Golden Oak Mining Co., Inc.

National Labor Relations Board - Board Decisions

Jun 11, 1975

218 N.L.R.B. 416 (N.L.R.B. 1975)

416 DECISIONS OF NATIONAL LABOR - RELATIONS BOARD
Golden Oak Mining Co., Inc . and Walter D. Smith.
Case 9-CA-8691
June 11, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On December 24, 1974, Administrative Law Judge
Joel A. Harmatz issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations-Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, fmdings,l and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, and
hereby orders that the Respondent, Golden Oak
Mining Co., Inc., Perry County, Kentucky, its
officers, agents , successors, and assigns, shall take the
action set forth in the said recommended Order,
except that the attached notice is substituted for that
of the Administrative Law Judge.
1 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board 's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings
2 The Administrative Law Judge inadvertently omitted from his
recommended notice certain language describing employees' Sec. 7 rights
We correct that omission herein.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge any employee or
otherwise discriminate against him because of his
membership in, or activities on behalf of, the
United Mine Workers of America, or any other
labor organization.
218 NLRB No. 65
WE WILL NOT interrogate our employees con-
cerning their own union activities or the union
activities of their fellow employees.
WE WILL NOT threaten to discharge our
employees because they have joined the United
Mine Workers of America.
WE WILL NOT instruct our employees, who
signed union authorization cards, to return them
to us.
WE WILL NOT threaten to close the mine if our
employees designate the United Mine Workers of
America, or any other labor organization, as their
collective-bargaining representative.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights guaranteed in Section 7 of
the Act, which are:
To engage in self-organization
To form, join, or assist any labor organi-
zation
To bargain collectively through represent-
atives of their own choosing
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from any or- all such activities.
WE WILL offer Walter D. Smith immediate and
full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent
position without prejudice to his seniority or other
rights and privileges, and make him whole for any
loss of earnings suffered by reason of his unlawful
discharge.
All our employees are free to become or remain
members of United Mine Workers of America, or
not to become or remain a member of that, or any
other, labor organization.
GOLDEN OAK MINING
Co., INC.
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge: This
proceeding was heard on November 7, 1974, in Hazard,
Kentucky, upon a charge filed on August 5, 1974, and a
complaint issued September 13, 1974, alleging that Re-
spondent independently violated Section 8(aXl) of the Act
by coercive interrogation, threats of reprisal for union
activity, and demanding that employees return to Respon-
dent union authorization cards which they had previously
executed. The complaint further alleges that Respondent
violated Section 8(a)(3) and (1) of the Act by discharging
Walter D. Smith because of his union activity. In its duly
filed answer, Respondent denied commission of any unfair
GOLDEN OAK MINING CO. 417
labor practices. After close of the hearing, briefs were filed
by the General Counsel and Respondent.
Upon the entire record in this proceeding, including my
observation of the witnesses while testifying and considera-
tion of the posthearing briefs, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Kentucky corporation engaged in
the business of strip mining coal from its location in Perry
County, Kentucky. During the 12-month period preceding
issuance of the complaint, a representative period, Respon-
dent purchased goods valued in excess of $50,000, which
goods were shipped directly to the above-named place of
business from States other than Kentucky.
The complaint alleges, the answer admits, and I find that
Respondent is an employer engaged in commerce and in
operations affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I fmd that
the United Mine Workers of America is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The instant proceeding involves alleged unfair labor
practices, all of which are attributed to Mine Superinten-
dent Alonzo Guerra and are alleged to have occurred on a
single day, July 15, 1974.1 Respondent does not seriously
contest the independent 8(a)(1) allegations imputed to
Guerra, but strongly denies that Walter D. Smith was
terminated for unlawful reasons. In this regard, Respon-
dent contends that Smith was not discharged, but voluntar-
ily quit his employment. In the alternative, Respondent
argues that, even if Smith had been discharged, said
discipline was legitimate in view of Smith's having engaged
in union solicitation in working areas, conduct, which as
the argument goes was not protected by the Act.
