Action Mining

National Labor Relations Board - Board Decisions

Aug 25, 1995

318 N.L.R.B. 652 (N.L.R.B. 1995)

652
318 NLRB No. 80
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent, the General Counsel, and the Union have ex-
cepted to some of the judge’s credibility findings. The Board’s es-
tablished policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the rel-
evant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for
reversing the findings.
2 At par. 6 of the ‘‘Amended Conclusions of Law’’ section of the
supplemental decision, the judge stated that on or about September
7, 1988, the Respondent unlawfully threatened a group of employees
with the withholding of pay raises because of the union organizing
campaign. We do not affirm this conclusion because the judge did
not actually find such a violation in the text of either decision and
it does not have a sufficient basis in the credited evidence. 3 All dates hereafter are in 1988 unless otherwise noted.
Action Mining, Inc./Sanner Energies, Inc. and
United Mine Workers of America. Cases 6–
CA–21161, 6–CA–21227, 6–CA–21281, 6–CA–
21299, 6–CA–21326, and 6–RC–10066
August 25, 1995
DECISION, ORDER, AND CERTIFICATION
OF RESULTS OF ELECTION
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND TRUESDALE
On September 18, 1990, Administrative Law Judge
Russell M. King, Jr., issued the first of the attached
decisions. The Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed a brief an-
swering the Respondent’s exceptions. By unpublished
order dated July 11, 1991, the Board remanded the
proceeding to the judge for further consideration of
certain of the unfair labor practice allegations in the
consolidated complaint, holding in abeyance consider-
ation of the remaining allegations in dispute. On May
19, 1993, the judge issued the attached supplemental
decision. The General Counsel and the Union filed ex-
ceptions to the supplemental decision and supporting
briefs, and the Respondent filed cross-exceptions to the
supplemental decision and a brief both supporting its
cross-exceptions and answering the General Counsel’s
exceptions. The General Counsel also filed a motion,
with supporting memorandum, for a hearing de novo
before a new judge should the Board not agree sub-
stantially with the General Counsel’s exceptions, espe-
cially those addressing the judge’s credibility resolu-
tions in his supplemental decision.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decisions and the
record in light of the exceptions, cross-exceptions, and
briefs and has decided to affirm the judge’s rulings,
findings,1 and conclusions2 only to the extent consist-
ent with this Decision and Order. The Board has fur-
ther decided that a Certification of Results of Election
should be issued.
I. BACKGROUND AND THE JUDGE’S INITIAL
DECISION
This is a consolidated unfair labor practice/repre-
sentation proceeding. The Respondent consists of two
corporate entities: Action Mining, Inc. and Sanner En-
ergies, Inc. It is undisputed that these two entities con-
stitute a single employer for purposes of the law appli-
cable in this case. The Respondent is engaged in the
strip mining and sale of coal, primarily in and around
Somerset County, Pennsylvania. During the relevant
time period in 1988,3 the Respondent employed 61
employees in the production and maintenance unit the
Union sought to represent. In May, certain of the Re-
spondent’s employees contacted the Union, thus initiat-
ing an organizing campaign. On July 22, the Union
filed a representation petition with the Board’s Re-
gional Office, and the Respondent was notified of the
filing shortly thereafter. The Respondent’s immediate
reaction was to engage in a series of incidents with in-
dividual employees which were subsequently alleged
to be unfair labor practices. This initial series of inci-
dents, more fully described below, occurred between
July 25 and August 1. On August 22, the Respondent
posted a written notice to its employees which sought
to identify and disavow this allegedly unlawful con-
duct.
On August 25, the Respondent sent the first of five
letters to its employees, setting forth in detail the bases
of its opposition to the employees’ representation by
the Union. In addition, between September 9 and 15,
the Respondent held eight meetings in which it ad-
dressed small groups of employees about its concerns
regarding union representation. On September 19, the
Respondent addressed all of the employees in a speech
which summarized the information and campaign
views it had conveyed during the previous 4 weeks.
On September 20, the Board conducted the representa-
tion election; the Union lost 27–34. Pursuant to unfair
labor practice charges and objections to the election
filed by the Union, certain preelection conduct of the
Respondent, involving both its formal campaign state-
ments and incidents with individual employees, was al-
leged to have violated the Act and interfered with the
election. Between late September and early November,
several additional incidents occurred in which the Re-
spondent allegedly engaged in unlawful discrimina-
tion—essentially acts of alleged retaliation against cer-
tain employees because of their union support or activ-
ity during the organizing campaign.
In his first decision, the judge concluded that Terry
Pletcher and Dave Wyant, who were supervisors and
653ACTION MINING
4 The preelection unfair labor practices found were sufficient to es-
tablish most of the Union’s objections to the election. Other objec-
tions were overruled by the judge, and the Union did not file excep-
tions.
5 In the ‘‘Amended Remedy’’ section of his supplemental decision,
the judge erroneously suggested that only unfair labor practices in-
volving unlawful discrimination under Sec. 8(a)(3) are to be consid-
ered ‘‘hallmark’’ violations for purposes of a Gissel order. In fact,
‘‘hallmark’’ unfair labor practices may include, inter alia, threats of
plant closure or job loss in violation of Sec. 8(a)(1). See, e.g., NLRB
v. Jamaica Towing, Inc., 632 F.2d 208, 212 (2d Cir. 1980). This
error does not affect our ultimate disposition of this case.
6 Accordingly, the General Counsel’s motion for a hearing de novo
before a new administrative law judge is denied.
two of several co-owners of the Respondent, violated
Section 8(a)(1) as a result of the incidents between
July 25 and August 1. Thus the judge found that, prior
to the Respondent’s attempted disavowal, they made
unlawful threats of plant closure to individual employ-
ees on July 25 (twice), July 26, July 27 (twice), and
August 1. In addition, he found that, during the same
period, Wyant unlawfully interrogated an employee
and Pletcher unlawfully created the impression of sur-
veillance on three occasions. These 8(a)(1) violations
found by the judge involved about seven of the Re-
spondent’s employees.
In addition, although the judge found that the Re-
spondent’s August 22 notice to the employees initially
fulfilled the requirements for an effective disavowal of
the unfair labor practices above, he concluded that the
Respondent thereafter violated the Act in several inci-
dents and that this subsequent unlawful conduct invali-
dated the disavowal notice. Specifically, he found that
the Respondent’s August 25 letter and a segment of its
September 19 speech violated Section 8(a)(1). He also
found that the Respondent violated Section 8(a)(1) in
an incident on or about September 12 involving em-
ployee Neil Berkley and in two incidents involving a
total of four employees on September 20, the day of
the election.4
Further, the judge, in his initial decision, concluded
that the various postelection allegations of unlawful
discrimination were all meritorious. He found that the
short-term layoffs of employees Marker, Yutzy, and
Lee on several dates in September, October, and No-
vember violated Section 8(a)(3). In addition, he found
that the Respondent violated Section 8(a)(3) by a
change in working conditions affecting Marker, and by
a reduction in Lee’s wages and working hours. He also
found that a reduction in Berkley’s working hours and
his subsequent discharge violated Section 8(a)(3). Fi-
nally, because of the quantity and nature of all the un-
fair labor practices committed before and after the
election, the judge recommended a bargaining order
pursuant to NLRB v. Gissel Packing Co., 395 U.S. 575
(1969), in lieu of directing a second Board election.
II. THE BOARD’S REMAND AND THE JUDGE’S
SUPPLEMENTAL DECISION
The Respondent excepted to all of the judge’s sig-
nificant findings. On review of the record, and espe-
cially in light of the Respondent’s exceptions to the
judge’s factfindings concerning the postelection 8(a)(3)
violations, the Board remanded this proceeding to the
judge for further consideration of evidence relevant to
these alleged instances of unlawful discrimination. In
its order remanding, the Board noted that it would
defer ruling on the remaining issues in the case be-
cause of their potential relationship with the issues on
remand.
In his supplemental decision, the judge reconsidered
his previous factual findings, including his credibility
resolutions, with respect to the 8(a)(3) allegations. As
a result of the judge’s ensuing modifications to his
credibility resolutions, he vacated his earlier 8(a)(3)
findings, concluding that all of the postelection allega-
tions should be dismissed. In addition, in light of his
revised credibility findings, he overruled his previous
conclusion that the Respondent violated Section 8(a)(1)
in the incident involving employee Berkley on or
about September 12, and recommended dismissal of
that allegation as well. In light of these dismissals, the
judge withdrew his recommendation for a Gissel bar-
gaining order and proposed instead that a second elec-
tion be conducted because of the impact of the other
preelection 8(a)(1) violations on the September 20
election.5
III. DISCUSSION
We affirm the judge’s dismissals of certain unfair
labor practice allegations in his supplemental decision,
and we affirm his related findings in that decision to
the extent they are consistent with our decision here.
In particular, we are satisfied that his supplemental
credibility resolutions and factfindings are consistent
with a thorough, impartial review of the record regard-
ing the issues which were the subject of the Board’s
order remanding.6 Left before us for consideration are
the preelection 8(a)(1) violations found by the judge in
his first decision and affirmed in his supplemental de-
cision. For the reasons stated below, we find that the
allegedly unlawful conduct occurring prior to August
22 was adequately repudiated by the Respondent, and
that the General Counsel did not establish that the
postrepudiation incidents left in issue amounted to vio-
lations of the Act. Accordingly, we will dismiss the
complaint and certify the results of the election.
A. The Respondent’s Notice Disavowing Alleged
8(a)(1) Violations Occurring Before August 22
The alleged preelection violations fall into two basic
categories—those which the Respondent sought to dis-
avow in its notice of August 22 and those which alleg-
654 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 The August 22 disavowal notice is set forth in full in sec. III,A,4
of the judge’s first decision.
8 We note that no exceptions were filed to the judge’s finding in
this regard.
9 As noted above, a fifth allegation—that an agent of the Respond-
ent had interrogated Neil Berkley on September 12—was dismissed
by the judge on credibility grounds in his supplemental decision.
edly occurred after that notice. As explained below, the
question whether we may properly find violations on
the basis of the prenotice conduct turns both on char-
acteristics of the notice and on the existence of
postnotice violations. We first address the notice itself,
which the Respondent posted on August 22 in an effort
to disavow various unfair labor practices allegedly
committed between July 25 and August 1.7
The Board’s standard for an appropriate repudiation
of unfair labor practices is set forth in Passavant Me-
morial Hospital, 237 NLRB 138 (1978). For a repudi-
ation to be effective, it must be timely, unambiguous,
specific in nature to the coercive conduct, free from
other proscribed conduct, and adequately published to
the employees involved. Additionally, it must set forth
assurances to employees that no interference with their
Section 7 rights will occur in the future, and—most
significant in the instant case—there must in fact be no
unlawful conduct by the employer after publication of
the repudiation. Id. at 138–139. A Passavant disavowal
adequate to remedy unfair labor practices within the
critical period before a Board election is also sufficient
to restore the laboratory conditions necessary for a
valid election. See Gaines Electric Co., 309 NLRB
1077, 1081 (1992); Agri-International Inc., 271 NLRB
925, 926–927 (1984).
We agree that the Respondent, through the conduct
of Pletcher and Wyant, committed the series of unfair
labor practices between July 25 and August 1 found by
the judge. However, we also agree with the judge that,
consistent with the Passavant requirements above, the
August 22 notice was sufficient, on its face, to repudi-
ate these unfair labor practices.8 Under Board law and
policy, then, the Respondent’s predisavowal unfair
labor practices are considered adequately repudiated,
adequately remedied, and lacking in significant impact,
subject to the Passavant proviso that no unfair labor
practices were committed subsequent to the disavowal
notice. Accordingly, as the judge and the parties per-
ceived this case, and as we do, the primary, critical
issue here is whether the Respondent committed any
unfair labor practices after posting its disavowal. The
judge found that four such violations occurred, any one
of which would serve to rekindle the unlawful impact
of the predisavowal violations. For the reasons set
forth below, we conclude that no postdisavowal unfair
labor practices were committed.
B. The Allegedly Unlawful Postdisavowal
Statements
In each of the four postdisavowal incidents on which
the judge predicated findings that an agent of the Re-
spondent made statements in violation of Section
8(a)(1),9 the Respondent was expressing its opposition
to the employees’ choice of the Union to represent
them. Such situations, as we stated in Mediplex of
Danbury, 314 NLRB 470 (1994):
raise legal questions involving the interplay of
two essential principles of the Act: an employer’s
free-speech right, set forth in Section 8(c), and the
Section 7 right of employees to self-organize, pro-
tected by Section 8(a)(1). The Supreme Court es-
tablished the general standard for evaluating the
lawfulness of employer statements addressing em-
ployees’ Section 7 activity in NLRB v. Gissel
Packing Co., 395 U.S. 575 (1969). In essence,
Gissel indicates that the analytical question is
whether the employer’s statement constitutes an
unlawful threat of retaliation in response to pro-
tected activity, or a lawful, fact-based prediction
of economic consequences beyond the employer’s
control. See 395 U.S. at 617–619 . . . a signifi-
cant component in the analysis of an employer’s
remarks to employees which involve protected ac-
tivity is ‘‘the context of its labor relations set-
ting,’’ Gissel, supra, 395 U.S. at 617. In other
words, the Board considers the totality of the rel-
evant circumstances, id. at 589; NLRB v. Virginia
Electric & Power Co., 314 U.S. 469, 477–479
(1941) . . . .
314 NLRB at 470–471. See also, e.g., Harrison Steel
Castings Co., 293 NLRB 1158, 1159 fn. 4 (1989);
Chrysler Airtemp South Carolina, 224 NLRB 427,
428, 431–432 (1976); Hedstrom Co., 223 NLRB 1409
fn. 5, 1415–1416 (1976), affirmed in relevant part 558
F.2d 1137 (3d Cir. 1977); M. O’Neil Co., 211 NLRB
150, 150–151 (1974), affirmed mem. 514 F.2d 894
(D.C. Cir. 1975).
The significance of the relevant context, of course,
is its role in supplying meaning to what may otherwise
be an ambiguous or misleading expression if consid-
ered in isolation. It is apparent from our review of the
record that the judge’s key error in addressing the four
incidents at issue was his failure to acknowledge and
account for the factual context in which they occurred.
1. The relevant factual context
Early in his first decision, the judge pointed out that
at the time of the 1988 organizing campaign, the strip
mining industry in the Respondent’s geographic area
had been negatively affected by a number of economic
factors, and that many local coal mining operators had
gone out of business. In fact, as the judge noted, the
economic downturn had resulted in the Respondent’s
655ACTION MINING
10 One of the documents distributed to employees during these
meetings was an excerpt from a Mine Workers publication dated
May 1988, stating that the Union currently was engaged in strikes
against more than 30 companies nationally, with almost 2000 mem-
bers on strike.
cutting its employees’ wages by $.50 per hour in 1986,
and the 1988 campaign was driven in significant part
by the employees’ dissatisfaction with this continued
wage reduction. We note in addition the undisputed
testimony of Robert Moore, a Mine Workers organizer
involved in the 1988 campaign, that at the time of the
campaign it was common knowledge among the Re-
spondent’s employees that a number of mining oper-
ations statewide had closed down due to economic
conditions, and that the production of coal and the
number of working employees in the strip mining in-
dustry in Somerset County had severely decreased.
There is simply no dispute in this case that the coal
mining industry in and around Somerset County was in
a substantially depressed economic condition, that
many mining businesses had closed and many mining
employees had lost their jobs, and that the Respond-
ent’s employees were generally aware of these facts.
