Ramar Coal Co.

National Labor Relations Board - Board Decisions

Jun 28, 1991

303 N.L.R.B. 604 (N.L.R.B. 1991)

604
303 NLRB No. 95
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Charging Party has excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administrative law
judge’s credibility resolutions unless the clear preponderance of all the relevant
evidence convinces us that they are incorrect. Standard Dry Wall Products,
91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing the findings.
In adopting the judge’s findings that counsel for the General Counsel failed
to establish essential factual elements of the unfair labor practices alleged, we
have applied the preponderance of the evidence standard employed in our pro-
ceedings. We have not relied on any failure of counsel for the General Coun-
sel to ‘‘conclusively’’ establish her case, as the judge noted at two points in
his decision.
1 It appears Peery is the correct spelling of this individual’s name, however,
his name appears with various spellings throughout the record. The same is
true with regard to the spelling of the names of various other individuals who
testified or were referred to in the record. The spellings provided in this deci-
sion are believed to be correct notwithstanding the various ways names are
spelled throughout the record.
2 I granted counsel for the General Counsel’s motion to delete Bobby
Puckett’s name from this listing of employees.
3 I granted counsel for the General Counsel’s motion to delete par. 7 of the
complaint in its entirety.
4 A preparation plant is a facility designed to take raw coal and process
it by removing inert materials so the coal may be sold at specifications set
by the purchaser. The Company herein is provided a fee for processing the
coal. The Company receives no compensation when it does not process coal.
The Company does not own any of the coal it processes.
Ramar Coal Company and United Mine Workers of
America and District 28, United Mine Workers
of America. Case 11–CA–13265
June 28, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On January 17, 1991, Administrative Law Judge
William N. Cates issued the attached decision. The
Charging Party filed exceptions and a supporting brief.
The Respondent filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Patricia L. Timmins, Esq., for the General Counsel.
Mark M. Lawson and Mark Grahm, Esqs. (White, Elliott &
Bundy), of Bristol, Virginia, for the Respondent.
James J. Vergara, Esq., of Hopewell, of Virginia, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. I heard
this 8(a)(5), (3), and (1) case in Bristol, Virginia, on August
13 and 14, 1990. The case originates from an unfair labor
practice charge filed on April 4, 1989, and thereafter amend-
ed on June 28, 1989, and March 29, 1990, by United Mine
Workers of America and District 28, United Mine Workers
of America (Union) against Ramar Coal Company (Company
or Respondent). It is alleged in the charge that the Company,
since on or about December 1988, unilaterally changed its
hiring practices as well as the hours worked for certain class-
es of its employees in three ways. First, that it failed to hire
Bill Boyd, Charles Matney, Peck Ray, Donald Coon, and
other panel members because of their union membership;
second, that it assigned less hours to its employees who were
panel members; and third, that it refused to schedule panel
members Roy Rife, David Peery,1 John Ball, and Jimmy
Couch2 to work on April 5, 1990.3
On March 30, 1990, after an investigation, the Acting Re-
gional Director for Region 11 of the National Labor Rela-
tions Board (Board) issued the complaint.
All parties were afforded full opportunity to appear, to in-
troduce evidence, to examine and cross-examine witnesses,
and to file briefs.
Based on the entire record, including a careful study of the
posttrial briefs filed by counsel for the General Counsel and
counsel for the Respondent, and on my observation of the
witnesses as they testified and my judgment of the inherent
probabilities, I conclude, as explained later, that the Com-
pany has not violated the Act in any manner alleged in the
complaint. Accordingly, I recommend the complaint be dis-
missed in its entirety.
FINDINGS OF FACT
I. JURISDICTION
The Respondent admits it operates a coal processing busi-
ness in Buchanan County, Virginia, and during the 12
months preceding the issuance of the complaint, which con-
stitutes a representative time, it sold and shipped from its site
products valued in excess of $50,000 directly to Jewel Ridge
Mining Corp. (JRMC), a Virginia company which sold goods
and products valued in excess of $50,000 directly to points
outside the commonwealth of Virginia. I find the Company
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The parties admit, and I find, the Union is, and at all times
material has been, a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
For an extended period, JRMC operated among other fa-
cilities one known as the 18 coal preparation plant in Bu-
chanan County, Virginia, which was later operated by the
Respondent.4 JRMC was a party to the 1984 National Bitu-
minous Coal Wage Agreement (1984 agreement) and oper-
ated its 18 preparation plant with its own employees until
1987 when it entered into an agreement with RBJ Coal Co.
for that Company to operate its 18 preparation plant. There-
after in the spring of 1988, the Respondent entered into a
contract with JRMC whereby it agreed to operate JRMC’s 18
605RAMAR COAL CO.
preparation plant. The 18 preparation plant was part of
JRMC’s overall mine and preparation facility at its Buchanan
County, Virginia location which included not only the 18
preparation plant but 18 and 18A deep mines as well. The
Company herein commenced operating the 18 preparation
plant in May 1988. There is no issue of unlawfulness regard-
ing the Company’s hiring practices until December 1988.
The controversy regarding the hiring of employees from De-
cember 1988 forward centers around certain rights known as
panel rights that the former employees of JRMC had with the
Company.
The Company’s contract with JRMC sets forth its obliga-
tions regarding former JRMC employees. A portion of that
agreement, which was placed in evidence by the Union, at
section 32 reads as follows:
32. Successorship. The Contractor agrees to be a
successor to any and all obligations of the Owner under
the expired National Bituminous Coal Wage Agreement
of 1984 (hereinafter referred to as the ‘‘NBCWA of
1984’’) at Owner’s No. 18 Preparation Plant facility,
and Contractor specifically agrees to hire from the
panel in accordance with the expired provisions of Arti-
cle IA(h)(2)–(6) of the expired National Bituminous
Coal Wage Agreement of 1984. It is recognized that the
foregoing requirements are material undertakings of
Contractor, and that failure of Contractor to properly
comply therewith may be deemed by Owner to be a
material breach of this Agreement. It is further recog-
nized that the foregoing obligations are not included in
this Agreement as a matter of any contractual or legal
obligation of the Owner to do so, but as a matter of the
Owner’s business practice.
Article IA, Scope and Coverage, section (h), Leasing, Sub-
leasing and Licensing out of Coal Lands, subsections (2)–(6)
of the expired 1984 agreement follows:
(2) For purposes of lawfully preserving and pro-
tecting job opportunities for the Employees working or
laid off from a particular operation covered by this
Agreement, and to assure that work opportunities are
not eliminated by lease or license arrangements, the
Employer agrees that it will not lease, sublease, or li-
cense out coal mining operations which at any time
were in operation by that Employer and covered by this
Agreement, unless the conditions set forth in the fol-
lowing paragraph are satisfied:
Leasing, subleasing or licensing out of coal mining
operations covered by this Agreement shall be per-
mitted where the lessee-licensee agrees that all offers of
employment by such lessee-licensee shall first be made
(on the basis of mine seniority) to the Employer’s clas-
sified and laid-off Employees at the mine who have not
secured regular employment at any other operation of
the Employer covered by this Agreement, if such em-
ployment at the leased, subleased or licensed out oper-
ation is for jobs of the nature covered by this Agree-
ment, and if such Employees are qualified for such
jobs. The lessee-licensee shall not be required to make
more than one such offer of employment to each such
Employee:
(3) Acceptance or rejection of such an offer of em-
ployment made by a lessee-licensee or any personnel
action between the Employee and lessee-licensee shall
not affect such Employee’s panel rights with the Em-
ployer as established by this Agreement.
