Jewell Smokeless Coal Corp.

National Labor Relations Board - Board Decisions

Jul 15, 1965

153 N.L.R.B. 1460 (N.L.R.B. 1965)

1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
understood that there is no assurance , guarantee , or basis for claim under
this contract that any employee will receive an increase or obtain earnings
in excess of the established base rate for the operation.
The appropriate collective-bargaining unit, consists of. All nonsupervisory
production and maintenance employees at our Dickson, Tennessee , and Fulton,
Kentucky , plants.
HENRY I. SIEGEL CO., INC.,
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.
Employees may communicate directly with the Board 's Regional Office, Region 2,
Fifth Floor, Squibb Building, 745 Fifth Avenue, New York, New York, Telephone
No. 751-5500, if they have any questions concerning this notice or compliance with
its provisions.
Jewell Smokeless Coal Corporation and United Mine Workers of
America, District #28. Case No. 5-CA-2794. July 15, 1965
DECISION AND ORDER
On March 8, 1965, Trial Examiner Eugene E. Dixon issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
engaged in and is engaging in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's Decision. There-
after, the Respondent filed exceptions to the Trial Exan-iiner's Decision
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 powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
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, and orders
that Respondent, Jewell Smokeless Coal Corporation, Vansant, Vir-
ginia, its officers, agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended Order.
153 NLRB No. 128.
JEWELL SMOKELESS COAL CORPORATION 1461
Add the following as paragraph 2(b), the present paragraph 2(b)
and those subsequent thereto being consecutively relettered :
"(b) Notify the above-named employees, if presently serving in the
Armed Forces of the United States, of their 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."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding , brought under Section 10 ( b) of the National Labor Relations
Act, as amended ( 61 Stat. 136 ), herein called the Act, was heard before Trial Exam-
iner Eugene E. Dixon at Abingdon , Virginia, on August 11 and 12, 1964 , pursuant
to due notice . The complaint , issued by the representative of the General Counsel
for the National Labor Relations Board, herein called the General Counsel and the
Board , on June 23 , 1964, and based upon charges filed by United Mine Workers of
America, District # 28, herein called the Union or Charging Party, on April 22,
May 18, and June 19, 1964 , alleged that Jewell Smokeless Coal Corporation, the
Respondent herein , had engaged in unfair labor practices in violation of Section
8(a)(1), (3 ), and (4 ) of the Act by discharging certain named employees because
of their membership in or adherence to the Union or because they filed charges or
gave testimony under the Act,' and by engaging in certain other specified acts of inter-
ference, restraint , and coercion in connection with the rights guaranteed its employees
in Section 7 of the Act.
In its duly filed answer Respondent denied the commission of any unfair labor
practices.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. RESPONDENT 'S BUSINESS
At all times material herein Respondent has been a corporation duly organized
under and existing by virtue of the laws of the Commonwealth of Virginia, operating
in Vansant and Whitewood , Virginia , where it is engaged in the business of coal
processing and coke manufacturing . During a representative 12-month period
Respondent in the course and conduct of its business operations shipped goods, prod-
ucts , and materials valued in excess of $50,000 from its place of business in Vansant,
Virginia , directly to points located outside the Commonwealth of Virginia During
the same period of time Respondent received goods , products , and materials valued
in excess of $50,000 at its place of business in Vansant, Virginia , directly from points
outside the Commonwealth of Virginia . At all times material herein Respondent
has been engaged in commerce within the meaning of Section 2(6) of the Act
II. THE LABOR ORGANIZATION
United Mine Workers of America , District # 28, is a labor organization within the
meaning of Section 2 ( 5) of the Act.
III. THE UNFAIR LABOR PRACTICES
After about 2 weeks of organizational effort among Respondent's employees, the
Union filed a representation petition on May 29 , 1963 , Case No. 5-RC-4243. There-
after Respondent entered into a consent -election agreement. Pursuant thereto an
election was held on August 16, 1963, which the Union lost by a vote of 29 to 52 with
18 challenged ballots Objections were duly filed by the Union setting forth eight
allegations of interference by Respondent . The Regional Director overruled all but
one of the objections and recommended a hearing on the one he sustained There-
after, upon review by the Board , an order was issued directing a hearing on three of
the original objections.
