Peabody Coal Company

National Labor Relations Board - Board Decisions

Oct 12, 1982

265 N.L.R.B. 93 (N.L.R.B. 1982)

PEABODY COAL COMPANY
Peabody Coal Company and International Union,
United Mine Workers of America. Case 14-
CA-15383
October 12, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On July 14, 1982, Administrative Law Judge
Norman Zankel issued the attached Decision in this
proceeding. Thereafter, the Respondent filed ex-
ceptions and a supporting brief.
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 brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and
to adopt his recommended Order.
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 and
hereby orders that the Respondent, Peabody Coal
Company, St. Louis, Missouri, its officers, agents,
successors, and assigns, shall take the action set
forth in said recommended Order, except that the
attached notice is substituted for that of the Ad-
ministrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After 'a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
265 NLRB No. 13
To refrain from the exercise of any or all
such activities.
Accordingly, we give you these assurances:
WE WILL NOT make changes in the wages,
hours, or other terms or conditions of employ-
ment of the warehouse clerks at our Will Scar-
let surface mine, Stonefort, Illinois, without
first giving International Union, United Mine
Workers of America, a chance to discuss and
bargain about such proposed changes.
WE WILL NOT refuse to bargain with the
Union named above as the exclusive collec-
tive-bargaining agent of our Will Scarlet sur-
face mine warehouse clerks by granting them
wage increases and other improved benefits
without first giving that Union a chance to
bargain with us about such changes.
WE WILL NOT discriminate against our em-
ployees by granting wage increases and other
benefit improvements to our nonunionized em-
ployees while withholding those benefits from
our employees who are represented by a
union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them by Sec-
tion 7 of the Act.
WE WILL immediately put into effect for the
warehouse clerks at our Will Scarlet surface
mine the increases in overtime and holiday
pay, the dental and vision care benefits, and
the October wage increase which were given
at various times during 1981 to the warehouse
clerks in our other mines in Illinois; and WE
WILL make these benefits effective retroactive-
ly.
WE WILL make whole, with interest, the
warehouse clerks at our Will Scarlet surface
mine for all losses they suffered as a result of
our withholding the 1981 increases in wages,
overtime, and holiday pay, and dental and
vision care benefits.
PEABODY COAL COMPANY
DECISION
STATEMENT OF THE CASE
NORMAN ZANKEL, Administrative Law Judge: This
case was heard before me on March 9 and May 10, 1982,
at St. Louis, Missouri.
The Union, International Union, United Mine Workers
of America,' filed an original charge against the Em-
The Union's designation appears as amended sua sponte by me. This
is done to conform the Union's name to a recent relevant decision of the
Continued
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployer, Peabody Coal Company, on September 28,
1981.2 The charge was amended on October 28. On No-
vember 2, the Regional Director for Region 14 of the
Board issued a complaint and notice of hearing. The
complaint was amended at the hearing. In substance, the
complaint alleges the Employer interfered with, re-
strained, and coerced its employees in violation of Sec-
tion 8(a)(1) of the National Labor Relations Act, as
amended (the Act), by telling its employees certain em-
ployment benefits were denied them because they select-
ed the Union as their agent for collective bargaining, and
by promising those employees increased benefits and
other improvements in working conditions if they would
repudiate the Union.
Also, the complaint (as amended) alleges the Employ-
er discriminated against its employees in violation of Sec-
tion 8(a)(3) and (1) of the Act at various times between
April 17 and December I by granting increased over-
time, holiday, and vacation benefits, by instituting dental
and optical plans, and by granting a wage increase to
some of its employees while, at the same time, denying
such improved benefits to the employees who were rep-
resented by the Union.
Finally, by the grant of the aforementioned benefits
without consultation or bargaining with the Union, the
Employer is alleged to have refused to bargain with the
Union in violation of Section 8(a)(5) and (1) of the Act.
The Employer filed a timely answer which admitted
certain matters but denied the substantive allegations and
that it had committed any unfair labor practices.
All parties appeared at the hearing. Each was repre-
sented by counsel and was afforded full opportunity to
be heard, to introduce and meet material evidence, to ex-
amine and cross-examine witnesses,3 to present oral argu-
ment, and to file briefs. Counsel for General Counsel and
the Employer's counsel submitted post-trial briefs, the
contents of which have been carefully considered. No
separate brief was received from the Union.
Upon consideration of the entire record, the briefs, and
my observation of the witnesses and their demeanor, I
make the following:
FINDINGS AND CONCLUSIONS
I. JURISDICTION
Jurisdiction is uncontested. The Employer is a corpo-
ration duly authorized to do business under the laws of
the States of Missouri and Illinois. Its principal office and
place of business is located at 301 North Memorial
Drive, St. Louis, Missouri. The Employer is engaged in
the mining of coal. For the conduct of this business, the
Employer maintains a variety of facilities in numerous
States. One of these mine facilities is located at Rural
National Labor Relations Board (the Board) reported at 259 NLRB 1409
(1982). Therein, the Union (as I have identified it) was held to be the col-
lective-bargaining representative of the unit employees involved in the in-
stant case. Thus, this amendment corrects an apparent inadvertent incor-
rect designation of the Charging Party as certified.
I All dates hereinafter are in 1981 unless otherwise stated.
3 Pursuant to an agreement among counsel, all witnesses were seques-
tered throughout the proceedings except Yates Storts (the Employer's su-
perintendent and admitted supervisor) and John Cox (the Union's Inter-
national organizer).
