Wilco Energy Corp.

National Labor Relations Board - Board Decisions

Dec 6, 1979

246 N.L.R.B. 851 (N.L.R.B. 1979)

Wilco Energy Corporation and United Mine Workers
of America. Case 26 CA 7454
December 6, 1979
DECISION AND ORDER
BY MEMIIRS PINII.(). Mt KRI'IIY, ANI) TRI SI)AI
On August 2. 1979. Administrative l.aw Judge
Robert A. Gritta issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the Charging Party filed
an answerirng brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its alu-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of' the exceptions and briefs
and has decided to affirm the rulings, findings.' and
conclusions of the Administrative .aw Judge and to
adopt his recommended Order, as modified herein. 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge. as modified be-
low, and hereby orders that the Respondent. Wilco
Energy Corporation, Ozark. Arkansas, its officers.
agents, successors, and assigns. shall take the action
set forth in the said recommended Order, as so modi-
fied:
I Respondent has excepted to certain credihility findings made by the Ad-
ministrative Law Judge. It excepts particularly to his discrediting of Plant
Supenntendent Marlow's version of the events leading to the discharges of
employees Dalton and Bjorgum on the ground that earlier in his Decision
the Administrative Law Judge found Marlow to be a "sincere witness" with
regard to his testimony on another issue. We note. however. that an admin-
istrative law judge is not required to credit all of a witness' testimony he-
cause he is persuaded by some of it. Nothing is more common than to believe
some and not all of what a witness says. N. ..R B. v. L'niversal Camera Cor-
poration. 179 F.2d 749 (2d Cir. 1950). See also Krisp Kreme Doughnut Corp.,
245 NLRB No. 135 1979). and ,iaximum Precision Metal Products, Inc,
Renault Stamping Lid. 236 NL.RB 1417 1978). Furthermore. it is the
Board's established policy not to overrule an administrative law judge's reso-
lutions with respect to credibiliyl unless the clear preponderance of all of the
relevant evidence convinces us that the resolutions are incorrecl. Standard
Dn, Wall Products, Inc., 91 NLRB 544 1950), enfd. 188 F 2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for reversing
his findings.
I In par. I(b) of his recommended Order, the Administrative Law Judge
used the broad ccase-and-desist language "in any other manner" HoAever,
we have considered this case In light of the standards set forth in Ilickmott
Foods. Inc., 242 NLRB 1357 (1979), and have concluded that a broad reme-
dial order is inappropriate inasmuch as it has not been shown that Respon-
dent has a proclivity to violate the Act or has engaged in such egregious or
widespread misconduct as to demonstrate a general disregard for the em-
ployees' fundamental statutory rights. Accordingls. we have modified the
recommended Order by substituting the narrow injunctive language, "in any
like or related manner"
STRAI[S (OMMI NIA I ONS. IN(C.
I. Substitute the following for paragraph Ib):
(b) In anv like or related manner interferine with.
restraining, or coercing employees in the exercise of
their rights guaranteed in Section 7 of the Act."
2. Substitute the attached notice for that of the
Administrative l.aw Judge.
APP(N L)IX
No I IE To EMPI .OYEIis
POS11) BY ORI):R OF IiL
NAII()NAl. LAB()R R I IIONS BARI)
An Agency of the United States Government
After a hearing at which all parties were given an
opp(ortulit to present evidence and argument. it has
been determined that we violated the lavw bh commit-
ting unfair labor practices. In order to remed5 such
conduct, we are being required to post this notice. We
intend to comply with this requirement and to abide
by the tfollowing commitients.
WI \vt.I. N)I discharge, lay off, or otherwise
discriminate against any employee in order to
discourage membership in or support of United
Mine Workers of America, or any other labor
organization.
WF \VILL. NOt in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their rights guaranteed in Section
7 of the National Labor Relations Act.
WE WII.I. offer to George Dalton and Jerry
Bjorgum immediate and full reinstatement to
their former positions or, if those positions no
longer exist, to substantially equivalent positions.
without prejudice to their seniority or other
rights and privileges, and WF wIL. make them
whole for any loss of earnings or benefits which
they may have suffered by reason of our dis-
crimination against them, with interest thereon
as provided by the National Labor Relations
Board.
