Pengrove Coal Co.

National Labor Relations Board - Board Decisions

May 11, 1977

229 N.L.R.B. 562 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pengrove Coal Co. and Charles Albert. Case 6-CA-
9442
May 11, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On January 24, 1977, Administrative Law Judge
Melvin J. Welles issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order,2 as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, Pengrove Coal Co., Irwin Township, Pennsyl-
vania, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order, as so modified:
1. Substitute the following for paragraph l(c):
"(c) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights under Section 7 of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). we have
carefully examined the record and find no basis for reversing his findings.
2 In his recommended Order and proposed notice the Administrative
Law Judge uses the narrow cease-and-desist language, "like or related,"
rather than the broad injunctive language, "in any other manner," the Board
traditionally provides in cases involving serious 8(a)(3) violations, such as
found here. See N.LR.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4,
1941); Electrical Fittings Corporation, a subsidiary of I-T-E Imperial
Corporation, 216 NLRB 1076 (1975). Accordingly, we shall modify the
Order and notice to require Respondent to cease and desist from, in any
other manner, infringing upon employee rights.
229 NLRB No. 83
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or otherwise discrimi-
nate against any employees because of their
concerted activities for mutual aid and protection,
or their union activities.
WE WILL NOT threaten our employees for
engaging in protected concerted activities, or
union activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights under Section 7 of the Act.
WE WILL offer Charles Albert immediate and
full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent
position, without prejudice to his seniority or
other rights and privileges, and make him whole
for any loss he may have suffered.
PENGROVE COAL CO.
DECISION
STATEMENT OF THE CASE
MELVIN J. WELLES, Administrative Law Judge: This case
was heard at Mercer, Pennsylvania, on November 24, 1976,
based on charges filed July 26, 1976, and a complaint
issued September 28, 1976, alleging that Respondent
violated Section 8(a)(1) and (3) of the Act. Respondent has
filed a brief.
Upon the entire record in the case, including my
observation of the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER AND THE LABOR
ORGANIZATION INVOLVED
Respondent, a Pennsylvania corporation, is engaged in
the mining and nonretail sale of coal in Irwin Township,
Pennsylvania. During the 12 months preceding the is-
suance of the complaint herein, it shipped goods and
materials valued in excess of $50,000 from the Common-
wealth of Pennsylvania to points outside the Common-
wealth of Pennsylvania. I find, as Respondent admits, that
it is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act. United Mine Workers of
America is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
Facts and Discussion
The complaint alleges that Respondent unlawfully
threatened employee Charles Albert with discharge if he
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PENGROVE COAL CO.
supported the Union, and then discharged him for
protected concerted activity and to discourage his union
membership.
The pertinent events all occurred during a 3-day period,
May 10-12, 1976. Albert, a 9-year employee of Respon-
dent, had been talking in April and early May about a raise
for the men and about having a 2-week vacation instead of
the one the employees were receiving, with Wayne Chutz,
Respondent's superintendent, and the son of its president,
Leonard Chutz. According to Albert, "Wayne would just
laugh and make a joke out of it." The morning of May 10,
Albert, employee Robert Emmett, and Wayne Chutz were
having a sandwich in the shop, and a truckdriver named
Pierce (not employed by Respondent) came in and asked
what they were doing. Emmett said (obviously jokingly)
that they were having a union meeting, and Albert added
that they were "trying to get more money off the boss, but
he wouldn't give us any." Pierce said, "Well, you'll have to
strike then," and Albert replied, "That could be arranged."
Wayne Chutz then said, according to Albert, "you ought to
watch what you're saying like that, good men are hard to
replace, and can be replaced for saying something like
that."