(4) Any dispute regarding the rights of Employees
secured by subsection (2) above shall be resolved be-
tween the prior Employer and the Employee under Arti-
cle XXIII of this Agreement. The Employer agrees that
it will reserve in any lease, sublease or license subject
to this Section the ability of the Employer to remedy
any finding as to noncompliance of an Employee’s
right to be considered for employment opportunity as
provided herein.
(5) The prior Employer shall not be a guarantor or
be held liable for any breach by the lessee-licensee of
its hiring or bargaining obligations or the terms of any
agreement between the Union and the lessee-licensee.
(6) Within ten (10) days after the lease, sublease or
licensing out of any coal producing or coal preparation
facilities, but in any event prior to the time that any
classified work commences, the Employer shall provide
notice thereof to the appropriate District President. Such
notice shall disclose the identity of all parties to the
transaction, the location of the facilities affected there-
by, and the identity of the coal producing or coal prepa-
ration facilities affected thereby.
The ‘‘panel’’ referred to above (and throughout this decision)
for JRMC originated when the employees it laid off filled
out ‘‘BCOA-UMWA Standardized Panel Form[s].’’ A sam-
ple copy of that form follows:
BCOA-UMWA STANDARDIZED PANEL FORM
lllllllllllllllll
Employer
To be filled out by Employer:
Employee’s Name: llllllll S.S. No.: ll
Mine: lllllll UMWA District No. lll
Seniority Date at the Mine: ll Date Laid Off: ll
Length of Service with Present Employer in UMWA
Dist. lllllllll
Yr. Mo. Day
Total Length of Service with Present Employer:
lllllllllll
Yr. Mo. Day
Job Title When Laid Off:lllllllllll
Previous Mining Experience with other Employers:
Job Performed Name of Company
1. llll lll Fromll Toll
2. llll lll Fromll Toll
3. llll lll Fromll Toll
4. llll lll Fromll Toll
5. llll lll Fromll Toll
To be filled out by Employee:
What jobs do you have the ability to perform and wish
to be recalled to:
llllll llllll llllll
llllll llllll llllll
606 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 The practice, it appears, has been for an employer to give an employee
a test to ascertain whether the employee can perform the tasks indicated. Also,
specifically with the Company here, it appears that if the person doing the hir-
ing knew the individual could not perform the work indicated the employee
was not considered for employment. This later procedure was followed by the
Company in its initial hirings of which counsel for the General Counsel does
not object.
6 JRMC is a subsidiary of the Pittston Coal Group.
7 There is no contention the Company here is a successor to RBJ Coal Co.
8 On cross-examination, Lowe testified the expired 1984 agreement called
for the employer superintendent, and the recording secretary of the local to
be the joint custodians of the panel for any particular employer.
llllll llllll llllll
What mines of present Employer in UMWA District
No. ll do you wish to panel for: llllllll
What mines of present Employer within contiguous
UMWA District No. ll do you want to panel for:
llllll llllll llllll
llllll llllll llllll
Signature: llllllllll Date: lll
Address: llllllllllll
Phone Number: llll
Witness: Employer: llllllllllllll
UMWA lllllllllllllll
llllllllllllllllllllll
Original to Employer
These forms, when filled out, are referred to as ‘‘panel
sheets’’ and when combined for a particular facility (such as
JRMC) it creates the panel for that facility.
As maybe noted from the above sample panel sheet, a
laid-off employee lists, among other things, the facility the
employee was working at the time of his or her layoff. That
facility is known as the ‘‘mother mine’’ for that employee.
Upon layoff, that employee has recall rights from the mine
panel superior to those who have never worked at that par-
ticular facility. The laid-off employee lists any previous work
experience with employers other than the mother mine em-
ployer and lists jobs the employee has ‘‘the ability to per-
form’’ and to which the employee wishes ‘‘to be recalled
to.’’ When an employee lists a job the employee wishes to
be recalled to, the employee is in effect certifying he or she
is qualified to perform that particular job.5 When an em-
ployee lists other operations the employee wishes to be re-
called to, the employee is not exercising mother mine rights
but, as credibly testified to by Pittston Coal Group6 Per-
sonnel Manager Conley Parsley Jr., is enrolling on the dis-
trict panel for recall purposes. Parsley specifically described
the mother mine concept as follows:
By virtue of an employee’s employment at a particular
operation he has, under the contract, what’s called
mother mine panel rights in that that employee would
have first option or first recall rights above employees
who had not worked at that operation before.
Simply stated, an employee with mother mine rights has su-
perior recall rights over anyone who has not worked at that,
but at some other, facility within the union district. If more
than one employee has ‘‘mother mine’’ rights at a facility re-
calling employees, then recall is based on seniority, ability,
and the desire of the employee to be recalled for a specific
task. One of the key questions in dispute in the instant case
is what constitutes the mother mine for the employees of
JRMC at its Buchanan County, Virginia facility inasmuch as
the JRMC employees sought recall to the Company here. As
noted earlier, JRMC operated not only the 18 preparation
plant at the facility involved here but also operated deep
mines 18 and 18A at that same facility.
Counsel for the General Counsel and the Union contend
the panel from which the Company was required to hire its
employees was composed of employees from JRMC’s 18
and 18A deep mines as well as employees from its 18 prepa-
ration plant. The Company contends its panel for hiring was
composed solely of those JRMC employees who had worked
at the 18 preparation plant and urges it had no obligation to
consider or hire JRMC employees that had worked at
JRMC’s 18 or 18A deep mines.
I note the panel for a particular facility may change from
time to time as employees are laid off and add their names
to the panel. However, the relevant panel in question—
JRMC panel—had the last addition to it made in 1987. The
fact that RBJ Coal Co. operated the 18 preparation plant in
question before the Respondent assumed that function did
not cause the panel to become a ‘‘RBJ panel’’7 rather it re-
mained a JRMC panel. The Respondent and RBJ Coal Co.
both utilized the JRMC panel. The employees that worked
for RBJ Coal Co. remained on the JRMC panel while they
worked for RBJ Coal Co. and after the time it ceased oper-
ating.
Before examining the Respondent’s obligations related to
the panel and its selections therefrom, it is necessary to de-
cide the composition of the panel applicable to the Company.
Field Representative and Union District 28 President
Donnie Lowe testified he was familiar with panel rights as
a result not only of his position with the Union but as a coal
miner himself. Lowe explained the panel procedure was de-
signed to protect the recall rights of laid-off employees.
