Key Coal Co.

National Labor Relations Board - Board Decisions

Feb 28, 1979

240 N.L.R.B. 1013 (N.L.R.B. 1979)

KEY COAL CO. 1013
Key Coal Company and United Mine Workers of
America. Case 9-CA- 1061
February 28, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On September 8, 1978, Administrative Law Judge
Robert G. Romano issued the attached Decision in
this proceeding. Thereafter, the General Counsel and
Respondent filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions' of the Administrative Law Judge and
to adopt his recommended Order, as modified
herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, Key
Coal Company, Hocking County, Ohio, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so modi-
fied:
1. Substitute the following for paragraph I:
"1. Cease and desist from:
"(a) Refusing to bargain with United Mine Work-
ers of America, with respect to the subcontracting of
certain reclamation work, as herein provided and de-
fined.
"(b) In any like or related manner interfering
with, restraining, or coercing employees in the exer-
cise of the rights guaranteed them by Section 7 of the
Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
Respondent has requested oral argument. This request is herebh denied
as the record, the exceptions. and the briefs adequately present the issues
and the positions of the parties.
240 NLRB No. 153
APPENDIX
NOlI(EF To EMPLOYFFS
Pos-rED BY ORDIR 01O THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL. NOT refuse to bargain with United
Mine Workers of America, with respect to the
subcontracting of certain reclamation work, as
provided and defined by the Decision and Order
of the Board rendered in Case 9-CA-11061.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE w.l.. upon request, bargain collectively
with United Mine Workers of America, with re-
spect to the subcontracting of certain reclama-
tion work, and/or its effects; or alternatively,
concerning equivalent present reclamation
work; and reduce to writing any agreement
reached as a result of such bargaining.
WE wI.l. pay our nine unit employees on lay-
off as of April 15, 1977, their normal wages for
the certain period required by the Decision and
Order of the Board rendered in Case 9-CA
11061.
KEY COAL COMPANY
DECISION
STATEMENT OF THE CASE
ROBERT G ROMANO. Administrative Law Judge: This
case was heard in Logan, Ohio, on August 8, 9 and Sep-
tember 7, 8, and in Nelsonville, Ohio, on September 28 and
29. 197 7 .' The charge was filed by the Union, United Mine
Workers of America, on February 15. The complaint, is-
sued on April 26, alleged that Respondent, Key Coal Com-
pany (herein Key Coal), by certain conduct had violated
Section 8(a)(1), (3), and (5) of the National Labor Rela-
tions Act, as amended. By answer timely filed on May 4,
Respondent contested jurisdiction, denied it had commit-
ted any unfair labor practices, and raised certain other af-
firmative defenses. Subsequently, on written motion of the
General Counsel to amend the complaint dated August 17,
and after due consideration of written oppositions (filed
August 29) thereto, and with additional clarification and
further oral arguments on same,2 the General Counsel's
filing of an amended complaint (dated August 17) was al-
lowed on September 7. The amended complaint, as is clari-
fied by the General Counsel and as allowed at resumed
hearing, additionally alleged essentially that in regard to
All dates are in 1977 unless otherwise stated.
' See Procedural Issues'" section infra relative to further discussion of
issues raised in v.arious oppositions filed and argued.
Key Coal Company and united Mine Workers of
KEY COAL CO. 013
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the aforesaid alleged commission of unfair labor practices
by Respondent Key Coal, that certain "other Blazer corpo-
rations" and Blazer Materials Corporation had occupied
"single employer" status with Key Coal Company, and by
virtue of such relationship were significantly at the time
enmeshed in the aforesaid alleged unlawful conduct of Re-
spondent Key Coal to warrant, upon any findings made of
an unfair labor practice commission by Key Coal as al-
leged that remedial order, as appropriate, issue against
them as well as Respondent Key Coal. Individual answers
to the amended complaint were timely filed by the named
corporations on September 19, inter alia, denying single
employer status and any involvement in any unfair labor
practices. Additionally, Blazer Materials Corporation has
subsequently filed a separate motion to dismiss complaint
allegations as to that company with contentions that the
record establishes that it was not in existence at material
times, which motion has now been joined in by the General
Counsel in the latter's brief. For the above and other rea-
sons related infra, the motion of Blazer Materials Corpora-
tion as joined in by all the parties is granted. Cf. Bonded
Draying Senice, er al. 220 NLRB 1015, fn. 5 (1975). Mo-
tions to dismiss by Key Coal Company and by the other
"Blazer corporations" are fully resolved by the decision
reached herein.
Preliminary Discussion of Other Procedural Issues;
Statement of the Resulting Issues
The charge herein, filed February 15, names Key Coal
onlyv. The original complaint specifically alleged that on
February I. Respondent Key Coal had unilaterally and
without bargaining with the Union, and also discriminato-
rily, subcontracted the work of all of its employees repre-
sented by the Union, and from that date had refused to
bargain collectively and in good faith with the Union in
violation of Section 8(a)(1), (3), and (5) of the Act. In an-
swer thereto Respondent Key Coal denied jurisdiction and
commission of any unfair labor practices, and affirmatively
answered that Respondent Key Coal's mining operations
had much earlier been shut down by a third party lawsuit
and a resulting injunction;4 that such operations remained
shut down for such a lengthy period of time that due to
economic necessity, Respondent Key Coal had had to sell
most of its mining equipment; and that Key Coal presently
operated solely as a sales company, with no intention of
conducting mining operations or activities. Respondent
Key Coal further answered that under those circumstances
its failure to recall its employees from a layoff, previously
induced by the restraining order, had nothing to do with
-Also represented by counsel for Respondent were J. J. Blazer ('onstruc-
lion (Company. Inc., Angel (Corporation. Reliable Road IEquipment Sales &
Rentals. Inc., J. T. (orporalion. I I. Corporatlon and 1 lel Co( rporl;lin,
also herein collectively referred to as the "other Blazer (Corporat ins
4 Respondent Key Coal and Kimberly Mining Company herein called
Kimberly) were engaged in a joint venture to supply coal to (Columbhus and
Southern Ohio Flectric Company herein called ('olumibus ald Soulherr
for the latter's power plant at Poston. Ohio. Iollowing suit filed h\ Klitnher-
ly over a contended improper use by Key Coal of coal allegedly restricted ill
use for the Poston plant. Kimberly successful obtined an nlljunctlio of
Key (Coal's mining operations.
discouraging its former employees' membership in the
Union. In essence. Respondent otherwise contends that it
had promptly notified the Union and was at all reasonable
times ready and willing to conduct negotiations with the
Union. At the outset of the hearing, the General Counsel
contracontended that the evidence would ultimately show
that the Union had actually been faced with a fait accompli
inasmuch as the Union was not notified until but 4 days
prior to an agreement to conduct further mining operations
was entered by Respondent Key Coal with a contended
subcontractor, South Kentucky Mining Company (herein
called South Kentucky); that arrangements made by Key
Coal for the handling of Respondent Key Coal's prior min-
ing operations were accomplished as part of a subterfuge
and with ultimate purpose to avoid the bargaining obliga-
tion of Key Coal; and that Key Coal's actions were dis-
criminatorily motivated. The General Counsel additionally
contended that it would be shown there was less than an
arm's-length dealing between Key Coal and South Ken-
tucky.
In the latter respect the General Counsel initially ex-
pressed intention of eliciting testimony from the chief oper-
ating official of South Kentucky in regard to certain al-
leged oral arrangements made for the mining of coal that
was formerly mined by Respondent Key Coal. Later, the
General Counsel elected not to do so under somewhat
unique circumstances. Prior to the hearing the General
Counsel had lawfully served a sluhpoena duces tecum, on
South Kentucky, calling for production of records estab-
lishing, inter alia, the latter's corporate ownership, corpo-
rate officers, and directors: existing lease and contractual
arrangements between Respondent Key Coal and South
Kentucky; and ownership/lease of equipment used by
South Kentucky in the operation of Respondent Key
Coal's mines. The General Counsel had also served subpoe-
nas ad testificandum on certain individuals, Joseph Bathal-
ter and Kenneth Sloan, principal management representa-
tives of South Kentucky. At the outset of the hearing South
Kentucky appeared by counsel. The counsel advised that
he also personally represented Bathalter and Sloan as indi-
viduals. After presentment of reasons for present nonpro-
duction of documents pursuant to the subpoena duces te-
curnm, but with assurances of intent to fully comply given
opportunity, South Kentucky was given an extension of
time to comply with subpenaed document production, and
subsequently did so to the reported satisfaction of the Gen-
eral Counsel later in the hearing. However, Bathalter's
counsel advised the General Counsel and the court at the
outset of this proceeding that the United States Attorney's
office in Chicago, Illinois. was at that time conducting a
grand jury investigation involving certain entities (appar-
ently involving a considerable number of investigations)
and activities with which the alleged Bathalter and some
others have had contact: and that the counsel's informa-
tion was that Bathalter may well be a subject of that inves-
tigation. (While the General Counsel's available informa-
tion was limited, the latter subsequently represented the
investigation related to as many as 65 corporations includ-
ing South Kentucky and the sale of a certain F. H. Brewer
Company to J. J. Blazer.) The counsel further advised that
it was the counsel's understanding, from Bathalter, based
KEY COAL CO. 1015
on that account, that Bathalter would, if called as a witness
in this proceeding invoke his fifth amendment privilege
against self-incrimination and would refuse to answer
questions involving any of the activities of South Ken-
tucky. It was thus readily apparent that an immunity issue
was presented which, inter alia. in those circumstances
would involve a prior approval of the U. S. Attorney Gen-
eral and considerable delay before testimony might be or-
dered by the Board upon any party's request of the Board
for an order requiring testimony or information by Bathal-
ter in the instant proceeding before this Agency.5 It was
otherwise agreed at that time by the counsel for the Gener-
al Counsel and the counsel for South Kentucky, Bathalter,
and Sloan to await the production by South Kentucky and
review of all subpenaed documents and witness Sloan's
available and possible testimony thereon. It is noted in
passing that at no time (even after full production of South
Kentucky records) has the General Counsel ever contend-
ed that South Kentucky also consituted part of a "single
employer" with Respondent Key Coal or any other corpo-
rations of record.
In the interim the General Counsel had proceeded with
trial inquiry into matters of Key Coal jurisdiction, and cer-
tain other areas viz, those bearing on a contended subter-
fuge, e.g., Key Coal's potential manipulation of coal sup-
ply, equipment transfer, sale and lease, etc. Inquiry on the
original complaint issues was generally allowed in such ar-
eas relating not only as to Key Coal but as well to Respon-
dent's parent, J. J. Blazer Construction Company, Inc.
(herein called Blazer Construction), which wholly owned
Key Coal and South Kentucky. While some of the General
Counsel's inquiry of other corporate relationships was ini-
tially limited to their relationship with the latter issues, as
there was then no allegation of other corporations consti-
tuting a "single employer," the result of the inquiry that
ensued was nonetheless such that as a practical matter a
number of business related corporations were revealed in
the record to exist with common ownership, common offi-
cers, and directors as Key Coal; and as this record subse-
quently has established, in my view, to have been closely
related in business operations as a single employer.
On August 9 the counsel for the General Counsel
promptly advised the court that the General Counsel then
had under active consideration a proposed amendment of
complaint to allege herein the single employer status of a
number of said corporations, and that the General Coun-
sel's final position thereon would be promptly resolved
prior to the resumption of the hearing already scheduled
for September 7 (to accommodate South Kentucky's pro-
duction of the subpenaed documents). At the conclusion of
hearing on August 9, the General Counsel also requested
that the Administrative Law Judge then recommend to the
Board that it presently pursue and issue an order that
would require Bathalter to give testimony or provide other
information at the instant proceeding. With the real pros-
pect of a substantial complaint amendment and a deemed
incomplete state of supporting record otherwise (e.g..
South Kentucky not having made return, but intending to,
See (rime ( ontrol Act of 1970 118 I S.( 6)001 4A), and he Board'
Rules and Regulations Sec 102.31 (c.
and with witness Sloan's assured availability and potential
testimony thereon), I denied the General Counsel's request
at that time, but with permission as part of that ruling to
renew the request at a later part of the proceeding should it
then be deemed necessary. The General Counsel's request
was renewed on September 8 after subpena return of South
Kentucky6 and at that time the request of the General
Counsel was granted. Ruling was made recommending the
appropriate action be taken by the Board, circumstances
then appearing sufficiently clear to me that Bathalter's tes-
timony herein "may be necessary to the public interest." 7
However, thereafter for reasons which fully appear of rec-
ord, and in general relate to practical assessments of public
interest in the various matters (and with prior consultation
with the Charging Party), the General Counsel subsequent-
ly withdrew such request on September 28. s My ruling and
recommendation to the Board in that regard were then
withdrawn on September 29.
In the interim as noted the General Counsel had filed a
motion to amend complaint dated August 17, which essen-
tially alleged that Respondent Key Coal and the several
"other Blazer Corporations" and Blazer Materials Corpo-
ration were corporations during material times operating
as a single integrated enterprise with common ownership,
management, supervision, facilities, and centralized con-
trol of labor relations and as such constituted a single em-
ployer. Written oppositions (identical but separate) dated
August 24 were filed by the named corporations on August
29 and these matters came on for full consideration at re-
sumption of hearing on September 7. Inter alia, the individ-
ual written motions in opposition were based on conten-
tions: (a) that a separate corporation could not be added
by amended complaint since each was a separate entity
from Key Coal entitled to be served with a formal com-
plaint based on claims made by some person other than the
Board, citing N.L.R.B. v. Hopwood Retinning Co.. Inc.. 98
F.2d 97 (2d Cir. 1938): (b) that the case had already been
partially tried and to add corporations at this time would
deny the added corporations a full hearing from the begin-
ning of the trial procedure and thus be in violation of their
rights; and (c) essentially that the amendment was a sub-
stantial one and that the responding corporations had not
been afforded ample opportunity to examine into the mat-
ter and prepare for a trial of those issues. These matters
were further orally argued by the parties on September 7.
The General Counsel at the time clarified that it was his
position that a timely service of the charge on Key Coal
was effective service of the charge on all corporations
should said corporations be found at that time to constitute
' The request was made after amended complaint filing was allowed alleg-
ing certain corporations (hbut not South Kentucky) constituted a single em-
plover. and after full return of South Kentucky to the .ubpoena duces ecumrn,
presuniably showing South Kentuck) ownership. officers. equipment and
an existing documentarN relationship to Key Coal
Initial ruling was made recommending that the Board pusue an order
directing conpulsor lestimons from Bathalter in the area of contractual
arrangements. written, oral. or otherwise relating to performances of ser
,ices directly or ndirectl for Kes ( oal
Such occurred priir t, preparation of a.ppropriate frmall documents bs
the General (ounsel and the counsel fr Bathalter on a proposed expression
of subhect imlmun is for m consideration and approval for submission o
Ihe BoHird
KEY COAL CO. 15
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a single employer. However, the General Counsel acknowl-
edged that service of the amended complaint alleging that
said corporations constituted a single employer had not
been served on individual corporations (other than Key
Coal), but represented he would cause such to be done
immediately, which the record reveals was subsequently
promptly accomplished. Further, the General Counsel spe-
cifically clarified that by the aforesaid amended complaint
he was not seeking or intending to proceed against each of
the additionally named corporations individually, e.g., to
add each as an individual respondent and obtain unfair
labor practice findings against them, but rather only to
allege them as a single employer in view of their contended
relationship to Key Coal in the latter's alleged commission
of unfair labor practices, the matter originally charged, and
thus effect any appropriate remedial responsibility even at
this juncture.
The amended compaint was allowed contingent upon
the immediate service of a copy of the amended complaint
(notice) on each corporation alleged as constituting a single
employer. Further, it was ruled that each and every corpo-
ration would be afforded the opportunity to fully litigate
the single employer issue including the right to examine
and cross-examine all witnesses (including those who had
already appeared and given testimony); to object to evi-
dence previously introduced; and to introduce other addi-
tional relevant testimony into evidence before the issue was
ultimately decided. That procedure was followed. Addi-
tionally, all the said named corporations were granted an
appropriate and full continuance (as they requested) to ad-
equately prepare for trial of the issues. I have carefully
considered the above and all other arguments and conten-
tions raised by Key Coal and "other Blazer Corporations"
in this matter and continue to adhere to my earlier ruling
allowing the amended complaint under those circumstanc-
es, to additionally allege such single employer status for
any potential remedial purpose on the basis of the Board's
holding in Royal Typewriter Company, a Division of Litton
Business Systems, Inc., a Subsidiary of Litton Industries,
Inc., and Litton Industries, Inc., 209 NLRB 1006 (1974),
enfd. sub mon. Royal Typewriter Company v. N.L.R.B., 533
F.2d 1030 (8th Cir. 1976).9 Finally, I further note that the
same appears equally dispositive of "other Blazer Corpora-
tions" contentions contained in their individual answers
that a complaint amendment as to them is prohibited by
Section 10(b) of the Act. As to the latter contention, it is
clear that the General Counsel has not sought to add the
said corporations as individual respondents and charge
them with any independent unfair labor practice commis-
sion, but rather only to notice them of potential remedial
responsibility for a timely charged and complaint alleged
unfair labor practice comission by Respondent Key Coal
Company in which they were allegedly enmeshed by virtue
of their alleged single employer relationship with Key Coal.
The added corporations have been adequately provided
with notice thereof by service of a copy of amended com-
plaint on September 12, and full hearing process on the
9See also and compare N.L. RB. v. Ozark Hardwood Cornani. 282 F.2d
1. 4 (8th Cir. 1%960): and Barrington Plaza and Tragniew, Inc. 185 NLRB 962
(1970); Egro. Inc. and Esgro Valley Inc.. 135 NLRB 285 (1962).
issues has now been provided them. In my view the initial
timely service of charge on Key Coal, and subsequent ser-
vice of the amended compalint on all corporations is effi-
cacious to present these issues to the Board for resolution
herein.'" I proceed accordingly.
The major issues presented for consideration herein thus
appear to be:
I. Whether the Board otherwise has jurisdiction over
these several matters.
2. Whether the Respondent, Key Coal, by subterfuge, or
otherwise, discriminatorily subcontracted the work of all
the unit employees and thereafter terminated all unit em-
ployees because of their membership in, sympathy for,
and/or activities on behalf of the Union in violation of
Section 8(a)(3) and (1) of the Act.
3. Whether, as alleged, Respondent Key Coal since, on,
or about February I has refused to bargain collectively in
good faith with the Union as the exclusive bargaining rep-
resentative of its employees by unilaterally and without
bargaining with the Union, subcontracting the work of said
employees, in violation of Section 8(a)(5) and (1) of the
Act.
4. Whether J. J. Blazer Construction Company, J. T.
Corporation, Key Coal Company, Angel Corporation,
A. L. Corporation, Tyler Corporation, and Reliable Road
Equipment Sales & Service, Inc., during material times op-
erated as a single integrated (or sufficiently closely related)
enterprise such as to warrant conclusion that they consti-
tute a "single employer" as alleged," and further, whether
on the facts of record they should be concluded to have
been so enmeshed in the alleged commission of unfair la-
bor practices by Respondent Key Coal as to warrant an
appropriate remedial order to run against those corpora-
tions as well as Key Coal Company upon any finding
herein found warranted of an unfair labor practice com-
mitted by Respondent Key Coal.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel. Respondent Key
Coal, other collective responding corporations, and the
Charging Party, on or about November 3, 1 make the fol-
lowing findings of fact.
I. JURISDICTION
The original complaint alleged jurisdiction of the Board
over Respondent Key Coal. By answer to the original com-
plaint, Respondent Key Coal originally denied jurisdiction,
but at the hearing stipulated jurisdiction. The subsequently
amended complaint alleged that the jurisdiction of the
Board exists over Key Coal, the "other Blazer Corpora-
tions," and Blazer Materials as constituting an alleged
"single employer." Respondent Key Coal and other re-
sponding corporations, by individual answer to the
I' I thus find it unnecessary to address the issue of the General Counsel's
subsequent service of copy of original charges upon the individual corpora-
tions at hearing: nor on the propriety of vicarious commission by six or
sesen added corporations. See fn. 9. supra
l Fhe absence of a factor ,f "integration" would not prevent a finding of
a single employer status where other factors are sufficient to support the
finding ( n Brothers (nrraiting (onipam, 135 N RB 108. 120 (1962).
KEY COAL CO. 1017
amended complaint, have denied that jurisdiction of the
Board lies over them as a "single employer."
Key Coal is an Ohio corporation (as are the other corpo-
rations alleged to constitute a single employer), which dur-
ing times material herein 12 was engaged in the business of
mining, purchase, and sale of coal. At the hearing witness
Kenneth Lee,' 3 secretary-treasurer of Key Coal. testified,
and Respondent Key Coal thereupon subsequently stipu-
lated: that Key Coal purchased and received goods and
materials valued in excess of $50,000 from nonretail sup-
pliers located within the State of Ohio, who had themselves
purchased these goods directly from points located outside
the State of Ohio (indirect inflow): and further that at all
times material herein Respondent Key Coal is, and has
been, an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act. I so find. Siemorns
Mailing Service, 122 NLRB 81 (1958).'4 The allegation of
the amended complaint is that Key Coal and certain other
named corporations constitute a single employer which
meets the same asserted jurisdiction standard of the Board.
With regard to that allegation, Key Coal and other re-
sponding corporations by answer have denied the jurisdic-
tion of the Board and in a joint brief contend that there
was an absence of proof thereof, consequently urging dis-
missal of the complaint in those particulars. The General
Counsel contracontends in the latter's brief that the short
answer to any such contention is that, assuming it be found
as alleged that Key Coal and the other entities named in
the amended complaint comprise a single employer, the
Board would necessarily have jurisdiction by virtue of Re-
spondent's previous concession of jurisdiction over Key
Coal Company. I conclude there is merit to the argument
of the General Counsel and so find, though I further note
on the record before me there would be no need to rely
solely thereon. 15 The remaining issue of whether, as al-
leged. all or any groupings of the named corporations con-
stitute a single employer is next considered and I find on
the record must also be resolved in favor of the General
Counsel's contention.
Blazer Construction was incorporated on May 13, 1965.
I note, and presentl) reserve, resolution of the emploer' refined con-
tention that in more recent times Key Coal has no longer engaged In ain\
mining operation I also consider the status of Blazer Materials separatel,.
in context of its origin. infra
| Lee gave considerable testimony n this proceeding and in general m-
pressed me as basically straightforard in his iestimon and notahi candid
when responding to direct questions, Accordingly I generally credit lee
14 As further supportise of assertion of jurisdiction. official notice mas be
taken of the underlying representation proceeding involving the same Key
Coal Company. Case 9 RC 11196 and the previous assertion ofjurinsdiction
in the Decision and Direction of Election dated November 26. 1975. i
reported herein. Jurisdiction established over one of the single emplo)er
corporations appears sufficient. Ton D Clue, d h ia .iberhr (' Chamner. ctr i
227 NLRB 1296. 1303 (1977}.
' See fn. 14. In regard to the denial of jurisdiction by J 'I (' orproaton
(J. T. herein), it appears that official notice mal appropria:tel he taken f a
prior assertion of jurisdiction b, the Board over J T. (during tines mater al
herein) in an unfair labor practice proceeding invsoling the latter as reflect-
ed in JD 358 77 dated May 23. 1977. and Board order unreportedl ap-
proving same dated June 23. 1977, cf. St Joieph Hosrpztal Eab,. ,i, . 236
NL.RB 1450 (19781 As noted infra, both Kes Coal nd J I are each u hol-
I1 owned subsidiaries of Blazer ('Constructllon. he record oitherv ise estab-
lished that Reliable sold equipment in excess of $50.000 in Interstate conm-
merce.
and engages solely in heavy highway construction and has
not at any time directly engaged in coal mining. However,
Blazer Construction has two subsidiaries, Key Coal and
J. T.. which were engaged in mining, purchase and sale of
coal.'6 The present officers and directors of Blazer Con-
struction and its subsidiaries (J. T. and Key Coal) are es-
sentially the same: 7 namely, J. J. (Jack) Blazer, president,
his wife Angel Blazer, vice president, and Kenneth Lee.
secretary-treasurer. Jack and Angel Blazer own 251 shares
and 135 shares respectively (all the outstanding stock) of
Blazer Construction, which in turn wholly owns its subsid-
iaries Key Coal and J. T. Reliable Road Equipment Sales
and Rentals. Inc. (herein called Reliable), was incorporat-
ed on December 1,. 1967. and is engaged in the business of
buying, selling, and leasing heavy equipment. Jack Blazer
individually owns all the outstanding stock of Reliable.