That evening, Albert called District 5 of the Mine
Workers in Pittsburgh, and was referred to District 2 in
Ebensburg. The next morning, Albert told Emmett that he
had called the Union, and Emmett advised Albert to talk
to President Leonard Chutz and "try to work it out without
bringing the Union in." I A little later that day, Albert told
Wayne Chutz that he had called the Union, and what
Emmett had advised. Chutz, according to Albert, said he
would get his father there for a meeting with all the men,
and that he (Albert) would probably get fired when his
father found out he had called the Union. Albert clarified
this on cross-examination, testifying that he had said to
Chutz that he would probably be fired for calling the
Union, and Chutz replied, "You probably will." A bit later,
Wayne Chutz came into the shop, said his father could not
be there that evening, but would be there the next evening,
and that when he came, Albert would be fired for calling
the Union. Again, this is Albert's testimony.
The next day, a meeting was held at the shop about 5
p.m., with all the approximately 18 employees attending.
This meeting had been announced by Wayne Chutz the
previous afternoon and evening; he told the day shift
employees to stop work half an hour early, and the night
shift to come in half an hour early for the meeting.
The meeting convened as scheduled. It began with
Leonard Chutz counting the employees. He then an-
nounced that "there's going to be no raises on this job." He
went on to say that he understood some of the employees
had "bitches" and "complaints," and when he received no
immediate response, he looked at Charles Albert, and
asked if he had any. Albert said that he did, that he had
asked Wayne Chutz for raises for the men several times,
also mentioning vacations, and, according to Albert, he
repeated to Leonard Chutz his conversations of May 10
and II with Wayne Chutz, including the fact that he had
called the Union. At that point, according to Albert,
I Emmett, called as Respondent's witness, confirmed the gist of Albert's
testimony in these respects.
Leonard Chutz came over right next to him, "cussed and
swore," said that Albert did not do his job, was lazy, and
sat around and slept. He then asked Albert whether he was
satisfied. When Albert said that he was not, Chutz pulled
out an envelope, said "Here's your paycheck, get the hell
out," and asked Albert how much more time he had
coming. Albert said he had 29-1/2 hours coming, and he
left.
Albert also testified that he had talked "union" with a
number of the employees on May 10 and 11, specifically
naming Raymond Alcorn, Emmett, McLaughlin, Charles
Alcorn, and Miller, and that he had discussed raises with
the employees.
The only other General Counsel witness was Donald
Albert, Charles Albert's brother, who was and remains an
employee of the Company. He confirmed Charles Albert's
testimony regarding the May 12 meeting with respect to
Charles Albert having related to Leonard Chutz his earlier
conversation with Wayne Chutz. Donald Albert also
testified that after Charles Albert was given his check and
left the meeting, when the meeting continued, Leonard
Chutz mentioned to the remaining employees about the
favors he had done for Charles Albert.
Wayne Chutz testified that Charles Albert asked him
about more money sometime in April, and that he told
Albert there would not be any raises in the near future
because the price of coal was way down. As to the May 10
conversation with Charles Albert and Pierce (Wayne
Chutz' testimony does not have Emmett present, although
Wayne Chutz did say Emmett was present at an earlier
conversation with Albert about raises), Wayne Chutz has
Albert stating, "we're having a meeting"; Chutz respond-
ing, "aren't you satisfied"; Albert then saying, "Well, I've
had a job before I came here, and I could get another job
again"; and Chutz replying, "Well, good men are hard to
find, but I've never seen any that couldn't be replaced."
Wayne Chutz testified that "as far as I was concerned, it
was more or less in a joking manner." The second
conversation between Chutz and Albert that morning, as
testified to by Chutz, began after Chutz came into the shop
and was told by Emmett that Albert was mad and that
Chutz "better talk to him." Chutz went over to Albert, who
told Chutz that he had called a labor hall, and thought he
should have more money and more time off. Nothing more
was said at that time, according to Chutz, who left and then
returned after about 15 or 20 minutes and asked Albert if
he "had any personal bitch with me, or if he thought that I
had done him wrong, personally." Albert said he "thought
there should have been a dollar raise and that we ought to
get some more time off on the job, and that he'd like to
have a meeting with my father." Chutz replied that his
father was having a gum operation, and he doubted if a
meeting could be arranged that night, but that possibly the
next night a meeting could take place.
