Silverado Mining Co.

National Labor Relations Board - Board Decisions

Feb 28, 1994

313 N.L.R.B. 827 (N.L.R.B. 1994)

827
313 NLRB No. 141
SILVERADO MINING CO.
1 The Respondent has filed a ‘‘response to the NLRB proceeding’’
which does not except to any aspect of the judge’s decision, but lists
remedial measures it apparently is now offering to implement. The
General Counsel has filed no response. We find that the Respond-
ent’s response may more appropriately be considered in the compli-
ance stage of this proceeding.
2 We correct an apparent error in the judge’s findings that states
that the Respondent’s suspension of its employees for their union ac-
tivities lasted until August 5, 1993. The correct date is April 5,
1993.
Silverado Mining Company, Inc. and Road Fork
Trucking Company, Inc. and United Mine
Workers of America. Case 9–CA–30464
February 28, 1994
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND TRUESDALE
On October 28, 1993, Administrative Law Judge
Joel A. Harmatz issued the attached decision. The
General Counsel filed a limited exception and a sup-
porting brief in which he contends that the judge erred
by failing to find that the Respondent had engaged in
direct dealing with unit employees in violation of Sec-
tion 8(a)(5) and (1) of the Act.1
We find merit in the General Counsel’s exception.
The judge noted in his decision that he was not ruling
on whether the Respondent had engaged in direct deal-
ing with unit employees because the General Counsel
failed to allege that violation in the complaint issued
prior to the hearing. We have reviewed that complaint
and find that the judge overlooked paragraph 9(b),
which states:
About February 25, 1993, Respondents, by
Scherry Birchfield, at her office, bypassed the
Union and dealt directly with employees in the
Unit by soliciting employees to enter into individ-
ual contracts.
The complaint further alleges that this conduct violated
Section 8(a)(5) and (1) of the Act.
The judge also asserted that the direct dealing issue
had not been fully litigated relying on the erroneous
premise that Birchfield had not been implicated in any
unfair labor practice allegation. The record, as well as
the judge’s factual account, reveals that Scherry
Birchfield testified without contradiction that she, act-
ing as the Respondent’s agent, offered individual em-
ployment contracts to unit employees when the Re-
spondent knew that the Union represented them. Con-
sequently, we find that the issue has been fully and
fairly litigated and that the Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by bypassing the Union
and dealing directly with employees it represents. In
all other respects we affirm the judge’s rulings, find-
ings,2 and conclusions.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent,
Silverado Mining Company, Inc. and Road Fork
Trucking Company, Inc., Panther, West Virginia, its
officers, agents, successors, and assigns, shall take the
action set forth in the modified Order.
1. Insert as paragraph 1(g) and reletter the subse-
quent paragraphs.
‘‘(g) Bypassing the Union and dealing directly with
employees it represents.’’
2. Substitute the attached notice 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
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT declare that union organization would
be futile as the Company would never accept a union
or sign a contract.
WE WILL NOT inform laid-off employees that there
will be no work for those who refuse to accept our
offer of employment terms, but continue to insist on
collective bargaining.
WE WILL NOT offer wage increases only to employ-
ees who agree to reject the Union.
WE WILL NOT threaten to discharge those who per-
sist in seeking union representation.
WE WILL NOT interrogate employees concerning the
union activity of coworkers.
WE WILL NOT offer work to laid-off employees only
if they reject union representation.
WE WILL NOT discourage union membership by sus-
pending or in any other manner discriminating against
employees with respect to wages, hours, or other
terms, conditions, or tenure of employment.
WE WILL NOT bypass the Union and deal directly
with the employees it represents.
828 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Inadvertent errors in the official transcript of proceeding have
been noted and corrected.
WE WILL NOT refuse to recognize and bargain in
good faith with the Union concerning the wages,
hours, and working conditions of employees in the unit
appropriate for purposes of collective bargaining, de-
scribed below:
All employees employed at Respondent’s
Avondale, West Virginia mine, excluding all of-
fice clerical employees, professional employees,
guards and supervisors as defined in the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
WE WILL make whole, with interest, the employees
listed below for losses each sustained by reason of
their discriminatory suspension:
Willie Estep Scottie Justice
Dennis Justice Dexter Bailey
Roger Johnson James Cline
Amos Hicks
WE WILL, on request, bargain collectively and in
good faith concerning wages, hours, and other terms
and conditions of employment with the Union as the
exclusive representative of employees in the above-de-
scribed unit, and embody any understanding reached in
a signed agreement.
