by Carl Roy Skeens and an amended
charge filed December 11, 1964, by Carl Roy Skeens and Don Williams against
Garrison Coal Co, Inc., herein Garrison or the Respondent, the General Counsel
issued a complaint alleging Respondent violated Section 8(a)(1) and (3) of the
Act. The answer of Respondent denied the commission of any unfair labor practices.
This proceeding, with the General Counsel, the Respondent and the Charging
Parties represented, was heard by Trial Examiner John F. Funke at Charleston, West
Virginia, on March 31, 1965. At the conclusion of the hearing the parties were
given leave to file briefs and a brief was received from counsel for the Respondent
on May 5.
Upon the entire record in this proceeding and from my observation of the wit-
nesses, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondents admits and I find that it is a West Virginia corporation engaged in
mining coal and that it sells coal valued in excess of $50,000 annually in places
outside the State of West Virginia. Respondent is engaged in commerce within
the meaning of the Act.
II. THE LABOR ORGANIZATION
Local No. 50, Reform Mine Workers Union, Logan, West Virginia; Local No.
50, Reform Mine Workers Union, Garrison, West Virginia, herein referred to as
Reform Mine Workers, and District 17, United Mine Workers of America, herein
the UMW or District 17, are labor organizations within the meaning of the Act.
III. THE ALLEGED UNFAIR PRACTICES
A. Background
This case is not free from confusion and in an effort to clarify the testimony a
brief summary of the background may be helpful. First I believe the participants
should be identified somewhat in the form of a dramatis personae. The principals
in this proceeding are:
Name Occupation
Ellis, Joe_____________ Representative, District 17, UMW.
Stidham, Jerry________ International Representative, UMW, assigned to Dis-
trict 17.
Bullock , Quentin G____ President and owner , Garrison Coal Co., Inc. (Presi-
dent and owner, Dorothy Coal Co.)
Wiseman, Gordon----- Mine superintendent, Garrison, during 1964. (Em-
ployed by Ranger Fuel Corp. since March 1, 1965.)
Cummings, Roger W__ Mine foreman, Garrison, until December 31, 1964.
(Employed by Hambrick Coal Co. since January 1,
1965 )
Skeens, Cliff ord------- Employee, Garrison.
Skeens, Carl Roy______ Employee, Garrison, laid off November 6, 1964. Al-
leged 8(a)(3).
Williams, Don________ Employee, Garrison, laid off November 6, 1964. Re-
hired January 14, 1965. Alleged 8(a)(3).
Elkins, Fred__________ Representative, Reform Mine Workers. Representa-
tive, Southern Labor Union.
Williams, Leroy_______ President, Local 50, Reform Mine Workers, and em-
ployee, Garrison.
Lynch, Herman _______ Secretary-treasurer , Local 50, Reform Mine Workers,
and employee Garrison.
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Quentin G. Bullock testified that Dorothy Coal Company, which leased a mining
strip to Garrison and Ebony Coal Company (Ebony was not controlled by Bullock),
had had a contract with the UMW which had terminated in 1960. On October 2,
1963, Bullock signed a 3-year collective-bargaining agreement with Local 50,
Reform Mine Workers Union, on behalf of Dorothy Coal Company, Inc., and Seng
Creek Operators Association. The signatories to this contract appear as follows:
APPROVED:
REFORM MINE WORKERS UNION
By Charles S. Taylor ( Signed)
President
APPROVED:
DOROTHY COAL COMPANY, INC.
By Quentin G. Bullock ( Signed)
President
APPROVED:
EBONY COAL CO., INC.
By Louis D. Shafer (Signed)
President
REFORM MINE WORKERS
UNION
Local Union No, 50
By Leroy Williams (Signed)
President
SENG CREEK OPERATORS
ASSOCIATION
(Operator)
By: Quentin G. Bullock (Signed)
(Signature)
By: Pres.
(Title)
Although Garrison is not a party to this contract i on its face it was introduced
into evidence by the General Counsel (General Counsel's Exhibit No. 2) as the con-
tract between the Reform Mine Workers and Garrison. Although there is no
explanation on the record for the fact that Garrison was not a signatory to the con-
tract, it was treated by the parties as a valid contract between Garrison and the
Reform Mine Workers.z Bullock testified that Garrison had become dormant in
1960 but that he had reactivated it in March 1963, and that sometime thereafter a
committee of employees identified as Taylor, McCoy, and Phillips, came to him
and told him the employees of Garrison had signed cards expressing their desire
to be represented by the Reform Mine Workers. Sometime thereafter the contract
was executed. It is against this background that Respondent's conduct and the
evidence must be measured.