Chutz then went to his father's home, and told him
"Charlie's stirred up, and he wants a meeting up at the
shop." Leonard Chutz said that he could not meet that
night, but that Wayne should set up a meeting for the next
night. Wayne also told his father that Albert "wanted a
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
raise, more time off." He testified that he did not mention
to his father anything about Albert having talked with, or
about, the Union.
Wayne Chutz' version of what occurred at the meeting
the next day is in agreement with Albert's about how the
meeting began, and how Leonard Chutz turned to Albert.
Wayne Chutz has Albert then telling his father that he had
asked Wayne Chutz for a raise and that Wayne had said
no, there would not be any raises or extra time off, that
Albert then repeated that he thought there ought to be
more money and more time off, and Leonard Chutz then
told Albert that he had "babied" him, and given him "good
jobs," and "the way the market was with the coal, that in
the immediate future there would be no raises, or that the
strip mine couldn't run if shutting down two weeks for
vacation." He then asked Albert if he was still dissatisfied,
Albert said he was, and Leonard Chutz then "gave him his
check and he shook hands and then he left."
Leonard Chutz testified to the same effect as Wayne
Chutz concerning their conversation on May II. His
testimony concerning the May 12 meeting also paralleled
that of his son. More specifically, Leonard Chutz testified
that after he asked if anyone had any complaints several
times, and no one responded, he turned to Albert, said,
"Charles, you called this meeting, what do you want?"
When Albert said he "wanted more money, and thought he
ought to have more vacations," Chutz said, "You know the
way the coal market is, and you know the rock pile we're
in." He went on to tell Albert that he'd had "a few breaks
on this job . . . and I didn't think you would be
complaining." When Albert said he was still dissatisfied,
Chutz "took the checks out of my pocket, handed him his
check, shook hands with him, wished him a lot of luck and
he left." Asked by his counsel whether it was correct that
he called Albert "all sorts of very bad things," Chutz
replied, "I don't know what he calls bad names. I was
possibly using some profanity. I do quite a bit. I wasn't that
close to him, but I was close enough to him that him and I
could correspond." Leonard Chutz also denied that Albert
had mentioned to him at the meeting his conversations
with Wayne Chutz about calling the Union, or anything
about a union. He confirmed that Albert told him, in
response to his (Chutz') question, that he had 29-1/2 hours
coming.
There were eight other witnesses called by Respondent,
most of them testifying only about the May 12 meeting. All
eight agreed with the two Chutz that there was no mention
of "union" by Albert during the meeting.2 Most testified
that Albert only mentioned "money," and said nothing
about vacations, when Leonard Chutz turned to him; a few
did "not recall" whether Albert mentioned vacations, and
one, Vernon Black, specifically testified that Albert did ask
about vacations.3 Although most of the witnesses testified
that Chutz told Albert that he had "babied him," or
"treated him well," Black testified that this kind of remark
I There were six who specifically testified that there was no mention of
"union" by Albert; the other two merely did not, in their testimony about
what occurred, include any such reference.
I Leonard Chutz' answer, according to Black, was that the Company
"just didn't have enough money right now at the present time to give any
more money and as far as vacations go, we got what we got and possibly we
might get another week maybe before the end of the year, but he . . .
wouldn't guarantee it."
by Chutz was to the men who remained after Albert left the
meeting.