Route I in Stonefort, Illinois. That facility is known as
the Will Scarlet Surface Mine (hereinafter called Will
Scarlet). Will Scarlet is the only facility involved in this
proceeding.
The Employer admits that, during the year ending
September 30, it mined at Will Scarlet coal valued in
excess of $50,000, of which coal valued in excess of
$50,000 was shipped from that facility directly to points
located outside Illinois.
As observed in footnote 1, supra, the Board asserted
jurisdiction over the Employer in at least one earlier pro-
ceeding.
The Employer admits, the record reflects, and I find it
is and, at all material times, has been an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
The Employer admits, the record reflects, and I find
the Union is and, at all material times, has been a labor
organization within the meaning of Section 2(5) of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The recitation of facts found below is based upon a
composite of the credited aspects of the testimony of all
witnesses, unrefuted oral testimony, supporting docu-
ments, undisputed evidence, and careful consideration of
the logical consistency and inherent probability of
events.
Not every bit of evidence, or every argument of coun-
sel, is discussed. Nonetheless, I have considered all such
matters. Omitted material is considered irrelevant or su-
perfluous. To the extent that testimony or other evidence
not mentioned might appear to contradict the findings of
fact, that evidence has not been overlooked. Instead, it
has been rejected as incredible or of little probative
worth. Bishop and Malob, Inc., d/b/a Walker's, 159
NLRB 1159, 1161 (1966).
My credibility resolutions, wherever necessary, have
been based upon my observation of witness demeanor,
the weight of the respective evidence, established or ad-
mitted facts, inherent probabilities, and reasonable infer-
ence which may be drawn from the record as a whole.
Northridge Knitting Mills, Inc., 223 NLRB 230 (1976);
Warren L. Rose Castings; Inc. d/b/a V & W Castings, 231
NLRB 912 (1977); Gold Standard Enterprises, Inc.; et al.,
234 NLRB 618 (1978).
A. Background
On January 19, 1981, the Board's Regional Director
for Region 14 certified the Union as collective-bargain-
ing representative of the employees in the following unit:
All warehouse clerks employed at the Employer's
Will Scarlet Surface Mine, excluding office clerical
and professional employees, warehouse managers,
guards and supervisors as defined in the Act, and all
other employees.
The record reflects the Union represents the production
and maintenance employees at the Will Scarlet facility
and at other of the Employer's mines. However, the only
94
PEABODY COAL COMPANY
warehouse clerks who are represented by the Union, or
any other labor organization, are those located at the
Will Scarlet facility.
The Employer challenged the validity of the certifica-
tion. Thus, it filed a timely request for review with the
Board. That request was denied. Thereafter, the Union,
on January 29, requested recognition and bargaining. By
letter of February 6, the Employer refused the Union's
request. The Employer asserted that, according to the
terms of the 1978 National Bituminous Coal Wage
Agreement, representation of the warehouse clerks in the
unit found appropriate is not within the Union's jurisdic-
tion.
Upon a charge docketed as Case 14-CA-14724, an
unfair labor practice hearing was conducted before Ad-
ministrative Law Judge John C. Miller.
Administrative Law Judge Miller held, inter alia, that
he was bound by the prior Board proceedings in the ear-
lier related representation case4 with respect to the valid-
ity of the certification. Accordingly, Administrative Law
Judge Miller held the Employer's admitted refusal to
recognize and meet with the Union constituted a refusal
to bargain in violation of Section 8(a)(5) and (1) of the
Act.
As noted above, the Board affirmed Administrative
Law Judge Miller's findings in 259 NLRB 1409. The
Board also affirmed Administative Law Judge Miller's
conclusions that the Employer's Will Scarlet superin-
tendent, Ron Menzie, committed a variety of so-called
independent violations of Section 8(a)(1) of the Act.
Those violations consisted of threats of loss of seniority
and employment, interrogation of employees concerning
their union sympathies and support, questioning employ-
ees as to how they voted in the underlying representa-
tion election, solicitation of employees to withdraw their
support of the Union, and promising employees more fa-
vorable job consideration if they would withdraw their
union support.
The entirety of the Board's Decision and Order, 259
NLRB 1409 currently is pending before the U.S. Court
of Appeals, Sixth Circuit, upon the Employer's petition
for review.
The last date on which Menzie was found to have
committed the 8(a)(1) violations was March 2.
B. The Present Dispute
1. The facts
The instant allegations directly emanate from a series
of events which began on April 16. On that date, the
Employer announced adoption of a policy for overtime
payments and a uniform method of payment for holidays,
vacation,5 and time off (G.C. Exh. 8).
Documentary evidence, supported by undisputed oral
testimony, shows that the new policy increased the com-
pensation for nonexempt salaried employees. The parties
stipulated the subject unit employees are salaried. It is
undisputed that those employees are within the non-
exmpt category. Thus, compensation was increased from
4 259 NLRB 1409 at 1413.
s As will be seen below, there is only evidence of overtime and holi-
day pay increases, but no change in vacations.
1-1/2 times to double an employee's base rate for over-
time worked on a seventh consecutive workday; 6 and
holiday pay for working on holidays was increased from
1-1/2 times to triple an employee's base rate.
The increased overtime and holiday pay first became
known to the unit employees in late May or early June.
At that time, Menzie still was superintendent at the Will
Scarlet location.