Reliable's officers and directors are the same as the officers
and directors of Blazer Construction (excepting Willis).
Angel Corporation (herein called Angel) was incorporated
on January 15. 1971. and is engaged principally in real
estate and building construction. Jack and Angel Blazer
own two-thirds and one-third of the outstanding stock of
Angel. respectively. Angel in turn wholly owns two subsid-
iary corporations. A. L. Corporation (herein called A. L.)
and Tyler Corporation (herein called Tyler). A. L. and
Tyler were apparently both "shell" corporations when ini-
tially used for the purpose of holding certain coal sale con-
tracts with Southeast Ohio Coal Company (herein called
Southeast) which brokers coal supplies to Columbus and
Southern, amongst others.'8 Blazer testified that Tyler has
also sold coal to other brokers or companies as well. The
present officers and directors of Angel, A. L., and Tyler
are also essentially the same. Thus Jack and Angel Blazer
are president and vice president, respectfully, of each cor-
poration; and Kenneth Lee is secretary-treasurer of Angel,
and secretary of A. L. and Tyler. Apart from management,
Reliable, A. L.. and Tyler have no employees.'9 From the
above it is readily apparent that Jack and Angel Blazer
own all these corporations, and that Jack Blazer is either
sole or principal stockholder in the prime corporations.
Blazer Construction, Angel. and Reliable, with the former
corporations in turn controlling their respective subsid-
iaries. The record reveals clearly that it is Jack Blazer who
alone has been specifically authorized to enter and sign all
agreements and contracts on behalf of each of the above
corporations, and it is he who has exercised control over
the fundamental decision making process. I c lude and
find that the above corporations are commonly owned, di-
rected, and controlled. However, it would appear that the
record herein would not support a conclusion that these
corporations are engaged in a fully integrated enterprise.
Ib Ke' (Coal, preciousls incorporated hb others in 1968 (discussed infra).
was acquired bh Blazer Construction on October 1, 1974. J. T. was origi-
nall incorporated as Admar. Inc.. on October 18. 1972, and obtained ts
present name change on Januar' 7. 1975.
| The sole exception is that Blazer Construction has an additional vice
president. (lde Willis. Willis Is not a director of any of the named corpora-
lions
A. L. as originalls incorporated as Sser Bridge Regional Shopping
(enter. Inc . and vTler as orEingalls mcorporated as 5Wheelersburg Shop-
ping Mall. Inc Both effected present name change on November 1. 1974.
Relia:ble has one emplo\ee who acts as Blazer's assistant.
KEY COAL CO.
- -
- -
1017
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thus, there is no evidence of employee interchange. Al-
though employees, frequently at the conclusion of work
with one company, may secure employment at another of
the Blazer companies such is without a transfer of seniority
and the benefits are different. There is also no evidence of
substantial equipment interuse. Movement of heavy equip-
ment, although occurring not infrequently between Key
Coal and J. T. (or vice versa) with at best limited excep-
tion, was essentially accomplished by lease and release by
Reliable to the respective corporations. However, the rec-
ord does support and fully warrants the conclusion that
these enterprises are closely related in their overall business
operations. Thus. in addition to the above relationships,
there is convincing evidence in the record in the form of
numerous business relationships between the various com-
panies and the practical manner in which the principal offi-
cers view the companies as one enterprise. Thus, for exam-
ple. J. T. provided substantial coal sales to Key Coal, both
originally (when Key Coal initially became a Blazer acqui-
sition) to assist Key Coal to continue to meet contractual
requirements to produce coal in its joint venture with Kim-
berly (discussed infra), and more recently when J. T. be-
came the primary supplier of coal to Key Coal thus en-
abling Key Coal to continue to meet the requirements of
the latter contract with Kimberly even while Key Coal's
operations were shut down by Kimberly for a substantial
6-month period. When Key Coal was initially acquired by
Blazer Construction, Key Coal's major heavy equipment
(excepting shovels) were immediately sold to Reliable, with
immediate lease back of necessary equipment from Reli-
able. Thus, Key Coal's method of operation was immedi-
ately corporately aligned with that of Blazer Construction
and J. T. in leasing equipment from Reliable. Although
Reliable does not limit its rentals to the same, it is nonethe-
less clear that it is Reliable that regularly services the heavy
equipment needs of Blazer Construction, J. T., and Key
Coal. When Key Coal was acquired by Blazer Construc-
tion, Key Coal had as an asset a certain mining property
(Andreck) on which J. T. subsequently obtained the min-
ing permit and has subsequently mined. There are numer-
ous, and convincing, references in the record by Jack Blaz-
er and Kenneth Lee which establish peradventure that
these common corporate officers viewed the business
transactions of these various companies as one close and
related operation as seen in their repeated use of descrip-
tive words to that effect, e.g., in repeated instances of the
case of the word "we" in discussing one company's busi-
ness affairs in relation to actions or services performed by
still another of the Blazer companies.
To be sure there are some factors that would seem to
militate against a finding of a single employer herein. Thus
the above corporations have separate bank accounts, and
those with employees have separate workmen's compensa-
tion and unemployment numbers. Each files separate tax
returns. Although there are apparently three primary group
insurance package plans, each corporation has a separate
insurance coverage according to its need and pays sepa-
rately therefor. However, even in the latter subject area I
note that, although Angel negotiated a certain lease of a
tipple (equipment used in crushing coal to size) and Key
Coal purchased certain equipment (which operated at the
tipple), fire and other insurance on both the tipple and
equipment is carried by Reliable.2 0
There is interuse of offices. Thus. Blazer Construction
and its subsidiaries, J. 1'. and Key Coal, have their offices
at Edith Drive, in Wheelersburg, Ohio, at the Blazer home.
Angel, and its subsidiaries A. L. and Tyler, have their of-
fices at a new facility at Ohio River Road in Wheelersburg.
Reliable has its offices at the Masonic Building in Ports-
mouth, Ohio. However, the record shows that Reliable has
used the offices of Blazer Construction and Angel for in-
trabusiness purposes; that Angel has conducted business in
the Blazer Construction and Reliable offices; and that an-
nual meetings and director meetings of individual corpora-
tions have been held at home offices other than their own.
With regard to the consideration of common labor policies,
Blazer Construction is party to contracts with various labor
unions covering its employees. These contracts are negoti-
ated by the Labor Relations Division of Ohio Contractor's
Association (covering Ohio, parts of Kentucky and West
Virginia). Angel and J. T. have separate employment poli-
cies and working conditions applicable to their respective
employees. The Union herein was separately negotiating as
to Key Coal employees. Blazer Construction, J. T., Key
Coal, and Angel also have individual local supervision,
usually that of a superintendent who directs daily produc-
tion. 2' However, Lee negotiated for Key Coal herein and
he also testified he had similar responsibilities over J. T.
employees. Blazer asserts he was more directly involved in
overseeing Blazer Construction and Reliable. However, it
is clear herein that Blazer's control of Key Coal is active as
it was Blazer who made the critical decisions affecting the
furture course and extent of operations of Key Coal. It is
the Blazers who have established management policy (with
Lee participating as a member of the board of directors)
for Angel Corporation, and the same indirectly for the
management policies of Angel's subsidiaries (A. L. and
Tyler). It is clear that the respective labor policies are each
and all subject to the respective control of the board of
directors of the various companies which, as I have noted
is common. As a practical matter, it is Jack and Angel
Blazer who own these corporations: it is Jack Blazer who is
sole or principal stockholder of the primary corporations.
and thus in control of their wholly owned subsidiaries;
and, as noted, it is Jack Blazer who is active in the affairs
of each in that he alone is authorized to sign contracts on
behalf of eazh and all of these companies. Key Coal and all
the "other Blazer Corporations" were represented in this
proceeding by one law firm. On this record it appears that
Blazer had but one accountant. I am thus wholly persuad-
ed that Blazer Construction and its subsidiaries (J. T. and
Key Coal), and Angel (with its subsidaries Tyler and
A. L.), and Reliable are not only commonly owned, but
are actively commonly directed and controlled, are subject
to a centralized labor relations control, and are sufficiently
- t.hen tequpment ucd at the ltipple a he
presumed to, have een suhsequenltl sold to Reliable. It is clear the tipple
lease remain ed lll l d d h Alngel. It is ctal of Kces (Coal that is primarikl
procse'e al the tipple
As notred apart from mainaglniernt Rehiable.A .. and ller have no
enlplices
KEY COA. CO. 1019
closely related otherwise in enterprise structure and opera-
tions to warrant the conclusion that they constitute a single
employer for both jurisdictional and other purposes herein.
I so find. Ozark Trailers, Incorporated, 161 NLRB 561
(1966): Royval Tpewriter Companrl, a Division of Litton
Business Svstems, Inc., etc., 209 NLRB 1006 (1974), enfd.
533 F.2d 030 (8th Cir. 1976). United Contractors Incorpo-
rated and JMCO Truhing Incorporated. Joint Employers, 220
NLRB 463 (1975); Production Molded Plastics. Inc. and De-
troit Plastic Molding Co.. 227 NLRB 776, 783 (1977): Cone
Brothers Contracting Company, i35 NLRB 108 (1962), enfd.
317 F.2d 3 (5th Cir. 1963). cert. denied 375 U.S. 945.
Whether the evidence is also such as to support additional
findings urged by the General Counsel that an) of these
corporations were actually enmeshed in any unfair labor
practice commission by Key Coal as alleged, such as to
make them appropriately remedially responsible. or. for
that matter, whether Key Coal has committed any unfair
labor practices in the premises alleged, is yet another more
factually complex matter. I find the Union is a labor orga-
nization within the meaning of Section 2(5) of the Act.
I1 THF Al I ll) NFAIR I ABOR PRACTI( IS
A. Background
I. The origin of KeN Coal
Key Coal, incorporated on January 25, 1968. has en-
gaged in the business of the purchase, mining, and sale of
coal.22 Key Coal's capital stock consists of 515 shares
which was initially issued to six stockholders as follows:
Kenneth Humphrey 155, Guy Champs 150, Russell Hoop-
er 65, Howard Humphrey 65. Lester Sorrell 65. and Otto
Simons 15. As of the fall of 1974. Key Coal owned certain
operating equipment, i. shovels, bulldozers, a drill.
pumps and related mining equipment. Key Coal also
owned certain leases with right to mine the coal reserves on
property owned by others, iz, the Andreck property and
the Beyer property. However, a major asset to Key Coal at
that time was a certain sales contract (dated August 4.
1971) with Columbus and Southern Ohio Electric Compa-
ny (herein Columbus and Southern) which Key Coal
owned jointly with Kimberly, an unaffiliated company. By
the terms of the sales contract, Key Coal was obligated to
produce coal in certain quantities for Kimberly in their
joint venture sale of coal to Columbus and Southern des-
tined for the latter's electric power generating plant at Po-
ston.
By the terms of the contract, Columbus and Southern
had agreed to purchase coal at a rate of a minimum of
' Kes (oal was engaged in a strip nining operation risolving a process
of coal relimoval wherein oiverburden is stripped from ground srface lea% neg
prec lusls localed sams f coa:l exposed Ihe coal s then etiracted iln hnp
form. generall hauled io a prepalration plant Itipple fr correctl Isliig. and
subsequenl bI delihered It) a given Clation per contract requirenenlt Sirice
such mining operalionsr insolre major ground disiurba nces. surface recla-
nalion is mandated and clisel regul.ted h appropriate goernmellli
agencies Resuliingl' reclamalon is significant cost fatlor in the cioilduic
of a;n strip mining operation I he Staer f Ohio require, hbnding at the
rate of $3251) per distiurhed acre
5,000 tons and a maximum of 10.000 tons a month. It was
Key's responsibility to mine and process the ordered coal.
Key was also obligated to process the coal destined for
Columbus and Southern at a crusher (tipple) which Kim-
berly then had under lease, at least to the extent of the
capacity of that tipple. For this service Kimberly charged,
and Key Coal paid a normal service charge of 50 cents per
processed ton of coal. Key Coal was also responsible for
the hauling of coal from mine pit to Kimberly's tipple for
sale and delivery to Columbus and Southern's Poston
plant.23
2. The acquisition of Key Coal by Blazer Construction
Blazer Construction purchased Key Coal on September
30. 1974.24 Humphrey and Champs were the principal
stockholders of Key Coal. At the time of sale. Humphrey
entered a written employment contract (as did Champs)
with Key Coal and Jack Blazer whereby Humphrey would
remain with the Company for 5 years at an annual salary
of $20,000. Humphrey agreed that during that period he
would not engage in any conflicting work. Humphrey's as-
signed duties were in overall management. Designated as
mine superintendent for Key Coal. Humphrey directed the
strip mining operations. Hie was given authority to hire and
fire employees, and he exercised that authority in hiring
employees. Contrary to contentions of Respondent Key
Coal. I find that during times material herein Ken Hum-
phrey was a supervisor and agent of Key Coal within the
meaning of the Act. 25 Humphrey testified (without contra-
,, \ccrding to Kenneth llumphres. the 1971 conract lso pros ided that
first nined coal would go to Columbus and Southern in the ordered
amOilli *\ns o1l produced a hose the ordered a:Ilmounts could he sold aIt
otliher places [)uring times material herein. as a practical matter. the coal
produced hb Ke, (Coal wa.s essentllN sold escluCoels t (olumbus and
Soiutherni for its Poston plant The oInls .pparent excepiorn was an undis-
closed .aIlountl of luintp coal sold al the pit to an indisidual whlch salels I
find no material herein in n eeni.
i4 the purchase price wals $650.0.X) I erms were 1(X). If) down on sgn-
lint .co inr;acli. a dditional palntent of $80.(X)0 on Februars 1. 197s, and
the Irlrmilng $470.000(X in four equal Instalilments of $1 17.500 each on eh-
ruilr I. 1976. 1977. 1978. and 1979 Inlterest at he rate of 8-1 2 percent was
pas.hblc quarterl, uon deferred nnull palments commencing Fehruar I.
1975. with right of accelerated pa!ment after Fehruars 1. 1976. There was
n, ei
dc lnce f an! accelerated pasment hasing been malrde. he six frmer
ow;ner ere to receie a pro ralt.a share of paments when mrade.
Respindent Kes (Coal contends that fter Ke (oal's shutdown of ,i p-
er.atons In June 1976. that line Superintendent luinphres and Mine 1ore-
ma.n ( hnps hid hbe.ome no more than w.itchman oser its prenmises and
equlpmcntl \s the highcst representati.e f Ke ( al oin the premises. It I1
proh;lbai that Iu lmphre in ans ecnrit v. uld ha.l hbeen responsible for the
premises anid the aluable equipmnent Ilowecer Respndent ncer told
llinlphre; prior Io n uncertlin date hetween nid-Fehruar I and carls
Mlarcl thal Hurlphre' services ron the premises as superintendent would
no longer he required. nor did Respondent announce to emplosees, who
continne d di ring their laoff perlnrd to look t Humphres ils superintendent
im their inqulries about work. th.at Humphre's ;as no ringer their superlisor
I hroughoul the shutdown Humphres cionrinued to occups the
superiltendent's office as he alwavs had in the past. Indeed a laite .s earl!
ehrurs. on11 the tKca.lson hen (:'lde ' illi. lce president of l;iler Con-
trultion. ssited Ke; (Coal premises n I.ee's absence and in effect aIn-
nounced termiatllion of the unit emploNees then oin lasoff. it was lumlphre,
wholM Willis directed to so inforrm employees At the same time Hlumphre?
Als Kes (Coal's representalile in issuin eich tickets to drlcers ensuring
accuirate a;lcounting f the coal sold t .rnd being exlracted h others I a;m
cholIs coninced that Huilphre continued Io oLcup the posilin of mine
superlncildent nd possessed uperssiors .ind r .agencs status LIt least
('ontnued
KEY COAL CO.
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
diction) that prior to the Blazer Construction purchase of
Key Coal, Jack Blazer had asked Humphrey if Humphrey
thought that any union problem would develop with the
men. Humphrey told Blazer that in the past, with the Key
Coal employees mostly stockholders, there was no way, but
that Blazer's situation would be completely different and
there was no guaranty. I credit Humphrey in these re-
spects. The purchase contract also provides that Lester
Sorrell, Howard Humphrey, and Otto Simons (former
owners), and Melvin Thompson would continue to work
for Key Coal at the rate of $5 per hour "so long as their
work is satisfactory and work is available for them." It also
provided that Key Coal would pay increases to the em-
ployees from time to time "as determined by increases in
the average wages paid in the open pit coal mining indus-
try."
3. Concurrent operations and business of J. T., A. L.,
and Tyler
J. T., like Key Coal a wholly owned subsidary of Blazer
Construction, was also at this time engaged in strip min-
ing. 26 At least by November , 1974. A. L. and Tyler had
been established initially at the request of Southeast Ohio
Coal Company (herein Southeast) to hold certain sales
contracts with Southeast for the sale of coal also generally
destined for Columbus and Southern. These contracts were
wholly separate and apart from Key Coal's direct sales
contract jointly held with Kimberly. By December 1974,
J. T. as a Blazer enterprise produced coal and was primar-
ily supplier of coal for A. L. and Tyler. In summary in late
1974 Blazer Construction's subsidiaries J. T, and Key Coal
were both involved in the strip mining production of coal
destined ultimately for Columbus and Southern, but with
J. T. producing the coal for Angel's subsidiaries A. L. and
Tyler which held sales contracts with Southeast Ohio Coal
Company which then brokered the coal to Columbus and
Southern (and possibly others), while Key Coal was party
to a direct sales contract with Columbus and Southern
though jointly held and only involved in production. Al-
though the particular contracts under discussion were
clearly separate and distinct, the nature of the businesses
were obviously closely related and the ultimate user pri-
marily the same.27
through mid-February to early March 1977, at which time Kenneth Leec
notified Humphrey that his services at the time would be no longer required.
and that he (and (hamps) should then begin a search for additional coal
reserves for Key Coal.
26 Apparently as of the fall of 1974 the present J. 1 was operating ils
Admar, Inc., as it subsequently obtained its present name by a change
effected January 7. 1975.
27 At the hearing the General Counsel contended that conditions had thus
existed for potential manipulation of coal supply. pointing to circumstances
that Key Coal later purchased Kimberly's assets in December 1976 and
while ceasing mining operation continued thereafter to meet its contracl
coal supply requirements to Columbus and Southern through purchases of
coal from J. T. However, as we shall see. that supply procedure was initiat-
ed 6 months earlier and there had been other changes in Key (Coal's nining
capacity by that time.
4. Operational and facility developments at Key Coal
After Blazer Construction purchased Key Coal, Key
Coal sold the major portion of its heavy equipment to Reli-
able.28 Reliable then leased required heavy equipment back
to Key Coal, e.g., the bulldozers, at certain rental per
month or longer period.2 9 Notably, Reliable effected the
purchases of Key Coal's major heavy equipment with at-
tendant bank financing of its own. In summary, Key Coal's
method of operations (insofar as the major portion of its
heavy equipment) became aligned with the method of op-
eration of Blazer Construction and J. T. in the use of
Reliable's rental services. As noted at time of purchase,
Key Coal had owned a certain lease on the Andreck prop-
erty (also apparently known as Tick Ridge). The record is
unclear as to what documentary arrangement there may
have been, if any, between Key Coal and J. T. as to that
property, 30 but it is clear from the testimony of Lee that it
was J. T. that subsequently obtained the appropriate gov-
ernmental permit to mine that property, displayed its name
on the property, and subsequently mined the property. Af-
ter the purchase of Key Coal, certain new equipment was
also moved onto Key Coal's other (Byer) pit and remained
there till the latter was mined out. The equipment was then
moved on to J. T.'s Jolly mine, with apparent exception of
one D-9 dozer used by Key Coal which was moved to Wolf
property (operated by Key Coal), and thence to Andreck
property (operated by J. T.). Humphrey also testified that
when Key Coal initially started up it was using compara-
tively small equipment and for a few months Key Coal had
had to rely on the purchase of additional coal from J. T. in
order to meet the order requirements of its (joint) contract
with Columbus and Southern. According to Humphrey,
whom I credit, after Key Coal got a larger shovel in opera-
tion it did not fail to meet its coal production requirements
under the contract until its own operations were shut down
in June 1976.
5. Kimberly's procurement of additional coal reserves;
and restrictions
On January 17, 1975, Kimberly obtained a lease from
Herschel R. and Linda Bensonhaver covering two tracts
involving approximately 135 acres. Under the terms of this
lease, commencement of mining on the Bensonhaver prop-
erty or on an adjacent Wolf property was optional. On
January 21, 1975, Kimberly obtained a similar lease from
Forest 0. and Ruth Wolf covering five tracts involving ap-
proximately 277 acres.3 On March 7, 1975, Kimberly ob-
_h The heavy equipment primarily sold was bulldozers. Excepted were
filme three to four shovels, a couple of which had been used and the others
ilfrequenltl used r not used at all.
s previously noted Reliable regularly serviced the heavy equipment
needs of Key C'oal. J .., and Blazer Construction as well. There are several
instances of record where the same equipment was transferred (generally
shown acomplished with lease by Reliable) from Key Coal to J. T. proper.
ties. or ice ersa. Reliable also sold equipment. 'The record reveals a small
dozer formerly owned by Key Coal. upon sale to Reliable was repaired by
Reliable and then sold.
Iee did not know if there had been an assignment by Key Coal.
Ilhis figure includes acreage reflected in the subsequent lease agreement
dated March 7. 1975. wherein Kimberl y btained an additional written
lease fIrontm olf cosering approximately 20 acres which had inadvertently
KEY COAL CO. 1021
tained a similar lease from Ronald and Lucille Lampman
covering six tracts involving approximately 164 acres.
Humphrey testified, and I credit him, that thereafter Clyde
Willis (chief engineer and vice president of Blazer Con-
struction) reported to Humphrey that he had drilled these
three adjacent properties. Willis told Humphrey the esti-
mate was that there were 300,000 tons of coal in these three
combined properties.32 On December 9, 1975. Kimberly
obtained a fourth and final lease on contiguous property
from John C. and Ines E. Spencer covering three tracts
involving 45 acres. The coal reserve estimate on such prop-
erty was an additional 40,000 tons.
Each of the foregoing four properties were adjacent.
Each lease contained provisions whereby Kimberly agreed
to save harmless the respective property owner from suits
arising over use of the leaseed premises or the subsidence
of any surface resulting from the mining operations. Each
lease provided for royalties to be paid, but varied in pro-
visions as to commencement, advanced royalties, monthly
delay payments, and minimum tonnage. Especially note-
worthy, and an issue of greatly disputed significance be-
tween the General Counsel and Respondent (considered
infra), were certain lease provisions allegedly permissive of
mining by Key Coal, but not others without further written
consent of property owners, with certain exceptions, and
with provision that consent could not be unreasonably
withheld. The full provisions are set forth at this juncture.
Thus, the Bensonhaver lease (par. 16) provides in pertinent
part that Kimberly:
Will not assign or transfer this lease or subject said
premises or its rights therein or any part thereof with-
out the written consent of Lessor in each case first had
and obtained, which consent will not be unreasonably
withheld; except that said consent shall not be neces-
sary in any assignment to a subsidiary or parent of the
lessee, or to any successor to substantially all of the
been omitted in the first lease.
12 Respondent objected to the receipt of such testimony as nsolsing hear-
say and not constituting an admission exception against Key Coal because
Willis was not actually employed by Key Coal. However. Humphrey at the
time was unquestionably mine superintendent of Key Coal and came by this
evaluation report from Willis while serving in that official capacity. Further-
more. Humphrey testified that Willis was Blazer Construction's chief engi-
neer, and I have found also that Willis was a corporate officer of Key Coal's
parent. In that connection. Humphrey also testified credibly that from time
to time Willis appeared at Key Coal's premises and instructed him about
what to do. particularly as to reclamation matters, and caslonalls other.
wise, when Lee was not available. Humphre followed Willis' instructions
and directions. Willis was also actiels involbed in Ke Coal's affairs in
several confrontations with the Union at a Ke Coal picket line which had
resulted in work stoppages in February 1977 Finally I hae found. inter
alia, that Key Coal and the latter's parent. Blazer Construction. are part of
a single employer group of which the above managemental interinvolve-
ments are but additional evidences.
" I note that the Lampman lease reflected notice of certain questioned
defects or omissions in title which the property owner was attempting to
clear. but reserved on. It does not appear that the Bensonhaver propert) or
the Lampman property. which also reserved some mining delay rights in
order to remove timber, was actually mined during any times material
herein.