Lowe further explained that when employees are laid off
they fill out ‘‘panel sheets’’ on which they list their mine se-
niority, when they were laid off, the mine they were laid off
from, and the jobs and mines they wish to be recalled to.8
Lowe testified:
You are automatically recalled to the mines that you
were laid off from or the seniority unit that you were
laid off whether you list that one or not you are offered
recall rights to that operation based on the jobs that you
listed that you wanted to recall to.
Lowe testified he received panel sheets from RBJ Coal
Co. which were the same panel sheets for the ‘‘seniority
unit’’ to be utilized by the Company herein and that the
panel sheets he received included employees that had worked
at JRMC’s deep mines 18 and 18A as well as JRMC’s 18
preparation plant. Lowe specifically stated that employees of
the 18 and 18A deep mines had panel rights for recall at the
18 preparation plant.
Pittston Coal Group Personnel Manager Parsley testified
he maintained panel sheets at his office for the JRMC oper-
ations and more specifically that he had responsibility for the
panel sheets for JRMC’s 18 preparation plant. Parsley stated
that in his capacity with the Pittston Coal Group, he was
very familiar with panel rights in general and specifically fa-
607RAMAR COAL CO.
9 JRMC is a subsidiary of the Pittston Coal Group which is Parsley’s em-
ployer.
miliar with panel rights and the mother mine concept for
JRMC’s 18 preparation plant. Parsley stated the instant Com-
pany had no obligation to hire anyone that had worked at
JRMC’s 18 or 18A deep mines. He explained the instant
Company was only obligated to hire those that had worked
at JRMC’s 18 preparation plant because that was the mother
mine for such individuals. Parsley did explain that those who
had worked at ‘‘18A and 18 mines had job bidding rights
to the 18 preparation plant’’ but he added, ‘‘working 18
mine and 18A mine alone did not grant you panel rights’’
because the ‘‘connection was for job bidding purposes only
to the tipple.’’ Parsley testified that if someone had worked
at one of the two deep mines and desired to be recalled to
the preparation plant, such recall would be from the district
panel and he said the Company here had recall obligations
that ‘‘extended only to mother mine panel members, not to
the district panel members.’’
Company Consultant Orville Sykes testified he has been a
consultant to various coal companies since 1980. He said that
prior to that time (starting in 1975) he had been an elected
field representative for the Union and that from 1975 until
1979 he had served on the Union’s international executive
board. Sykes testified that from his experience, both with the
Union and for management, he had became familiar with the
mother mine concept and panel rights specifically panel
rights related to the expired 1984 Agreement and how such
rights applied to the Company herein. Sykes testified em-
ployees had ‘‘seniority from [JRMC’s 18 mine] to [JRMC’s
18A mine] but they had to bid to get to [JRMC’s 18] prepa-
ration plant.’’ Sykes said he explained to Company owner
Ashby the obligations his company had with respect to the
panel and employee rights thereunder.
Company Owner James Ashby Sr. testified that when he
was in preliminary negotiations with JRMC to lease its 18
preparation plant he, like others, was provided the assistance
of a contract manager from the Pittston Coal Group. Owner
Ashby testified he had ‘‘various sessions’’ with Pittston Con-
tract Manager Vincent Calvert before he signed a contract
with JRMC and that during those sessions, Calvert ‘‘ex-
plained [his obligations] to [him].’’ Ashby testified Company
Consultant Sykes whom he said he specifically employed
‘‘as an adviser,’’ took him ‘‘through the procedures’’ he
needed to follow on matters such as his obligations related
to the panel sheets. Ashby testified Company Superintendent
Shelton also provided him guidance with respect to his obli-
gations related to the panel sheets and explained the mother
mine concept to him. Ashby testified:
I was told that the way you call back on these panel
sheets was, if the mines—or the man—had paneled and
worked at Jewel 18 Prep plant, call them back if they
could do the job. Go by classification seniority.
All right, if they had paneled from some other oper-
ation, that I did not have to worry about them. That
they was not on my panel sheet. So, the only thing I
had to deal with, according to the people that I talked
to, was the people that had originally worked at Jewel
18 Prep plant.
. . . .
I was told by Mr. Calvert, if I recalled anyone that
it would be strictly by the panel sheets, classification
seniority, but they would have to have been 18 Prepara-
tion plant employees. And they would have had to have
been laid off from 18 Preparation plant. Not to concern
myself with anyone else except 18 Preparation plant
people.
Pittston Coal Group Personnel Manager Parsley impressed
me as a truthful witness. Accordingly, I credit his expla-
nation of the mother mine concept and panel procedures re-
lated to employee panel rights. Parsley has, for a number of
years, been in a position that allowed him to become fully
familiar with both the ‘‘mother mine concept and panel
rights.’’ I recognize he was only a somewhat, but not totally,
disinterested third party witness;9 however, I do not find
such to warrant a different conclusion with respect to his
overall credibility. I am persuaded that based on his experi-
ence and position he accurately explained the mother mine
concept and panel rights. His understanding of these two
concepts does not appear to be refuted by any record docu-
mentation. The pages of the agreement between JRMC and
the Company placed in evidence here appears to support his
understanding of these matters. Further, his testimony was
corroborated in essential part by that of Company Consultant
Sykes and Superintendent Lester. Lowe, who testified the
panel for the Company here, included employees who had
worked at JRMC’s 18 and 18A deep mines as well as
JRMC’s 18 preparation plant, appears to have confused
‘‘panel rights’’ with ‘‘bidding rights.’’ Furthermore, he did
not exhibit a good memory on certain matters about which
it is expected he should have recalled. For example, Lowe
asserts he provided Owner Ashby with panel sheets and com-
plained to Ashby the Company was violating panel rights in
its hiring process; however, Lowe could not even recall the
time of year or at what bargaining session he asserts he pro-
vided the panel sheets and made related comments to owner
Ashby.
On the basis of the above, I conclude that under the moth-
er mine concept only those employees that had worked at
JRMC’s 18 preparation plant could claim that facility as their
mother mine. I further conclude the Respondent was only ob-
ligated to consider for employment those panel employees
that indicated their prior employment with JRMC had been
at its preparation plant.
Having concluded the Respondent was only obligated to
consider for employment those individuals that had pre-
viously worked at JRMC’s 18 preparation plant, I shall now
consider whether it complied with its obligations in that re-
gard.
First, I note counsel for the General Counsel does not take
issue with any hirings by the Company prior to December
1988. In her posttrial brief, for the General Counsel asserts,
‘‘It is also undisputed that [the Company] recognized its ob-
ligation under the lease agreement with [JRMC] to hire its
employees from the [JRMC] panel and did so from the time
it commenced operations until the pay period ending Decem-
ber 10 [1988] when it began hiring employees from non-
panel sources.’’ Accordingly, the focus of examination with
respect to counsel for the General Counsel’s attempt to es-
tablish a prima facie case will start in December 1988 and
proceed forward from that time.