B. The Facts
No labor organization represents Respondent's employ-
ees engaged at its Perry County strip mine. On July 6, the
Charging Party, Walter D. Smith, who was then working as
a dumptruck operator, contacted Dan McAlarnis, an
organizer for the United Mine Workers Union. McAlarnis
thereafter provided Smith with certain union literature and
authorization cards. On July 8, Smith began distributing
these materials among Respondent's employees, but in his
early efforts Smith succeeded in signing up a mere handful
of Respondent's work force of some 30 employees.
I All dates refer to 1974 unless otherwise indicated.
2 Based on the testimony of Smith. Guerra testified that he had been
informed by Curtis Brewer later that day to the effect that Smith requested
to be excused from work that evening because of a toothache. Said
Respondent's day shift ends at 5 p.m., with the night
shift starting an hour later at 6 p.m. On July 15, Smith,
whose scheduled work shift was from 6 p.m. to 4 a.m., went
to a site off company property at about 3:30 p.m. on old
Route 15 near an access road to the mine . His early arrival
was based on his intention to distribute union literature to
those leaving the mine from the day shift and those
reporting for work on the night shift, and to meet with any
employees having questions about the Union.
While Smith was at the above location, Alonzo Guerra
happened by, and, insofar as material, simply requested
that Smith advise another employee, Beecher Nix, Jr., to
report for work at the stockpile that evening. Guerra then
left, and Smith moved from the site on old Route 15 to a
point on the access road to the mine, but off company
property, where he continued his organizational activity.
Smith was subsequently joined at that location by Beecher
Nix, Jr., and Lawrence Brewer, two night-shift employees.
At about 5:45 p.m. all three started up the hill in two
vehicles Nix left at the stockpile. Lawrence Brewer stayed
with Smith, riding in the latter's truck to the top of the hill.
At about the same time Guerra and a mechanic, Mervin
Hamilton, were driving down the mountain in Guerra's
truck. They were followed by Donnie Wells, a day-shift
employee, who was leaving work. As Wells' truck passed
Smith on company property in the vicinity of the tipple
and the scale house, Smith, through the windows of their
vehicles, handed Wells an envelope containing the union
literature and an authorization card. This exchange was on
company property and was observed by both Guerra and
Hamilton as they continued on down the hill. The latter
then stopped at a point well below the area in which the
tipple and scale house are situated. At that point they met
Wells, who had been driving Hamilton's truck. Guerra
asked Wells what Smith had given him. Wells said he
didn't know and gave the envelope to Guerra. Guerra
opened the envelope, finding the authorization card and
union literature. Guerra and Hamilton then turned around
and drove towards the tipple area.
In the meantime, Smith and Lawrence Brewer had
reported to their foreman, Curtis Brewer. Lawrence Brewer
was put to work, but Smith was informed by Curtis Brewer
that no work was available for him at that time, and that he
could take off until 8 or 8:30 p.m.,2 when he might be put
to work. Smith then returned to the tipple area, where he
hoped to meet a relative, Alex E. Smith,' who was
scheduled to leave work from the day shift.
After leaving Wells, Guerra and Hamilton in route up
the hill stopped at the stockpile where Beecher Nix, Jr., was
working.3 According to Nix's credited undenied testimony,
he was shown an authorization card by either Guerra or
Hamilton, and was asked by Hamilton if he knew anybody
that had them or had been passing them out. Nix replied in
the negative. Guerra then said he knew who had been
doing so.
Hamilton and Guerra then continued on up the hill
where they saw Smith talking with Forest King, a night
testimony is plainly hearsay as to Smith and is not probative. Accordingly,
since Curtis Brewer did not testify, Smith's, account of his discussion with
Curtis Brewer stands uncontradicted by competbnt evidence and is credited.