)4 Thus, Bensonhaver was to receive 60 cents per ton: Wolf 60 cents per
ton: Lampman 94 cents to the lessor, and 8 cents to the realtor: and Spencer
$1 a ton base with escalation of royalty at rate f 5 cents per dollar. per ton
of coal sold to Columbus and Southern at a rate in excess of S20 or else-
where in excess of $18 a ton with an additional 6 cents to the realtor.
assets of the lessee [or to Key Coal Company] that it
will take all possible care and make judicious use of all
property entrusted to it by this lease and will not im-
pair its value in any way except as is unavoidable in
the proper removal of the coal, and that on the termi-
nation of this lease it will deliver up the premises in
good order and condition, ordinarily wear and tear
excepted, except conditions incident to the removal of
the coal.
The Wolf, Lampman, and Spencer leases contained the
same language, excepting the above bracketed material.
However, each of the latter leases contained the additional
following separate provision:
Lessors expressly give and grant to the lessee the right
to assign this lease without the written consent of the
lessors to the Key Coal Company for the purpose of
permitting the Key Coal Company to mine, strip and
remove the coal from said premises belonging to the
lessors for the benefit of the lessee herein named. All
other assignments or subletting of this lease shall be as
required in the succeeding paragraph.
In respect to the assignments, the Benshonhaver lease
further specifically provided:
All rights, privileges, duties and obligations herein
contained shall extend to and be binding upon the
successors and assigns of the parties hereto, but lessee
shall not assign this lease or sublet the whole or any
part of its rights or privileges hereunder without in
each case first obtaining the written consent thereto of
lessor, its successors or assigns, which consent will not
be unreasonably withheld [except as provided in par.
16].
Again the Wolf, Lampman, and Spencer leases each con-
tained the same last above provision, excepting bracketed
material.
6. The assignment of leases by Kimberly to Key Coal;
extension of their joint contract with Columbus and
Southern
The record reveals that a new agreement was reached
between Kimberly and Key Coal on April 9, 1975. While
the full terms of that agreement are not of record, sufficient
record evidence nonetheless exists to warrant the conclu-
sion that the agreement was in nature an assignment by
Kimberly of its mining rights on the Bensonhaver, Wolf,
and Lampman leases but with certain restrictions discussed
infra.Thereafter, and during the next year, Key Coal mined
portions of the Wolf property, access to which was on Ben-
sonhaver Road. Key Coal continued to use Kimberly's
(leased) tipple to process the mined coal, at 50 cents a pro-
cessed ton. At an undisclosed time an extension of the joint
Key Coal-Kimberly direct sales contract with Columbus
and Southern was apparently also negotiated. That con-
tract by its terms was then to run to 1990, though its full
terms are not of record. By the last of May 1976, Key Coal
had also obtained a further assignment of Kimberly's min-
ing rights on the Spencer property, as Kenneth Lee testi-
fied credibly that by this time Key Coal had begun prelimi-
KEY COAL CO.
1022 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
nary uncovering of overburden on the Spencer property.
7. The Key Coal-Kimberly lawsuit; Kimberly's
restraining order shutting down Key Coal operations
On May 19, 1976, Jack V. Oakley. attorney for Kimber-
ly. notified Key Coal and Jack Blazer that it had concluded
Key Coal had breached its (assignment) agreement with
Kimberly for failure to sell coal exclusively to Kimberly
contending such was "a direct violation of the agreement
and is a failure of consideration for the agreement." The
notice advised Key Coal that the latter should consider
their agreement of April 9. 1975. terminated. The letter also
requested a full accounting within 5 days for tons of coal
removed and taken to premises other than Kimberly. On
May 25, 1976, Kimberly filed suit against Key Coal, alleg-
ing Kimberly's belief that some 5,000 tons had been re-
moved and converted to Key C'oal's use.
36 (Kimberly
sought a temporary restraining order, an accounting, and a
judgment against defendant Key Coal in the amount of
$75,000.) On the same day, a memorandum in support of a
temporary restraining order was filed further alleging that
there continuued a daily removal of 2,000 tons. A tempo-
rary restraining order issued and mining at Key Coal
ceased about June 2.7 Key Coal apparently filed counter-
claim, the nature of which is not of record. However at
hearing, the presiding judge urged upon Kimberly and Key
Coal that the matter be resolved between them by purchase
of one or the other, of the other's interest in the joint ven-
ture. I also find at this juncture that, as of this shutdown,
there was approximately 20.000 tons of coal that had been
opened (uncovered or partially uncovered). I further find
that as of this time Key Coal had been mining approxi-
mately 100,000 tons a year; had worked about 1 year on
these properties; and that there remained approximately
240,000 tons of the estimated coal reserve tonnage still in
the properties, or, 2-1/2 years' work, were the prior annual
rate of retrieval to continue.3 However, I also credit
Blazer's testimony that Columbus and Southern had by
this time substantially reduced its order with Key Coal-
Kimberly to 5,000 tons (or even less) a month. J. T . orders,
" Spencer confirmed that it was Ke ('oal hich had opened ulp the col
vein on his properly but that Ke ('oai had neser renmosed an) coal.
t lhe complaint specified that consideration Ifr Kinibcrly's aslgnlllent
of lease to assignee Ke (.Coal hard Included the proisin
Assignee further agrees to sell exclusiisel] to assignolr it the price then
currently paid by the (olumhbus and Southern Ohio Electrc ('omprni
for its Poston piant all of said coal fronm V(xhibits A. B and ( as de-
manded by assignor and said coal shall he transported at assignee's
cost to assignor's preparation plant for prepa;ration by assignor f said
coal. Assignee agrees to pa .aisigior the normal charge for prepara imi
of said coal.
While the contract itself was not offered in eidence. ceruified cop of the
complaint filed by Kimberl, was. withoilt objection. and contuned yerifica-
tions of same hb Hubert ( Stage. presidenl Iof Kimnberl.s ind Kimherl' s,
counsel.
T he record reveals a signed temporary restraining iorder ,lis filed a1;\
25 and apparenll? prelirlinar\ injunclr n ti sas granted June 7 I finid Ihe
restraining order effected a closure of the Kes (oal operation solnietinle
between May 25 and June 7. 1976, and probhahl on June 2, as indicated hb
some emploree witnesses
t This finding is hased ron credited estimon of Mine Superintendent
Htumphrey.
as well, had been similarly reduced substantially by Co-
lumbus and Southern ordered reductions. I further note
that even prior to the shutdown, Key Coal and/or Reliable
had undertaken steps to remove and sell certain equipment
not then needed by Key Coal." In the interim between
Key Coal's commencement of mining these properties and
prior to the shutdown of Key Coal mining operations on
these properties induced by the Kimberly lawsuit and re-
straining order, there had been union organizational devel-
opments at Key Coal, and also a contended display of
strong animus thereto on the part of Key Coal's major
corporate officers, Jack Blazer and Kenneth Lee.
B. The Union Movemen and Cerrification
Russell Hooper, an original Key Coal owner, was em-
ployed by Key Coal as an employee from September 1974
(on acquisition by Blazer Construction) until laid off on
June 2, 1976. Hooper (who operated a large D 9 "dozer" )
contacted Donald Nunley a representative of District 6 of
the United Mine Workers of America and obtained some
union authorization cards from him. Hooper then signed a
union card and brought other authorization cards in his
truck to the pit where the men were working. Hooper in-
formed the employees there that he had union cards in his
truck if any wanted them. Ten of Key Coal's (then em-
ployed) I nonsupervisory employees eventually signed au-
thorization cards for the Union. A petition was filed on
September 8, 1975, in Case 9--RC 11196, and hearing
thereon was held on September 29. 1975. In due course a
Decision and Direction of Election was issued on Novem-
ber 26. 1975. Therein, the Regional Director found that,
"All production and maintenance employees employed by
Key Coal at its Washington Township. Ohio mine: exclud-
ing all office clerical employees, and all professional em-
ployees. guards and supervisors as defined in the Act."
constituted a unit appropriate for the purpose of collective
bargaining within the meaning of Section 9(b) of the Act. I
find that the above-described unit constitutes an appropri-
ate unit herein as the complaint has alleged. Following an
election conducted on January 7, 1976, the United Mine
Workers of America was certified on March 4. 1976, as the
representative for the purposes of collective bargaining of
employees in the above appropriate unit. The Employer's
request for review was denied by the Board on April 23,
1976.
C. Alleged Animus
While conceding that certain conduct by' Key Coal's cor-
porate officers Jack Blazer and Kenneth Lee was barred by
Section 10(b) from being the basis for any independent
unfair labor practices finding herein, the Gieneral Counsel
nonetheless contends that certain incidents, which oc-
curred after employee organizational activity of Key Coal
employees in 1975 became known, and certain conduct of
J. T. in 1976, reveal strong animus to employee protected
activity; and properly may serve as backround in the eval-
1 Itns findinl is hsed un credited and essentially mutualls consistent
tsllion, of Blaier. Iee. and Superintendentl umphre
KEY COAL CO. 1023
uation of Respondent Key Coal's motivation in its alleged
wrongful conduct on February 1, 1977. To these issues of
alleged animus I now turn.
1. The Jack Blazer-Kenneth Humphrey conversation
Humphrey testified that he first heard of employee
union talk about the fall of 1975. About that time he re-
ceived a call from Lee asking Humphrey to meet Blazer at
a restaurant in Jackson, Ohio, about an hour's drive away
from Logan, Ohio. Humphrey met Blazer in the parking lot
of the restaurant as requested.
According to Humphrey, after passing certain amenities.
Blazer asked Humphrey if he was aware that the men were
talking about joining a union. Humphrey acknowledged
that he had heard they were. According to Humphrey.
Blazer told Humphrey that he realized he had a contract
with Champs and Humphrey and that he would honor
those contracts, but in no way would he sign a contract
with the miner's union. Humphrey relates that Blazer told
him that he would close the mine down and would fence
the area off. Blazer then asked Humphrey to measure and
see how much fence he would need. Humphrey also testi-
fied that when he returnd to Logan he told the employees
what Blazer had said, viz, that he would not sign a contract,
that he would close the mine down, and fence the area off.
On cross-examination Humphrey conceded that Blazer
had not actually told him to tell the men these things, and
explained his having done so because he figured Blazer
wanted him to do so, with the reflection offered why other-
wise would Blazer have told him (these things) as Hum-
phrey had no way of getting in the Union. At the outset I
note that Humphrey impressed me in general as a knowl-
edgable, straightforward, and candid witness and I have
credited his testimony in a number of other particulars.40
Humphrey also testified that Blazer did not discuss this
matter with him again.
Called as a witness by Respondent. Jack Blazer con-
firmed a meeting with Humphrey in the parking lot of the
L & K Restaurant in Jackson. Ohio, though Blazer (un-
convincingly) placed the incident much later in November
1975 rather than the fall of 1975. Blazer's version is that on
that occasion he told Humphrey that he had heard that the
Key employees maybe were going to consider organizing
with the Union and told Humphrey that he would not be
involved in that. Blazer then told Humphrey that he would
not be involved in that. Blazer then told Humphrey that
Humphrey was closer to the men then he was, that Hum-
phrey was around them on the job. and they were all his
former partners. According to Blazer he then asked Hum-
phrey to convey his position (for him) on the benefits em-
ployees had, the long term contract, their (existing) work-
ing conditions and hours; and Humphrey said he would.
Blazer denied that he had said anything to Humphrey on
that occasion about not being willing to sign with the
40 I have partlcularl analzed lumphre}' lestim(ln' in siea of erlain
objections raised bh Respondent relating to a claimed failure to equester
him as a witness. though I additionall note as to the instant matier (whLch
was a reported one-on-one conversatiln) that sequestering would appear to
have minimal significante
Union. In support of this recollection and denial, Blazer
has noted that he (Blazer Construction) has had contractu-
al relations with various construction unions since 1958.
Blazer also denied that in this conversation there was any
reference to fencing the property. Rather, Blazer recalled
he had a conversation with Humphrey in which they had
discussed fencing much later, when Key Coal's mining op-
eration was enjoined (thus after June 2, 1976). Blazer re-
lates that at that time he did not know how long Key Coal
would be enjoined. According to Blazer his inquiry about
fencing was made in regard to protecting the property.
Blazer recalled that he had then asked Humphrey to check
on fencing and to measure the front (past the offices and
entrances) so that people would not get in on weekends.
Blazer confirmed that Humphrey never called him back on
it and acknowledged that he did not thereafter have the
property fenced though the Key Coal operation was shut
down for 6 months. Blazer would explain this circumstance
in that Humphreys and Champs adequately protected the
area by keeping the main road fenced up.
2. Ken Lee conversations with employees
Employer Hooper testified that Lee had approached him
in March or April 1976. while Hooper was working. Ac-
cording to Hooper. Lee told Hooper that Lee had a card he
would like Hooper to sign which was for the Company,
instead of the Union, to represent him. Hooper refused to
sign the card. Hooper relates that Lee then said he was not
going to hold any grudge against Hooper. but that he was
disappointed. Although Hooper recalled this conversation
as occurring in March or April, thus well after the election
and indeed potentially after certification, I am convinced it
occurred considerable earlier and probably before the rep-
resentation hearing held on September 29. 1975. Employee
Lester Sorrell testified that Lee also approached him while
he was working a shovel and wanted to know if Sorrell
would sign a paper to let the Company bargain for him.
telling Sorrell that most of the employees had alreadN
signed it.41 Sorrell testified that he did not read the paper,
but told Lee that he agreed to work for $5 an hour plus
cost of living raises and had received a 30 cent raise so far
and that he would sign a paper to that effect. Sorrell then
signed the offered paper without reading it as he did not
have his glasses with him. He told his son, working with
him, to use his own judgment. The son also signed a form
for Lee.
Called by the General Counsel, Lee testified in regard to
this subject matter that he had previously received indica-
tions from some of the employees that they were having
second thoughts and that they did not want to go through
with the petition. Lee testified that he had provided the
men with what he thought was a means of correcting what
they had done. Lee testified that all but two men had
signed the form that was prepared. and that these forms
were then presented to the hearing officer in the represen-
tation hearing.4 2 A copy of the form used was produced by
1I place little reliance on Sorrell's estimnons that might ndicate that this
Incidenlt ccrrtd In M;la ol Jlune 1976. n ilew of leading Inquir, and
posture of the record otherulse
4Although the suhbllitted forms were relected s exhlhits in the represen-
contlnued
KEY COAL CO.
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lee. After reference to the employee's prior support of the
petition, the form essentially provided: "The undersigned
now desires to withdraw his support for such petition and
does so without any promise of personal benefit or threats
of reprisal from his employer, Key Coal Company." I
credit Lee and find that prompted by some inquiry of em-
ployees he caused to be prepared the foregoing paper for
the intended purpose it relates. However, I further find that
Lee in such action solicited other employees from whom he
had not received such inquiries and with purpose to obtain
their disavowal of the Union as well. I also note the form
bears a 1975 date.
Hooper also testified that prior to the election Lee had
approached him on another occasion at quitting time and
asked what the men wanted. Hooper told Lee that Hooper
could only talk for himself, that he was interested in a
(union) hospital card, and a union card for a pension. Lee
inquired why they would want that now, when they never
had it. Hooper then advised Lee that they had had cards
years back. Hooper recalled another occasion of a conver-
sation with Lee shortly thereafter and also before the elec-
tion. Hooper had received word that Lee wanted to talk to
employees Hooper, Russell, and Bill Humphrey. On this
occasion Lee again asked Hooper what he wanted. Hooper
again told Lee he wanted the hospital and union card.
When also asked, Russell answered Lee that he wanted
wages; and Billy Humphrey handed Lee a copy of the
Union's current contract. Although Russell and Bill Hum-
phrey did not testify, and Hooper's testimony was not cor-
roborated by either of them, Hooper's testimony in these
particulars was not specifically denied by Lee. Lee did tes-
tify generally that if it were a matter of his preference he
would prefer not to have a union there, that he had on
occasion also talked to Jack Blazer, and that he knew that
Blazer was of the same view about the Union. However,
Lee testified also he recognized 43 and testified that Blazer
has to recognize that it was the men's choice. Lee testified
that he bent over backwards to make sure he told the men
each time that they had the right to choose, though he
acknowledged that he had also made it clear to the men
that he would prefer that the men not be represented by
the United Mine Workers. Lee denied that he ever threat-
ened or coerced any employees and apart, from what may
fairly be concluded from the above, there is no evidence to
the contrary and support for same in employee testimony.
As noted, Blazer has denied the strong and clear state-
ments of animus to the Union attributed to him by Hum-
phrey. In that connection, Respondent urges that in the
evaluation of this conflicting testimony of Blazer and
Humphrey that it is warranted that a controlling consider-
ation be given to the circumstances that with Blazer's deni-
al no corroborative employee testimony was offered by the
General Counsel to corroborate Humphrey's assertion that
he had subsequently told employees what Blazer had said,
tation hearing since a showing of interest is not a litigable matter. Lee
testified convincingly that the documents were retained. The General Coun-
sel did not contest the latter, nor did the General Counsel make any clarify-
in offer of proof of forms in that regard.
Prior to employment with Blazer enterprises Lee had been labor rela-
tions negotiator for the Ohio Contractors Association.
viz, that he would not sign a contract and would close
down and fence the mine. I have given full consideration to
this factor of the evidence and in other circumstances
might well have found the argument persuasive. However,
in this matter, I note that Blazer did not deny Humphrey's
other testimony that possible employee interest in a union
was a matter of Blazer's expressed concern in his initial
purchase of Key Coal. I note such a subsequent prompt
and direct Blazer inquiry of Humphrey upon Blazer's ini-
tial hearing of actual union activity by the employees is
wholly compatible therewith. Nor do I find it likely that
Blazer would have told Humphrey in November that em-
ployees maybe were going to consider organizing, as that
would have been well after the petition was filed, indeed
after the representation hearing was held. In contrast, it
does seem plausible to me that Blazer would have made
inquiry shortly after learning of the organizational move-
ment of Key Coal's employees in the fall of 1975 as Hum-
phrey relates. Nor do I find it convincing (given the above
prelude) that Blazer would have had Humphrey drive 40
miles on such occasion to simply designate him as the one
to express the Company's position to the employees, noting
further that it was Lee who thereafter actively expounded
the Company's position to the employees during this pe-
riod. Finally, in a number of other instances I have found
that Humphrey testified candidly and credibly; I simply do
not believe he concocted these remarks which he attributes
to Blazer on this occasion. In contrast, Blazer's version of
the conversation in November 1975, and his explanation as
to reference to "fencing" remarks as being post-June 1976,
simply has not convinced me to the contrary, either in the
recitement at hearing or on evaluation of all the other re-
lated evidence of record. Under these circumstances I am
not persuaded in this instance that an absence of employee
corroboration of Humphrey's testimony that he told em-
ployees what Blazer had said should be controlling in re-
solving the conflict on the issue of what Blazer said. Ac-
cordingly, for reasons earlier stated, I credit Humphrey on
this matter.44
As noted, none of the foregoing incidents are alleged to
be independent unfair labor practices, nor could they be,
given the scope of the pleadings herein and in light of the
proscriptions of Section 10(b) of the Act. However, as cor-
rectly urged by the General Counsel, such acts and con-
duct are serviceable as background evidence of animus
that may shed light on Respondent's true motive in certain
acts and conduct of Respondent occurring within the pre-
scribed period which are alleged in the complaint to consti-
tute unfair labor practices. Local Lodge No. 1424, Interna-
44 The real probative thurst or significance of the Humphrey evidence
offered to establish employer animus appears to me to be not so much that
Humphrey later told the employees what Blazer had said (although such
conduct is evidence of animus), as it is that the Blazer-Humphrey conversa-
tion itself had occurred and was of a nature to reveal the strong animus at
least initially held by Blazer. In that connection, although the base conver-
sation was between Blazer and Humphrey with the employees not present, it
seems to me that employee corrohorative testimony that Humphrey had
reported such remarks to them would have had some independent probative
significance that Humphrey's testimony in regard thereto was neither one of
recent fabrication nor involving misrecollections. However, as to the former
consideration I have no hesitancy in crediting Humphrey and as to the
latter I have found Blazer's recollections simply much less convincing and
plausible
KEY COAL CO. 1025
tional Association of Machinists, AFL-CIO, et al. [Bran
Manufacturing Co.] v. N.L.R.B. 362 U.S. 411 (1960).
I shall accordingly consider and subsenquently evaluate
the following findings in that connection. I find that upon
learning of organizational activity by Key Coal employees,
President Jack Blazer personally and immediately ex-
pressed to his mine superintendent, Humphrey, a strong
hostility (animus) to his employees' organizational activity
with the UMW which took the form of remarks in sub-
stance that Blazer would not sign a contract with the
UMW, that he would close the mine down and fence the
area off: and that Humphrey in turn, believing that Blazer
desired him to do so, informed employees of Blazer's posi-
tion as expressed to him. I further find that shortly thereaf-
ter some employees expressed to Lee that they were having
second thoughts about the petition or the Union. (I note
that it requires no difficult inference, and it is one I readily
draw, that the latter expressions of employee second
thoughts probably were in considerable part a direct result
of Humphrey's relation to employees what Blzaer had told
him.) I also find that Lee subsequently solicited disavowals
of the Union from the employees which was essentially
accomplished prior to the meeting of September 29, 1975.
Lee thereafter continued to attempt to dissuade the em-
ployees from selecting the Union as their representative in
the election conducted on January 7, 1976, though in the
latter period I am convinced Lee did not threaten the em-
ployees, but did interrogate the employees as to their rea-
sons for interest in the Union. In short and in summary, I
find that upon learning of union activity by its employees
Key Coal held strong animus to the United Mine Workers
Union, and expressed to the employees its hostility to that
union, and that Key Coal expressed to its employees its
continued animus to the Union (through more moderately)
thereafter up to the election conducted on January 7, 1976.
I further conclude that this initial hostility and continued
animus displayed is serviceable and "may be utilized to
shed light on the true character of matter .. ." charged as
the February 1, 1977, unfair labor practices, though proba-
tive weight also must be further evaluated in terms of pas-
sage of time and intervening credible events, Local Lodge
No. 1424, International Association of Machinists Bran
Manufacturing Co.] v. N.L.R.B., supra at 416; Paramount
Cap Manufacturing Company v. N.L.R.B., 260 F.2d 109,
113 (8th Cir. 1958). While involving events somewhat out
of chronology to these presently considered I next address
the General Counsel's remaining animus contention.
D. The Issues Related to Official Notice of Prior J. T.
Unfair Labor Practice Findings
On May 23, an administrative law judge for the National
Labor Relations Board issued a Decision in J. T. Corpora-
tion, JD-358-77, which Decision (in the absence of excep-
tions) has been approved by an Order of the Board on June
23. Therein it was found: that the Board had jurisdiction
over J. T.; that J. T. had committed certain unfair labor
practices in violation of Section 8(a)(1): and that J. T. had
not committed other violations of Section 8(a)(3) and (I).
The General Counsel requests that official notice be taken
of the findings of the unfair labor practices committed by
J. T. as additional background (animus) evidence on the
allegations of Key Coal unfair labor practices in the instant
proceeding. Respondent objected to any such notice being
taken of a proceeding in which Key Coal was not a party.
Alternatively (it appears), Respondent would urge that no-
tice be taken that the allegation that J. T. had discrimina-
torily discharged an employee on October 6, 6976, in viola-
tion of Section 8(a)(3) was dismissed in that proceeding.4 5
At the hearing I advised the parties I would take appropri-
ate official notice of the prior Board proceeding and would
give it the weight to which it was entitled.
The unfair labor practice findings as to which official
notice is requested were essentially that: (a) a certain J. T.
Foreman, Lawrence Malone, about July or August 1976
told an employee that J. T. would not hire Lester Sorrell or
any of the Key Coal employees because they had support-
ed the United Mine Workers; (b) J. T. as revealed by
Foreman Malone on July 1, 1976, was at least in part moti-
vated to discourage union activity when it then inaugu-
rated a policy of paying holiday pay; and (c) Foreman
Malone told employees that J. T. had granted benefits to
discourage union activity, all in violation of Section 8(a) I).