After posting its disavowal notice on August 22, the
Respondent engaged in what clearly appears to have
been a planned, multi-staged campaign of its own to
oppose the Union. The August 25 letter to employees,
alleged as an unfair labor practice and discussed in de-
tail below, was the first of five letters sent to the em-
ployees which set forth the Respondent’s campaign po-
sitions. All five letters were signed by Larry Sanner,
a co-owner of the Respondent and president of its Ac-
tion Mining operation. On September 2, the employees
received a letter discussing, inter alia, the nature and
amount of dues which the Union would require under
a union-security clause, and pointing out that the
Union could not guarantee higher wages and benefits
in return for the employees’ dues payments. The Re-
spondent’s September 13 letter discussed the ramifica-
tions of an economic strike, including the loss of
wages and benefits and the possible loss of employ-
ment positions to permanent replacements. The letter
of September 15 focused on economic factors, pointing
out, inter alia, that between 1978 and 1987 the number
of coal operators in Pennsylvania had dropped from
1100 to 600, and that, during the same period, the
number of workers employed in the coal industry state-
wide had dropped from 43,000 to 19,000. The letter
further stated that in Somerset County during the same
time period the number of workers employed in the
coal industry had dropped from 3200 to 956. This let-
ter also noted the stiff competition among coal opera-
tors, including the Respondent, to retain customers, re-
quiring sales of coal at the lowest possible customer
bids. Finally, the letter set out a list of 29 coal compa-
nies which had shut down operations, the vast majority
of them located in Somerset County. The Respondent’s
final letter, dated September 16, summarized the var-
ious points in opposition to unionization the Respond-
ent had made in its previous letters and in its series
of employee meetings, discussed below, which had
concluded by this time.
Between September 9 and 15, the Respondent held
eight small, group meetings for the employees to dis-
cuss the Respondent’s positions opposing the Union.
Each of the employees attended at least one of the
meetings. The meetings lasted between 1-1/2 and 2
hours; each of them was conducted in three parts.
Douglas Sanner, a co-owner and the president of the
Respondent’s Sanner Energies operation, addressed the
employees on the nature of the bargaining process
should the Union become the employees’ representa-
tive. He explained, inter alia, the Respondent’s obliga-
tion to bargain in good faith and the fact that there was
no guarantee that employees would gain wages and
benefits through collective bargaining. Judith Pletcher,
a co-owner and the treasurer of the Respondent’s Ac-
tion Mining operation, provided information, with doc-
umentation, concerning the Respondent’s current finan-
cial condition. She informed the employees, inter alia,
that the Respondent had lost almost $2 million be-
tween 1985 and mid-1988 and had an outstanding loan
liability of almost $1 million. She also set out a de-
tailed comparison between the Respondent’s profit-
sharing plan and the Union’s pension plan. Action
Mining President Larry Sanner addressed current eco-
nomic conditions in the coal mining industry in the
local area, referring, inter alia, to specific companies
which had recently either closed down or laid off large
numbers of employees. He also discussed recent strikes
by the Mine Workers against specific local companies
and the economic impact of those strikes.10 In addi-
tion, he set forth the potential economic consequences
if there should be a strike against the Respondent: the
right to hire permanent replacements, and the possibil-
ity of loss of customers, of layoffs, and of closure of
the operations.
The Respondent’s formal campaign against the
Union ended with a speech by Larry Sanner to all of
the employees summarizing its positions on September
19, the day before the election. This speech, one para-
graph of which was alleged to be an unfair labor prac-
tice, is discussed in relevant detail below. It is note-
worthy that, with the exception of the initial August 25
letter and the one paragraph of the final September 19
speech, none of the Respondent’s formal communica-
tions with the employees described here was alleged to
violate the Act. On this record, in light of the sur-
rounding context, they constituted lawful discussions
of campaign issues.
656 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 Subsequent campaign communications can provide a lawful con-
text for a facially ambiguous remark. E.g., Southern Frozen Foods,
Inc., 202 NLRB 753, 754–755 (1973), affd. sub nom. Laborers v.
NLRB, 501 F.2d 868, 876–878 (D.C. Cir. 1974) (speech by Kato
Harvey). We find that this is particularly true when, as here, the re-
mark in dispute is accompanied by a specific promise of further ex-
planation. In fact, the judge conceded that the Respondent’s subse-
quent communications with employees provided objective evidence
substantiating the possible adverse business effects mentioned in its
August 25 letter, but he inferred a sinister, manipulative motive from
the failure to include all of this evidence in the letter itself. We dis-
agree. The 8(a)(1) issue presented is one of objective effects, not
motivation. In any event, we find no warrant for accusing the Re-
spondent of impermissible brinkmanship in a letter that did make a
summary reference to objective, well-known economic facts support-
ing its opinion and specifically promised further explanation.
2. The August 25 letter
On or about August 25, Larry Sanner sent the fol-
lowing letter to the Respondent’s employees:
TO: ALL ACTION MINING & SANNER ENER-
GIES EMPLOYEES
As I informed you earlier this month, the Na-
tional Labor Relations Board (NLRB) election
will be held on Tuesday, September 20, from 2:00
p.m. to 3:30 p.m. At that time all production and
maintenance employees and truckdrivers will be
able to vote on whether or not you want the Mine
Workers Union in our operations.
The election will be by secret ballot and will be
supervised by the NLRB.
I feel very strongly that the future of our Com-
panies and of everyone who works here will be
at stake in the election. We are against this union
because we are convinced that it could seriously
affect our being able to stay in business. We are
one of the last surviving strip mining operations
in the whole area, and we have been fighting to
try and survive while the industry is going
through one of its worst periods ever.
I firmly believe that this Union’s long record of
creating problems and causing strikes could hurt
us even more at a time like this.
In a few days we must send the NLRB a list
with the names and home addresses of everyone
who is eligible to vote in the election. I wanted
you to know this because the list will be given to
the Union and their organizers can use it to come
to your homes when you’re not working.
Between now and the time of the election I in-
tend to sit down with you and go over the issues
that are important to all of us. These issues ought
to be discussed carefully so that you will have all
the facts to make a decision. And if anytime you
have a question or something you want to talk
about, let me know and we can get together. [Em-
phasis in original.]
In finding that this letter violated Section 8(a)(1),
the judge focused almost exclusively on the one sen-
tence: ‘‘We are against this union because we are con-
vinced that it could seriously affect our being able to
stay in business.’’ He found that the letter provided no
economic or other objective factual support for this
statement, and that it was not otherwise phrased in a
manner consistent with Gissel’s view of a lawful ex-
pression. The judge noted that supportive economic in-
formation was available to the Respondent at the time
of the letter and that it in fact later communicated this
information to the employees in the September group
meetings. He found that the Respondent’s failure to in-
clude this information in the letter suggested that it
was trying to benefit from the impact of a clearly un-
lawful plant closure threat by ‘‘covering its tracks,’’ in
effect, with subsequent lawful communications.
We acknowledge that Larry Sanner’s status as a co-
owner and a chief executive of the Respondent en-
hanced the significance of what was being conveyed in
the letter. Even accounting for this, however, it is ap-
parent that the judge’s view of the letter is erroneous.
He failed to analyze the letter in its full context—with
regard to the entirety of the letter itself and more
broadly with regard to the letter’s place in the factual
context of this case. Thus, in the third paragraph of the
letter, immediately after the sentence which the judge
found unlawful, is the following: ‘‘We are one of the
last surviving strip mining operations in the whole
area, and we have been fighting to try and survive
while the industry is going through one of its worst pe-
riods ever.’’ This third paragraph as a whole refers to
matters which were commonly known to the employ-
ees—that the strip mining industry in Somerset County
was in a serious economic decline, that operations like
the Respondent’s had been closing down, and that un-
employment among coal mining employees due to the
economic conditions had risen precipitously. In this
light, the letter’s ‘‘stay in business’’ language is an
ambiguous statement at worst, rather than the overt re-
taliatory threat the judge found. Further, in the last
paragraph, the letter points out the Respondent’s inten-
tion to engage in more discussion of the campaign
issues with the employees and to supply them with
‘‘all the facts to make a decision,’’ thus making clear
that the message being conveyed in the letter was not
complete. And, in fact, as set forth above, the Re-
spondent followed up the August 25 letter, in other let-
ters and in meetings, with a considerable amount of
relevant information substantiating the Respondent’s
assertions concerning economic conditions not within
its control which were affecting its ability to continue
operations.11
In these circumstances, viewing the letter as it was
reasonably viewed by the employees—a broad prefa-
tory overview which, as the letter indicated, would
later be fleshed out—we conclude that it did not con-
657ACTION MINING
12 The failure of the Respondent to offer proof that customers had
actually stated they would withdraw business out of concern for the
possibility of strikes does not make unlawful an objectively reason-
able statement of opinion that this could happen. E.g., CPP Pinker-
ton, 309 NLRB 723 (1992), and Buck Brown Contracting Co., 283
NLRB 488 (1987).
13 Contrary to the judge’s finding, there is no evidence that Sanner
ordered the two employees to report to the scale house.
14 It is undisputed that the ‘‘two years’’ reference was to a require-
ment of 2 years of employment under the coverage of a relevant bar-
gaining agreement in order to establish eligibility for the Union’s
pension plan.
stitute a threat of retaliatory plant closure should the
employees choose the Union. Rather, it was part of an
objective, fact-based expression of potential con-
sequences of unionization beyond the Respondent’s
control. See, e.g., Chrysler Airtemp, supra at 428, 431–
432; compare, e.g., American Spring Wire Corp., 237
NLRB 1551 (1978) (unlawful plant closure threat
found in the absence of supporting objective facts).
Therefore, the allegation that the August 25 letter vio-
lated Section 8(a)(1) is dismissed.
3. The September 19 speech
On September 19, the day before the election, Larry
Sanner addressed all of the Respondent’s employees
from a prepared text. The speech lasted about 10 min-
utes. It was, in effect, a detailed summary of the cam-
paign positions the Respondent had conveyed to the
employees in its letters and group meetings over the
previous 4 weeks. Thus, inter alia, Sanner reviewed the
nature of the collective-bargaining process, the nega-
tive economic conditions in the region affecting the
strip coal mining industry generally and the Respond-
ent in particular, the comparative benefits of the Re-
spondent’s profit-sharing plan and the Union’s pension
plan, and the possible consequences of a strike, includ-
ing the potential loss of customers.
In further reference to the possible loss of business,
Sanner read the following paragraph:
But if the Union got in here, we might even
lose customers without having a strike. We don’t
know how any of our customers would react if
they learned that we had to bargain with UMW
and if they were concerned that the bargaining
might end up in a strike. For example, we supply
about 15 to 20,000 tons of coal to cement compa-
nies in Eastern Pennsylvania. If they were worried
about the fact that regular deliveries could be in-
terrupted by a strike, they might choose to put
their eggs in several baskets instead of just ours.
If they did, that could hurt us. Everyone here
knows that it’s difficult to find a market for the
low volatile coal we produce and we’re at a ter-
rible disadvantage to those operators who can ship
on Conrail at a freight cost 3 to 4 dollars a ton
below ours. [Emphasis in original.]
The judge found that this paragraph, apart from the
rest of the speech, constituted a threat of loss of cus-
tomers due to unionization in violation of Section
8(a)(1), because it lacked any supporting facts.
We again acknowledge the effect of Larry Sanner’s
status in enhancing the impact of what was commu-
nicated. However, we also note that the statement at
issue is one paragraph in a fairly lengthy speech other-
wise free of any alleged taint, and that the statement
followed logically from Sanner’s preceding, legitimate
remarks about the potential loss of customers as a pos-
sible result of a strike. It is also noteworthy that the
tone of the paragraph is exceedingly speculative, i.e.,
one hypothetical followed by another, and another, in
related fashion, thus diluting its significance. Further,
all of these related suppositions involve conceivable
concerns of the Respondent’s customers regarding
interruptions in deliveries in the event of a strike, i.e.,
matters beyond the Respondent’s control. Finally, there
is at least some factual basis supporting the statements
in the paragraph in the reference to the competition
among coal operators for customers—a subject Sanner
had touched on earlier in the speech and had discussed
with the employees in his September 15 letter.
Taking all of the above into account, it is unreason-
able to perceive in this one paragraph of the speech
any ‘‘implication that [the Respondent] may or may
not take action solely on his own initiative for reasons
unrelated to economic necessities and known only to
him . . . .’’ Gissel, 395 U.S. at 618.12 In other words,
we find no unlawful threat of retaliation, implicit or
otherwise, in this statement, and accordingly, we dis-
miss the allegation that it violated Section 8(a)(1).
Compare, e.g., Harrison Steel Castings, 293 NLRB at
1158–1159 (statement concerning loss of business
found to be an unlawful threat pursuant to an assess-
ment of all relevant circumstances, including the em-
ployer’s other unlawful conduct).
4. The September 20 discussion with employees
Vena and Robertson
On the morning of the election, September 20, Larry
Sanner had a conversation with employees Vena and
Robertson in an area of the Respondent’s facility
called the scale house.13 They discussed the relative
merits of the Respondent’s profit-sharing plan and the
Union’s pension plan, with Sanner providing concrete
figures representing the amounts each of the employees
had accumulated in the profit-sharing plan. Vena said
he thought the Union’s plan would be better because
it included insurance. According to Robertson’s cred-
ited testimony, Sanner then said, referring to the
Union’s plan, ‘‘that if the Union come in, there would
be no guarantee that we’d get two years under the
union14 . . . and that, you know, at men our age,
658 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
where would we get a job in construction.’’ The con-
versation lasted about 15 minutes. The judge found
that Sanner’s statement that there was no guarantee
that the two would work long enough to qualify for the
Union’s pension plan was a threat of loss of employ-
ment in violation of Section 8(a)(1).
Sanner’s comments, considered in isolation, might
well be the basis for an unfair labor practice. However,
during the weeks leading up to September 20, the Re-
spondent had conveyed to all the employees, in letters
and in meetings, extensive, objective information relat-
ing to its tenuous economic position due to conditions
in the industry, as well as detailed, comparative infor-
mation concerning the profit-sharing plan and the
Union’s pension plan. Sanner had summarized this in-
formation, as well as other matters relating to the Re-
spondent’s campaign positions, in a speech to the em-
ployees only the day before. Given this factual back-
ground, Vena and Robertson would reasonably have
understood Sanner’s statement that there was no guar-
antee of ‘‘two years under the union’’ as referring to
an arguable weakness in the Union’s pension plan, in
light of the precarious economic circumstances facing
the Respondent’s operation. Again, even accounting
for Sanner’s management/ownership status, the record
does not provide an adequate basis for an inference
that Sanner was suggesting that he would, ‘‘solely on
his own initiative,’’ engage in retaliation—whether job
loss or plant closure—should the employees vote in
the Union. In these circumstances, Sanner’s further re-
mark concerning the employees’ age and the difficulty
of finding new jobs was not sufficient to turn the dis-
cussion into a threat of retaliation because of union or-
ganizing. Here, it was no more than a blunt statement
representing part of the legitimate give and take of a
conversation about campaign issues, and permissible
under Section 8(c). See, e.g., Optica Lee Borinquen,
Inc., 307 NLRB 705, 708 (1992). Accordingly, this
8(a)(1) allegation is dismissed.
5. The September 20 discussion with employees
Berkley and Savage
According to the credited testimony, Larry Sanner
had a similar conversation about the Respondent’s
profit-sharing plan with employees Berkley and Savage
on the morning of September 20. Berkley, referring to
the fact he had been laid off previously for economic
reasons, said, ‘‘what’s to say that I’m going to be here
in two weeks or two months . . . that [profit-sharing
plan] won’t do me no good then.’’ Sanner responded,
‘‘what makes you think you are going to be here in
two weeks or two months if the Union’s here.’’ The
discussion ended soon after this exchange. The judge
concluded that Sanner’s statement here also constituted
a threat of job loss in violation of Section 8(a)(1).
