Wooten and Turner Coal Co.

National Labor Relations Board - Board Decisions

Jun 8, 1953

105 N.L.R.B. 376 (N.L.R.B. 1953)

37 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DON WOOTEN' AND MARCUS TURNER, CO-PARTNERS,
Doing Business As WOOTEN AND TURNER COAL COM-
PANY and EBERT SIZEMORE, PEARL GIBSON, RUFUS
JONES, CLAY GIBSON, WOODROW GIBSON AND RICHARD
SIZEMORE. Case No. 9-CA- 509. June 8, 1953
DECISION AND ORDER
On April 2, 1953, Trial Examiner Arthur Leff issued his
Intermediate Report in the above-entitled proceeding, finding
that the Respondents had engaged in and were engaging in
certain unfair labor practices within the meaning of Section 8
(a) (1) and (3) of the Act, and recommending that they cease and
desist therefrom and, take certain affirmative action, as set
forth in the copy of the Intermediate Report attached hereto.
The Trial Examiner also found that the Respondents had not
engaged in certain other alleged unfair labor practices, and
recommended dismissal of these allegations. Thereafter, the
General Counsel filed exceptions to the Intermediate Report and
a supporting brief. The Respondents filed a brief in support of
the Trial Examiner's recommendations that certain allegations
of the complaint be dismissed; they did not except to the Trial
Examiner's findings of 8 (a) (1) and (3) violations of the Act.
The Board: has reviewed the rulings made by the Trial
Examiner at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The Board has
considered the Intermediate Report, the exceptions and the
briefs, and the entire record in this case, and hereby adopts
the Trial Examiner ' s findings, conclusions , and recommenda-
tions.
ORDER
Upon the entire record in this case , and pursuant to Section
10 (c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that the Re-
spondents , Don Wooten and Marcus Turner , co-partners,
doing business as Wooten and Turner Coal Company, their
agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in any labor organization of
its employees by discriminatorily discharging employees or
denying them reinstatement or reemployment, or by dis-
criminating in any other manner in regard to their hire or
tenure of employment, or any term or condition of employ-
ment.
(b) Discharging employees for engaging in protected con-
certed activity , interrogating employees or job applicants
about their membership in any labor organization , advising
1 The Motion and Answer show this Respondent's signature as Don Wooton.
2 Pursuant to the provisions of Section 3 (b) of the Act , the Board has delegated its powers
in connection with this case to a three-member panel [Members Houston , Styles , and Peter-
son].
105 NLRB No, 52.
WOOTEN AND TURNER COAL COMPANY 377
employees that they would not hire or retain in their employ
members of any labor organization , or in any other manner
interfering with, restraining , or, coercing their employees in
the exercise of the right to self - organization , to form, join, or
assist labor organizations , to bargain collectively through
representatives of their own choosing , to engage in concerted
activities for the purposes of collective bargaining or other
mutual aid or protection , or to refrainfromany and all of such
activities except to the extent that such right may be affected
by an agreement requiring membership in a labor organization
as a condition of employment , as authorized in Section 8 (a) (3)
of the Act.
2. Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
(a) Offer to George Asher immediate and full reinstatement
to his former or a substantially equivalent position without
prejudice to his seniority or other rights and privileges and
make him whole in the manner set forth in the Intermediate
Report in the section entitled "The Remedy."
(b) Upon request , make available to the Board or its agents,
for examination and copying , all payroll records, social-
security payment records , timecards , personnel records and
reports, and all other records necessary to analyze the amount
of back pay due under the terms of this Order.
(c) Post at their mine copies of the notice attached to the
Intermediate Report and marked "Appendix A." 5 Copies of
such notice , to be furnished by the Regional Director for the
Ninth Region , shall, after being duly, signed by one of the Re-
spondents ' partners , be posted by the Respondents immediately
upon receipt thereof , in conspicuous places , including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondents to insure that said
notices are not altered , defaced , or covered by any other
material.
(d) Notify the Regional Director for the Ninth Region, in
writing, within ten (10 ) days from the date of this Order, what
steps the Respondents have taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it
alleges that the Respondents illegally discharged Arthur
Sizemore, Richard Sizemore , Ebert Sizemore , Pearl Gibson,
Kelly Gibson, Rufus Jones, Clay Gibson, Woodrow Gibson, and
Charlie Collins; and alleges that the Respondents illegally
refused to reemploy Clay Gibson, be, and it hereby is, dis-
missed.
3 This notice, howeVer, shall be, and it hereby is, amended by striking from the first para-
graph thereof the words "The Recommendations of a Trial Examiner " and substituting in lieu
thereof the words "A Decision and Order." In the event that this Order is enforced by a decree
of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a
Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals,
Enforcing an order."
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intermediate Report
STATEMENT OF THE CASE
Upon a charge duly filed by Ebert Sizemore, Rufus Jones, Clay Gibson, Woodrow Gibson,
Pearl Gibson, and Richard Sizemore, the General Counsel of the National Labor Relations
Board, by the Regional Director for the Ninth Region (Cincinnati, Ohio), issued his complaint,
dated December 3, 1952, against the Respondent,Don Wooton and Marcus Turner, co-partners
doing business as Wooton and Turner CoalCompany, alleging that the Respondents had engaged
in and were engaging in unfair labor practices affecting commerce within the meaning of Sec-
tion 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 61 Stat. 136,
herein called the Act.