B. The issues
Because the testimony in this case does not make clear exactly what violations
the General Counsel claims and because no brief has been submitted by the Gen-
eral Counsel indicating the evidence upon which he relies to support his complaint,
the issues will be summarized briefly-
(1) Did Gordon Wiseman threaten an employee that the plant would close if
the employees selected the UMW as their representative?
(2) Did Respondent coerce its employees to form their own labor organization?
(3) Did Respondent force employees to keep in effect the contract between
Garrison and Reform Mine Workers after Respondent knew said labor organization
was defunct?
(4) Did it require all new employees to join the Reform Mine Workers?
(5) Did Respondent discharge Carl Roy Skeens and Don Williams because of
their activities on behalf of the UMW?
It will be noted that paragraphs (2), (3), and (4) above suggest aid and assistance
on the part of Respondent to the UMW, yet the complaint does not allege any vio-
lation of Section 8(a)(2). The attorney for the General Counsel did indicate
during the hearing that he would request an 8(a)(2) order as a remedy for the
8(a)(1) violation but did not indicate the theory supporting such a request nor
why 8(a)(2) was not alleged.
1 "Appendix A," dated the same day, was signed in the same form by the same parties
and was introduced as part of General Counsel's Exhibit No 2.
8 The unit description of inclusions in the contract reads:
Included: All inside and outside production and maintenance employees of the
Operator at its coal mining operations located at its Garrison , W. Va, coal tipple
and coal mine.
The record also indicates, for whatever it is worth , that Garrison operated the Seng
Creek mine.
GARRISON COAL CO., INC., ET AL. 797
C. The evidence
1. The testimony of the UMW representatives
Joe Ellis and Jerry Stidham testified that they first attempted to organize the
employees of Garrison on July 21, 1964.3 (Another representative of the UMW,
Galati, was with them .) They parked across from the Garrison tipple and waited
for the emloyees to quit work. Wiseman was present at the site and as it grew
dark Ellis asked Wiseman if they could talk to the employees and Wiseman said
he would see. Later Wiseman gave permission and they met with the employees
on company property . They also met Fred Elkins, representative of the Reform
Mine Workers, who told them it had disbanded and that he was out of a job.*
On or about October 30 Stidham returned to Garrison and had a brief conversation
with Carl Roy Skeens who told him the employees were "disgusted" and "ready."
As a result of this conversation with Skeens, Ellis and Stidham returned to Garrison
on November 5. They met with Carl Skeens, Clifford Skeens, Herman Lynch,
Leonard Ward, Herbie Honaker, Don Williams, and "Frog" Smith on a road above
the tipple and passed out authorization cards to them.5 While they were so engaged
Roger Cummings drove down the road, passing through the groups At the con-
clusion of this meeting another meeting was set up for the next day at 3:30 p.m.,
when the other employees would be present. The meeting was to be held at a small
church but only Carl Skeens, Clifford Skeens, and Don Williams appeared and
Carl Skeens and Williams reported that they had been fired. Clifford told them
he knew he was fired although he had not reported for work that morning (Clifford
was not fired). This was the last effort made by the UMW to organize the
employees of Garrison.
2. The testimony of the employees
Herman Lynch testified that he became secretary-treasurer of the Reform Mine
Workers when the contract was signed on October 2, 1963. The national president
of the Union was Bob Phillips, a lawyer in Logan, West Virginia. In July of 1964
Lynch called Phillips who told him his law practice was so urgent he did not have
time to come to Garrison but asked Lynch and the district president to come to
Logan where he offered Lynch the presidency of the National, an offer Lynch
refused. Whatever the problem Lynch presented, Phillips sent Fred Elkins over to
Garrison the same month and Elkins told the employees that the Reform Mine
Workers had been dissolved and that he represented the Southern Labor Union.