Wi.tco ENERGY CORPORATION
DECISION
SrAItMINI 01 Tlil CAssi
ROBERI A. GRIt1TA, Administrative Law Judge: This case
\was heard on January 25. 1979. in Ozark. Arkansas. based
on charges filed by United Mine Workers of America
(herein referred to as Union) on October 16 and 26 and
November 6. 1978. and a complaint issued by the Regional
Director for Region 26 of the National Labor Relations
Board on November 9. 1978.' The complaint alleges that
Wilco nergy (Corporation (herein Respondent) violated
i All dates herein are in 1978 unless otherilse specified.
246 NLRB No. 138
81
DECISIONS OF NATIONAL LABOR REL.ATIONS BOARD
Section 8(a)(l) and (3) of the National Labor Relations Act.
as amended, by threatening employees with closure of' the
business if the Union was selected to represent the employ-
ees and by discharging employees for engaging in union
activities. Respondent's timely answer denied the commis-
sion of any unfair labor practices.
All parties hereto were afforded full opportunity to be
heard, to examine and cross-examine witnesses, to intro-
duce evidence, and to argue orally. Briefs were submitted
by General Counsel, Respondent, and the Charging Party.
All briefs were duly considered.
Upon the entire record in this case and from my observa-
tion of the witnesses and their demeanor on the witness
stand, antid upon substantive, reliable evidence considered
along with the consistency and inherent probability of, testi-
mony. I make the following:
FININ(iS () FA( I
I. J RISI)I( I)N AND) SIAILtS t lABOR ()R(ANIZAII)N
F'RI I MLINARY (ON(tIA S(INS OF l.AS
The complaint alleges, Respondent admits, and I find
that Wilco Energy Corporation is an Arkansas corporation
engaged in the mining and sale of coal in Ozark. Arkansas.
Respondent. in the past 12 months, in the course and con-
duct of its business operations purchased and received at its
Ozark. Arkansas. facility goods and materials valued in ex-
cess of $50,000 directly from points located outside the
State of Arkansas. In addition the Board previously as-
serted jurisdiction over Respondent in Case 26 RC 5854
issuing a Decision and Direction of Election on October 13.
1978. Therefore. I conclude and find that Wilco Energy
Corporation is an employer engaged in commerce and in
operations affecting commerce within the meaning of Sec-
tion 2(2), (6). and (7) of the Act.
The complaint alleges, Respondent admits, and I con-
clude and find that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
II. BUSINFSS OF RLSPONDEN I
Respondent owns and operates several strip coal mines.
The only mine involved in this proceeding is the Turkey
Run Mine. Respondent operated Turkey Run for several
months under the management of President/General Man-
ager Bessinger and Superintendent Leppala. On August 15
the owners replaced Bessinger with David Duplantier. Part
owner, Bill Lagnion on August 18 hired William Marlow as
pit boss over the mine. Marlow immediately had responsi-
bility for the mining operation and personnel whereas Lep-
pala retained only the responsibility for the machines and
the mechanics. On August 22 Marlow eliminated the night
shift. putting all three employees on the day shift. With nine
employees total the mine became a one-shift operation.
Leppala remained in the machine repair shop as supervisor
until August 30, at which time he left Respondent's employ
to work for Bessinger in another State. Marlow then be-
came superintendent of the entire operation.2
2 There is no dispute on the ahove facts albeit no witness could testif to
chronology. However. the record does contain an exhibit with dates.
It. IliTE AI.It(;il) tNi-AIR ABO(R iRA(i( ES
A. hrelr.s of (/.os vre
Superintendent Marlow testified that "the first time I
knew the Union was going to be in the mine was when
some fellow called me from l.ittle Rock. the same fellow
that we had the hearing with at Fort Smith." After the call
from the Board agent and when all the employees were
eating dinner they were discussing the possible advent of
the Union. "I said. 'With a six inch vein of coal and the
price you're getting out of' it, if it goes union, there is now
wray any company could mine it as high as things is.' That's
all that was ever said. It wasn't said to one man, it was said
to the whole crowd, just talking. Further testimony of the
same conversation was, "I don't see how in the world, if it
goes union. on a six inch vein of coal, and pay union wages,
as high as equipment and stuff is, and tires and stuff- 'we
had just paid $6,800 for a tire' that you can go ahead and
mine, because there ain't no way." The conversation oc-
curred at the mine where the employees gather daily to eat
lunch.