The relevant factual context for this incident is es-
sentially the same as for the other September 20 inci-
dent discussed above. In the days and weeks leading
up to this discussion, the employees had been provided
with extensive, detailed information concerning both
the Respondent’s unsteady financial status due to eco-
nomic conditions beyond its control and the relative
merits of Respondent’s profit-sharing plan and the
Union’s pension plan. Berkley, referring to a previous
economic layoff, remarked on the unpredictability of
continued employment with the Respondent in criticiz-
ing the usefulness of the Respondent’s profit-sharing
plan. Sanner responded in kind, noting that the unpre-
dictable nature of employment with the Respondent
would not change simply by voting in the Union. This
is the reasonable interpretation of the exchange be-
tween Berkley and Sanner, and most particularly of
Sanner’s repetition of the phrase ‘‘two weeks or two
months’’ in his retort. These circumstances do not
yield a reasonable inference that Sanner was implying
an unlawful threat of retaliation. Rather, his comment
was a product of conversational give and take concern-
ing campaign issues, and lawful under Section 8(c).
This complaint allegation is therefore dismissed.
IV. CONCLUSION
In the absence of any unfair labor practices occur-
ring after the Respondent’s disavowal notice of August
22, its Passavant repudiation of the 8(a)(1) violations
committed between July 25 and August 1 remained ef-
fective, and the laboratory conditions for the Septem-
ber 20 election remained intact. In the absence of any
unfair labor practices to remedy, we will dismiss the
complaint, and in light of the 27–34 vote of the em-
ployees rejecting union representation, we will certify
the results of the election.
ORDER
The consolidated complaint in Cases 6–CA–21161,
6–CA–21227, 6–CA–21281, 6–CA–21299 and 6–CA–
21326 is dismissed.
CERTIFICATION OF RESULTS OF ELECTION
IT IS CERTIFIED that a majority of the valid ballots
in Case 6–RC–10066 have not been cast for the United
Mine Workers of America, and that it is not the exclu-
sive representative of the bargaining unit employees.
Patricia J. Scott, Esq. and JoAnn F. Dempler, Esq., for the
General Counsel.
Robert P. Weintraub, Esq. and Richard D. Wayne, Esq.
(Hinckley, Allen, Snyder & Comen), of Boston, Massachu-
setts, for the Respondent Employer.
Michael Dinnerstein, Esq., of Washington, D.C., for the
Charging Union and the Petitioner.
659ACTION MINING
1 All dates hereafter are in 1988 unless otherwise noted.
2 The pertinent parts of the Act (29 U.S.C. § 151 et seq.) read as
follows:
Sec. 8(a). It shall be an unfair labor practice for an employer—
(1) to interfere with, restrain, or coerce employees in the exercise
of the rights guaranteed in Section 7 . . . (3) by discrimination in
regard to hire or tenure of employment or any term or condition of
employment to encourage or discourage membership in any labor or-
ganization. . . .
. . . .
Sec. 7. Employees shall have the right to self-organization, to
form, join or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining or
other mutual aid or protection. . . .
3 The term ‘‘General Counsel,’’ when used here, will normally
refer to the attorneys in the case acting on behalf of the General
Counsel of the Board, through the Regional Director. Citations to
exhibits will be given as G.C. (for General Counsel), R. (for Re-
spondent Employer), and C.P. (for Charging and Petitioning Union),
followed by the exhibit number.
4 The facts found here are based on the record as a whole and on
my observation of the witnesses. The credibility resolutions here
have been derived from a review of the entire testimonial record and
exhibits with due regard for the logic of probability, the demeanor
of the witnesses, and the teaching of NLRB v. Walton Mfg. Co., 369
U.S. 404, 408 (1962). As to those testifying in contradiction of the
findings here, their testimony has been discredited either as having
been in conflict with the testimony of credible witnesses or because
it was in and of itself incredible and unworthy of belief. All testi-
mony and evidence, regardless of whether or not mentioned or al-
luded to here, has been reviewed and weighed in light of the entire
record.
DECISION
STATEMENT OF THE CASE
RUSSELL M. KING, JR., Administrative Law Judge. This
case was tried before me on May 2–5 and 9–12 and July 25–
28, 1989, in Somerset, Pennsylvania. Consolidated com-
plaints were issued on November 9 and 14, 1988, and Janu-
ary 11, 1989, by Region 6 of the National Labor Relations
Board based upon charges filed by the United Mine Workers
of America (the Union) on various dates between August 2
and November 8, 1988.
On September 20, 1988,1 Region 6 conducted an election
among Respondent’s employees pursuant to a petition filed
July 22, 1988 (Case 6–RC–10066). In that election, of 61 eli-
gible voters, 27 voted in favor of representation and 34 voted
against. On September 26 and 27, the Union filed objections
to the conduct of the election with Region 6. Those objec-
tions have been consolidated with the instant cases for deci-
sion.
The issues presented by the complaint include:
(1) Whether there were independent violations of Section
8(a)(1) of the National Labor Relations Act (the Act).
(2) Whether certain employees were laid off for short peri-
ods of time in violation of Section 8(a)(3) of the Act.
(3) Whether the terms and conditions of employment of
employee Frank Lee were changed by a reduction of his
hourly wage and a cut in his hours of work in violation of
Section 8(a)(3) of the Act.
(4) Whether Respondent imposed more onerous conditions
of work on employee Scott Marker in violation of Section
8(a)(3) of the Act.
(5) Whether Respondent reduced the hours of work of em-
ployee Neil Berkley in violation of Section 8(a)(3) of the
Act.
(6) Whether, on October 11, 1988, Respondent terminated
employee Neil Berkley in violation of Section 8(a)(3) of the
Act.2
(7) Whether Respondent’s conduct warrants setting aside
the election conducted in September 1988.
(8) Whether Respondent’s conduct warrants the issuance
of a remedial bargaining order.
On the entire record, including my observation of the de-
meanor of the witnesses, and after due consideration of the
briefs filed by the General Counsel,3 counsel for the Union,
and counsel for the Respondent, I make the following
FINDINGS OF FACT4
I. JURISDICTION
Action Mining, Inc. and Sanner Energies, Inc. at all times
material have been affiliated business enterprises with com-
mon officers, ownership, directors, management, and super-
vision. These entities have formulated and administered a
common labor relations policy affecting their employees;
have shared common facilities and premises; have provided
services for one another; and have interchanged personnel
and held themselves out to the public as a single integrated
business enterprise. At all times material these two entities
have been Pennsylvania corporations with offices and places
of business in Meyersdale, Pennsylvania, together with var-
ious locations in Somerset City, Pennsylvania, and Garrett
County, Maryland, where they are engaged in the mining and
nonretail sale of coal.
By virtue of the business operations described above, Re-
spondent constitutes a single integrated business enterprise
and is a single employer within the meaning of the Act.
During the 12-month period ending July 31, Respondent,
in the course and conduct of its common business operations,
shipped from its jobsites in Pennsylvania and Maryland, coal
valued in excess of $50,000 directly to points and places out-
side the Commonwealth of Pennsylvania and the State of
Maryland.
I find, as Respondent admits, that Action Mining, Inc./-
Sanner Energies, Inc. constitute a single employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act and that it will promote the purposes and policies
of the Act to assert jurisdiction here.
II. LABOR ORGANIZATION
The General Counsel asserts, Respondent admits, and I
find that the Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
1. Respondent’s business
Respondent is engaged in the strip mining of coal. Certain
aspects of this operation are governmentally regulated in the
interest of the environment at the minesites. A Respondent
official, Larry Sanner, described the process in the following
manner: A bulldozer is first used to build a pond; this pond
660 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 So called because the vehicles carrying the coal are tipped over
to empty them.
6 One incident demonstrating this fact was the painting on a large
rock at one of Respondent’s locations the words ‘‘Wanted Pay
Raise.’’
7 While otherwise unmotivated, I find this statement to have been
made because Berkley had recently come out of a union-related situ-
ation at Somerset Welding Co. which had attracted local attention
because of numerous charges and attendant litigation. Sanner was
cautiously letting Berkley know that he desired no such develop-
ments at Respondent.
8 The cards were later disposed of and newly executed cards were
obtained when Moore did receive such permission.
9 See. G.C. 1(n), (o), and (p). The Regional Director directed that
a hearing take place to resolve the issues raised by the objections.
See G.C. 1(Q). In that same order, he directed consolidation of the
R-case objections with the unfair labor practice allegations in the in-
stant case.
is inspected by the Department of Environmental Resources
(DER) which must certify it. The top and subsoil is removed
by a scraper (also known as a pan) and stored to one side
for later use in restoring the terrain. A bulldozer is then used
to level off the terrain. A dragline (a machine used for exca-
vation) removes the material directly overlying the coal
seam. If this material is rocky, dynamite is first used to break
up the rock so the dragline may function. The dragline then
removes the coal which is then loaded on trucks by bull-
dozers or front-end loaders. The coal is then transported to
the tipple5 area for grading and cleaning. Trucks deliver the
coal to the ultimate consumers. The strip mined locale must
be replanted to comply with DER requirements.
Prior to the hearing, strip mining in the area containing
Respondent’s operations had been adversely affected by a
number of economic factors. Many coal mining operations
had gone out of business. Many of the conflicting conten-
tions in this case turn on whether Respondent based its com-
munications to its employees about the desirability of union
representation on the facts about this local turndown. The
turndown had been such that in 1986 Respondent’s employ-
ees had been subject to a 50-cent-per-hour wage cutback.
This cut had not been restored as of the time of the hearing
and, indeed, the General Counsel concedes that the April
union campaign got underway, in large measure, as a result
of employee dissatisfaction with this state of affairs.6
The General Counsel presented evidence tending to show,
as background, that even prior to the start of the April union
drive, Respondent’s officials demonstrated animus to the pos-
sibility of union organization. When employee Neil Berkley
was hired in December 1987, Larry Sanner, one of the co-
owners, declared that if the Company went union, Berkley
might well be looking for another job because he (Sanner)
would ‘‘shut the doors.’’7
2. The advent of the Union
As previously noted, a union organizing drive got under-
way in April. Employees Lee and Marker first contacted
Mine Workers International Representative Robert Moore. A
meeting was held in May. Employees Marker, Lee, Wiegel,
and Yutzy attended. The employees signed Mine Workers
authorization cards although, at that time, Moore did not
have union permission to solicit signatures.8
As interest among Respondent’s employees increased, fur-
ther meetings occurred. In fact, the meeting became a weekly
event, mostly sited at the Somerset Holiday Inn or the
Meyersdale Rod and Gun Club.
Authorization cards appear to have been signed at the vast
majority of the meetings. International Representative Moore
testified credibly and accurately about the procedure used in
soliciting the signatures. According to Moore, the cards were
first distributed, and he then requested the employees to read
the cards to themselves, while he read its contents aloud to
them. He specifically stated that by signing the card, an em-
ployee would be selecting the Mine Workers to be his exclu-
sive bargaining agent for wages, hours, terms and conditions
of employment. Moore explained that while the card could
be used to obtain voluntary recognition from the Employer
(their numbers and authenticity would be checked by a third
party), the usual course of events would be to file a petition
with the Board. To do so, the Union would need cards from
a minimum of 30 percent of Respondent’s employees. The
petition would eventually lead to an election which would be
by secret ballot. Moore emphasized that if the employees did
not desire the Union to represent them, they should not sign
the cards.
According to Moore, some employees had questions about
the later use of the cards. To one such question, Moore re-
plied that while every effort would be made to keep the
cards confidential, they might be shown in an unfair labor
practice case. Moore also noted to the employees that in the
event of employer retaliation for union activities, the dated
and signed cards would afford some documentary proof of
union affiliation and, thus, a degree of protection for the em-
ployee.
Moore, as well as employees who testified, stated that the
union representatives said ‘‘there were no guarantees.’’ The
only promise offered was to the effect that the Union, if se-
lected by the employees, ‘‘would negotiate the best contract
we could from them.’’ (Tr. 57.)
Some cards were solicited by employees, notably Marker
and Lee. These cards were invariably witnessed by another
individual or an organizer. On July 21, 37 of 61 unit employ-
ers had signed cards under the circumstances above noted.
3. The representation petition
The Mine Workers filed the petition in Case 6–RC–10066
on July 22. Respondent, pursuant to normal procedures, re-
ceived written notice of this event shortly after the filing
date. Pursuant to this petition, an election among Respond-
ent’s employees took place on September 20. Of the 61 eligi-
ble voters, 27 cast ballots favoring representation and 34 cast
ballots rejecting it. The Mine Workers filed objections to the
election with the Regional Office on September 26. These
objections were thereafter amended and consolidated with the
instant case for hearing.9
4. Respondent’s reaction to the advent of the Union
Respondent’s reaction to the Union started the day it re-
ceived notice of the filing of the petition in Case 6–RC–
10066. That day (July 25) Supervisor and Owner Terry
Pletcher was at the Emerick jobsite. There, he gave direc-
tions for the job assignments for that location. While talking
with employees Dwayne and Gary Blank, Pletcher remarked
that Respondent had been intending to go to a 9-hour work-
661ACTION MINING
10 Pletcher and Blank were friends.
day but had decided it could not do so because of a letter
it had received. One of the Blanks asked ‘‘what letter’’ and
Pletcher said they knew what he was referring to. He then
commented that ‘‘if the Union was brought in, the company
would close the doors and they would be looking for a job.’’
Noting that business was bad, Pletcher told the men that if
they were promised the world by the Union, the Union
would have to keep the promise because Respondent could
not give them higher pay. Pletcher concluded by saying he
would not mention the matter again and they should do ‘‘the
right thing.’’
The next day (July 26) Supervisor and Co-owner Dave
Wyant spoke about the Union with employee Scott Marker.
Marker admittedly started the conversation by asking Wyant
what was going on about the Union and why Terry Pletcher
had told several employees that he (Marker) was the ‘‘long
legged S.O.B.’’ who was the ‘‘main instigator’’ of the
Union. Wyant did not agree that Pletcher had said these
things but said he could tell Marker one thing: that if the
Union came in, the Company would ‘‘shut the door; it would
not work one day under a Union.’’ Marker asked where this
left him. Wyant replied that it didn’t look good for him and
said Marker should clear his name with Pletcher and Larry
Sanner (another owner). Wyant continued by asking Marker
what he felt concerning the Union and what involvement he
had with it. Wyant also inquired as to where the Union was
holding its meetings. Marker did not answer these questions.
He explained that if he supported the Union, Wyant would
be angry but, on the other hand, if he said he didn’t support
the Union, he would be taken for a liar.
The next day (July 27) when Marker again saw Wyant, he
told Wyant that Pletcher was continuing to disparage him to
fellow employees. Hence, said Marker, he would be 100 per-
cent for the Union.
Wyant and Pletcher, on cross-examination confirmed the
latter’s remarks set forth above about Marker and his connec-
tion with the Union.
On July 26, Pletcher, at pit 21, spoke with employee Ken
Groff. Pletcher began by informing Groff that a job located
across the hill from pit 21 was to be shut down. Groff asked
whether that action was due to a poor quality of coal mined
at that location. Pletcher said it wasn’t the coal, it was ‘‘the
Union stuff,’’ On Groff asking ‘‘what Union stuff,’’ Pletcher
said that Groff knew the Union was trying to get in. Pletcher
continued by saying that while he was not making any
threats, if the Union got in the Company would shut down.
On July 27, Pletcher went again to the Emerick location.
This time he talked with employee Daryl Bishop. In this con-
versation, Pletcher asserted (1) that the Employer knew who
had started the Union and did not blame the Emerick em-
ployees and (2) that the Employer could not afford continued
operations if the Union was successful, and would have to
shut down.
On July 28, Pletcher had a second conversation with em-
ployee Dwayne Blank.10 Pletcher told Blank he knew what
other employees’ gripes were and wanted to know about his
(Blank’s). Blank said his grievances were like the others, i.e.,
he thought the employees should have better wages, benefits,
and other ‘‘stuff.’’ Pletcher said the Employer could not af-
ford more money at that time. He said he knew who some
of the union ‘‘instigators’’ were and warned Blank that he
should not let a few spoil if (sic) for everyone else. Pletcher
then asked why the employees did not take up their concerns
with the Company rather than bringing in the Union. Blank
replied that whenever they had done so, they were consist-
ently put off with promises of future reconsideration. Fur-
thermore, Blank said, that according to other employees,
Dave Wyant had told an employee that with current wage
rates, he was living ‘‘too high off the hog.’’ Pletcher replied
that Wyant’s actions in this regard were inappropriate and
the he would speak to Wyant about this remark. Noting that
Blank had a good head on his shoulders, Pletcher opined that
Blank would do the right thing. Pletcher ended by warning
Blank that this was the last time he would talk with him as
he would not be coming around to give Blank a pep talk
every day.