SILVERADO MINING COMPANY, INC.
AND ROAD FORK TRUCKING COMPANY,
INC.
James Horner, Esq., for the General Counsel.
Robert E. Blair, Esq., of Welch, West Virginia, for the Re-
spondent.
J. Sebert Pertee, International Representative, of Welch,
West Virginia, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge. This case
was tried in Beckley, West Virginia, on July 27 1993, upon
an original unfair labor practice charge filed on March 22,
1993, and a complaint issued on March 31, 1993, alleging
that the Respondent independently violated Section 8(a)(1)
by coercively interrogating employees concerning union ac-
tivity, by threats of discharge if employees refused to aban-
don union activity, by declaring that organization would be
futile as it would never execute a union contract, and by of-
fering benefits if employees agreed to reject union affiliation.
The complaint further alleged that the Respondent violated
Section 8(a)(3) and (1) of the Act by suspending seven em-
ployees in reprisal for union activity, and further violated
Section 8(a)(1) when the laid-off employees were subse-
quently informed that they would be reinstated only upon re-
nunciation of the Union. Finally, the complaint on authority
of NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), seeks
a remedial bargaining order on grounds that the violations of
Section 8(a)(1) and (3) are sufficiently serious to make the
possibility of a fair election in the future slight even if held
under protection of conventional Board remedies. Accord-
ingly, it is alleged that the employee desires evident from
their execution of union authorization cards is best protected
by a bargaining order, and that Respondent violated Section
8(a)(5) and (1) of the Act by refusing, upon request, to bar-
gain with the Union, as majority representative of said em-
ployees. In its filed answer, the Respondent denied that any
unfair labor practices were committed. Following close of the
hearing, a brief was filed on behalf of the General Counsel.
On the entire record,1 including my opportunity directly to
observe the witnesses while testifying and their demeanor,
and after considering the posthearing brief, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Silverado, a corporation, at times mate-
rial, has maintained an office in Panther, West Virginia, and
has been engaged in the operation of a bituminous coal mine
near Avondale, West Virginia. In the course of that oper-
ation, Respondent Silverado, during the 12-month period
prior to issuance of the complaint, sold and shipped from its
Avondale, West Virginia facility goods valued in excess of
$50,000 directly to Metcoal, Inc. (Metcoal), a nonretail enter-
prise located in the State of West Virginia.
At times material, Metcoal, a corporation, with an office
in Welch, West Virginia, has been engaged in the business
of purchasing and selling coal. During the 12-month period
prior to issuance of the complaint, Metcoal, sold and shipped
products from its Welch, West Virginia facility valued in ex-
cess of $50,000 directly to points located in the State of
West Virginia. At all times material, Metcoal has been en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
The complaint alleges, the answer does not deny, and I
find that, at all times material, Respondent Silverado has
been engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
The Respondent, Road Fork, a corporation, at times mate-
rial, from its facility in Panther, West Virginia, has been en-
gaged in the interstate transportation of coal by truck pursu-
ant to contract with Respondent Silverado.
At all times material, the Respondents, Silverado and Road
Fork, have been affiliated business enterprises with common
officers, ownership, directors, management and supervisors;
have formulated and administered a common labor policy af-
fecting employees of the Respondents; have shared common
premises and facilities; have provided services for each other;
and have held themselves out to the public as a single-inte-
grated business enterprise.
The complaint alleges, the answer admits, and I find that
Silverado and Road Fork (the Respondent), constitute a sin-
gle integrated business enterprise and a single employer
within the meaning of the Act.
829SILVERADO MINING CO.
2 All dates refer to 1993.
3 Employees were informed of the wage cut on February 9. See
G.C. Exhs. 4, 6, and 7.