Warehouse clerk Donald R. Emmons testified credibly
that he spoke to Menzie sometime in June. Emmons'
memory concerning all the details of that conversation
was imprecise. Nonetheless, the composite of Emmons'
testimony, and that of another warehouse clerk, Lori
Wahls, whom I credit because of her forthright, compre-
hensive, and precise narrations, reveals that Menzie had
been confronted by Emmons in June concerning the Em-
ployer's new overtime and holiday pay policy. Wahls
and the Employer's accounting supervisor, Edna Fields,
were present during the conversation between Emmons
and Menzie.8
In salient part, Emmons said he knew the new policy
had been applied to warehouse clerks at two other of the
Employer's mines.
Menzie responded that "this doesn't pertain to you
guys because you're trying to get into the Union."
Emmons then asked to see a copy of the policy.
Menzie said Emmons could not see it because it was
classified. Fields suggested they contact the Employer's
St. Louis headquarters. Menzie left the scene. He re-
turned after a brief absence. Menzie then said, "They
[the Employer's St. Louis officials] said until you guys
are officially in the Union, you're still company employ-
ees and you're going to be treated as such." The June
conversation concerning the subject of overtime and
holiday pay ended when Menzie made the comment last
quoted above.
The record shows that warehouse clerk Jerry Casteel
had not received the new benefits for time worked on
New Year's Day and Independence Day after the effec-
tive date of the new benefits. Also, Casteel did not re-
ceive the increase when he worked a seventh consecu-
tive day after the new benefit's effective date.
Effective August 1, Yates Storts succeeded Menzie as
superintendent at the Will Scarlet facility. Storts first
came to that location the previous March. He functioned
as production superintendent until August 1.9
In August, the Employer announced new dental and
vision care insurance programs for salaried employees.
September I was the effective date of each of these pro-
grams. Each program was announced to be fully funded
by the Employer. The Employer acknowledges these
plans were instituted for and applicable to the warehouse
clerks at its Illinois mines other than Will Scarlet.
In late August or early September, Casteel, Wahls,
Emmons, and other Will Scarlet employees Jerry Robin-
' Overtime was defined as "all hours worked over 8 hours per day and
40 hours per week."
I As previously observed, Menzie was prominent in the previous unfair
labor practice proceeding.
a Neither Menzie nor Fields appeared as a witness before me.
Storts was the sole witness presented to testify on behalf of the Em-
ployer.
95
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
son and Donald Richardson met with Storts. Emmons
arranged the meeting. 0
Casteel was the principal employee spokesperson.
Each of the participants, including Storts but except
Robinson, testified. Casteel presented the most compre-
hensive employee version.
Casteel's direct and cross-examination contain signifi-
cant differences. My analysis of Casteel's direct testimo-
ny regarding the dialogue between Storts and himself
leads me to conclude that such direct testimony reflects
a tendency to exaggerate what Storts supposedly said to
portray the facts in a light most favorable to the General
Counsel and the Charging Party. Nonetheless, Casteel is
not discredited. The general parameters of his direct tes-
timony were corroborated or were left uncontested by
other witnesses who, at times, included even Storts.
Casteel's cross-examination was more moderate in its
description of what Storts said in critical areas.
Storts presented only direct examination. It was ex-
tremely brief. It was rather limited. Storts' testimony was
designed to show that it was Casteel who initiated in-
quiries as to how the employees might receive the newly
installed benefits, rather than Storts' suggesting the re-
ceipt of benefits was conditioned upon repudiation of the
Union.
Both counsel for the General Counsel and the Union's
counsel declined the opportunity to cross-examine Storts.
I find Casteel's cross-examination narration comports
with Storts' testimony of what he said. Moreover,
though Storts was present during all opposing testimony,
including Casteel's, I perceived no effort by Storts in de-
meanor or otherwise to couch his testimony in blatant
contradictions. Instead, I found Storts candid and forth-
right.
Upon the foregoing, my factual findings as to the
Storts confrontation are a composite of the testimony
presented by all witnesses to the event, except that
Storts' account has been adopted wherever material con-
flicts appear between his testimony and that of Casteel.
I find, in relevant part, the Casteel-Storts conversation
proceeded as follows: Casteel said the employees "were
aware" of the overtime policy change. Casteel asked
why the Will Scarlet unit employees were not receiving
the new benefits. Storts replied he did not know, but
would check into it.
Emmons and Casteel referred also to the existence of
the recently announced dental and eyeglass benefits. Cas-
teel, during cross-examination, testified that Storts indi-
cated he was not aware the unit employees were not re-
ceiving the new overtime benefits-that he would check
into it.
Casteel and other employee witnesses testified that
whenever Storts said anything he would qualify it as his
personal opinion. Storts remarked that he was a new su-
perintendent. Further, Casteel acknowledged Storts said
he (Storts) "wasn't familiar with the situation but figured
they were "in limbo" because we voted the Union in
January-still unresolved and company probably didn't
i' Emmons' recollection of the date as February 1982 is attributed to
his demonstrated poor recall of dates. All other witnesses, including
Storts, testified the meeting occurred in August or September 1981.
know what to do with us because it appeared nothing
doing to get them into the Union."
Wahls testified, in agreement with Storts, that Casteel
asked what would happen if the employees decided to
"stay" or "go" company.
Storts responded, "I do not know."
Casteel then queried, "if we would go by company,
drop the cards, would our pay be retroactive back to the
signing of the cards?"
Storts answered, "I do not know myself, but when
that happens or whatever happens, I will get to the
person in to answer your question."