With respect to the unfair labor practices , the complaint alleged in substance , and the Re-
spondents in their answer denied, that the Respondents (1) in violation of Section 8 (a) (1)
interrogated employees as to their membership in the United Mine Workers of America,
herein called the Union, advised employees that it would not hire or use union men, threatened
to discharge employees because of their union membership, and (2 ) in violation of Section 8 (a)
(1) and (3) discharged on or about thedates indicated after their respective names , and there-
after refused to reinstate , the employees named below because of their union membership
and activity:
Arthur Sizemore October 17, 1951
Richard Sizemore October 25, 1951
Ebert Sizemore October 25, 1951
Pearl Gibson October 25, 1951
Kelly Gibson October 25, 1951
Rufus Jones October 25, 1951
Clay Gibson October 25, 1951
Woodrow Gibson October 25, 1951
Charlie Collins January 16, 1952
George Asher February 27, 1952
Pursuant to notice a hearing was held at Hazard, Kentucky, between January 12 and 15,
1953, before Arthur Leff, the undersigned Trial Examiner, duly designated by the Chief Trial
Examiner . The General Counsel and the Respondents were represented by counsel and par-
ticipated in the hearing . Fullopportunitytobe heard , to examine and cross -examine witnesses,
and to introduce evidence bearing on the issues was afforded all parties . At the opening of the
hearing a motion by the Respondents, to transfer the place of hearing to Hyden, Kentucky, was
denied. The General Counsel at the close of his case moved to dismiss all allegations of the
complaint relating specifically to Arthur Sizemore and Richard Sizemore. The motion was
granted. At the same time, the General Counsel moved, and was granted leave over the ob-
jection of the Respondents , to amend his complaint by adding thereto an additional paragraph
alleging in substance that in August 1952 the Respondents , in violation of Section 8 (a) (4) of
the Act, refused to rehire Clay Gibson because he had filed unfair labor practice charges
against them. The Respondents then moved to dismiss all allegations of the complaint for
failure to make out a prima facie case. The motion was denied. After all evidence was in, the
General Counsel moved further to amend the complaint, to conform to the proof, by the addi-
tion of a new paragraph alleging that Charlie Collins --who in the original complaint was alleged
to have been-discharged onJanuary 26, 1952, because of membership in and activity on behalf of
the Union- -was on the same date, and in alleged violation of the same sections of the Act,
discharged because he engaged in concerted protected activity and acted as spokesman for a
group of the Respondents ' employees who were engaging in such activity . Ruling was reserved
on the motion . The motion is now granted . At the end of the entire case, the Respondents
moved to dismiss all allegations of the complaint for insufficiency of proof. That motion, on
which ruling was reserved at the hearing, is now disposed of in accordance with the findings
of fact and conclusions of law made below. Opportunity was afforded all parties to argue
orally upon the record, and to file briefs and proposed findings and conclusions. After the
hearing, briefs were filed by the General Counsel and the Respondents.
Upon the entire record in the case and from my observation of the witnesses, I make the
following:
WOOTEN AND TURNER COAL COMPANY
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
379
The Respondents, Don Wooton and Marcus Turner, co-partners doing business as Wooton
and Turner Coal Company, are engaged in the business of mining, producing, and selling coal,
with their principal office and place of business at Hyden, Kentucky. The Respondents' annual
sales exceed $50.000. The sales are made within the State of Kentucky to brokers, each of
whom annually sells coal of a value in excess of $25,000 for direct shipment to persons lo-
cated outside the State of Kentucky. It is found that the Respondents are engaged in business
affecting commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The United Mine Workers of America is a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction
The Respondents' mine is located in Leslie County which together with the adjacent Clay
County comprises the only unorganized coal producing field in the State of Kentucky. For
some time the Unionhassought unsuccessfullytoorganize the mines in that field. Such organi-
zation has been opposed by the operators in the area, according to the Respondents' brief,
because the absence of railroads and the need of truck transportation makes it impossible to
"mine and sell the coal with a profit and pay the Union scale." There is some evidence in the
record suggesting that the local brokers to or through whom sales are made impose pressure
upon the operators to have them maintain their mines on a nonunion basis.
B. The alleged discriminatory discharge of six night-shift
employees on October 25, 1951
The Respondents began working their present mine about October 1, 1951. At the beginning
work consisted largely of developing the mine opening. Although most of the work was done in
the day, some of the cutting, drilling, and shooting, as well as the setting of timber and laying
of track, was turned into a night operation. Arthur Sizemore, the machine cutter, doubled on
day and night work. Henry and Rob Holland, father and son, were hired on October 11 to work
at night in conjunction with Arthur Sizemore shooting and drilling coal. Neither of them were
members of the Union. After the mine had been developed a distance of some 75 feet, the
Respondents decided to put on a regular night-shift crew. On October 15 the Respondent
Wooton contacted Birchell Sizemore and his son, Ebert, both of whom had worked for Wooton
before at another mute, and arranged to have Birchell take charge of the night-shift operations,
and to have Ebert come to work on that shift as the motorman. Birchell Sizemore began work
that night and Ebert Sizemore the following night. Birchell Sizemore brought with him the
first night Kelly Gibson and Woodrow Gibson, and the next night, in addition, Clay Gibson,
Pearl Gibson, and Rufus Jones. The four Gibsons and Jones were hired as coal loaders.1 They,
as well as Ebert Sizemore, testified that they had joined the Union not long before they were
hired and were members at the time. None of them appears to have been active in the Union;
indeed, their own testimony discloses that at least until after they were terminated, they had
never so much as attended a union meeting. Birchell and Ebert Sizemore, the four Gibsons,
and Jones continued in the employ of the Respondents through the night of October 25, 1951.
The following day, the Respondents discontinued its operation of the night shift According to
the testimony of the complainants inthis group, they were told by Wooton at that time that there
i The testimony is in conflict as to the manner in which the hiring was done. The Respond-
ents, according to their testimony, left the hiring of the night crew to Birchell Sizemore, in-
structing him only as to the number of men required According to then, Birchell Sizemore
put on more than the number stipulated The members of the night crew testified, on the
other hand, that they were hired directly by the Respondents. While I believe that Birchell
Sizemore, himself, assembled the night crew, I am convinced 1•v the admitted fact that the
Respondents immediately entered the names of all on its payroll that the Respondents were
not only at once made aware of the number hired but also approved that number
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would be no more work for them because there was not enough room in the mine to work the
Birchell Sizemore crew. A day or so later the two Hollands were given work on the day shift.
Those in the Birchell Sizemore crew, however, were never reemployed. Night-shift operations
remained entirely suspended until November 5, 1951. They were then resumed, but on a
different basis. The Respondents made a contract arrangement with Roe Collins under which
Collins agreed to take over the night shift, hire his own crew, and perform all necessary
work, and the Respondents agreed to pay Collins a fixed amount for each ton of coal produced.
The night-shift operations continued on a contract basis until November 21, 1951. At that
time, the Respondents terminated their contract arrangement withRoe Collins and placed him
and his night crew on their payroll as hourly paid employees.
The General Counsel contends that the Respondents were motivated to suspend the night-
shift operation on October 25 by a desire to get rid of Ebert Sizemore, Pearl Gibson, Kelly
Gibson, Clay Gibson, Woodrow Gibson, and Rufus Jones because of their membership in the
Union.2 With that contention the Respondents take issue. They deny that the union member-
ship of the employees on the Birchell Sizemore crew had anything to do with the action taken.
and insist that the layoff of the night shift was prompted entirely by economic considerations,
more particularly by the fact that the night-shift operations under Birchell Sizemore had
proved unprofitable because there were too many men and too large a payroll for the amount
of work produced.