By and large, I found both Charles and Donald Albert to
be credible witnesses. With particular reference to Charles
Albert, in almost every instance of a conflict between his
testimony and that of one or more of Respondent's
witnesses, his version of a particular statement or occur-
rence was confirmed by one or more of Respondent's
witnesses. For example, Albert testified that employee
Emmett was with him and Chutz when nonemployee
Pierce came by and asked what they were doing, and
Emmett said they were having a union meeting. Chutz
testified that Albert and Pierce were there, not Emmett,
and that Albert said, "We're having a union meeting," in
response to Chutz' "How are things going?" Emmett
confirmed Albert's testimony. Although this difference is in
no way critical to resolving this case, it does indicate that
Albert's recollection was better than Chutz'. With respect
to the slight variance between the testimony of Albert and
that of Chutz as to what Chutz said, Emmett's testimony
again, although not precise, was somewhat more confirma-
tory of Albert's version.4
With respect to the events at the May 12 meeting, the
testimony of most of the employee witnesses called by
Respondent that "vacations" was not mentioned by Albert
to Leonard Chutz was obviously wrong. Both Wayne and
Leonard Chutz, indeed, confirmed the testimony of
Charles and Donald Albert that the subject of vacations
was mentioned, as did witness Black. With respect to
remarks made by Leonard Chutz to the general effect that
he had babied, and taken care of Albert, the testimony of
Donald Albert that such remarks were made after Charles
Albert was fired and left the shop is confirmed by
Respondent witness Black. Of the eight Respondent
witnesses, only Black, and to some extent Emmett, 5 seemed
to have an accurate recollection of the occurrences. It
seemed to me that the other six witnesses were more
interested in giving answers that they thought would favor
Respondent's position than in testifying to their true
recollections of what occurred. None of them heard
"vacation" mentioned, although the Alberts and Chutz'
agreed that it was; none heard Leonard Chutz ask Albert
how much more time he had coming, and Albert reply that
he had 29 1/2 hours; although Chutz agreed with Albert
that this exchange took place; and none heard any
"cussing" by Chutz, although Albert's testimony in this
respect was to all intents and purposes corroborated by
Chutz himself.
As none of the other witnesses, including Black and
Emmett, heard any mention of "union" by Charles Albert
to Leonard Chutz during their interchange, I make no
finding in this respect, although it is entirely possible that
"union" was mentioned when Chutz was standing close to
Albert, and that the other employees, most of whom did
not hear a number of things that were obviously said, either
4 Emmett testified, "I think Wayne made a statement that he could be
replaced, Charlie could be replaced, or something like that, a good man was
hard to find, or something to that effect."
s Who conceded that he was "standing back there in the corner goofing
off' during part of the meeting.
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PENGROVE COAL CO.
did not hear or paid no attention to the word. The most
critical aspect of this case, however, does not involve any
conflicts in the testimony. Rather, it concerns whether
Respondent discharged Albert for union or protected
concerted activity.
Despite the testimony of the employee witnesses that
they believed Albert was speaking solely for himself at the
meeting, it is clear to me that both Wayne and Leonard
Chutz did not regard Albert's requests, whether before the
May 12 meeting or at it, as being made only on his own
behalf. In the first place, it is extremely unlikely that
Leonard Chutz would call a meeting of his entire employee
complement, and have the day shift stop work half an hour
early and the night shift report in half an hour early for the
meeting, and in effect get up out of a sick bed to speak to
all the employees, merely to deny Albert's personal request
for a raise and for more vacation time. Wayne Chutz
admittedly told his father of these requests the day before,
and Leonard Chutz, had he believed the requests were
those of a single employee, could have told his son to tell
Albert "no." Furthermore, Wayne Chutz knew that Albert
had called the Union, and I cannot believe that he would
have refrained from adding those few words - "Albert
called the Union" - to what he was telling his father the
night before the meeting. His suggestion that his father was
too ill from his gum operation for their meeting at his
father's house on May 11 to be protracted scarcely serves
as a convincing reason for not telling his father a rather
significant fact that required only seconds to relate.
Leonard Chutz came to the meeting armed with Albert's
check, obviously prepared to discharge him and to give him
that check. Whether he had the checks of the other
employees with him (the meeting was Wednesday; payday
was Thursday), as he testified, is doubtful to me, although I
make no contrary finding. Indeed, Chutz testified that he
brought all the checks to the meeting because "I thought if
there was some dissatisfaction, that the guys would want
paid," itself confirming that he did not believe Albert was
the only "dissatisfied" employee.
I am convinced that Leonard Chutz believed that Albert
was agitating on behalf of the employees in general, not
just himself, for a raise and for longer vacations, that Chutz
also knew that Albert had called the Union, 6 and that he
was prepared to make an object lesson of Albert to the
other employees, and did so.