The present issues, it seems to me, are to be governed by
a consideration of the proper application of official notice
of prior Board proceedings in the context of the somewhat
unique facts and pleadings of this case. On review and
further reflection, I am persuaded to the essential correct-
ness of Respondent Key Coal's principal contention that
official notice should not be taken of the J. T. prior unfair
labor practice findings, in the sense that no weight should
be given in the first instance to them in the resolution of
any unfair labor practices contended herein to have been
committed by Key Coal alone. Thus, the amended com-
plaint as clarified at the hearing by the General Counsel
continued to allege, as originally charged, that Key Coal
alone had committed the instant unfair labor practices.4 6
In the prior J. T. proceeding the Respondent found to
have committed the certain unfair labor practices was un-
questionably J. T. alone. The rule generally applicable ap-
pears to be that the Board will take official notice of its
own prior Decisions which involve the same parties and
similar issues. Moulton Manufacturing Company, 152
NLRB 196, 207 (1965). Principles of resjudicata or colla-
teral estoppel will not serve to extend the J. T. judgment to
Key Coal unless it is to be concluded that Key Coal in
some manner stands in privity with J. T.47 I do not believe
this to be the case. Setting aside the effect of the single
4 In that connection Respondent would rely on other matters as well. I
find on the basis of independent and credible evidence in this proceeding
that J. T. hired two employees (who had previously been laid off by Key
Coal) about a month or so prior to Key Coal's June 2, 1976, shutdown of
operations. thus, well after certification to the Union as a representative of
Key Coal employees, though prior to the commission of the unfair labor
practices as found in the earlier Decision.
4h Apart from all other considerations there is thus clearly no warrant on
this record to conclude that a broader issue of unfair labor practice commis-
sion was litigated in this proceeding.
This is so since it is a principle of longstanding and general application
in Anglo-American jurisprudence that "one is not bound by a judgment in
tperontam in a litigation in which he is not designated as a party or to which
he has not been made a party by service of process.' Hansberrr v. Lee. 311
U..S 32. 40 1940). Pennoier . Neff, 95 U.S. 714 (1877).
KEY COAL CO.
----
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employer complaint allegation for the moment, it seems to
me that the circumstance that J. T. and Key Coal at the
time stood in relation of being both coal producing subsid-
iaries wholly owned by another corporation fails to war-
rant a conclusion that judgmental privity may be deemed
to exist between them to the same degree privy is deemed
to fail to arise from subordinate relationship of two locals
of the same International union. See and compare United
Mine Workers of America, Local 7244 (Grundy Mining Com-
pany), 146 NLRB 244, 251, fn. 28 (1964); and United Mine
Workers of America, Pocket Local 7083, (Grundy Mining
Companre), 145 NLRB 247 (1963).
I next address the effect of the single employer allega-
tion. I have found earlier that Key Coal and J. T., along
with certain other companies, if not fully integrated are
nonetheless closely related businesses and coupled with
common ownership and many facets of common control
clearly constitute a single employer. However, it is immedi-
ately observed that single employer status is alleged on the
issue of litigation of appropriate remedy, e.g.. derivative
liability flowing from alleged business emersion in the al-
leged unfair labor practices of Key Coal and not as alleg-
ing independent unfair labor practice commissions by the
single employer or its constituent parts, other than Key
Coal alone. It seems to me that in the absence of any com-
plaint allegation that the unfair labor practices were in
some manner committed by J. T., as e.g.. by an allegation
of single employer commission, findings of unfair labor
practices committed by J. T. are precluded as background
(animus) evidence for the alleged unfair labor practice
commissions by Key Coal, since Key Coal was not a party
in the prior J. T. proceeding and is not to be deemed in
privity with a party.40 Nor in my view is it otherwise appro-
priate, in the posture of this proceeding's complaint allega-
tions and contentions that the prior J. T. proceeding be
officially noticed as providing additional background (ani-
mus) evidence to Key Coal's alleged unfair labor practice
commissions in view of the restricted reach of this
proceeding's single employer contentions. 49 As I view the
issue of the alleged unfair labor practice commission by
Key Coal as being both a distinct and the fundamental
issue, I am persuaded to give no weight to the prior J. T.
unfair labor practice findings as additional background
(animus) evidence bearing upon the issues of unfair labor
practices alleged to have been committed solely by Key
Coal. That said and resolved I am otherwise persuaded
that the prior J. T. proceedings may be officially noticed
4 I.(;. compare seemingl required cleilenls of denhii of Inteest l and
legal representation in a prior proceeding, 46 Am Jur. 2d. Judgments. 512.
p. 683. 686.
A wholl different conclusion might well he warranted were the unfair
labor practices alleged to hase been committed b a single emplo\er or
group of corporatilons as to one (or more) of which there had been prior
unfair labor practices found which were rele ant and timel to sorie nmate-
rial fact, or otherwise servicelhle as background shedding light n alleged
prescribed unlawful conduct of the single employer I hat is not the present
case
o0 In this connection I note that ni attack has been mounted as Io the
bona fider of the Kimberl lawsuit and restraining order hich shut dour
Key (oal's operation and led to J. I. thereafter producing he cail (froui
J. I. mines) for Key Coal. here is no contention made. nor proof ffered
or present that the lawsuit was a result of arrangements beween the coal
producing subsidiaries (Ke ('oal and J. I.) or between the sales crtrtract
partners (Key (Coal and Kniberl) A cnenticition the am e as lln-
as background evidence on matters pertaining to J. T.,
e.g.. for such light as it may shed on J. T.'s business rela-
tionships thereafter with Key Coal (as may then be dis-
cerned appropriate) once the fundamental matter of the
alleged unfair labor practices is determined. Accordingly. I
shall take official notice of the prior unfair labor practice
findings (as establishing a background of J. T. animus to
the Union) in regard to evaluation of J. T. derivative
remedial responsibility. As earlier noted that proceeding
mav be additionally noticed for its bearing on the single
employer allegations, e.f.. the prior jurisdiction assertion
by the Board over J. T.-
E. The Negotiations and Developments
1. Commencement
The first negotiation meeting was held on March 23, 1976,
at Jack Blazer's office in Wheelersburg. Ohio. Representing
Key Coal were Kenneth Lee and attorney Robert Dever.
Representing the Union were Tom Bell. an International
representative, and employees Russel Hooper. Melvin
Thompson, and Lloyd Nodstrom. The meetingwas brief. The
Union presented its proposal which was a copy of the Union's
deep mine contract. The Company said they would look at
it and would like time to study it. The Union agreed. In the
interim, the Employer had requested a review of the Union's
certification. The Board denied Key C'oal's request for review
on April 23, 1976. On May 12, 1976, The U nion (John L. Cox.
director of organizing) requested a resumption of negotia-
tions suggesting the week of June 1, 1976. Dever replied
promptly, by letter dated May 18. 1976. that due to prior
commitments, June 1 was not desirable, suggesting June 17
or 18. Cox agreed on May 26and the next (second) negotiation
meeting was scheduled and held on June 17. 1976.52 The
second meeting was held at the Hocking Valley Motor Lodge
in Nelsonville, Ohio. Present representing Key Coal were
again Dever and Lee. Representing the Union were Bell,
District 6 representative Porter. Galati (contract administra-
tor), and Hooper representing the unit. According to Hooper,
in this meeting Dever told the Union at the prices of coal,
the Company could not afford to have a union. Porter,
however, was only somewhat corroborative in that he recalled
that Dever had said that the coal industry was soft. Porter
also recalled that the Employer had offered no counterpro-
posal. However, it is uncontested that all parties at this
meeting knew that Key Coal's miningoperation had been shut
down by the Kimberly injunction since early June. Hooper
testified that at this meeting neither the Company or the
Union knew what was going to happen, and that it was
generally agreed by the parties that they would wait to see
what would happen on the Kimberly lawsuit before getting
into anything meaningful. Dever agreed that when the lawsuit
was settled he would contact Galati. Dever then estimated
that 30-60 days would probably be sufficient to resolve the
laftlas with purpose to chill uninism at Keo (oal and r J. T. would
a;pper clearl, hbarred in this proceeding by the proscriptions of Sec. O1bt
Il hese notices seem to me t be n more than reasonable applications
of the equally slutor, principle of re jdicatua which "is founded upon the
geerallN recoglized public polic. that there must be solme end to litigation
.Iand thati hen one appears i court t present his case. is full heard. and
the uonlltested issue is decided against him. he may not later renew the litiga-
tnon in an other couri." Heiver . 1r,odru! 327 .S. 726. 733 1945).
I here is nrio cntention made that the Emploer ever refused to meet or
rcft led o Illeet r quckl prior to IFebruar 1977.
KEY COAL CO. 1027
matter. As it would turn out, this lawsuit would not be finally
resolved for 6 months. On July 12, 1976, Dever notified the
Union that a hearing had been postponed until August 12.
1976. with Dever further advising: "We will be back in touch
with you as soon as we have some indication from the court
as to its decision." In the interim economic factors were at
play which Key Coal contends significantly effected and
ultimately changed the nature of its operations.
As previously noted, at time of shutdown there was ap-
proximately 20,000 tons of uncovered, or partially uncov-
ered, coal in Key Coal operated (Wolf and/or Spencer)
pits. The restraining order of the court prevented its further
removal and processing. However, the restraining order
did not interrupt Key Coal's continuing obligation to
produce the coal for the Kimberly Key Coal sales contract
with Columbus and Southern, even though the tonnage or-
dered by the latter had been by this time substantially re-
duced. Key Coal continued to supply coal under that
agreement, but by purchasing the required coal tonnage
from J. T., Key Coal has done so continuously thereafter.
At the time of the shutdown Key Coal had been operating
with approximately four bulldozers, four shovels (two of
which were infrequently used l, a Davey Drill, and various
pumps and minor equipment. -4 It will be recalled that after
acquisition by Blazer Construction, Key Coal had sold its
major heavy equipment (bulldozers) to Reliable, who in
turn leased the required bulldozers back to Key Coal. Lee
testified, without contradiction, that when Key Coal was
shut down it could not continue to make the heavy equip-
ment lease payments to Reliable; and that Reliable in turn
facing its own bank note payment installments continuing
to become due on equipment, and without opportunity for
lease of this (and other) equipment, effected sales on a
number of pieces of heavy equipment, some of it formerly
owned by Key Coal (and some not), in October 1976, to
the Highway Equipment Company HEC).55 I credit Lee's
significant testimony that as of this mid-October sale there
was no longer sufficient mining equipment on the Key
Coal mining premises for Key Coal to conduct its previous
mining operation. Essentially, Humphrey confirmed that
as of the shutdown, Key Coal orders were appreciably
down; that there had been some preshutdown sale of
equipment simply not needed by Key Coal at the time; and
that by December 1976 there was not enough equipment
left to conduct prior mining operations. 56
2. Key Coal's efforts to resolve the Kimberly lawsuit
Blazer testified that when Key Coal was acquired it had
been operating in the black, but coming out of a severe
winter and with a cutback in its customers' orders in 1976.
Ihe governing documents were not nroduced in ce idence and this
finding is based on credited testimony of Lee.
This finding is based on the generally credited tesmtionrr of tooper
HEC (unaffiliated) is a Caterpillar dealer based In Cncinnill. Ohio.
engaged in the business of buying, selling. leasing. and trading primnilril of
Caterpillar heavy equipment. The record reveals HE(' purchased from Relh-
able in mid-October 1976, inter aria. hree bulldozers thai were foirnmels
owned by Key Coal. This finding is from credited testimon of l.ee andi
corroborative sales documents. However, a hill of sale on one dozer as not
issued by Reliable to IleC until February 21 and Lee othervslse confirmed
a late removal oif one dozer.
n Humphrey testified credihbl Ihat n the premimses at that time ere four
shovels (Including one sersiceable as . loader. .i 1) 9 traclotr (doter. a
Key Coal had begun to sustain some losses. However, Re-
spondent makes no contention that Key Coal's subsequent
operations were affected on that account. To the contrary,
it is uncontested that the judge presiding over the Kimber-
IN-Key Coal lawsuit had initially urged the parties to re-
solve their own dispute by one partner buying out the other
partner's interest. Blazer made an initial offer to buy Kim-
berl) out, which Kimberly rejected. (Kimberly would never
make an offer to buy Key Coal out.) During the summer,
as the Key Coal shutdown became know, Blazer received
inquiries from other companies expressing interest in pur-
chasing Key Coal. Later, Blazer became aware of possible
interest on the part of Mine Superintendent Humphrey in a
Key Coal purchase. 7 Blazer and Humphrey met at the
Vinton County Airport and discussed a possible Key Coal
purchase. Humphrey told Blazer that Humphrey and his
son were considering going into the business, and Hum-
phrey marked on the original list of Key Coal equipment.
the equipment that he wanted. Humphrey told Blazer that
certain matters would have to be first resolved. iz.. (a) the
lawsuit with Kimberly; (b) another pending lawsuit (over
the road usage) with a property owner named Habner: 58
and the union situation. Blazer then told Humphrey he
could take care of the lawsuits and that if Humphrey
bought back Key Coal, the union situation would be elimi-
nated.5' Humphrey inquired about price and Blazer told
Humphrey that Humphrey would hear from him. Thereaf-
ter. Humphrey discussed the potential repurchase with
other former stockholders Guy Champs, Russell Hooper.
Howard Humphrey, and Lester Sorrell, who were interest-
ed if a deal could be made. Humphrey was subsequently
informed by Kimberl\'s counsel of a purchase price of
$1,322,000. and told Kimberly's counsel that they were not
interested in a repurchase at that price. Kimberly's counsel
requested Humphrey' to so inform Dever."
Lee also testified that, in the late summer of 1976. Jeff
Smith, an inspector with the Department of Natural Re-
sources (herein called DNR), inquired of Lee what Key
Coal was going to do in regard to reclamation of the con-
siderable property (80 to 100 acres) already disturbed. Af-
ter that conversation Lee wrote a letter to DNR explaining
that the reason why there was presently no activity at the
model 80X scraper. the Daves Drill. a 6-inch water pump, and a 2Xl)-,MP
.etdling imachine
Blitzer', tesiliunmo at one point iuld suggest that umphre and
Kimberl. in conhination appro.ached Blazer to bus the Compans bacL
[Ito.ever. 1i, the entire recrd before me I do not find that such is support-
ed On another ,casion Blazer aclknowledged that Hiumphre wanted to
hu hback part f Ke (ioal. but that did nol mtiaterialize. I credit the latter s
being the ilore accurlate portralal of Humphres ', interest
l.ahner as clamin that ian outlet road which passed over the land
was a prliate road. aind could not he used without his permission.n Habner
had filed an individual la'suit. hut his counsel had not at that time sought
an nlillction inasmuch as the Kimberl) injunction as already in effect.
Baizer denied that he discussed the union situation with Humphre
lloseser. the denial has the ring of inmplausihilit Io it. I simpl] do not
heliee the matter of the union situation could have gone completely undis-
cussed hb these principals I credit Humphres
II rea.lsna.hls appears there was a misunderstanding bh Humphre of
vhat total consideratilons ere reflected in that price Although Humphre?
prelviou,l knew of the court urging that either partner but the other out, he
did nol undersland at the ime that the aboe pruchase price as gisen to
hin h Kilbherls's counsel that It wa.s intended to cover assets other thin
KeC (Coal ;is i orglnalls existed hen uowned h Humphre and the others
It vi,lld appear on this record that it covered at least certain of Kimberls
a.lssei
KEY COAL CO.
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
minesite was because of the restraining order of the court.
Lee did not hear again from DNR until after the settlement
of the Kimberly-Key Coal lawsuit.
3. Key Coal's acquisition of Kimberly assets
In November or December 1976,6' Key Coal purchased
Kimberly assets, which included Kimberly's half of the
joint sales contract with Columbus and Southern (then
running until 1990); Kimberly's rights in the four proper-
ties (Bensonhaver, Wolf, Lampman, and Spencer);62 and
certain equipment utilized by Kimberly in the operation of
the tipple. By this time Kimberly's lease of the tipple had
run out. Lee testified after the sale they obtained the right
to negotiate for the tipple lease. However, it was Angel
which negotiated the new lease of that tipple with the own-
er, Ohio Mining Company (with an apparent first option to
buy in the future). Angel employees have operated the tip-
ple; work, I note, which had not ever been previously per-
formed by Key Coal employees. I further note that Angel
also already provided service maintenance for a Blazer
construction property interest. 63
With the Kimberly lawsuit settlement Key Coal next had
to face the immediate problems of a retrieval of 20,000 tons
of uncovered or partially uncovered coal exposed to the
elements and the remaining Habner lawsuit against Key
Coal over road usage. The counsel for the respective par-
ties eventually reached an understanding that, pending res-
olution of the Habner lawsuit, South Kentucky would be
permitted to haul out the uncovered coal, only.?
Preliminary Findings and Conclusions
I have found as a matter of background that Key Coal's
major corporate officers and supervisors did evidence ini-
tial strong animus to the organizational movement of Key
Coal employees. Such occurred in September 1975. Al-
though some animus display continued up to the election
in January 1976, it was much moderated in tone. In con-
trast after the election Key Coal recognized and com-
menced bargaining with the Union in the March-June 1976
period. Though negotiations were seriously curtailed, al-
61 Apparently certain transfers were not accomplished until December 23.
1976, although I note that settlement was earlier reported to the court and
the Kimberly lawsuit action itself dismissed by party agreement on Novem-
ber 12. 1976.
62 As noted the lease terms already specifically permitted Key Coal to
mine the properties without the procurement of additional consent of the
property owner.
6Contrary to an initial contention of the General Counsel, after pur-
chase, Kimberly did not become Angel Corporation. Rather Key Coal had
purchased only the assets of Kimberly which at the time did not include
Kimberly's tipple as the lease had expired. Angel was a prexisting corpora-
tion. It then acquired the lease of the tipple by separate negotiation. and its
employees have thereafter worked the tipple. There is no direct evidence
that Key Coal subsequently sold the equipment used on the tipple. Reliable
carries the insurance on that equipment. but it also carries the insurance on
the tipple itself, which lease right of use clearly has remained the property
right of Angel. As noted this was not the first time that Angel had provided
a service function for a Blazer enterprise.
64The trial of the road use lawsuit was in the spring of 1977 and the
decision ultimately rendered therein about June 1977 was in Key ('oal's
favor, viz, the road was concluded to be a public road.
most before they started, that curtailment was by mutual
agreement in view of the intervening shutdown of Key
Coal by the Kimberly lawsuit and resulting restraining or-
der.
As cogently pointed out by Respondent Key Coal there
has been no evidence offered by the General Counsel of
any kind to indicate that the lawsuit of Kimberly and its
resulting injunction shutting down Key Coal's operations
in June 1976 in occurring at that time was anything but an
arm's-length transaction. Indeed Respondent argues per-
suasively in its brief that at the second negotiation meeting
the parties mutually acknowledged that the circumstances
that Key Coal's mining operation was shut down by the
injunction, was a situation over which none of the parties
then had any control, and agreed that further negotiations
would be delayed until that lawsuit was resolved. In the
posture of the evidence reported above. Respondent's sum-
mary conclusion on the record facts before me appears to
be an accurate one, is persuasive, and I adopt it. But the
lawful interruption of negotiations (which is not questioned
by the General Counsel) is then but one facet of the effect
of the Kimberly lawsuit and restraining order. In the pos-
ture of the evidence and contentions in this case the Kim-
berly lawsuit must be viewed as arising totally indepen-
dently of any animus of Respondent Key Coal even
assuming such animus had continued from the fall of 1975
through June 1976. With the shutdown continuing as it did
for some 6 months, additional economic effects could be
reasonably expected to, and did, flow from that shutdown.
One immediate effect was that Key Coal was required to
make other arrangements to meet its obligations under the
Key Coal-Kimberly sales contract with Columbus and
Southern. Under those circumstances it does not appear to
be other than simply an economic consequence of its own
shutdown that Key Coal arranged the purchase of its re-
quired coal tonnage from J. T.: or that it did so continu-
ously thereafter throughout the 6-month shutdown period.
Another immediate economic effect as urged by Respon-
dent, which is evidenced in the record and appears plausi-
ble, is that Key Coal, because of the shutdown, could not
continue to lease heavy equipment (bulldozers) since it
could not remove the coal due to the ongoing restraining
order. Uncontested and appearing equally plausible is
Reliable's claim as expressed by Lee, that during this ad-
mittedly otherwise slow period, Reliable could not eco-
nomically continue to pay its own bank notes on much
heavy equipment (it owned) that it could no longer lease,
and thus had no use for at the time. The result of both
these economic turns was one of an ongoing effect, viz, that
commencing October 1976, Key Coal no longer had suffi-
cient equipment on the premises to conduct its former min-
ing operation, and Reliable no longer had equipment on
hand to lease to Key Coal. In this connection I do not
overlook Lee's candid and somewhat revealing response
that his first awareness of a decision that Key Coal would
not continue a mining operation was probably in mid-Oc-
tober 1976 when Reliable sold the equipment that Key
Coal had previously used, although an actual decision to
that effect did not occur until December 1976. Such assess-
ment does not appear to miss the mark by much.
Thus, Lee knew before October that the court was urg-
KEY COAL CO. 1029
ing the parties to the Kimberly lawsuit to resolve it be-
tween themselves by one partner buying the other partner
out. Key Coal's initial offer to purchase Kimberly had
been rejected. Kimberly up to that time had made no offer
and as it turned out Kimberly never made an offer to pur-
chase Key Coal. There had been a few inquiries by compa-
nies interested in the purchase of Key Coal along with
Humphrey, but none materialized that would solve the
Kimberly lawsuit. 65 Thus, Lee's summary based on the
mid-October sale of the mining equipment by Reliable was
not only candid, but a frank and reasonable assessment of
the developed situation. At that time Lee knew that if Kim-
berly were to buy out Key Coal's interest, Key Coal would
be out of mining. It had no other active mining properties
at that time and it then had sufficient mining equipment. If
Kimberly sold out to Key Coal, as it eventually did, Key
Coal's operational structure would be then substantially
changed. Thus, Lee testified that with the purchase of
Kimberly's assets, and moro particularly Kimberly's inter-
est in the joint sales contract with Columbus and Southern,
Key Coal was no longer obligated to produce coal for Kim-
berly (or anyone). Key Coal was then only obligated to
supply coal to Columbus and Southern in certain ordered
amounts at certain rates through 1990 and this it had been
able to do by purchases from J. T. for about 6 months.
While bearing upon the conclusion earlier reached that
these various businesses have been and are operated in
close relationship, I can in those circumstances discern
nothing inherently improper in Angel's interest in obtain-
ing the lease of the former Kimberly tipple, or with Key
Coal's or J. T.'s continued use of that tipple particularly
with Kimberly going out of the business. Finally I note and
credit the testimony of Blazer and Lee that the October
sales by Reliable were independent economic business
transactions by Reliable and had nothing to do with raising
purchase monies for Key Coal's subsequent commitment
to purchase Kimberly assets in November. No evidence
was introduced to the contrary. While neither the consider-
ation paid by Key Coal nor its financing particulars are
fully of record, nonetheless in view of the posture of the
record otherwise I have no hesitancy in finding that the
compelled purchase of Kimberly assets had represented a
substantial additional capital investment by Key Coal. I
further find that as of December 1976, after purchase of
Kimberly's assets, Key Coal's operational posture was: (a)
it then owned outright a valuable long range sales contract
with Columbus and Southern which it successfully filled
during the 6-month shutdown by regular purchase of coal
produced by J. T., and no longer had an obligation itself
to produce coal for Kimberly or anyone else: (b) it owned
lease assignments by Kimberly on four valuable properties
(Bensonhaver, Wolf, Lampman, and Spencer) with an esti-
mated remaining coal reserve of some 240,000 tons, for
which it was in turn contractually obligated to pay royal-
ties and some fees, and to proceed with due diligence to
mine; (c) it had an estimated 20,000 tons of uncovered coal
Indeed never If ever, so understood hb Humphrey it reasona.hlk ap-
pears from the record that an offer to sell the Interests of both Kes (oal and
Kimberly was made to Humphre and his group of prior o ners A hich the\
rejected
reserves (at that time under water and deteriorating) that
needed to be promptly retrieved; (d) it had an existing rec-
lamation workload on 80 to 100 already disturbed acres
variously estimated at cost of $200,000-$400.000;6 (e) it
had a lawsuit by an individual property owner (Habner),
seeking to prevent the use of a private road for coal haul-
ing, though partial agreement was later reached to permit
removal of the uncovered coal (only) pending lawsuit reso-
lution: (f) it had insufficient mining equipment to mine the
properties, and no opportunity to lease such equipment
from Reliable; and finally (g) it owned a remaining general
obligation to bargain with the Union about the wages,
hours, and working conditions of unit employees who had
then been laid off for 6 months; and a specific obligation
per last negotiation and party agreement to notify the
Union of developments of the lawsuit. I further find that
the above events which lead Key Coal to this posture as of
December 1976 do not reveal any clear presence of previ-
ous intention to engage in subterfuge or manipulation of
assets. This is not to say that the allegations of subsequent
discrimination or unlawful refusal to bargain by, in effect,
subcontracting unit work may still not be shown to have
occurred by the General Counsel's remaining evidence. It
is to reflect at this point my view that there must be con-
vincing proof of same and such proof must take into prop-
er account Key Coal's status, not as it was preshutdown,
but as it found itself in December 1976 after the resolution
of this shutdown, debilitating of its mining capacities and
effecting substantial changes in its corporate investment
and operational structure.