Bankston testified that during the lunch gathering under
the big tree, on one occasion, most of the mine employees
were discussing the Union. Bankston stated, "Oh, we just
sat there at noon and talked about if it did, if it went union,
that they couldn't make it. because the coal wouldn't be
thick enough for it to pay the higher wages, and the expense
to operate the mine." Marlow said more or less that, if it
went union, they might have to shut down on account of
the coal being thin. The employees gathered each day
thereafter but did not discuss the Union at the mine again.
Bankston could not place the date of the single discussion
of the Union at the mine during lunch.'
Discussion and Conclusions
The General Counsel made no argument in his brief on
the alleged threat. The Charging Party did however argue
the Gissel I[N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S.
575 (1969)] rationale relative to employer predictions of
dire consequences if a union is selected. Albeit, the argu-
ment is an accurate presentation of the Court's view of Gis-
sel/ and the objective standards needed to support employer
statements, the necessary elements are not present to apply
such a holding. Thus, the statement made by Respondent's
representative did not contain a threat of reprisal, or force
or promise of benefit. The statement was not made to a
captive audience as suggested by the Charging Party but
rather was conversational during a voluntary lunch gather-
ing of employees and supervision. Respondent's witness on
cross did supply testimony that a threat "more or less" was
made. In addition Respondent's witness corroborated the
General Counsel's witness that the conversation took place
on only one occasion although the group met in the same
spot for lunch thereafter. I consider the statement by Mar-
low to be a discussion of economics rather than a threat to
close the mine. The employees were all discussing the possi-
ble advent of the Union and realistically any such discus-
Both Marlow and Bankston impressed me as sincere witnesses attempt-
irg to recall the acts as hey happened.
852
WILCO ENERGY (CORPORATION
sion includes the influence of the Union's presence on pro-
duction economics. Additionally. Marlow, neither
impliedly or expressly. conditioned any closing of the mine
upon the Union winning the election. The evidence, there-
fore, is insufficient to establish a threat on the one occasion
of September 20 and nonexistent relative to any threat on
September 25. Accordingly. I conclude and find that Re-
spondent did not threaten employees with closure of the
mine if it went Union.
B. The Discharges
George Dalton was initially hired by Respondent on July
3, 1977, at $3.75 an hour. He was number one in seniority
as of June 1978. Dalton began his employment in the King
mine, but with the other employees was transferred to the
Turkey Run mine after several months. During his employ-
ment at the King mine, Dalton received several periodic
increases in pay and upgrading of classification culminating
in Dozer operator. Upon his transfer to Turkey Run he
worked days as a dozer operator at $5 an hour. After sev-
eral months at Turkey Run Respondent instituted a night
shift and transferred Dalton to nights as leadman at $6.25
an hour. Jerry Bjorgum and Darrell Chavers were the other
night-shift employees comprising the night shift. The night-
shift employees got their instructions from Leppala through
Dalton.
On August 21 Dalton was notified by Bjorgum that he
had set up a meeting with a union representative fobr that
day in a local motel. Dalton, Bjorgum, and Ernest Hern
met in the motel restaurant preparatory to meeting the
union representative. After discussing unionization of Tur-
key Run for several minutes they were noticed by the per-
son in the booth next to them. It was Bill Lagnion, one of
the mine stockholders. Several minutes later Lagnion left
and Dalton and the others met with the union representa-
tive. The next day Superintendent Marlow eliminated the
night shift moving the three employees to days. At this time
the former night-shift employees began receiving their
instructions from Marlow. Chavers then left the employ of
Respondent rather than work days. Dalton worked days.
under Marlow, as a dozer operator and at times with con-
flicting instructions from Marlow and Leppala. On Sunday.
