Low Kit Mining Co.

National Labor Relations Board - Board Decisions

Nov 16, 1992

309 N.L.R.B. 501 (N.L.R.B. 1992)

501
309 NLRB No. 76
LOW KIT MINING CO.
1 On June 30, 1992, Administrative Law Judge Walter H. Maloney
issued the attached decision. The Respondent filed exceptions and a
supporting brief.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 We correct the following errors in the judge’s decision:
1. The judge stated that after discriminatee Nichols was laid off
he ‘‘had no further contact with the Respondent until the new em-
ployees were hired in late September and early October.’’ Nichols
testified that he did not talk to any of the Respondent’s officials until
the unfair labor practice picketing on October 28, 1991.
2. The judge stated that the Respondent hired Roger Laws as a
laborer on October 2, 1991. Although the Respondent hired Michael
Laws, Roger’s brother as a laborer on October 2, it hired Roger
Laws as an electrician on October 25. None of the four
discriminatees whom the Respondent failed to recall were certified
electricians. Consequently, they were not qualified to fill the position
for which Roger Laws was hired.
The judge failed, however, to refer in his decision to the undis-
puted hiring of Ronnie Johnson as a roof bolter on October 7. The
discriminatees were qualified to perform this work. Consequently,
the judge’s error as to Roger Laws has no impact on his ultimate
findings of fact and conclusions of law.
Contrary to argument in the Respondent’s exceptions, we find that
the judge did not err in finding that the Respondent hired Jerry Hol-
stein as a beltman. This finding is consistent with Holstein’s descrip-
tion of his primary function. It is true that Holstein, unlike any of
the discriminatees, was state-certified as a ‘‘fire boss.’’ He could
therefore perform a daily mine safety inspection for 45 minutes to
an hour each day. The Respondent has failed to prove, however, that
‘‘fire boss’’ certification was a prerequisite for anyone filing the
beltman position.
3 The judge’s recommended remedy included reinstatement and
backpay provisions for employees whom the Respondent’s prede-
cessor unlawfully discharged in March 1991. It is undisputed, how-
ever, that these employees were reinstated and that the Respondent
has satisfied their backpay claims. At the hearing, the General Coun-
sel expressly disclaimed the intention to pursue any further affirma-
tive make-whole remedy for the discharges. Accordingly, we shall
delete such remedial provisions from the recommended Order and
notice.
Low Kit Mining Company, a successor to Spangler
Coal Company, Inc. and United Mine Workers
of America, AFL–CIO. Cases 9–CA–28402, 9–
CA–29108–1, –3, –4, –6, –8, and 9–RC–15876
November 16, 1992
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The principal issues remaining in this case1 are
whether the judge correctly found that: a settlement
agreement in Case 9–CA–28402 should be set aside;
the Respondent violated Section 8(a)(3) of the Act by
refusing to recall four employees who had been law-
fully laid off by its predecessor; and the Respondent’s
predecessor engaged in objectionable conduct which
warrants setting aside the results of a representation
election held on May 17, 1991. The Board has consid-
ered the decision and the record in light of the excep-
tions and brief and has decided to affirm the judge’s
rulings, findings,2 and conclusions and to adopt the
recommended Order as modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Low
Kit Mining Company, a successor to Spangler Coal
Company, Inc., Pond Gap, West Virginia, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Substitute the following for paragraph 2(a).
‘‘(a) Offer to Rodney D. Lanham, Alan H. Nichols,
Kenneth Derrick, and Thomas Osborn Jr. full and im-
mediate reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any other
rights or privileges previously enjoyed, and make them
whole for any loss of earnings or benefits suffered by
them as a result of the discrimination against them, in
the manner set forth in the remedy section of the
judge’s decision.’’
2. Substitute the following for paragraph 2(c).
‘‘(c) Remove from its files any reference to the un-
lawful discharges of Louis W. Fauber, Paul D. Bartley,
Steve A. Browning, Mickey Hager, Leroy Halstead,
Lester M. Lanham, Rodney D. Lanham, and Alan H.
Nichols in March 1991, and to the unlawful refusal to
recall Rodney Lanham, Nichols, Kenneth Derrick, and
Thomas Osborne Jr., and notify the employees in writ-
ing that this has been done and that the discharges and
refusals to recall will not be used against them in any
way.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
IT IS FURTHER ORDERED that Case 9–RC–15876
shall be severed from this proceeding and remanded to
the Regional Director for Region 9.
[Direction of Second Election ommitted from publi-
cation.]
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT coercively interrogate employees con-
cerning their union activities and sentiments and the
union activities and sentiments of other employees.
502 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The title of the case was amended at the hearing from Low Kit
Coal Company to Low Kit Mining Company.
2 The principal docket entries in the complaint cases are as fol-
lows: Charge filed herein by the United Mine Workers of America,
AFL–CIO (UMWA or Union) against Spangler Coal Company, Inc.,
on March 25, 1991, in Case 9–CA–28402, and amended on April
22, 1991; charge filed herein by the Union against Respondent Low
Kit Mining Company (Respondent or Low Kit) on November 22,
1991, in Case 9–CA–29108–1, –3, –4, –6, and –8; consolidated com-
plaint issued by the Acting Regional Director of the Board’s 9 Re-
gion for against Respondent Low Kit on January 10, 1992; Respond-
ent’s answer filed on January 23, 1992; hearing held in Charleston,
West Virginia, on April 29 and 30, 1992; briefs filed with the under-
signed by the General Counsel, the Charging Party, and the Re-
spondent on or before June 22, 1992.
The principal docket entries in the representation case are as fol-
lows: Petition filed on April 12, 1991, by the Union in Case 9–RC–
15876, seeking to represent certain of Respondent Spangler’s em-
ployees in a bargaining unit composed of all production and mainte-
nance workers employed at the Respondent’s Pond Gap, West Vir-
ginia coal mine, excluding professional and office clerical employ-
ees, independent truckers, and supervisors as defined in the Act;
consent election agreement approved by the Acting Regional Direc-
tor for 9 Region on May 7, 1991; election held on May 17, 1991,
which the Union lost by a vote of 9 to 12; timely objections to the
election filed on May 23, 1991; order directing hearing on objections
and consolidating the case for hearing with complaint cases issued
by the Acting Regional Director for 9 Region 9 on June 28, 1991.
3 Respondent Low Kit admits, and I find, that it is a corporation
which operates a coal mine near Pond Gap, West Virginia, where
it is engaged in the mining of bituminous coal. Based on projections,
the Respondent will annually sell and ship from its West Virginia
facility directly to points and places outside the State of West Vir-
ginia goods valued in excess of $50,000. Accordingly, the Respond-
ent is an employer engaged in commerce within the meaning of Sec.
2(2), (6), and (7) of the Act. The Union is a labor organization with-
in the meaning of Sec. 2(5) of the Act.
4 These individuals are Louis W. Fauber, Paul D. Bartley, Steve
A. Browning, Mickey Hager, Leroy Halstead, Lester M. Lanham,
Rodney D. Lanham, and Alan Nichols.
WE WILL NOT promise employees increases in
wages and benefits in order to get them to abandon
their support of the Union.
WE WILL NOT solicit grievances from employees
during an organizing campaign with a view toward re-
solving them.
WE WILL NOT threaten to discharge employees or to
close the mine if employees select the Union as their
bargaining representative.
WE WILL NOT engage in surveillance of union ac-
tivities of employees or threaten to place their union
activities under surveillance.