F. Events Leading to Resumed Negotiations
I. Key Coal's notice to the Union that Key Coal will not
mine coal in the future
Dever wrote Steve Galati, director of contract adminis-
tration (UMW), on December 19, 1976, and again wrote
John L. Cox on December 30, 1976, the following letter:
As a result of the lawsuit brought by Kimberly Mining
Company against the Key Coal Company and the
subsequent settlement, it would not be anticipated
that the Key Coal Company would engage in mining
coal in the future. Therefore, mining employees would
not be associated with the Company. and I presume
that any further negotiations would not be necessary.
It would seem incontestable that the above letter in-
formed the Union actually of a Key Coal decision that it
would not itself engage in any mining of coal in the future.
The record reveals that there was no responding request by
the Union for bargaining over that announced determina-
tion. There were other developments with regard to both
mining of the properties and reclamation. Prior to an ad-
dressment of those developments it is warranted to consid-
er further the announced decision that Key Coal would not
n6 Blaer estimated KeN (oail aind he personally were liable on the perfor-
mance bond for $300.000 $400.000. Lee testified there Were 80 to 00 acres
which at state hbonding (estimate) rate of $3.200 an acre would amount from
$246.000) to $320.000. though l.ee personall estimated the reclamalion job
could he d one for $200.00
KEY COAL CO.
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engage in mining coal in the future.
Jack Blazer testified that although he discussed the mat-
ter with Lee and with his accountant the decision not to
reopen the mining phase of Key Coal was solely his. Blazer
explained the economics of his decision were that Key
Coal had been shut down for 7-8 months and had had
equipment payments it could not make, and that they (Re-
liable) had had to sell the majority of the mining equip-
ment that Key Coal had used. Thus, Key Coal did not have
sufficient equipment to mine, and Reliable did not have
heavy equipment at the time to lease. Blazer also related
that DNR permits were about to run out and get Key Coal
and Blazer (who was personally on the bond) in trouble
though clarifying that the permits were not the major stum-
bling block, rather the lack of equipment was. In connec-
tion with Key Coal's subsequent agreement with South
Kentucky, I also note that Blazer explained it was not so
much that the permits were running out as it was that
DNR began pressing Key Coal that they either should start
up the mining, reclaim the disturbed property, or get some-
body to do it. Lee corroborated Blazer in that Lee testified
that it was in either December or January that DN R repre-
sentative Jeff Smith revisited him. Smith told Lee hat Key
Coal had been off the property for a long time and asked
Lee was Key Coal going to mine, or reclaim: telling Lee
that they were going to have to either commence mining or
do the reclaiming. Smith reminded Lee that one of the op-
tions Smith had was that he could cause a DNR order to
issue on the bond. Although there was considerable testi-
mony about successive and overlapping permits, Lee's tes-
timony nonetheless stands without contradiction that a
permit covering a portion of the property that was previ-
ously worked (disturbed) expired in the spring of 1977. and
that reclamation work had to be started, though not com-
pleted until July I.
2. Key Coal's first contract of February 1, 1977, with
South Kentucky for the sale and removal of the
uncovered coal
On Wednesday, January 26, 1977, Lee wrote the Union
(Cox) the following letter:
We are in process of negotiating to sell some of our
coal F.O.B. the pit. We will not activate any employ-
ment but we are willing to discuss the effects of this
sale if you so desire. We anticipate a sale within 10
days.
Please contact the undersigned if you wish to dis-
cuss this matter.
Lee testified that he did not negotiate the sale of the
above coal as he was on vacation, and that it was Blazer
who had negotiated the sale. During the winter Humphrey
and Champs, still employed by Key Coal, had pumped the
water out of the uncovered pits. Blazer testified that during
this period he had received a call from Robert Spires, chief
operating officer of the F. H. Brewer Company (herein
called Brewer). Blazer had known Spires for many years.
Spires was aware that Key Coal's operation had been shut
down. In conversation Blazer told Spires that he had decid-
ed Key Coal was not going back in the mining business.
Spires then informed Blazer that Joseph Bathalter was fin-
ishing up an operation in Kentucky and at this time was
hunting coal reserves to buy and was running down a place
to work his equipment. Spires inquired about the possibili-
ty of Bathalter looking at Key Coal's properties. (Spires did
not testify). Blazer testified that all his subsequent neotia-
tions about Key Coal properties were with Bathalter. The
negotiations consisted of telephone calls and a meeting at
the local airport. Blazer recalled this negotiation was con-
cluded within a short time. According to Blazer, Bathalter
told Blazer that he was interested in buying coal reserves
and that he would bring up his mine superintendent to look
at the property. However, Blazer promptly negotiated a
first agreement with Bathalter for the purchase of a certain
(guaranteed) amount of coal. The agreement, which Blazer
testified was executed on and bears date of February 1.
1977, was thus for the sale of the 20,00X) tons of uncovered
or partially uncovered coal only. Blazer also testified that
he had tried to establish a period for the removal of the
first 20,000 tons. I find this initial separate sale is itself
plausible as it reasonably related to the fact that that
amount of coal had been uncovered and exposed to the
elements for a long time. The retrieval of that coal is thus
reasonably to be viewed as an immediate Key Coal busi-
ness concern. Blazer testified that there was no agreement
reached with Bathalter at this time for any reclamation.
However. I am convinced that there was also some prelimi-
nary discussion between Blazer and Bahtalther about
Bathalter's interest in purchasing additional coal reserves
as is evidenced by Bathalter's bringing his mine superinten-
dent up who subsequently looked over the properties with
Blazer's permission. and b certain remarks of Vice Presi-
dent Willis in early February discussed infra. Blazer testi-
fied also that severe winter weather and certain picketing
(discussed infra) did not permit South Kentucky's full re-
moval of the uncovered coal within the time initially al-
lowed. Blazer did not recall how much payment Key Coal
had actually received. In regard to the above initial busi-
ness arrangements Blazer's testimony was clear and con-
vincingly presented. I credit him on the above matters. 6 s
3. Events leading to the final negotiation meeting
Employee Hooper relates that employees had been regu-
larly going to the mine to inquire about work and that, on
Acordin t Blazer, Bamhilter hid represented to him that he owned
Slouth Kentuck', It appears fr m lihe present record Ihiat Joseph Bathalter
Jr.. ias the chief operating office oif South Kenluckx while Joseph Balhal-
ter. S.. was its preldenl. Bathalter Ji. was the indisidual ith hom Blazer
negortiated the first arcement and the individul hi,hom the General (oun-
sel subpelnaed ;and e nlmlx released under circumnstances discussed at
lenrith earlier
I noe addilionalIx that although he was on vacation at the time the
first a lreerellt as negotiated and executed that Lee's tesillonl) is ther-
Ise supportlv I hu.. Iee conirlied that Stalh Kentuck, failed to retrieve
all the unco'ercd coal in he period allo ed but testified that Ke ( oal uas
fulls paridl at he agreed rate for all coal that was rernmo ed. Iee testified that
Kea ( o's ileres at the tllle :as inl halsinL certaiin coal mined at a certain
late per tonl in a certain period and that as all Ihe c,,al was to be sold hb
South Kentucks, to homevel South KeintuckN wished lee also corrobo-
rated that hereafter South Kentl ucks ais unabhle to full perform because
of1 the uneither. and that Ke (oal excused its failure to fulls perform on
Ihat [Ic l Iant
KEY COAL CO. 1031
February 2. Mine Superintendent Humphrey had told
Hooper that Clyde Willis had been there and told Hum-
phrey to tell the employees that Key Coal had sold 20.000
tons of coal to South Kentucky and that the employees
need not come back anymore because they (Key Coal)
would not be hiring anybody. Humphrey's version is essen-
tially corroborative, but differs in a certain significant as-
pect, viz, in referring to probable sale of Key Coal reserves
as well. Thus Humphrey recalled that when Willis came to
the mine, Humphrey. Champs, and some other employees
were in the Key Coal trailer. Willis called Humphrey out-
side and then told Humphrey to inform the men that theN
might as well not hang around anymore, that they were not
going to be put to work, that the (uncovered) coal was
being sold, and probably the mine would he sold. Humphrey
testified that he so informed the men. Willis did not testify.
I find that on February 2. pursuant to the instruction of
Willis, Humphrey then notified the Key Coal employees,
who had been on layoff since the mine closure on June 2.
1976, that the 20.000 tons of uncovered coal had already
been sold to South Kentucky and that probably the mine
(coal reserves) would be sold., and that the employees con-
sequently need not inquire further about work as they were
not going to be put to work. I thus conclude and find that,
on February 2, Key Coal announced to its laid-off employ-
ees, in substance and effect, that they were terminated be-
cause Key Coal had sold its uncovered coal to South Ken-
tucky and planned to sell its coal reserves to South
Kentucky.
Hooper testified that it was Brewer employees that the
Key Coal employees immediately thereafter observed haul-
ing some 16-17 loads of coal away. Robert Porter. since
January I, assigned to the International Union's staff, es-
sentially corroborated Hooper. Thus Porter testified credi-
bly that on February 2 he had personally observed Brewer
employees haul coal from the Bensonhaver Road (Key
Coal mine entrance) to Kimberly's (then Angel's) tipple,
and that he had observed that same coal after being pro-
cessed then hauled to the Poston station of Columbus and
Southern. The Union also observed that the permits 69 for
the mining of the property and the sign at the mine were
still in the name of Key Coal. On the next day, at 6 a.m..
February 3, the Union established its picket line for the
first (of two) periods. Brewer employees would not subse-
quently drive their trucks across the picket line. Thus no
coal was removed by Brewer employees after their first day
of operation.
Union Attorney John Woodrum, called as a witness by
the General Counsel, testified that Lee's January 26 letter
was eventually referred to him. On February 3. 1977,
Woodrum called Lee and was initially only told that Lee
was not in the office. Woodrum then asked to talk to Blaz-
er, but was advised that Blazer also was not in the office
though Blazer was expected back that afternoon. At this
point Woodrum was informed that Lee was not available
as he was on vacation. Woodrum left a message requesting
Blazer to call him. Woodrum next called attorney Dever.
"' I[hus, according to Porter the Sitlte of Ohio i lnn permin t a, ill the
name of Ke, (Coal and he Invironniental Protection Aenc, watcr permits
were in the name of Kes (Coal
but was informed Dever was also out of his office. Wood-
rum left a message also at Dever's office for Dever to call
him. The record establishes that Woodrum then caused the
following wire to be sent to Lee at 4:53 p.m. on February 3.
1977:
In reply to your letter of January 26, please be ad-
vised that UMWA is ready and willing to meet with
representatives of the Key Coal Co. at the earliest pos-
sible date.
Please advise me, or organizing director John ('ox
when you will be available. I suggest Monday. Febru-
ary 7 in Huntington, W.V.
After sending the above wire, Woodrum received a re-
turn call from Dever.7? Dever told Woodrum that Lee was
gone and that he (Dever) also would not be available to
meet with the Union before February 14. Dever confirmed
to Woodrum that Key Coal was planning to sell the 20.000
tons of uncovered coal and that Key Coal was not going to
engage in the coal mining business any' longer, they were
going to broker coal only, and they' were selling off certain
of their assets. Woodrum told Dever that this sounded like
subcontracting to him and he objected to it. Dever dis-
agreed that it was subcontracting, telling Woodrum that
Key Coal's position was that all it was doing was selling an
asset. While there is much conflicting correspondence be-
tween Dever and Woodrum as to what Woodrum then said
about need of future meetings, I am convinced and I find
that Woodrum did not tell Dever outright at the time that
there was no need for the parties to meet. Nor did Wood-
rum press for an immediate meeting, but rather told Dever
that under the circumstances that he would have to consult
further with his people and get back to Dever. However, I
also note in this connection Woodrum's testimony at hear-
ing was that it was the Union's position and contention in
this matter that the Company had refused to meet quickly
in that the Company had said they had 10 days and then
could not meet during the 10 days. For the present, I note
such contention involves a misconstruction of what Lee's
letter actually says, and to the extent reliance is placed on
the above Dever-Woodrum conversation, I conclude is not
supported. I further note that apart from this sole incident
the Union itself concedes that there was never a refusal of
Key Coal to meet with the Union promptly on request.
Whether Respondent's conduct in this matter was other-
wise incompatible with its bargaining obligations is evalu-
ated infra.
On February 4 Willis approached Porter on the picket
line and asked what Porter was doing there. Porter replied
the (Brewer) employees were replacing the unit employees
and the Union was seeking redress from Key Coal and
wanted to negotiate about it. There was disagreement
about what right the Union had to be there under the cir-
cumstances. At that point Willis handed Porter a cop) of
an agreement dated February 1. 1977, between Key Coal
and South Kentucky and Somerset Crushing Co., Inc.,
(Somerset), joint contractors. Blazer testified without con-
:' I)ceer\' subsequent correspondence in evidence confirms his nltlal re-
turn call .was made on Fehrualrs .and that Wooddrum's earlier ire request-
rig .a meeting ion ehruar 7 as not recei.ed h Kes (Coal until Febhruar
7 )e,.r id not testif.
KEY COAL CO. 1031
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tradiction that he executed this contract on February I.
His testimony is essentially corroborated by the circum-
stance that Willis delivered a copy of it to the Union on
February 4. I credit Blazer. The full agreement provided
Gentlemen:
The undersinged hereby offers to sell to you 20,000
tons of coal now in place at the Wolfe Mine in Hock-
ing County, Ohio, at an in-place price of $5.00 per ton.
It is understood that upon your acceptance of this of-
fer to sell, you will assume full responsibility for the
mining and removal of said coal from the premises of
the Wolfe Mine by no later than March 15, 1977.
The undersigned understands that in reliance on the
agreement resulting from your acceptance of this of-
fer, you will enter into binding contracts to resell this
coal when mined. Therefore, the undersigned agrees
that in the event you are unable to obtain 20,000 tons
of coal from this site, the undersigned, within (10)
days after receipt of written notification from you of
your inability to obtain 20,000 tons of coal from this
site, will obtain from other sources and deliver to you
sufficient coal to fulfill our obligation to furnish you
with 20,000 tons of coal at a cost to you of $5.00 per
ton.7 ' In the event the undersigned becomes obligated
to deliver coal to you from other sources, the under-
signed will bear the expense of delivery up to an
amount equal to the cost of delivery from the
undersigned's other sources to the Wolfe Mine.
If the terms of this offer are acceptable to you,
please so indicate by signing a copy of this letter and
returning it to the undersigned.
Upon handing Porter a copy of the agreement Willis
then told Porter that they had sold this coal and the Union
was standing in the way of the sale. Porter replied the
Union did not care who Key Coal sold the coal to, the
Union was interested in the wages, hours, and working
conditions of the Key Coal employees. 72 The Union itself
was not at this time aware of any affiliation between South
Kentucky and Brewer, though sometime later there were
rumors of Blazer's interest in buying Brewer.
No representative of South Kentucky (including Sloan
who was available to testify) or of Brewer testified in this
proceeding. It is unclear whether Jospeh Bathalter, Jr., was
a corporate officer of South Kentucky though it does ap-
T I do not find merit in the (General Counsel's argulments (of a less than
arm's-length transaction) in the failure of KeN Coal to supply other coal to
South Kentucky when the latter failed to remove the 20,000 tons prior to
March 15 because of weather and picketing. Rather I credit Lee in his
observation that this provision was a Key Coal guaranty to South Kentucks
that the stated tonnage of coal was to be found in the property. Far from
being indicative of a less than arm's-length transaction, when viewed in
combination with Blazer's uncontradicted testimony that this initial agree-
ment was quickl) negotiated the presence of the guarant) suggests (if an-
thing) an arm's-length protection required b or at least enuring to the
benefit of South Kentuck,.
2 Porter also related that Willis had said in this conversation that it was
Key Coal's position that the) would not bargain with the nion. While I
credit Porter that a remark to this effect was made b Willis. under the
circumstances of the entire conversation, I am constrained to conclude the
reference reasonably related to an expressed unwillingness of KeN Coal to
bargain about the alread 5 consummated sale of the uncovered coal to South
Kentucky. which was the subject of their discussion at that time.
pear that he was South Kentucky's chief operating officer.
Blazer testified that Bathalter had represented himself to
be the owner but Blazer was unsure he actually was himself
to be the owner, but Blazer was unsure he actually was an
officer. The record supports the conclusion and I find that
he was president and owner of Brewer prior to Blazer's
acquisition of Brewer. I also note that in February a boy-
cott suit was brought by South Kentucky and Somerset
against the Union which was subsequently dismissed when
it was shown that neither of these corporations was pres-
ently licensed to do business in Ohio. Moreover, I am fully
convinced that it was Brewer's employees and equipment
involved in the above coal removal operations on Key Coal
premises on February 2. 73 A few days later Brewer re-
moved its heavy equipment from Key Coal premises.74
With the cessation of hauling by Brewer employees, and
with removal of Brewer equipment, the Union ceased its
initial picketing approximately February I I.
Blazer, who negotiated the first Key Coal-South Ken-
tucky agreement with Bathalter, testified that he had not
known at the time where South Kentucky intended to get
the equipment to do the removal job: and that although at
the time he knew Bathalter owned Brewer, he was unaware
that Brewer's equipment was on Key Coal mine premises,
though he knew Brewer's equipment was not on the prem-
ises after he purchased Brewer on April 1. I find the latter
date was the date of the commencement of operations of
Blazer Materials, Corp., after a statutory merger with
Brewer under circumstances suggesting earlier committals
on Blazer's part to purchase Brewer. However, I am con-
vinced Blazer did not own Brewer at the time of Brewer's
operations at the Key Coal premises. Thus, I find Blazer's
testimony on this matter is essentially uncontradicted and I
credit it. Blazer explained that he had known Robert
Spires, a vice president of Brewer, for some 15 years; that
he (Blazer) had a longtime interest in acquiring Brewer;
and that about 2 years earlier he had actually entered a
letter of intent to purchase Brewer from the Deffett Com-
pany which then owned Brewer, but the deal fell through
on Blazer as certain preliminary conditions did not occur.
Sometime later Blazer became aware that Bathalter had
purchased Brewer and it was this circumstance that led to
his first awareness of Bathalter. The record reveals that
Blazer Materials Corp. (herein called Blazer Materials) was
incorporated as a shell on March 14, and thereafter was
statutorily merged with Brewer. The purchase of Brewer
was actually accomplished by J. B. Corporation, another
wholly owned subsidiary of Blazer Cosntruction. Blazer
Materials then commenced operations after April 1, as a
Blazer enterprise. 75
7 Ihis finding is based on cumulative testimony of Hlumphrey. Hooper.
and Porter.
74 Lee estilfied that the equipment necessary to remove the uncovered
coal ssas a piece of equipment. e.g.. dozer (to clean off remaining dirt, mud.
or other imaterials that were still on top) a loader to load the coal and a
truck to haul it. he equipment removed (which bore Brewer markings)
were a 1) 7 dozer two end loaders. and a grader looper testified convinc-
ingly in that regard also that this equipment was never before used by Key
Coal
7 lhe corporlate officers f Blazer Materials are essentially the same as
lother Blazer companies except that Robert Spires is a vice president and
chief operating officer Blazer testified that he does not involve himself at all
im the affairs of that compani. but leases it entirely up to Spirea who has
KEY COAL CO. 1033
On February 7, presumably after discussing the matter
further with the appropriate union officials as he last told
Dever he intended to do, Woodrum sent a letter to Blazer
advising that Woodrum had received no response to his
call to Blazer or his earlier wire to Lee. Woodrum request-
ed a meeting to discuss the "proposed mining activity" at
Key Coal premises further advising that the Union was still
the certified bargaining agent of the employees despite
their layoff for some months.76 On February 15. the Union
filed the instant 8(a)(1). (3), and (5) charges (dated Febru-
ary 14) against Key Coal. On February 14 Dever replied to
Woodrum noting, inter alia, his February 3 wire, requesting
a meeting on February 7, was itself received on February
7; asserting his understanding that Woodrum not only had
not earlier asked for a meeting but indicated one was un-
necessary, again related that Key Coal had simply sold an
asset, its coal, to a third party, and advising "and in this
regard, of course, we are willing to meet with your repre-
sentatives . .. "; and again informed the union "that Key
Coal does not intend to engage in coal mining as such in
the future, but will limit its activities to a sales company."
On March I, 1977, Woodrum replied to Dever that since
charges had been filed and were then under investigation
and since "no coal is being mined on Key Coal property at
the present time .. ." that it appeared future negotiations
would be most productive after the NLRB completed its
investigation. Woodrum specified in the letter: "However
in the event Key Coal Company attempts to subcontract
the mining of their coal again we would request an imme-
diate meeting. The loss of bargaining unit jobs to a subcon-
tractor is precisely the kind of activity a union seeks to
prevent."
Humphrey testified that, about a week or 2 weeks after
the Brewer employees left, and I find sometime between
mid-February and March 1, that Ken Lee came out to the
premises with a man Lee identified as being with South
Kentucky. Lee then told Humphrey that South Kentucky
was taking it over and there would not be any need there-
after for Humphrey to stay out there. Lee then instructed
Humphrey and Champs to try and find some more strippa-
ble coal to lease for Key Coal. Humphrey confirms that the
run the operation for ears. here is some record support therefor since.
unlike the case with other Blazer companies of record, Jack Blazer does not
presently have authority to sign contracts for Blazer Materials without fur-
ther corporate resolution. though that would not appear hard to come by In
view of his essential ownership. Spires clearly has such authority. including
apparently authority granted presently to negotiate contracts with certain
unions. Blazer Materials was represented b its own counsel I have some
reservation that Blazer Materials (even so) presently would not as readily
qualify as a constituent part of a single employer entity as initiall5 alleged
Nonetheless. in *view of the position of the parties on the matter and the
facts found herein, which appear to warrant the conclusion that Brewer was
not an involved Blazer enterprise at the time of any alleged commission of
unfair labor practices by Key Coal. and no claim raised or proof offered
that Brewer was a subcontractor of Key Coal (rather than, as it appears of
South Kentucky'). nor any claim raised. in any event. that Brewer or Blazer
Materials has operated in any manner such as to warrant a remedial order
applying to it. I have granted the motion of Blazer Materials (joined in b
the other parties) to dismiss the complaint allegations as to that firm.
On cross-examination Woodrum testified that he sent the letter to Blaz-
er even though he knew Lee and Deser had been conducting the Kes Co(al
negotiations and were away Woodrum explains that he did not care who
was there, as the (ompanv (in his iew) was about to take action that
affected the Union.
only time thereafter that he was on the premises was in
June to move a Key Coal shovel out of South Kentucky's
way.
On March 2, coal hauling operations started up again.
Porter testified that he followed a South Kentucky truck to
the Kimberly (Angel) tipple and that he had personally
observed that some of the coal went on to a stockpile and
some went on to the Poston station. Porter also testified
that he observed coal taken over 2-1/2 days from the Angel
tipple stockpile which was taken to Columbus and South-
ern until finally stopped because the coal was dirty. On
March 3 the Union reestablished its picket line which con-
tinued until April 3.77 On March 7, 1977, Dever wrote
Woodrum, again asserting that Key Coal was "not using a
subcontractor to mine coal. We have simply sold the un-
covered coal to a third party, since Key Coal has no inten-
tion of acting in anyway other than as a sales company in
the future." Dever expressed continued willingness to meet
on the matter.
Employee Hooper testified, without contradiction by
Lee, that one day during this second period of picketing,
Lee had stopped at the picket line and spoke to him. At
that time Lee mentioned to Hooper that South Kentucky
was interested in buying the place if they could find a mar-
ket for the coal. Lee told Hooper that if he had his say, he
could take Hooper and Melvin (two employees) and
straighten it all up and they would be working. On March
11, 1977, Reliable sold the Davey Drill (like the dozers,
previously sold to Reliable) to Bill Humphrey, a former
Key Coal owner and employee.78
On March 15 Woodrum wrote Dever in reply to Dever's
letter of March 7. Woodrum related that the relationship
between Key Coal and South Kentucky, and coal being
mined on the property while Key Coal employees re-
mained on layoff, were topics for discussion. The letter
expressed willingness to meet if Dever felt progress could
be made but did not specifically request a meeting. On
March 21 Dever replied to Woodrum expressing Key
Coal's continued willingness to meet at any time concern-
ing "our mutual problems." On March 31, Woodrum re-
quested a meeting for April 7. On April 3 the second period
of picketing ceased. The third and last negotiation was
then arranged for April 13, 1977.