3 Based on the testimony of Mervin Hamilton.
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
watchman, in the tipple area. Guerra beckoned Smith to
his truck. Smith approached the truck, and what then
transpired is the subject of a testimonial conflict, bearing
critically upon the issue of whether Smith quit or was
discharged.
According to Smith's account, Guerra, first showed him
the union card, asking "What's this?" Smith responded
that it was a union card. Guerra then said, "You're going
to do this to me after what I've done for you?" Smith took
issue with Guerra, indicating that he was not pleased with
the manner in which- his work hours had been reduced.
Guerra then said, "We don't need this here." Smith
responded, "I think we do," whereupon Guerra indicated
"I don't want to see anymore of this on the hill . . . or
anywhere." Smith then said that he would be down off
company property every evening as long as anybody would
talk to him about the Union, whereupon Guerra angrily
shouted that Smith should get off company property and
stay off, adding that as far as he was concerned even
Smith's truck was trespassing. Smith, in consequence of
this alleged statement and believing that he had been
discharged, left the premises and did not return until
Friday, July 19, when he picked up his final paycheck.
Guerra concedes through his testimony that after
showing Smith the card, he told Smith "Walter, I don't like
this." However, according to Guerra, no statement was
made to the effect that Smith should get off company
property and stay off. Instead, according to Guerra, he
simply told Smith that he "didn't like this kind of stuff
going on on company property and company time and if
he was going to do it he'd (Smith) have to get off company
property." According to Guerra, the conversation ended
with Smith responding that he would "get off company
property and continue to pass these things out everyday so
long as the men were willing _to talk to him and accept
them." For the reasons which will be set forth below, I
credit Smith over Guerra.
Turning away from Smith's termination and to other
aspects of Guerra's activities of July 15, the record shows
that following the above conversation with Smith, Guerra
had additional discussions with employees concerning the
Union. Both Lawrence Brewer and Beecher Nix, Jr.,
testified 'to conversations they had with Guerra which
apparently occurred between 6 p.m. and 7 p.m. that
evening . According to Brewer, Guerra between 6 and 6:30
p.m: arrived at his work area, and asked him if Brewer had
seen a union card on the job. Brewer said he had_4 Guerra
then left, but returned about 30 to 45 minutes later and
inquired of Brewer as to whether he had signed a card.
Brewer said he did. Guerra then said that "there would be
no union on the hill," that the Company "had a couple
million dollars of equipment on the hill and before they'd
organize t h e y ' d take the equipment . . . and park it ...."
In the course of this conversation Guerra also inquired of
4 It is entirely possible that this conversation preceded Guerra's
confrontation with Smith. The record is not entirely clear in this respect, but
the precise sequence of events is hardly significant to the critical issues
involved.
5 Guerra admits having made this statement to Lawrence Brewer and his
testimony does not deny the balance of the statements set forthin the above
text, which Brewer's testimony attributed to him.
6 Nix also testified that the following evening as he and Lawrence
Brewer as to who gave him the card. Brewer then indicated
that it was Smith. Guerra responded "This has cost that
man his fob."5 Apparently the conversation then turned
into a debate concerning the advantages or disadvantages
of the Union's hospital program. Following this, Guerra
told Brewer that he wanted Brewer's card back. Brewer
indicated that he would give Guerra his card, if Smith
would return it to him.
Beecher Nix, Jr., also testified, without denial by Guerra,
to a second conversation with Guerra. In the course
thereof Guerra informed Nix that before "they'd go union,
they would park the equipment and shut the job down."
Guerra also indicated to Nix that he knew who had signed
cards and specifically named Lawrence Brewer, Willis
Chester, and Nix as among that group. Nix then admitted
he had signed. Guerra then asked Nix to get his card back.
Nix said he would do so if he could.6
C. Conclusions
1. Interference, restraint, and coercion
The foregoing uncontradicted testimony of Nix and
Lawrence Brewer is credited and plainly substantiates the
allegations of the complaint that Respondent through
Guerra independently violated Section 8(a)(l) in each of
the following respects:
(a) Guerra's statement to Lawrence Brewer that Smith
had lost his job because he solicited authorization cards,
conveyed the implicit message that employees who engage
in union activity might well be the objects of discrimina-
tion, and as such clearly constituted coercion and restraint
with respect to the employee's exercise of Section 7 rights.