4 No operations had been scheduled for the mine that day.
5 G.C. Exhs. 3(a) through (g).
6 While Bailey’s remarks to the organizers evidenced a strong
union animus, the General Counsel concedes that, as no employees
were within earshot, no violation inured in this respect. To further
clarify, I have not overlooked testimony by employee Amos Hicks
that Pertee telephoned him that evening, and reported all of Howard
Bailey’s statements after he viewed the signed cards. Pertee’s elec-
tion to pass on these remarks to Amos Hicks was a matter of per-
sonal choice and was not the type of transcommunication that could
be binding upon the Respondent.
7 Birchfield, an admitted agent of the Respondent, and a freelance
bookkeeper, was retained by the Respondent to provide accounting
services.
Accordingly, I find that, at all times material, Respondent
Road Fork has been engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer does not deny, and I
find that the United Mine Workers of America (the Union)
is a labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Preliminary Statement
Prior to the events in issue here, the Respondent operated
a nonunion mine near Avondale, West Virginia, the sole site
involved in this proceeding. Organization activity began on
February 15, 1993,2 when one of the Respondent’s employ-
ees, Amos Hicks, contacted Sebert Pertee, a UMW Inter-
national representative. Pertee was informed that, as of Feb-
ruary 16, daily wages at the Respondent’s mine were to be
cut from $90 to $80,3 and for that reason the employees
sought union intervention.
Pertee met with the employees on Wednesday, February
17.4 All seven employees attended. Pertee was accompanied
by another UMW International representative, Bernard
Evans. The employees complained that they were not making
a living adequate to support their families, and requested that
the UMW bargain for them. They were informed as to the
procedures. All seven employees used that occasion to sign
authorization cards.5
Immediately after the meeting, Pertee and Evans drove to
the mine where they introduced themselves to Howard Bai-
ley, the former president and owner of the Respondent, and
husband of the current president and owner. Pertee informed
the latter that they had just met with the employees and all
signed authorization cards indicating their desire for rep-
resentation by the UMW. Pertee advised Bailey that he
would ‘‘like to set a date with him to sit down and negotiate
a contract.’’ Bailey responded, ‘‘Well, you’ve just fired all
those men.’’ Pertee stated that he did not want them to be
fired. He explained that they want to be represented by the
UMW and he was there for that purpose. Bailey then stated,
‘‘This mine . . . is non-union and going to stay non-union,’’
adding that he could not afford the Union, inviting Pertee to
examine the Company’s books. Pertee declined with the ob-
servation that he was not versed in such matters, adding that
the Union had auditors, who if necessary would do so.
During the conversation, all seven authorization cards were
presented to Howard Bailey, who, together with Michael An-
derson, the Respondent’s vice president, examined them indi-
vidually, leading the latter to state, ‘‘That’s all of them ex-
cept the boss.’’ Bailey reminded the union representatives
that the mine would remain nonunion, and reiterated that
‘‘them men just fired themselves when they signed them
cards.’’6 Nevertheless, the meeting ended with an exchange
of telephone numbers.
That same evening, at about 9 p.m., Pertee received a tele-
phone call from Howard Bailey. The latter advised that he
had authorized Scherry Birchfield to show Pertee the books
which would prove that he was broke, and that he had over-
drawn checks.7 He again urged Pertee to examine the books.
Shortly thereafter, Pertee received a telephone call from
Birchfield. She informed Pertee that she had been authorized
to show him the books, and informed as to her availability
to facilitate the inspection, while reenforcing Howard Bai-
ley’s plea that he was not making money and had ‘‘several
bad checks out.’’
About 15 minutes later, Bailey again telephoned Pertee.
He inquired as to whether Pertee had been contacted by
Birchfield, and stressed that he could not afford to go Union.
Pertee replied that ‘‘everything was negotiable,’’ but that he
was incapable of reviewing the books and would not do so.
B. The Threshold Unfair labor Practices
1. The telephone calls of February 17
The complaint alleges that the Respondent violated Section
8(a)(1) when on or about February 17, David Cline, the mine
supervisor, telephoned the employees and interrogated them
concerning union activity, while threatening discharge if it
persisted.