1 Named as discriminatees were Billy B Boothe , Henry E Layne, Jack Childress, James
Waddell , Granville Stevens, Kenneth Anders, James A Creed, Scotty Lambert , and James
Childress
1462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Subpenas were issued by the Union to some 14 employees to appear at the hearing
on the objections and testify in its behalf. Of those employees subpenaed, 10
appeared at the hearing which had been scheduled for March 3, 1964, at Abingdon,
Virginia. The hearing, however, did not take place because at that time the Company
and the Union entered into a stipulation whereby the Union agreed to withdraw its
objections and the Company consented to another election to be held the week of
August 17, 1964.
On April 11, 1964, Respondent laid off 22 employees 2 among whom were 7 who
had appeared at the hearing in response to the Union's Subpenas 3 and 2 other employ-
ees, 1 of whom had been elected secretary of the Union just a few weeks previously.4
The layoff of the employees in question came without warning or notice and was
effective immediately. For the most part, when informed by their direct supervisors
of the layoff, the men were simply told in substance that business conditions required
a reduction in force. When the employees pressed for more enlightment,° the
caliber of their performance and their attitudes were brought up in several instances
Also, many were told that there was little likelihood of their being recalled and were
advised to seek jobs elsewhere.
The General Counsel contends that these layoffs were discriminatorily motivated
because of the employee's "membership in, adherence to or activities on behalf of the
Union and/or because they filed charges or gave testimony under the Act." The
General Counsel alternatively contends "that even if economic conditions compelled"
the layoffs (as contended by Respondent) the employees named in the complaint were
discriminatorily selected for layoff because of the above-stated considerations.
Respondent's Opposition to the Union
There is no question that Respondent was strongly opposed to the UMW as the
collective-bargaining agent of its employees and that, as was its right, it made its
opposition known to the employees and the community. Thus, on August 1, 1963,
Respondent had published in an area newspaper (Richlands Press) a "Notice to the
Public" containing information regarding the Union's attempt to organize its employ-
ees. In addition to quoting therein a letter it had written on July 29 to the employees,6
it published a statement purporting to show facts regarding the Company's develop-
ment and its significance to the community. In this connection figures were cited
showing how its income was applied to its costs and also showing that in fiscal 1962
2 Four of those laid off were soon recalled. They were Troy Compton originally hired
December 9, 1963, and recalled May 21, 1964; Benjamin R McGlothlin, originally hired
January 3, 1964, and recalled April 23, 1964; Everett Null and Garland Rose. both
originally hired in December 1962 and recalled May 5, 1963. None of these had been
subpenaed to the "R" hearing by the Union
3 These were Billy B Boothe, Henry E. Layne, Jack Childress, James Waddell, Granville
Stevens, Kenneth Anders, and James A. Creed.
* The newly elected secretary was Scotty Lambert. The other employee was James
Childress, also a union supporter.
5 Most of them went to higher officials of the Company about the matter.
' In this letter , B. R. Thompson, Respondent's president, wrote to the employees as
follows:
I have been advised that a rumor is being circulated to the effect that the manage-
ment of Jewell Smokeless Coal Corporation is anxious to sign a contract with the
UMW and wants its employees to join the Union. Nothing could be further from
the truth. We don't think you need a union to represent you As I pointed out to
you in my letter dated July 8, 1963, no bargaining agent can bargain in your behalf
as well as you can.
The election in no way, will obligate Jewell Smokeless Coal Corporation to sign a
union contract should you vote in favor of electing the UMWA as your bargaining
agent, the only obligation that could come out of the election, as far as Jewell Smoke-
less Coal is concerned, would be to negotiate or bargain with your representative;
but at this point I would like to point out to you that through the years the UMA
has failed to properly design or write the contract that would be adaptable to opera-
tions in the thin seams of coal that we are mining and processing, and it is our con-
sidered opinion that they will not be in position to offer or enter into a written
agreement covering operations supplying us with coal, for our cleaning plant that
would be workable from a financial standpoint.
JEWELL SMOKELESS COAT, CORPORATION 1463
the Company "had a net profit of .1103 cents per ton" and in fiscal 1963 a profit (after
a provision for income tax) of ".1258 cents per ton " The statement in bold type
then read
Had the Company been paying, during 1962 and 1963, the years referred to
above, 10% more for wages plus 40c per ton to a welfare fund, it would have
showed a net loss of $654,209 (just about its total net worth after mortgages and
debts).
In addition to the foregoing the Company's statement also said:
Jewell Smokeless Coal Corporation started in production in Whitewood, Vir-
ginia, in April of 1953 and on June 1 of that year we had a total of eight direct
employees, plus six contractors and it is estimated they had employed about 48
people, making a total employment as of that date of 62 employees. On June 1,
1963, 10 years later, we had 115 direct employees, 81 contractors and 898 con-
tractor employees, or a total employment of 1094. This is an increase in employ-
ment during the ten-year period of 1764%.