WE WILL NOT discourage membership in or activi-
ties on behalf of the United Mine Workers of America,
AFL–CIO, or any other labor organization, by dis-
charging employees, refusing to recall or rehire them,
or otherwise discriminating against them in their hire
or tenure.
WE WILL NOT by any other means or in any manner
interfere with, restrain, or coerce employees in the ex-
ercise of rights guaranteed to them by Section 7 of the
National Labor Relations Act. These rights include the
right to form, join, or assist labor organizations, to bar-
gain collectively through representatives of their own
choosing, and to engage in other concerted activities
for their mutual aid and protection.
WE WILL offer Rodney D. Lanham, Alan H. Nich-
ols, Kenneth Derrick, and Thomas Osborne Jr. imme-
diate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed, and WE
WILL make them whole for any loss of earnings and
other benefits resulting from our refusal to recall them,
less any net interim earnings, plus interest.
WE WILL expunge from our files any reference to
the unlawful discharges of Louis W. Fauber, Paul D.
Bartley, Steve A. Browning, Mickey Hager, Leroy
Halstead, Lester M. Lanham, Rodney D. Lanham, and
Alan H. Nichols in March 1991, and to the unlawful
refusal to recall Rodney Lanham, Nichols, Kenneth
Derrick, and Thomas Osborne Jr., and WE WILL notify
each of these employees in writing that this has been
done and that the discharges and refusals to recall will
not be used against them in any way.
LOW KIT MINING COMPANY, A SUCCES-
SOR TO SPANGLER COAL COMPANY,
INC.
James E. Horner, Esq., for the General Counsel.
Forrest H. Roles, Esq. and Mark A. Carter, Esq., of Charles-
ton, West Virginia, for the Respondent.
Mark March Jr., of Charleston, West Virginia, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
FINDINGS OF FACT
WALTER H. MALONEY, Administrative Law Judge. This
case1 came on for hearing before me upon a consolidated un-
fair labor practice complaint,2 issued by the Acting Regional
Director for Region 9, which alleges that Respondent Low
Kit Mining Company3 violated Section 8(a)(1) and (3) of the
Act. The General Counsel alleges and the Respondent admits
that Low Kit is a successor in interest to Spangler Coal
Company and, since August 19, 1991, has continued to oper-
ate a coal mine which Spangler had been operating during
the preceding year. The General Counsel alleges that
Spangler had coercively interrogated job applicants, engaged
in surveillance of the union activities of its employees,
threatened job applicants and employees with discharge in
the event of unionization, promised employees a wage in-
crease and certain fringe benefits in order to discourage their
union activities, threatened to close the mine in the event of
unionization, and solicited grievances from employees during
an election campaign in order to adjust them. The consoli-
dated complaint further alleges that Spangler discharged
eight employees for union activities.4
503LOW KIT MINING CO.
5 The Petition in Case 9–RC–15876 was filed on April 12, 1991,
so any conduct alleged as objectionable would have to take place on
or after that date. Goodyear Tire & Rubber Co., 138 NLRB 453
(1962).
6 Certain errors in the transcript have been noted and corrected.
7 At all times material, the West Virginia state permit to operate
the mine was in the name of Logan and the property was posted to
reflect this fact. Others who have performed mining operations have
done so on the strength of Logan’s permit.
8 Adkins owned Spangler, served as its president, and was its chief
operating supervisor. He hired and fired all of Spangler’s employees.
As such, he was a supervisor within the meaning of the Act.
9 These classifications include foremen, roof bolters, fire bosses,
beltmen, electricians, shuttle car operators, loader operators, cutters,
drillers, and ordinary laborers. Recently, the Respondent installed a
machine known as a continuous miner and now has need of miner
operators. Some miners can perform more than one of these func-
tions. Some mining functions such as electrician require a special li-
cense or certification by West Virginia state authorities.
10 Throughout the West Virginia coal fields, most mining oper-
ations are widely known as being either union or nonunion, so it is
a simple matter for any experienced miner or mining official to de-
termine from a resume whether an applicant has been a member of
the UMWA simply by learning where he has worked.
The parties agree that these individuals were offered rein-
statement and, in a settlement agreement concluded with suc-
cessor Low Kit, were paid varying amounts of backpay.
However, the General Counsel requests that the agreement be
set aside and that the matters alleged in Case 9–CA–28402
be litigated to a final order because, in its estimation, Re-
spondent Low Kit failed to comply with various terms of the
agreement, including a requirement that each alleged
discriminatee be furnished an expungement letter. The Gen-
eral Counsel then alleges that four Spangler employees—
Kenneth Derrick, Rodney D. Lanham, Alan H. Nichols, and
Thomas Osborne Jr.—who had been laid off in the summer
of 1991, were discriminatorily denied recall by Respondent
Low Kit when vacancies arose in its work force. The Charg-
ing Party, who was the Petitioner in Case 9-RC–15876, re-
quests that the election conducted on May 17, 1991, be set
aside because, within the Goodyear period,5 the Respondent
engaged in surveillance of the union activities of its employ-
ees, promised employees a pay raise and then granted that
raise, and engaged in other misconduct which affected the re-
sult.
The Respondent denies that it is guilty of any conduct
which would warrant the Regional Director in setting aside
the settlement of the first complaint case; denies the commis-
sion of independent violations of the Act by any supervisors;
asserts that original layoffs were occasioned by a lack of
sales; asserts that the individuals hired in October were more
qualified for employment than the four alleged discriminatees
for whom a discriminatory refusal to reinstate is alleged and
further claims that it had no duty to reinstate anyone laid off
by Spangler, regardless of whether or not vacancies arose;
denies that it committed any acts of objectionable conduct
within the Goodyear period; and further asserts that the
Board should not order an election among Low Kit employ-
ees in order to remedy any conduct which might have been
committed by Spangler in a Spangler election. On these con-
tentions the issues herein were drawn.6
I. THE UNFAIR LABOR PRACTICES AND OBJECTIONABLE
CONDUCT ALLEGED
The events in this case arise from the mining of bitu-
minous coal on Spangler Mountain, a minesite opened in De-
cember 1990, near Pond Gap in the Kelly’s Creek area of
Kanawha County, West Virginia. The principal and continu-
ing figure in this extraction effort is and has been David L.
Swango, owner and president of Logan Coal and Report Cor-
poration (Logan) and secretary-treasurer of Respondent Low
Kit Mining Company. The Spangler mine is a drift mine, as
distinguished from a shaft mine, so access to coal is obtained
by removing a portion of the hill or mountain and entering
the coal seams horizontally. The mineral rights to the coal
in question are owned by Scholl and Wilcher, Appalachian
Coal Company (sometimes referred to in the record as the
Addington brothers), Hammond and Arlee Dillard, and pos-
sibly others. These rights were assigned to Logan which, in
the summer of 1990, contracted for the facing of the moun-
tain (i.e., removal of a sufficient portion of the mountainside
to permit lateral entrance) and the construction of access
roads and drainage facilities. These holdings had previously
been mined so care has had to be taken throughout the ex-
traction operation to avoid, whenever possible, previously
mined tunnels where extraction would result only in the re-
moval of rock.
In December 1990, after the mine had been prepared for
operation, Swango, acting through Logan, contracted with JG
Leasing to perform the actual mining. JG Leasing is owned
and controlled by Kenneth Stallsmith, who maintains an of-
fice in the same building in Charleston where Logan has its
West Virginia office. JG Leasing owned (or leased) the min-
ing equipment to be used in the Spangler mine. In turn, JG
Leasing, with Swango’s express permission, subcontracted
the labor involved in the mining operation to the now-de-
funct Spangler Coal Company, Inc., which operated the mine
from its opening on December 12, 1990, until Spangler aban-
doned the project on August 16, 1991.7 Spangler Coal Com-
pany, Inc. was owned entirely by Dewayne ‘‘Pete’’ Atkins,
who acted as mine superintendent during the Spangler era.8
However, Adkins did not invest any of his own money in
the concern. The obligation of both Spangler Coal Company,
Inc. and its successor, Low Kit, has been to remove coal
from the mine and place it at the entrance to the minesite,
where it is picked up and carried away by independent truck-
ers engaged by Logan. Title to the extracted mineral is vest-
ed in Logan.