In the interim Lee had entered further negotiations with
South Kentucky. Lee recalled the negotiations took about
a week to 10 days. Blazer placed Lee's negotiation in late
March or early April. It will be recalled that by virtue of
the Kimberly asset purchase, Key Coal acquired an assign-
ment from Kimberly of the four lease properties (Wolf,
Bensonhaver, Lampman, and Spencer), which I have
found contained an estimated coal reserve deposit of
240,000 tons, but with an accompanying present liability
for an already worked 80-100 acres. The minimum recla-
mation cost, as estimated by Lee was some $200,000, a sum
Another boscoill suit was in due course filed hb South Kentucks prior
to March 15 in a local court. which was subsequently dismissed in Max or
June for lack of jurisdiction.
rhis left essentiall only the four shovels (mostly old) on the property
which belonged to Key Coal, estimated b Humphrey to be of $75.000 In
salue Blazer has suhsequentl? also put that equipment out on consignment,
options to sell being placed with tIE( aind Barton S. Fish. Inc
KEY COAL CO.
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for which Key Coal and Blazer personally remained on
bond. In the latter regard it was Lee's testimony that Key
Coal had been pressured in December 1976, or January
1977, to take some action by the DNR inspector who had
told Lee that the properties had been inactive for a long
time and that Key Coal needed itself to begin mining, re-
claiming, or get someone to do it, reminding Lee that DNR
had an option of bond forfeiture that they had (available)
to exercise. 9 I credit Lee and thus find that a DNR inspec-
tor had pressured Key Coal in the fashion Lee relates,
though DNR possible action had not progressed to point
of any compliance order issuance.
The specific terms negotiated with South Kentucky by
Lee were that in return for an assignment (sublease) to
South Kentucky of Key Coal's rights for retrieval of the
coal reserves, South Kentucky agreed: (a) to pay a base
tonnage rate royalty of $1.05 to Key Coal (sufficient to
cover all royalties due the property owners under the terms
of their base lease): (b) a sharing of 50 and 60 percent in
additional sale price respectively should any mined coal be
sold above base rates of $8.75 and $12.75 a ton (which
apparently had not occurred as of time of hearing): and (c)
an agreement on the part of South Kentucky to perform all
covenants of the base leases (which significantly thus obli-
gated South Kentucky to perform all the reclamation work
required by past and future mining). Not negotiated by
Lee, and added by the counsel subsequently and prior to
agreement execution by Blazer, was the following signifi-
cant cancellation clause:
This sublease may be cancelled by the sublessor with
no obligation to the sublessee by giving ten (10()) days
written notice to the sublease of its intention to cancel
the same.
4. The final negotiation meeting of April 13
On April 13, 1977, the parties met at the Hocking Valley
Motor Lodge for their third and final negotiation ses-
sions8 Representing the Company were Dever and Lee.
Representing the Union were Woodrum, Porter, and three
, Ihe (General (Counsel in his brief requesled judicial notice he taken of
the Ohio code, in pertinent part Appendix B. Ohio Resised (ode Scc.
151405(A) Am. Subh. S.B. No. 165. in respect to its prlisilons for l)NR
issuance of an order where reclamation is not pproved, whereh\ cert;iiln
acti ons ma be ordered taken ithin a certain time. which on failute of
compliance, may then ultimiatel lead to bond forfeiture As requested I
have taken judicial notice of such provision, to the xten1t provided. Ilhe
General (Counsel further contends that since Respondent Kev ('o;il had
produced no such oirder it mav he concluded none existed. and resultiigRl
any contention of pressure ronm D)NR must lose considerable eight. Ilow-
ever I conclude, contrary to the (General (ouilsel's clltentions in this re-
gard. that neither a consideration of the code's above-cied prosisrins nl
the record evidence to the existence of ia 3-vear permit adequatel negates
the uncontradicted teslimtony of ee of the arning gien bh, the D)NR
Inspector Nor does it oercolle the a;rrant tio conclide on the hasis i,
l.ee's also uncontradicled testlionv thit Ke (oal needed tot letirt l tnn111111
start reclaiming or get somebody to do so. that ia certaiin part of the alread
worked property was going to ruin out if (earlier) permit in the spring. thil
some reclamation needed Io be started, though s the record shols not
completed until Jul 1.
Actually the parties were meeting right iflter their completion of hear
ing in J. T. Corporation Case 9 (A 10796. the subject of decision in J)
358 77.
or four employees, including Hooper. Woodrum initially
requested that the employees be put back to work at Key
Coal. Woodrum recalled that Dever said that as far as Key
Coal was concerned it would not be in the mining business
any more, it had gone to sales. Porter corroborated recall-
ing the Union was told Key Coal was not going to mine
any coal, they were going to be a brokerage firm, and that
Woodrum replied this was the very thing the Union sought
to prevent. Lee testified that the Company told the Union
that they did not intend to go back into mining because of
the events of the Stage (Kimberly) lawsuit and injunction,
and the purchase of Kimberly. Woodrum stated the men
had been off for a year and asked why they could not be
put to work somewhere else. Porter recalled Woodrum
specifically asked about jobs for the men at J. T. Corpora-
tion. and that Dever had asked why the Union was inter-
ested in the men working at J. . Woodrum recalled he
asked why they could not be put to work somewhere else
and Dever said they could always go apply for a job at
South Kentucky. Lee essentially corroborates that the
Union was told if employees wanted employment, Bathal-
ter was looking for employees. Porter confirmed in recall-
ing that the Company said it had heard South Kentucky
was hiring and the employees should go over there and get
a job if that was the main thing they wanted. Lee testified
additionally that the Union was told the employees should
apply at other (Blazer) operations and testified (without
contradiction) that Woodrum told the Company they
would want to work as a group. They would not want to be
separated and scattered out. Woodrum asked if Key Coal
had any influence with South Kentucky and Dever replied
no. Woodrum asked hat ould he drone, if they were not
going to open up the nine and mine the coal, was there some-
thing the Comparn' could offer in terms of an agreement of
some .sort. According to Woodrum the only thing the Com-
pany was willing to talk about was the subject of termina-
tion pay. Hooper recalled that Woodrum remarked charges
were filed and pending on the matter and there was noth-
ing more to talk about. Woodrum confirmed he left it:
"We'll let the Board resolve it." Lee testified that none of
the employees made application for work at J. T. or any of
the other Blazer corporations.
5. The Key Coal-South Kentucky sublease
The agreement, the general terms of which have been
described earlier, is in form a sublease. Blazer testified that
he signed the agreement on April 15. As earlier noted Lee
testified that he had negotiated all the terms of the agree-
ment except the 10-day cancellation clause. However, in
that respect Blazer testified on direct examination when
called by the General Counsel that he personally negotiat-
ed the terms of the sublease with Bathalter and "I made the
deal." I am satisfied and I find it was Blazer who complet-
ed negotiations with Bathalter. Lee testified that Bathalter
did not affix his signature to the agreement until August 8,
immediately prior to the opening of hearing herein, but
that it was not a matter of Bathalter refusing to sign it prior
to then but of his schedule and being out of town. Lee
testified this was the agreement under which the parties
have operated. The record also reveals that individual writ-
KEY COAL CO. 1035
ten consents by the four property owners for South Ken-
tucky to mine the respective properties were not procured
(or attempted to be procured) by Key Coal Company prior
to the entry of performance under the contract. In that
regard Lee confirmed that prior to April 15 that he had
done nothing about obtaining "written consents" from the
four property owners. Lee did testify that he had spoken to
Spencer and that Spencer was aware of the sublease. The
latter reference to the sublease appears somewhat puzzling.
To begin with. Spencer's property had been uncovered pre-
paratory to coal being mined, but no coal had been re-
moved at the time of the Key Coal June 1976 shutdown.
Indeed. Lee testified that some of the uncovered coal was
still not recovered even in April. Called by the General
Counsel, Spencer testified that previously all his contracts
had been with Kimberly and that during the shutdown
Kimberly had assured him that as soon as they could get
the trouble corrected they would be back in mining. Spen-
cer had been visiting his property regularly and on one
weekend about mid-February he observed two men work-
ing near his pit constructing a road. Upon inquiry of the
men he was advised they were with South Kentucky and
that Ken Sloan was their boss. During the first week in
March Spencer spoke to Bathalter and Sloan at the mine
pit. Spencer was concerned with whom he was dealing and
under what circumstances and received assurancesY'
Spencer subsequently called Lee and Lee explained South
Kentucky's presence to Spencer's (then) satisfaction and
assured Spencer that Key Coal would pay the royalties to
him. It is noted that Spencer's property was both partially
uncovered and not disturbed.8 2 1 additionally note that the
sublease agreement of April 15 itself contains a provision
that South Kentucky would undertake to obtain a consent
from the Spencers onhs, although the sublease covered all
"' The General Counsel elicited estlnlon\ oIf wilness Spencer to the effect
that Bathalter told Spencer thai South Kerituck, had been hired b Kex
Coal to mine the coal n Spencer's propert\ bh the ton: SoLuth Kenttlk
would be paid h the ton: Spencer would he paid his roalies hb Kev Coal:
and he could check the operations b? checking the respective ttinnages
Respondent objected to the testinmon ais being hearsay. an attempt to asoil
having Bathalter or Sloan present and testif. and mosed that he tesultntni
he stricken. The request io strike v as denied The testilnllls of aitinres
Spencer va;s ruled admissible on points of his inquir i and that assurances
were given but that I would base no findings or draw. an, inferences) from
the statements attributed toi Bathalter and Sloan. Spencer's iquir w.,sl d]-
recl) admissible, as was his tesllmon that certain assurances were glvetn to
him by Bathalter and or Sloan as beine circaimstaintial eiidenlce of the in -
quirv. How ever, to receive the related statements of Bathller (or Sloani) a,
evidence of the facts asserted therein e.g, as o South Kentucks and Kex
Coal actual arrangements. clearly nsoles excludable hearsa. t Wlgm,,re.
Eviden c 1788 (3d ed. 1940)) Ihe General Counsel pressed receipt of the
Bathalter statements under Evidence Rule 84 tAH I )and () lS \s to 804
(All I . Bathalter certainly was never exenmpted hb a ruling of the court. and
clearlv insufficient predlcale w.as laid for receipt under 804 hHX5) sholl,
apart from the opposing discretionar considerations of what the interest of
doing justice between the parties import In these circumstances Moireovei
I note that even had the esidence been admitted. it swas Liot of such probha-
tive nature as to warrant departure from the explicit terms of the Februars
I agreement in evidence. particularly in the face of the clanrit of the
statement's application to that first agreement as revealed h, other (unhb-
jected{ testimon? if Spencer if record that Bathalter and SI oan assured hi ll
they had good equipment and were (thent interested In leising more prop-
e Spencer testified that his property was mined until September It is
noted t was b' far the smallest f the four properties
four properties. Lee testified that after the lease was signed
he had subsequently sent out written consents for all the
property owners to sign. 83 Spencer testified that it was
some time later (and I find probably in July) that he first
had received a blank consent form which he has never
signed. Lee otherwise testified generally that after further
counseling with his attorney, mining was continued on the
basis that the consents could not be reasonably withheld. It
is Respondent's position in regard thereto that with Key
Coal remaining liable for and continuing to pay royalties,
with the mining being conducted without an objection, and
with the provision in the sublease for a 10-day cancellation
which served to protect all parties from any abuse, the con-
sents if not given when requested could be construed by
Key Coal as being (legally) unreasonably withheld. Lee
also testified that he has received a written consent from
the Bensonhavers and expects to receive such from the
others (Wolf and Lampman). though not from Spencer. It
is noted that Spencer's property was mined out in Septem-
ber, with the possible exception of another deeper vein
presently unclear as to coal quantity that may be present.
6. Other remaining considerations
Lee testified that South Kentucky has been mining in
Kentucky, was moving over to Ohio. and was new as an
Ohio operation. Southern Kentucky did not have its own
crusher (tipple) and South Kentucky also arranged to use
Angel's tipple for crushing of its coal for which it was
charged the usual 50 cents a processed ton. Woodrum had
testified that it was also his understanding that South Ken-
tucky had sold some coal to A. L. which had then filled
Key Coal orders and that he seemed to recall seeing some
weigh tickets to that effect. 84 However, no weigh tickets to
that effect were ever introduced into evidence. Lee testified
frankly that during the early South Kentucky mining oper-
ation some Key Coal weigh slips were used for South Ken-
tucky production. but that this was simply to keep track of
the coal extracted and was done because South Kentucky.
being a new Ohio operation, did not have its own tickets.
However. Lee testified also that Key Coal did not purchase
or sell any coal mined by South Kentucky or take part in
its operation. Humphrey confirmed that in February he
had used some Key Coal weigh tickets to keep track of the
sSpencer lestfied he recei ed a consent from Lee I find) about Juls
Spencer ails leesrified to an iter-ening accounting dispute (er a later
fallrce in he use of veight tickeitl which he had with South Keniuck. and
Kes (C . .hch I find is on a collateral matter and not material herein
other han noting l.ee, assurance given to Spencer at the time was that a
measurilg it the pit h the miner instead iof weight slip use) was a custom-
air practice i the Industrs (though Spencer should have opportunil tio he
presenl hen dnel and thalt ee was being sent the measurements and
performing the calculitions, presumabls to ensure an accurate accounting
betleen the properlt owner's interests and the miner. South Kentuck!
Spencer remained unsatisfied hecau e of his contention that his lease called
for ecluile use f weight tickets.
4 sxtracied coal is loaded on it truck. here are no scales a3 the strip
mine Instead a driver is given a weigh ticket The driver subsequentls
weigh, the loaded truck. he ticket. when returned. establishes gross, tare.
and et Icoa;l} eight. Copies of weigh tickets were normall? provided the
propert owner for c mpalrison ilth the ro alt paid. As Kes Coal re-
manned responsible on the roalets t generaill required weigh slip copies.
though t ailso accepled pit measurements when appropriate. discussed ru
/I//
KEY COAL CO.
| AN r
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
coal then being extracted, but that was all he did. Lee, to
whom copies of the weigh tickets were regularly sent, testi-
fied he knew that South Kentucky customers were basical-
ly the American Electric Power Plant at Beverly, Jay-Mar
Coal Company at Cheser, and Bellville Mining in Wheel-
ersburg, Ohio (though, there were possibly others). Lee tes-
tified that none of the above had been customers of Key
Coal previously nor had they or do they sell to Columbus
and Southern, Key Coal's sole customer. Lee testified also
that none of the coal produced by South Kentucky has
ever gone to Columbus and Southern 85 through any of the
named Blazer companies, with the exception of some 200
tons produced by South Kentucky on the very first day
and that was done by mistake. Thus, Lee recalled that on
the first day of South Kentucky operation some 200 tons of
coal was produced by South Kentucky and went to the
Angel tipple for processing. The coal was intended to be
processed, stockpiled, and then delivered to South
Kentucky's customer, the Beverly plant. In the processing
some 200 tons got into coal stocks that were destined for
Columbus and Southern. As soon as the error was discov-
ered Lee testified that it was stopped. 86
With regard to South Kentucky's continued use of Key
Coal's permits, Blazer testified that Key Coal kept the per-
mits in its name simply because it was a necessity. Lee's
testimony in this area was corroborative, more definitive,
wholly persuasive, and I credit it. Thus, Lee testified that if
Key Coal had sold the property outright it would have had
to immediately completely reclaim the property itself (at
his estimated cost of $200,000) and to have turned n its
permits. South Kentucky (or any other purchaser) would
then have had to have gone through the procedure of mak-
ing application with new maps, drawings, and bonds and
to have had to obtain new permits, itself a 4- to 5-month
procedure. Lee testified that, all things considered, the use
of a sublease had saved both parties a year's time and
avoided the requirement of Key Coal doing the reclaiming.
However, in using the sublease approach Key Coal has had
to remain responsible to the property owner for royalties
(for further coal mined) and as well (since remaining on the
bond) primarily responsible to the bond guarantor that rec-
lamation would be made as required by government regu-
lators. Lee testified that therefore the extent of Key Coal's
continued interest in the properties has been to make sure
that South Kentucky is working within the provisions of
the permits, e.g., doing timely reclamation, and also keep-
8 It appears that two of the companies (Ja)-Mar and Bells ille had at one
point exhibited some interest in purchasing Key Coal and there is evidence
that a concern of South Kentucky prior to agreeing to the sublease of April
15 was to find customers. I conclude that even if it may he inferred that
Blazer made South Kentucky aware of the interest of these companies no
impropriety is thereby established. I further note that there was no evidence
offered that any of the above companies had previousl) been customers
(directly or indirectly) of Tvler or A. L.
t6 I have considered Lee's other testimony that he was not sure whether
South Kentucky was eventually paid for this 200 tons of coal mistakenly
delivered to Columbus and Southern. First, I note that there is n direct
evidence that it was not paid r that an adjustment was not in fact made.
However, even assuming there was no adjustment made I would not con-
clude such a circumstance was very significant, and certainly not control-
ling. because of the relatively minor sum involved since Key Coal w;as to be
paid $5 a ton for this coal in any event.
ing track of the tonnages involved to ensure that a correct
payment of royalties is made to the property owners. Lee
testified that it is to those ends that he regularly has visited
the property about once a week. However, Lee also testi-
fied that Key Coal has exercised no supervision over South
Kentucky either to its operation or its sales, and there ap-
pears to be no evidence in significant conflict therewith in
this record. To be sure, if Lee observed South Kentucky
not performing, e.g., not proceeding with required reclama-
tion, Lee would bring it to Blazer's attention. Blazer testi-
fied that he would simply shut the South Kentucky opera-
tion down, by canceling the lease. It thus appears clear that
the close control here displayed is of end product or ulti-
mate interest (timely payment of royalties and reclamation
performance), and not day-to-day direction of operations.
Analysis, Ultimate Findings, and Conclusions
The General Counsel contends that Respondent has an
affirmative duty to notify the Union and provide an ade-
quate opportunity to bargain about the specific decisions
to sell the uncovered coal and to sublease the premises, and
that Respondent failed to do so in violation of Section
8(a)(5) and (1). The General Counsel also contends that
Respondent, in reaching its decisions in those actions, was
at least in part motivated by antiunion considerations as
evidenced by its prior animus display to the initial organi-
zation movement of its employees in 1975,87 and further
contends it has engaged in a subterfuge which sees Re-
spondent remaining essentially in business while divesting
itself only of that part of its business which involved work
done by members of the Union.
Essentially Respondent contends that it did not on any
occasion fail to meet reasonably or refuse to bargain with
the Union in good faith. Respondent also points to the
facts (which I have now found) that the bona fides of the
Kimberly lawsuit and Key Coal's shutdown were unques-
tioned, and that there resulted a mutual agreement of the
parties that further negotiations would await the outcome
of the Kimberly lawsuit. With a demonstration of interven-
ing circumstances Respondent relies on the ultimate facts
that its mining capacity and operational structure had been
substantially changed by the time of resolution of the law-
suit; and that for economic reasons Respondent decided
that it would not continue a mining operation, but would
in the future function strictly as a sales company. Respon-
dent then promptly, as it had agreed, notified the Union in
December 1976 both of the resolution of the lawsuit and
also its decision viz, that as a result of the resolution of the
lawsuit it did not anticipate that it would engage in a min-
ing operation in the future. Respondent's first line of de-
fense is that Respondent had no duty to bargain about this
economic decision to shut down its mining operation,
though there may be an obligation to bargain with the
Union about the effects of that decision which Respondent
contends it had adequately fulfilled. Respondent relies on
N.L.R.B. v. Drapery Manufacturing Co., Inc. and American
T the General Counsel has inadvertently placed Blazer's statements to
Humphrey in 1976 rather than. as recalled by both Humphreyv and Blazer.
in 1975. Similarly I have found that other evidenced animus of Key Coal
occurred in 1975
KEY COAL CO. 1037
White Goods Company, 425 F.2d 1026. 1028 (8th Cir. 1970):
N.L.R.B. v. Adams Dairy, Inc., 350 F.2d 108 (8th Cir. 1965).
cert. denied 382 U.S. 1011 (1966): and Royal Typewriter
Companvy v. N.L.R.B., 533 F.2d 1030 (8th Cir. 1976). Re-
spondent otherwise contends that its subsequent sale of
uncovered coal, on February 1. was economically motivat-
ed and only the sale of an asset: and that the sublease of
the four properties on April 15 was accomplished after the
parties last bargaining meeting of April 13, at which time
Respondent had again repeated to the Union that because
of the evolutions of the lawsuit it was no longer going to
have a mining operation. Respondent asserts it was at all
times willing to negotiate the effects of that decision
though the circumstances of no prior contract minimized
that which was required to be discussed: that the Union in
contrast took the position that it wanted all employees put
back to work despite the stated position of Key Coal that it
had gone to sales only and thus had no mining operations
at that time to accommodate the Union: and that it was
the Union which then ended negotiations with the asser-
tion they would let the Board decide the issue. Finally, with
regard to alleged discrimination accomplished b contend-
ed manipulation of assets and equipment or other contend-
ed subterfuges, Respondent asserts it was the General
Counsel's burden to prove that some discrimination had
occurred, not Respondent's burden to disprove it. None-
theless. Respondent contends that when all the evidence is
reviewed and evaluated in the several questioned areas it
must be concluded that the General Counsel's proof simply
has failed to establish there was any subterfuge or any dis-
crimination.
Respondent's initial arguments, that its decisions in gen-
eral are not a subject of mandatory bargaining with stated
reliance on the certain named cases supra, must at the out-
set be discounted and set aside. It has long been estab-
lished to be the trial court's duty to apply established
Board precedent which the Board itself, or the Supreme
Court, has not reversed, Insurance Agents' International
Union, AFL-CIO (The Prudential Insurance Compani of
America), 119 NLRB 768, 773 (1957): J. Ray McDermott &
Co., 227 NLRB 1347, 1349, fn. 6 (1977). The Board has
consistently expressed the view that under normal circum-
stances an employer cannot unilaterally subcontract work
when such action results in substantial detriment to the
employees in the unit, having concluded with subsequent
court approval that the same is covered by the phrase
"terms and conditions of employment" within the meaning
of Section 8(d), and thus itself a mandatory subject of bar-
gaining. Town & Countrv Manufacturing Company. Inc., 136
NLRB 1022 (1962),enfd. 316 F.2d 846 (5th Cir. 1963): Fi-
breboard Paper Products Corporation v. N.L.R.B., 379 U.S.
203 (1964): R. L. Sweet Lumber Company. 227 NLRB
1084, 1086 (1977), enfd. 515 F.2d 785 (10th Cir. 1975). The
Board has generally held on the same such reasoning that
an employer must similarly initially bargain with the col-
lective-bargaining representative of the employees con-
cerning a decision of partial discontinuance of relocation
of its business. Burroughs Corporation, 214 NLRB 571,
579-580 (1974); Roval Tvpewriter Compan,. a Division of
Litton Business Systems, Inc., e al. 209 NLRB 1006, 1012
(1974): Ozark Trailers, Incorporated and/or Hutco Equip-
ment Company, et al.. 161 NLRB 561 (1966). The Board has
had occasion to express the underlying rationale and its
own function in relationship thereto as follows: "The un-
derlying rationale for requiring bargaining over such mat-
ters is that the Union--on behalf of and as representative
of employees-should be accorded an opportunity to en-
gage in a full and frank discussion regarding such deci-
sions": and "to have an opportunity to influence the final
decisions. Whether the final decision is actually influenced
is undoubtedly significant to the parties; however, the pur-
pose of the law and the Board's sole function is to assure
that such an opportunity in fact exists." Brockwaqy Motor
Trucks, Division of Mack Trucks, Inc., 230 NLRB 1002,
1003 (1977). In addressing itself to consideration of the
balance of legitimate management and employee interests
in partial closures, as earlier expressed in Ozark Trailers,
Inc., supra at 566, the Board said:
[A]n employer's decision to make a "major" change in
the nature of his business, such as the termination of a
portion thereof, is also of significance for those em-
ployees whose jobs will be lost by the termination.
For, just as the employer has invested capital in the
business, so the employee has invested years of his
working life, accumulating seniority, accruing pension
rights, and developing skills that may or may not be
salable to another employer. And, just as the
employer's interest in the protection of his capital in-
vestment is entitled to consideration in our interpreta-
tion of the Act, so too is the employee's interest in the
protection of his livelihood.
While the Board has extended the deference due to the
views of certain circuit courts in disagreement with its own
views in this area of partial closing. the Board has consis-
tently maintained its general approach as expressed above
in Ozark Trailers. Cf. Brockwav Motor Trucks, Division of
Mack Trucks, Inc., supra, Burroughs Corporation, supra.