On August 15 Respondent published another statement in an area paper (The Vir-
ginia Mountaineer ). Commenting here on a union statement that had been published
the week before in the same paper, B. R. Thompson, said among other things-
I have suspected for quite sometime that the only possible interest the UMWA
could have in organizing out tipple and coke oven employees would be to be
placed in position to close all of our eighty-one contractors' small mines by refus-
ing to have nonunion mined coal processed through our cleaning plant since their
contract provides that NON-UNION MINED COAL SHALL NOT BE
PROCESSED, SOLD OR OFFERED FOR SALE BY A COMPANY SIGNA-
TORY TO A UNION CONTRACT thereby forcing over one thousand men out
of jobs which, in turn , would eliminate wages from the rolls of Buchanan and
Tazewell Counties of more than $ 102,000 per week.
The Economic Necessity for the Layoff
B. R. Thompson testified that the reason for the layoff was "to save money, cut
costs, and to bring ... expenses more in line with ... competition." According to
Thompson at the time of the layoff the Company had been losing money throughout
the entire fiscal year. The market for Respondent's particular kind of coal had become
depressed 8 and Respondent could move only enough coal to operate its contract
mines 2 to 3 days a week. From January to March 1964, production was less than
200 tons per hour (an all time low) and had dropped from 80,000 tons a month in
September 1963 to 51,000 tons a month in March 1964. Presumably because of this
condition Thompson had retained an industrial engineer and a coal preparation expert
to study the operation?
In February the Company had shipped the last of its Japanese contract This con-
tract could not be renewed because of competition from Australian coal.10 In 1962
Respondent had started experimenting "to determine just how far" the so-called
Jawbone Mines seam could be mined and marketed. Because of impurities in it, the
seam became "economically impossible to mine and market" and was discontinued in
January 1964. This reduced Respondent's tonnage about 15,000 or 16,000 tons a
month.
April 2 was the effective date of the new United Mine Workers contract which con-
tained an 80-cent-per-ton penalty for buying nonunion coal.11 "As a result of that
7 This was the amount provided for in the United Mine Workers contracts at that time.
9 According to Thompson the type coal Respondent has "to sell and offer is in the
minority as far as national production" is concerned and the decrease in orders at this
time was being felt by this "entire segment" of the industry
9 Just when this took place and who these people were does not appear. Nor does
anything appear regarding what action or advice, if any, could be attributed to them.
In any event, according to Thompson he "started harping" on an economy drive with his
top people early in January.
10 It was on a trip to Japan. in September 1963. that Thompson had learned that the
Japanese "were going to discontinue importing American medium volatile coal [which]
would embrace IResnondent's] tonnage."
n Thompson testified he first heard about the United Mine Workers contract "when it
hit the press" either April 2 or a day or two before that
1464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[Respondent] lost a very attractive and excellent metallurgical account with one of
the coke plants ...." Nevertheless, according to Thompson's further testimony the
drop in business at this time largely entailed a lack of foreign orders. The Japanese
market had represented about 16 percent of Respondent's total production "in a
given period ......
On cross-examination Thompson was asked in substance if he could substantiate his
testimony with any documentary support. He replied that reliance would have to be
placed "to a major extent" on his testimony but later stated that he would "endeavor
to get-some figures .. ," that they were "pretty top-drawer" but that he could
get them.'" In summary, Thompson testified that his decision that there would have
to be a cutback was made "when the market collapsed" which was in late March or
early April. As additional reasons for the layoff Thompson cited the loss of the
Japanese coal market and the loss of American metallurgical business and added that
the new United Mine Workers contract also "played its part in (Respondent's)
curtailment."
Were there no other evidence in this record on the reason for the layoff then the
foregoing uncontroverted testimony of B. R. Thompson, it would be difficult to accept
without considerable skepticism It seems to me that on the matters referred to in
Thompson's testimony, Respondent should have been able to produce, and (having
promised) would have produced, corroborating documentary support. Also the
failure to call either the industrial engineer or the coal preparation expert (or to show
that they were unavailable) leads to an adverse inference in this connection Further-
more, on its face, Thompson's testimony raises some questions. Why, in the context
of a claimed deficit year,'-' would retrenchment have been delayed several months
after knowledge that a major market had been lost and that an "experimental" seam
had proved to be a "disappointment"? Moreover, the fact that all this takes place
in a context of a 10-year expansion that shows a growth in personnel of 1764 percent
gives pause.