August 27, Dalton was instructed by Marlow to work in the
pit moving rock with the caterpillar dozer. The caterpillar
had developed engine trouble sometime before and after an
overhaul was heating up. Employees had been instructed to
"watch the heat" and when it became overheated stop
working to let it idle to cool off. Dalton testified that the
dozer was heating up that day so he stopped pushing the
rock and informed Marlow and Leppala that it was hot.
Dalton was then instructed by Leppala to check oil and
take samples in the machinery. Dalton finished out the day
checking oil samples. The following morning as Dalton ar-
rived at the minesite he was met by Marlow who told him
he was letting him (Dalton) go because he could not get the
rock out of the pit and he was going to have to get some-
body else that could. Marlow then said that was all he had
to say about it. Marlow then walked back towards the job-
site. Several days later Dalton went to the main office of the
Company and picked up his separation slip marked as lay-
off for lack of work. Dalton further testified that during his
entire employment he had not received any warnings or
reprimands associated with his work or job performance.
Jerry Bjorgum was first employed in April to work in the
King mine as a mechanics helper at $3.75 an hour. After 30
days he was increased to $4 an hour. In Jul the King mine
was slowing so Bjorgum was laid off for a time. He was
later recalled to the Turkey Run mine as a dozer operator
at $5 an hour on the night shift under L.eppala's supervi-
sion.
Bjorgum initiated the union campaign at Turkey Run.
He testified, "Well, the campaign started when I got ahold
of a steward at a different mine. and he got ahold of some
officials from the United Mine Workers. and they called me
up. and made plans for a meeting." Bjorgum had previously
talked to Dalton about a union and when the meeting was
arranged he called Dalton.
The second meeting between the employees and the
union representative was set for August 21. Bjorgum. Dal-
ton, two Chavers boys, and Ernest Hern met at the motel
restaurant. While they waited for the union representative
they discussed getting cards signed for the Union among
the employees at Turkey Run. During this discussion the,
discovered that Bill Lagnion. a known stockholder in the
mine, was sitting in the booth directly behind them. During
the union discussion Lagnion acknowledged their presence
with a "Howdy." The employees thereupon changed the
subject of their discussion and Lagnion left the restaurant.
The next day the night shift was eliminated by Marlow.
Bjorgum moved to days as a dozer operator and mechanics
helper. When the dozer was down or the mechanic needed
help. Bjorgum was called on to give the help. Bjorgum also
drove a truck and swept coal.
Bjorgum also testified that l.eppala had cleared with
Marlow' an unrestricted use of Bjorgum whenever the me-
chanic needed help. The mechanic himself could seek out
Bjorgum and get him to come to the shop or where the
equipment was being worked on for his help.
On August 27 Marlow instructed Bjorgum to replace a
glass door in a loader that was in the shop. When he started
the job Leppala told him the loader was not important since
it was out of use due to other mechanical troubles. Leppala
then used Bjorgum for mechanic work the rest of the day.
At one point in the day Marlow asked him why the glass
was not installed and Bjorgum told Marlow that Leppala
told him to help the mechanic. Marlow did not ask again
about the glass.
The following morning Bjorgum and Dalton arrived at
work but before they got on company property Marlow
came to them and said he had to lay them off. Bjorgum
testified: "He told me that he had to lay me off because
everywhere he put me, I wasn't never there where he put
me. I was someplace else." Bjorgum stated that he had not
received any prior warnings or complaints about his work
from Marlow and he was the second man in seniority. Bjor-
gum got a termination slip from the Company which
showed he was laid off due to lack of work.
Superintendent Al Marlow testified that he was hired as
pit boss on August 18. After only a couple of days he elimi-
nated the night shift because the employees were not get-
ting anything done. Although Marlow was not present on
the night shift he did lay out instructions for each man at
the start of the shift. Marlow stated that anyone could tell if
853
DECISIONS OF NATIONAL I.ABOR RFLATIONS BOARD
the men did their jobs by the shape of things the following
morning. Marlow's hours were usually 7 a.m. to 5:30 p.m.
and the night shift started at 5:30 p.m. but he did not know
how long the shift worked.