608 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 This particular panel, which was received in evidence as G.C. Exh. 3,
contains 274 pages.
11This series of panel sheets, received in evidence as R. Exh. 3, contains
166 pages.
12 These panel sheets, received in evidence as R. Exh. 20, contains 78 pages.
13 A copy of Boyd’s panel sheet is contained in G.C. Exh. 3, p. 37, and
R. Exh. 3, p. 16.
14 Ashby said it was great if those seeking employment were certified weld-
ers.
15 Boyd was not called to testify regarding his attempts to gain employment
with the Company.
16 I grant Company’s counsel unopposed motion to correct the transcript to
reflect the correct spelling of Keene’s name. Keene appears on the JRMC 18
preparation plant panel (see G.C. Exh. 3, p. 41 and R. Exh. 20, p. 78). Keene
appears on the Company’s payroll as of the week ending December 10, 1988.
See G.C. Exh. 2, p. 3.
17 See G.C. Exh. 3, p. 16 and R. Exh. 20, p. 39.
It is alleged at paragraph 8 of the complaint that the Com-
pany failed and refused to hire panel members Bill Boyd,
Charles Matney, Peck Ray, and Donald Coon. In considering
these complaint allegations, it is helpful to examine what
panel sheets were available to the Company on approxi-
mately what dates and from what sources. Three sets of
panel sheets were introduced into evidence at trial. First,
Field Representative and District 28 President Lowe identi-
fied a series of panel sheets he asserts were provided to him
probably in June 1987 by Raymond Jackson of RBJ Coal
Co. That panel contained employee panel sheets from
JRMC’s 18 and 18A deep mines as well as JRMC’s 18 prep-
aration plant.10 Lowe testified that at one of the bargaining
sessions with the Company, sometime between May 1988
and April 1989, he furnished a copy of the panel sheets he
had obtained from Raymond Jackson to Company Owner
Ashby.
Owner Ashby testified he received a series of panel sheets
from Lowe during negotiations but said he received far more
sheets than Lowe contends he provided. Ashby testified he
sorted the JRMC 18 preparation plant panel sheets from the
JRMC 18 and 18A deep mines sheets Lowe provided and
after doing so had approximately 50 to 60 sheets. Ashby tes-
tified he continually asked for, and in May 1990 received,
panel sheets for his operation from the Pittston Coal Group.
He said the panel sheets he received included sheets from
JRMC’s 18 preparation plant as well as JRMC’s 18 and 18A
deep mines. Ashby said he telephoned the Pittston Coal
Group and was told he was only obligated to consider for
employment those on JRMC’s 18 preparation plant panel
sheets. He said he was told he could disregard the remainder
of the sheets.11
Pittston Coal Group Personnel Manager Parsley identified
a series of panel sheets about which he stated, ‘‘This is the
mother mine panel for Jewel 18 preparation plant.’’ He said
the panel sheets had been under his office’s care and added
that only those individuals listed in that panel had recall
rights at the JRMC 18 preparation plant.12
Finally, Owner Ashby testified, and his testimony was cor-
roborated by consultant Sykes, that he picked up approxi-
mately 16 panel sheets from the Pittston Coal Group on May
2, 1988, from which initial hirings were made. Ashby ex-
plained that some on that initial panel were not hired because
the Company was seeking the smallest number of best quali-
fied employees it could get to start the JRMC 18 preparation
plant.
Turning now to those specifically named in paragraph 8 of
the complaint, I note owner Ashby and Superintendent
Shelton both testified the Company had no JRMC 18 prepa-
ration plant panel sheet for Boyd. Although there was no
panel sheet for Boyd in the JRMC panel produced at trial by
Pittston Coal Group Personnel Manager Parsley, he did have
a panel sheet. It reflects JRMC’s 18A deep mine as his
mother mine.13 Owner Ashby testified Boyd was considered
for employment at the preparation plant because he held him-
self out as a welder and electrician. Ashby said Boyd
brought a panel sheet to the facility when he sought employ-
ment. Ashby said at the time he needed to hire someone as
a welder so he told Superintendent Shelton to give Boyd a
welding test even though Boyd’s mother mine was JRMC’s
18A deep mine. Ashby testified Shelton later told him Boyd
refused to take a welding test saying he was not a certified
welder. Ashby testified the Company did not require its em-
ployees to be certified welders14 rather it just required that
they pass a welding test. Boyd refused to take such a test.
Ashby and Shelton testified they thereafter needed an elec-
trician but stated Boyd refused to take a ‘‘little’’ electrician’s
test. Shelton testified ‘‘[Boyd] couldn’t handle nary one of
[the two jobs.]’’15 Shelton testified without contradiction he
hired Gerald Keene for the welding job he interviewed Boyd
for and stated Keene was on JRMC’s 18 preparation plant
panel.16
Charles Matney was on JRMC’s 18 preparation plant
panel.17 Superintendent Shelton testified he contacted Matney
about a job and that Matney told him ‘‘[h]e was under a doc-
tor’s care and the doctors had done cut him out of the
mines.’’
Counsel for the General Counsel in her posttrial brief ar-
gues the recall efforts related to Matney (as well as Donald
Coon) are self-serving and unsupported. Yet, she did not call
Matney to testify regarding any efforts Superintendent
Shelton may have made to offer him employment or to ad-
dress the status of his health at that time. Counsel for the
General Counsel contends the Company had an obligation
under these circumstances to send a letter to Matney offering
him employment. However, a review of the provisions of the
expired 1984 agreement applicable to the Respondent— arti-
cle IA(h)(2)–(6)—with regard to hiring refers to ‘‘offers of
employment’’ being made to ‘‘qualified’’ individuals—on
the mother mine panel—and that the Company ‘‘shall not be
required to make more than one such offer of employment
to each such employee.’’ Article IA(h)(3) makes clear that
‘‘[a]cceptance or rejection of such an offer of employment
made by a lesse-licensee [such as the Respondent] shall not
affect such Employee’s panel rights with the Employer
[JRMC] as established by this Agreement.’’ Counsel for the
General Counsel’s contention that written notice must be
given to those whom the Company is making ‘‘offers of em-
ployment’’ is not a part of the provisions of the agreement
applicable to the Respondent but rather is set forth at article
XVII(e), which refers to ‘‘notice of recall’’ and to loss of
panel and seniority rights at the mine for a failure to re-
spond. As noted above, no such loss of panel rights occurs
by a failure to respond to ‘‘offers of employment.’’ Thus, I
am persuaded the Company had no obligation to offer
Matney employment by way of a certified letter. Even if
such had been a requirement for the Respondent, I would
conclude it would not have been required to engage in an act
609RAMAR COAL CO.
18 See G.C. Exh. 3, p. 268.
19 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Man-
agement Corp., 462 U.S. 393 (1983).
of futility related to Matney because he had clearly expressed
to Superintendent Shelton that his doctors would not allow
him to work.