The next day Lynch was informed by another employee, Herbie Honaker, that
Bullock had torn up the contract with the Reform Mine Workers and that the
employees were on strike. The employees then met and appointed a committee
consisting of Leonard Ward, Leroy Williams and Lynch to deal with Bullock. Wise-
man was asked to contact Bullock and the next day, July 21, Bullock came to the
mine.7 Informed by the committee that he had torn up the contract, that Elkins was
now representing the Southern Labor Union and that the Reform Mine Workers had
been dissolved, Bullock replied that the Reform Mine Workers still had a contract
with Garrison and that the employees should get together and decide what they
wanted to do. The committee then went back to the tipple and the employees
decided to continue with the Reform Mine Workers. On July 21 a letter signed by
Leroy Williams and Lynch was sent to Bullock advising him of the employees'
decision . (Respondent's Exhibit No. 1). Lynch stated the Reform Mine Workers
held no meetings after November 4.
Clifford Skeens testified that he was a member of the group addressed by Ellis
and Stidham at the mine on November 5 and that he signed a card for the UMW
on that day. He did not report for work the next day because he "lust figured after
signing the card I was cut off." The next day he was one of three employees (his
brother and Don Williams were the others) who met with the UMW representatives
at the church. Ellis told him to report for work and the following day he saw
3 Unless otherwise noted, all dates refer to 1964
* This testimony was accepted subject to connection by testimony which was not hear-
say as to Respondent . Elkins did not testify and it was not connected.
6 Only the two, Skeens and Williams, signed the cards.
6 Stidham did not claim that Cummings could tell which employees had signed cards
and which had not All of the group had cards in their hands.
7 This was the same day that Ellis and Stidham appeared at the mine and were given
permission to speak to the men. Bullock described the scene on that day as looking
like a union convention.
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wiseman, asked him if he was cut off or fired and was told he was not. The follow-
ing day, a Sunday, he met Wiseman who suggested that he wait for a few days and
then report back and he was given a job.8
Carl Roy Skeens testified that he was present at the mine on July 21, listened
to Elkins and also to Ellis and Stidham and that about the time the employees voted
to stay with the Reform Mine Workers he walked out to Cummings and Wiseman,
told them the men were confused and that Wiseman told him, ". . . if we sign up
with them fellows there, we won't run here no more." Skeens later indicated that
Wiseman meant the UMW by "them fellows." Wiseman denies making any such
remark and I credit him. Skeens was a witness who, as the record indicates, was
both biased and prejudiced against the company and his testimony suffered from
this taint. Wiseman was a credible witness no longer employed by Garrison and
free from any suggestion of self-interest. Further, there is no other evidence in
the entire record to establish that the officers or supervisors of Garrison favored
either union.
With respect to his discharge Skeens testified that he was first employed by Garri-
son in March 1964, and that he ran a tractor, helped on a machine, ran a loader,
and "done everything." After about 30 days he was laid off "legally" in a reduction
in force. Skeens was rehired on a date fixed by his counsel as July 9. (Skeens'
-testimony, which is so confusing as to be almost worthless, would indicate the date
was July 21, the date Bullock came to the mine following the strike and the date
that Ellis and Stidham first appeared.) On a date which Skeens was unable to fix
but which Stidham fixed as about October 30 Skeens had a talk with Stidham on
which he told him that the men were dissatisfied and things were in an "uproar."
On November 5 Skeens signed a card for the UMW under the circumstances previ-
ously established by Stidham. On the next day he went to the mine and told
Wiseman that he could not work, that his wife had had her teeth pulled and that he
was going to get his mother to stay with her. Wiseman told her he was cut off 9
because Garrison had lost its lake order. Skeens then went to see Leroy Williams
who told him nothing. Skeens then apparently went to the mine office where Wise-
man was telling Lynch that he had been bumped by Wilson and that Lynch would
have to oump Don Williams. Skeens testified:
I was awfully mad, I said, "Well," I said "before you're bumping,
Gordon," I said, "you-all can bump me all the time you owe me." I said, "The
time-and-a-half."
Skeens then accused Wiseman of cheating him of 2 hours on the previous Saturday
and Wiseman told him the cutoff might be for only a few days and Skeens (using
one word he did not want to repeat in the hearing) told Wiseman he did not want
his job back and left. Skeens testified that about 2 weeks later a new employee, Bill
Haggen, was hired to operate the tractor which he had been operating when laid off.