(b) Guerra's questioning of Nix and Lawrence Brewer as
to whether they had seen union cards on the job, as to who
had given them cards, and as to whether they had signed
cards was conducted for no legitimate purpose, was not
accompanied by proper safeguards, and, accordingly,
constituted coercive interrogation proscribed by Section
8(a)(1) of the Act.
(c) Guerra's threats to both Nix and Lawrence Brewer
that the mine would be closed before Respondent would
operate on a union basis constituted a direct threat of
reprisal coercing and restraining these employees in the
exercise of their Section 7 rights.
(d) Guerra's demands upon Nix and Lawrence Brewer,
in the, context of threats and Guerra's expressed hostility to
union activity, that they return their, signed authorization
cards to him also constituted restraint and coercion of
these employees in the exercise of their Section 7 rights.
Accordingly, I find through each of the separate
instances set forth above, Respondent violated Section
8(a)(1) of the Act.
Brewer were reporting for work, they were asked by Curt Brewer if they had
their cards . Both indicated that they did not. Foreman Brewer then said that
since they didn't get their cards back, neither would be able to work the
following evening . However, this statement by the foreman was quickly
retracted and described by him as a joke when Nix indicated the men had
previously spoken to Guerra and that Guerra had said nothing about them
losing any work.
GOLDEN OAK MINING CO. 419
2. Discrimination
The question of whether Smith was discharged because
of his union activity or voluntarily quit Respondent's
employ turns upon a narrow question of credibility. All
agree that-Guerra at no time told Smith specifically that he
had been "discharged" or "fired." Yet, it is my opinion that
if Smith is credited, the statement he imputes to Guerra;
namely, that Smith should get off company property and
stay off, in the context of Smith's entire version of their
conversation, plainly communicated to Smith an intention
on Guerra's part to effect a discharge. Indeed, Smith could
rightfully assume that Guerra meant to give force to the
literal terms he expressed, and this is especially true in the
face of Guerra's subsequent failure to indicate to Smith
that a discharge was not intended by his remarks of July
15.7
Upon consideration of the issue of credibility, I note the
clear indications in the record of Guerra's hostility towards
the Union generally, and his specific hostility towards
Smith's role in the organization effort. I also have taken
into account a shift in Smith's testimony as to whether or
not he had engaged in any union activity above the
Company's property line. Nevertheless, having observed
Smith, Guerra, and Hamilton, I regarded Smith as the
more trustworthy of the witnesses to the disputed conversa-
tion. Guerra and Hamilton in contrast to the straightfor-
ward and clearly expressed recollection of Smith confessed
while on the stand that they had difficulty recalling the
specifics of an event that had transpired so long ago.
Furthermore, I was particularly troubled by that aspect of
the account of both Hamilton and Guerra in which they
both agree to Guerra's use of the term "company time" in
making his final statement to Smith. I simply do not
believe that Guerra made such a reference. There was no
evidence, and Guerra concedes that he had no knowledge,
that Smith engaged in union activity on company time. At
the same time, Guerra admitted that he did not want Smith
to continue his union activity on company property.
Indeed, Guerra according to his own testimony told Smith
that he would have to get off company property if Smith
persisted in union activity. According to the position
expressed in Respondent's brief, Respondent maintained a
rule barring solicitation on company property at all times.
It is apparent therefore that company time was completely
irrelevant to both the conduct of Smith which Guerra
found objectionable and to Guerra's objective in eliminat-
7 Snuth reappeared at the mine on Friday , July 15, to pick up his check.
At that time, he had a conversation with Guerra, with neither mentioning
the events of July 15. Neither Guerra nor any other agent of Respondent
ever sought clarification of the circumstances under which Smith's
employment had ceased . This despite the fact that Smith, some 2 weeks
after the discharge , filed the instant unfair labor practice charge. That
charge was admittedly served on Respondent on August 7, 1974, and
specifically alleges that Smith had been discharged.