In December 1990, Atkins began to recruit employees in
the various classifications involved in a mining operation.9
Atkins hired about 20 men who worked initially on two
shifts of 10 hours each and also on a so-called maintenance
shift. Later, the hours of each shift were reduced when
Spangler began a ‘‘hoot owl’’ or midnight shift and two
other mining shifts of 8 hours’ duration.
It is uncontroverted that, during several hiring interviews
which took place either in December 1990, or shortly there-
after, Atkins made it clear that he wanted to operate the
Spangler mine on a nonunion basis. Alan Nichols testified
credibly that, after examining his resume, Atkins referred to
the fact that Nichols had worked for Ray Lyons. Adkins
noted that Ray Lyons was a union operation 10 and observed,
‘‘This is a non-union operation and it will run non-union.’’
Adkins then went on to say that the Addington brothers, the
504 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 Stallsmith acted as bookkeeper for Spangler. He visited the
premises from time to time and played a role in Spangler’s hiring
activities. As noted previously, Stallsmith controlled JG Mining and
made the decision to contract with Spangler (i.e., Adkins) for the
labor necessary to run the mine. There is little doubt that he exer-
cised a pervasive influence over the mining operations, notwithstand-
ing the fact that Adkins was not only superintendent but also the
sole officer of Spangler. Adkins testified that he looked to Stallsmith
for advice on labor relations. Danny Beasley, Respondent Low Kit’s
president and mine superintendent, testified that Stallsmith had au-
thority to lay off Spangler employees. Accordingly, Stallsmith was
a Spangler supervisor within the meaning of Sec. 2(11) of the Act,
although, after Respondent Low Kit took over, Stallsmith no longer
played any role in the new operation. Moreover, his remarks con-
cerning the unionization of the mine were made to employees in
Adkins’ presence, indicating that Adkins agreed with them and en-
dorsed Stallsmith as a spokesman for Spangler.
12 UMWA meeting was scheduled to take place the following Sun-
day afternoon in the high school in the town of Clay in Clay Coun-
ty, the adjoining county to Kanawha County.
13 There is some confusion in the record whether the Adkins meet-
ing or the Stallsmith meeting took place first. There is no doubt that
both meetings occurred and that they occurred within a few days of
each other.
lessors of the mineral rights, had always run nonunion and
would refuse to run union, adding that Adtington would
‘‘pull the contract’’ if the mine ran union. When Paul
Bartley was interviewed by Atkins, Atkins told him that, if
anyone brought up anything about unionization, Atkins
would close the mine before he would let the union come
in. When Rodney D. Lanham was interviewed for a job, At-
kins asked him if he had heard anything about a union at the
mine. Lanham replied, ‘‘No.’’ During his interview, Louis
Fauber was told by Adkins that the mine was nonunion and
that Atkins intended that it would stay that way because it
was necessary to operate nonunion in order to maintain a
good relationship with the Addington brothers. Mickey Hager
was interviewed by both Stallsmith and Adkins. Stallsmith
told Hager that ‘‘we are not going to have any unions in the
mine.’’ Adkins then noted that the Addington brothers owned
the mine and ‘‘if it went union, they probably wouldn’t be
able to sell the coal.’’
During the first months of the Spangler operation,
Spangler Coal Company, Inc. did not take any withholdings
for taxes or social security from employee paychecks. This
practice was a matter of concern to several employees who
were afraid that the failure of the Company to withhold por-
tions of their earnings would mean not only a large tax bill
for them at the end of the tax year but also mean that they
were being treated as contract laborers and hence not covered
by workmen’s compensation and unemployment compensa-
tion. (At a later time, Spangler actually asserted such a de-
fense to an employee claim for compensation.) They asked
Adkins about the Company’s failure to withhold taxes and
were told that Spangler was a small outfit that could not af-
ford to withhold taxes and social security. As a result of their
concern, Nichols, acting on behalf of several others, called
Mark March, an organizer for the UMWA, and informed
March that employees at Spangler were interested in union
membership. Nichols then obtained union designation carts
from March and began soliciting memberships, both on and
off the Company’s premises. Between February 13 and
March 14, some 15 out of approximately 20 or 25 employees
signed. Five of the signatures were obtained by Nichols.
At the outset of the union drive, March sent a letter to
company officials informing them that the UMWA was in
the process of organizing their employees. On or about Feb-
ruary 16, Stallsmith11 and Adkins held a meeting of night-
shift employees toward the end of the shift. Stallsmith men-
tioned that March had written the Company a letter and read
the contents of the letter to them. He told them that, when
the UMWA comes into a mine, the miners have no say in
what goes on. He further stated that the Company would not
run the mine with UMWA involved and, in such an instance,
would ‘‘pull the plug’’ on the operation. Stallsmith then told
the employees that, if they had any problems, they could see
him or Adkins to work them out. Stallsmith gave the assem-
bled group his telephone number for this purpose.
A few days later, Adkins had a meeting with employees
on the night shift. On that occasion he told them that he
knew that organizing was in progress and was also aware of
the identity of the person who was doing the organizing. He
accused the unnamed organizer of causing a lot of men to
lose their jobs. He also told the assembled employees that he
knew of a union meeting which was going to take place at
Clay12 the following weekend, adding that he would know
the identities of everyone who attended. He closed his re-
marks with the admonition that he would not run the mine
on a union basis.
While the ensuing shift was in progress, Nichols left the
mine and went to the office to speak with Adkins. He told
Adkins that it was he who was circulating the union cards.
He said that he needed his job and that he did not want other
miners to lose their jobs, so Adkins could forget about the
union cards. Nichols assured Adkins that he would not turn
them in. Adkins responded by taking out his books and
showing Nichols what the mine was making. He said it was
a small operation and could not presently afford a union,
adding that in a year he might be able to afford a union, but
‘‘we can’t do it now.’’13
On or about March 10, Foreman Danny Beasley had occa-
sion to speak with Osborne while both men were on a shuttle
car in the mine. Beasley asked Osborne what he thought of
the Union. The record does not reflect Osborne’s reply. In
another conversation with Lester Lanham, Beasley told
Lanham that, if the Union came in, Adkins would shut the
mine down and pull the equipment out of it. Shortly before
the March 15 discharges, Beasley asked employee Hilton
Washington if Washington thought Rodney Lanham would
vote for the Union. Washington replied that he did not know.
Another inquiry concerning the progress of the organizing
drive was made by Adkins to Fauber. In a conversation
which took place in the mine office, Adkins asked Fauber
what he knew about the organizing drive. Fauber said he had
not heard anything, whereupon Adkins informed him that the
Company had received a letter from the UMWA district of-
fice telling them that a drive was in progress. Fauber ex-
pressed surprise that he had not heard anything since he
knew everyone at the district office and had been president
of the UMWA Local at the Moore’s Creek mine for 6 years,
as well as a member of the mine committee and the safety
committee. At that point, Adkins terminated the conversation.
Within a few days of his conversation with Adkins, Fauber
experienced car trouble on the way to work. His truck caught
on fire and, after extinguishing the flames, had to be parked
505LOW KIT MINING CO.