To support his own contention and to refute the Respondents' defense, the General Counsel
relies largely upon circumstantial evidence. He stresses principally the fact that the 6 com-
plainants, all union members, were finally severed, while the 2 Hollands , not union members,
were given day-shift employment. He takes issue with the Respondents' assertion that there
was not enough room in the mine at that time for the efficient and economic operation of a
crew as large as that employed under Birchell Sizemore. He points in that connection to the
fact that the Respondents' day-shift payroll at the time numbered as many or more. He argues
that the Respondents, if they considered the number on their night-shift payroll too many,
could have reduced the number instead of eliminating the shift altogether. He maintains that
the Respondents could have allowed, but did not, the Birchell Sizemore group an opportunity
to work the night shift on a contract basis if they considered that form of operation more
desirable. And he implies that the contract arrangement made with Roe Collins, and con-
tinued for the brief period of but slightly more than 2 weeks, was designed as a camouflage
to cover up illegal discrimination in the mass layoff. Apart from the circumstantial matter to
which he points, the General Counsel would rest a finding of unlawful motivation upon state-
ments attributed to Wooton by two of his witnesses--Roe Collins and Charlie Collins. Roe
Collins, who took over the night shift on a contract basis, testified that while negotiating the
arrangements under which he was to handle the night work on contract,? Wooton told him,
referring to the night shift, that "they weren't doing no good" and expressed the belief that
"they had worked something up on him" and that "every one [of them] had joined the Union on
him, and was trying to break him, and wouldn't work." Charlie Collins, who at the time of the
layoff in question was employed on the day shift, testified that shortly before the layoff oc-
curred Wooton told him he was going to lay off the night shift because he "believed every one of
them belonged to the Union" and "he was afraid they were going to work up something on
him, might break him, or cause him some trouble some way."
A major difficulty with the case the General Counsel would build is that it is founded
largely upon factual premises and inferences the record does not support. Thus, for example,
the greater number of employees on the day shift does not, as the General Counsel suggests,
tend to discredit the Respondents' assertion that there were too many employees on the night
shift for the room available. That point. I find, has been satisfactorily explained by evidence
showing that daytime work called for more operations, some outside the mine, and that.
besides, greater efficiency was insured on that shift through direct management supervision.
Thus, too, I do not think that the brief period during which the Roe Collins crew was allowed
to remain on a contract basis tends to support an inference that the temporary conversion of
the night shift from hourly paid work tocontract work was designed as a cover for the claimed
illegal discrimination. As found below, the same contract arrangement was offered to the
Birchell Sizemore crew. And the conversion to hourly paid work is reasonably explained by the
Respondents' testimony that they had determined on the basis of their brief experience that
the contract work, though otherwise profitable, resulted in inefficient performance of other
2It would appear that Birchell Sizemore, the leader of this group, was not included among
those named in the complaint because of the supervisory status he occupied.
3The record indicates that the negotiations with Roe Collins had their inception while the
Birchell Sizemore crew was still at work.
WOOTEN AND TURNER COAL COMPANY 381
necessary work, such as timbering, which the contract crew was required but neglected fully
to perform 'because it did not directly add to the amount of their compensation . More fatal to
the General Counsel 's hypothesis is that the record does establish an attempt by the Re-
spondents to correct the asserted uneconomic operations of its night shift in a manner that
would have permitted at least a substantial portion of the men on the Birchell Sizemore crew
to remain at work --an attempt that failed of success only because of resistance from the
members of that crew. This is reflected by the following:
1. Both Wooton and Turner testified that on a number of occasions before discontinuance of
the night operation supervised by Birchell Sizemore , the last occasion being on the same day
the men were notified that there would be no more work on the shift, the Respondents offered
to negotiate with Birchell Sizemore a contract arrangement similar to that which they ulti-
mately negotiated with Roe Collins , and that this was declined by Bitchell Sizemore on behalf
of his group. Their testimony in this respect is credited. Although the complainant witnesses
testified that no such arrangement was proposed to them , I am satisfied , if only from the man-
ner in which they responded to questioning on this subject , that they were in fact aware that
such a proposal was made to Birchell Sizemore on their behalf , and that in giving their testi-
mony they were doing so with the mental reservation that what they themselves were not
directly told they did not know and need not say . 4 1 think it significant in that connection that
the General Counsel chose not to call Birchell Sizemore to testify on that point, though he
was present in the hearing room and available for that purpose. 5
2. Wooton and Turner further testified that about a day or two before the Birchell Sizemore
night shift was discontinued , they advised Birchell Sizemore that the labor expenditures for
the night shift were exceeding the return , and that if he were unwilling to take over the work
on a contract basis , they would require him to layoff at least two men on his crew. Shortly
thereafter Sizemore brought his entire crew out of the mine during working hours and ad-
vised the Respondents that he was unwilling to lay off any of the men himself, and that Wooton
would have to assume the responsibility of effecting the layoff. Either on that or another oc-
casion, Birchell Sizemore indicated to the Respondents that if any of the men were laid off all
would go. On the occasion of the walkout , according to Turner , the Respondents decided not
to risk having all the men quit at that time. Wooton therefore informed Bircheil Sizemore that
he did not care to make the layoff selections himself, and with the approval of the Respondents
all in the Birchell Sizemore crew then returned to work. The foregoing facts testified to by the
Respondents were not substantially controverted . The complainant witnesses admitted having
walked out of the mine on the occasion in question . Their version differs from that of the
Respondents only in that they say they understood the layoff request to have been for all in
their group except two , instead of for at least two as testified to by the Respondents. They also
deny knowledge o what was said outside the mine in the conversation between Birchell Size-
more and the Respondents . But since Birchell Sizemore was not called on to testify concerning
his conversation with the Respondents , the Respondents ' account of what they said to Birchell
Sizemore stands on the record undenied . Under all the circumstances , I accept the testimony
of Wooton and Turner as substantially accurate, and find accordingly.
3. According to Wooton and Turner , the Respondents finally determined that positive action
must be taken to reduce the night - shift force. and Turner was designated to take that action.