8 It is noted in this connection that while on the stand Guerra
commented on Smith's version of the critical conversation, stating "I told
him I believe pretty close to the statement he [Smith ] made a while ago, but
not quite in that manner."
9 In an apparent attempt to bolster the testimony of Guerra and
Hamilton, Respondent's counsel adduced testimony from Guerra and
William B. Sturgill , Respondent's president, as to the internal practices
utilized by Respondent in the event an employee is terminated. This
testimony related to the responsibility of supervisory employees to notify
ing union activity anywhere on company property. Indeed,
to the extent that use of that terminology would have
implied that employees could engage in union activity on
company property on their own time, such a reference
would conflict with Guerra's final alleged utterance to the
effect that Smith could only do so off company property.
Finally, I did not regard Guerra as even barely acquainted
with the legal niceties governing employee rights to engage
in union activity on their own time versus company time
and I was left with the impression that injection of the term
"company time" in this terminal conversation with Smith
was unbelievable as plainly beyond Guerra's level of
sophistication. It was my defmite impression that the
testimony of Hamilton and Guerra in this respect was
contrived for the purpose of drawing a clear dichotomy
between their version of Guerra's remarks and that
testified to by Smiths But, in any event, the single factor
which throws the greatest light on what actually transpired
between Guerra and Smith is Guerra's admission that he
told Lawrence Brewer that Smith's distribution and actual
soliciting of cards had cost Smith his job. Guerra
attempted to diminish the plain import of this statement,
by seizing upon, what impressed me as, a transparently
strained, self-serving explanation. Thus, Guerra explained
that his remark to Brewer was deduced from Smith's
statement that he would be out on the road every day
passing out cards as long as the men would talk to him.
According to Guerra, Smith couldn't do this and work at
the same time, and therefore Guerra states that he assumed
that Smith had quit. It strikes me as incredulous that
Guerra would have spoken to Brewer with such certainty
concerning Smith's demise when based upon so speculative
a premise; Guerra was plainly aware that Smith could, on
a daily basis, have continued his union activity off
company property prior to his reporting for work at 6 p.m.
each day. I find that the remark made by Guerra to
Lawrence Brewer was based upon Guerra's knowledge that
he had just discharged Smith .9
In the alternative, Respondent contends that even if
Smith was discharged, such action was perfectly legitimate
since Smith in the course of his organizational efforts
violated a "no-solicitation" rule which had been promul-
gated by the Company. While Respondent does not
affirmatively dispute that Smith's union activity led to the
termination of his employment, it argues that Smith's
alleged unprotected activity precludes an 8(a)(3) finding
with respect to the discharge.
the front office in the event of a discharge. Guerra never furnished a slip to
that effect to the front office. However, he also did not submit a slip
indicating that Smith had quit. Sturgill conceded that the same not ification
procedures are applicable whether employment is terminated by a quit or
discharge. I find that , under Respondent's procedures , it is Respondent's
practice that a supervisor with knowledge of a ternunation is required
immediately to forward a slip to the front office, whether it is based on a
discharge or quit. I further find that apart from the entry on said slip
concerning the nature of the termination, a discharge is handled under the
Company's reporting system no differently than a quit. In this light, the
testimony with respect to Respondent's policy is plainly neutral to the
critical credibility issue. By virtue of Guerra's admitted statement to
Lawrence Brewer, Guerra knew that as of July 15 Smith had terminated,
and his failure to submit a slip descnbing the nature of the termination
merely reflects Guerra's departure from company policy. The absence of
slip in company records is no more indicative of a discharge than a quit.
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In support of Respondent's position in this regard,
according to William B. Sturgill, Respondent's president,
the Company maintains a policy which precludes "solicit-
ation on Company property or in company offices."