14 The other individuals who were terminated were Paul D.
Bartley, Steve A. Browning, Mickey Hager, Leroy Halstead, Lester
M. Lanham, and Rodney D. Lanham.
15 Adkins phoned Derrick at his home and asked him if he wanted
to continue to work. Derrick replied that he did but that he was not
going to cross the picket line.
16 Basham was variously described in the record as mine clerk,
partsman, or outside man. He frequently phoned employees to notify
them whether or not to come to work. Basham was the Company
observer at the May 17 election.
17 Each employee who works underground is issued a miner’s light
and a charger which they are entitled to take to their homes. The
charger is used to recharge the miner’s light with electricity after
Continued
on the side of a road about 3 miles from the mine. Accord-
ing to Fauber, the truck contained personal tools valued at
between $1500 and $2000. He rode the rest of the way to
work with miner Ernie Porter. Upon arriving to begin his
night-shift job, he approached the day-shift electrician, Virgil
Gillespie, and asked Gillespie to stay over on Fauber’s shift
so Fauber could attend to his vehicle problem. Gillespie re-
fused. Fauber then told Adkins about the problem and asked
permission to leave to attend to his truck, saying that he had
no other way to get to work than by using the truck and that
it was sitting on a roadside with valuable equipment stowed
away on the floor. Adkins refused, telling Fauber that he
needed him in the mine. When Fauber told Adkins that he
simply had to leave, Adkins replied that, if Fauber did so,
the Company would have another electrician at the mine the
following day and Fauber could simply turn in his miner’s
light and charger when he picked up his final paycheck.
Fauber left and followed the instructions that Adkins out-
lined. He did not work again at the mine.
On Friday, March 15, Nichols and seven other miners on
the night shift were fired. They were given identical letters
in their pay envelopes which read: ‘‘You are terminated for
lack of work this date.’’14 Nichols asked Adkins why he had
been selected for discharge since he had more seniority than
other miners who were being kept. Adkins replied that se-
niority did not mean anything at the Spangler mine. The dis-
charged miners decided to establish a picket line the follow-
ing Monday and did so at the bottom of the hill about a
quarter of a mile from the mine entrance, where the road
leading to the mine intersects the county road. They used
homemade signs claiming that Spangler was guilty of an un-
fair labor practice. Many if not most of the employees who
had been retained on the Spangler payroll observed the pick-
et line, so the mine was virtually shut down. Two or three
men were hired during the strike and they crossed the line.15
On the following Saturday afternoon, Adkins held a meeting
with all the miners, both those who had been discharged and
those who hat been retained, and told them that everyone
could go back to work beginning on Sunday night. The pick-
et line was removed and, by the following Wednesday, ev-
eryone was back at work.
Early in April, Adkins orally promised employees a wage
increase and health insurance benefits. The record is unclear
as to whether this promise was made before or after April
12. It is quite clear that, on April 29, Adkins wrote each em-
ployee a letter which read as follows:
As you may know, the UMWA wants to represent
you. We believe that a secret ballot election is the best
way to determine what our employees really want.
Therefore, we have agreed to an election here on May
10, 1991, which will be supervised by the National
Labor Relations Board. I will give you more informa-
tion on the election when we have the details worked
out.
The law requires that I give your name and address
to the Labor Board, and they will give that information
to the UMWA. The UMWA may try to contact you.
Remember, the law says you to not have to talk to their
organizers if you do not want to.
I’ve heard a lot of stories about things I’ve said in
the past and I want to set the record straight now.
Whether this company goes union or stays union-free is
your choice and you are free to vote the way you be-
lieve is best.
I do not think the UMWA has anything to offer us,
and I am asking you to vote NO. The coal industry is
real tight right now and every penny counts. The way
to be successful is through team work. With their big
national contract, the UMWA is famous for asking for
more than small companies can afford and they are
known for putting a wedge between employees and
management. We don’t need that kind of interference.
When you hired on, I told you that you would get
a decent day’s pay for your work and that wages and
benefits would improve when we could afford them.
We have lived by that promise, giving you a $2.50 an
hour raise and insurance staring June 1. Please, give
this Company a chance to make it, without UMWA in-
terference. Vote NO on May 10.
At the representation election held on May 17 (not May 10),
the Union lost by a vote of 9 to 12 and timely objections
followed.
On the day following the election, Atkins called Nichols
into the office when he reported to work. He told Nichols
on this occasion: ‘‘ The election is over. Now I can say what
I want to say. If that union had of went in here, I would
have pulled the plug on this mine.’’
On July 8, Randy Basham16 phoned Nichols and told him
that he was being laid off for poor sales. He also called
Osborne and told Osborne that he was being laid off until
further notice because there was no more work. He gave no
additional reason. Two weeks later, Adkins phoned Osborne
and said he wanted to put him back to work as a belt man
on the day shift. Osborne returned and worked till August
12, when he suffered a hand injury. On the day before he
was injured, Osborne asked Beasley, who by then was run-
ning the mine, for time off to meet with a Board agent who
was investigating the original charge in this case. Beasley
agreed. On the following day, while Osborne was at work
shoveling a tail piece with a busdust shuttle, he moved his
shovel underneath the belt. The belt grabbed the shovel and
jerked him into the tail piece. He suffered severe contusions
and was taken to the emergency room of a nearby hospital,
where a splint was placed on his arm. Osborne phoned
Stallsmith to report the injury and Stallsmith told him he was
laid off. That evening Beasley came to Osborne’s home to
collect his miner’s light and charger.17 Osborne has not
506 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
each day’s use. Upon termination, both the miner’s light and the
charger must be returned to the Company.
18 The original notice which was posted included only the first
page of a two-page notice and omitted the portion which was re-
quired to be signed by the Respondent or its agent.
19 The copy of the settlement agreement bearing the Acting Re-
gional Director’s signature, dated September 25, 1991, embodies the
totality of the agreement between the parties and is the document
whose terms controlled the obligations of the Respondent. This doc-
ument includes the signature of the Respondent’s counsel and also
includes a notice which was two pages in length. The second page
of the notice—the page containing the space for the signature of the
Respondent’s authorized representative for notice-posting purposes—
recites the Respondent’s obligation to send out expungement letters
to discriminatees. This is the agreement which the Regional Director
set aside. Accordingly, I conclude that the Respondent was obligated
by the terms of its undertaking to send such letters. Had it done so
in a timely fashion, those letters would have reached the recipients
during the same period of time the Respondent was actively solicit-
ing employees to fill the job vacancies which arose in late Septem-
ber and early October.
worked for the Respondent since that time. Derrick and Rod-
ney Lanham were also called by Basham on July 8 and told
that there would be no more work until further notice. Nei-
ther has worked for the Respondent since that date.
Late in July, Adkins left the mine as superintendent and
went back to work for his former employer, Sharpless Coal
Company. Swango placed Beasley in charge of the operation.
Adkins testified that his company, Spangler, had lost a lot of
money and could not afford to continue to operate. The mine
continued to operate under the name Spangler Coal Com-
pany, Inc., until August 16, although the payroll for the final
week was met by Swango rather than from Spangler earn-
ings.
Swango established a new corporation, Respondent Low
Kit, and is its sole stockholder. Beasley became the corporate
president and was appointed by Swango to be mine super-
intendent, a position he now holds. Swango has the title of
secretary-treasurer. Swango arranged to take control of the
mining equipment which JG Leasing either owned or leased
and the mine began operations by Respondent Low Kit under
the Logan mining permit, which was reassigned from
Spangler to Low Kit. On Monday, August 19, when Spangler
employees reported for work, they were told of the change-
over and were offered the opportunity to continue working
for Low Kit under the same terms and conditions which had
existed under Spangler. All accepted.