Peck Ray was not on the mother mine panel for JRMC’s
18 preparation plant but rather listed his mother mine as
JRMC’s 18A deep mine.18 Thus, I am persuaded, as urged
by the Company, it had no obligation to offer Ray employ-
ment. Furthermore, I note that all the jobs Ray listed he was
capable of performing were deep mining jobs. There is,
therefore, no reason to conclude the Company would other-
wise have made Ray an offer of employment. Even if the
Company had been obligated to offer Ray employment,
Ashby testified Ray was gainfully employed at another com-
pany that Ashby owned, namely, Shenandoah Coal Co. and
that Ray even continued to work at that company after
Ashby ‘‘got out of Shenandoah’’ and another owner took
over. Counsel for the General Counsel did not call Ray to
testify. I credit Ashby’s uncontradicted testimony outlined
above. Not only was Ray not on the JRMC 18 preparation
plant panel at relevant times, he was during the time in ques-
tion gainfully employed at another mining operation.
Donald Coon was on the mother mine panel for JRMC’s
18 preparation plant. Coon prepared his panel sheet on Janu-
ary 3, 1984, and reflected he had the ability to perform and
wished to be employed as, among other things, a ‘‘welder’’
and/or ‘‘mechanic and electrician.’’ Superintendent Shelton
testified he tried to locate Coon for a welder’s position at the
Company. Owner Ashby testified he tried unsuccessfully to
telephone Coon. Ashby said Shelton told him he knew Coon
personally and would go to his home to see if he would
work for the Company. Superintendent Shelton testified ‘‘I
knew him [Coon] real well and I went to his house . . . and
his trailer or nothing was there and some of the friends there
said he was out of town.’’ Coon amended his panel sheet on
January 14, 1985, to reflect he had move from the Virginia
area to the San Angelo, Texas area. Coon was not called as
a witness. I credit Ashby’s and Shelton’s uncontradicted ac-
counts of their attempts to employ Coon. Contrary to conten-
tions made by counsel for the General Counsel, I find, for
reasons already expressed elsewhere in this Decision, that the
Company was not obligated to extend an ‘‘offer of employ-
ment’’ to Coon by certified letter. Counsel for the General
Counsel’s contention that Coon may just have been out of
town when Superintendent Shelton dropped by does not
seem likely in that Coon not only was not personally in the
area, but his ‘‘trailer’’ or home had been removed from the
Virginia area.
I am persuaded counsel for the General Counsel failed to
establish even a prima facie case19 that protected conduct
was a motivating factor in the Company’s failure and refusal
to hire Boyd, Matney, Ray, and Coon on or after mid-De-
cember 1988.
Counsel for the General Counsel acknowledges hirings
were proper and does not contend the Respondent engaged
in any unlawfully motivated hirings prior to December 10,
1988. I note the Respondent had been selective in its hirings
prior to December 10, 1988. The Company demonstrated that
on and after December 1988 it needed employees with cer-
tain specific skills and counsel for the General Counsel failed
to establish the Company’s hiring criteria were pretextual. In
that regard, the Company contended, and no convincing evi-
dence to the contrary was presented, that it needed multi-
skilled employees especially employees with welding and
electrical skills. There is no dispute that these particular
skills were needed to maintain an aged preparation plant that
frequently experienced breakdowns.
With respect to each of the specifically named employees
in paragraph 8 of the complaint, I note the following. With
respect to Boyd, counsel for the General Counsel failed to
establish that he was even on the mother mine panel for
JRMC’s 18 preparation plant. Hence, the Company had no
obligation to offer him employment. Furthermore, the em-
ployee that was ultimately hired for the welder’s position
Boyd was considered for—Gerald Keene—was a JRMC 18
preparation plant panel member. Even if counsel for the Gen-
eral Counsel had established a prima facie case with respect
to Boyd, the Company demonstrated it would not have hired
him even in the absence of any protected concerted conduct
on his part inasmuch as Boyd refused to take either a weld-
er’s or an electrician’s test to establish he was qualified to
perform either task.
I am persuaded counsel for the General Counsel failed to
establish a prima facie case of a refusal to hire Matney even
though the evidence establishes he was on JRMC’s 18 prepa-
ration plant panel. The evidence establishes the Company
contacted Matney and he informed the Company his medical
condition was such that his doctors would not permit him to
work. As reflected earlier in this decision, the Company was
under no obligation to make an offer of employment to
Matney in writing. Even if the Company had been obligated
to offer Matney employment by certified letter, it would not
have, in my opinion, been obligated to do so in Matney’s
case because he specifically informed the Company he would
not be permitted to work inside the mines because of health
reasons. The Company would not have been required to en-
gage in an act of futility—sending a letter to Matney—in
order to protect itself from the possibility of unfair labor
practice allegations.
Counsel for the General Counsel failed to establish a
prima facie case with respect to Ray in that he was not on
JRMC’s 18 preparation plant panel. Accordingly, the Com-
pany had no obligation to offer him employment. Even if the
Company had been required to offer Ray employment, he
was gainfully employed in the mining industry—Shenandoah
Coal Co.—at relevant times. Furthermore, all the experience
he listed on his panel sheet was for deep mining. Even if the
Company had otherwise been obligated to offer Ray employ-
ment, I am persuaded it demonstrated it would not have done
so because Ray did not possess the skills needed by the Re-
spondent.
Coon was on the proper panel sheet—JRMC’s 18 prepara-
tion plant—however, the Company tried without success
through Owner Ashby to contact him via telephone to offer
him employment. Superintendent Shelton even went to
Coon’s home to offer him employment only to discover
Coon had, as reflected on his amended panel sheet, left the
Virginia area. As noted elsewhere, the Company was under
no obligation to offer Coon employment in writing. Thus,
with no showing of any overall antiunion animus and none
demonstrated specifically with respect to Coon, I find coun-
610 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20 The Union called a strike against the Company on April 5, 1989.
21 Shelton appears on the Company’s payroll records for the pay period end-
ing December 10, 1988.
22 Art. IA(h)(2) of the expired 1984 agreement obligated the Company to
make offers of employment to panel members of the mother mine panel only
for ‘‘jobs of a nature covered by this agreement.’’
23Austin appears on the Company’s payroll for the period December 10,
1988.
24 Austin’s testimony regarding his skills is persuasive that he was a quali-
fied diesel mechanic and that he primarily performed that function for the
Company notwithstanding his ability to perform other tasks such as driving
a truck.
25 Lester and Humphry both were JRMC 18 preparation plant panel mem-
bers. Humphry indicated he desired to be recalled as an electrician or diesel
mechanic among other positions. Lester listed he was laid off as a ‘‘truck me-
chanic’’ and desired to be recalled among other things as a heavy equipment
mechanic or an electrician.
26 Neither Humphry nor Lester was called to testify. I credit Shelton’s
uncontradicted testimony that he offered employment to both.
27 I note that of the 200 plus individuals that counsel for the General Coun-
sel contends were on the panel, only two were diesel or truck mechanics when
they were laid off, and only one sought recall as a diesel mechanic. (See G.C.