But there is other evidence pertinent to this matter which I believe tends to demon-
strate that Respondent's motive for the layoff was not grounded in cost or retrench-
ment considerations. Thus, the evidence shows that notwithstanding the alleged need
for cost cutting and a depressed market which Thompson began "harping" about early
in January 1964, and which Preparation Plant Superintendent William Lyles could
see in the fall of 1963,14 Respondent hired 14 new employees between November 25,
1963, and March 2, 1964-2 late in November, 7 in December, 4 in January, and 1 in
March.
Further, and I think, conclusive enlightenment along with this line is provided by
the testimony of Jack Thompson, the son of B. R Thompson and Respondent's vice
president. From his testimony it appears that about January 1 or shortly before then,
his father had begun a "rebuilding program " Because of the effort and emphasis that
had gone into this project, necessary maintenance had been neglected.'5 As a result
of this Respondent was often running only 50 to 60 percent of a 8-hour shift, the
remainder being lost due to equipment or similar trouble
That the construction program and the then status of maintenance played an
important part in Respondent's adverse cost picture and production figures is not only
a fair inference on its face but is implicit in Jack Thompson's testimony that in a
conference between him, his father, Lyles, and Construction Superintendent Harold
Dodson in mid-February about reducing costs, Lyles and Dodson had indicated that
"it would take some additional time to get the preparation plant in condition" to
achieve that end.
From Jack Thompson's further testimony it appears that as of March 1, Respondent
had been working a split 48-hour workweek using one crew (presumably half of the
employees) Mondays, Tuesdays, and Wednesdays and another crew Thursdays, Fri-
days, and Saturdays. Between March 1 and the layoff Respondent was able to
improve its "mechanical condition" so that its downtime was substantially reduced
from what it had been between January and March. By April 11, due to this improved
12 No documentary support for his testimony was ever offered, however
"In this connection it is interesting to note that fiscal 1963 showed better profit after
taxes than fiscal 1962 presumably before taxes
11 Lyles, who came to Respondent from another coal company on October 22, 1963, as
superintendent of the preparation plant, testified that when be first started on the job
he could see that Respondent was overstaffed He further testified that "early in the
winter" he began preparing for a reduction in force which by the first of the year he knew
definitely was going to occur
15 This was corroborated by B R Thompson who testified that as a result of Respond-
ent's "expansion and construction program in the preparation plant, maintenance had
been put aside so that the coke plant could be finished and biought into production"
JEWELL SMOKELESS COAL CORPORATION 1465
"mechanical condition," more coal was being produced in an 8-hour shift. Never-
theless, and notwithstanding the professed lack of orders and the depressed condition
of the market at this time, Respondent now decided to go on a 72-hour week working
a 12-hour shift 6 days a week. To accomplish this, a regular crew of "approximately
12 jobs" in the preparation plant was supplemented by a "floating crew ... of roughly
six men" each of whom replaced 2 men on the regular shift'() so as to allow the men
"some time off, and not to have to work too long."
An analysis of Respondent's employee complement as of April 11, 1964, shows that
as of that date (but including those who were laid off on that date or on the following
Monday) Respondent had a total of 57 employees involved in the preparation plant-
36 employees under the classification "preparation plant" designated by the symbol
"P" and 21 in a combination classification of "preparation plant" and "maintenance"
under the symbol P/M. Of the 22 employees in the layoff, 14 were in the P category
(of whom 3 were recalled) and 6 were in the P/M category (1 of whom was recalled).
Disregarding the recalled employees because of the speed of their recall, our working
figure is thus an effective layoff of 16 people out of a total of 57 involved in the
preparation plant or a reduction in force of about 30 percent. However, simultane-
ously with this reduction Respondent increased its workweek from 48 to 72 hours or
exactly 50 percent-certainly offsetting any savings or retrenchment Respondent
claims it was achieving by the layoff.
Since it appears that retrenchment and curtailment of labor costs was not involved
in the layoff as claimed by Respondent, the question remains as to what was its moti-
vation I believe the evidence amply demonstrates that the layoff was intended to be
a reprisal for the union participation and support of the employees and their having
appeared on behalf of the Union at the representation hearing, and was designed to
eliminate prounion votes in the forthcoming election and union leadership to solicit
prounion votes. That others than union supporters 1' may have been involved in the
layoff does not prevent such a conclusion. And this is particularly true where, as here,
such a high percentage of those laid off had appeared at the representation hearing on
behalf of the Union 18 or were otherwise identified with the Union. Significant also
in this connection is the fact that none of those recalled had been subpenaed by the
Union or appeared at the representation hearing.