Amos Hicks testified that, after the September 17 meeting
with the union representatives, David Cline telephoned, stat-
ing:
Amos, I didn’t think this of you. . . . I thought that
you wasn’t a troublemaker . . . but I believe you’re an
instigator and a union radical. . . . [F]urthermore, I
don’t believe I can work with you, Dexter[,] Bailey or
Willie Estep in the future . . . I thought you were a
good guy to work with and I had a lot of confidence
in you.
In addition, according to Hicks’ uncontradicted testimony,
Cline indicated that he wanted the men to rescind the union
cards, stating that there was work, but if they did not do so,
and it goes union ‘‘there won’t be no more work.’’
Another employee, Dexter Bailey, testified to a similar
call. He avers that Cline declared that ‘‘there would be no
more work because of the signing of the cards and trying to
get Howard to go Union.’’ Dexter Bailey replied that the
men would be there the next morning and they could discuss
830 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Scott Justice testified that on September 17, David Cline tele-
phoned him to report that there would be no work until further no-
tice, while offering no explanation as to why.
9 James Cline is the brother of mine supervisor, David Cline.
10 When Pertee attempted to introduce Howard Bailey to Acord as
the ‘‘owner of the mines,’’ Bailey denied that this was the case. In
this respect, it appears that Howard Bailey some months earlier
transferred ownership to his wife, Ruth Bailey, in a transaction un-
supported by any consideration. Ruth Bailey testified that she took
no active role in the business, which continued to be managed by
her husband.
11 Only six employees were present. James Cline, the brother of
Supervisor David Cline, was not with the others, but he was at the
mine itself.
Howard Bailey’s proposal then. Cline stated, ‘‘No, he
wouldn’t be there . . . there wouldn’t be no more work.’’8
The facts do not substantiate any unlawful interrogation.
However, based upon the credited testimony of Hicks and
Dexter Bailey, I find that the Respondent violated Section
8(a)(1) when David Cline threatened that they would lose
their jobs as a reprisal for union activity.
2. The suspension and related events
a. The February 18 shutdown
On February 18, the miners, with the exception of James
Cline, reported to work.9 This effort was frustrated because,
no one from supervision or management was present. The
men waited for about an hour-and-a-half, but when no one
from management appeared, they left.
b. The February 19 meeting
Later on February 18, the Respondent informed the em-
ployees that a meeting would be held at the mine the next
day. It was attended by all seven employees. At their invita-
tion, Pertee appeared, along with Everett Acord, the president
of UMW, District 29.10
Bailey opened the meeting by stating that he wanted the
men to vote ‘‘right there in the mine office, in everbody’s
presence, on whether they wanted to keep their jobs or not.’’
Pertee replied that ‘‘if there’s an election conducted here
. . . the National Labor Relations Board will conduct it, not
you.’’ Bailey became upset, repeating that:
[T]he mines was non-union and was going to stay that
way, and, if the men worked there, that he would not
sign nothing with [Pertee’s] . . . name on it, or the
United Mine Workers’ name. [Emphasis added.]
Nevertheless, Pertee made an offer to resolve the matter, as
follows:
(1) The men would be returned to work at a rate of
$100 daily.
(2) The men would receive a hospital card.
Bailey reacted by stating that there would be no contract
with the Union and that if there were a contract ‘‘it would
be between him and the men, and nothing to do with the
Union.’’ Bailey then indicated that he would have an attor-
ney and Birchfield draft a ‘‘statement,’’ which would be no-
tarized and signed by the individual employees, ‘‘because I
won’t fire them if they perform their duties, if they do their
work.’’ Pertee replied:
[The] men didn’t want to sign nothing, that I was will-
ing to set down and try to negotiate a contract for them
men.
Bailey then reiterated that he would not sign a contract with
Pertee or the UMW.
Nevertheless, the union representatives then caucused with
the employees. The employees indicated that they would be
willing to accept $90 per day and the promise of a hospital
card in 90 days. However, before their proposal could be
communicated, Bailey had left the site.