Exh. 3, pp. 1–274.)
28 Robbins’ name is spelled differently at various places in the record. It ap-
pears the correct version is as set forth here.
29 Robbins appears on the Company’s payroll for the period ending January
7, 1989.
30 Williamson first appears on the Company’s payroll for the period ending
February 4, 1989.
31 Williamson testified Ashby asked if he was a certified welder and admin-
istered a welding test to him before he hired him.
32 See R. Exh. 20, p. 19.
33 See R. Exh. 20, p. 33.
34 See R. Exh. 20, p. 40.
35 See R. Exh. 20, p. 49.
sel for the General Counsel failed to meet her burden of es-
tablishing a prima facie case with respect to Coon.
That the Company hired nonpanel members after Decem-
ber 10, 1988, does not in and of itself establish a prima facie
case of unlawful motivation nor does it demonstrate the
Company unilaterally changed its hiring practices or that it
discriminated against panel members in violation of the Act.
I shall specifically review the status of each individual hired
on and after December 1988 and until April 5, 1989,20 that
Union Field Representative and District 28 President Lowe
identified as having been hired during that time without hav-
ing been panel members.
Lowe identified Kenneth Shelton as having been hired
around mid-December 1988.21 It is undisputed that Shelton
was hired as superintendent for the facility. Counsel for the
General Counsel alleged in the complaint that Shelton was
a supervisor within the meaning of Section 2(11) of the Act.
There is no showing on this record that any panel member
had Shelton’s experience. Furthermore, there was absolutely
no requirement that the Company offer employment to panel
members for supervisory positions.22 Thus, counsel for the
General Counsel failed to demonstrate the Company engaged
in any unlawfully motivated or unilaterally changed hiring
practices or that it discriminated against panel members
when it hired Shelton.
Lowe identified Bobby Austin as a nonpanel member
hired after mid-December 1988.23 Owner Ashby testified
Austin was hired because he was a diesel mechanic and em-
ployees with such qualifications were hard to find.24 Super-
intendent Shelton testified he reviewed the available panel
sheets before he hired Austin and acknowledged Austin was
not a panel member. He testified there were ‘‘two men there
at the plant which were diesel mechanics.’’ He identified the
two as Leonard Humphry and Ted Lester.25 Shelton testified
‘‘I notified both of them. They would not come back.26 No-
body else was qualified for the diesel mechanic’s job.’’27
Employees Peery, Puckett, and Rife, called as witnesses by
counsel for the General Counsel, each testified Austin per-
formed diesel/truck mechanic duties. Counsel for the General
Counsel failed to demonstrate the Company engaged in any
unlawful conduct when it hired Austin as a diesel mechanic
in December 1988.
Lowe identified Jimmy Robbins28 as a nonpanel member
hired after December 1988.29 Owner Ashby testified he hired
Robbins as a diesel mechanic. Ashby testified the Company
was ‘‘having so many break downs on the trucks that I tried
three, four men at one time as diesel mechanics.’’ Employee
Peery testified he observed Robbins performing mechanical
work before Robbins was assigned to the second shift which
shift primarily performed maintenance work. Peery claimed
this mechanical work Robbins performed before he was as-
signed to the second shift was work other panel members
also sometimes performed. However, Peery acknowledged
that the work he observed Robbins performing was not ‘‘in
coal production’’ but rather was maintenance work. Em-
ployee Puckett testified he observed Robbins ‘‘doing a little
mechanic work and welding.’’ Employee Rife testified he
observed Robbins ‘‘helping mechanic on trucks and weld-
ing.’’ Employee Williamson testified he observed Robbins
performing ‘‘mechanic work and welding’’ and added he had
never observed other employees performing that particular
work. I am persuaded counsel for the General Counsel failed
to demonstrate that any panel members had Robbins’ quali-
fications. Accordingly, I find she has failed to demonstrate
the Company violated the Act in any manner alleged in the
complaint when it hired Robbins.
Lowe identified Don Williamson as having been hired
after December 1988 without having been a panel member.30
Owner Ashby testified Williamson held himself out as some-
one that ‘‘could do just about anything.’’ Ashby said the
Company needed welders. He testified ‘‘I gave [Williamson]
a welding test’’ and ‘‘[t]he man could weld beautiful . . .
a real super good job.’’ Ashby said he specifically hired
Williamson initially as ‘‘a welder and a repairman’’ but
added ‘‘he could do other jobs besides weld.’’ Williamson,
called as a witness by counsel for the General Counsel, testi-
fied he was a certified (by the Commonwealth of Virginia)
welder and was hired in that capacity by Owner Ashby.31 I
am persuaded the Company established it was attempting to
hire employees with welding or electrical skills and that it
hired Williamson based on his welding skills which were
needed at the time. I find counsel for the General Counsel
failed to demonstrate that panel members whose panel sheets
were in the possession of the Company at the time had
Williamson’s skills and/or were passed over without having
been offered employment. Counsel for the General Counsel
points out that the panel sheets provided at trial by Pittston
Coal Group Personnel Manager Parsley as the mother mine
panel for JRMC’s 18 preparation plant reflected four individ-
uals who were or desired to be employed as welders, namely,
Charles Compton,32 Ted Lester,33 Howell Mitchell,34 and
Earl Henry Reynolds.35 There is no conclusive showing on
this record that these panel sheets, as provided by Parsley at
611RAMAR COAL CO.
36 I again note the parties raise no issue with regard to the hiring practices
of the Company prior to December 10, 1988.
37 Puckett first appears on the Company’s payroll for the period ending Feb-
ruary 4, 1989.
38 Wilson first appears on the Company’s payroll for the period ending
March 4, 1989.
trial, had been made or were otherwise available to Ashby
at the time he hired Williamson. Furthermore, Lester, as
noted elsewhere in this Decision, elected not to return to
work at the Company. I note Charles Compton’s, Howell
Mitchell’s, and Earl Henry Reynolds’ panel sheets were not
in the panel sheets that Owner Ashby said he received from
the Pittston Coal Group in May 1990. Compton’s and Mitch-
ell’s panel sheets do appear in the panel sheets United Field
Representative and District 28 President Lowe said he re-
ceived from Raymond Jackson of RBJ Coal Co. in June
1987. Lowe testified the Union provided Owner Ashby, at
Ashby’s request, a copy of the sheets RBJ Coal Co. had pro-
vided him. Lowe, however, could not say with certainty
when the sheets were provided to Owner Ashby, just that it
was sometime after the Company started hiring nonpanel
members, but before the strike that started on April 5,
1989.36 Therefore, whatever Lowe provided Ashby took
place between mid-December 1988 and April 5, 1989.
Williamson was hired at some point prior to February 4,
1989, inasmuch as he had worked 56 hours as of that date.