That Respondent had amply demonstrated its motivation to oppose the Union is
clearly spelled out in its campaign pronouncements as set forth above. Besides its
own admission in this respect, however, there is additional substantial evidence in the
record to this end
Interference, Restraint, and Coercion
H. E. Layne, one of the discriminatees herein, testified about a conversation that
he had with Foreman Woiley Hayes on April 8, 1964, which was 5 days before a
union meeting was scheduled to take place on the following Sunday. About this
matter Layne testified as follows.
I was standing in the window watching the loading boom changing the cars,
and watching them to set the boom off, he (Hayes) was standing in the window
by me, and he mentioned something about not enough oil on the car; he turned
and started to leave, and then came back He said, "By the way, are you going
to the union meeting Sunday9"
That was the following Sunday, on the 12th. I said, "Worley, if nothing
happens, I think I will; I figure I'll go." He turned around and started to leave,
and came back, and said, "I just want to warn you, you fellows better be careful
16 It is clear that this testimony about replacing two men on the regular shift was
meant to convey that the floating crewmembers were capable of manning more than one
operation Thus a member of the floating crew could relieve one man 1 day and a different
man another day
17 Union support here among other things is equated with having appeared at the repre-
sentation hearing in Abingdon While those who appeared here subpenaed by the
Union, it is fair to assume that the Union would not have called upon them unless it was
reasonably sure that they were favorably disposed toward it That this was the inter-
pretation placed upon their appearance at Abingdon by Respondent will appear in the
evidence as to the Section 8(a) (1) violations set forth below
18 Any contention by Respondent that it lacked knowledge of the identity of the union
supporters or who had attended the representation heating is rejected as being not only
incredible on its face as to who had attended the hearing but also generally on the facts
(as will appear) that Worley Hayes, who later became a foreman, had attended union
meetings and admitted in his testimony that he knew the employees who had attended
them and that Jack Thompson admitted that he had had "rumors" of whom among the
employees were union supporters
1466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about going up there, it's been handed to me from Mr. Lyles and Mr. Thompson
that if we find anybody that's participating in this thing, that we're going to get
rid of them." And he turned and walked off.
According to Layne's further testimony he had worked with Hayes as a rank-and-
file employee before Hayes had been made a supervisor and had never discussed the
Union with Hayes prior to this occasion.
James Creed, another of the discriminatees, testified about a conversation with
Hayes concerning the Union which occurred about a month and a half before the
layoff of April 11, 1964. About this conversation Creed's testimony was as follows:
(Hayes ) said that the State was going to shut us down, I don 't remember
whether it was thirty days, sixty days, or ninety days, but it was one of the three;
and he said at that time an election would be over, and if it goes Union, we
won't have no jobs, and if it don't go Union we'll still have a job.
James R. Childress testified as to a conversation with Hayes about the Union on
March 3, 1964, the day that the hearing on objections to the election had been sched-
uled at Abingdon . In this connection Childress testified
I got to work early, since I had so far to drive, and one of the foremen,
Worley Hayes, said in his conversation, what me and him and Johnny Stevens
had talked about earlier , he said those men at the meeting would be cut off, and
would be without jobs 19
Childress further testified that on the day after the union meeting at which the
election of officers took place in March,20 Hayes had asked him why he had not
attended the union meeting. Hayes also asked Childress if he knew any men who had
attended and asked about one particular man-if he had attended and how he felt
about the Union. Childress told Hayes that he "didn't know about the situation." On
this same occasion Hayes also asked Childress how he felt about the Union and
Childress told him that he "felt the same way that (he) did before the election."
According to Childress' further testimony at this time Hayes also told Childress that
"the Company knew every man that attended these meetings."
The record shows that Hayes had been made a foreman on November 1, 1963
The record also shows that Hayes had been a union member for about 8 months in
1941 and that he had attended union meetings in the summer of 1963 during the
campaign at Respondent's plant. According to Hayes' testimony, although he knew
most of the men who had attended union meetings , he never reported who he saw
at these meetings to his superiors. He also denied all of the foregoing testimony
about his having had any conversations with the employees about the Union.
As against Hayes I credit the General Counsel's witnesses. Their testimony was
more convincingly and forthrightly given than was Hayes' who impressed me less
favorably as a witness. Respondent would have me reject the testimony of James
Childress because on cross-examination, when asked if (in a context of testimony
about union conversations with Hayes) he had had any such conversation with him
after Hayes became foreman, Childress had answered, "No." It is clear from the
details and context of Childress' testimony that if certain conversations about which
he testified took place they would have had to take place after Hayes became foreman.