On August 1, Pletcher was accompanied by Joseph Yutzy
in Pletcher’s truck. They were on their way to the Emerick
location. Yutzy asked Pletcher when the Schrock job would
start up. Pletcher said he didn’t know if the Employer would
start the job, and that it depended on ‘‘this s——.’’ Yutzy
asked what he meant and Pletcher said that Yutzy knew what
he was talking about, that if the Union came in, it would
bankrupt the Employer.
After the conversations related above, the Union filed an
unfair labor practice charge on August 2. (See G.C. 1(a).)
The charge was designated Case 6–CA–21161. While Region
6 was investigating this charge, Respondent posted a letter
to its employees at the various job locations on August 22.
(See R-L.) The purpose of this letter was to disavow any un-
fair labor practices that might have been committed. The text
was as follows:
TO: ALL EMPLOYEES OF ACTION MINING AND
SANNER ENERGIES
Recently the Mine Workers Union filed an unfair
labor practice charge against our Companies in which
it alleged that Action and Sanner had ‘‘interfered with,
restrained and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act.’’ We
want you to understand that the rights referred to in the
charge are those which you have under the National
Labor Relations Act to either engage in Union activities
or not to engage in such activities, or to choose to be
represented by a labor union or not to be represented
by a labor union.
The N.L.R.B. is presently investigating the charge
against our two Companies, it has interviewed certain
employees, may interview others and will be speaking
to some of our supervisors. What we have learned as
of now is that some of the following statements are al-
leged to have been made by either Terry Pletcher or
Dave Wyant or both of them.
1. That the Company would close its doors if the
Union came in.
2. That the Company would not open a new site on
account of the Union.
3. The Company gave the impression that it was en-
gaging in surveillance of Union activities by stating that
it knew who the Union instigator was.
4. That if the Union didn’t get in, it didn’t look good
for a certain employee.
662 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5. That the Company had intended to go to 9-hour
days, but cancelled it due to the Union’s petition.
We have also been told that one employee was inter-
rogated about his Union activities.
We want to make it clear to everyone who will be
voting that you have the right to vote exactly as you
want, without being interfered with, restrained or co-
erced in any way. If any of the above statements were
made by our supervisors, we want to disavow them at
this time. Specifically we want it understood that:
Neither of these companies would base a decision of
whether to shut down or on whether to open a new
mining site on the fact that the Union has filed a peti-
tion or may have won the election. As always, our deci-
sion on whether to remain in business and whether to
expand either company to another location would be
based on our economic situation.
No employee will be discharged or disciplined in
any way for supporting the Union, whether the Union
wins or loses the election. You have the right to sup-
port or not to support the Union in this election, as you
choose. Our supervisors have been instructed not to en-
gage in any surveillance of Union activities, not to give
anyone the impression that they have been doing so and
not to interrogate employees concerning any other ac-
tivities involving the Union. We want each of you to
make your decision based on fact not on threats or
promises, or any form of coercion, and to be assured
that our Companies will not interfere with your Section
7 rights in the future.
It is correct that as of July 25 the Companies in-
tended to got to 9-hour days. That decision had been
made over the weekend of July 23–24. At about 10:00
a.m. on July 25 a representative of the N.L.R.B. called
our office to as to whether we had received the election
petition filed by the Union. We knew nothing of a peti-
tion before that call. We notified our local attorney of
this telephone call and of our intention to go to 9-hour
day. He informed us that changing the hours imme-
diately after learning of a Union petition could be con-
strued as an unfair labor practice by being a benefit to
employees, and he advised us against doing it. Based
on that, we did not go to the 9 hours. Since that time,
we have been further advised by a labor relations spe-
cialist that as long as our decision to go to a 9-hour day
had been made before we learned of the petition, it is
lawful for us to put the change into effect as we had
intended. For that reason, all employee will be sched-
uled for a 9-hour day, Monday through Friday, as of
August 22nd.
We expect that the N.L.R.B.’s investigation of this
charge will be completed within the next two weeks.
Three days after posting the August 22 disavowal, Re-
spondent mailed a second letter to its employees dated Au-
gust 25. Its text was as follows:
TO: ALL ACTION MINING & SANNER ENERGIES
EMPLOYEES
As I informed you earlier this month, the National
Labor Relations Board (NLRB) election will be held on
Tuesday, September 20, from 2:00 p.m. to 3:30 p.m. At
that time all production and maintenance employees
and truckdrivers will be able to vote on whether or not
you want the Mine Workers Union in our operations.
The election will be by secret ballot and will be su-
pervised by the NLRB.
I feel very strongly that the future of our Companies
and of everyone who works here will be at stake in the
election. We are against this union because we are con-
vinced that it could seriously affect our being able to
stay in business. We are one of the last surviving strip
mining operations in the whole area, and we have been
fighting to try and survive while the industry is going
through one of its worst periods ever.
I firmly believe that this Union’s long record of cre-
ating problems and causing strikes could hurt us even
more at a time like this.
In a few day we must send the NLRB a list with the
names and home addresses of everyone who is eligible
to vote in the election. I wanted you to know this be-
cause the list will be given to the Union and their orga-
nizers can use it to come to your homes when you’re
not working.
Between now and the time of the election I intend
to sit down with you and go over the issues that are
important to all of us. These issues ought to be dis-
cussed carefully so that you have all the facts to make
a decision. And if anytime you have a question or
something you want to talk about, let me know and we
can get together.
Sanner testified that at the time of writing the August 25
letter, he possessed considerable economic and other infor-
mation about the state of Respondent’s business and that of
other coal mining enterprises in the immediate neighborhood.
(See Tr. 1174–1177 and Tr. 1296.)
About 10 days or 2 weeks before the September 20 elec-
tion date, President Douglas Sanner was present at the tipple
(jobsite 300) where employee Neil Berkley worked. While
Berkley was loading a truck with coal, Sanner asked him
how he felt about the election and the ‘‘situation happening
at the time.’’ He also inquired as to whether Berkley had any
questions. Berkley answered that he did not have questions.
Sanner again asked how he felt about (it). Berkley told him
that ‘‘well, if I feel the Union is going to give me the best—
the best opportunity, I am going to vote yes. If I feel that
management will give me the best deal, that I would vote
no.’’ (Tr. 295.) Berkley went on to say that he would be ask-
ing questions at the group meeting that might ‘‘p—’’ some
people off but that he would not be doing it to be an ‘‘a—
hole’’ but because he needed to know what was going on.
Berkley concluded by suggesting that the management accept
the Union’s invitation to debate in front of the employees.
Sanner turned this suggestion down.
At about this time (although not in the same conversation)
Berkley approached Larry Sanner to ask for a raise in pay.
Sanner said he could not grant a raise because of what was
happening with the Union. Berkley argued that Sanner could
clear the raise with the Labor Board or the Union (presum-
ably to avoid an unfair labor practice charge) but Sanner re-
plied that he would not seek permission to give a raise from
anyone. Berkley then complained that Mike Neil, an em-
ployee with less seniority than himself, had been working
663ACTION MINING
11 While Sanner denied that there was a written policy (or even
an unwritten one) his description of Respondent’s actual practice at
Tr. 1267–1268 makes it clear that Respondent’s practice was to find
other work for employees affected by the weather.
12 These two instances seem to have been the sum total of such
occasions. (See Tr. 923.) Lee was hired in May 1987 and thus had
far less time to accumulate such incidents than Yutzy or Marker who
were hired in 1981 and 1984 respectively.
13 A layoff is not a ‘‘quit’’ or discharge. I interpret Lee’s request
as being one to be laid off as long as the reduced rate and irregular
hours affected his employment. Otherwise, he would simply have
quit Respondent’s employ.
when Berkley should have. Sanner initially denied this, but
when told there were two witnesses to the fact, said that Neil
was not an Action employee.
Either that same day or shortly thereafter, Berkley had a
second conversation with Sanner about a raise. Berkley had
asked a driver whose truck he was loading to ask Sanner to
give him a raise. Sanner again replied that he could do noth-
ing with the Union in the picture.
On September 20 (the day of the election) Larry Sanner
ordered employees Robertson and Vena to report to the scale
house office. Sanner went over the terms of the employees’
profit-sharing plan and pointed out how much money the two
employees had in the plan. Vena said he thought the Union’s
plan was better because it had insurance. Sanner said if the
Union got in there was no guarantee they would get 2 years
of employment. He pointed out that men their age would
have difficulty getting a job in construction. A similar con-
versation (on the same subject) took place that same day be-
tween Larry Sanner and employees Savage and Berkley.
Berkley interrupted the account of the profit-sharing plan
to point out that there had been a previous layoff and, in
light of that, there was no assurance of continued employ-
ment. Without that assurance, he said, the profit-sharing plan
was worthless. Sanner asked what made Berkley think he
would be employed in 2 weeks or 2 months with the Union
present.
The day before the election (September 19) Larry Sanner
assembled all Respondent’s employees in the warehouse.
There, he read a prepared text in which, inter alia, he stated:
But if the Union got in here, we might even lose
customers without having a strike. We don’t know how
any of our customers would react if they learned that
we had to bargain with UMW and if they were con-
cerned that the bargaining might end up in a strike. For
example, we supply about 15 to 20,000 tons of coal to
cement companies in Eastern Pennsylvania. If they
were worried about the fact that regular deliveries could
be interrupted by a strike, they might choose to put
their eggs in several baskets instead of just ours. If they
did, that could hurt us. Everyone here knows that it’s
difficult to find a market for the low volatile coal we
produce and we’re at a terrible disadvantage to those
operators who can ship on Conrail at a freight cost 3
to 4 dollars a ton below ours. [Emphasis in original.
See G.C. 43.]
5. The postelection treatment of employees Marker,
Yutzy, and Lee
Larry Sanner testified that Respondent’s practice was to
assign other work to employees when they were unable to
perform their usual tasks because of inclement weather.11 On
September 25, 5 days following the election, employees
Marker, Yutzy, and Lee were told not to report to work the
following day. Supposedly it was too wet for them to per-
form their regular duties. None of Respondent’s other 58 em-
ployees were held out of work.
Yutzy testified that in the past, when the weather was
poor, he had been assigned other work to do. Prior to the
election, wet weather had never prevented his assignment to
another job. (See Tr. 683.)
Marker stated that when he could not operate the pan dur-
ing inclement weather he was always assigned other work.
(Tr. 458.) In fact, this had occurred the day of the election.
The practice of assigning other work on wet days was, in
fact, so common that on a number of occasions Marker re-
ported to help out the mechanics without directly checking
with his immediate supervisor. Larry Sanner was aware of
the fact that Marker occasionally worked with the mechanics.
Lee stated that on the two prior occasions when he could
not perform his regular work, he was assigned to other
tasks.12 Lee, Marker, and Yutzy were with union supporters
who manned a support line a small distance away from the
polling area the day of the election.
At the conclusion of his layoff (October 2) Lee was in-
structed to report to jobsite 200 where he was to work on
a crusher machine. On this reassignment, Lee suffered a loss
in both his rate of pay and number of work hours. His rate
dropped from $9 per hour to $7.50. His scheduled hours
dropped from 45 to 40. A week later, after discharge of em-
ployee Berkley, Lee was assigned to truck loading in Berk-
ley’s place. Truck loading was not steady work and the num-
ber of hours fluctuated from day to day. Lee thereupon
began calling in each day to learn the number of scheduled
hours. Later on, Larry Sanner directed Lee to continue this
practice so he could review the status of the work.
The fluctuating hours associated with the truck loading
embarrassed Lee in another way. Lee operated a small busi-
ness as well as working for Respondent. He experienced con-
siderable trouble with this business in adapting to the irregu-
lar hours of the truck loading job. Respondent was aware
that he owned and operated this business venture. The situa-
tion became so inconvenient that on one occasion Lee dis-
cussed the matter with Larry Sanner. He suggested that
Sanner lay him off rather than work him at irregular reduced
hours and a lower pay rate because he could do better finan-
cially operating his business venture. Sanner refused to do
this.13
Respondent changed another work practice following the
election. Employees had been allowed to build up extra
hours so that they could take time off during hunting season
without undue financial loss. Prior to the election, this extra
time could be built up during the week. After the election,
Larry Sanner informed Marker through his supervisor, Galen
Beechy, that the extra time could be accumulated only during
regular working hours on Saturday. Marker was, therefore,
upset when he observed Sylvan and Marain Warnick work-
ing late during the regular week. Both these employees had
worn ‘‘vote no’’ hats while working during the election cam-
paign. Marker had worked the extra hours during the week
the previous year to gain time for the hunting season.
664 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 Greasing the Huff in the rain meant climbing an 8-foot high
mechanism rendered slippery by the rain with a flashlight in one
hand and a greasegun in the other. On previous occasions the Huff
was greased by two men assisting one another. This operation was
performed in the dark.
15 An examination of Berkley’s timecards and the contentions
made in Respondent’s brief at p. 144 shows that Respondent’s con-
tentions are marginal in many instances. Thus, both the 10:15 and
8:44 observed times of Berkley’s leaving depend on absolutely accu-
rate watches. If Berkley’s watch differed by a minute or minute and
a half in the correct direction, his timecard entries accord with the
rule he gave Sanner. There is evidence that on two prior occasions
employees left assigned duties to go hunting and were not dis-
ciplined despite marking down the time. See Tr. 471 and 624.
16 NLRB v. Weingarten, Inc., 420 U.S. 251 (1975). I make no find-
ing in regard to whether Berkley was legally due Weingarten protec-
tion in light of the bargaining order antedating this incident, which
I will recommend. I note that this was a discharge interview, not an
investigatory one.
On November 6, Marker and Yutzy were again notified
not to report because of wet weather. Both agreed that it was
to too wet to perform their assigned operations. However, no
alternate work was found for them. Yutzy, in particular,
asked about night-shift work and was told by Larry Sanner
that the dragline at pit 9 was broken and the pit 9 crew
would be reassigned to pit 18. Yutzy went by pit 18 and saw
no crew working there.
Joseph Yutzy was also laid off on October 24. He agreed
it was probably too wet to operate the pan in removing top-
soil (his assigned task). He pointed out, however, that during
this layoff he could have backfilled the lower pit with the
bulldozer.
6. The discharge of Neil Berkley
On or about October 3, Respondent reduced Berkley’s
work hours. Prior to the election, Berkley worked 11 hours
per day. After October 3, he worked the 4 hours between 4
and 8 p.m. running the loader.
Berkley, hired in December 1987, had a good record with
Respondent. He had been laid off in the spring for 5 or 6
weeks but, at that time, had been assured that he was a ‘‘fine
employee’’ and was being laid off only because of lack of
work. On his return from layoff status, Berkley’s hours
ballooned to as much as 50 or more per week. In July, he
was placed in Respondent’s hospitalization plan. At the time
of his October hours reduction, he was told not to worry be-
cause his services would also be required to unload a train
due in that week. However, he was not called on to help out
with that train.
Berkley’s first problem with Respondent revolved around
complaints from outside drivers that Berkley had not been
available to load their trucks when they arrived at Respond-
ent’s jobsite on September 20 and 22. The matter was not
mentioned to Berkley until some 2 weeks later on October
4. Larry Sanner mentioned it to him in the office that day.
Berkley explained that his instructions were to leave before
8 p.m. if all the trucks on the list given him were loaded.