Considering all the above, I am persuaded counsel for the
General Counsel has not conclusively demonstrated the Com-
pany had Charles Compton’s or Howell Mitchell’s panel
sheets at the time it hired Williamson. Earl Henry Reynolds’
panel sheet does not even appear in the group Lowe contends
he provided Ashby. In light of all the above, I am persuaded
counsel for the General Counsel has not conclusively dem-
onstrated the Company unilaterally altered it hiring practices
or that it discriminated against panel members when it hired
Williamson on or about February 1989.
Lowe identified Robert Puckett as having been hired after
December 1988 without being on the panel.37 Puckett, testi-
fying as a witness for counsel for the General Counsel, stated
he was not on JRMC’s 18 preparation plant panel at the time
he was hired. He said he had several years ‘‘tipple’’ experi-
ence and worked on the tipple with the Respondent initially,
but was thereafter assigned to ‘‘dropping rail cars.’’ Owner
Ashby testified the Company essentially needed electricians
and welders but assigned employees to other tasks that need-
ed to be performed. He said the Company needed, for exam-
ple, among other employees, good welders dropping rail cars.
Ashby said he hired Puckett because Puckett told him ‘‘he
could do anything’’ and added Puckett was correct in his as-
sessment of himself in that ‘‘he could do anything.’’ Ashby
testified the Company had a good welder dropping cars and
further noted Puckett was a good ‘‘filter operator.’’ Counsel
for the General Counsel points out that Phillip Beavers, Ros-
coe Crouse, and Billy Ball were panel members with rail car
dropping experience. However, none of them listed any
welding experience or ability or even that they desired to be
employed as welders. Inasmuch as the Company was trying
to staff its facility with welders and electricians who could
perform other tasks such as dropping rail cars, I am per-
suaded counsel for the General Counsel failed to demonstrate
the Company unilaterally changed its hiring practices or un-
lawfully discriminated against panel members when it em-
ployed Puckett in February 1989.
Lowe identified Robert Wilson as having been hired after
December 1988 without having been a panel member.38
Owner Ashby testified he hired Wilson ‘‘as a filter operator’’
who told him he could and subsequently did perform other
jobs such as ‘‘beltman,’’ ‘‘cleanup,’’ ‘‘utility man,’’ and
‘‘you name it, we used [Wilson] for that.’’ Counsel for the
General Counsel did not dispute the Company’s contention
that Wilson was multiskilled. I conclude the Company’s de-
cision to hire Wilson was based on legitimate business con-
siderations.
Lowe identified James Ashby Jr. as being employed after
December 10, 1988, without having been a panel member.
The records reflect Ashby Junior. was already in the employ-
ment of the Company as of the pay period ending December
10, 1988. He was at that time a salaried employee who re-
mained in that status until his termination on January 9,
1989. He was thereafter reemployed on or about March 6,
1989, as an hourly paid employee until the pay period ending
April 13, 1989, when the records reflect he again became a
salaried employee. Thereafter, the payroll records reflect he
was sometimes carried as a salaried employee while at other
times as an hourly paid employee. Ashby described Ashby
Junior as a 21-year old diesel mechanic that also worked all
other positions at the business. Ashby testified Ashby Junior
performed as a ‘‘dozier operator,’’ ‘‘tipple operator,’’ ‘‘end
loader operator,’’ ‘‘truck driver,’’ ‘‘filter operator,’’ ‘‘fine
coal operator,’’ ‘‘sump operator,’’ and ‘‘helped weld on
trucks.’’ Ashby testified Ashby Jr. also ‘‘ran parts’’ as need-
ed and told employees what he wanted done. Ashby said if
he had not employed Ashby Junior he would have probably
had to hire another diesel mechanic ‘‘plus it would have
probably put more on [superintendent] Shelton than what he
could have done.’’ Heavy equipment mechanic Bobby Austin
testified Ashby Jr. helped him work on trucks. Austin testi-
fied Ashby Jr. did the same work on diesel engines as he did
and had also helped him install ‘‘transmissions’’ and ‘‘rear
ends’’ on the trucks. Austin testified ‘‘putting in trans-
missions and rear ends and stuff like that is not a com-
plicated job, but it takes two, maybe three men to do it.’’
Austin testified his helpers did more ‘‘physical labor’’ of the
heavy lifting nature whereas he, Austin, actually rebuilt com-
pressors, transmissions, and the like. Employee Rife testified
he observed Ashby Junior perform work as a mechanic and
also driving a truck. Employee Puckett testified he observed
Ashby Junior driving a truck and being around the mechan-
ic’s garage. Employee Williamson testified he observed
Ashby Junior operating a dozier a few times. Employee
Peery testified he observed Ashby Junior driving a truck and
‘‘running a loader.’’
The facts belie counsel for the General Counsel’s conten-
tion that Ashby Jr. was not really a qualified diesel mechanic
that he was simply used in the garage to assist in ‘‘manually
or physically lifting heavy or awkward size equipment.’’ The
evidence strongly supports the conclusion, which I have
reached, that the Company rehired Ashby Junior on or about
January 9, 1989, because he was a multiskilled worker who
could, among other things, perform welding and function as
a diesel mechanic. The fact Austin may have utilized Ashby
to perform physical tasks does not detract from the fact he
612 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
39 Counsel for the General Counsel alludes in her posttrial brief to the fact
that different wages were paid different employees and asserts none of these
alleged changes were negotiated with the Union. I note there are no complaint
allegations related to these assertions, nor was there any attempt at trial to
amend the complaint in that respect. Accordingly, I have made no findings
thereon.
40 Perry testified Rife had nothing to do when the trucks hauling slate were
broken down.
41 Shelton qualified this to say the individual desiring the extra work had
to be qualified to perform the type work needed.
42 Panel employee Rife testified he was told on April 4, 1989, by someone,
although he was not certain who, there would be no work the following day.
43 As is noted elsewhere in this decision, employees that went on strike on
April 5, 1989, were asked by the Company in writing to return to work.
could and did perform work requiring mechanical skills.
Also, Ashby Junior could, as reflected by the testimony out-
lined above, perform numerous other tasks at the Company.
I am persuaded counsel for the General Counsel has not
demonstrated the Company unilaterally changed its hiring
practices or discriminated against panel members when it
hired Ashby Junior.
The remaining individuals that Lowe identified as having
been employed after December 10, 1988, without having
been panel members were all hired after the Union called a
strike at the Pittston Coal Group as well as the Company on
or about April 5, 1989. The Company sought in writing to
have panel members that worked for it return to work after
the strike started; however, the record does not reflect that
any did. Thus, when the panel members declined a written
request to return to work and remained on strike against the
Company, the Company was then free to seek qualified em-
ployees elsewhere without violating the Act in any manner
alleged in the complaint.
In summary, I am persuaded the Company demonstrated
it needed welders and electricians and that its desire to em-
ploy individuals with those skills was not based on any
antiunion sentiments nor was it an effort to unilaterally
change its hiring practices without negotiating with the
Union. Accordingly, I shall dismiss the 8(a)(5), (3), and (1)
complaint allegations related thereto.39 See Hallmark & Son
Coal Co., 299 NLRB 259 (1990).