Even absent any "union" considerations, the complaints
about wages and vacations, voiced at a meeting of all
employees called by management, and following discus-
sions with other employees on these subjects, as well as
with Wayne Chutz, are obviously protected concerted
activities. See K-Mart Enterprises, Inc., 202 NLRB 358, 365,
fn. 29 (1973), "Whether or not Kalisz and Snyder were
chosen by employees to represent them in the presentation
of grievances is unimportant, because they spoke at the
meeting on their behalf as well as on their own. In any
event, discharging them for expressing their solicited
grievances is a violation of the Act." Cloverdale Plywood
Company, a Divison of Farley and Loetseher Manufacturing
Company, 156 NLRB 819, 827 (1966). See also N. LR.B. v.
Phoenix Mutual Life Insurance Company, 167 F.2d 983, 988
(C.A. 7, 1948); N.L.R.B. v. Halsey W. Taylor Company, 342
F.2d 406, 408 (C.A. 6, 1965). Therefore, Leonard Chutz'
own testimony, in answer to his counsel's question "Why
did you give him his check?" that it was "strictly because
Chuck was not satisfied with the wages and the vacations,
is what he told me he was dissatisfied about," not only
virtually establishes the violation herein, but negates any
suggestion that might otherwise be inherent in Chutz'
testimony that Albert's employment record over the 9 years
he worked for the Company had anything to do with the
discharge.
For all the foregoing reasons, I find that Respondent
discharged Charles Albert on May 12 because of his
protected concerted activities and because his call to the
Union threatened Respondent with possible unionization
of its employees, a threat it wished to nip in the bud, and
that Respondent thereby violated Section 8(a)(X) and (3) of
the Act.
I also conclude that Respondent violated Section 8(a)(1)
by Superintendent Wayne Chutz' agreement with Albert
that his father would probably discharge Albert when he
found out he had called the Union. Although the context of
the statement, with the initial suggestion to that effect
coming from Albert rather than Chutz, might in some
circumstances militate against finding a violation, the
discharge of Albert 2 days later demonstrates that the
colloquy was not mere bantering or joking agreement by
Chutz with Albert's remark.
CONCLUSION OF LAW
By discharging Charles Albert because of his protected
concerted activities and his union activities, and by
threatening him with reprisals if he engaged in such
activities, Respondent has engaged in unfair labor practic-
es affecting commerce within the meaning of Section
8(a)(1) and (3), and Section 2(6) and (7) of the Act.
THE REMEDY
I shall recommend that Respondent cease and desist
from its unfair labor practices, that it offer reinstatement to
Charles Albert, with backpay, computed as provided in
F. W. Woolworth Company, 90 NLRB 289, (1950) and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962), and take
certain affirmative action in order to effectuate the policies
of the Act.
Upon the foregoing findings of fact, conclusion of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
6 Wayne Chutz' knowledge would in any event he imputable to Leonard
Chutz, and I am convinced, as stated above, that he told his father of
Albert's has ing called the Union.
565
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER 7
The Respondent, Pengrove Coal Co., Irwin Township,
Pennsylvania, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Discharging or in any other manner discriminating
against employees because they have engaged in concerted
activities or union activities.
(b) Threatening its employees if they sought to engage in
protected concerted activities or union activities.
(c) In any like or related manner interfering with,
restraining, or coercing their employees in the exercise of
their rights protected by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Charles Albert immediate and full reinstate-
ment to his former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him
whole for any loss of earnings he may have suffered in the
manner set forth in the section hereof entitled "The
Remedy."
I 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.
(b) Preserve and, make available to the Board or its
agents, upon request, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all records necessary to
analyze the amount of backpay due under the terms of this
Order.
(c) Post at its place of business in Irwin Township,
Pennsylvania, and any other locations where notices to its
employees are customarily posted, copies of the attached
notice marked "Appendix."s Copies of said notice, on
forms provided by the Regional Director for Region 6,
shall be signed by an authorized representative of the
Company and posted immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places at all locations
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Company to ensure
that the notices are not altered, defaced, or covered by any
other material.
(d) Notify said Regional Director, in writing, within 20
days from the date of this Order, what steps the Respon-
dent has taken to comply herewith.
8 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
566