On August 27 the crew was working at the mine. Marlow
told Dalton to take the D 8 tractor and push rock in the
pit. Dalton worked on the tractor for about an hour, then
came out of the pit and parked it. Marlow relates the fol-
lowing: "I asked him myself, I said, 's there anything
wrong with that tractor?' He said, 'No, but I hain't going
down there and push any more of that rock.' He said, 'Any-
body is crazy to ever put a man down there pushing that
rock.' I sat there a minute and I asked him, I said, 'Are you
going back?' He said, 'I told you I wasn't going back down
there.' I said, 'Well, I'm going to take it down there and try
it the rest of the evening and see how bad it is if you don't
care.' He said, 'Go ahead because I ain't.' " Marlow also
testified that Dalton just said that he was not going to push
that rock any more. He did not say that he could not push
it, he said he was not pushing it. Dalton said it was crazy
for a man to push rock with a dozer when there were load-
ers to carry it. Marlow stated that at no time did Dalton
mention the tractor overheating or getting hot.
Marlow took the tractor down and pushed rock for 2-1/2
hours until approximately 20 minutes to quitting time. He
brought the tractor out and asked where Dalton and Bjor-
gum were but they had punched out and left. Marlow
stated that both had punched out early that day: i.e., before
5:30 p.m. Marlow did not check the timecards of either
employee to ascertain when they punched out or whether
they had worked a full shift. At the time Marlow took over
Dalton's dozer he had not given any further work instruc-
tions to Dalton.
Marlow testified that he had trouble keeping Bjorgum on
a specific job. If he put Bjorgum on a task and turned his
back for 10 minutes, Bjorgum would sneak off. Marlow
considered Bjorgum a laborer and assigned him various
tasks including the dozer and loader, and sweeping coal and
helping the mechanics in the garage. Marlow had agreed
with Leppala that the garage employees could come down
and get Bjorgum whenever they needed him to help time.
Marlow stated that Bjorgum would stand around the ga-
rage and not do any work, although from the pit, where
Marlow was, he could not see into the garage. In the 6 or 7
days that Bjorgum worked on days Marlow would go to the
garage five or six times a day to get him to do other work,
such as sweep coal in the pit.
Marlow further testified that one incident caused the dis-
charge of Bjorgum. One day he sent Bjorgum to get some
glass doors for the big loader repaired and they were
brought back on August 25. On the morning of August 27
Marlow told Bjorgum to install the doors on the loader
which was in the garage right away because the state in-
spector was coming back just to sign off that loader. Just
after noon he checked the loader and found that the glass
had not been installed. Marlow then got another operator
and the two of them installed the glass in the loader. With
that, the state inspector signed the ticket on the loader and
left. Marlow stated. "Bjorgum, couldn't catch him. He
wasn't there." That was next to the last straw for Marlow.
Marlow was later in the pit on the dozer working by a
loader that was down with its universals out of commission.
[Bjorgum. Dalton, and the mechanic's helper came down to
the loader and spent 45 minutes taking an oil sample from
the rear end. This was about 3:30 p.m. The three then went
back up and Marlow did not see them until the next morn-
ing.
Marlow also testified: "I actually decided when I came
cut and they was gone and I couldn't talk to them and
explain to them why they hadn't done something. I just
waited until the next morning and when the, came, I fired
them both."
Marlow had not, during the 6 or 7 days he supervised
Dalton and Bjorgum. issued either employee a warning or
reprimand for their poor work performance. tle had how-
ever discussed their work performance with the company
president, [)avid Duplantier, the evening before they were
discharged. Marlow told Duplantier, "I had to get rid of
them. There wasn't no if's and none's about it. I couldn't
keep them nowhere. They refused to do anything, so why
should you have men like that on your payroll. They've got
to go." Duplantier told Marlow to do whatever he had to
do. Marlow said he did not have to discuss discharge of
employees with Duplantier but he did. He testified: "We
did it one time. In the case of these two, but I didn't have
to. I could have fired them on the spot. I didn't hve to, but
I wanted to be right. I don't like to do things and botch it
up."
Marlow denied any knowledge of union activity on the
part of Dalton or Bjorgum and any knowledge of union
activity of any kind until he was contacted by the National
Labor Relations Board's Regional Office prior to the repre-
sentation case hearing of September 20.