It is alleged at paragraph 9 of the complaint that the Com-
pany assigned less hours to its employees who were panel
members on various dates since December 1988.
Panel employee Peery testified he started work for the
Company ‘‘car dropping’’ but after approximately 3 months
was assigned to the ‘‘load-out operation.’’ He said he ob-
served that he and panel employee Rife were sent home
more often than any other employees. Peery testified that
when the Company first started operation employees were
sent home more frequently than was the case after December
1988. Panel employee Rife testified he was initially hired as
a truck-driver but later became a filter operator. Peery said
if the Company ran out of coal or if the plant or the trucks
broke down the employees were sent home. Rife stated that
if the trucks hauling slate were broken down, the Company
had to shut down because it was impossible to process coal
through the preparation plant without the slate trucks being
operational. Rife added that when the preparation plant was
not operating, there was no need for a filter operator like
himself.40 Peery said panel employees Jimmy Couch and
Bob Smith both drove trucks but were not always sent home
when the trucks broke down. Peery acknowledged that on
those occasions when he was sent home he never observed
employees remaining on the job that he thought had no busi-
ness being there or that were not performing their assigned
tasks.
Superintendent Shelton, who assigned work for employees
at the Company, testified that when he needed extra hours
worked he asked for volunteers and if there were too many
volunteers he rotated the extra work so all shared equally. He
said if someone wanted to work extra hours but was not as-
signed on any given occasion to do so then that employee
was the next one to be assigned extra work.41 Shelton testi-
fied his approach to assigning work did not change at any
time at the Company. Superintendent Lester, who succeeded
Shelton, testified the nature of the work to be performed dic-
tated precisely who would be asked to remain on site and
work. Lester, in agreement with employees Peery and Rife,
testified, ‘‘When you can’t haul your slate your plant’s
down. You can’t run it. You can’t operate.’’
Counsel for the General Counsel failed to establish a
prima facie case that the Company sent employees home or
assigned employees less hours of work after December 1988
for reasons unrelated to performance. Panel employee Peery
testified he observed employees Couch and Smith remain on
the job during breakdowns but they were both panel mem-
bers. Peery also testified he knew of no employees being al-
lowed to remain on the site and work that he thought had
no business being there or were not performing their primary
job functions. It is acknowledged there is no need for
‘‘loadout operators’’ or ‘‘filter operators’’ at times when the
plant is not operational. The plant simply cannot be operated
when the slate trucks are broken down. It is undisputed that
the Company has an incentive to keep its preparation plant
operating because it does not make money unless it proc-
esses coal. Simply stated, counsel for the General Counsel
failed to establish a prima facie case but even if she had es-
tablished such a case, the Company clearly demonstrated it
would have taken the actions it did even in the absence of
any protected conduct on the part of any or all of its employ-
ees. Accordingly, I shall recommend that paragraph 9 of the
complaint be dismissed in its entirety.
It is alleged at paragraph 10 of the complaint that the
Company in violation of Section 8(a)(3) of the Act failed and
refused to schedule panel employees Rife, Peery, John Ball,
and Jimmy Couch to work on April 5, 1989.
Panel employee Peery testified he was told by owner
Ashby on April 4, 1989, ‘‘there wouldn’t be work the next
day.’’42 Peery acknowledged there had been occasions prior
to April 4, 1989, when Ashby had told him there would be
no work the following day and that it typically resulted from
a ‘‘breakdown or no coal or something like that.’’ Peery stat-
ed that on those occasions prior to April 4, 1989, when
Owner Ashby had stated there would be no work the fol-
lowing day, he had never said why nor had he ever asked
Ashby why. Peery stated that even when the preparation
plant was not operating, it was common practice to have cer-
tain maintenance employees remain at or report for work.
Peery further testified the Union called a strike against the
Company on April 5, 1989, and that picketing started around
2 or 3 p.m. that day. Peery said he observed or believed that
employees Rife, Couch, Ball, Puckett, and others were on the
picket line on April 5, 1989, when the strike started.43
613RAMAR COAL CO.
44 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
Owner Ashby testified the Company experienced a break-
down at the preparation plant during the week of April 5,
1989. Specifically, he stated ‘‘a drier had a hole in it.’’ Em-
ployee Williamson, testifying for counsel for the General
Counsel, said he was called in to work around 7 a.m. on
April 5, 1989. He said there was so much maintenance work
to be performed that day that he and two other employees
‘‘split up and we all three (3) were working on different
things.’’ Williamson testified he worked that day on ‘‘a
dryer’’ and ‘‘some coal shakers.’’ Williamson did not know
what all may have caused the preparation plant to be down
on April 5, 1989, but he said the coal dryer was at least one
of the things. He said that as a result of the coal dryer being
down, the Company simply ‘‘couldn’t run coal.’’
Williamson, a certified welder, said he finished working
on the coal dryer around 1 or 2 p.m. on April 5 and finished
the workday repairing one of the coal shakers.
Ashby testified the Company experienced so many break-
downs at the plant he might have told employees on April
4 that the plant would not be operating on April 5, 1989, but
added he normally had his superintendent make those types
of announcements because employees could not ‘‘work for
two bosses’’ and he tried not to supervise employees any-
more than was absolutely necessary.
I am persuaded counsel for the General Counsel failed to
establish a prima facie showing that protected conduct was
a motivating factor in the Company’s decision not to oper-
ate—produce coal—on April 5, 1989. Counsel for the Gen-
eral Counsel failed to demonstrate the Company could have,
but did not, operate on that day. In fact, Williamson, a wit-
ness for counsel for the General Counsel, testified the dryer
was out at the plant and the Company could not produce coal
without it being operational. There were other problems at
the plant as well on that date. Again, it was Williamson who
testified that he had to repair coal shakers on that day.
Williamson also testified there was so much maintenance
work to be performed that day that he and two other employ-
ees with the skills necessary to bring about the needed re-
pairs had to split into separate repair teams. I note there was
nothing unusual about the Company telling its employees a
day ahead of time there would be no work the following day.
It had not been the Company’s practice to announce to its
employees the nature of the problem or problems that caused
the facility not to be operational. Furthermore, the Company
had no incentive to be out of operation in that it only made
money if it produced coal. The fact the Company tried to
have its employees, panel members included, return to work
after the April 5, 1989 strike commenced mitigates against
a finding the Company discriminated against panel members
on April 5. In light of all the above, I conclude counsel for
the General Counsel failed to demonstrate there was work
available for Peery, Rife, Ball, and Couch on April 5, or that
the Company failed to schedule them to work because they
were panel members or because of any protected or union
activities on their part. Accordingly, I shall recommend that
paragraph 10 of the complaint be dismissed in its entirety.
CONCLUSIONS OF LAW
1. The Respondent, Ramar Coal Company, is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. The Union, United Mine Workers of America and Dis-
trict 28, United Mine Workers of America, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. The Respondent has not engaged in the unfair labor
practices alleged in the complaint.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended44
ORDER
The complaint is dismissed in its entirety.