The record shows that Berkley’s first instructions (from
Judy Pletcher in the office) were to remain present until all
trucks were loaded. Later, his instructions were modified. He
was then to stay only until 8 p.m. and if some listed trucks
had not arrived by that time, he was to leave. Additionally,
as he explained to Sanner in the office, if all trucks listed
were loaded prior to 8 p.m., he was to leave immediately and
not wait around until 8 p.m. I find it clear that these instruc-
tions could create a situation where an outside truck could
arrive and not find Berkley present to assist in loading. I
note particularly that no provision covers Berkley’s presence
if an outside truck arrived a few minutes after 8 p.m.
On October 11, Berkley was directed to meet Larry Sanner
at 12 p.m. There, he was told to go to the office where he
met Sanner and Supervisor Galen Beechy. Sanner began by
asking Berkley if he had greased the loaders on the previous
day. Berkley said he had greased the Kawasaki loader but
not the Huff. The reason for not greasing the latter machine
was that it was raining.14 Following this explanation Berkley
was then accused of not greasing the loaders for the previous
3 days, an accusation which Berkley denied. Sanner then
asked if Berkley was calling him a liar and Berkley asserted
that Sanner simply had the facts wrong. Berkley noted that
he had never before been accused of neglecting the greasing
of the loaders or that the practice of not doing so in the rain
was unacceptable.
Following this explanation, Sanner changed the subject
once again. This time, he accused Berkley of falsifying his
timecard by marking it to the effect that he had left at 8 p.m.
when his actual departure time was not 8 p.m. Berkley re-
plied that Sanner’s information was incorrect. Sanner replied
that he had ‘‘witnesses.’’ Berkley then explained the proce-
dure he and other employees followed in marking their time-
cards pursuant to instructions received. If the time was after
an hour but prior to 15 minutes after the hour, the hour was
marked. Thus, 6:12 p.m. would be marked as 6 p.m. If the
time was after the hour and after the 15 minutes interval, the
half hour would be marked. Thus, 6:16 p.m. would be
marked as 6:30 p.m. Sanner said that wasn’t the way it was
done but did not give any alternative procedure.15 Berkley
asked Sanner if he was going to be fired and said he would
not quit. Sanner replied that no decision had been made as
of yet. Berkley asserted that the interview was taking place
because he was ‘‘100 percent Union’’ and Sanner was aware
of that fact. Berkley left, asking that if he was to be fired,
it be done in front of fellow employees.
Berkley reported for work at his normal time that after-
noon. When he went to the office to get the loading list for
the evenings work, Sanner told him he was discharged. Su-
pervisor Beechy was present at that time. Berkley admitted
to having ‘‘lost his cool’’ at this point. He warned Sanner
to save his money because there would be a bargaining order
and he was going to owe Berkley a lot of backpay and
would have to put him back to work. Terry Pletcher came
over at this point and suggested that Berkley was going to
‘‘get’’ Sanner out on the street. He then warned Pletcher not
to threaten Sanner.
Berkley again asked to be fired before fellow employees
Robertson and Vena, claiming he had a right to witnesses
under the ‘‘Weingard’’ (Weingarten) rule.16
Sanner refused the Weingarten request and told Berkley he
should leave because he was no longer an employee and had
no right to be on the premises. In leaving, Berkley told
Sanner he would get his some day. Pletcher asked if that was
a threat. Berkley told Pletcher to ‘‘shut up,’’ that he had not
665ACTION MINING
17 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
finished. Berkley continued on to say that Sanner would get
his ‘‘in a court of law.’’
7. Appropriate bargaining unit and the Union’s
card majority
The parties agreed, and I find, that the unit appropriate
here is as follows:
All production and maintenance employees and truck
drivers, employed by Action Mining, Inc. and Sanner
Energies, Inc. at their facilities located in Somerset
County, Pennsylvania and Garrett County, Maryland;
excluding all office clerical employees and guards, pro-
fessional employees and supervisors as defined in the
Act.
There was a stipulation between the parties as to the identity
of the employees in the appropriate unit at the times mate-
rial. There are 61 employees so identified. They are appar-
ently the same as those who voted in the September 20 elec-
tion. Through July 21, 37 of the 61 had signed authorization
cards. The following is an alphabetized list, prepared by the
General Counsel, of the card signers and the date of the sig-
natures:
Name Date Signed
Arnold, Carl H. 6/29/88
Barr, Paul R. 6/29/88
Beal, Jacob E., Sr. 7/12/88
Berkley, Neil W. 7/18/88
Blank, Dwayne J. 6/29/88
Blank, Gary F. 7/21/88
Bowman, Kenny B. 7/16/88
Broadwater, Randy 7/14/88
Caton, Owen W. 6/29/88
Coleman, William 6/29/88
Donaldson, Robert L. 7/20/88
Groff, Kenneth L. 6/28/88
Hay, Scott N. 7/20/88
Hay, Vaughn E. 7/14/88
Hutzell, Paul 7/14/88
Kiser, William Jr. 7/13/88
Klink, Daniel G. 7/14/88
Lee, Frank 6/29/88
Marker, Scott 6/29/88
Mishler, Richard 6/29/88
Pritts, Earl 7/18/88
Robertson, James 7/20/88
Romesberg, Steven L. 7/20/88
Sanner, James R. 6/29/88
Sanner, Paul 7/21/88
Sanner, Robert E. 7/12/88
Sanner, Truman R., Jr. 6/29/88
Savage, Ervin P., Jr. 7/20/88
Shaffer, Dewey 6/29/88
Vena, Tony 7/20/88
Warnick, Marvin 7/12/88
Warnick, Sylvan 7/19/88
Wright, Dennis W. 6/28/88
Wilt, Kenneth R. 7/18/88
Yutzy, David E. 7/20/88
Yutzy, Joseph F. 6/29/88
Bishop, Daryl 7/20/88
There is no evidence that any employee sought to retrieve
his card after signing it. The record shows (and Respondent
does not contest) that each was properly validated at the
hearing. There is no evidence of coercion of individual em-
ployees to induce them to sign an authorization card and, in-
deed, Respondent does not claim any such coercion. The
cards are headed in bold print ‘‘AUTHORIZATION FOR
REPRESENTATION.’’ The relevant language to which the
employees affixed their signatures is as follows:
I, the undersigned employee of lllllll, au-
thorize the UNITED MINE WORKERS OF AMERICA
to represent me as exclusive collective bargaining agent
in all matters pertaining to wages, hours, terms and
conditions of employment. This authorization cancels
any similar authority previously given any other person
or organization.
The cards nowhere mention the possibility of an election,
and are thus single-purpose instruments.
Respondent makes two attacks on the usefulness of certain
of the authorization cards to reflect genuine employee senti-
ment. With regard to the cards of James Sanner, Marvin
Warnick, Sylvan Warnick, Paul Sanner, Vaughn Hay, Randy
Broadwater, Kenneth Bowman, and Scott Hay, Respondent
claims their cards cannot be included in the total because of
their postsignature antiunion activities. Respondent claims
that these eight individuals joined a ‘‘vote-no’’ committee
and that this conduct voids their card selection of the Union
as a collective-bargaining representative. Whatever the merits
of this claim in a different fact context, I cannot find that
it has any merit under the facts of this case. These cards
were signed on July 21 or before. Respondent learned of the
union campaign on or about July 25 when it received notifi-
cation that a petition had been filed with Region 6 of the
Board. As will be seen, Respondent’s supervisors and owners
immediately began a campaign of 8(a)(1) activity designed to
discourage employee sentiment for the Union. Much later (on
August 22) Respondent attempted to disavow these practices,
but, as will be seen, that disavowal was ineffective because
it was followed almost immediately by further 8(a)(1) activ-
ity on Respondent’s part. In sum, I do not find it surprising
that a certain number of card signers may, indeed, have
switched sides as a result of a campaign that featured fre-
quent threats that Respondent would shut down its oper-
ations. That, after all, was the result Respondent desired to
achieve as a result of the threats. Its partial success in
achieving that objective does not, however, invalidate cards
signed prior to the start of Respondent’s illegal activities. To
hold otherwise strikes at the basis of the Gissel17 rationale
underlying the use of cards to safeguard employee sentiment
in a context of unfair labor practices.
Respondent’s second (and main) attack is directed at some
22 cards signed at union meetings. Respondent claims that
these cards were signed as a result of ‘‘misrepresentation and
deceit.’’ The deceit does not involve the traditional misrepre-
sentations about the purpose or use of the cards. Respondent
contends, instead, that the Union’s arguments addressed to
the employees present were false and misleading and were
666 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 These witnesses gave evidence of excellent demeanor while tes-
tifying and their testimony was mutually supportive about the var-
ious statements attributed to Respondent.
19 See Tr. 1406–1408.
20 The General Counsel moved in his brief to amend the consoli-
dated complaint to add an allegation of solicitation of grievances. I
deny the motion on the grounds that it is untimely (Respondent had
no opportunity to brief and argue the matter) and that the generalized
inquiries about ‘‘gripes’’ attributed to Respondent’s supervisors do
not rise to the level of a solicitation of grievance with an implied
or explicit promise to remedy such grievances. In fact, the Respond-
ent continually refused to remedy known employee grievances about
wages (which had been cut before the campaign). Varco, Inc., 216
NLRB 1 (1974).
designed to persuade employees to sign. Analogizing this sit-
uation to Hollywood Ceramics Co., 140 NLRB 221 (1962),
and a successor case, Shopping Kart Food Market, 228
NLRB 1311 (1977), Respondent contends that the Union
misrepresented the Respondent’s financial situation and mis-
used certain government reports to given an inaccurate pic-
ture of what Respondent could afford by way of wages and
benefits. No claim is made that the government reports were
altered, only that they were irrelevant to Respondent’s situa-
tion.
The cases cited by Respondent all involve assertions made
during the course of a contested campaign about union rep-
resentation. Respondent cites no case and I can find none
where the holdings in Hollywood Ceramics or any of its suc-
cessors were applied to the preliminary card signing stages
of a campaign. A union may well engage in some puffery
at this stage. A labor campaign, at least in its beginning
stages, is not, however, a precise academic inquiry into the
employer’s finances or practices. Card signing is normally
followed by a campaign where both sides can explain their
positions and by a secret-ballot election where employees
render their judgement on the basis of what they have
learned. The employer who avoids unfair labor practices and
makes his arguments on economic and other facts has noth-
ing to fear from this process. Gissel, supra. Respondent in-
correctly interprets the Court’s discussion in Gissel of mis-
representation and fraud in the card signing process. That
discussion involves misrepresentations about the purpose and
use of cards. The Court did not intimate, nor do I believe
it intended, that a strict standard of scientific accuracy apply
to union statements at the time of card signing about the de-
sirability of organizing the employer’s work force. Accord-
ingly, I find that the Union possessed a card majority in an
appropriate unit as of July 21.
IV. ANALYSIS AND CONCLUSIONS
For the reason set forth below, I find that Respondent has
violated Section 8(a)(1) and (3) of the Act. I further find that
Respondent’s attempt to disavow its previous violations of
the Act on August 22 was ineffectual.
I credit the General Counsel’s witnesses,18 and the record
reflects that on receiving information from the Board’s Re-
gion 6 that a petition had been filed by the Union, Respond-
ent’s owners and supervisors immediately began a campaign
to discourage employee union support. Thus threats of plant
closure were made to Blank on July 25, Groff an July 26,
Gary Blank on July 25, Bishop on July 27, Marker on July
27, and Yutzy on August 1. Similar threats were made just
before the election to employees Vena, Robertson, Berkley,
and Savage. None of the disputed remarks were backed up
by any rational economic argument. See Gissel, supra. Nor
were the remarks of an interrogative nature made to known
union supporters as a result of Respondent’s initial con-
sternation at the advent of the Union. Rossmore House, 269
NLRB 1176 (1984). The threats involved in these contacts
clearly violated Section 8(a)(1) of the Act. Montgomery
Ward, 290 NLRB 981 (1989).
Certain of the above-cited conversations also involved in-
terrogation of employees about their union sentiments or ac-
tivities. Thus Wyant asked Scott Marker about his involve-
ment and where the Union held its meetings. In early Sep-
tember Doug Sanner asked Berkley how he ‘‘felt’’ about the
situation and the Union. In none of these incidents had the
employee previously exhibited support for the Union. Cf.
Rossmore House, supra. In fact, Marker had refused to dis-
close his position and was agitated about accusations of
union support.
Respondent’s supervisor, Terry Pletcher, on three occa-
sions created an impression of surveillance. He told James
Sanner that Scott Marker was a main instigator of the Union
several days prior to July 26.19 On July 27 and 28, Pletcher
told employees Darryl Bishop and Dwayne Blank that the
Respondent knew who had gotten the Union started.
Pletcher’s statements would lead employees to believe that
union activities were under active surveillance by Respond-
ent. Gupta Permold Corp., 289 NLRB 1234 (1988).
As previously stated, Respondent posted a disavowal of
unfair labor practices on August 22. (R-L.) On its face, the
disavowal is explicit and detailed. Were its facial validity the
only matter at issue, I would, indeed, hold that Respondent
had successfully disavowed the unfair labor practices20 com-
mitted up to August 22. Respondent did, however, continue
to commit unfair labor practices following August 22. Sev-
eral days later, Respondent posted a letter to its employees.
In that letter it commented that it was against the Union ‘‘be-
cause we are convinced that it could seriously affect our
being able to stay in business.’’ (G.C. 26.) The letter con-
tains economic support, data, or argument to buttress this
conclusion. No objective fact is cited nor is the latter phrased
in the form of a reasonable belief as the consequences of
unionization. Such an assertion steps over the line into for-
bidden territory. Gissel, supra. The letter does not cast its
prediction in the form of a possibility. Central Broadcast
Co., 280 NLRB 501 (1986) (‘‘I am not saying a strike is in-
evitable’’).
That Larry Sanner, the author of the letter, was aware of
economic facts to back up his prediction only renders his
failure to make them explicit in the letter additional evidence
of the effect sought to be produced. See Tr. 1173–1177,
1296. I find the letter violative of Section 8(a)(1) if the Act.
EMR Photoelectric, 251 NLRB 1597, 1604 (1980).
Early in September, Respondent began holding small
group meetings in which it discussed unionization and its
consequences. In these meetings Respondent did present ob-
jective data and facts back up its arguments. This was, how-
ever, 2 to 3 weeks after the August 25 letter. I cannot find
that this belated presentation cures the deficiencies of the
August 25 communication. Indeed, it gives more the picture
667ACTION MINING
21 I do not credit Respondent’s explanation that it changed the pol-
icy because Supervisor Beechy who had operated under it for 7 or
8 years suddenly expressed confusion about it in October.
of a Respondent playing it close to the line on this issue,
hoping to benefit both from illegal and legal communications
and, at last, hoping the latter will cloak the former.
On September 19, in a talk to all employees, Respondent
referred, again without backup facts, to the possibility that its
customers might go elsewhere in the event of unionization,
supposedly because of a fear of strikes which might cut off
coal supplies. This statement violated Section 8(a)(1) of the
Act. See Harrison Steel Castings Co., 262 NLRB 450
(1982).
The Respondent committed further unfair labor practices
the day of the election. That day Larry Sanner approached,
at different times, employees Robertson, Vena, Berkley, and
Savage. In the process of ‘‘selling’’ Respondent’s profit-shar-
ing plan, Sanner asked two of them what made them think
they would work for 2 weeks or 2 months under the Union.
On another occasion that same day he told two other em-
ployees that there was no guarantee they’d work long enough
to qualify under a union benefit plan. These threats of loss
of employment violate Section 8(a)(1) of the Act. As Re-
spondent continued its course of violative behavior after the
August 22 disavowal, that disavowal was ineffective and I so
find. Passavant Memorial Hospital, 237 NLRB 138 (1978),
and Facet Enterprises, 290 NLRB 152 (1988).