David Duplantier, president of Wilco, testified that the
operation of the Company is a joint affair between him and
Marlow. Marlow does not have the authority to fire any
employee without the counsel of Duplantier. When any em-
ployee is under consideration for discharge he and Marlow
discussed it beforehand. With regard to Dalton and Bjor-
gum, Marlow discussed it with him on Thursday and Fri-
day preceding the discharge. Duplantier stated. "He told
me that they wouldn't work, and he had trouble making
them -he had trouble getting them to work, and I told him
not to fire anybody unless he had a good reason to fire
people, and he looked at me like I was crazy, and he said,
'Do you think I'm going to fire somebody if they are a good
worker?' and I said, 'Well okay.' " Duplantier and Marlow
discussed the specifics of Dalton pushing rocks in the pit
with the dozer and stopping the work because he said he
could not push anymore. The discussion included Marlow
pushing rocks himself the rest of the day.
Duplantier was not aware of any warnings or reprimands
for Dalton or Bjorgum and the company records did not
reflect any. Neither was he aware of any union activity by
any employee on behalf of any union before receiving the
registered letter from the Regional Office dated August 31.
William Leppala was superintendent of the entire opera-
tion until Marlow was hired as pit boss. When Marlow was
hired Lagnion told Leppala that Marlow was to have com-
plete responsibility for the pit and was not to be interfered
with in any way, manner, shape, or form. If any complaints
or disputes arose Lagnion would resolve them. Leppala did
not lose his title of superintendent since he was still the
854
WIll.() ENEIRGY CORPORA ION
responsible party for the mine and the person certified in
mine safety. Lie did lose his authority to hire and fire mine
employees when Marlow took over and assumed such au-
thority.
Around August 25 l.eppala went for a ride in a compan
pickup at Lagnion's request. Lagnion asked, "What do ou
know about them starting to organize a union and George
Dalton is the ringleader." Leppala professed ignorance of
the activity. Lagnion said that the mine superintendent of
Arkansas Valley Coal, where Chavers went to work, called
and told him that Chavers had said they were trying to
organize a union at Wilco. That same night or the night
after in Leppala's apartment Adrian Duplantier. I)a id
Duplantier, Lagnion, and Leppala were discussing mining.'
Lagnion said to David, "Hey, do you know George Dalton
is trying to organize a union." Iavid responded. "I want
that man fired." Leppala said, "Hey, don't do it." Adrian
stated, "Yeah, that's right. We can't do it that way." The
conversation then turned back to mining.'
On August 27 State inspector Boatwright was at the mine
and recommended that the glass needed for the loader.
which was inoperative due to mechanical tfailure, should be
installed before the machine is placed in operation. When
Leppala learned that Bjorgum was told to install the glass
he told Bjorgum that it was not critical and assigned him to
mechanic work in the garage. Leppala did not recall if the
glass was subsequently installed but he did know that Mar-
low did not consult with him on the glass incident. That
same day Dalton was pushing rock with the dozer and it
began overheating. Dalton stopped the dozer and informed
Leppala that it was overheating. Although the dozer had
been giving trouble on overheating and was recently over-
hauled, Leppala could not recall any maintenance on it
after Dalton parked it to let it cool. Leppala did tell Dalton
that whether the dozer was used to push rock in the pit was
Marlow's area of responsibility.
Discussion and Conclusions
The issues presented are twofold: Whether Respondent
had knowledge of its employees' union activity, particularly
Dalton and Bjorgum, at a time prior to their discharges and
whether the union activity of Dalton and Bjorgum was a
consideration by Respondent in effectuating their dis-
charges.
Dalton and Bjorgum credibly testified to initiating the
organizational drive prior to August 21. The evidence of
their second meeting at the motel restaurant is uncontro-
verted including the presence of Bill Lagnion. a part owner
of Respondent. Albeit I conclude and find that Dalton,
Bjorgum, and Darrell Chavers engaged in union activity
cognizable by the Act, I cannot on this record find that Bill
Lagnion, from the restaurant conversation, had knowledge
of such activity.6
4Leppala and Lagnion shared the apartment as local quarters.