The foregoing substantiates that during the February 19
meeting the Respondent violated Section 8(a)(1) of the Act
when Howard Bailey implied that there would be no work
for the men who refused his offer of individual employment
contracts, while declaring that he would never enter any
agreement with the Union.
c. The February 22 meeting
Howard Bailey scheduled a second meeting with the men
for February 22 at 1 p.m. At the appointed time, Pertee, who
had been alerted by Hicks to Bailey’s intention, met the em-
ployees and escorted them to the mine office.11 At the outset,
Bailey asked Pertee for his proposal. Pertee replied that they
would take $90 a day and a grievance procedure to protect
their jobs ‘‘from unlawful firing.’’ Bailey replied that if the
men go back to work, it would be under his terms. He re-
peated that the mine was nonunion, would stay that way, and
that he would not sign a contract with the Union. He said
that the men were aware of his proposal and that he would
provide a medical card when he could afford it. He added
that there was a document at the bookkeeper’s office and that
‘‘the men could go down there and sign it and go to work
tomorrow under his conditions.’’
The complaint alleges that the Respondent violated Section
8(a)(1) when on Monday, February 22, Howard Bailey of-
fered wage increases if the employees agreed to reject the
Union, but discharge if they continued to insist that the Re-
spondent execute a collective-bargaining agreement with the
Union. I agree that the plain meaning of Howard Bailey’s re-
marks on that occasion was that the employees could return
to work, but only upon acceptance of his terms, which did
in fact provide for a wage increase. (See G.C. Exh. 2.) In
both respects, the Respondent thereby violated Section
8(a)(1) of the Act.
The February 22 meeting would prove to be the last con-
tact between the Union and the Respondent. On March 5, the
Union filed the initial unfair labor practice charge in this pro-
ceeding.
d. The interrogation of February 22
The complaint alleges that the Respondent violated Section
8(a)(1) when on February 22, David Cline interrogated an
employee concerning union activity of coworkers.
Dexter Bailey testified that on February 22, David Cline
called him at home, asking who had started all the trouble.
Bailey replied that all had signed cards, so all were respon-
sible. Cline stated that if they did not want to work for $80
831SILVERADO MINING CO.
12 Scott Justice testified that he also received a call from Cline that
evening, in which Cline simply asked how the meeting had gone.
Justice then explained the Union’s proposal. This was not an inquiry
as to any matter likely to impede organizational activity, and any
8(a)(1) allegation based thereon is dismissed.
13 Birchfield could not recall that any employee requested a copy
of the document. Dexter Bailey testified that he requested a copy,
but Birchfield refused.
14 By way of posthearing brief, the General Counsel for the first
time argues that the Respondent violated Sec. 8(a)(5) and (1) of the
Act when Birchfield engaged in ‘‘direct dealing’’ with the employ-
ees. In this regard, I note that Birchfield was admitted to be an agent
by the Respondent, as part of a complaint that, as drafted and
amended, implicated her in not a single unfair labor practice allega-
tion. At the same time, I cannot accept that the General Counsel,
prior to hearing did not have clear evidence as to her role in this
matter. Aside from the fact that the issue was not fully litigated, I
find it difficult to attribute an omission of such proportion to ordi-
nary neglect. No finding is made with respect to the merits of this
unalleged contention.
15 Cline’s March 1 remark to the suspended employees is among
several obvious violations which are not alleged in the complaint.
The General Counsel added 8(a)(1) allegations at the hearing, but of-
fered no explanation as to why these additional offenses had been
omitted. Where relief is sought under Gissel, it seems inexcusable
to go to the trouble of adducing evidence as to serious misconduct,
while allowing them to go unpled either through the original com-
plaint or amendment. Nevertheless, here as in other instances, con-
sidering the failure of the Respondent’s counsel to cross-examine on
these issues, while not presenting an evidentiary case, I am unwilling
to conclude that the unalleged unfair labor practices were litigated
under conditions sufficient to warrant redress.
a day, the men should not have taken the job to start with.
Ultimately, they argued until Dexter Bailey hung up. The in-
quiry, in context of Cline’s remark that the employees were
wrong in accepting employment, while grieving the wage
cut, was coercive under any standards. Accordingly, I find
that the Respondent violated Section 8(a)(1) in this respect.12
e. The offers of February 25
On or about February 22, Howard Bailey contacted
Scherry Birchfield, advising that he was interested in getting
the men back to work and reopening the mines, and, to that
end, he instructed her to draft individual agreements provid-
ing for a daily straight time wage of $90. The terms were
never shown to the Union. Each proposed as follows:
1. I will agree [to] work for Silverado Mining Com-
pany for $11.25 per hour based upon a 40 hr. work
week, with overtime in excess of the 40 hours.