The Union (as Petitioner in representation Case 6–RC–
10066) asserts that the election should be set aside and its
main argument revolves around the 8(a)(1) activity outlined
above. As I have found that activity violative of the Act, and
since it occurred during the so-called ‘‘critical period’’ be-
tween the filing of the petition and the election, and further
because of its extent among the employees and the nature of
the threats (closure, loss of employment) I find that this
8(a)(1) activity requires setting aside the September 20 elec-
tion. Wex-Tex of Headland, Inc., 236 NLRB 1001 (1978).
The Union also contends that Respondent allowed antiunion
activities during working hours by its employees. In one of
these incidents the Geyer-Klink conversation several weeks
before the election—I find that Geyer was attempting to dis-
suade Klink from his support of the Union. While Supervisor
Beechy was in the general area, he was at least 20 yards
from the conversation, thus I do not find that he can be
charged with knowledge of its content. While the incident
was not without interest as bearing on Respondent’s practices
in keeping the men working and preventing ‘‘goofing off,’’
I cannot find that it establishes that Respondent permitted
campaigning on the job. Similar considerations apply to a
Stevanas-Klink conversation around this same time. No one
in management heard it or observed it.
The Union also relies on the five-man conversation after
the Respondent received the petition in July. The five men
did attempt to dissuade employee Klink from supporting the
Union, but again, no management official witnessed this con-
versation nor is there any evidence that management sent
them to Klink for that purpose. (See Tr. 1055.) While it is
true they told Klink the road was blocked, without more I
do not find the statement to be of a threatening nature. That
it was dark at the time may add a dramatic nuance to the
scene but adds nothing to its legal effect. Klink had a con-
versation with fellow workers on the jobsite on an evening
shift. Although it was during working hours, it was not ob-
served by management. Thus I do not find either the con-
versation or the alleged ‘‘threat’’ about the road being
blocked a violation of the Act as contended by the Union
and the General Counsel.
A final contention by the Union is that the day of the elec-
tion a group of six or eight individuals wearing antiunion
paraphernalia was standing at the fence around the building
in which the voting took place. These individuals were talk-
ing among themselves but did not confront or accost anyone
arriving to vote. The Union claims that employees not wear-
ing antiunion insignia were told to leave the ‘‘polling area.’’
No employees, as the Union alleges, were denied access to
the polling place. The gathering in question was considerably
outside the polling place. No evidence was presented to show
that management placed the group there. I find this incident
failed to rise to a violation of Act. While the antiunion insig-
nia may have made their preferences clear, that insignia was
seen at many places that day and it was no secret that many
employees opposed the Union.
I find that the layoffs, reductions in hours, and denial of
advance time for hunting purposes inflicted on Marker,
Yutzy, and Lee occurred because of their union activities.
Their union support had been open and well known to Re-
spondent. Respondent, through Terry Pletcher, conceded that
it suspected Marker to have been involved with the Union’s
petition. Some time later, the three openly displayed union
insignia. The day of the election Marker, Lee, and Yutzy
were part of a union support line near the polling area. (See
Tr. 450 and 675.) Respondent’s antiunion animus is well
documented in the form of the threats directed to employees
immediately on the filing of the Union’s petition in July. I
am particularly persuaded by the fact that these changes oc-
curred only with reference to 3 or 4 individuals out of a
work force of 61 employees, and these individuals all had
made a clear showing of union support. It had rained before
on Respondent’s operations but for the first time ever, as far
as this record shows, alternative work could not be found for
Lee, Yutzy, and Marker. While one of these men had, on
prior occasions, reported on his own to the mechanics on
rainy days, Respondent did not develop an interest in this
practice until after the display of union support by the em-
ployee involved. Respondent’s problematical explanations for
the changes are confined in the case of the layoffs to an ac-
count of the deliberations about whether other job tasks were
available to be performed when it rained. I find it very un-
likely that such tasks could be found prior to the election but
not after it for 3 employees out of 61, who had a displayed
of their union support. I do not credit Respondent’s expla-
nations.
The change in buildup time for hunting was unsupported
by any business reason and, suspiciously, was not announced
to all employees but only those who asked. There is evidence
that employees who did not support the Union were allowed
to build up time during the regular workweek in the manner
prescribed before the election. Thus Sylvan and Marwin
Warnick were seen working late during the week for this
purpose.21 (See Tr. 467, 545–547.) The change in Lee’s
hours (a reduction) was apparently predicated on the hope
that he would leave due to the attendant difficulties in oper-
ation of his small taxidermy business. Lee was extraor-
668 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
22 Under New Horizons interest is computed at the ‘‘short-term
federal rate’’ for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. § 6621. Interest accrued before January 1,
dinarily trained and experienced in the coal business despite
the fact that he had not been employed as long as others.
There is no evidence that Respondent assigned work on the
basis of seniority, and its asserted business reason (lack of
work) for assigning Lee to the crusher rings hollow in the
light of that experience.
I find that the various layoffs discussed here, the change
in ‘‘hunting time’’ policy and the postelection assignment of
lower, fluctuating, and irregular hours to Lee violated Sec-
tion 8(a)(3) and was undertaken in an effort to rid Respond-
ent of three outward union supporters. Nissen Foods (USA)
Co., 272 NLRB 371, 388 (1984).
Neil Berkley gave the appearance of being an excellent
employee prior to the start of the union campaign. Although
laid off once in March, he was assured by Larry Sanner that
his work was good. On his return in May he was scheduled
to work 50 or more hours per week. In July, Respondent
placed Berkley into its insurance and hospitalization plan.
This was done with no request from Berkley. Alleged defi-
ciencies in his work performance in June were never brought
to his attention. During the campaign, Berkley continually
raised questions with Respondent about wages, hours, and
benefits. Indeed, in a conversation with one of Respondent’s
officials, he announced that he was for the the side which
would give the best deal.
The day of the election, Berkley clearly rejected Larry
Sanner’s arguments about the superiority of the Respondent’s
profit-sharing plan. This type of behavior during an organiz-
ing campaign, as the General Counsel asserts, closely identi-
fies an employee with union support. Bell Halter, Inc., 276
1208, 1218 (1985) (‘‘Thus, faulting an employee . . . for his
attitude or belief that the company owes him more is, in the
absence of other explanation, synonymous with faulting him
for his union support’’). Berkley’s clear and explicit desire
for higher wages and benefits from Respondent inevitably
stamped him as one quite likely to vote for the Union.
Following the election, Berkley’s status with Respondent
almost immediately changed for the worse. On October 3, he
was put to operating the loader. This resulted in his obtaining
only about 36 percent of the hours he had previously accu-
mulated (reduction from 11 hours to 4). While he was prom-
ised additional time on a train loading job, Respondent failed
to assign him that work. Prior to the reassignment, Respond-
ent had received complaints on September 20 and 22 from
two outside truckers about Berkley, claiming he was not
present to load their trucks even though (as they claimed)
they were on time. Respondent did not say anything to Berk-
ley about this until October 4, some 2 weeks later. Instead
of getting Berkley’s explanation immediately, Respondent
began covertly watching his activities, taking care to have
supporting witnesses available. This heightened supervision
of an employee has been found unlawful so that an employer
might not accumulate genuine incidents of misconduct to
hide discipline that is unlawfully motivated. See FDP Medi-
cal Computer Systems, 284 NLRB 1286, 1296 (1986).
The interviews with Berkley on October 2 and 11 showed
Respondent shifting from one complaint to another—the out-
side truckdrivers, the marking of Berkley’s timecards, the
failure to grease a machine in the rain—and shifting each
time Berkley gave a rational explanation based on prior prac-
tice or instructions he had been given. That Respondent was
frustrated by Berkley’s explanations is reflected by the time-
card incidents, where Larry Sanner did not explain the proper
timecard procedure but only announced ‘‘that wasn’t the way
it was done.’’ I have previously commented on the narrow-
ness of Respondent’s complaints about the timecards, de-
pendent as many of them do, on intervals of a minute or
minute and a half. Significantly, Berkley, previously a desir-
able employee, had never been warned about his alleged
timecard errors. Other employees agreed with his interpreta-
tion of the timecard rules. Even though Respondent may
characterize its surveillance of Berkley’s work as ‘‘investiga-
tion,’’ it is clear that such a desultory investigation would
not result in uncovering the truth because it was directed at
supporting Respondent’s contentions. See K & M Elec-
tronics, 283 NLRB 279, 290, 291 (1987).
Berkley’s October 11 statement that he would not quit and
his desire to be discharged before fellow employees appear
to have triggered his discharge in the immediate sense. The
General Counsel has set forth a strong prima facie case that
Berkley was discharged in violation of Section 8(a)(1) and
(3). Respondent’s half-hearted investigation and failure to
demonstrate decisively just where Berkley fell short does not
rebut that case. Wright Line, 251 NLRB 1083 (1980). Al-
though Berkley ‘‘lost his cool’’ (as admitted) during the dis-
charge process, I do not find on this record that he did or
said anything that would block his reinstatement to Respond-
ent’s employ. His threats were of legal action, not physical
harm.
V. REMEDY
I find, on this record, that a bargaining order is necessary
to protect employee sentiment from the effects of Respond-
ent’s unfair labor practices. In my opinion the effect of those
practices cannot be undone by normal Board remedies and
the direction of second election. I note first of all that the
overwhelming number of Respondent’s threats involved clo-
sure of the operation and attendant job loss. Such threats
have been found to have a particularly poignant effect on
employees. See Gissel, supra. In the peculiar circumstances
of this case, many of these threats were made not by ordi-
nary supervision, but by co-owners of the mining oper-
ation—the very individuals with immediate power to turn
those threats into reality. Not supervision but ownership was
speaking. See Plastic File Products Corp., 238 NLRB 135,
137 (1978), and Mayfield Produce Co., 290 NLRB 1083
(1988) (speed of respondent’s retaliation, nature of threats,
extensiveness of campaign violations, fact that violations
committed by ownership). I shall recommend that the elec-
tion of September 20 be set aside, and that the bargaining
obligation begin on July 21 when the Union obtained a ma-
jority of cards. Lapeer Foundry & Machine, 289 NLRB 952
(1988).
I shall recommend that the Respondent be ordered post the
regular notices in places where notices to employees are nor-
mally placed. I shall also recommend that Respondent be or-
dered to reinstate employee Neil Berkley, with backpay and
interest both for his discharge and the hours cut on October
3.22 Backpay with interest will also be recommended for
669ACTION MINING
1987 (the effective date of the amendment), shall be computed as
in Florida Steel Corp., 231 NLRB 651 (1977).
23 These conclusions cover most of the objections filed by the
Union in Case 6–RC–10066. Any objection not mentioned or cov-
ered here was found to be without merit or lacking support in the
record.
1 29 U.S.C. § 151 et seq.
2 All dates hereafter are in 1988 unless otherwise stated.
Lee, Yutzy, and Marker for their several layoffs in October
and November.
Considering the nature and extent of the unfair labor prac-
tices found in this proceeding, particularly the threats of clo-
sure, and the fact that Respondent continued its illegal course
of conduct following the election, I shall recommend to the
Board that a broad cease-and-desist remedial order be issued
against Respondent. Hickmott Foods, 242 NLRB 1357
(1979).
CONCLUSIONS OF LAW23
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By reducing the hours of employee Neil Berkley and
discharging him, Respondent has violated Section 8(a)(1) and
(3) of the Act.
4. By temporarily laying off employees Marker, Lee, and
Yutzy at various dates in October and November, Respond-
ent has violated Section 8(a)(1) and (3) of the Act.
5. By changing the rules about ‘‘build-up’’ time for hunt-
ing, Respondent has violated Section 8(a)(1) and (3) of the
Act.
6. By threatening its employees that its operations would
close down if the Union was successful in its organizing
drive, Respondent has violated Section 8(a)(1) of the Act.
7. By threatening its employees that their jobs would not
last long if the Union was successful in its organizing efforts,
Respondent has violated Section 8(a)(1) of the Act.
8. By informing its employees that it knew who the union
instigators were, Respondent created the impression of sur-
veillance, in violation of Section 8(a)(1) of the Act.
9. By threatening its employees that its customers would
go elsewhere for coal, thus affecting their employment ad-
versely, Respondent has violated Section 8(a)(1) of the Act.
10. Respondent’s attempted disavowal of unfair labor prac-
tices on August 22 was of no force or effect.
11. By refusing to recognize and bargain with the Union
on and after July 21, Respondent has violated Section 8(a)(5)
of the Act.
12. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
Patricia J. Scott, Esq. and JoAnn F. Dempler, Esq., for the
General Counsel.
Richard P. Weintraub, Esq. and Richard D. Wayne, Esq.
(Hinckley, Allen, Snyder & Comen), of Boston, Massachu-
setts, for the Respondent Employer.
Michael Dinnerstein, Esq., of Washington, D.C., for the
Charging Union and Petitioner.
SUPPLEMENTAL DECISION
Brief History
RUSSELL M. KING, JR., Administrative Law Judge. These
consolidated cases were heard by me in Somerset, Pennsyl-
vania, in May and July 1989. My initial decision was issued
on September 18, 1990. Thereafter the Respondent filed ex-
ceptions and a supporting brief with the Board, and the Gen-
eral Counsel filed a brief answering the Respondent’s excep-
tions. On July 11, 1991, the Board remanded the cases back
to me for further review of the record, reconsideration of and
further findings of fact and specific credibility determina-
tions, and, if appropriate, new conclusions of law and rec-
ommendations regarding certain 8(a)(3) and (1) violations
initially found by me. The consolidated amended complaint
(the complaint), which issued January 11, 1989, alleges var-
ious violations of the National Labor Relations Act1 (the
Act) occurring during and after the Union’s attempt to orga-
nize the Respondent (the Company). The Union’s campaign
began in the spring of 1988, culminating in a Board-con-
ducted election on September 20, 1988.2 The Union lost the
election by a 34 to 27 vote.
I. THE ALLEGED UNFAIR LABOR PRACTICES INVOLVING
SECTION 8(A)(3) AND (1) OF THE ACT
A. The Layoffs of Employees Marker, Lee, and Yutzy
1. Testimony and evidence
Paragraph 10(a) of the complaint alleges the unlawful lay-
off of employee Frank Lee on September 25. Paragraph 11
of the complaint alleges the unlawful layoff of employee Jo-
seph Yutzy on September 25, October 24, and November 7.
Paragraph 12(a) of the complaint alleges the unlawful layoff
of Scott Marker on or about September 25, and on or about
November 7, all in violation of Section 8(a)(3) and (1) of the
Act.
Employee Frank Lee first contacted the Union in April,
and the first meeting was held in May, and was attended by
employees Scott Marker, Frank Lee, Joseph Yutzy, and
Denny Weigel. Marker began working for the Company in
April 1984, and worked as a heavy equipment operator until
he left the Company in March 1989. According to Marker,
there were organizational meetings on a regular basis each
week on Wednesday nights, and he attended almost all of
them up until the election. Marker also talked to other em-
ployees about the Union, helped to get union authorization
cards signed, and distributed union literature. Marker signed
his authorization card at an organizational meeting on June
29, and he was an active and outward supporter of the
Union. Marker testified that on July 26 or 27 he had a con-
versation with Supervisor David Wyant wherein he again
claimed that Foreman Terry Pletcher was saying bad things
about him. Terry Pletcher was married to Judith Pletcher, a
part-owner of the Company. Marker testified that he then
told Wyant that ‘‘From this day on I am one hundred percent
for the Union.’’ Marker related that he usually operated a
670 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 A ‘‘pan’’ carries topsoil from a pile to the area pit being re-
seeded, spreading the topsoil out in a rough fashion. A bulldozer
(dozer) then smooths out the topsoil.
4 Foreman Galen Beachy later testified that some time during the
week of September 26–30, Marker’s pan was moved approximately
100 yards in order that a ‘‘dragline’’ could be moved. Beachy also
testified that he offered Marker Saturday work to make up the time
he lost the week of September 25, but that Marker turned this down.
5 Marker gave no explanation as to why he did not work Tuesday
and Wednesday. Foreman Terry Pletcher testified that he did look
for other work for Marker, checking with Larry Sanner (president of
Action Mining) and with Foreman Galen Beechy, but no other work
was found.