Sturgill also testified that the Company forbids employees
from going to areas unrelated to their work assignments.
Sturgill concedes, however, that said policies are not
published, that they do not appear in writing, and that they
would only be made known to employees by "word of
mouth." Apart from the conversation between Guerra and
Smith, which resulted in the discharge, this record is barren
of even the slightest suggestion that any employee of
Respondent ever was apprised of such policies.10 Accord-
ingly, I find that Respondent had no published formal rule,
which would place employees on notice generally that their
right to engage in union distribution or solicitation on
company property was barred by company policy.
Respondent cites two aspects of Smith's activity which
allegedly exceeded the permissible scope of protected
activity. The first incident relates to Smith's passing a
single envelope, containing union literature and an
authorization card, to Donnie Wells, through the window
while their respective vehicles passed on the roadway
running -through the mine area.11 This apparently was an
instantaneous act, seemingly accomplished without conver-
sation, and at a time when no interference with road traffic
would result.12 It occurred between shifts and while Smith
and Wells were on their own time. From my understanding
of the record, at the time of this incident the roadway
involved could not fairly be deemed a working area. The
possibility that there might be occasions when truck
movements on this road might have been hampered by
such conduct, or that, under certain other circumstances, a
hazard may have been created thereby, does not mean that
in an operation merely- consisting of some 30 employees
spread over two shifts, the entirety of a roadway running
through a vast complex must at all times, including the
interval between shifts, be regarded as a working area. To
so find, would in the circumstances give primacy to
employer interests in a manner which impedes organiza-
tional activity, despite the absence of evidence to the effect
that the union activity had an actual, real, or potentially
significant impact upon production, discipline, or safety.
Respondent nonetheless argues that even if the roadway
was a nonworking area, since Smith, at the time of this
10 Respondent does post its property with "no trespassing" signs. Also
certain designated areas are posted "no unauthorized personnel." Such
restrictions hardly constitute communications coextensive with the rules
attested to by Sturgill, and are of no aid to resolution of the instant
controversy. I note, particularly, Sturgill's admission that he regarded his
employees as "authorized personnel."
Respondent argues in its brief that Smith's testimony contains an
admission that he was "aware of Respondent's rule against any form of
solicitation by employees and nonemployees alike on Respondent's
property " According to my reading of Smith's testimony, far from any such
admission, Smith indicated that he was never informed of any rule to that
effect, but that it was his understanding that the "labor laws" precluded
handing out cards on company property.
11 Respondent, in its brief, describes Smith's alleged unprotected activity
as solicitation , rather than distribution. Without resolving the precise
category in which Smith's conduct fell, I shall assume that the above
incident is controlled by the more stringent restrictions on union activity
which settled authority places upon the distribution of umon literature Cf.
Farah Manufacturing Companies, 187 NLRB 601, 601-602 (1970), The rule
incident, was off duty, his passing out of union literature
on company property must be regarded as unprotected
activity. In support, Respondent observes that in N.L.R.B.
v. United Steel Workers of America-CIO, 357 U.S. 357
(1958), the Supreme Court held that an employer may
preclude access to its property by nonemployee union
organizers, in the absence of a showing that the union has
no alternate channels available for communicating with
employees as to their right to organize. Relying on GTE
Lenkurt, Incorporated, 204 NLRB 921 (1973), Respondent
argues that with respect to this incident Smith should be
treated as a "nonemployee." In Lenkurt, supra, the Board
held that an employer had the right, through a published
rule, to prohibit "off duty employees from entering or
remaining on the premises for any purpose." There, the
question confronting the Board was whether off-duty
employees could enter or remain on company premises,
notwithstanding an employer rule to the contrary. The Board
simply held that Section 7 does not interfere with an
employer's right to regulate access of off-duty employees to
company property by published rules. Here, Respondent
maintained no such published rule. I regard Lenkurt as
distinguishable on this ground. Until such restrictions are
so common an attribute of the industrial environment that
employees ought readily to assume that their access to
plant property during off-duty hours is precluded, ordinary
principles of equity and the need to maintain a balance
between Section 7 rights, on the one hand, and the
employer's property rights, on the ' other, dictate that
employees be accorded full access to company property
during their off-duty hours, unless the employer has
manifested an interest in protecting its property against
such incursions through a published, nondiscriminatory,
unambiguous rule. Accordingly, I am unwilling to interpret
the Board's decision in Lenkurt as extending to circum-
stances where employees are not informed that their
employer has seen fit to' confine their presence on plant
property to the duration of their working shifts. Moreover,
I find Lenkurt distinguishable on the further' ground that
Smith's encounter with Wells was in the course of Smith's
reporting for work, and was sufficiently incidental thereto,
to have occurred at a time when Smith could not fairly be
considered as in "off duty" status.