Turner testified that at the conclusion of the night shift on October 25 --the last day the shift
worked--he called the men together , and. pointing to a number of them at random directed
those indicated not to return to work. Among the men to whom he pointed , according to his
testimony, was Rob Holland , a nonunion man, and when Henry Holland stated that if Rob went,
he might as welt be laid off too, Turner agreed and chose one of those in the Birchell Sizemore
group for retention in his place. According to Turner , those in the Birchell Sizemore crew
who were not laid off Indicated on that occasion , as they had on others, that if any were laid
off all would quit. It was after that incident that the Respondents determined to shut down the
4Thus, Ebert Sizemore, in response to a question as to whether it was not true that a con-
tract arrangement had been offered the Birchell Sizemore group, answered , "No sir, absolutely
they didn 't offer me." Rufus Jones in response to a similar question testified , "No sir, wasn't
never nothing said to me about it. If it was, I never heard it ." Pearl Gibson answered, "No
sir, that was never named in any bunch that I heard" Woodrow Gibson answered, "No sir, I
never heard it named."
5 The record reflects that Birchell Sizemore was present in the hearing room at the request
of the General Counsel during the presentation of the General Counsel ' s case . Although he was
then excused , he was later subpenaed by the Respondents , though not presented as a witness.
He appears to have been present in the hearing room and available to the General Counsel as
a rebuttal witness at the end of the Respondents' case,
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shift entirely until the work could be let out on a contract basis . Turner's account of what
occurred on the last night of work was substantially corroborated by the testimony of Rob and
Henry Holland. None of the complainants was called upon to contradict it. Turner 's uncon-
tradicted account, corroborated by the Hollands , is accepted.
The offer made by the Respondents to allow the Birchell Sizemore group to continue on a
contract basis, the efforts made by them to have the night shift continue work on the old basis
except with a reduced force, and the original selection for layoff of one of the Hollands, a
nonunion employee , are all circumstances clearly inconsistent with the General Counsel's
hypothesis that the Respondents were determined to rid themselves of the Birchell Sizemore
crew because of their membership in the Union If, then, a finding of illegal motivation is to be
supported at all, it must rest upon the statements attributed to Wooton by Roe Collins and
Charlie Collins , as set out above, and it is to a consideration of these statements that we now
turn.
Roe Collins impressed me as a forthright witness . His account of what Wooton told him was
not denied , and is believed . But Roe Collins ' account, while it does show a belief on Wooton's
part that the night - shift men were union members, does not support a finding that Wooton was
determined to get rid of them for that reason . Roe Collins ' testimony accepted at face value
proves only that Wooton's determination to make a change was founded upon his belief that
the men on the night shift would not work and were not performing their jobs well. This was
a legitimate cause for discharge , and it was not rendered less so because Wooton in his own
mind associated the employees' unwillingness to work with their union membership.
It is true that Charlie Collins' testimony, if accepted, would indicate that the Respondents
were concerned basically with the union membership of the employees on the night shift. But
Charlie Collins' testimony, unlike that of Roe's, was emphatically denied by Wooton. What is
more, Wooton's denial was corroborated by Sam Abner, an employee who Charlie Collins
testified was present with him when Wooton is supposed to have made the statement. Except
for one important variance, Charlie Collins' testimony bears a striking resemblance to that
of his father, Roe. I am inclined to the view that with the lapse of time and merger of incidents
in his memory, Charlie Collins may have confused what he knew of his own knowledge with
what he heard from his father. If the Respondents were bent upon camouflaging discrimina-
tory conduct in the carefully planned and intricate manner the General Counsel would ascribe
to them, I find it difficult to believe that Wooton would have blurted out to Charlie Collins a
confession of guilt. For these reasons, and because the surrounding circumstances do not
square with a findingof discrimination, I rejectCharlie Collins' testimony and accept Wooton's
corroborated denial.
On all the evidence, I conclude and find that the General Counsel has failed to sustain his
burden on the allegation of the complaint relating to discrimination against Ebert Sizemore,
Pearl Gibson, Kelly Gibson, Rufus Jones, Clay Gibson, and Woodrow Gibson. Accordingly, I
shall recommend the dismissal of such allegations.
C. The alleged refusal to rehire Clay Gibson
It has already been noted that the General Counsel at the conclusion of his case moved for
and was granted leave to amend his complaint to allege that in August 1952 the Respondents,
in violation of Section 8 (a) (4), refused to rehire Clay Gibson because he had filed unfair
labor practice charges against them. Previously, Clay Gibson had testified that in August 1952,
in the town of Hyden, he approached Wooton, who was seated in his car outside a restaurant,
and asked him for a job. Wooton, according to Clay Gibson, replied that he needed men but at
the same time added, "Every one of you fellows is Jawing me for back pay. You know I don't
need no such men as that." The charge in this proceeding had been filed in February 1952, and
as there was not other litigation involving back pay pending, it is fair to conclude that if Wooton
made this statement he was predicating his refusal of employment upon that unfair labor
practice charge. Wooton, when he took the stand, testified that Clay Gibson never asked him
for a job since the layoff of the Birchell Sizemore crew. He was, moreover, most emphatic in
his insistance that Clay Gibson lied in attributing to him the statement quoted above.
The only issue here is that of the comparative credibility of Clay Gibson and'Wooton. I con-
fess I find it one not easy to resolve. However, on the basis of my consideration of all rele-
vant factors and on the strength of the sum total of the impressions I formed, my4inclination
is to believe Wooton's testimony that he did not refuse Clay Gibson a job, at lr;ast for the
reason assigned. I have taken into account the points stressed by the General Counsel, that
it is unlikely that Clay Gibson, a person unlettered in the law would have fabricated a legal
claim of this sort, and that Wooton, who had been served a copy of the charge containing a
specific request for back pay, might quite understandably, if asked for a job, have given the
WOOTEN AND TURNER COAL COMPANY 383
answer attributed to him. However, there are offsetting considerations by which I am more
impressed . Wooton's testimony on this particular point, unlike that on others where I thought
his veracity in doubt, seemed to me to carry the stamp of positive conviction. Though Clay
Gibson was undoubtedly unschooled in the law, I think a similar question asked of a previous
witness and colloquy of counsel that followed it might have given him a clue to what was in-
volved. I regard it as significant, too, though by no means conclusive in itself, that no Section
8 (a) (4) allegation was contained in the original complaint , and that counsel for the General
Counsel, who, because he first asked the question, presumably interviewed Clay Gibson in ad-
vance of the hearing about additional job applications he may have made, was concededly un-
aware until Clay Gibson gave his testimony that a job had been denied Gibson for the reason
now assigned. A final factor influencing my judgment is Clay Gibson's testimony that during
the entire period from October 1951 to the hearing date, he never personally applied to anyone
for a job, except on the single occasion to which he testified. As this testimony, if accepted,
would indicate that Clay Gibson was not actively seeking employment, it would serve to cast
doubt on his assertion that he singled out Wooton for the only direct employment application
he made in many months.