6 Pletcher testified that he did look for other work for Yutzy the
week of September 26, checking with Beechy, and mechanics Paul
Sanner and Bill Coleman.
7 There is other testimony in the case to the contrary, i.e., that
when it was too wet to operate a dozer, a pan could operate.
8 In his testimony, Wyant confirmed that he had his wife call
Yutzy.
9 Supervisor Wyant testified that on November 5 or 6 (Saturday
or Sunday), he received a phone call from Larry Sanner, seeking al-
ternative work for Yutzy.
10 According to the testimony of Larry Sanner and Dave Wyant,
Yutzy was called to come to work at noon on Wednesday (Novem-
ber 9) but refused, and also failed to show up for work Thursday
because his truck broke down. Yutzy did work Friday, November
11.
11 Foreman Terry Pletcher, in his testimony, confirmed that Lee
was hired as an oiler, but never became a ‘‘permanent’’ dozer opera-
tor.
pan,3 but that on occasion it would be too wet to operate the
pan, and that he would ‘‘always’’ be assigned other work.
Marker indicated that this would occur approximately 10
times throughout a year. Marker conceded that over a period
of 4-1/2 years, he ‘‘missed a day or two,’’ when it was too
wet to pan and there was not any other work for him to do.
Marker also testified that the Sunday following the union
election (September 25), Larry Sanner told him that it would
be too wet to pan the following day (Monday), and that there
was no other work for him to do. Marker indicated that on
Monday afternoon, he was called and told that there was
nothing for him to do on Tuesday because a dozer had bro-
ken down. Marker testified that during his entire employ-
ment, that a dozer (working in conjunction with a pan) had
broken down 25 and that he had always continued operating
his pan. Marker also did not work on Wednesday, and on
Thursday afternoon he received a call to report to work Fri-
day. Marker indicated that he had been working in pit 27,
and when he returned on Friday, he observed that someone
had been operating his pan in his absence because ‘‘there
was more dirt on the pile where I pile my dirt.’’4 Marker tes-
tified that in early November, and on a Sunday evening,
Terry Pletcher called him at home and said that it was too
wet to pan the following day (Monday), and Marker added
that he did not work the following Tuesday or Wednesday.5
Joseph Yutzy had worked for the Company since Decem-
ber 1981, and was presently operating a dozer. Yutzy, along
with employees Denny Weigel, Frank Lee, and Scott Marker
were the employees who originally got together and con-
tacted the Union. These employees also attended the first
union meeting, with Union Representative Robert A. Moore.
Yutzy related that there were other union organizing meet-
ings once a week leading up to the election (September 20),
all of which he attended. Yutzy testified that during the
union campaign he wore a union hat, had a union license
plate on his pickup truck and union ‘‘stickers’’ on the bump-
ers of his pickup truck, together with union stickers on his
lunchbox thermos, and water jug. He also wore a union hat.
Yutzy also added that after he voted in the election, he car-
ried a sign which stated that he had voted ‘‘Yes.’’
Although Yutzy presently operated a dozer, in the past he
had run a pan, a loader, a rock truck, a backhoe, a drag line,
and ‘‘drilled’’ on several occasions. Yutzy testified that four
or five times during his employment he had been told that
it was too wet to operate the pan. Yutzy added that prior to
the election, he had never been laid off or told not to come
to work because it was too wet to operate the pan, but in
such cases he would run a dozer, a rock truck, or anything
to get his time in. Yutzy indicated that on Sunday, Septem-
ber 25, Foreman Terry Pletcher called him at home and told
him that it was too wet to run the pan and that he would
not have anything for ‘‘us.’’ Yutzy indicated that the follow-
ing Monday, Tuesday, Wednesday, and Thursday he did not
work.6 Yutzy testified that on Monday, October 24, Dave
Wyant told him that it was too wet to run the pan, and to
go home and they would call him when they wanted him to
come back to work. Yutzy could not remember how many
days he was off work, but thereafter he was called and asked
to report back to work, running a dozer. Yutzy indicated that
it was never too wet to run a dozer, and that he had run a
dozer when it was too wet to operate the pans.7 Yutzy relat-
ed that on Sunday, November 6, he was called by Roberta
Wyant (office secretary and wife of Supervisor David
Wyant) who told him that it was too wet to run the pan and
not to report back to work until he was notified.8 Yutzy indi-
cated that he then telephoned Larry Sanner to ask for alter-
native work, and Sanner replied that he would talk to Fore-
man Galen Beechy to see if he had any work, and if so,
Beechy would call him direct.9 Yutzy received no phone call
from Beechy, and the following evening (Monday) he and
his wife had visited her grandmother’s gravesite and on the
way back they stopped by pits 18 and 22. According to
Yutzy the ‘‘drag’’ at pit 22 was working and the drag at pit
18 was sitting. Yutzy testified that he felt he could have been
operating the pit 18 drag. Yutzy indicated that he was there-
after called back to work but declined because he had other
plans.10
Frank E. Lee was hired by the Company in May 1987.
Lee testified that his duties were that of an oiler, and he also
ran a dozer, loaded coal, cleaned coal, worked at the tipple,
ran a drag line, and helped as a driller’s helper. In July 1988
Lee indicated that he became a permanent dozer operator.11
Some time in April or May 1988 certain employees began
to talk about a union and according to Lee, he was the one
who was nominated to make the first call to Union Rep-
resentative Robert Moore. In addition to himself, Lee indi-
cated that the other initial union supporters were Denny
Weigel, Scott Marker, and Joe Yutzy. Lee testified that he
attended union organization meetings on a regular and week-
ly basis, and also put stickers on his thermos and his work
vehicle, and wore a union hat. Lee also helped hold a union
banner on the day of the election.
Lee testified that on one occasion his dozer ‘‘went down’’
and for a week, during which time he did mechanical work
671ACTION MINING
12 Pletcher testified that he looked for other work for Lee that
week, checking with Larry Sanner and Galen Beechy, but no work
was found.
13 Action Mining, Inc. and Sanner Energies, Inc. were affiliated
businesses, constituting a single integrated business enterprise, and
a single employer within the meaning of the Act. The Company was
owned by five siblings. Larry Sanner was president of Action Min-
ing, and Douglas Sanner was president of Sanner Energies. Judith
Pletcher was treasurer of Action Mining and Roberta Wyant was a
secretary or clerical for the Company. The fifth sibling, Pamela
Moore, was not active in the Company. Foreman Terry Pletcher is
the husband of Part-Owner Judith Pletcher. Supervisor David Wyant
is the husband of Part-Owner Roberta Wyant. Foreman Galen
Beachy is not related to any of the owners.
14 This fact is undisputed in the case.
15 This fact is also undisputed in the case.
16 The sixth and final charge (Case 6–CA–21390) was filed and
served on the Company on November 8. This charge alleged dis-
crimination against employees who had supported the Union in
many different ways, since on or about September 26. An amended
charge in Case 6–CA–21390 was filed by the Union on January 10,
1989, alleging general discrimination against employees Lee, Yutzy,
and Marker since September 26 because of their concerted activities
on behalf of the Union. The consolidated amended complaint was
issued on January 11, 1989, alleging the unlawful layoff of Marker
on September 25 and November 7 (par. 12(a)), the unlawful layoff
of Lee on September 25 (par. 10(a)), and the unlawful layoff of em-
ployee Yutzy on September 25, October 24, and November 7 (par.
11).
at the direction of Supervisor Wyant. Lee testified that dur-
ing the summer of 1988 there were times when it was too
wet to spread topsoil with the dozer, but that you could then
‘‘go over and back fill.’’ When asked if he did that on occa-
sions, Lee answered, ‘‘No, we didn’t, no.’’ The union elec-
tion was held on September 20 and Lee testified that the fol-
lowing week he was laid off by Foreman Terry Pletcher,
who called him and said that they were going to ‘‘park’’ the
dozer because it was too wet, and that he would let him
know when they wanted him to come back to work.12 Lee
related that the following week, on Sunday night, Pletcher
called him and indicated that the dozer job was ‘‘more or
less completed,’’ but that he should report to work in the
morning to jobsite 200 to crush coal, which he had done a
‘‘time or two’’ before. Lee testified that when he was operat-
ing the dozer he was receiving $9 per hour and getting 45
hours a week, but that when he went on the crusher he went
to $7.50 per hour at 8 hours a day. Lee conceded that there
were times that operation of the dozer was affected by
weather when ‘‘spreading topsoil . . . doing fine grade work
like that.’’ Lee added, however, that weather did not affect
‘‘backfilling and things like that,’’ and that usually on a strip
job ‘‘there’s always some backfill work to do.’’
During cross-examination Lee conceded that a ‘‘large’’
number of employees had union stickers on their vehicles
and on their thermoses, and that at least eight or nine other
employees wore union hats. Lee also did not dispute the fact
that it was too wet for the dozer to be operated the week
that he was laid off, and conceded that the week before he
was laid off he knew the dozer job ‘‘was coming to a com-
pletion.’’
The union election was held on Tuesday, September 20.
In the evening of Sunday, September 25, there was a com-
pany meeting at the home of Larry Sanner.13 The meeting
was attended by Douglas Sanner, Terry and Judith Pletcher,
and Galen Beachy. The status of work in the various com-
pany pits were discussed. Also, over the weekend (Septem-
ber 24 and 25) it had rained very hard, after a long summer
drought.14 Foreman Beachy and Terry Pletcher and Larry
Sanner discussed the weather and the ground situation at the
various pits. At that time employee Marker had been operat-
ing a pan applying topsoil at pit 27. Employees Yutzy and
Lee were working at pit 21 putting in subsoil and topsoil.
Yutzy was working with a pan, and Lee with a dozer. It was
then determined by Beachy and Pletcher that because of wet-
ness, Marker, Yutzy, and Lee could not work at their respec-
tive pits for several days. Beachy testified that he and
Pletcher discussed ‘‘for a long period of time’’ what options
were available to assign the three employees to other work
so they would not lose time. This discussion also involved
what the mechanics were currently doing. Beachy and
Pletcher determined that there was no other work available
for Marker, Lee, and Yutzy, Beachy describing the situation
to be ‘‘very abnormal.’’ Beachy described the weather from
Monday through Thursday (September 26–29) as periodic
rain showers with ‘‘no sunshine at all to dry the ground.’’
Accordingly, Marker, Yutzy, and Lee were called at home
that (Sunday) night and told not to report for work on Mon-
day. Throughout the week, Beachy checked pit 27 and deter-
mined that there was no work for Marker at that site until
on Thursday afternoon when he discovered that the surface
was somewhat drier. That night (Thursday) Marker was
called to report to work the following day (Friday, Septem-
ber 30), which he did. Since the Company had lost time in
their reseeding schedule, Beachy asked Marker to work on
Saturday (October 1), but Marker refused. Terry Pletcher tes-
tified that he checked the work area at pit 21 twice a day
each day that week and that the drying out process did not
commence until ‘‘some good weather’’ on Thursday.
Pletcher further indicated that throughout that week he called
around looking for other work but there was none available
at any other jobsite or with any of the mechanics. Pletcher
testified that on Thursday night (September 29) he called
Yutzy and told him to return to work on Friday. Yutzy did
work on Friday with the pan at pit 21, and he was assisted
by senior dozer operator Earl Pritts, who had become free
after completing other work. Pletcher indicated this is the
reason Lee was not called to come to work on the dozer at
pit 21 on Friday. Pletcher further indicated that he offered
Yutzy work on the following day (Saturday), but that Yutzy
turned the offer down.
On the weekend of November 5–6, it rained as it had on
the weekend of September 24–25.15 Five of the six union
charges had already been filed and served on the Company.
The charge in Case 6–CA–21299 (filed October 3 and served
October 4) alleged, in part, unlawfully ‘‘denying work to
some bargaining unit employees,’’ who are actively involved
in the union organizing efforts, while permitting other bar-
gaining unit employees, who are members of the ‘‘‘Just Vote
No’ committee, to work.’’ This allegation involved the Sep-
tember 26 layoffs.16 Sunday evening (November 6) Larry
Sanner met with Douglas Sanner, Terry and Judith Pletcher,
and Galen Beachy at his home. Larry Sanner knew that pans
would not be able to operate the following day (Monday,
November 7). Mindful of the union charges which had al-
ready been filed, Sanner wanted his supervisors to be certain
672 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 Wyant confirmed the telephone conversation with Sanner during
his testimony.
18 The record, in fact, reflects that Yutzy did not work on Satur-
day, November 12.
19 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982).
as to whether or not other work would be available. At that
time employee Marker was operating a pan at pit 30, and
employee Yutzy was operating a pan at pit 28. Supervisor
David Wyant, who supervised Yutzy at pit 28, was not at the
meeting Sunday evening (November 6) at Sanner’s home.
Thus, Sanner telephoned Wyant Sunday evening and asked
whether or not there was other work available at pit 28.
Sanner learned from Wyant that there was no other work
available, and that he (Wyant) had already called Yutzy and
told him not to report Monday, November 7.17 Foreman
Beachy testified that ‘‘We went through the same options
that we had done before in September and tried to check
where our mechanics were, and what they were doing, to the
best of our ability, and checked any other places where we
may be able to assign them to work . . . [but] there was no
other place that we could put these two people [Marker and
Yutzy] to work at that time [sic] feasible.’’ On the night of
November 9 (Wednesday) Foreman Terry Pletcher notified
Marker to report for work the following day, as the sun had
dried out the area. Marker worked and operated his pan on
Thursday and Friday, but as he conceded in his testimony,
he rejected Pletcher’s offer to work on Saturday, November
12, to make up some of the lost time. Pletcher testified that
he also offered Marker the opportunity to work on any Satur-
day to make up the time that he had lost, with the stipulation
that Marker would let him know in advance. By noon
Wednesday, November 9, it had become dry enough to use
a pan and Yutzy was called at home to come in to work but
he did not report either on Wednesday or Thursday, Novem-
ber 9 and 10. Yutzy did return to operate the pan on Friday,
November 11. Regarding Saturday work, during his testi-
mony Yutzy was asked whether he requested permission to
make up any time on Saturday, November 12, to which he
conceded that in the past he had requested to work some Sat-
urdays, but that he did not recall whether he made such a
request for Saturday, November 12.18
During October, David Wyant was the supervisor over em-
ployee Yutzy at pit 28. Wyant testified that he arrived at pit
28 at 6 a.m. on Monday, October 24. According to Wyant,
the other employees (including Yutzy) were already there. It
had rained the night before and Wyant testified that ‘‘there
was water laying everywhere,’’ and that he thus concluded
that it was too wet for Yutzy to operate the pan that day.
Wyant indicated that he explained this to Yutzy, adding that
he did not have anything else for him to do that day and that
‘‘We’ll make up the time later.’’ Later that morning Wyant
told Yutzy that he would let him know when it was dry
enough to pan. Wyant testified that at the end of the day
(Monday, October 24) he again inspected the pit and deter-
mined that the topsoil was still too wet for the pan, and thus
he called Yutzy Monday evening and informed him not to
come to work Tuesday morning. According to Wyant, he
again inspected the pit Tuesday afternoon and determined
that the topsoil would be too wet to work with on Wednes-
day. However, Wyant testified that during the day on Tues-
day he was able to stockpile coal from another pit which
readied that pit for back filling with a spare dozer. Thus,
Wyant called Yutzy Tuesday night and explained to him that
it would be too wet for him to pan on Wednesday, but that
he could report to work and back fill the pit with a dozer.
Yutzy did report for work Wednesday morning and per-
formed the back filling job with the spare dozer. By Thurs-
day morning (October 26) it became dry enough for Yutzy
to go back using the pan, and thus Yutzy worked on his nor-
mal job Thursday and Friday. Wyant testified that Yutzy
never asked him if he could make up any of the lost time
by working on Saturday.