As to the atmosphere engendered during the meeting,
Wahls characterized Storts as "very, very kind and very
nice and very helpful to us and he said he really didn't
know." Wahls claimed that it was Casteel who asked
"what if we decide to stay company-when do our bene-
fits start-who should we tell." According to Wahls,
Storts responded "you can tell me," then Casteel asked
when the benefits would start and Storts replied "from
the day you tell me or shortly thereafter."
Emmons, whose testimony I adopt in this connection
because of clarity and consistency developed during
cross-examination, testified the meeting with Storts
ended when Storts said "that it really didn't matter
whatever we wanted to do, either way."
No further conversations were held between any unit
employee and Storts concerning the overtime, holiday,
dental, or vision benefits.
Richardson testified that (presumably after September
1, the effective date of the dental plan) he was told the
dental plan did not cover him.
With respect to the wage increase, the parties agreed
that all warehouse clerks at the Employer's Illinois mines
received varying percentage merit increases, except the
warehouse clerks on salary continuation at all Illinois
mines and further except the warehouse clerks at the
Will Scarlet facility. It was agreed, also, that the wage
increases were given sometime in December 1981 and
were retroactive to sometime in October 1981. Further,
it was agreed that the only warehouse clerk at Will Scar-
let who was on the salary continuation at relevant times
was Wahls, who was paid a salary continuation from
September 13 for a period of 6 months, at which time
her employment was terminated in accordance with es-
tablished company policy.
The record reflects that the Union received no notice
of the Employer's intention to grant any of the benefits
to the salaried employees, nor was the Union consulted
regarding the grant of the October wage increase. Cox
testified, without contradiction, that neither he personal-
ly, nor the Union, received any notice that a wage in-
crease would not be given to any of the warehouse
clerks at Will Scarlet.
2. Analysis
a. The refusals to bargain
The General Counsel and the Union contend that the
Employer refused to bargain when it unilaterally institut-
ed the April increases in overtime and holiday payments,
96
PEABODY COAL COMPANY
the September dental and optical plans, and the October
wage increases for all its warehouse clerks except those
within the bargaining unit at the Will Scarlet facility.
The Employer does not contest the evidence which
shows, as I have found, each of the subject benefits in
fact was implemented as alleged. Also, it is undisputed
that no notice of an intention to institute those benefits,
nor invitation to discuss or consult about them, was
given or extended by the Employer to the Union.
Instead, the Employer contends it was privileged to
make the benefit changes as part of its announced and
extant program of challenging the validity of the Union's
certification as collective-bargaining representative of the
Will Scarlet warehouse clerks. Indeed, the Employer, in
effect, has interposed a defense to the alleged unilateral
changes herein identical to that made in the original re-
fusal to recognize and bargain proceedings reported at
259 NLRB 1409.
The Employer further claims the wage and benefit
changes were made in good faith. Its pure intention, the
Employer argues, is demonstrated by the limitation of
the benefit changes to the warehouse clerks situated
away from Will Scarlet. Also, it is contended that with-
holding the benefit changes from the Will Scarlet ware-
house clerk unit employees virtually was required in
order for the Employer to preserve the integrity of its
challenge to the Union's certification.
Finally, the Employer claims a decision in the case at
bar should be deferred until the Sixth Circuit renders its
judgment upon the pending action which challenges the
certification.
I find merit to the General Counsel's and the Charging
Party's mutual position. An employer is under an obliga-
tion to bargain with an incumbent union before it may
permissibly make unilateral changes in terms and condi-
tions of employment comprising mandatory bargaining
subjects. Guerdon Industries, Inc., Armor Mobile Homes
Division, 218 NLRB 658 (1975).
Contrary to the Employer's contention, I do not con-
sider the refusal-to-bargain allegations before me neces-
sarily are governed by principles identical to those in-
volved in its challenge to the certification. Instead, I am
guided by the law apposite to alleged refusals to comply
with bargaining obligations at a time when an outstanding
certification of representative exists.
For purposes of the resolution of refusal-to-bargain
issues before me, the challenge to the certification is of
little probative value. The Board already has spoken to
that matter in 259 NLRB 1409. I am bound to follow
such precedent, unless overruled by the U.S. Supreme
Court (Insurance Agents' International Union, AFL-CIO
(The Prudential Insurance Company of America), 119
NLRB 768, 773 (1957)). This rule applies even in the
face of contrary courts of appeals determinations. Iowa
Beef Packers, Inc., 144 NLRB 615, 616 (1963). Accord-
ingly, I reject the Employer's plea to defer issuance of a
decision herein.
It is clear an employer assumes the risk of being found
guilty of an unfair labor practice if it makes unilateral
changes in terms and conditions of employment concur-
rent with its pending challenge to the validity of a certi-
fication. Madison Detective Bureau, Inc., 250 NLRB 398,
399 (1980); Allstate Insurance Company, 234 NLRB 193
(1978). The instant case provides a strong basis for appli-
cation of this concept because the Board has concluded
the certification is valid. In less compelling situations, the
Board has declared an employer's perilous position re-
garding unilateral changes. Thus, such changes in em-
ployment terms and conditions are vulnerable to being
declared unlawful when made during the period that ob-
jections to a representation election are pending and the
final Board determination has not yet been made. King
Radio Corporation, Inc., 166 NLRB 649, 652 (1967);
Laney & Duke Storage Warehouse Co., Inc., et al., 151
NLRB 248, 266-267 (1965), enfd. in relevant part 369
F.2d 859, 869 (5th Cir. 1966). To defer a decision on the
merits would, in my view, tend to proliferate the unde-
sirable effect of bypassing, undercutting, and undermin-
ing the Union's certified status as the statutory collec-
tive-bargaining representative of the subject unit employ-
ees.