The Board has itself in its continuing evaluation of such
cases, however, also recognized on appropriate occasion
another type of business transaction, viz, an essential bona
fide sale of an employing enterprise, and has viewed such
controlled by the rationale which the courts have adopted
in closely related cases. Thus, in a case where the record
establishes that there was an arm's-length withdrawal of
capital by a respondent seller and a corresponding invest-
ment by a buyer. the Board has viewed such a case as
differing in its essential nature. As expressed in General
Motors Corporation, GMC Truck & Coach Division, 191
NLRB 951. 952 (1971). the Board determined that: "A de-
cision to withdraw capital from a company-operated facil-
ity and relinquish operating control to an independent
dealership is very much 'at the core of entrepreneurial con-
trol' ": and the employer's decison therein resultingly was
deemed "not a mandatory subject of bargaining under Sec-
tion 8(a)(5)," though a bargaining obligation on the effects
thereof remained. The Board subsequently clarified that in
its determination in the latter case that there was no obliga-
tion to bargain with a union concerning an economic deci-
sion to sell an independent dealership it had not overruled
Ozark Trailers, Inc., supra, and reaffirmed that an em-
ployer operating two or more plants was obligated to bar-
KEY COAL CO.
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gain with respect to a decision to close one of those plants.
Royal Tpewriter Co., supra at 1012. However, the Board
has continued to recognize that there may be presented in
a given case an exempting distinction in decisions to close
which involve (on their established facts) "such a 'signifi-
cant investment or withdrawal of capital' as to 'affect the
scope and ultimate direction of the enterprise.' " Brockwar
Motor Trucks, Inc., supra.
The Board has frequently recognized as well a seemingly
collaterally related principle in regard to ascertainment of
the appropriate remedy in the consideration it has extend-
ed to circumstances of whether a previous operation had
demonstrably been unprofitable, or whether the ordering
of a remedial reopening would involve a substantial capital
outlay by Respondent, and thus "likely to be unduly bur-
densome." cf. Great Chinese American Sewing Compan.'
Espirit De Corp., 227 NLRB 1670 (1977); and has I specifi-
cally experessed particular reluctance to do so if no 8(a(3)
violation is involved. Burroughs Corporation, supra at 571.
Even apart from cases involving demonstrated animus, it
would appear appropriate also to note that in regard to
subcontracting unit work, the circumstance that an em-
ployer may have been motivated by economic considera-
tions will not alone excuse a respondent from a failure to
bargain with the union as the exclusive representative of its
employees, prior to an implementation of a change in terms
and conditions of employment of its employees. R. L.
Sweet Lumber Companv, supra, fn. 1. As will be observed in
ultimate analysis, in my view, the instant case presents for
evaluation elemental factors bearing on subcontracting.
entrepreneurial decision, and opportunity to bargain over
such decisions prior to implementation. With regard to the
allegations of Section 8(a)(3), the governing principle is the
usual one of an assessment of all the facts, however com-
plex, for discernment of the "real motive" or "true pur-
pose" of the Respondent's actions; for "the 'real motive' of
the employer in an alleged 8(a)(3) violation is decisive."
N.L.R.B. v. John Brown d/hba Brown Foods Stores, 380
U.S. 278, 287 (1965). Invariably, "It is the 'true purpose' or
'real motive' in hiring or firing that constitutes the test."
Local 357, International Brotherhood of Teamsters, Chau/
feurs, Warehousemen and Helpers of America [Los Angeles-
Seattle Motor Express! v. N.L.R.B., 365 U.S. 667, 675
(1961). In that respect, "every equivocal act that has been
done may be properly viewed in the light of Respondent's
animus toward the effort to organize its men." N.L.R.B. v.
Houston and North Texas Motor Freight Lines, Inc, 193
F.2d 394, 398 (5th Cir. 1951), cert. denied 343 U.S. 934
(1952). Pre-Section 10(b) evidenced animus may be consid-
ered to the extent it serves to shed light on the true charac-
ter of Respondent Key Coal's February I and April 15
agreements with South Kentucky, though the reason-
ableness of a tendency of such to prove presence of an
unlawful motive must be aided by other facts such as to
persuade even in the face of passage of time. Significant
intervening credible events supportive of lawful purpose
must be taken into account. Local Lodge No. 1424, Interna-
tional Association of Machinists, AFL-CIO, et al. [Bryvan
Manufacturing Co.] v. N. LR.B., supra, Paramount Corp.
Mfg. Co.. supra, Breckenridge Gasoline Company. 127
NLRB 1462, fn. 7 (1960). Conflicts in the facts having been
resolved and the complex facts now marshaled, it would
appear we have but to appl? these principles to resolve the
issues presented.
(a) The allegations of discrimination and subterfuge
considered
Respondent was a substantially.different enterprise in
December 1976 from the one it was in June prior to its
forced shutdown. It was discernibly different in mine oper-
ating capacity, contractual obligations, and capital invest-
ment. Whereas in June. Key Coal was obligated to produce
coal and had the necessary mining equipment to do so, in
December it was no longer obligated to produce coal for
anyone and possessed at that time insufficient heavy equip-
ment to conduct its prior mining operation. While in June,
Key ('oal had been obligated to produce coal for its con-
tract from certain properties, in December it was also no
longer obligated to do so. In that connection, although Key
Coal in December had obtained the exclusive ownership of
mining rights in the four coal reserve properties, it had not
needed to mine them to fulfill its major sales contract, hav-
ing done so successfully for 6 months through coal pur-
chases from J. T. While in June it had no responsibilities
in other mining properties, in December it found itself with
immediate responsibilities on 20,000 tons of partially un-
covered coal (of $100,000 estimated value); with varying
mining and royalty obligations on four properties with
even more substantial remaining coal reserves: and last but
not least, it had become the sole owner of a valuable long-
term (1990) sales contract, all occasioned as a result of a
required further substantial capital investment. Nor may it
be fairly concluded that these changes were in any sense
wholly voluntary. Rather I am constrained to find, under
the evidenced circumstances of this case, such changes in
structure were more in the nature of a compelled result of
the required resolution of a bona fide lawsuit: a result ef-
fected only after effort at other resolutions over a long
period had failed. For these reasons I find fatal weakness
in the General Counsel's overly broad, though seemingly
pragmatic, argument that Key Coal has remained in the
coal sale business and has only divested itself of the por-
tion of its businss relating to the Union. Moreover, the
argument seems to me to be too simplistic in that it begs
the real question in failing to provide for considerations of
the actual and obvious changes in Respondent's structure
and operations. To be sure there remained with Key Coal
uncovered coal assets and substantial coal reserves from
which coal was reasonably to be produced in the future.
However, the essential inquiry is not whether coal was to
be produced from these properties, or even whether Key
Coal brings forth wholly sustaining economic reasons for it
not to be the one to do so.
As Administrative Law Judge Ordman cogently ex-
pressed in Wagner Water Heater Co., Inc., 203 NLRB 518,
519 (1973), and which I find wholly apropos here:
The burden of proof in this regard rests, of course,
upon General Counsel and the burden in the context
of the present case is considerable. What is at issue
here is not whether the business considerations which
KEY COAL CO. 1039
Respondent advances to support its position were or
were not adequate to justify the mass layoff. The Act
imposes no requirement that an employer exercise
good business judgment and exacts no penalty be-
cause he exercises bad business judgment. What Gen-
eral Counsel must establish here is that Respondent's
decision to effect the layoff was not motivated by
business considerations, but rather by its determina-
tion to visit reprisals upon its employees because of
their union activities and sympathies.
In my view the above changes effected in Respondent's
status as of December 1976 are formidable opposition for
contended discrimination in change of operation. If not
preeminently structured then in obligation to long term
coal sales, at least that obligation must be recognized as a
major one. Being without the required mining equipment
to conduct its former mining operations, Respondent's de-
cision in December to pursue sales seems to me to be also
not without a strong economic base. The General Counsel
argues that there has been no showing that Key Coal's
prior production operation had not theretofore been a
profitable one, or that Respondent could not have leased
the necessary heavy equipment from some other supplier,
assuming Reliable was not able to supply its equipment
needs. On the only evidence before me I am constrained to
find that Reliable was not able to supply it, at least not
without a substantial capital outlay of its own. In that re-
gard, and whether in respect to Key Coal or Reliable,
either purchase or lease of heavy equipment, viz, bulldoz-
ers, as evidenced in this case would appear to involve sub-
stantial financial outlays. From the evidence of record the
D-9 bulldozers (herein involved) are evidenced as able to
command sale prices varying from a minimum of approxi-
mately $44,000 to over $89.000 per unit: and lease of such
equipment anywhere from approximately $8,000 to $15,000
per piece of equipment per month. In this context it is
again somewhat of an oversimplification when urged by
the General Counsel, that Respondent as presently consti-
tuted can go back in to the mining business at the drop of
a hat. Nor do I believe that a fair addressment to the rea-
sonable effects of the General Counsel's evidenced and
found Respondent animus to the Union in late 1975 war-
rants that I enter a thicket of speculation on, or second
guessing of such managerial decisions made in December
1976, particularly when not heretofore explored fully of
record. Even the more unwise to do so when such consider-
ations would be engrafted on the heels of other heavy capi-
tal expenditures by Respondent that are already credibly
evidenced. I am convinced that Respondent has brought
forth economic justifications for its acts which are not
shown to lack merit to warrant looking elsewhere for moti-
vation in subsequent events.
I conclude that Respondent's immediate first step of ef-
fecting retrieval of the uncovered coal qualified as a matter
of carrying with it its own self-evident economic prudence.
It was clearly in form a legitimate asset sale of the coal
f.o.b. the pit to a willing purchaser. In this regard I believe
the record does support a finding that Key Coal probably
had on board sufficient equipment (saving consideration of
efficiency) to perform this task. 88 However. such equipment
was clearly not enough to conduct its prior mining opera-
tions: thus, clearly not enough to mine the far more exten-
sive substantial coal reserves remaining on the four proper-
ties. The decision was not one left up to Lee in any event.
but made by Blazer. I must find, on uncontradicted testi-
mony, supported by documentary evidence, that there
were two separate written transactions, one on February 1,
covering sale of the uncovered coal, and the second on
April 15, covering the sublease of the substantial coal re-
serves. Nonetheless, I have no doubt on this record that
Blazer and Bathalter's initial discussions likely covered
Bathalter's interest at the outset in buying also the coal
reserves and Blazer's interest in selling them to Bathalter.
Of course, as shown of record, South Kentucky reasonably
had to first satisfy itself to the extent of the coal reserves
and to procure customers in the area and both parties still
had to come to final terms. Nonetheless I am convinced by
the plausibility that Blazer in knowing that substantial re-
serves were to be found there would anticipate a future sale
to South Kentucky as quite likely, particularly with South
Kentucky's committal on purchase of the uncovered coal.
The very same is as much as evidenced by Vice President
Willis in his remarks to Humphrey in early February fol-
lowing the initial commitment of South Kentucky on the
purchase of the uncovered coal, viz. that the uncovered
coal was sold to South Kentucky and probably the mine
would be too. In view of all these circumstances. I find
myself not persuaded by the General Counsel's evidence
that Blazer was motivated in selling the uncovered coal
initially to South Kentucky to prevent the recall of (two or
more) Key Coal employees from working the retrieval of
uncovered coal rather than in effecting an immediate pres-
ent sale of uncovered coal and the likely future sale of coal
reserves, a purpose wholly in keeping with its earlier an-
nounced decision that, as a result of the resolution of the
lawsuit, it was not going to continue in a mining operation
but would stress sales. As my search for the real motive in
Blazer's decisions has led me to a discernment of strong
economic basis for all these decisions. I am as well con-
strained to conclude that the General Counsel's year-old
animus yields its influence in being of any real significance
as an operative factor to explain Blazer's reaching these
decisions. In reaching this ultimate conclusion, I have giv-
en additional and careful consideration to Blazer's remark
in 1976 to Humphrey that if Humphrey (and the others)
bought back Key Coal that the union problem would be
eliminated. However, this remark in context was a response
to a subject condition for a sale first raised by Humphrey
in that conversation. Blazer in responding was attempting
to effect the sale of his bona fide shutdown enterprise: and
in attempting to make that sale repeated to Humphrey no
I inam convinced such is supported h the thrust of I.ee's testomomn that
all that a,il needed was a dozer. a loader, and a truck; and Lee's remarks to
liooper that If II was up Io him he could take hack two employees and get
the niatter straightened oul tlumphre''s testimon -a supportise in that
he recalled mI December 1976h the shovels one of which was serviceable as
;a coal Iloader. and a 1) 9 hulldozer vere left (on the property With regard
to the presence of a bulldozer I note that even Ltee\' testimoniv was that a D
8 hbulldoer was taken off the premises much later. I also note that a bill ofr
s.le of Reliable to IE( on one final dozer as diated 'FehruarN 21. 1977.
though it \s seemingl Identified as a ale item in October 1976
KEY COAL CO.
-
F - /
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
more than what was Humphrey's own observation to Blaz-
er of probabilities in employee interest in a union on the
occasion when Blazer initially bought Key Coal from
Humphrey and his group. I am simply not persuaded by a
contention that would seem to lift this remark out of that
context; nor does it in the persuasive context of other eco-
nomic factors presently considered sufficiently evidence a
continuing operative intention on Blazer's part to avoid the
Union rather than a remark broached by Blazer to Hum-
phrey in the hopes of effecting the desired sale.
I have also earlier noted my disagreement with the Gen-
eral Counsel's contention that a conclusion of a less than
arm's-length transaction between South Kentucky and
Blazer is to be drawn from Key Coal's failure to provide
coal to South Kentucky when the latter failed to recover
the purchased 20,000 tons by March 15 because of the
weather and picket line. The contended interpretation in
my view was simply not the parties' agreement. To the
contrary, the presence of a provision in the agreement
guaranteeing that there was 20,000 tons of coal to be re-
covered, if anything I find evidences an arm's-length trans-
action. Equally compatible therewith is the circumstance of
there being two separate transactions, the first covering a
matter of immediate concern. Nor is there warrant on this
record to conclude that Brewer's presence on the premises
in early February was as a subcontractor of Key Coal, a
matter denied without contradiction by Key Coal princi-
ples, rather than as is left more likely in this record by
arrangement made by South Kentucky's Bathalter who
was Brewer's president at the time.
The General Counsel's arguments as to the April 15
agreement on the sale of coal reserves being of subterfuge
nature warrants further detailed reflection. Essentially the
argument is based on three observations: (I) the circum-
stance that no written consents were procured prior to the
agreement execution as argued by the General Counsel
was required; (2) the presence of a 10-day cancellation
clause; and (3) the circumstance that Bathalter did not sign
the agreement until almost 4 months later on August 8. As
to the latter point it must be observed that I have uncontra-
dicted testimony of Lee, whom I have found credible in a
number of other matters, that Bathalter's failure to sign
before then was just a matter of his schedule; and that
Bathalter had earlier informed Lee he would sign the
agreement. Even more persuasive of the April existence of
the agreement is the uncontradicted testimony of Blazer
and Lee and the circumstance that South Kentucky en-
tered performance and as a practical matter has performed
its terms to the statisfaction of Key Coal. I have no con-
flicting testimony of Bathalter before me for consideration,
nor any reason on this record to question Lee's testimony
in this regard, particularly where in so many other in-
stances I have found his testimony essentially candidly giv-
en. As noted, the record is not without some support that
Bathalter may have been personally very busy on other
matters, matters understandably of an immediate and time
demanding nature. With regard to the failure of Key Coal
to obtain written consents, while such may or may not
constitute breaches of the base lease originally between
property owner and Kimberly, and now (by assignment of
Kimberly) by Key Coal, I do not believe that would negate
or make invalid the sublease between Key Coal and South
Kentucky as Respondent has ably pointed out. However, I
am as well convinced that Lee did not initially procure
written consents from all the property owners because he
did not at that time view it as immediately necessary. This
is tellingly indicated in the written sublease itself, the terms
of which were essentially negotiated by Lee, wherein Lee
made provision that South Kentucky was to procure con-
sent from the Spencers onhl (whose property was opened at
the time and to be worked) and not the other property
owners whose reserves were no less the subject of the same
sublease, and as well by Lee's noticeably unsure testimony
in that regard. What I do find suspicious in this agreement
is the presence of the 10-day cancellation clause added af-
ter Lee had negotiated the sublease with Bathalter and
prior to Blazer signing it on April 15. Not without some
justification does the General Counsel observe that the
mere presence of such an unrestricted clause in the sub-
lease facilitates an ability on Key Coal's part to go back in
production on these same valuable properties at a time of
its election, e.g., after it had waited the Union out. Respon-
dent's answer for the presence of the 10-day cancellation
clause is that it made the use of the sublease viable. I have
earlier found that Respondent hasjustified with convincing
economic reasons, e.g., substantial time and cost savings,
the use of the sublease mechanism to effect a more eco-
nomical sale of the coal reserves. However, in electing to
do so Respondent has had to remain legally responsible for
payment of royalties and remains liable on bond for sub-
stantial past and even more substantial future reclamation.
I am persuaded that a consideration of the immediate rec-
lamation was also a factor operating on Key Coal to enter
a sublease with South Kentucky at this time. I thus con-
clude that Key Coal presents effective and convincing just-
ification for the presence of the 10-day cancellation clause,
in that the same serves as its protection that South Ken-
tucky will perform timely both in the payment of royalties
and the required reclamation. I frankly found less convinc-
ing Key Coal's additional argument that the same clause
was added with failure to obtain consents in mind, as I do
its excusing argument that there has been a waiver of the
need for consents based on performances made without
objection by property owners, and royalties paid and ac-
cepted by the property owners. As to the latter clearly such
argument is post facto in nature, and the former now raised
does not convince me that it was not also of that origin in
view of the lease provisions.89 However, and it seems to me
Ml In drawing this conclusion I have relied heasils on he terms of the
lease itself which reveals only one property owner consent was then to be
procured. and to he obtained b South Kentucky. It seems to me the nature
of those provisions and Lee's initial unsuredness on the stand as to what was
acIu;all required in sublease supports the finding made that the obtaining
of ritten consents from all property owners (rightly or wrongly) was not of
significant import to Lee at the time If I draw erroneous conclusion in this
respect. the reverse view only serves to advance the impact of Respondent's
contention that the 10-day cancellation clause was added on legal review of
the sublease (as argued b Respondent) as protection afforded to all parties
and to support its legal argument that any ithholding of consents by prop-
ert owners in the future could be viewed as unreasonably withheld under
Ihose circumstances, and thus proceeding immediately without them not a
breach of the base lease agreement between property owner and (now) Key
Coal,
KEY COAL CO. 1041
in any event, other sufficient and independent economic
justifications have been effectively advanced of record for
the presence of even the 10-day cancellation clause in the
lease, which are definable and carry their own conviction.
The possible use of the clause for other unlawful purpose
in the future remains then at best but a speculation or mere
suspicion. Finally, I have carefully reviewed all evidences
(an contentions thereon) that there was a subterfuge effect-
ed in the use of South Kentucky to somehow continue to
service Key Coal's interests, e.g., customers (or as substitut-
ed with A. L. or Tyler customers), and other contended
relationships effecting control of South Kentucky by Key
Coal. As contended by Respondent. I conclude and find
such proof is lacking or unconvincing. For all the above
reasons I now conclude and find that the evidence offered
by the General Counsel has failed to predominate in estab-
lishing that Key Coal, in selling or subleasing to South
Kentucky the uncovered assets and coal reserves in Febru-
ary and April, was without economic motivation, or that
the economic motivation was a pretext and it did so for
discriminatory reasons; or that a discriminatory purpose
was an operative factor in its entering either of those agree-
ments. I shall accordingly recommend that the 8(a)(3) alle-
gations of instant amended complaint to be dismissed, Pro-
duction Molded Plastics, Inc. and Detroit Plaster Molding
Co., 227 NLRB 776, 777 (1977): Wagoner Water Heater,
Co., Inc., 203 NLRB 518 (1973); Bonded Draving Service. et
al., 220 NLRB 1015, 1019 (1975). It thus remains to consid-
er the remaining allegations of Section 8(a)(5) in which
discrimination is not a required element, and the presence
of economic factors not necessarily a defense.
(b) The allegations of refusal to bargain considered
The Union was certified on March 4 and the record re-
veals a preliminary negotiation was conducted on March
23, 1976, in which the Union presented its initial contract
proposal in the form of its existing deep mine contract.
Respondent proceeded to exhaust an available appeal be-
fore the Board which was then denied on April 23, 1976.
(Respondent has mounted no attack on the Union's certifi-
cation in this proceeding.) Negotiations were brief (only
three in all) and interrupted by long periods. The second
negotiation meeting was thus held on June 17. By that time
Key Coal's mining operation was totally shut down by a
bona fide lawsuit. The parties acknowledged this at the
negotiation meeting and agreed that further negotiations
would be delayed until the lawsuit was resolved. The Com-
pany agreed to notify the Union when it was resolved,
which was satisfactory to the Union. However, it appears
Key Coal also kept the Union advised on certain scheduled
hearings in the matter. The lawsuit was not finally resolved
until apparently mid-November in principle; and on De-
cember 23, 1976, in practical effect, with transfers or as-
signments being accomplished on December 23, 1976, and
apparently the injunction lifted at that time. The General
Counsel argues in his brief that Respondent did not notify
the Union it was contemplating a sale of Key Coal earlier
in October 1976, I must note somewhat in departure of
complaint allegations. However, it is hard for me to believe
that the Union was not well aware of Key Coal's active
consideration of either effecting a purchase of Kimberly or
alternatively a sale of its own assets to Kimberly or others
since the Union was fully aware of its lawsuit difficulty.
The suggestion in that regard had been made openly by the
presiding judge. The Union had been advised of the hear-
ing and Humphrey testified there was general talk about it.
Further, not only Humphrey, but other unit employees,
including Hooper. who had represented the unit, were in-
dependently aware of possible sale of Key Coal by Blazer
to Humphrey and his group. Be that as it may, it is clear
beyond the questioning that on December 29 and 30 Re-
spondent Key Coal served an effective notice on the Union
of its decision reached that it planned not to engage in any
mining operations in the future as a result of the resolution
of the lawsuit: and further advised the Union that in view
of the fact that mining employees were not to be associated
with the Company's operation in the future, Respondent
presumed that further negotiations would be unnecessary.
The General Counsel in his brief glides over the circum-
stance that the Union thereafter made no request for bar-
gaining at that time over the announced decision, or ex-
pressed presumption, for a month, or more. I may not do
so. Rather I find that upon being notified of a decision of
a major change in operations and an employer expressed
presumption that consequently further negotiations would
not be necessary. the Union did not timely request a meet-
ing about that decision though it had ample opportunity to
do so prior to any subsequent implementation.
I thus additionally find that no effort to bargain over the
announced decision was made prior to Lee's further notice
of the first sales action implementation of that decision
which occurred about I month later. I do not construe the
silence of the Union as a waiver of its bargaining rights
generally (cf. Perkins Machine Company. 141 NLRB 98,
102 (1963). However, I do find such silence fairly a factor
for evaluation in regard to subsequent claim by the Union
that it was caught short by the later sale implementation:
e.g., by Key Coal's letter of January 26 announcing an
anticipated sale of the uncovered coal f.o.b. the pit within
10 days: and as well to be evaluated in regard to the Gen-
eral Counsel's contention that the 5-day effectuation of the
sale presented the Union with a fait accornpli. While Lee
notified the Union that a sale was anticipated within the 10
days, he also reconfirmed to the Union the earlier noticed
fact that no employment was to be activated. Key Coal
also assured the Union that it would discuss the effects of
the sale. The latter discussion obviously was not condi-
tioned on being held precedent to such sale. In a subse-
quent conversation between Dever and Woodrum. the con-
cern raised by Woodrum was that Key Coal was about to
subcontract unit work and Dever repeated Key Coal's po-
sition as being that Key Coal was not engaging in any
subcontracting, that what was involved was only the selling
of an asset. While the Union has contended that the Com-
pany on this (sole) occasion refused to meet promptly for
bargaining at the Union's request, I have found facts earli-
er suggestive of the contrary, and I presently conclude and
find under all the circumstances that such a contention is
not well supported by the evidence. I am rather fully con-
vinced that the initial agreement of Key Coal and South
Kentucky on the 20.000 tons of uncovered coal was an act
KEY COAL CO.