Of all the evidence, I find that the Section 8 (a) (4) allegation in the complaint has not been
sustained by credible evidence, and shall recommend its dismissal.
D. The discharge of Charlie Collins
The complaint as originally issued alleged that Charlie Collins was discharged in violation
of Section 8 (a) (1) and (3) because of his union membership and activity. The General Counsel,
beyond adducing evidence that Collins was a union member, made no effort to establish that
Collins was discharged for that reason. Instead the General Counsel sought to prove his case
on another theory, and at the conclusion of the hearing moved to amend his complaint to con-
form to the evidence offered in support of that theory, by alleging that Collins was discharged
"because he engaged in concerted activity and acted as the spokesman for a group of the Re-
spondents' employees who were then and there engaged in such activity." As noted in the
statement of the case, the motion to amend, on which ruling was reserved at the hearing, has
now been granted.6
On the issue of this allegation the General Counsel called 1 witness--Charlie Collins--and
the Respondents 7--Turner and 6 employees: who were present when the incidents related below
occurred. With regard to the details of what occurred, there is substantial conflict between the
testimony of Collins and 'Darner, and no clear agreement among the 6 others, either with each
other or with either of the 2 named. In resolving the conflicts I have considered the testimony
of all witnesses, and have taken into account, among other things, the interest, or lack of it,
of the various witnesses in the outcome of the case, the reasonableness of the testimony of
each with other testimony believed reliable, the extent to which the testimony of each was
impaired on cross-examination, my estimate of the ability of the various witnesses to observe
and report, and my overall impressions with regard to the candor of the various witnesses
while testifying. While it is impossible to know with certainty exactly what occurred and in
6 Although I consider the General Counsel remiss in not having presented the amendment
earlier , I am nevertheless fully satisfied that the Respondents were not actually surprised by
the amendment , or otherwise prejudiced in the presentation of their defense thereto on the
merits. The original complaint had put the Respondents on notice that the circumstances of
Collins ' discharge were to be litigated with the object of determining whether the discharge
violated the same sections of the Act as are referred to in the amendment . From the General
Counsel's presentation of his evidence relating to Collins, it was clear that he was taking the
position that Collins was illegally discharged for the reasons stated in the amendment The
record reflects that the Respondents not only were aware of this , but acted on that premise in
conducting their cross-examination and in presenting their defense-- through seven witnesses
by whom the Respondent sought to prove that Collins was not in fact engaged in concerted
activity. By doing so, and by failing to object at the hearing to the trial of that issue , the Re-
spondents not only fully litigated the issue, but impliedly consented to its consideration.
Finally, and most important, counsel for the Respondents, although objecting to the amend-
ment because of its untimeliness , conceded with commendable candor that the evidence
offered by him would have been no different even if the amended matter had been originally
alleged. In the light of all the circumstances I think the amendment is properly allowable
See rule 15 (b), Rules ofCivil Procedure; Section 102 17 of the Board 's Rules and Regulations;
Fort Wayne Corrugated Paper Co v. N L. R B., 111 F. 2d 869 (C. A. 7); Majestic Metal
Specialties , Inc., 92 NLRB 1854.
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
precisely what sequence, from a synthesis of such testimony as appears to me reasonable
and credible, I believe, and I find, that the following substantially approximates the events
leading to and surrounding the termination of Charlie Collins' employment: t
At the time of Collins' termination, the Respondents' coal loaders were working on a unit
basis, being paid at a specified rate for each coal car loaded. There was a shortage of cars
in the mine and, as a result, the men frequently found themselves without cars to load for
unusually long periods. This was a source of irritation to the men, as it required them to
work longer hours to earn a day's pay. On the morning of Collins' termination, the coal loaders,
while waiting at the mine station for their empty cars to be returned from the mouth of the
mine, dis.;ussed the situation among themselves and talked of going on strike to force cor-
rection of their grievance. Collins was in the forefront in urging strike action. At least some
of the men decided to strike for more money or more cars. Immediately upon the arrival of
a trip of empty cars from the mouth of the mine, Collins jumped into one car and employee
"Little" Sam Abnert into another. Collins yelled to the others to "load in and let's go." At
that point the Respondent Turner, who had comedown with the trip of cars, approached Collins
and asked him what the trouble was. Collins said the men were going out on strike for more
money or more cars. Turner declared that there would be no more money, that those who did
not want to work could walk out, and that the others should get their cars and return to their
work stations. At about this point, "Little" Sam Abner suffered a change of heart and decided
to get out of the car. Collins, however, was more persistent. He again called on the other coal
loaders to "load in" and come out and strike, declaring they would be "chicken" if they did
not do so. Turning on Collins, Turner told him he had no right to urge the employees to go out
on strike if they did not want to go. Turner also told Collins that if he did not want to work he
should leave the mine and not to talk to the men to persuade them to go out on strike. At the
same time he directed Collins to get out of the car, stating that if Collins intended going to
the outside he would have to walkout and would not be carried out. Now Collins became angry.
He informed Turner that he would not leave until he got ready, that no one could make him do
anything he did not want to do. At that point Turner ordered Collins our of the mine with the
warning that he would get a warrant for Collins' arrest if Collins did not get off his property
at once and leave the men alone . There was some more argument , and Collins finally left.
The other employees returned to their jobs. 9
On the basis of the foregoing findings of fact, I am unable to conclude that the Respondents
committed an unfair labor practice in discharging Collins . I agree with the General Counsel
that in urging his fellow employees to go out on strike for better working conditions. Collins
was engaged in a concerted activity normally protected by the Act. And, contrary to the Re-
spondents ' agreement, I do not think it matters that he had not been selected by the employees
to lead that activity. But I am unable to go along with the General Counsel's contention that
"Collins was discharged on the spot by Respondent Turner because of his protected activity
in leading the legitimate strike activity in question ." Collins' testimony , if fully credited and
read in isolation , might support that contention, but the record as a whole does not support
Collins' testimony . The findings made above may not substantiate the Respondents ' position
that Collins voluntarily chose to quit his employmr it rather than remain on his job. But they
do at least reflect that Collins was not actually discharged until after he had resisted Turner's
instruction to leave the premises if he did not want to return to work. Turner was clearly
within his rights in ordering Collins , as he had the others , either to return to work or, if he
would engage in strike activity, to leave the premises for that purpose. Collins' insistence,
notwithstanding a contrary instruction , upon remaining on the mine premises and pursuing
strike activity during working hours constituted an act of insubordination for which he could
legitimately be discharged. Accordingly, I shall recommend that the allegations of the com-
plaint with regard to Collins be dismissed.