Don Williams testified that he was first employed as a machine worker by Garri-
son in September 1964. After working 10 shifts he was laid off together with 4
other employees, Herman Lynch, Homer Wilson, Everett Kelly, and Theodore
Johnson. In the middle of October he returned to work as a driller. Between that
date and the date of his next layoff, November 6, he did not join the Reform Mine
Workers and was not asked to join. He did sign a card for the UMW on November 5
at the meeting held by Ellis and Stidham at the mine. On November 6 he was
laid off and Homer Wilson was hired in his place. Wilson claimed the right to
"bump" Lynch off his job and Lynch, in turn, bumped Williams. Williams admitted
that he was the junior employee and that Lynch had seniority over him. Williams
was reemployed January 14.
3. Respondent's witnesses
Quentin G. Bullock, a credible witness, testified that he was not informed in July
that the Reform Workers had either disbanded or dissolved. He made his trip
to the Garrison mine after having been informed by Lynch by telephone that the
men were on strike. When he arrived at the mine he was informed by Elkins that
the Southern Labor Union had "purchased the Reform Mine Workers." Bullock's
reply was that he had a contract with the Reform Mine Workers and that he would
continue to honor it. He then talked with the committee, Lynch, Williams, and
8Wiseman's reason for suggesting delay was grounded on possible difficulties Skeens
might have with the employees who had remained loyal to the Reform Mine Workers,
not on company objections.
9 Mine terminology for laid off.
GARRISON COAL CO., INC., ET AL. 799
Ward, told them he had not torn up the bargaining contract and that Elkins was
on the property and that representatives of the UMW were at the bottom of the
hill and for the employees to make up their minds what they wanted to do and advise
him in writing. He subsequently received Respondent's Exhibit No. 1. After that,
according to his testimony, he complied with the terms of the contract and was
still complying with them at the time of the hearing. There is no evidence, apart
from the signing of three UMW cards on November 4, of dissidence in the mem-
bership of the Reform Mine Workers, although there is evidence (Lynch's testimony,
supra) that it held no meetings after November 4. There is no evidence that
Bullock knew of this until the hearing.
With respect to the cutoff on November 6, Bullock testified that Garrison would
cease shipping lake orders between the 1st and 15th of November and that in
October he told Wiseman not to replace any employees who might quit. Skeens
and Williams were selected for cutoff on November 6 by Wiseman, not by Bullock.
Roger Cummings testified that he saw the group of employees including Skeens
and Williams talking with Ellis on the Company's property on November 5. He
reported this meeting to Wiseman. Later (Cummings' testimony is not clear but it
was apparently November 5 or 6) he had a telephone conversation with Wiseman
in which Wiseman told him that the men were having a meeting with the UMW
workers and that he understood some had signed with the UMW and, upon being
refreshed by his pretrial affidavit, admitted that Wiseman said he had been informed
by Len Ward that Carl Skeens had signed and that Skeens had "got them" to come
to the meeting with Ellis.
Cummings testified that Carl Skeens was laid off after discussion between Wise-
man and himself because he was the junior tractor operator and Garrison was
operating only three tractors. His version of the conversation between Wiseman
and Skeens at the time Skeens was notified of this cutoff does not differ substantially
from that of Skeens and Wiseman.
Gordon Wiseman testified that in November he received instructions to cut
expenses and that during that month Don Williams was bumped by Lynch who
had been bumped by Homer Wilson. Wiseman stated that he attempted to rehire
Williams prior to January 14, sent Harry Staglers to his house but Williams was not
at home and he then hired Azel Thompson. He stated that he did not learn that
Williams had signed a card until a day or two after he had been bumped.
Wiseman testified that Carl Skeens came to the office on November 6, told him
he could not work and that he then told Skeens he would be off for a few days until
orders picked up. Twenty minutes later Skeens told him, in front of other men, that
he had been laid off because he had signed a UMW card and that if he needed a
man "don't come after me because I don't want to work there any more." Wise-
man's reason for selecting Skeens for discharge was that one of the four tractors
was not working and Skeens was the junior tractor operator.
Conclusions
Having credited Wiseman's denial that he threatened Skeens with a shutdown
of the mine if the employees selected the UMW as their bargaining representative
and as this is the only such allegation in the record, it will be recommended that
paragraph 5 of the complaint be dismissed.