Swango began to exercise a more intimate involvement
with the Low Kit operation than he did with the Spangler op-
eration, although he is not personally present at the minesite
each day. Decisions to hire new employees are made jointly
by him and by Beasley, both with respect to the need for
more personnel and in the selection of those to be hired.
Beasley acknowledged on the record that he is working for
Swango.
The Regional Office determined that there was merit to the
charge filed against Spangler in Case 9–CA–28402 and un-
dertook an effort to settle it. Settlement discussions took
place during September, 1991. On the recommendation of
counsel, Swango agreed to settle the case and signed a settle-
ment agreement which required Low Kit, as the successor to
Spangler, to cease and desist from engaging in certain con-
duct which would constitute independent violations of Sec-
tion 8(a)(1) of the Act, to make whole eight named employ-
ees who had been discharged in the spring of 1991 when the
mine was being picketed, to send them expungement letters,
and to find a job for discriminatee Steve A. Browning. The
agreement did not provide for reinstatement. The total
amount of backpay was calculated to be $9000, a sum which
Swango provided either out of Logan’s resources or his own.
The settlement was approved by the Acting Regional Direc-
tor on or about September 25, 1991.
While these efforts were in progress, Respondent hired
four new employees to replace individuals who quit. On Oc-
tober 2, it hired Michael Laws and his brother, Roger D.
Laws, as laborers. On October 17, Ernest Grayley was hired
to operate a shuttle car and, on October 28, Jerry Hostine
was hired as a beltman. Beasley testified that former
Spangler employees had no recall rights under Low Kit’s hir-
ing policies and that none had filed timely applications for
employment with the newly formed company, a requirement
which was apparently instituted in September. Respondent
did not advertise for new employees when vacancies arose
in September and October. It simply ‘‘put out the word’’ that
it was looking for someone in a particular classification.
‘‘Putting out the word’’ basically meant informing current
employees Virgil Gillespie, Terry McDerment, Walter
McDerment, Roy Williams, and possibly others of the Re-
spondent’s intention to hire and asking them to recommend
someone of their acquaintances who might be suitable. It is
admitted that Nichols, Osborne, Derrick, and Rodney
Lanham were never informed of any vacancies and were not
offered employment.
When they learned about the hiring of four new employ-
ees, Nichols, Osborne, and others set up a picket line in front
of the mine for a period of several days late in October to
protest the failure of the Respondent to recall them. Their ef-
fort did not accomplish its desired result. While the settle-
ment agreement which the Respondent signed in Case 9–
CA–28402 required it to send the employees named in the
charge a letter notifying them that their personnel records
had been expunged of any adverse information arising out of
their discharges in the spring of 1991, no such letters were
ever sent.
II. ANALYSIS AND CONCLUSIONS
A. Setting Aside the Original Settlement Agreement
The General Counsel contends that the settlement agree-
ment in Case 9–CA–28402 should be set aside for several
reasons. He maintains that the Respondent violated the agree-
ment by failing to send expungement letters to employees
who had been named in the charge. He further contends that
the Respondent failed to post the notice in a conspicuous
place, as conventionally required by Board settlement agree-
ments and notice-posting orders, and that the notice which
the Respondent did post was only a part of the notice which
made up the totality of the agreement.18 It is clear beyond
peradventure that the Respondent never sent expungement
letters to any employees.19 These letters are formal written
notifications that personnel records have been expunged of
any adverse matters arising out of their discharges and that
such discharges will not be used as a basis for future dis-
ciplinary actions. This breach of the agreement is an ample
507LOW KIT MINING CO.
20 His estimate to Nichols was that it might take a year until the
mine was running well enough to afford a union.
basis for setting aside the settlement in question and, for that
reason, I do so. Middle Earth Graphics, 283 NLRB 1049,
1057 (1987). Moreover, the Respondent violated the Act sub-
sequent to executing the settlement by failing to recall or hire
four union activists. These unfair labor practices also con-
stitute a breach of the agreement and an ample basis for set-
ting it aside. The other grounds asserted by the General
Counsel for setting aside the agreement present closer ques-
tions of law and fact which are not necessary to resolve, and
I decline to do so.
B. The Independent Violations of Section 8(a)(1) of
the Act
(1) Respondent Spangler violated Section 8(a)(1) of the
Act when Adkins coercively interrogated job applicants and
threatened to close the mine in the event of unionization in
the following instances:
(a) His statement to Nichols that the Addington brothers,
the lessors of the mineral rights, have always run nonunion,
would refuse to run union, and would ‘‘pull the contract’’ if
the mine ran union.
(b) His statement to Bartley that he (Adkins) would close
the mine before he would let a union come in.
(c) His question to Rodney Lanham if he had heard any-
thing about a union at the mine.
(d) His statement to Fauber that the mine was union and
that he (Adkins) intended that it would stay that way because
it was necessary to operate nonunion to maintain a good rela-
tionship with the Addington brothers. Implied in this state-
ment is an assertion that the mine would close if it became
unionized. In the context of other statements made by Adkins
in the course of other job interviews, his statement to Fauber
has and could have no other meaning .
(2) During Hager’s hiring interview, Stallsmith told him
that ‘‘we are not going to have any unions in the mine.
‘‘Adkins added that, ‘‘if it went union, they probably
wouldn’t be able to sell the coal.’’ Both statements are im-
plied threats to close the mine in the event of unionization
and are violations of Section 8(a)(1) of the Act.
(3) During the organizing drive, Adkins parked his truck
near the point on the entrance to the property where March
was handing out union literature to passing employees. This
act constituted illegal surveillance of union activity in viola-
tion of Section 8(a)(1) of the Act.
(4) When Stallsmith told employees at a company meeting
that the Company would not run the mine with the UMWA
and would ‘‘pull the plug’’ in the event of unionization, he
uttered an illegal threat which constitutes a violation of Sec-
tion 8(a)(1) of the Act.
(5) When Stallsmith told employees in the course of a co-
ercive talk that, if employees had any problems, they could
see him or Adkins and work them out, he was soliciting
grievances during an organizing campaign with a view to-
ward adjusting them in violation of Section 8(a)(1) of the
Act.
(6) Adkins told employees that he was aware of the iden-
tity of the person who was engaged in union organizing. He
also stated that he knew of a forthcoming union meeting at
Clay and would know the identities of anyone who attended
that meeting. These statements constitute the creation of the
impression of surveillance of union activities and a threat to
engage in the surveillance of union activities in violation of
Section 8(a)(1) of the Act. Adkins’ further statements that
the in-plant organizer would cause a lot of men to lose their
jobs and that the mine would not run on a union basis con-
stitute threats to discharge employees for engaging in union
activities and a threat to close the mine in the event of
unionization in violation of Section 8(a)(1) of the Act.
(7) Foreman Danny Beasley’s inquiry to Osborne as to
what he thought of the Union, made as it was in the context
of intense antiunion threats and other illegal activity, con-
stitutes a violation of Section 8(a)(1) of the Act.
(8) Beasley’s statement to Lester Lanham that Adkins
would shut the mine down and pull the equipment out of it
in the event of unionization is an illegal threat which violates
Section 8(a)(1) of the Act.
(9) Beasley’s question to Washington about whether
Washington thought Rodney Lanham would vote for the
Union was coercive interrogation in violation of Section
8(a)(1) of the Act.