E. The discharge of George Asher
George Asher was employed by the Respondents about October 23, 1951, as a coal loader
working at a carload rate. When interviewed for the job, Asher was asked by Wooton whether
he was a member of the Union. }° At that time Asher disclaimed such membership. Actually,
7 To the extent that testimony of any of the witnesses is clearly inconsistent with the findings
made below, such testimony is rejected
&So called to distinguish him from his uncle, "Big" Sam Abner, another employee.
9Collins has not worked for the Respondent since The record shows that about a month or
so later Collins applied to the Respondents for, and was refused, employment. It does not in-
dicate the reason given him at the time. Nor does it indicate whether jobs were then available.
Jo Wooten framed the question by asking whether he belonged to the "grocery line," an allu-
sion that, it is found, Asher understood and Wooten intended to have reference to the Union.
WOOTEN AND TURNER COAL COMPANY 385
however, Asher had joined the Union some weeks previously, and continued to remain an active
union member throughout the period of his employment by the Respondents.
In late February , the Union put on a concentrated drive to organize the mines of Leslie
County. Toward that end, it devised the strategy of "picking off" the mines an a piecemeal
basis. It chose first two ofthelargestmines in the area--the Citation mine and the New Hyden
mine- -for a mass picketing demonstration , and called on all union members , whether or not
employed at those particular mines to join in the picketing. The Union's plans to engage in
such picketing, and the scheduled times and places of the picketing, were given wide publicity
and were generally known in the area. Picketing at the mines mentioned was conducted on
February 21, 22, and 23, 1952. Asher participated in the picketing at the Citation mine on the
3 days stated, absenting himself from work for that purpose. Both Wooton and Turner admitted
making trips to the citation mine to observe the picketing there in progress. Asher testified
that while he was on the picket line he saw Wooton , and that Wooton was then in a position to
see him. Although Wooton denied seeing Asher at the time, I do not credit his denial, and find
that he did.kl
Except for an hour or two on February 21, the Respondents' mine was closed down during
the 3 days of the picketing. P This was not due to the picketing, which had its sites a con-
siderable distance from the Respondents' mine, but to a breakdown in the Deisel engine that
furnished the power for the Respondents' equipment. The Respondents resumed their mining
operations on Monday, February 25. Asher, however,did not report for work until Wednesday,
February 27. Asher testified that on the first day of picketing he had been informed of the
power breakdown by Oscar Begley, the Respondents' mortorman. According to Asher, it was
because of this information that he continued to picket, although it had been his original inten-
tion to picket for 1 day only. He says he did not report on Monday or Tuesday of the following
week because, having received no word to the contrary, he believed the mine was still closed
down. The record discloses, however, that Asher made no attempt himself to determine
whether or not the mine was operating, although he could have done so without any undue effort
on his part.
Upon reporting for work on Wednesday, February 27, he was stopped at the mine entrance
by Homer Turner, a brother of the Respondent Turner and himself a company official. Turner
told Asher he did not think the Respondents would allow Asher to work there any longer, and
instructed him not to go in until he had seen Wooton. When Wooton arrived a few minutes
later, Asher asked whether Wooton wanted him to go to work. According to Asher's credited
testimony, Wooton replied that he did not, stating as his reason that Asher's place in the mine
had fallen in. 13 Asher then asked Wooton to allow him to move the fallen rock, or else give
him some other place to work. But Wooton refused, commenting, according to Asher's
credited testimony, "I saw you in the wrong place, and I just can't use you." 'A Asher has
not worked for theRespondents since. Itis not disputed that Asher was discharged on February
27, 1952.
11 Wooton's testimony, "I didn't see George Asher that I remember of," appeared to me to
lack conviction and to be designed as an evasion of a direct denial Moreover, other record
evidence that will be referred to below convinces me that the Respondents were in fact
aware of Asher's picketing activity at the Citation mine before he was terminated.
12On February 21, only 16 of the Respondents' employees had reported for work; the
remaining 13 were absent.
13Both Wooton and Homer Turner admitted that this statement was made by Wooton
According to their version, however, Wooton gave as an additional reason that Asher's place
had been filled during his absence Asher denied that anything was said to him about his
place having been filled, and I credit his denial. Clearly it would have been contradictory
for Wooton to have told Asher that his place of work was no longer in existence because of
a cave-in, and in the same breath to have told him that someone else was working in that
place. Moreover, as will be shown below, no new coal loaders were in fact hired during
Asher's absence.
14 Asked by his counsel whether he had told Asher he "saw him in the wrong crowd,"
Wooton denied making that statement. Homer Wooton, who was present at the time of Wooton's
conversation, responded to a similar question by saying, "I don't believe I ever heard him
say anything like that." Though I read their testimony as a denial of Asher's testimony, I do
not credit their testimony in that respect. The Respondents argue in their brief that the state-
ment was in any event meaningless because Wooton may have been referring to something
other than the union picket line, such as, for example, to a drinking party. But Wooton did not
claim that he had seen Asher at any other wrong place, and since the record does establish
that he did see him on the picket line, it is fair to construe his remarks as carrying that
implication.
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shortly after Asher's discharge, Roe Collins, another employee, asked the Respondent
Turner why Asher had not come back to work Turner, as appears from Roe Collins' undenied
and credited testimony, replied that it was because Asher had been off a day or two and they
had seen him on the picket line.
The Respondents at the hearing made no attempt to support the reason originally given
Asher for his discharge, that his place was no longer available because it had fallen in. Evi-
dence submitted by the General Counsel shows that in point of fact Asher's place had not falleFi
in, and that while there had been some fall elsewhere in the mine, it had been of slight con-
sequence and had been quickly cleared away. That evidence stands in the record uncontro-
vetted.