David Duplantier admits that such a gathering in Leppala and L.agnion's
apartment did in fact take place but denies any conversation relating to
union activity. Neither Adrian Duplanlier nor Bill Lagnion was called to
testify by any party.
I The other men present in the restaurant conversation were not employ)ees
of Respondent.
IThe evidence of I.eppala's conversation with L.agnion
wherein l.agnion expressed specific knowledge of Dalton's
ringleading union activity is uncontroverted. owever. the
evidence of I.eppala's conversation in the apartment is de-
nied as it relates to Respondent's knowledge of union ac-
tivit\ and its intent to use such knowledge as a basis for
discharge. .eppala's demeanor was sincere and he im-
pressed me with his candor, only relating what he specifi-
cally recalled. On the other hand I discredit David Duplan-
tier's general denial that Respondent had any knowledge of
union acti ity prior to August 31 and his specific denial that
he. his father. and .agnion discussed with l.eppala the dis-
charge of George Dalton for engaging in union organiza-
tional activities. I therefore conclude and find that as of
August 25 Respondent knew that iGeorge Dalton was one
of the ringleaders of the union organizational activities.
Where there is no direct proof of knowledge of union
activity circumstantial evidence may supply the predicate
for a finding of such knowledge. Thus Lagnion. on August
21. saw Chavers and Dalton. known union activists as of
August 25. in the restaurant with Bjorgum and two recently
laid-off' employees. The transportation of the group's pur-
pose to that of the known purpose of Dalton and Chavers
does not require mental gymnastics of impossible degree.
l.agnion is a sophisticated management and investment
person who demonstrated a concern for the union activity
when it was discovered. It is all together reasonable that
speculation on participants would follow such discovery.
Accordingly, I conclude and find that Respondent knew or
had reason to know that Bjorgum was engaged in the union
organizational activities with Dalton and Chavers.
The discharges of Dalton and Bjorgum cannot be found
unlawful merely because each engaged in union activity.
Neither does the union activity insulate the participants
from discharge by the employer. Even a finding that Dalton
and Bjorgum were not properly discharged for cause would
not, in and of itself, establish discharges violative of the
Act. In fact, the Board does not have to agree with an
employer's stated cause for discharge or even find such
cause to be reasonable for the discharge to stand. The test is
the true motivation for the discharge. If a discharge is mo-
tivated b antiunion design, then the discharge is violative
of the Act even though the employee is inefficient, irrespon-
sible, disobedient, or insubordinate. Illegal motivation can
be supported by a combination of factors such as coinci-
dence in union activity and discharge, leadership capacity
of the alleged discriminatee, hostility toward the union, and
implausible explanations by the Employer for its actions.
It T Grant Comparn d/a Grant Civ4. 210 NLRB 622
(1974).
Marlow's stated reason for discharging Dalton was his
refusal to do the assigned work. Marlow's own testimony
shows that Dalton did not refuse to use the dozer, but
rather he could not do the work with the small machine.
Marlow took the dozer into the pit to try it if Dalton did not
mind. This is hardly a colloquy in circumstances where an
employee has refused to do what he was told to do and then
stands his ground idly. Additionally, Dalton and Leppala
credibly testified that the dozer did heat up and Dalton
specifically on that occasion alerted Leppala and Marlow to
855
IDE(CISIONS OF NATIONAL LABOR RLI.ATIONS BOARD
the fact. I note also that Marlow, although he stated he
could have fired Dalton on the spot. did not. Neither did he
reassign Dalton to another task. Marlow simply took the
dozer himself into the pit. Marlow states that the absence of
Dalton prior to quitting time set off the discharge until the
following day. The timecards, which Marlow did not check.
reflect that Dalton worked a full shift of 10 hours his last
day of work. The timecards also reflect previous days of 9
and 9-1/2 hours so a full day is not necessarily 10 hours.
Marlow and Duplantier both admit to having previously
discussed the discharges of Dalton and Bjorgum. As I have
found Duplantier to have knowledge of the union activity
and to have engaged in antiunion discussions with Lagnion
specifically concerning Dalton I conclude that Duplantier
planned and initiated the discharges implemented by Mar-
low. I am not convinced by Marlow's assigned reason for
Dalton's discharge but rather find his reason to be baseless
and pretextual. I further conclude and find that the motiva-
tion for Dalton's discharge was the Company's knowledge
of his union activity causing the discharge to be violative of
the Act. Shattuck Denn Mining Corporation (Iron King
Branch) v. N.L. RB.. 362 F.2d 466 (9th Cir. 1966).