2. When Silverado Mining Company becomes more
financially stable and can afford to, the company will
furnish each employee with a medical card. [G.C. Exh.
2.]
The employees traditionally were paid at the mine site.
However, on February 25 they were directed to pick up their
paychecks at Birchfield’s office. According to Birchfield, as
the employees reported to her office to collect their pay, she
asked them to review the agreement and sign if they wished.
All refused to sign without union representation.13 For exam-
ple, Amos Hicks testified that after he refused, Birchfield
said, ‘‘I can tell you now, Howard won’t be Union.’’ Dexter
Bailey and Willie Estep testified to similar exchanges with
Birchfield.14
In addition, along with their paycheck, each was given the
following document, which bore the signature of Ruth Bai-
ley:
Work is scheduled to resume at your regular shift on
March 1, 1993. If you do not report to work, your em-
ployment will be terminated. [G.C. Exh. 5.]
As far as this record discloses, this was the first offer of em-
ployment to the employees since the February 18 shutdown
that, at least facially, was not contingent upon repudiation of
the Union.
f. March 1; the men report to work
On March 1, Amos Hicks, Willie Estep, Scottie Justice,
Dexter Bailey, and Dennis Justice reported for work at about
5:30 a.m. According to Hicks’ credited, undenied testimony,
David Cline addressed them as follows:
[I]f you think that this job is going to be Union, there
will be no work at this mine. . . . [I]f you boys want
to pull them Union cards, . . . there will be work, but
if you don’t, there will be no work.
Cline stated that there would be no work for them that day.15
g. Concluding findings as to the suspension
As indicated, in late February, the men were informed in
writing that they would be recalled. However, they did not
actually return to work until April 5. Subsequently, they
again were laid off on April 9 due to a major equipment
breakdown. The complaint includes no challenge to the legit-
imacy of the April 9 layoff.
As for the shutdown prior to April 5, apart from the ele-
ments of timing and general union animus, in this instance,
the prima facie evidence of a proscribed motive includes
credited, undenied evidence that the men were told by David
Cline that work was available, but only if the employees re-
pudiated their support of the Union. For this reason, and as
the Respondent has declined to provide any other explanation
for the denial of work during the interim, I find that the Re-
spondent violated Section 8(a)(3) and (1) of the Act by the
suspension of its employees between February 18 and Au-
gust 5.
h. The conditional offers of reinstatement
At the hearing, the complaint was amended to include alle-
gations that Howard Bailey on March 25, and David Cline
on April 16, offered reinstatement to various employees con-
tingent on their withdrawal of union support. I have been ad-
vised, and am aware of no evidence substantiating the March
25 conduct imputed to Howard Bailey.
As for David Cline, Dexter Bailey testified that on April
16, David Cline called him and asked if the men would vote
to go nonunion in exchange for employment at $100 a day
and a hospital card when it could be afforded. Bailey replied
that he would do whatever the other men elected to do.
Amos Hicks testified that on or about April 19, David
Cline telephoned him, and apologized for calling Hicks a
union radical, instigator, and troublemaker. He explained that
832 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 Howard Bailey, the former owner, and husband of the present
owner; Michael Anderson, a vice president; the Bailey’s son-in-law;
and David Cline, the mine supervisor was also involved in the oper-
ation of the mine. Their exclusion from the unit is warranted on the
basis of undenied allegations in the complaint and the testimony of
Ruth Bailey, the president and owner.
Howard Bailey shut down the mine out of anger at the paper
he received from the Union, adding that the men could work
for him if they rescinded their union cards. If they did, Cline
stated that he would try to work something out with Howard
Bailey so that the men would receive the $90 straight time
daily wage and a hospital card. Hicks replied that it was not
up to the men, but the NLRB and the Union.
The testimony of Hicks and Dexter Bailey has not been
refuted and based thereon I find that the Respondent violated
Section 8(a)(1) of the Act by additional offers of employ-
ment contingent upon employee rejection of union represen-
tation.