The Respondents did make some effort to prove that Asher's place had been filled by a re-
placement hired during his absence, but their contention in that regard was completely de-
stroyed by their own payroll records. Both Wooton and Turner identified Asher's alleged
replacement as an employee named Walter Black. The Respondents' records show, however,
that Black was already in the Respondents' employ as a coal loader for some time prior to
February 21, when Asher's last absence began. What is more, the same records conclusively
establish that the Respondents hired no coal loaders at all during the entire period between
February 21 and 27. On February 27, the day Asher reported for work, they hired two, and in
the period immediately following they hired more. The Respondents in their brief seem to
have now abandoned the claim that Asher was denied his job because he had been replaced.
Though not stated to Asher at the time of his discharge, the primary basis on which the
Respondents would now defend Asher's discharge as a lawful one, is Asher's record of ab-
senteeism. Wooton testified that he had been looking for a chance to get rid of Asher for a
month or two because Asher had not come to work over one-third the time, and when Asher
missed 3 days in a row, he considered the time appropriate to lay him off for that reason.
Wooton did not explain why it was necessary, if he regarded Asher's prior absences as a
dischargeable offense, to wait until that particular time to get rid of him, nor does any pos-
sible rational explanation occur to me.
Asher's attendance record, it is true, was a spotty one, though not nearly as bad as Wooton,
by his testimony, would have it believed. The Respondents' payroll records show that between
October 23, when Asher was first employed, and February 20, the day he last worked, Asher
was absent 20 days out of the 84 working days in that period. But, so far as appears, no com-
plaint had been made to Asher about his absenteeism during the entire period of his employ-
ment. Though Asher's record was bad, it was not outstandingly so. The Respondents' payroll
records show that frequent absences were cotilmon among the Respondents' employees and
that the Respondents retained in their employ other employees whose attendance records were
equally as bad, if not worse. Thus it appears that during the same period of 84 working days,
Henry Holland had also been absent 20 days and Rob Holland 27 days; yet both Hollands are
still employed by the Respondents. The Respondents' counsel suggested at one point that the
Respondents had a rule that made 3 consecutive days' absence a dischargeable offense. But he
made no effort to support that claim by proof, and all employee witnesses questioned on that
point testified without contradiction that there was no such rule. The Respondents' payroll
records show that after the mine closed down on February 21, Cash Rice, like Asher a car-
loader, was continuously absent until March 3. Yet, though Rice's absence extended over a
period of some 6 consecutive working days while the mine was in operation, twice that of
Asher, Rice was taken back. Alice Wooton, wife of Don and the Respondents' bookkeeper,
testified that the only policy the Respondents had with regard to absences was that if an em-
ployee had been replaced during his absence he would not get his job when he returned, but
if a place was still open for him he could have it. Alice Wooton was unable to point to any
other instance where an employee had been discharged for absenteeism before he was re-
placed.
In an effort to establish that the Respondents harbored no malice toward employees who
participated in the picketing, the Respondent Turner testified that he had seen two other
company employees on the picket line, and that both had been permitted to return to work,
nevertheless. Turner identified the two as Charlie Collins and Roe Collins. Charlie Collins,
however, was not then in the Respondents' employ, having been discharged a month earlier,
as found above. As for RoeCollins, theevidence clearly serves to support rather than to refute
a finding of malice on the Respondents' part. Immediately before engaging in the picketing,
Roe Collins was employed on an hourly rated job as a trackman. Considered one of the Re-
spondents' most responsible employees, Roe Collins was also delegated certain supervisory
functions, being left in charge of the mine at times when other officials were away. When Roe
Collins along with some others reported for work on the Monday following the picketing,
Wooton disclosed a reluctance to allow Roe Collins to enter the mine. He first told Collins
WOOTEN AND TURNER COAL COMPANY 387
that there were more men in the mine than the motorman could handle. This assertion was
questioned by Collins who had been told by someone else that there were only four men then
in the mine. Wooton then left to check the board and, after a private discussion with Turner,
returned to tell Collins, according to Collins' undenied and credited testimony, that he had
seen some men on the picket line, and if they preferred picketing to working, perhaps it would
be better if they remained out picketing. Without asking further leave of the Respondents, Roe
Collins and the men with him simply jumped into an open car on its way Into the mine, and went
to work at their regular jobs that morning. The next day, Collins, although allowed to continue
working, was demoted from his hourly rated job as trackman to a job of loading coal on a
car-rate basis. Though the Respondents admitted demoting Roe Collins on February 26, they
offered no explanation for doing so. u
Wooton's comments to Roe Collins and the retailiatory action taken with regard to him
simply confirm what other evidence establishes--that the Respondents looked on employees
who participated in the picketing as having been in "the wrong place," and were resentful
against them because of their participation in such union activity. On all the evidence, I am
firmly convinced that the Respondents' real motive in discharging Asher was rooted in that
resentment. and that but for it Asher would not have been discharged. Certainly the reason,
all agree, given Asher, that his place had fallen in, and the additional reason the Respondents
say they gave, that he had been replaced in his job during his absence, could not have pro-
vided a real basis for the Respondents' action. As found, these reasons were sham, and the
fact they were asserted at all only serves further to reflect adversely upon the legitimacy of
the Respondents' true motive, for an employer who has a proper basis for discharge has no
need to look about for a fictitious one. The ground to which the Respondents finally shifted
their defense--Asher's poor attendance record--alone of the three has any support in fact.
But the question here is not whether the Respondents might have been justified in discharging
Asher for that reason, but whether in fact they did. All the record circumstances combine
toward the conclusion that this reason was advanced as an afterthought, and that if absenteeism
alone were involved Asher would not have been discharged. Among them, to recapitulate, are
the assertion of different reasons to Asher at the time of his discharge; the absence of earlier
warnings and complaints by the Respondents and their previous inaction though the same cause
had long existed; the failure to discharge others with equally had records or with longer periods
of consecutive absence; the exceptional departure in Asher's case from the Respondents'
policy of taking back absentees who had not since been replaced; and, finally, the comments
made to Asher and Roe Collins implying that Asher would not have been discharged but for
his union picketing activities. On the record as a whole I conclude and find that in discharging
Asher the Respondents discriminated against him because of his union activity on the picket
line. The discharge, I further find, constituted a violation of Section 8 (a) (3) of the Act, and of
Section 8 (a) (1) as well.
F. Miscellaneous interference, restraint, and coercion
As has been noted above in the section of this report entitled "Statement of the Case" the
complaint, in addition to alleging that the Respondents violated the Act by the discharges
considered above, charges the Respondents with certain specified acts of independwnt inter-
ference, restraint, and coercion. These specifications will now be considered.