In Bjorgum's case Marlow's reason for discharge was the
inability of Bjorgum to remain on an assigned task to com-
pletion. Marlow cites the glass door of the loader as the
next to last straw but concedes that Bjorgum was a utility
employee expressly on loan to the garage without restric-
tion. Bjorgum and Leppala credibly testified that the glass
door was not installed on Leppala's instructions and Bjor-
gum was helping in the garage as usual. On this particular
occasion Marlow installed the door himself and did not
seek an explanation of Bjorgum's apparent laxity. Albeit
Marlow testified that Bjorgum was not actually working in
the garage he admitted he was stationed in the pit which
was not within view of the garage. The evidence in the
record and the inferences arising therefrom convince me
that Marlow's reason for discharging Bjorgum is totally un-
supported by reason and is pretextual in nature. I note par-
ticularly that on the day in question when Marlow came up
out of the pit at the end of the day he was looking for both
Dalton and Bjorgum. Such a search evinces a preconceived
intent to deal with both employees on a single basis. The
dispositive note is that the only common factor was each
employee's union activity. I therefore conclude and find for
the reasons above and those previously stated that Respon-
dent discharged Bjorgum for his union activity in violation
of the Act. (Shattuck Denn Mining Corporation, supra.)
CONCLUSIONS OF LAW
I. Respondent did not threaten employees in violation of
the Act.
2. By the discharges of George Dalton and Jerry Bjor-
gum on August 28 Respondent engaged in discrimination
in regard to tenure of employment or other terms or condi-
tions of employment discouraging membership in or activi-
ties on behalf of a labor organization in violation of Section
8(a)(I) and (3) of the Act.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
RIMFI)Y
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order Respon-
dent to cease and desist therefrom and to take certain affir-
mative action designed to effectuate the policies of the Act.
Respondent having discriminatorily discharged George
Dalton and Jerry Bjorgum, I find it necessary to order it to
ofler them full reinstatement to their former positions or, if
their positions no longer exist, to substantially equivalent
positions, with backpay computed on a quarterly basis and
interest thereon to be computed in the manner prescribed in
F: 1W Woolworth Compan'. 90 NLRB 289 (1950), and Flor-
ida Steel Corporation, 231 NLRB 651 (1977),' from August
28, 1978, the date of discharge to the date of proper offer of
reinstatement.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER8
The Respondent, Wilco Energy Corporation, Ozark, Ar-
kansas, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging, laying off, or otherwise discriminating
against employees in order to discourage membership in or
activities on behalf of United Mine Workers of America, or
any other labor organization.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Offer to George Dalton and Jerry Bjorgum, if it has
not already done so, immediate and full reinstatement to
their former positions or, if those positions no longer exist,
to substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and make them
whole for any loss of earnings or benefits they may have
suffered by reason of Respondent's discrimination against
them as set forth in the "Remedy" section of this Decision.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to facilitate the effectuation of the Order herein.
(c) Post at its mine office and company office in Ozark,
Arkansas, copies of the attached notice marked "Appen-
dix."9 Copies of said notice, on forms provided by the Re-
gional Director for Region 26, after being duly signed by
Respondent's authorized representative, shall be posted by
'See, generally. Isis Plumbing & Hearing Co., 138 NLRB 716 (1962).
I In he event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations. be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
9 In the event that this Order is enforced by a Judgment of the 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
856
STRAUS COMMUNICATIONS, INC.
Respondent immediately upon receipt thereof, and he
maintained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that the notices are not al-
tered, defaced, or covered by any other material.
(d) Notify' the Regional Director for Region 26. in writ-
ing, within 20 days from the date of this Order. what steps
Respondent has taken to comply herewith.
II IS 1: RTIIFR ORDIRFL) that the complaint be dismissed
insofar as it alleges violations of the Act not specificall\
found.
857