(10) Adkins’ question to Fauber concerning what Fauber
knew of the union organizing campaign was coercive interro-
gation which violated Section 8(a)(1) of the Act.
(11) Early in April, Adkins told employees that they
would be receiving wage increases of $2.50 an hour and
would also be receiving medical insurance. Offering financial
inducements to employees during an organizing campaign is
a classic violation of the Act. It is no defense to this em-
ployer that it had initially told some employees during job
interviews that it hoped to improve their compensation pack-
age after the mine operation improved.20 The timing of his
initial promise coincided with the onset of the organizing
drive, not some objective event with historical significance,
such as a regular yearly wage review. By promising an in-
crease in wages and benefits, Respondent violated Section
8(a)(1) of the Act. On April 29, after the representation peti-
tion was filed and when negotiations leading to an election
were in progress, the Respondent renewed this promise in
writing in a letter sent to each prospective voter in the elec-
tion. In the test of that letter, the bulk of which was devoted
to disparaging the UMWA, the Respondent directly tied the
wage increase to the forthcoming election by the assertion
that no one needed the union to improve their lot as the Re-
spondent’s employees. By repeating its promise to grant an
increase in wages and benefits in the April 29 letter, the Re-
spondent again violated Section 8(a)(1) of the Act.
C. The Discharge of Eight Miners in March 1991
The General Counsel alleges that the Respondent dis-
charged Louis W. Fauber on March 11 and seven other em-
ployees on March 15 because of their union activities. It was
this allegation which, inter alia, was settled by the Respond-
ent Low Kit in the fall of 1991 but which now must be liti-
gated on its merits because the settlement of that case has
been set aside. The Respondent’s defense is that Fauber was
discharged because he left work to attend to a personal emer-
gency relating to a truck breakdown and that the other seven
were discharged because of lagging coal sales.
The actions of the Respondent in March 1991 must be
evaluated against the background of intense antiunion animus
which frequently lapsed into illegal and intimidating conduct.
508 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 Leroy Halstead testified without contradiction that he signed a
card while riding to work with discriminatee Bartley, but his card
is not among the 14 which were placed in evidence by the General
Counsel.
22 The fact that the Respondent did not discharge other employees
who were also union sympathizers is irrelevant. It had to keep some-
one on the payroll to operate the mine, but it used the week of the
strike to hire new employees who were willing to cross a picket line.
23 At the hearing, Fauber estimated that he had tools in his aban-
doned truck valued at between $1500 and $2500.
24 No consideration was given to seniority in selecting employees
for layoff. Indeed, Nichols was told that the Respondent did not
even recognize seniority in its work force.
In terms of its intensity, the Respondent’s campaign against
unionization adopted a no-holds-barred approach so its ac-
tions and its defense to charges levelled against it will be re-
viewed in that context. All eight of the ‘‘March dis-
criminatees’’ had signed union cards within a month pre-
vious to their discharges.21 Nichols admitted to Adkins that
he was the one who had been circulating these cards. Within
days of his discharge, Fauber had told Atkins that he was ac-
quainted with UMWA district officials, had been a local
president at a former job, and had also been a member of
the mine committee and the safety committee. Atkins en-
gaged in surveillance of the activities of the Union’s staff or-
ganizer when he was handing out union leaflets at the en-
trance to the mining property and company inquiries were
being made of employees concerning union sentiments of
others. As noted earlier, because of the stereotyping of most
mining companies as either union or nonunion operations,
Atkins could easily tell which of his employees had or had
not been members of the UMWA simply by looking at their
resumes and noting where they had previously been em-
ployed. He knew of Nichols’ and Fauber’s union activities
or union work history because each of them had informed
Atkins about it. I conclude that Adkins knew that each of the
men he discharged in March was a union sympathizer.22
The first of the discharged employees, Louis W. Fauber,
was an electrician and a skilled employee in a job category
which requires state licensure. Employees in that category
are in short supply, a fact reflected in the wage rates for
electricians which were approximately $6 an hour above
those paid by the Respondent to most of its other employees.
On the day Fauber was discharged, he was due at work at
4 p.m. to perform the duties of electrician on the night shift.
His truck caught fire about 3 miles from the mine as he was
driving to work and he had to leave it at the side of the road.
He rote the rest of the way with another miner. He asked the
day-shift electrician to cover for him so he could have his
truck removed but his request was refused. He told Atkins
of the problem, indicating that he had a truck full of valuable
tools at a nearby roadside,23 and asked permission to leave
and make arrangements to have the vehicle removed, fearing
vandalism or worse if the truck remained unattended for any
period of time along a remote country road. Adkins refused,
telling Fauber he needed him to work as the night- shift elec-
trician. Fauber then told Adkins he had to leave, whereupon
Atkins told Fauber he would have another man replace him
the following night. He instructed Fauber to turn in his light
and charger. Fauber left and did not return. When Fauber
filed for unemployment compensation, the Respondent de-
fended against his claim with the assertion that he had quit
his job.
In this case, the Respondent does not claim that Fauber
quit but that he was discharged for cause, namely, for leav-
ing the job without permission. It points out that Adkins
needed an electrician on the night shift to make any electrical
repairs which might arise and that Fauber’s absence would
leave the Respondent in a difficult position. It is clear from
this recitation of facts that both parties were in a tight posi-
tion. However, it is possible for the mine to operate without
an electrician for at least a short while, but Fauber’s truck
needed immediate attention or Fauber would not be able to
get to work the following day and could conceivably suffer
theft or vandalism of unattended property. There was no con-
sideration by the Respondent of Fauber’s position, although
Fauber made an effort to have someone fill in for him during
a brief absence necessitated by a personal emergency. There
is simply no record evidence to support the Respondent’s
contention that the second shift at the mine would automati-
cally shut down if Fauber were not present. Fauber had an
excellent work record, rarely missed a day, and worked an
average of 50 hours a week. He had recently made known
to Adkins his previous affiliation with the UMWA and the
fact that, at another mine, he was not only a union member
but a union leader. In light of these factors, I conclude that
the shifting reasons offered by the Respondent for Fauber’s
discharge were pretextual and that the bind which Fauber
found himself in on March 11 presented the Respondent with
both an opportunity and an excuse to remove from its payroll
a potential source of aggressive unionism. Accordingly, I
conclude that, by discharging Louis W. Fauber, the Respond-
ent herein violated Section 8(a)(1) and (3) of the Act.
The other seven ‘‘March discriminatees’’ were discharged
4 days later, all at the same time and for the same asserted
reason. That reason was the loss of a coal sale. There is no
statistical or other record data supporting the Respondent’s
claim that its sales were down and that the layoff of one
third of its work force was in order. Moreover, the individ-
uals who testified in support of this naked claim were wit-
nesses whose credibility is seriously deficient. It should be
noted that all seven discriminatees were not merely laid off
until orders picked up, an event which apparently happened
in the course of the following 10 days. The notices which
each received were termination notices, meaning that, even
if the Respondent’s business improved and a need arose for
additional men, others could and presumably would be hired
in their places. The record contains no suggestion that any
of the discriminatees were unsatisfactory employees. Indeed,
most of them were miners with between 10 and 20 years of
experience in the industry and most could perform several
different functions in any mining operation. The action by
the Respondent on March 15 was not merely an effort to
trim its payroll in the face of an economic downturn. It was
an effort to eliminate particular people.24
The emptiness of the Respondent’s asserted defense was
made clear when, following a week of picketing which vir-
tually halted production, coal sales suddenly boomed to the
point where the entire night shift had to be returned to duty
and a full complement of miners was required to meet pro-
duction demands. The discharges in question were made by
a virulently antiunion employer who had repeatedly said that
it would fire employees and close the mine in the event of
509LOW KIT MINING CO.
unionization. The Board should take the Respondent at its
word. Accordingly, I find that, by discharging seven employ-
ees named in the consolidated complaint in March because
of their union sympathies and affiliations, the Respondent
herein violated Section 8(a)(1) and (3) of the Act.