In considering whether or not the actions taken by the
Employer herein constituted unilateral changes in viola-
tion of Section 8(a)(5) and (1) of the Act, it is instructive
to note the Board's decision in Pan-Abode, Inc., 222
NLRB 313 (1976). There, the Board, at 315, declared:
In order for General Counsel to prove a prima facie
case with respect to an alleged violation to Section
8(a)(5), he need only prove that an obligation to
bargain under Section 9(a) existed and that Re-
spondent refused to bargain either directly or did
not bargain by unilaterally effecting a change in
working conditions. Not only is Respondent's moti-
vation in instituting such changes totally irrelevant
in determining the existence of a violation under
Section 8(a)(5), but such considerations may, as al-
leged in this case, provide the predicate for finding
the same actions violative of other sections of the
Act.
In the case at bar, the evidence shows the changes in
overtime and holiday compensation," the institution of
the dental and vision plans, and the wage increase effec-
tive October were established, promulgated, and imple-
mented after the Board certified the Union.
It is further acknowledged that Respondent did not
give notice to, or bargain with, the Union prior to the
effectuation of any of these changes. I conclude these
factors satisfy the requisite elements of a violation set
forth in Pan-Abode, Inc., supra.
The General Counsel contends the Board's decision in
Sweetwater Hospital Association, 226 NLRB 321 (1976),
applies herein. I agree. There are material factual similar-
ities between the two cases. In both cases, there existed
an earlier refusal to bargain based upon the claim of in-
appropriate certification. In both cases, the employers
granted wage increases to all employees except those
who chose union representation. In Sweetwater Hospital,
the Board held the unilateral wage increase to violate
" The complaint (par. 7(a)) alleges a unilateral increase in "vacation
days," Inasmuch as no evidence was adduced to support this allegation, I
shall recommend its dismissal.
97
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8(a)(5) and (1) of the Act. See also The Catholic
Medical Center of Brooklyn, and Queens, Inc., etc., 236
NLRB 497 (1978).
The Employer, in its brief, seeks to distinguish the
Sweetwater Hospital and Catholic Medical Center cases
from the case at bar. The Employer correctly notes the
cited cases involved employers who effectuated the uni-
lateral changes at only a single facility. Thus, the Em-
ployer submits those cases are not properly applied to its
"multi-mine operation in Illinois." I consider this argu-
ment fallacious. The making of the unilateral changes in
working conditions of unrepresented warehouse clerks at
mines other than Will Scarlet does not remove the inher-
ent vice of denigrating from the Union's representative
status. The record shows that the Will Scarlet warehouse
clerks maintained, at least, frequent telephone contact
with their counterparts at other mines. That contact is
precisely how they became aware of some of the unilat-
eral changes. Moreover, the Union represents the pro-
duction and maintenance employees at Will Scarlet and
other of the Employer's facilities. It is unrealistic to
imagine that the unlawful unilateral activity would
escape the attention of other of this Employer's employ-
ees at Will Scarlet and other locations. Thus, the knowl-
edge of the Employer's conduct readily can be shown to
exacerbate the proscribed effect of undermining and un-
dercutting the certified bargaining agent. Viewed in this
light, the separation of facilities becomes irrelevant.
Such a view also diminishes the Employer's good-faith
claim. The predicate for such claim is the absence of
direct evidence that the Employer did not actively publi-
cize the unilateral changes. Such forebearance is illusory.
In the posture of all the circumstances herein, there was
no need to make explicit and widespread announcements
of the changes in order for their full impact to be felt.
The employees themselves naturally became unwitting
vehicles for extending the proscribed effect of the unlaw-
ful conduct. In any event, the Employer's good faith is
not material herein. Amsterdam Printing and Litho Corp.,
223 NLRB 370 (1976); Chatham Manufacturing Compa-
ny, 172 NLRB 1948 (1968).
Upon all the foregoing, I find that the Employer re-
fused to bargain in violation of Section 8(a)(5) and (1) of
the Act by withholding the overtime and holiday pay-
ment changes, the dental and vision insurance plans, and
the October wage increase from the Will Scarlet ware-
house clerks and instituting those benefits without notice
to the Union or giving the Union a chance to bargain
about those changes.
b. The threats and promises
The so-called independent 8(a)(1) violations arise from
the conference Storts held with Casteel and the four
other Will Scarlet warehouse employees in late August
or early September.
Specifically, it is alleged that Storts unlawfully told
these unit employees the benefit changes (already dis-
cussed) had been denied to them because they selected
the Union to represent them. Also, the complaint alleges
Storts promised those employees better benefits and
working conditions if they would repudiate the Union as
their collective-bargaining representative.
Storts is an admitted supervisor at all material times. If
remarks of statutory supervisors possess a reasonable
tendency to interfere with, restrain, or coerce employees
in the exercise of their statutory rights, they are violative
of Section 8(a)(l). Keystone Pretzel Bakery, Inc., 242
NLRB 492 (1979), citing Hanes Hosiery, Inc., 219 NLRB
338 (1975).