The question thus is whether or not the conversations took place at all. I believe
that they did and that Childress was simply mistaken in his answer as to whether or
not Hayes was a foreman at the time
I find that as a supervisor, Hayes' conduct is attributable to Respondent and that
as set forth above it interfered with , restrained , and coerced employees in violation of
Section 8 (a) (1) of the Act specifically as follows:
I His interrogation of Layne and Childress regarding theirs and their fellow
employees' union activities
2. His threats of discharge to Layne for participation in the Union and his threat
of loss of jobs to Creed if the Union succeeded in its organizational campaign.
3. His threat to Childress that the men appearing on the Union's behalf at the
representation hearing would lose their jobs
4. His intimation to Childress of surveillance of the employees' union activities by
Respondent.
19 In his further testimony Childress indicated that Hayes had told him that this in-
formation had been "passed down to him" from his superiors
29 This meeting was on a Sunday ; Childress had worked that day and had not attended
the meeting.
JEWELL SMOKELESS COAL CORPORATION 1467
Jack Childress testified about discussing the Union with Construction Superin-
tendent Harold Dodson as follows:
... We were in the bath house together after the election last August, and he
came in there, and of course he didn't like the way I felt about the Union and he
asked me why I felt about the Union the way I did.... He wanted to know why
I felt about it the way I did, and I told him I believed in organized labor, and I
felt it was the thing to do; I told him, "Spivey, you brought me on this job here
when I was operating the washer, I was operating it for $1.50 an hour, and the
man who quit was getting $1.75 an hour," ... I told him that I thought or felt
that if I was on a $2 an hour job, I should get $2 an hour.
This testimony stands undenied in the record and by this interrogation is further evi-
dence of Respondent's violation of Section 8(a) (1) of the Act.
Individual Selections for Layoffs
Finding as I do that the layoff in question was not for economic reasons and was
discriminatory within the meaning of Section 8(a)(3) and (4) of the Act,21 it is
unnecessary to consider the General Counsel's alternative theory that even if the
reduction was economically necessary, the selection for layoff of those named in the
complaint was discriminatory within the meaning of the Act However, to further
show Respondent's underlying motivation here, it might be enlightening to examine
some of the circumstances surrounding the selection of one or two of the individuals
for layoff who had more seniority than several who had been retained.
James Waddell worked in the maintenance department under the supervision of
Rodney Lowe. Lowe at first testified that it was he who suggested that Waddell be
laid off because "he didn't take interest in his work." He later testified that it was
not he but Dodson who named Waddell for layoff. In his testimony, however, Dodson
gave the impression that Waddell's layoff had been made at Lowe's suggestion In
any event, just a matter of weeks before he had been laid off Lowe had recommended
Waddell for a 20-cent-per-hour raise.22 Moreover, Waddell was the only employee
Lowe had ever recommended for a raise And the raise was granted to Waddell right
at the height of Respondent's supposed need for retrenchment and cost cutting
Another employee in the layoff, H E. Layne, had worked for Respondent since
August 1961 and was operating the tipple at the time of the layoff. The most specific
charges made against Layne by Respondent 21 was that he had been found asleep on
the job on one occasion and that he had a disability claim pending for silicoses. As
for the latter, it is clear that at the time of the layoff neither Layne nor Respondent
had knowledge of his illness. As for the former, another employee, George Rose,
who had fallen asleep on "quite a few" occasions while operating his machine and
had been seen sleeping at his machine by B. R. Thompson had been kept on. Also
kept on in preference to Layne was tipple operator Johnny Snead whose negligence
on one occasion had allowed several railroad cars to pile up in a wreck on Respond-
ent's premises for which he had been given a 2-week disciplinary layoff. The dis-
parity of action demonstrated by Respondent in these two examples, considered in the
light of the record as a whole, lends further support to an inference of a discrim-
inatory motive on the part of the Respondent in the layoff.
21 The complaint alleges the layoff violated both Section 8(a) (3) and (4) of the Act.
Respondent contends that proof that certain employees were subpenaed and appeared at
the hearing Is not proof that they gave testimony under the Act and that accordingly
the 8(a) (4) allegation of the complaint must fall. Respondent is mistaken The Board
has held that appearance at a Board hearing for the purpose of giving testimony is suf-
ficient to come within the statutory language of Section 8(a) (4) even though the dis-
criminates does not in fact testify. Dal-Tex Optical Company, Inc., 131 NLRB 715, 730;
Thomas J. Aycock, Jr, an Individual, d/b/a Vita Foods, 135 NLRB 1357
'a Waddell testified that he had received the raise some 2 months before his layoff.