With respect to paragraph 6 of the complaint several times during the hearing I
asked the General Counsel the purpose of certain evidence presumably offered in
support of the paragraph and his theory of the violation of the Act set forth
therem. The General Counsel's reply was that he was, in effect, seeking an 8(a) (2)
remedy under an 8(a)(1) allegation and would set forth his theory in his brief.
Since the General Counsel submitted no brief it must be assumed that he, like
me, could not find a theory to sustain the allegations nor a violation.
There is no evidence that Garrison forced its employees to form their own labor
organization. The uncontradicted testimony is that Bullock, confronted with proof
that one hundred percent of Garrison's employees had joined the Reform Mine
Workers in October 1962, recognized it and signed a 3-year contract with it, thus
conforming to his obligation under the Act.
As to paragraph 6(b) there is no evidence to show that Bullock knew that the
Reform Mine Workers had ceased to exist.1° To the contrary, after telling his
employees to make their own decision between the two unions, he was advised in
writing on July 21 that they wished to remain with the Reform Mine Workers.
101t is true that Elkins told Bullock on July 21 that the Reform Mine Workers had
been sold to the Southern Labor Union but it was after this that he received the letter
from the employees stating they wished to remain with the Reform Mine Workers and
not with either the United Mine Workers or the Southern Labor Union.
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There is no evidence that any employee was required to join the Reform Mine
Workers (Garrison) as alleged in paragraph 6(c). Again to the contrary, the only
"new" employee who testified, Don Williams, testified that no one asked him to
join the Reform Mine Workers between September and November.
The evidence to support paragraph 6 is not minimal , it is nonexistent.
Paragraph 8 alleges that Carl Skeens and Don Williams were discharged because
of their activities on behalf of and sympathy for UMW. Neither, as a matter of
fact, was discharged. Williams, as he admitted, was bumped from his job on
November 6 in accord with the seniority provisions of the bargaining agreement.
He was rehired January 14 and would have been rehired before that date if he had
been at home when he was sent for by Wiseman.
Skeens was told by Wiseman when he was laid off that it would be for a few
days or a week and indignantly told Wiseman that he did not want to work for
Garrison again . Under this circumstance I cannot find that Respondent was under
any obligation to offer him reemployment unless his union activity was the cause
of his discharge.
The General Counsel presumably relies, and again I must make an assumption
of his theory, on the fact that Skeens and Williams signed cards with UMW on
November 5 and were laid off on the following day to establish an inference of
discriminatory motive. The timing does create suspicion, of course, but I do not
think that post hoc ergo propter hoc rationale is sufficient in itself to substitute for
proof. I find no other factor to support a finding of discrimination. Respondent,
through Bullock, had indicated an indifference toward union designation by the
employees on July 21, and there was no evidence of any change in Respondent's
attitude after that date. Respondent, if it knew of the signing of cards by the
two Skeens and Williams on the previous day, would also have known that they
were the only three to sign and the majority of the employees had rejected the
UMW. Thus there was no threat of representation by the UMW and no action was.
called for to thwart such a move. This does not, of course, preclude the possibility
that Respondent took such action precipitately and without deliberation of its.
necessity. But this requires overlooking the testimony, which I credit, that both lay-
offs were occasioned by factors which were not discriminatory and both were
intended to be of temporary duration. In the absence of other unfair labor practices
and of any display of hostility toward the UMW (the UMW representatives were
given permission to talk to the employees on company property) the timing of the.
layoffs does not establish that the motive was discriminatory.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of the,
Act.
2. Local 50, Reform Mine Workers Union, Logan, West Virginia; Local 50,
Reform Mine Workers Union, Garrison, West Virginia, District 17, United Mine
Workers, are labor organizations within the meaning of the Act.
3. Respondent has not engaged in unfair labor practices within the meaning of
Section 8(a)(1) and (3) of the Act.
RECOMMENDED ORDER
It is recommended that the complaint be dismissed in its entirety.
T. J. Fleming Company and District Lodge 71, International
Association of Machinists, AFL-CIO. Case No. 17-CA-556,
August 30,1965
DECISION AND ORDER
On June 8,1965, Trial Examiner W. Edwin Youngblood issued his
Decision in the above-entitled proceeding , finding that Respondent
had engaged in certain unfair labor practices within the meaning of
the National Labor Relations Act, as amended , and recommending
154 NLRB No. 70.