The General Counsel claims Storts' remarks during the
meeting with employees bore the requisite unlawful tend-
ency. The Employer contends everything Storts said was
an expression of personal opinion, speculative and privi-
leged as employer free speech within the purview of
Section 8(c) of the Act. This issue is a close one, not free
from doubt. Its resolution depends upon how the Storts-
employee meeting is reconstructed. My findings do not
comport fully with the litigants' portrayal of events,
which, of course, are perceived by them from an adver-
sarial position.
I have found that the meeting was initiated by the
warehouse clerks. Storts, the only management official
present, occupied his then-current position for approxi-
mately only I month. In fact, the record shows no con-
nection by Storts with the Will Scarlet facility before
March. The Union already had been certified. Storts was
not involved in the Employer's preelection campaign,
nor in any of the earlier 8(a)(l) activity commited solely
by Menzie.
The meeting was convened expressly for the purpose
of the employees making inquiry regarding their status.
Casteel first asked why the warehouse clerks were not
receiving the new benefits. Storts said he did not know.
He volunteered to obtain an informative answer.
Continued discussion of specific benefits, such as the
dental and vision plans, elicited responses uniformly and
explicitly qualified by Storts as his personal opinion.
Storts actually reminded the employees that he was a
new superintendent. He repeatedly made offers to obtain
the requested responses to the employees' questions.
With respect to the allegations that Storts imputed the
failure to receive the benefits to the advent of the Union
or its election as collective-bargaining representative of
the Will Scarlet warehouse clerks, even Casteel testified
Storts said he "wasn't familiar" with the reason the bene-
fits had been withheld and Storts "figured" (synonymous
with "speculation") the employees were "in limbo" be-
cause they had selected the Union as their bargaining
agent. Storts immediately sought to explain the latter
comment. In doing so, he noted the election was still un-
resolved (apparently a reference to the certification chal-
lenge) and that the Employer "probably" did not know
what to do. Arguably, Storts' attempted self-exoneration
may be interpreted as an effort to blame the Union for
the failure to receive benefits. As indicated, viewed in its
totality, I believe the meeting requires a different conclu-
sion.
The Storts-employee conference continued. Casteel
then asked what would be the effect of the employees'
changing their minds about union representation. Storts
again said he did not know. He continued to avoid posi-
tive responses.
98
PEABODY COAL COMPANY
With regard to Storts' alleged promise of benefits, the
credited version of what was said shows that (1) it was
Casteel who raised the issue by asking whether the pay
raise would be retroactive if the employees decided to
drop the cards (meaning the Union), and (2) Storts said
he did not know but would obtain someone who could
answer the question. Storts did venture the view that the
withheld benefits might start virtually simultaneous with
the employees' advice they no longer desired the Union
to represent them. In the complete context of the meet-
ing, I do not conclude this last-reported comment rises to
an unlawful promise of benefits. It was attended by too
many other qualified responses. It was easily susceptible
to being no more than Storts' personal view.
Storts' attitude throughout the meeting was graphical-
ly described by Wahls. She asserted Storts was "kind,"
"very nice," and "very helpful." The general atmosphere
was punctuated with Storts' obvious ignorance of the
circumstances and of the official positions of superior
management.
Finally, Storts ended the meeting by telling the em-
ployees "it really didn't matter" what they did. In this
context, I conclude it requires a strained interpretation of
the credited events to find Storts engaged in the alleged
8(a)(l) conduct. Counsel for the General Counsel has
cited impressive precedent to support the complaint alle-
gations. These cases are Florida Steel Corporation, 220
NLRB 260 (1975), Lammert Industries, a division of Com-
ponetrol, Inc., etc., 229 NLRB 895 (1977); American Tele-
communications Corporation, Electromechanical Division,
249 NLRB 1135 (1980); Commercial Management, Inc.
d/b/a Continental Manor Nursing Home, 233 NLRB 665
(1977); and K d K Transportation Corp., Inc., 254 NLRB
722 (1981).
I find each of these cases distinguishable. In general,
the alleged unlawful comments in the cited cases were a
part of an employer program unquestionably designed to
dissuade employees from union activities; the remarks
were made during confrontations generally convened by
the management officials, not the employees; the speaker
ostensibly was making authoritative statements; and the
speaker grasped every chance to drive home the unlaw-
ful message. I do not find these elements present in the
case at bar. The only similarity is that the employees
asked questions regarding their status or benefits. Per-
haps it would have been better for Storts not to talk with
the employees at all. However, it is clear that the em-
ployees regarded him as a friend and confidant. Their
perception is consistent with my previously described
observations of Storts' demeanor and deportment.
My overall impression of the Storts-employee meeting
and the credited accounts of Storts' remarks does not
persuade me that they reasonably tend to produce the
effect proscribed by Section 8(a)(1). Accordingly, I shall
recommend dismissal of the allegations of paragraph 5 of
the complaint.
c. The discrimination
The General Counsel advances two theories of viola-
tion of Section 8(a)(3) and (1). First, it is argued that the
withholding of the various benefits, already discussed at
length, from the warehouse clerks at Will Scarlet corn-
prises a per se violation. Second, it is asserted that the
Employer's action is a continuation of its earlier unlawful
conduct as found by the Board in 259 NLRB 1409. As
such, it is claimed the discrimination allegation is sepa-
rately supported by independent evidence of antiunion
motivation.
The Employer argues the record is devoid of discrimi-
natory evidence and that its actions in granting the bene-
fits to all its Illinois warehouse clerks except those at
Will Scarlet was a lawful means of preserving its legal
challenge to the validity of the Union's certification.