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in implementation of the earlier announcements on De-
cember 29 and 30; was accomplished in the manner that
Lee foretold in his January 26 letter would be done; and
was what the February I agreement itself imports, what
Dever assured Woodrum it was on February 3. and what
Willis described and evidenced it was to Porter on Febru-
ary 3 or 4; viz, a bona fide outright sale of the uncovered
coal f.o.b. the pit by Respondent Key Coal to a willing
purchaser agreed to on February 1, and not an arrange-
ment involving any indirect mining operation by Key ('oal
through subcontract. (There is no convincing evidence that
any Key Coal mining operation was instituted at this time,
or any time later, in connection with the removal of this
uncovered coal). Thus, I am of the view that the sale thus
effected must be regarded as no more than a compatible
implementation of the December announced decision of
Respondent not to engage in any further mining opera-
tions; and seemingly in nature an act in protection of an in
retrieval of part of the capital itself only recently invested.
The General Counsel would fault Respondent for entering
this agreement with South Kentucky in less than half the
time indicated in Lee's letter that it might take to effect the
sale and thus argues for the result that the Company pre-
sented the Union with a fait accompli on the sale, as there
was no opportunity provided the Union to bargain over the
sale. But I conclude there had been a clear opportunity of
the Union to earlier request bargaining with the Company
about the (admittedly) already made (but not then imple-
mented) more basic decision not to engage in any mining
operations in the future. In my view also, this agreement
for sale of the uncovered coal did not constitute subcon-
tracting of unit work, but rather was in form and substance
a legitimate sale of assets, and one which did not in its
provision or implementation involve any direct or indirect
resumption of mining activity on Key Coal's part. Its effec-
tuation thus in no significant sense constituted a departure
from Key Coal's earlier announced and theretofore un-
questioned decision not to engage in further mining opera-
tions.
Consequently I conclude as without merit the contention
that Respondent, in the sale of the uncovered coal on Feb-
ruary 1, engaged in subcontracting of unit work, or pre-
sented the Union with a fait accompli thereon. Under this
view it would seem unnecessary to reach and resolve the
further question whether the business activity involved was
so in nature no more than a retrieval of capital coupled
with the earlier and substantial investment of capital as to
constitute entrepreneurial action "affecting the scope and
ultimate direction of the enterprise" and on that account to
be viewed as not the subject matter of mandatory bargain-
ing. However, the sublease of April 15, in involving not
only a similar (though 10 times larger) sale of coal reserves
but a performance of past and future reclamation work for
Respondent Key Coal, I conclude must be regarded as
quite another matter involving quite different considera-
tions.
The General Counsel essentially in this instance correct-
ly summarizes the record in his contention that Respon-
dent Key Coal never notified the Union of the actual de-
tails or terms of its proposed sublease of the four properties
to South Kentucky, even though negotiations thereon were
far advanced when Key Coal last met in negotiations with
the Union on April 13. Respondent makes no bone of con-
tention that its position on this sublease was again simply a
sale of an asset. albeit a substantial one of mining rights to
the remaining coal reserves (some 220,000 tons). Respon-
dent reasserted to the Union at the April 13 meeting its
position that it was not involved in subcontracting, but
simply would be involved no more in any mining opera-
tion. Here I find a fatal fallacy appears in Respondent's
position and a serious violation of Section 8(a)(5) is ex-
posed.
The terms of the subject sublease are clear. South Ken-
tuck) obtains the rights to mine the four properties con-
taining the estimated additional 220,000 tons of coal re-
serves. In turn, Key Coal receives a price per ton
essentially in amount deemed sufficient to pay royalties
due the property owner (and probably fees) and with op-
portunity to share in higher sale prices should prices rise to
certain amounts (which has not yet occurred and which in
any event is in essence part of the same price per ton
agreed monetary consideration). Respondent also obtained
an agreement by South Kentucky which in essence pro-
vides that South Kentucky will also undertake to perform
all the past and future reclamation work involved in these
premises. Thus, it seems to me to be perfectly clear that
Respondent, by terms of this sublease to South Kentucky.
did not merely sell its assets viz, the coal reserves to be
found in the four properties, it also effectively hired South
Kentucky to perform the required reclamation work, a
(unit) work liability it presently held. Involved was the sub-
stantial reclamation of some 80 to 100 acres already
worked during the full year of its own prior operation and
a liability monetarily of substantial scope ($200-$400,000).
Such reclamation work clearly was work that unquestion-
ably would have been done by its former employees, and it
must also be regarded in this day and age and under appli-
cable regulations of the state of Ohio as an essential ele-
ment of running a mining operation. In my view Respon-
dent Key Coal, via the sublease medium it selected, has
subcontracted this substantial reclamation (unit) work as
effectively as if it had first received a fuller monetary con-
sideration for all its coal reserves and then separately en-
tered a subcontract with South Kentucky to perform those
very same services.
I have earlier noted and discounted Respondent's first
line of defense that a decision to simply shut down a partial
operation is not a mandatory subject of bargaining with its
reliance on certain named circuit court opinions which
have differed with the Board's view of the facts of those
cases for reasons earlier stated. However, even in that con-
nection, what in the final analysis appears revealed herein
so clearly involves the essential ingredients of basic sub-
contracting, that I am of the view it is highly questionable
whether the same circuit courts would view the cited cases
as apposite support for the conduct of the employer now
under review and revealed as essentially subcontracting.
Key Coal still remained primarily liable on the base lease
and bond for the past reclamation. This reclamation was
still to be performed, in a real sense, on Key Coal's leased
mine premises. It was an undertaking clearly and principal-
ly. if not solely, for Key Coal's benefit; and Key Coal re-
KEY COAL CO. 1043
tained an effective and continuing controlled observation
to ensure that the reclamation work was timely and satis-
factorily done. To that extent I note this business arrange-
ment also involved a clear departure from Key Coal's pre-
viously announced position expressed to the Union that it
would no longer engage in a coal mining operation and it
was not discussed by Respondent.
In constrast, the Union had clearly requested in March
that it be notified should Respondent decide in the future
to enage in any subcontracting of its mining operations
and in April specifically asked if there was not some area
for agreement. Respondent Key Coal never acknowledged
in its collective-bargaining dealings with the Union that it
was doing so, let alone adequately notifying the Union that
its intention was to subcontract the past reclamation work
to South Kentucky along with its planned sale of the coal
reserves to South Kentucky. I am thus wholly convinced
and I find that Respondent Key Coal has unilaterally and
without bargaining with the Union subcontracted on April
15, 1977. this certain and substantial reclamation work in
violation of Section 8(a)(5) and (1) of the Act. Town &
Country Manufacturing Compan. Inc., and Town & Country
Sales Companyv, Inc., 136 NLRB 1022 (1962), enfd. 316
F.2d 846 (5th Cir. 1963); Fibrehoard Paper Products Corpo-
ration v. N.L.R.B., 379 U.S. 203 (1964). Respondent has
also asserted that it was in any event always willing to
bargain about the effects of its decisions in these matters.
However, it seems hardly questionable to me that in refus-
ing to even acknowledge to the Union that it was in effect
hiring South Kentucky to do the past reclamation work.
Respondent as well has failed to sufficiently bargain over
the effects of any such arrangement. It does. however, ap-
pear that, if the sublease may not be regarded as purely a
sale of assets, neither may it be regarded as simply a matter
of subcontracting Respondent's past reclamation work for
which Respondent was clearly liable. Thus, the sublease in
question just as clearly transferred major mining rights to
substantial coal reserves (assets) which Key Coal did not
itself at the time have sufficient equipment to mine. Al-
though future mining operations by South Kentucky car-
ried with them further reclamation obligations on which
Key Coal would remain liable (because of the utilized med-
ium of sublease), the latter were not a specific liability of
Key Coal until the properties were actually further worked
by South Kentucky. Consequently, in my view, the latter
reclamation work may properly be regarded as essentially
relating to South Kentucky's operations and consequently
an accepted undertaking on its part properly assessible to
South Kentucky as part of the agreement which had ena-
bled it to achieve the benefit of working the properties. I
shall take such factors into account in the determination of
the appropriate remedy for the violation I have found
herein.
CON(sLUSIONS OF LAW
1. Jurisdiction is properly asserted in this proceeding.
2. By subcontracting certain existing reclamation work
in the sublease of April 15, 1977, unilaterally and without
bargaining with the Union, Respondent Key Coal has en-
gaged in unfair labor practices affecting commerce within
the meaning of Section 8(a)(5) and (I) and Section 2(6) and
(7) of the Act.
3. Respondent Key Coal did not violate Section 8(a)(5)
and (I) of the Act in the sale of its uncovered coal on
February I. 1977. nor in the sale of its coal reserves by a
sublease on April 15, 1977.
4. Respondent Key Coal did not discriminatorily sub-
contract (or sell) any of the work of unit employees in
violation of Section 8(a)(3) and (I).
REMEDY
Having found that Respondent Key Coal has engaged in
certain unfair labor practices, I find it necessary to order
Respondent to cease and desist therefrom and to take cer-
tain affirmative action designed to effectuate the purposes
of the Act.
I have found that Respondent Ke C('oal has refused to
bargain with the Union by unilaterally, and without bar-
gaining with the Union. subcontracting certain reclamation
work of a substantial nature on April 15. At the same time
it was effecting the subcontract of this work. Respondent
refused to acknowledge in the negotiations held with the
Union on April 13 that it was doing anything other than
effecting a sale of its coal reserve assets, and has to that
extent erroneously maintained that it was not engaging in
mining operations. Respondent thus withheld from the
Union information as to its intentions in having the certain
and substantial reclamation work performed by South
Kentucky through contractual (sublease) arrangements it
was even at that moment actively pursuing to completion.
Respondent Key Coal did so despite the circumstance that
its employees. who had been on layoff for a substantial
period, would normally have performed this work which
needed to be immediately commenced in order to ensure
that the required reclamation work would be completed by
July 1. 1977. Key Coal did so despite the further fact that
the Union had specifically inquired and requested of Re-
spondent in the negotiations of April 13. whether. even
assuming that Respondent would not resume its full min-
ing operation as it had in the past, there was not any area
in which the Union might not conclude some agreement
for the employees it then represented. I have concluded
that the reclamation work, even when considered in the
context of an otherwise lawful sale of coal reserves, cannot
be regarded as insubstantial or inseparable therefrom.
Rather I have found it was clearly defined unit work, the
performance of which was imminent, and that it was effec-
tively subcontracted without bargaining. The unlawful
conduct of Respondent may thus properly be viewed as
clearly at least having resulted in a premature elimination
of nine unit jobs. There is no convincing showing by Re-
spondent that it did not have sufficient equipment to per-
form this reclamation work (as opposed to conducting for-
mer mining operations as well). To the contrary, the record
establishes the continued presence of four shovels and
availability of at least one (and possibly two) bulldozer(s)
in the period following the DNR's urging in this matter.
I would further observe that, in the matter of the recla-
mation work on the already disturbed land from the past
year's operations. the timely reclamation of that land was
KEY COAL CO.
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an obligation of Key Coal under the laws of Ohio and its
completion was assured by Key Coal's and Jack Blazer's
financial bond.
I will not speculate that Key Coal (or Blazer) had so
mismanaged its business affairs that it was unable to do
what the state law and its own bond required on the
worked land then expiring under one of Respondent's per-
mits. Nor can it be ascertained with any acceptable degree
of assuredness at this time what might have been the out-
come of negotiations had Respondent timely acknowl-
edged to the Union that the existing reclamation work then
required to be performed was a bargainable subject matter,
rather than as is here evidenced, denying to its employees
the right to have their collective-bargaining representative
timely negotiate thereon in their behalf and attempt to in-
fluence Respondent's decision on the subcontracting of
such work to others; and with possibility of doing so in a
manner such as might even then have affected a broader
work spectrum for employees that would have enabled a
retention of some, if not all unit employees in their posi-
tions. The unfair labor practice committed here thus in-
volves a refusal to bargain by subcontracting existing recla-
mation work required to be performed between April 15
and July , a consequent and definable premature loss of
jobs in that period and a denied opportunity of the em-
ployees' representative to attempt to effect further job sav-
ing at that time through the collective-bargaining process.
The General Counsel has urged in his brief that in fash-
ioning an appropriate remedy, a reestablishment of the
mining operation should be deemed appropriate. However,
in advancing this position the General Counsel has relied
upon his contention that Respondent Key Coal had wrong-
fully sublet its entire mining operation and terminated its
employees because of their union sentiments in violation of
Section 8(a)(3) which I have found is not supported by
convincing evidence in this record. It is not clear what the
General Counsel's position would be on remedy for the
limited violation of Section 8(a)(5) found herein though a
request has been made generally otherwise that an appro-
priate remedy should be fashioned.
In fashioning an appropriate affirmative order the Board
has expressed as guidelines that the remedy fashioned
"should 'be adapted to the situation that calls for redress,'
with a view toward 'restoring the situation as nearly as
possible, to that which would have obtained but for [the
unfair labor practice].'" Winn-Dixie Stores, Inc., 147
NLRB 788, 791 (1964), enfd. 361 F.2d 512 (5th Cir. 1966),
cert. denied 385 U.S. 935 (1966). The Board also holds to
the view that "we must be guided by the principle that the
wrongdoer, rather than the victims of the wrongdoing,
should bear the consequences of his unlawful conduct
.... " Transmarine Navigation Corporation and its Subsid-
iary, International Terminals, Inc., 170 NLRB 389 (1968).
In determining the appropriate remedy herein I have
carefully considered both the nature of the wrongful con-
duct committed above and its reasonable effects, and as
well considered the contemporaneous presence and effects
of those economic factors (including lack of sufficient
equipment to conduct former mining operations as in the
past) which I have generally found propelled Respondent
in its course of conduct on these other matters to the point
of its engagement in the above wrongful conduct. I also
observe, unlike the situation in Transmarine Navigation
Corporation, supra, where it was impossible to reestablish
an equivalent situation, that, perhaps paradoxically, there
may even now be similar reclamation work on the leased
premises over which Key Coal has an ultimate control,
though the amount and time of the required performance
may present countervailing bargaining considerations. I
conclude that a full reestablishment order is neither re-
quired nor warranted in this case, and that a remedy which
will fully effectuate the purposes of the Act may be fash-
ioned on the order of that provided in Transmarine Naviga-
tion Corporation, supra, and similar cases, and as may be
further tailored to remedy the exigencies of the particular
situation presented in this case. Accordingly, I shall order
Respondent Key Coal to bargain, upon request, with the
Union about Respondent's decision to subcontract the
substantial reclamation work that was then required to be
performed by Respondent Key Coal as of April 15, and its
effects; or, alternatively, upon the Union's request, or upon
Respondent's request with the approval of the Union, to
bargain about unit employee performance of an equivalent
amount of reclamation work which may presently be re-
quired to be performed on premises leased by Key Coal
and over which I find on this record Key Coal has an
ultimate control by virtue of its 10-day cancellation provi-
so; and in respect to which in any event an appropriate
remedy may reach. Fibreboard Paper Products Corporation
v. N.L.R.B., 379 U.S. 203, 215 (1964). Under the present
circumstances, however, a bargaining order alone cannot
serve as an adequate remedy for the unfair labor practices
which I find have been committed by Respondent. As the
Board has on more than one occasion pointed out:
The Act requires more than proforma bargaining, but
proforma bargaining is all that is likely to result unless
the Union can now bargain under conditions essen-
tially similar to those that would have obtained, had
Respondent bargained at the time the Act required it
to do so. If the Union must bargain devoid of all eco-
nomic strength, we would perpetuate the situation cre-
ated by Respondent's deliberate concealment of rele-
vant facts from the Union which prevented the Union
from meaningful bargaining. 90
Therefore, in order to assure meaningful bargaining and to
effectuate the purposes of the Act, I shall accompany the
above order to bargain with a limited backpay requirement
designed both to make whole the employees for losses suf-
fered as a result of the violation found herein, and to recre-
ate in some practicable manner a situation in which the
Union's bargaining position is not totally devoid of any
economic consequences for Respondent Key Coal. I shall
do so in this case by requiring Respondent to pay backpay
to the nine unit employees in a manner similar to that re-
quired in the last cited cases. However, in this case, as I
have noted, there appears warrant to additionally conclude
in regard to the reclamation work existing as of April 15,
91' R'i al Pilitng aind Pohxhing (o., Inc.. 160 N .RB 990, 997 (1966): Trans-
,marnne N,igation (orporarion. upra at 390. See also Inlersrtae Gopher News
d h a (lullt and Southern Newn, 235 NLRB 851. fn. I (1978).
KEY COAL CO. 1045
1977, which was wrongfully subcontracted, that had such
work been undertaken by unit employees their employ-
ment would likely have extended through July I. This is
reasonably to be deduced from Respondent's present ad-
missions herein that even by January it had felt pressure
from the DNR to perform the reclamation work otherwise
conceded by Lee as required to be completed by July I. I
have found this work was wrongfully subcontracted on
April 15. The Board has frequently made employees whole
in such circumstances. Accordingly, further to effectuate
the purposes of the Act, to ensure that the affected employ-
ees are in some measure made whole for the serious inva-
sion of their statutory rights in this period by the unilateral
subcontract of their unit work at that time to others, with
continued effort to alternatively provide as nearly as possi-
ble for resumption of the situation that then existed, should
that be feasible, but in a manner wherein meaningful bar-
gaining between the parties even at this late date may also
take place, I shall establish the aforesaid period from April
15 through July 1, 1977, as a minimum backpay period for
employees in the event the parties shall bargain about the
subcontract of the reclamation work existing as of April 15,
and its effects. I shall further provide that the amount of
backpay to become due employees shall otherwise be gov-
erned by the process of collective bargaining on the sub-
jects of bargaining which I find under the circumstances
constitute an appropriate remedy for the unfair labor prac-
tices committed herein, and which I shall order to take
place in a manner previously provided for meaningful bar-
gaining in such cases.
Accordingly, I shall order Respondent Key Coal to bar-
gain with the Union, upon request, concerning Respon-
dent's decision to subcontract the substantial and existing
reclamation work that was required to be performed by
Respondent immediately prior to its entry of the subcon-
tract provisions thereon contained in the sublease of April
15, and its effect; or, alternatively, upon the request of the
Union, or on its own request with the approval of the
Union, to bargain at this time about a resumption of unit
employee performance of equivalent reclamation work
which may presently be required to be performed as noted
above. I shall also order Respondent Key Coal to pay the
nine unit employees then on layoff at the rate of their nor-
mal wages when last in Respondent's employ for the period
from 5 days after the date of this Decision until the occur-
rence of the earliest of the following conditions: (1) the
date Respondent bargains to agreement with the Union on
the subjects of the decision to subcontract the past recla-
mation work, and its effects; or about the resumption and
performance by the unit employees of an equivalent
amount of present reclamation work: (2) a bona fide im-
passe at bargaining; (3) the failure of the Union to request
bargaining within 5 days of this Decision, or to commence
negotiations within 5 days of Respondent's notice of its
desire to bargain with the Union: or (4) the subsequent
failure of the Union to bargain in good faith, provided that
in the event the parties shall bargain about Respondent's
decision to subcontract the reclamation work that existed
as of April 15, 1977, then in no event shall the sum of
backpay paid to any of these employees be less than the
amount he would have earned as wages from April 15,
1977, the date on which Respondent unlawfully subcon-
tracted the unit's reclamation work to South Kentucky, to
the time the employee secured employment elsewhere, or
to July 1, 1977, the date when that reclamation work was
reasonably to have been completed. whichever occurred
sooner; provided further, however, that in the event the
parties mutually elect to bargain about a resumption and
performance at this time by the unit employees of an
equivalent and timely amount of present reclamation work,
the sum paid employees shall not then be less than these
employees would have earned for a 2-week period at the
rate of their normal wages when last in Respondent's em-
ploy. 91
I have earlier found that Key Coal and several other
corporations constitute a single employer for jurisdictional
and remedial purposes herein. Many presently have close
and/or interdependent business relationships with Respon-
dent Key Coal and each other which need not be repeated
here. Although I have found these companies do constitute
a single employer they are each in corporate form and ca-
pable of separate liabilities, Barrington Plaza and Tragniew,
Inc., 185 NLRB 962, 978 (1970). However, as I have also
found that Respondent Key Coal has not committed any
violation of Section 8(a)(3) by manipulation of supplies,
equipment, subterfuge or otherwise, and as it otherwise
presently appears that Respondent Key Coal may, acting
independently, effect the appropriate remedy being provid-
ed herein, and since it appears reasonably to be presumed
under all the circumstances that the other corporations will
use their good offices to assist Key Coal in its effectuation
of the remedy provided. if Key Coal proceeds to do so. I
shall not presently provide any remedial order extension to
1 The remedy being prolided herein is balanced to reasonahls remeds
Ihe limited but serious violation found, and is well within remedial imils
heretofore approved h the Board and courts In simlar cases. T,,wn & ( oun
Ir, 'hlulin/i-ritng ('onrpani. 136 NLRB 1022. 1030 31 1962): enfd 316
1 2d 846 (5th (lr 1963)} fihrbehoard Paper Product (or \ N I. RB. , upra
at 215 Ihe remedy provided relates reasonabls well in ensuring that em-
plo\ees who were the sictims of Respondent's conduct in subcontracting the
past substantial reclamation ork. now long since completed. shall not bear
undue consequences thereof. while at the same time affording the same
employees an alternative opporiunmt to bargain with their emploser anew
about a resumption of reclamation work and their performance of an equls-
alent a.mount of recl.imation w ork at this time with an attendant opportunl-
is for .continued emploment explored b their representative in the collec-
ve-bhargaining process as would likel) have been nitialls the case had
Respondent acknowledged i bargaining responsibilt thereon to begin
awth anid to do so in a bargaining posture previouslI determined hb the
Board in similar circumstances a likels to be meaningful As notled. a
remedial order that would proslde for a full resumption of Respondent's
mining operation is not deemed warranted in this case on the limited s iol-
non which I halve found In the face of Respondent's changed circumstances
and other economic considerations shown. While a minimum backpa is
prov ided in certain circumstances it also has been circumscribed in balance
of offsetting effects of contemporaneous sales (which in me slew were law-
full and n consideration of the passage of time, et, s otherwise related to
the process of bargaining to ensure some measure of meaningful bargaining
in a manner prevlousls approsed by the Board, rammarline Va igltilon
( eprratil. iupra Interstrate (iGopher News d h a Gulf and Southern \ei.
(upra Finall I would note that. although I have heretofore found that
V:illis told Humphre about the first oit februar, to notif) emplosees of
thier lerminaion. I have nonetheless set the commencement date of the
h.ackp.la period as of April Is Willis remark related as a base the probable
sale of the mine to South Kentuck, which circumstantiall, is supportive of
the date determined. particularl when it is observed the emplo;ees were
still on lasoff
KEY COAL Co.
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the single employer or any of its constituent corporate
parts separately. However, it will be recommended that the
Board retain its jurisdiction over the single employer herein
to be in a position to more promptly ensure a full compli-
ance by Key Coal, should that prove to be necessary.
Upon the foregoing findings of fact, conclusions of law.
and upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 2
The Respondent. Key Coal Company, Hocking County.
Ohio, its officers, agents, successors, and assigns, shall:
1. Cease and desist from refusing to bargain with United
Mine Workers of America, with respect to the subcontract-
ing of certain reclamation work, as herein provided and
defined.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Pay its nine unit employees their normal wages for
the period set forth in this Decision.
' In the eecni no exceptiols are filed as pIroided b, Sec 102(46 l 1lie
Rules and Regulatiins of tle National .abhor Relations Ba.rd he findine.
conclus.ins and recommended Order herein. as provided n Sect 102 48 of
the Rules and Regulntions. lha;ll be adopted h\ the Hoard and becomle it
findings, conclusions. and Order. and all obhlecll lt hercli shall he deeled
waived for all purpose,
(b) Upon request, bargain collectively with United Mine
Workers of American with respect to the subcontracting of
certain reclamation work and/or its effects; or alternative-
ly, concerning equivalent reclamation work as herein pro-
vided and defined; and reduce to writing any agreement
reached as a result of such bargaining.
(c) Preserve and, upon request, make available to the
Board or its agents. for examination and copying, all pay-
roll records, social security payment records, timecards.
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this recommended Order.
(d) Mail an exact copy of the attached notice marked
"Appendix" to United Mine Workers of America, and to
each of the nine unit employees herein.9 3 Copies of said
notice, on forms provided by the Regional Director for
Region 9. after being duly signed by its authorized repre-
sentative, shall be mailed immediately upon receipt
thereof, as herein directed.
(e) Notify the Regional Director for Region 9, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT Is ALSO ORDERED that the complaint be dismissed inso-
far as it alleges violations of the Act not specifically found.
11 l I he eyent that this order is enforced hb a Judgient of a nited
State ( lurlt of .ppea,. the u ords in he notlice reading 'Posted h () Order
,,f the National I.abor Rel.tions Hoard" shall read "Posled Prsuant to a
jluhidlent of the tlited States Court of Appeals I norcitig an Order of the
Ntilna Laboi Reltions B.ard"