For the above reasons, contrary to Respondent's claim; I
find that Smith's passing the single envelope containing
described by Sturgill prohibited union distribution in nonworking areas on
an employee's nonworking time. Under settled authority, publication of any
such rule would have constituted a presumptive violation of Sec. 8(a)(1) of
the Act. Stoddard-Quirk Manufacturing Co., 138 NLRB 615 (1961). Indeed,
had employees been informed of such a restriction, I would find that
promulgation and maintenance of such a rule constituted a violation of Sec.
8(a)(1) For, Respondent has failed to rebut the presumption of illegality
arising from such a rule by showing that " special circumstances make the
rule necessary in order to maintain production or discipline." See Peyton
Packing Company, Inc., 49 NLRB 828, 843, 844 (1943). The generalized
testimony offered by Respondent as to hazardous aspects of certain
operations conducted on company property hardly constitutes a justifica-
tion for a rule barring umon distribution in an area encompassing some
2,000 acres, where mining is currently limited to two tracts comprising 143
and 208 acres , respectively.
12 Since the roadway was only 8 to 10 feet in width, vehicles moving in
opposite directions would necessarily slow down considerably before and
while passing.
GOLDEN OAK MINING CO.
union materials to Wells did not render Smith vulnerable
to a lawful termination of his employment.
Respondent also cites Smith's presence in the tipple area
immediately before his discharge as further evidence of his
having engaged in unprotected activity. Contrary to the
Respondent's assertion, at the time in question Smith was
not on working time. As heretofore indicated, Smith went
to the tipple area only after Foreman Curtis Brewer had
told him to take off until 8:30 p.m. It is true that, as set
forth in Smith's pretrial affidavit, he went to the tipple area
to wait for his cousin, Alex E. Smith, a first-shift employee,
"to talk to him about the Union." Nonetheless, it is
difficult to perceive as to how this admission on Smith's
part furnished a legitimate cause for his discharge. There is
no evidence that Smith engaged in any discussions
concerning the Union in the tipple area, and he was
discharged and left the premises without ever having met
his cousin. Even if Smith's admission were construed as an
unambiguous 13 declaration of an intention to engage in
unprotected activity, such a disposition, since never
implemented nor communicated to Guerra, could hardly
have been a consideration underlying Guerra's decision to
terminate Smith. In any event, even if Smith had
"discussed" the Union with his cousin in the tipple area,
since I have found that Respondent has not proven special
circumstances which would support broad restrictions on
union activity on company property, such a conversation
on nonworking time would not constitute unprotected
activity.14
Accordingly, as Smith was discharged because of his
union activity, and since Respondent has failed to show
that Smith's organizational activities were in any sense
unprotected,15 I find that Respondent thereby violated
Section 8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. Golden Oak Mining Co., Inc., is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The United Mine Workers of America is a labor
organization within the meaning of Section 2(5) of the Act.
3. By coercively interrogating employees concerning
union activity, by threatening to discharge employees who
join or support the Union, by threatening to close the mine
if organized by the Union, and by demanding the return of
signed authorization cards, Respondent has interfered
with, coerced, and restrained employees in the exercise of
13 It cannot be determined whether Smith intended that the discussions
with his cousin would take place in either a working area or on company
property.