C. The Alleged Refusal to Bargain
1. The appropriate unit
The complaint alleges that the following employees con-
stitute an appropriate unit within the meaning of Section 9(b)
of the Act:
All employees employed at Respondent’s Avondale,
West Virginia mine, excluding all office clerical em-
ployees, professional employees, guards and supervisors
as defined in the Act.
There is no challenge to the propriety of this unit, which is
the analogue of a presumptively appropriate single plant unit.
See, e.g., Hegins Corp., 255 NLRB 160 (1981); Penn Color,
Inc., 249 NLRB 1117, 1119 (1980). I find, as alleged in the
complaint that the above employees constitute a unit appro-
priate for purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act.
2. The demand for recognition
There was no written demand. However, the Respondent
admits the allegation that on February 17, the Union orally
requested recognition and that the Respondent bargain collec-
tively with it as the exclusive representative of employees in
the appropriate unit. It is concluded that this was the case.
3. The Union’s majority
Testimony reveals that at the time of the events in issue
here, the following employees were employed in the above-
described unit:
Willie Estep Scottie Justice
Dennis Justice Dexter Bailey
Roger Johnson James Cline
Amos Hicks16
Union Representative Pertee testified that he personally
witnessed execution of cards by all seven employees at the
meeting held on Wednesday, February 17. His testimony as
to all seven cards was corroborated by that of employees
Amos Hicks and Dexter Bailey. Moreover, Howard Bailey
and Michael Anderson do not deny that, on February 17,
they examined all seven cards. I find that the credited testi-
mony establishes that on February 17, all seven of the em-
ployees in the appropriate unit executed valid, single pur-
pose, authorization cards, designating the Union as their bar-
gaining representative.
4. The appropriateness of a bargaining order
This is a case where immediately after the Respondent was
presented unmistakable evidence that all unit employees had
designated the Union, it sought to defeat employee choice by
a campaign of ‘‘hallmark’’ violations. See, e.g., Astro Print-
ing Services, 300 NLRB 1028 (1990). The effort to thwart
unionization was waged by the Respondent’s operating offi-
cials who served at the highest levels. Vemco, Inc., 304
NLRB 911 (1991). It opened with Howard Bailey’s firm,
later to become persistent, declaration that the mine would
not be operated on a union basis and that he would never
sign a collective-bargaining agreement. Assurance that this
would be the case was simultaneously demonstrated by the
February shutdown of the mine, which dislocated the entire
work force without indication of whether the loss of work
would be temporary or permanent. Four days later the em-
ployees were informed that they would be permitted to return
to work. However, to do so, would require rejection of the
Union. This ‘‘bitter-sweet’’ proposal was capped by an offer
to restore the $10 cut in daily wages and the promise of a
hospital card when fiscal conditions permitted—an offer de-
signed to neutralize the ‘‘very problem that had led employ-
ees to seek union representation in the first place.’’ See Cell
Agricultural Mfg. Co., 311 NLRB 1228 (1993). Moreover, as
in that case:
[T]he layoff and recall served abrupt, graphic, and in-
delible notice on all employees that the Respondent
controlled their employment, to the exclusion of any
outside agency that might seek an improvement in their
conditions of employment.
Even after the unlawful suspension, the lingering effects of
this dramatic action affecting the entire bargaining unit were
rekindled when David Cline again informed an employee
that work would be contingent upon rejection of the Union.
In this light, the unlikelihood that consequences of these
serious unfair labor practices might be erased by the passage
of time or pursuant to traditional Board remedies impels the
conclusion that the ‘‘cards . . . [are] . . . the most effec-
tive—perhaps, the only—way of assuring employee choice.’’
NLRB v. Gissel Packing Co., 395 U.S. at 602. I find that a
bargaining order is an appropriate form of corrective relief
in this proceeding, and that the Respondent violated Section
8(a)(5) and (1) of the Act by refusing, on request, since Feb-
ruary 17, 1993, to recognize and bargain with the Union as
exclusive representative of employees in the appropriate unit.
Interstate Truck Parts, 312 NLRB 661 (1993).