D. The Refusal to Reinstate Derrick, Osborne, Nichols,
and R. Lanham
The General Counsel makes no contention that Derrick,
Osborne, Nichols, and R. Lanham were again discharged for
union activities on July 8. They were laid off for lack of
work. Osborne was recalled 2 weeks later, only to suffer an
industrial injury on August 12. None of them has worked
since those respective dates. The essence of the General
Counsel’s allegation is that they were discriminatorily denied
recall later in the year.
All four of the ‘‘fall discriminatees’’ had signed union
cards and all had given strong evidence their union sym-
pathies in March, either by picketing to protest the March
terminations or by observing the picket line which had been
established at the entrance to the mine property. In his testi-
mony, Swango described their strike as an ‘‘insurrection.’’
When vacancies arose at the mine in September and October
because incumbent miners had quit, none of the laid-off em-
ployees was even notified of job openings and strangers to
the operation were hired as replacements. To explain this pe-
culiar situation, the Respondent advanced several trans-
parently false excuses.
Respondent notes that, between the layoffs in question and
the time that vacancies arose, Low Kit had taken over from
Spangler. According to its argument, Low Kit had no obliga-
tion to recall Spangler employees who were on layoff. The
second contention is that, while the Spangler employees in
question may have been laid off, they were in fact dis-
charged. Thirdly, the Respondent claims that it adopted a
policy of considering for employment only those employees
who had made fresh applications when vacancies arose and
that none of the four miners in question had their applica-
tions on file during the critical period when hiring decisions
were being made.
Respondent may not have a legal duty to observe seniority
or to reinstate laid-off Spangler employees but it had a legal
duty to avoid discrimination on the basis of union sym-
pathies and affiliations in establishing hiring policies and in
making hiring determinations. All of the miners who were
separated on July 8 were given the clear impression that they
were being laid off, not discharged. Basham, the Company
clerk, told at least two of the men whom he phoned that they
were being laid off ‘‘until further notice.’’ That notice never
came, even though job openings arose in September and in
October.
Low Kit admits that it is a successor to Spangler. Both
employers operated on the same mining permit, one which
had been issued by the State of West Virginia to Logan and
which has at all times material been under Swango’s control.
Indeed, it could not do otherwise since both are merely an
extension of the interest and control of a single individual,
David Swango. Swango completely controlled the labor rela-
tions policies of both operations. He testified that he did not
get into the day-to-day operations and decision making of
Spangler as closely and as intimately as he has done in the
case of Low Kit. However, this is not because he could not
have done so but because he elected not to do so. Spangler
is so completely bound up with Low Kit that Low Kit elect-
ed to settle Spangler’s unfair labor practice case, to post no-
tices which normally Spangler would have been called upon
to post, and pay out $9000, a sum which originated from
Swango, to meet the backpay liability due under the terms
of the Spangler-Low Kit agreement. The present mining op-
eration is the same operation as the Spangler mine, the su-
perintendent of the Low Kit operation was a mine foreman
under its predecessor, and there was no hiatus in the oper-
ation when the changeover took place. Employees on the
Spangler payroll were told, on or about August 19, that
henceforth they would be Low Kit employees and would be
working under the same terms and conditions as before.
None of them were required to fill out new job applications
in order to continue their employment and there was no rea-
son for them to do so, since they were all well known to
Low Kit management and Low Kit presumably had the
Spangler personnel and payroll records containing the origi-
nal applications of all incumbent miners. However, when it
came to filling vacancies a few weeks later and facing the
possibility that recently laid-off employees might make appli-
cation, a new and wholly arbitrary hiring requirement was
suddenly invoked to justify ignoring their possible can-
didacies. It was established for no other ostensible reason
than to provide the Respondent with an excuse for not hiring
the discriminatees.
Following his layoff in July, Nichols had no further con-
tact with the Respondent until the new employees were hired
in late September and early October. However, Osborne, R.
Lanham, and Derrick had several contacts. Osborne was re-
hired, injured in August, and, in effect, discharged imme-
diately following the injury. Upon notifying Stallsmith that
he had received an injury, Osborne was told by Stallsmith
that he was laid off. Beasley immediately visited Osborne’s
house to pick up his miner’s light and charger. This occurred
within a few days after Osborne had told Beasley that he
needed time off to speak with a Board agent who was then
investigating a pending unfair labor practice charge.
Sometime later, Osborne had occasion to speak personally
with Swango. He told Swango about his injured hand and let
Swango know that he was interested in returning to work.
Osborne was still under a doctor’s care at that time. Swango
told Osborne to let him know when he received a medical
release and Swango would put him back to work. On Sep-
tember 9, Osborne phoned Basham and told him that he had
a doctor’s release permitting him to go back to work. He
also spoke to Beasley the same day and gave him the same
information. Beasley’s only response was ‘‘Okay,’’ but
Beasley did not tell Osborne to come back to work and
Osborne was never recalled.
During the week of October 18, Rodney Lanham went to
the mine and asked Beasley for a job. Beasley told him that
the Company was not going to do anything until they got
public power in the mine. Until that time the mine had been
operating on battery-powered electrical source. During the
course of a weekend, it changed over to public power from
Appalachian Power Company. The following week Lanham
and Osborne, who are related both to Beasley and to each
other, went back to the mine and were given the same ex-
cuse for not hiring by Beasley. Lanham filled out a job ap-
510 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
plication and gave it to Beasley but has heard nothing since
that time.
When Derrick applied for reinstatement in September,
Beasley told him that he would not be hiring anyone because
the Company was ‘‘working on a generator.’’ When he went
back to the main office a second time, he was given the
same excuse. In fact, the power changeover had nothing to
do with the Respondent’s hiring activities and was simply a
put off to avoid telling these applicants that the Company
was not doing any hiring, a fact which all of them would
soon come to learn was false. When they did find out that
Respondent had been hiring when they were being told the
contrary, they set up a short-lived picket line.
When the Respondent undertook to hire four employees in
late September and early October, it solicited applicants by
‘‘putting out the word.’’ The people Beasley principally re-
lied upon to refer job seekers were Gillespie, the
McDerments, and Williams, all of whom had demonstrated
their loyalty to the Company back in March by crossing the
picket line which had been established to protest the Compa-
ny’s March unfair labor practices. All the miners they re-
ferred lived, as did they, a considerable distance from the
mine in Boone County, while the four discriminatees were
comparatively close at hand. Notwithstanding the availability
and readiness of these individuals to return to work, Beasley
made no effort to contact them and to let them know that
the Company was hiring. This omission on his part is all the
more peculiar in light of the fact that two discriminatees,
Derrick and Osborne, were close relatives, either by blood or
marriage, and make their living in an industry where family
ties are an important feature of employment ‘‘networking.’’
They were refused employment when they came around
seeking work because they had not placed new job applica-
tions on file, but they had not filed any applications because
they did not know of any vacancies or of the new require-
ment that former Spangler employees execute application
forms and provide Low Kit with the information it already
had.
It is quite obvious that Beasley did not let former Spangler
employees know of job openings because he did not want to
hire them when openings arose. It is equally obvious that
such excuses as their failure to file timely application forms
or Beasley’s failure to notify them of openings were merely
ways of avoiding a confrontational refusal to hire. That con-
frontation finally arose late in October when a picket line
was established in front of the mine property. However, at
that time, all vacancies had been filled.