14 Republic Aviation Corporation v. N.L.RB., 324 U.S. 793 (1945).
15 1[ also note that I am not entirely certain that Respondent's attempt to
portray Smith as having engaged in unprotected activity constitutes
anything more than afterthought. Guerra and Hamilton were the only
witnesses to the incident leading to the discharge offered by Respondent.
Both insisted that Smith had quit . Based on the credited testimony, Guerra's
statements to Smith, Nix, and Lawrence Brewer evidenced his hostility to
Smith s union activity en toto. In contrast to his broadly expressed union
animus, Guerra made no reference either to Smith's presence in the tipple
area or his passing out literature to Donme Wells in an alleged "working
area." Guerra's own statements indicate that the discharge was predicated
upon comprehensive antiunion considerations while devoid of any special
421
their Section 7 rights in violation of Section 8(a)(1) of the
Act.
4. By discharging Walter D. Smith because of his
activities on behalf of the Union, Respondent has
discriminated against an employee in regard to hire and
tenure of employment in a manner discouraging union
membership and has thereby violated Section 8(a)(3) and
(1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and to take certain
affirmative action found necessary to effectuate the
policies of the Act.
It has been found that Respondent unlawfully dis-
charged and refused to reinstate Walter D. Smith in
violation of Section 8(a)(3) of the Act. To remedy this
unfair labor practice, it is recommended that Respondent
offer Smith immediate and full reinstatement to his former
job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
other rights and privileges, and make him whole for any
loss of earnings he may have suffered by reason of his
unlawful discharge by payment to him of a sum of money
equal to that which he normally would have earned from
the date of his discharge, to the date of a valid offer of
reinstatement, less his net earnings during the said period.
Backpay shall be computed with interest on a quarterly
basis in the manner prescribed by the Board in F. W.
Woolworth Company, 90 NLRB, 289 (1950), and Isis
Plumbing & Heating Company, 138 NLRB 716 (1962).
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in this case,
and pursuant to Section 10(c) of the Act, there is hereby
issued the following recommended:
ORDER 16
Golden Oak Mining Company, Inc., Perry County,
Kentucky, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Interrogating its employees concerning their union
activities, threatening discharge of those supporting or
joining the Union, threatening to close the mine if
concern for Smith's activities which arguably might have reflected adversely
upon production, discipline , or safety . In these circumstances, since
Respondent had no published rule concerning solicitation or distribution,
and as Smith's conduct did not in fact disrupt efficiency, discipline, safety,
or production, I would find the discharge violative of Sec. 8(a)(3) even if
convinced that Smith engaged in conduct which , in other respects, was
unprotected. See Welsh Co. of the South Inc., 190 NLRB 220, 225 (1971);
Wellman Industries, 201 NLRB 958, 961 (1973).
16 In the event no exceptions are filed as provided by Sec. 102 .46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall , as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organized by the Union, and directing employees to return
their signed authorization cards to the Employer.
(b) Discharging or in any other manner discouraging
membership in the United Mine Workers, or any other
labor organization, by discharging employees or in any
other manner discriminating against them in regard to
their hire or tenure of employment or any term or
condition of employment.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed by Section 7 of the Act.
2. Take the following affirmative action which is found
necessary to effectuate the policies of the Act:
(a) Offer Walter D. Smith immediate and full reinstate-
ment to his former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him
whole for any loss of earnings he may have suffered by
reason of the unlawful discharge in the manner set forth in
the section of this Decision entitled "The Remedy."
17 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due and the
right to reinstatement and employment under the terms of
this Order.
(c) Post at its Perry County, Kentucky, mine, copies of
the attached notice marked "Appendix." 17 Copies of said
notice, on forms provided by the Regional Director for
Region 9, after being duly signed by Respondent's
authorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter in conspicuous places
where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that said notices
are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."