With respect to the per se theory, the General Counsel
correctly states the general rule that an employer vio-
lates Section 8(a)(3) and (1) when it varies from its estab-
lished practices of granting wage increases and other
benefit improvements because of the pendency of a rep-
resentation campaign or because a labor organization has
been elected by its employees to represent them for col-
lective-bargaining purposes. The General Counsel relies
on Florida Steel Corporation, 220 NLRB 1201 (1975); As-
sociated Milk Products, Inc., 255 NLRB 750 (1981); and
Henry Vogt Machine Company, 251 NLRB 363 (1980).
Each of the cited cases, in fact, does sustain the gener-
al principle expounded by the General Counsel. Howev-
er, those cases (and the precedent cited within them)
make it clear that the finding of violation is based upon a
showing that the benefits withheld would have been grant-
ed in the normal course of the employer's business, absent
the advent of a union (e.g., 220 NLRB at 1203). Thus, in
all three cases cited by the General Counsel there existed
affirmative evidence that the employer had altered its
former and established practices of granting benefits in
withholding those benefits from groups of employees
who had elected unions to represent them.
In contrast, the record before me contains no evidence
whatsoever concerning the Employer's history of re-
views and grants of increases in wages, overtime, and
holiday pay; nor is there evidence of any history relative
to the institution of other benefits such as the dental and
vision care plans. No one testified as to any such history.
None of the documentary evidence announcing the
dental and vision benefits and containing the personnel
policies on overtime and holiday pay provides any clue
as to the history of such benefits. The October wage in-
crease evidence consists only of agreements among coun-
sel upon the facts regarding that particular increase. No
reference was made to the Employer's prior grants of
wage increases. On the state of this record, I must con-
clude there is insufficient evidence to which I can apply
the cited legal doctrines. Accordingly, I find no merit to
the per se theory.
The immediately foregoing conclusion does not put
the discrimination issue to rest. A trier of fact may infer
motive from the total circumstances proved. If the trier
of fact "finds that the stated motive for a [personnel
action] is false, he certainly can infer that there is an-
other motive. More than that, he can infer that the
motive is one that the employer desires to conceal-an
unlawful motive-at least where . . . the surrounding
facts tend to reinforce that inference." Shattuck Denn
Mining Corporation (Iron King Branch) v. N.LR.B., 362
99
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F.2d 466, 470 (9th Cir. 1966). See also Heath Internation-
al, Inc., 196 NLRB 318 (1972). I conclude the record as
a whole gives rise to an inference that all the subject
benefits were withheld from the Will Scarlet warehouse
clerks because they elected the Union as bargaining
agent, and to discourage their union activity.
The Employer has cited no cases, nor have I uncov-
ered any, which support its arguments in defense of the
discrimination allegations.
There are two factors which are impressive indicators
of the Employer's motivation. First, there is the back-
ground evidence consisting of the Board's findings in 259
NLRB 1409 of a variety of 8(a)(1) conduct. As previous-
ly observed, all such violations were committed by
Menzie.
Second, there is new evidence of persistent antiunion
motivation in the instant proceeding. That motivation is
specifically connected to the withholding of the earliest
instituted benefits. This evidence consists of Emmons'
unrefuted testimony that, when he asked Menzie, in
June, why the overtime and holiday pay benefits were
not received by the Will Scarlet warehouse clerks,
Menzie answered, "this doesn't pertain to you guys be-
cause you're trying to get into the Union." Menzie was
the Will Scarlet superintendent when he made this state-
ment. I can think of no more direct and cogent evidence
of union hostility'2 than Menzie's words, addressed ex-
pressly to the failure to grant the overtime holiday pay
benefits to the subject employees.
It is true there is no such direct evidence relative to
the dental and vision plans or to the October wage in-
crease. Menzie had been replaced when the latter bene-
fits were announced and granted, and I have exonerated
Storts from 8(a)(1) conduct. Nonetheless, the evidence
shows the Employer has been consistent and unwavering
in its challenge to the Union's certification. No evidence
has been presented to show that the Employer's position
has changed since issuance of the Board's decision in 259
NLRB 1409. Indeed, the Employer substantially defends
the instant action with the claim that its conduct was a
necessary adjunct to the maintenance of the integrity of
the certification challenge.
Upon the foregoing, I infer that the motivation under-
lying the withholding of the overtime and holiday bene-
fits also was the underlying consideration in the admitted
failure to subsequently confer benefits upon the Will
Scarlet warehouse clerks. Accordingly, I find the Em-
ployer discriminated against its employees in violation of
Section 8(a)(3) and (1) of the Act by withholding all the
subject benefits from the Will Scarlet warehouse
clerks. 1 3
Upon the basis of the above findings of fact and upon
the entire record in the case, I make the following:
12 1 do not hold Menzie's statement to constitute a separate violation
of Sec. 8(a)(I). It has not been so alleged and, as noted, Menzie did not
appear as a witness.
Is In making this finding, I have also considered, and relied on, the
disparate character of the benefits' grant to all the nonunionized ware-
house clerks. Such disparity is further evidence of unlawful motivation.
CONCLUSIONS OF LAW
1. Peabody Coal Company is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. International Union, United Mine Workers of Amer-
ica is a labor organization within the meaning of Section
2(5) of the Act.
3. All warehouse clerks employed at the Employer's
Will Scarlet surface mine, excluding office clerical and
professional employees, warehouse managers, guards and
supervisors as defined in the Act, and all other employ-
ees, constitute a unit appropriate for purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act.