The evidence shows however that it must have been hardly more than a month before
because Lowe had not been made a foreman until early March Waddell had started
with Respondent in November 1962 at $1 75 an hour, had been raised to $2.35 an hour,
and then raised again to $2 55 an hour just before his discharge
11 Respondent's testimony was that Layne had lost interest in the tipple, that he did
not perform his work as well as some others, and that he was not as competent as he
once had been.
1468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The unfair labor practices of the Respondent set forth above , occurring in connec-
tion with the operations of the Respondent described in section I, above , have a close,
intimate, and substantial relation 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 Respondent has engaged in unfair labor practices in violation
of Section 8(a)(1), (3 ), and (4 ) of the Act, I shall recommend below that it cease
and desist therefrom and take certain affirmative action designed to effectuate the
policies of the Act.
Having found that Respondent has discriminated against various employees by
laying them off and failing to reinstate them I will recommend that the Respondent
be ordered to offer each immediate and full reinstatement to his former or substan-
tially or equivalent position , and make each whole for any loss of earnings he may
have suffered because of the discrimination against him by payment to him of a sum
of money equal to the amount of wages he would have earned from the date of the
discrimination to the date of the offer of reinstatement , together with interest thereon
at the rate of 6 percent per annum , and that the loss of pay and interest be computed
in accordance with the formula prescribed by the Board in F. W. Woolworth Com-
pany, 90 NLRB 289, and Isis Plumbing & Heating Co ., 138 NLRB 716.
Since the unfair labor practices committed by Respondent herein strike at the
heart of the rights guaranteed employees by Section 7 of the Act (N.L.R.B. v. Ent-
wistle Mfg. Co., 120 F. 2d 532 (C.A. 4) ), I will recommend that Respondent cease
and desist from infringing in any manner upon the rights guaranteed in Section 7
of the Act May Department Stores d/b/a Famous-Barr Company v. N.L.R.B.,
326 U.S 376; Bethlehem Steel Company v. N L R.B., 120 F. 2d 641 (C.A.D.C.).
Upon the basis of the foregoing findings of fact, and upon the entire record in this
proceeding , I make the following.
CONCLUSIONS OF LAW
1. Jewell Smokeless Coal Corporation is an employer within the meaning of Sec-
tion 2 (2) of the Act.
2. United Mine Workers of America, District # 28, is a labor organization within
the meaning of Section 2(5) of the Act.
3 By discriminating against its employees as found above , Respondent has engaged
in unfair labor practices within the meaning of Section 8 ( a)(3) and (4) of the Act.
4. By interfering with , restraining , and coercing its employees in the exercise of
rights guaranteed them by Section 7 of the Act, as found above , Respondent has
engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act.
5 The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and the
entire record in this proceeding, and pursuant to Section 10(c) of the National Labor
Relations Act, as amended , I recommend that Respondent , Jewell Smokeless Coal
Corporation , Vansant, Virginia , its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership of any of its employees in United Mine Workers
of America, District #28 , or any other labor organization of its employees , by dis-
criminatorily laying them off or in any other manner discriminating against them in
regard to their hire , tenure of employment , or any term or condition of employment,
except as authorized in Section 8(a) (3) of the Act.
(b) Laying off or otherwise discriminating against employees because they have
given testimony , or appeared for the purpose of giving testimony, under the Act
(c) Threatening discharge or loss of employment for joining or assisting United
Mine Workers of America , District # 28, or any other labor organization
(d) Interrogating employees concerning their union membership , activities, or
sympathies in a manner constituting interference, restraint , or coercion within the
meaning of Section 8 ( a) (1) of the Act.
(e) Creating the impression among its employees that their union membership,
activities , or sympathies are under or being kept under Respondent 's surveillance.
JEWELL SMOKELESS COAL CORPORATION 1469
(f) In any other manner interfering with, restraining , or coercing its employees
in the exercise of the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Offer to Billy B. Boothe, Henry E. Layne, Jack Childress, James Waddell,
Granville Stevens, Kenneth Anders, James A. Creed, Scotty Lambert, and James
Childress immediate and full reinstatement to their former or substantially equiva-
lent positions , without prejudice to their seniority or other rights and privileges, and
make them whole for any loss of pay they may have suffered by reason of Respond-
ent's discrimination against them , together with interest at the rate of 6 percent per
annum, in the manner set forth in the section entitled "The Remedy."