1. The allegation that the Respondents unlawfully interrogated employees as to their
membership in the Union is found supported by Asher's uncontradicted testimony, already
adverted to, reflecting that Wooton while interviewing him for his job questioned him as to
whether or not he belonged to the Union.
2. The allegation that the Respondents advised employees thatthey could not use union men
is found supported by Charlie Collins' uncontradicted testimony that Respondent Turner told
him in the mine on one or more occasions that he could not work union men. It is also found
supported by Asher's testimony referred to in paragraph numbered 4, below.
3. The allegation that the Respondents threatened to discharge employees because of their
membership in the Union is found unsupported by credible evidence, except to the extent that
such a threat is to be inferred from Asher 's discharge and from the findings made and
adverted to in paragraph numbered 2, above.
is While agreeing that Collins' transfer was technically a demotion, Turner argued that it
actually was a promotion because Collins was able to, and in fact did, earn more as a coal
loader on a car- rate basis than he had earned on his other job. The record shows, however,
that coal loading is much more onerous and unpleasant work and requires a great deal more
physical effort to earn the money paid on the hourly rated job Collins previously held. Some-
time later--the record does not show just when--Collins was retransferred to his old job.
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The allegation that the Respondents refused to hire prospective employees because of
their union membership is found tangentally supported by the following : George Asher
testified without contradiction that, while working in the mine, he was approached on one
occasion by Don Wooton who told him that his brother, Day Asher, had applied for a job.
When George Asher stated that his brother was a very good worker , Wooton remarked that he
did not doubt it but believed Day Asher belonged to the "wrong gang," and had been signing
up men for the Union. Wooten added in that connection that he could not hire a man like that.
Day Asher was not hired. While Iconsider the evidence with regard to Day Asher insufficiently
developed on this record to support a finding that he was discriminatorily denied employ-
ment--even assuming such a finding could otherwise be made in the absence of a specific
allegation to that effect in the complaint--I think George Asher's credited testimony sufficiently
warrants a finding that Wooton by his remarks to George Asher was in effect warning George
Asher that union men were not wanted in the mine.
On the basis of the allegations found supported , I find that the Respondents violated Section
8 (a) (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents as set forth in section III , above, to the extent they have
been found to constitute unfair labor practices, occurring in connection with the operations
of the Respondents described in section I, above, have a close , intimate, and substantial
relation to trade, traffic , and commerce among the several States, and rend to lead to labor
disputes burdening and obstructing commerce and the free flow of commerce-
V. THE REMEDY
Having found that the Respondents have engaged in certain unfair labor practices , I shall
recommend that they be ordered to cease and desist therefrom and take certain affirmative
action in order to effectuate the policies of the Act.
Having found that the Respondents discriminated with regard to the hire and tenure of em-
ployment of George Asher, I shall recommend that Respondents offer to George Asher im-
mediate and fun reinstatement to his former or a substantially equivalent position 16 without
prejudice to his seniority or other rights and privileges and make him whole for any loss of
pay suffered by him as a result of the discrimination, by payment to him of a sum of money
equal to the amount he would have earned from February 27, 1952, the date of his discrimina-
tory discharge , to the date oftheofferof reinstatement less his net earnings17 to be computed
on a quarterly basis in the manner established by the Board in F. W. Woolworth Company,
90 NLRB 289, 291-294. Earnings in one particular quarter shall have no effect upon the back-
pay liability for any other such period. It will also be recommended that the Respondents
make available to the Board , upon request , payroll and other records to facilitate the check-
ing of back pay due.
As the unfair labor practices committed by the Respondents were of a character striking
at the roots of employee rights safeguarded by the Act; and disclose a propensity on the part
of the Respondents to continue, although not necessarily by the same means, to defeat self-
organization of its employees , it will also be recommended that the Respondents cease and
desist from infringing in any manner upon the employee rights guaranteed in Section 7 of the
Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I
make the following:
CONCLUSIONS OF LAW
1. By discriminating in regard to the hire and tenure of employment of George Asher,
thereby discouraging membership in labor organizations , the Respondents have engaged in
and are engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
2. By interfering with , restraining , and coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act , the Respondents have engaged in and are engaging
in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
16 The Chase National Bank of the City of New York. San Juan, Puerto Rico, Branch, 65
NLRB 827.
IT Crossett Lumber Company,8 NLRB 440, 447-498; Republic Steel Corporation v. N L. R. B..
311 U S. 7.
WOOTEN AND TURNER COAL COMPANY 389
3. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
4. The Respondents have not engaged in unfair labor practices as alleged in the complaint
by reason of their discharge of Arthur Sizemore , Richard Sizemore , Ebert Sizemore, Pearl
Gibson, Kelly Gibson, Rufus Jones, Clay Gibson, Woodrow Gibson, and Charlie Collins and by
their refusal to reemploy Clay Gibson.
[Recommendations omitted from publication.]
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby
notify our employees that:
WE WILL NOT discourage membership in any labor organization by discriminatorily
discharging employees or denying them reinstatement or reemployment , or by dis-
criminating in any other manner in regard to their hire or tenure of employment or any
term or condition of employment.
WE WILL NOT discharge employees for engaging in protected concerted activity,
interrogate employees or job applicants about their membership In any labor organiza-
tion, advise employees that we willnot hire or retain in our employ members of any labor
organization , or in any other manner interfere with, restrain , or coerce our employees
in the exercise of their right to self-organization , to form labor organizations, to join
or assist any labor organization , to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection , or to refrain from any or all of
such activities , except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of employment, as au-
thorized in Section 8 (a) (3) of the Act.
WE WILL offer George Asher immediate and full reinstatement to his former or
substantially similar position without prejudice to his seniority and other rights and
privileges and make him whole for any loss of pay suffered as a result of the discrimi-
nation against him.
All our employees are free to become, remain , or refrain from becoming or remaining
members of any labor organization , except as that right may be affected by an agreement
requiring membership in a labor organization as a condition of employment , as authorized
in Section 8 (a) (3) of the Act. We will not discriminate in regard to the hire or tenure of
employment or any term or condition of employment against any employee because of
membership in or activity on behalf of any labor organization.
WOOTON AND TURNER COAL COMPANY,
Employer.
Dated ................. By ... « .................................................... « . ............................
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be altered,
defaced, or covered by any other material.