4. The Employer refused to bargain collectively in
good faith with the Union in violation of Section 8(a)(5)
and (1) of the Act by withholding the overtime and holi-
day payment changes, the dental and vision plans, and
the October 1981 wage increase from the Will Scarlet
warehouse employees without notice to the Union or
giving the Union an opportunity to bargain about those
changes.
5. The Employer did not interfere with, restrain, or
coerce its employees in violation of Section 8(a)(!) of the
Act as alleged in paragraph 5 of the complaint.
6. The Employer discriminated against its employees
in violation of Section 8(a)(3) and (1) of the Act by with-
holding the increases in overtime and holiday pay, the
dental and vision insurance plans, and the October 1981
wage increase from the Will Scarlet warehouse clerks
while granting those benefits to its other warehouse
clerks located in Illinois.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
8. There is no evidence to support a finding that the
Employer unlawfully granted or withheld vacation bene-
fits from any of its employees.
THE REMEDY
Having found that the Employer violated Section
8(a)(5), (3), and, derivatively, (1) of the Act, I shall rec-
ommend that it cease and desist therefrom and affirma-
tively take such action as will dissipate the effects of its
unfair labor practices.
To remedy the Employer's failure to bargain with the
Union, the Order shall require the Employer to give the
Union an opportunity to bargain over proposed changes
in terms and conditions of employment of said unit em-
ployees.
Because the Employer discriminatorily withheld the
various stated benefits from the aforesaid unit employees,
it shall be ordered to grant the overtime and holiday pay
increases, the dental and vision benefits, and the October
wage increase to the Will Scarlet warehouse clerks, ret-
roactively to the date each such benefit was effective for
the Employer's warehouse clerks at its other Illinois lo-
cations. Also, the Order shall require the Employer to
make whole, with interest computed in the manner pre-
scribed in Florida Steel Corporation, 231 NLRB 651
(1977) (see, generally, Isis Plumbing & Heating Co., 138
100
PEABODY COAL COMPANY
NLRB 716 (1962)),14 the Will Scarlet warehouse clerks
by payment to each of them all moneys lost as a result of
the discriminatory withholding of each of the benefits
specified in the immediately preceding sentence. This
make-whole provision is intended to be applicable even if
my findings of 8(a)(3) violations are not affirmed. Such a
remedy is equally appropriate to remedy the type of
8(aX5) violation found in this case. Charmer Industries,
Inc., et al, 250 NLRB 293, 294 (1980); Southside Electric
Cooperative, Inc., 243 NLRB 390, 392 (1979).' 5
Notwithstanding the Employer's contentions its con-
duct was governed by a desire to promote its challenge
to the certification in its best posture, I conclude the Em-
ployer's repetition of the refusal-to-bargain violation,
coupled with the addition of the conduct found discrimi-
natory herein, demonstrates such a proclivity to violate
the Act and a blatant disregard of the employees' Sec-
tion 7 rights as to warrant application of the Board's
standard for broad proscriptive language. See Hickmott
Foods, Inc., 242 NLRB 1357 (1979). Therefore, the Order
shall require the Employer to refrain from, in any
manner, interfering with, restraining, and coercing its
employees in the exercise of their Section 7 rights.
Upon the foregoing findings of fact, conclusions of
law, and the entire record in the case, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER' 6
The Respondent, Peabody Coal Company, St. Louis,
Missouri, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain with International Union,
United Mine Workers of America, by unilaterally, and
without notice to or bargaining with, the Union, making
changes in the wages, hours, or other terms and condi-
tions of employment of the employees in the collective-
bargaining unit found appropriate herein.
(b) Discriminating against its employees by withhold-
ing from its Will Scarlet warehouse clerks overtime and
holiday pay increases, dental and vision care plans and
"4 Also Olympic Medical Corporation. 250 NLRB 146 (1980).
L Wahls' status as a "salary continuation" employee presumably
makes her ineligible to share in the October wage increase. Any doubts
as to Whals' entitlement to the wage increase can be resolved, if neces-
sary, in the compliance stage of these proceedings.
s1 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes
benefits, wage increases, and other benefits granted to its
nonunionized warehouse clerks.
(c) Interfering with, restraining, or coercing its em-
ployees in any manner in the exercise of their Section 7
rights.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Give International Union, United Mine Workers of
America, as the exclusive collective-bargaining agent of
the employees in the unit found appropriate herein, the
opportunity to bargain over proposed changes in the
wages, hours, and other terms and conditions of employ-
ment of the employees in said unit.
(b) Grant to the employees in said appropriate bargain-
ing unit the overtime and holiday pay increases, the
dental and vision benefits, and the October wage in-
crease, and make each of those benefits retroactive to the
date in 1981 each such benefit was effective for the Em-
ployer's warehouse clerks at its locations in Illinois other
than the Will Scarlet facility.
(c) Make whole, with interest computed as set forth in
the section above entitled "The Remedy," the said unit
employees for the monetary losses they suffered as a
result of the Employer's refusal to bargain and discrimi-
nation found herein.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
records necessary to analyze and determine the amount
of money due under the terms of this Order.
(e) Post at its Stonefort, Illinois, facility copies of the
attached notice marked "Appendix." 7 Copies of said
notice, on forms provided by the Regional Director for
Region 14, after being duly signed by the Employer's au-
thorized representative, shall be posted by the Employer
immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Employer to ensure that said notices are not al-
tered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint allegations
not specifically found herein be, and they hereby are,
dismissed.
17 In the event that 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
o101