(b) 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 necessary or useful to
determine the amount of backpay due and the rights of reinstatement under the terms
of this Recommended Order.
(c) Post at its plants at Vansant and Whitewood, Virginia, copies of the attached
notice marked "Appendix." 24 Copies of said notice , to be furnished by the Regional
Director for Region 5, shall, after being duly signed by Respondent 's representative,
be posted by the Respondent immediately upon receipt thereof, and be maintained
by it 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 the Respondent to insure that said notice is not altered , defaced, or cov-
ered by any other material.
(d) Notify said Regional Director , in writing , within 20 days from the date of the
receipt of this Decision , what steps the Respondent has taken to comply herewith.25
If 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".
a In 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 NOT discourage membership in, or activities on behalf of, United
Mine Workers of America, District # 28, or any other labor organization of our
employees , by discriminatorily laying them off or in any other manner discrimi-
nating against them in regard to their hire or tenure of employment or any term
or condition of employment because of their joining or supporting United Mine
Workers of America, District # 28, or any other labor organization.
WE WILL NOT lay off or otherwise discriminate against employees because they
have given testimony or appeared for the purpose of testifying in a hearing held
under the terms of the National Labor Relations Act, as amended.
WE WILL NOT interrogate employees concerning their union membership,
activities , or sympathies in a manner constituting interference , restraint, or
coercion within the meaning of Section 8 (a)(1) of the National Labor Rela-
tions Act, as amended.
WE WILL NOT threaten our employees with layoff or loss of employment
because of their union support or activities.
WE WILL NOT engage in or try to create the impression among our employees
of engaging in surveillance of their union activities.
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of the rights to self-organization , to form labor organi-
zations, to join or assist the above -named or any other labor organization, to
bargain collectively through representatives of their own choosing, or to engage
in other concerted activities for the purpose of collective bargaining or other
mutual aid or protection , or to refrain from any or all such activities.
1470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL offer the following employees immediate and full reinstatement to
their former or substantially equivalent positions, without prejudice to their
seniority or other rights and privileges, and make them whole for any loss of
earnings they may have suffered as a result of the discrimination against them.
Billy B. Boothe James Waddell James A. Creed
Henry E. Layne Granville Stevens Scotty Lambert
Jack Childress Kenneth Anders James Childress
JEWELL SMOKELESS COAL CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion 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, Sixth Floor,
707 North Calvert Street, Baltimore, Maryland, Telephone No. 752-8460, Extension
2100, if they have any question concerning this notice or compliance with its
provisions.
Locals 138, 138A , 138B , International Union of Operating Engi-
neers, AFL-CIO and Cafasso Lathing & Plastering , Inc. and
Stewart M. Muller Construction Co., Inc., and Building Trades
Employers Association of Long Island , Inc. and Contracting
Plasterers Association of Queens , Nassau and Suffolk Counties,
Inc. (Cafasso Lathing & Plastering, Inc.) and Contracting Plas-
terers Association of Queens, Nassau and Suffolk Counties, Inc.
(Cuddihy & Huebner, Inc.). Cases Nos. 29-CD-1 (formerly
2-CD-293), 29-CD-1-2 (formerly 2-CD-293-2), 29-CD-1-3 (for-
merly 2-CD-293-3), and 29-CD-3 (formerly 2-CD-302. July 15,
1965
DECISION AND ORDER
Upon charges filed by Cafasso Lathing & Plastering, Inc., herein
called Cafasso, Stewart M. Muller Construction Co., Inc., and Building
Trades Employers Association of Long Island, Inc., herein respec-
tively called Muller and BTEA, and by Contracting Plasterers Asso-
ciation of Queens, Nassau and Suffolk Counties, Inc., herein called
Long Island Plasterers, in behalf of Cafasso and Cuddihy & Huebner,
Inc., herein called Cuddihy, the General Counsel of the National Labor
Relations Board, by the Regional Director for Region 2, issued a com-
plaint on December 16, 1964, against Locals 138, 138A, 138B, Inter-
national Union of Operating Engineers, AFL-CIO, herein called the
Respondent or Local 138, alleging that the Respondent had engaged
in and was engaging in unfair labor practices within the meaning of
Section 8(b) (4) (i) and (ii) (D) of the National Labor Relations Act,
as amended. In substance, the complaint alleges that the Respondent
153 NLRB No. 129.