Beasley was well aware of the desire of these individuals
to return to work long before he ‘‘put out the word’’ seeking
other applicants. The Respondent’s reason for avoiding the
reemployment of four experienced miners whose ability and
performance were without reproach was that they were not
only union activists but activists who had demonstrated their
attachment to the UMWA and to each other by establishing
a picket line in front of the mining property during the
March ‘‘insurrection.’’ By failing to hire them, or even to
consider them for hire in September and October when job
vacancies arose, the Respondent herein violated Section
8(a)(1) and (3) of the Act. I so find and conclude.
E. Objectionable Conduct Affecting the Result of the
May 17 Election
Following its defeat at the May election, the Charging
Party filed timely objections asserting that the election
should be set aside because of employer interference. Those
objections include the claim that the company observer at the
election was a supervisor, that the voter eligibility list which
the Company furnished excluded the names of certain unit
employees who were thereby denied the right to vote, that
the employer engaged in surveillance of the Charging Party’s
distribution of literature during the critical preelection period,
and that the employer, during that same period, promised
employees additional wages and benefits if they would vote
against the Union.
As noted above, the Respondent promised employees pay
raises and health insurance benefits, both orally and in writ-
ing, not long before the election. These promises, made in
the course of an election campaign and in anticipation of an
election, are classic unfair labor practices. NLRB v. Exchange
Parts Co., 375 U.S. 405 (1964). The letter of the Respondent
to its employees, quoted above, ties the raises to a ‘‘Vote
No’’ request in clear and unmistakable terms. While there is
some doubt as to when the oral promises were made, there
is no doubt that the offending letter was written well within
the critical period. As it constitutes an unfair labor practice,
and a serious one, sending the letter also constitutes objec-
tionable conduct warranting the setting aside of the election.
Dal-Tex Optical Co., 137 NLRB 1782 (1962). Since I have
recommended that the May 17 election ought to be set aside
on this ground, it is unnecessary to pass upon the other con-
tentions of the Charging Party and I decline to do so.
On these findings of fact and conclusions of law, and on
the entire record considered as a whole, I make the following
CONCLUSIONS OF LAW
1. Respondent Low Kit Mining Company is now and, at
all times material has been, engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. Respondent Low Kit Company is a successor in interest
to Spangler Coal Company, Inc.
3. United Mine Workers of America, AFL–CIO is a labor
organization within the meaning of Section 2(5) of the Act.
4. By discharging Louis W. Fauber, Paul D. Bartley, Steve
A. Browning, Mickey Hager, Leroy Halstead, Lester M.
Lanham, Rodney D. Lanham, and Alan H. Nichols in March
1991, because of their membership in and activities on behalf
of the Union; and by later failing and refusing to recall Ken-
neth Derrick, Rodney D. Lanham, Alan H. Nichols, and
Thomas Osborne Jr., because of their membership in and ac-
tivities on behalf of the Union, the Respondent violated Sec-
tion 8(a)(3) of the Act.
5. By the acts and conduct set forth above in Conclusion
of Law 4; by coercively interrogating employees about their
union activities and the union activities of other employees;
by promising employees increases in wages and benefits in
order to persuade them to abandon their support for the
Union; by soliciting grievances from employees and by
threatening to close its mine if they selected the Union as
their bargaining representative; by engaging in surveillance
of the union activities of employees; and by threatening to
511LOW KIT MINING CO.
25 F. W. Woolworth Co., 90 NLRB 289 (1950).
26 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
27 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
place their union activities under surveillance, the Respond-
ent herein violated Section 8(a)(1) of the Act.
6. The aforesaid unfair labor practices have a close, inti-
mate, and substantial effect on the free flow of commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I will recommend that it be required
to cease and desist therefrom and to take certain affirmative
actions designed to effectuate the purposes and policies of
the Act. Since the independent violations of Section 8(a)(1)
of the Act found herein are repeated and pervasive and evi-
dence a disposition on the part of this Respondent to violate
the rights of its employees, I will recommend to the Board
a so-called broad 8(a)(1) remedy designed to suppress any
and all violations of that section of the Act. Hickmott Foods,
242 NLRB 1357 (1979). The recommended Order will re-
quire the Respondent to offer full and immediate reinstate-
ment to Louis W. Fauber, Paul D. Bartley, Steve A. Brown-
ing, Mickey Hager, Leroy Halstead, Lester M. Lanham, Rod-
ney D. Lanham, Alan H. Nichols, Thomas Osborne Jr., and
Kenneth Derrick to their former or substantially equivalent
employment, without prejudice to their seniority or to other
rights and benefits which they previously enjoyed, and to
make them whole for any loss of earnings which they may
have sustained by reason of the discriminations practiced
against them, in accordance with the Woolworth25 formula,
with interest at the rate prescribed by the Tax Reform Act
of 1986 for the overpayment and underpayment of income
tax. New Horizons for the Retarded, 283 NLRB 1173 (1987).
The recommended Order will also require the Respondent to
post the usual notice, informing employees of their rights and
of the results in this case.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended26
ORDER
The Respondent, Low Kit Mining Company, a successor
to Spangler Coal Company, Inc., Pond Gap, West Virginia,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees concerning their
union activities and sentiments and the union activities and
sentiments of other employees.
(b) Promising employees increases in wages and benefits
in order to get them to abandon their support of the Union.
(c) Soliciting grievances from employees during an orga-
nizing campaign with a view toward resolving them.
(d) Threatening to discharge employees or to close the
mine if employees selected the Union as their bargaining rep-
resentative.
(e) Engaging in surveillance of union activities of employ-
ees or threatening to place their union activities under sur-
veillance.
(f) Discouraging membership in and activities on behalf of
the United Mine Workers of America, AFL–CIO, or any
other labor organization, by discharging employees, refusing
to recall or rehire them, or otherwise discriminating against
them in their hire or tenure.
(g) By any other means, or in any manner interfering with,
restraining, or coercing employees in the exercise of rights
guaranteed to them by Section 7 of the National Labor rela-
tions Act. These rights include the right to form, join, or as-
sist labor organizations, to bargain collectively through rep-
resentatives of their own choosing, and to engage in other
concerted activities for their mutual aid and protection.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer to Louis W. Fauber, Paul D. Bartley, Steve A.
Browning, Mickey Hager, Leroy Halstead, Lester M.
Lanham, Rodney D. Lanham, Alan H. Nichols, Kenneth Der-
rick, and Thomas Osborne Jr., full and immediate reinstate-
ment to their former or substantially equivalent employment
without prejudice to their seniority or to other rights pre-
viously enjoyed, and make them whole for any loss of pay
or benefits suffered by them by reason of the discrimination
found herein, in the manner described above in the remedy
section of this decision.
(b) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(c) Expunge from the personnel records of the above-
named employees any and all disciplinary warnings and dis-
charge notices, and notify them in writing that such warnings
and notices will not form the basis for future disciplinary ac-
tions.
(d) Post at the Respondent’s Pond Gap, West Virginia
place of business copies of the attached notice market ‘‘Ap-
pendix.’’27 Copies of the notice, on forms provided by the
Regional Director for Region 9, after being signed by the
Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and msindained for
60 consecutive days in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material.
512 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that Case 9–RC–15876 be, and it
hereby is, severed from the consolidated complaint cases,
that the election conducted therein be, and it hereby is, set
aside, and that said case be remanded to the Regional Direc-
tor for Region 9 for the holding of a second election at such
time as he determines that a fair and free election can be
conducted.