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act
when on February 19, Howard Bailey implied that there
833SILVERADO MINING CO.
17 If no exceptions are filed as provided by Sec. l02.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. l02.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
would be no work for the men who refused his offer of indi-
vidual employment contracts, while declaring that he would
never enter any agreement with the Union.
4. The Respondent violated Section 8(a)(1) when on Feb-
ruary 22, Howard Bailey offered wage increases to employ-
ees who agreed to reject the Union, but threatened discharge
in the case of those who persisted in seeking union represen-
tation.
5. The Respondent violated Section 8(a)(1) when David
Cline, on February 22, interrogated an employee concerning
the union activity of coworkers.
6. The Respondent violated Section 8(a)(1) of the Act on
April 16 and 19, when David Cline offered work to laid-off
employees if they rejected union representation.
7. The Respondent violated Section 8(a)(3) and (1) of the
Act by suspending employees listed below between February
18 and April 5, 1992, in reprisal for their union activity.
Willie Estep Scottie Justice
Dennis Justice Dexter Bailey
Roger Johnson James Cline
Amos Hicks
8. The following employees constitute a unit appropriate
for purposes of collective bargaining within the meaning of
Section 9(b) of the Act:
All employees employed at Respondent’s Avondale,
West Virginia mine, excluding all office clerical em-
ployees, professional employees, guards and supervisors
as defined in the Act.
9. At all times since February 17, 1993, the Union has
been designated by a majority of unit employees and is the
exclusive bargaining representative of said employees.
10. The Respondent, at all times since February 17, 1993,
has violated Section 8(a)(5) and (1) of the Act by refusing,
on request, to recognize and bargain with the Union.
11. The unfair labor practices found above have an effect
upon commerce within the meaning of Section 2(6) and (7)
of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, it shall be recommended that it be or-
dered to cease and desist therefrom, and to take certain af-
firmative action deemed necessary to effectuate the policies
of the Act.
The Respondent, having suspended its seven employees
unlawfully shall be ordered to make them whole for loss of
wages and benefits incurred between February 18, 1993, and
April 5, 1993, when they were recalled under conditions not
shown to have been inappropriate. Backpay due under the
terms of this recommended order shall include interest as au-
thorized in New Horizons for the Retarded, 283 NLRB 1173
(1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended17
ORDER
The Respondent, Silverado Mining Company, Inc., and
Road Fork Trucking Co., Panther, West Virginia, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Declaring that union organization would be futile as
the Company would never accept a union or sign a contract.
(b) Informing laid-off employees that there would be no
work for those who refuse to accept the Respondent’s offer
of employment terms, but continue to insist upon collective
bargaining.
(c) Offering wage increases to employees who agreed to
reject the Union, while threatening to discharge those who
persist in seeking union representation.
(d) Interrogating employees concerning the union activity
of coworkers.
(e) Offering work to laid-off employees if they reject
union representation.
(f) Discouraging union membership, by suspending or in
any other manner discriminating against employees with re-
spect to wages, hours, or other terms and conditions or ten-
ure of employment.
(g) Refusing to recognize and bargain in good faith with
the Union concerning the wages, hours, and working condi-
tions of employees in the unit appropriate for purposes of
collective bargaining, described below:
All employees employed at Respondent’s Avondale,
West Virginia mine, excluding all office clerical em-
ployees, professional employees, guards and supervisors
as defined in the Act.
(h) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make whole, with interest, the employees listed below
for losses each sustained by reason of their discriminatory
suspension:
Willie Estep Scottie Justice
Dennis Justice Dexter Bailey
Roger Johnson James Cline
Amos Hicks
(b) Preserve and, on request, make available to the Board
and its agents for examination and copying, all payroll
records, social security records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(c) Upon request, bargain collectively and in good faith
concerning wages, hours, and other terms and conditions of
employment with the Union as the exclusive representative
of employees in the above-described unit, and embody any
understanding reached in a signed agreement.
(d) Post at its facilities in Panther, West Virginia, and any
other location where notices to employees are customarily
834 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
posted, copies of the attached notice marked ‘‘Appendix.’’18
Copies of the notice, on forms provided by the Regional Di-
rector for Region 9, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.