Larry Sanner, Terry Pletcher, and David Wyant all testi-
fied as to numerous occasions where various employees were
prevented from working because of weather conditions, to-
gether with the lack of alternative work. In this connection,
Pletcher and Wyant made reference to specific named em-
ployees, the machinery which they operated, and the weath-
er-related reasons why the various machines could not oper-
ate under certain weather conditions.
2. Analysis and conclusions regarding the layoffs of
Marker, Lee, and Yutzy
In Wright Line,19 the Board established that if the General
Counsel makes a prima facie showing that protected activity
was a motivating factor in the employer’s decision to take
disciplinary action, the burden shifts to the employer to dem-
onstrate that the action would have taken place even in the
absence of the protected activity. Marker, Lee, and Yutzy
were three of the four original union organizers. They at-
tended many union organizational meetings and they were
outward union supporters while at work. I find that the Com-
pany knew of their union support. The union organizational
campaign at the Company, ending with the September 20
election, was hard fought by both sides. The Company was
unquestionably against the Union, and certainly made no se-
cret of this fact. The alleged discriminatory layoffs of Mark-
er, Lee, and Yutzy commenced on the heels of the election,
in the case of Marker, September 26 and November 7, in the
case of Lee, September 25, and in the case of Yutzy, Sep-
tember 25, October 24, and November 7. Thus, I find that
the General Counsel made a prima facie showing that the
union activity and support of Marker, Lee, and Yutzy was
a motivating factor in the Company’s decisions regarding the
layoffs. However, I now find that the Company dem-
onstrated, through credible evidence and testimony, that the
layoffs would have taken place even in the absence of the
protected union activity. Regarding the layoffs, I now gen-
erally credit the testimony of employees Marker, Lee, and
Yutzy, and Company Officials Larry Sanner, Terry Pletcher,
David Wyant, and Galen Beachy. Although there were some
conflicts in the testimony, I find that they were minor and
unnecessary to resolve in order to come to ultimate conclu-
sions regarding the layoffs of Marker, Lee, and Yutzy.
Contrary to the inferences of portions of testimony from
Marker and Yutzy, I now find that there had previously been
numerous employees who had been laid off or sent home be-
cause of weather conditions and the unavailability of alter-
native work. Marker testified that when it would be too wet
to operate a pan, he would ‘‘always’’ be assigned other
work. Marker indicated that this would occur approximately
673ACTION MINING
20 During his cross-examination, Larry Sanner conceded that he
knew Marker periodically helped the mechanics.
21 In his testimony, Marker does not connect Pletcher’s remark to
any particular date, season, or year.
22 Normal working hours were 6 a.m. to 3:30 p.m., including Sat-
urdays.
23 On November 2, 1988, Marker gave a sworn statement to a
Board investigator wherein he had indicated that he saw the
Warnicks working extra during the week only ‘‘right before the elec-
tion.’’ When shown this statement (affidavit) during his testimony,
Marker continued to insist that he had seen Sylvan Warnick working
Continued
10 times throughout a year, adding that he ‘‘missed a day
or two’’ over 4-1/2 years when it was too wet to pan and
there was not any other work for him to do. Marker stretched
the truth here. I find that he had adopted a habit or practice
of when it rained and would be too wet to pan, he would
not report to his pit or jobsite but would report directly to
the mechanics’ shop and inquire as to whether the mechanics
needed any help that day. Marker testified that he felt no one
would say anything to him if he was seen working with the
mechanics, and thus admitted that he did this without any
knowledge or authorization of or from any supervisor.20 Em-
ployee Yutzy testified that he had never been laid off or told
not to come to work because it was too wet to operate the
pan, adding that in such cases he would run a dozer, a rock
truck, or anything to get his time in. The complete accuracy
or credibility of this testimony by Yutzy is of no con-
sequence in this case, as I am convinced that on the dates
in question in this case, it was too wet to work and there
was no alternative work. Furthermore, Yutzy was a bit lacka-
daisical about his work, voluntarily skipping days on occa-
sions for personal reasons.
I now find that the Company’s practice of reassigning
other work when poor weather prevented an employee’s per-
formance of his usual and normal work depended on the
availability of such alternate work, and if not available the
employee was either sent home or called and told not to re-
port to work. The testimony of Larry Sanner, Terry Pletcher,
and Dave Wyant reflects that in the past there had been nu-
merous layoffs of other employees because of weather condi-
tions, and who had lost working time as a result. I note also
that Marker, Lee, and Yutzy were all offered to make up lost
time by working on Saturdays, and I find that this was a
known policy of the Company. Employee Marker was a pan
operator, Lee was a dozer operator, and Yutzy normally op-
erated a pan and occasionally a dozer. A pan was used to
convey topsoil to the pit area during the reclamation process,
and thereafter the dozer was used to spread and even out the
topsoil. Regarding this process, I find that the pan could op-
erate without a dozer, but the dozer was useless until the pan
conveyed a substantial amount of topsoil to the pit area.
Among all of the equipment used by the Company, the pan
was the most susceptible to rain and wet conditions, and the
dozer was not far behind. Thus, pan and dozer operators
were the employees most affected by wet conditions, includ-
ing Marker, Lee, and Yutzy. It is essentially undisputed that
on the dates of the layoffs, a pan could not be used, nor
could the dozer be used (at least as far as topsoil was con-
cerned). From creditable evidence and testimony on the
record, I am convinced that prior to and during the layoffs
involved here, the Company looked for alternative work, but
found that there was none available.
From the foregoing, and from all the testimony and evi-
dence, I now find that the Company has fulfilled its burden
in demonstrating that the layoffs of Marker, Lee, and Yutzy
would have taken place even in the absence of their union
support and protected activity. I shall thus recommend that
Paragraphs 10(a), 11, and 12(a) of the complaint be dis-
missed.
B. The More Onerous Working Conditions
Regarding Marker
Paragraph 12(b) alleges that on or about October 27 the
Company imposed more onerous terms and conditions of
employment on employee Scott Marker by refusing to allow
him to participate in its compensatory time program while
permitting other employees to utilize the program, in viola-
tion of Section 8(a)(3) and (1) of the Act.
Employee Marker testified that ‘‘in the fall of 1988, he
asked foreman Galen Beachy if he could work extra time or
‘time ahead’ to take off in the approaching hunting season.’’
According to Marker, Beachy stated that he would have to
check with Larry Sanner. Beachy later told him that he had
talked to Sanner and that Sanner had authorized the extra
time, but that it had to be done on a Saturday only, during
regular hours. Marker testified that he ‘‘was working through
dinner one day’’ when Terry Pletcher stopped him and told
him that he could only work time ahead on Saturdays.21
Marker then related that in the fall of 1988 he observed em-
ployees Sylvan Warnick and Marv Warnick still working
when he left at 3:30 p.m.,22 and that Sylvan Warnick told
him that he was working extra hours ‘‘to go hunting, take
a trip out west.’’ According to Marker, Warnick also stated
that when he worked on a Saturday he started early and then
quit early. Marker testified that both Sylvan and Marv
Warnick wore ‘‘Vote No’’ hats during the union campaign.
Marker testified that during his previous employment (before
October 1988), he was always allowed to work extra hours
ahead, and he would usually either work through dinner or
work late an hour or two in the evening. Marker indicated
that in the fall of 1987, he left the jobsite two or three times
to go hunting, and was also accompanied by employees
Dwayne Blank and Danny Klink. Marker added that no one
from management ever said anything to him about leaving
the job to go hunting, and that ‘‘one particular day we went
hunting’’ and then came back, and that after quitting time,
‘‘we’’ went down to a bar that is down the road from the
shop. According to Marker, about 15 minutes later Terry
Pletcher came into the bar and asked them if they had gotten
anything when they went hunting. Marker related that he did
not remember if ‘‘we got any or not.’’ According to Marker,
Pletcher was joking about the matter, and Marker testified
that ‘‘we’’ asked Pletcher what ‘‘we’’ should put down on
the timecard, and according to Marker, Pletcher replied to
put down ‘‘F O,’’ explaining that it meant ‘‘fucking off.’’
Marker never expanded on who the ‘‘we’’ actually were,
other than himself, and he did not give any date, season, or
year for this event at the bar with Pletcher. In later testi-
mony, Marker conceded that he saw the Warnicks working
the extra time during the week in early September, but Mark-
er insisted that he saw Sylvan Warnick working extra time
during the week ‘‘after’’ the election.23
674 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
extra hours after the election. The Warnicks did not testify in the
case.
24 The October 2 meeting was held at the home of Larry Sanner.
Beachy gave no testimony as to where the meeting was held, and
left out the presence of Sanner at the meeting. The fact that he for-
got about the presence of Larry Sanner does not have, in my opin-
ion, any effect on his credibility. Beachy obviously knew, at one
time, the presence of Larry Sanner at the meeting during the occur-
rence of these ‘‘build up’’ time events, having initially gone to
Sanner over the matter, and again having gone to Sanner for clari-
fication after Marker’s inquiry. Further, I now disavow fn. 21 in my
initial decision. On further reflection, and after a complete rereading
of the record (including exhibits), and after reviewing my trial notes
(which had been misplaced), I now discredit the Company’s wit-
nesses only regarding their preelection actions and conduct, involv-
ing only violations of Sec. 8(a)(1) of the Act.
25 Beachy testified that one reason was for safety regarding early
morning (before shift) work, and Beachy himself was for some rea-
son confused on the rules regarding both make up time and build
up time. Larry Sanner testified that the rule was changed so that su-
pervisors could better get a ‘‘handle’’ on make up time and build
up time. Pletcher indicated that it was to better keep track of men
who said they were working extra hours in the early morning and
late evening hours (before 6:30 a.m. and after 3:30 p.m.). The em-
ployees kept their own timecards, on the honor system.
Galen Beechy had worked for the Company as a foreman
since May 1981. Beachy testified that a meeting was held at
Larry Sanner’s home on Saturday, October 2, and that in ad-
dition to himself and Larry Sanner there was present Douglas
Sanner (president of Sanner Energies) and Judy Pletcher
(treasurer of Action Mining). According to Beachy, he had
become confused with the Company’s policy regarding
‘‘make up time’’ and ‘‘build up time,’’ because on Friday
(the previous day) he had allowed employee Marker to go
home early to get material for his house, and that later on
that day ‘‘other employees’’ at the same pit reminded him
that in one or two other instances he (apparently referring to
Marker) had done the same thing without Beachy’s blessing.
Beachy indicated that because of this, he asked Larry Sanner
to have a meeting on the subject and the meeting was held
the following day, and according to Beachy, those present,
in addition to himself, were Douglas Sanner (supervisor and
president of Sanner Energies), and Judith Pletcher (treasurer
of Action Mining). Although both Sanner and Pletcher testi-
fied in the case, they were not asked about the October 2
meeting. Beachy related it was decided at the meeting that
the Company would allow ‘‘build up time’’ to be done only
on Saturdays during regular working hours. Beachy testified
that such ‘‘build up time’’ was discussed mainly regarding
hunting. According to Beachy, it was also decided at that
meeting that ‘‘make up time’’ (as opposed to ‘‘build up
time’’) would only be done in the evenings after work or on
Saturdays, but not early in the morning before the start of
the shift (6 a.m.). Beachy testified that some time following
this meeting, Marker approached him and asked him if he
could come in early to build up time to go bear hunting.
Beachy indicated that he told Marker he could only build up
time during regular working hours on Saturdays, but that he
would ‘‘double check’’ the matter with Larry Sanner. Beachy
did check with Sanner who confirmed that he had given the
right answer to Marker. Beachy testified that thereafter and
on a Friday, Marker asked him if he could build up time
with his pan on Saturday, and that he told Marker he could.
Beachy indicated that the problem with working before the
morning shift involved safety, in that there would be no
other employees or supervisors present, whereas with
evening work (after 3:30 p.m.) there would always be others
there, and that he (Beachy) himself was always at the pits
late in the evening until 7 p.m. or 8 p.m. when ‘‘make up
time’’ was generally over. Beachy added that in most cases,
it was dangerous to operate heavy equipment when no one
else was around.
Larry Sanner testified that prior to October the Company
had an informal policy whereby employees could build up
time by working late, or working on Saturdays. According to
Sanner, employees could also build up time early in the
morning before their shift started with the permission of their
supervisor. Sanner added that while employees could not
work through lunch to build up time, they could do so in
order to leave work half an hour early for appointments, and
so forth. Sanner testified that Beachy came to him indicating
that he had had some discussions with employees about
building up time, and that he wanted to know how the Com-
pany was going to handle the matter. Sanner related that
Beechy ‘‘had a lot of questions all the time about men build-
ing up time.’’ Sanner indicated that the result of this question
by Beachy, a meeting was held at his home on Sunday, Oc-
tober 2, and that beside himself, present were Beachy, Judy
Pletcher, and Doug Sanner. The purpose of the meeting was
to discuss build up time and making up time. Sanner testified
that they all decided they needed to ‘‘get a better handle on
that situation . . . so that supervisors knew exactly what was
going on when the employees were building and making up
time.’’ Sanner testified that in order to get a better ‘‘handle’’
on make up time and build up time, they all decided that
build up time would be handled on Saturdays during regular
working hours on the employees’ ‘‘own piece of equip-
ment.’’ Sanner indicated that some time after that meeting
Beachy again approached him and said that Marker asked
him if he could work early in the morning to start building
up time, and that he (Beachy) wanted to ‘‘clarify’’ the matter
again. Sanner related that he reminded Beachy of what they
had decided at the October 2 meeting, and again advised
Beachy that build up time could be done on Saturdays during
regular work hours. Sanner indicated that since October 2,
this policy had been adhered to by all supervisors. Terry
Pletcher testified that prior to October, the Company had a
‘‘practice’’ of allowing build up time to be done anytime,
but that the Company ‘‘had a problem with men, more or
less . . . doing it anytime they wanted to.’’ Pletcher added
that the Company could not keep track of men who said they
were working early in the morning or late in the evening,
and the ‘‘practice’’ was changed to Saturdays only.
Regarding the issue of build up time, I now credit com-
pletely the testimony of Beachy, Terry Pletcher, and Larry
Sanner.24 I find that the rule (or practice) regarding build up
time was in fact changed at the meeting of October 2. Al-
though the record is somewhat sparse,25 I find that the rule
change regarding build up time was lawfully imposed and
administered in a nondiscriminatory manner. There is abso-
lutely no evidence in the record indicating that any em-
ployee, starting with October, was allowed to build up time
other than on Saturdays during regular working hours. Mark-
er testified that in the fall of 1988, and at some time after
675ACTION MINING
26 This reduction in pay is undisputed in the case.
27 Lee, in fact, had considerable seniority, over Berkley.
28 At the hearing, Lee identified his timecards for the week ending
December 24 through the week ending April 15, 1989, a 17-week
period. The timecards reflected that Lee’s hours (for the weeks end-
ing December 24 through the weeks ending April 15) were as fol-
lows: 39-1/4 hours, 29-3/4 hours, 40 hours, 40-1/2 hours, 37-3/4
hours, 45-1/2 hours, 41-1/2 hours, 40-1/4 hours, 45 hours, 37-1/4
hours, 51-1/4 hours, 41-1/2 hours, 45-1/4 hours, 26-1/2 hours, 42
hours, 45-1/4 hours, and 47 hours.
the election (September 20), he saw employee Sylvan
Warnick working late to build up time. Although I do not
discredit Marker, I feel that it would be improper to conclude
that the event occurred after October 2, especially in light of
Marker’s indefiniteness as to when he saw and talked to
Warnick.
Accordingly, I find that the General Counsel failed to
make a prima facie case under the Board’s decision in
Wright Line regarding the matter of Marker and the build up
time rule change. I thus shall recommend that paragraph
12(b) of the complaint be dismissed.
C. The Reduction in Hours of Employee Frank Lee
Paragraph 10(b) of the complaint alleges that on or about
October 11, the Company unlawfully changed the terms and
conditions of employment for employee Frank Lee by reduc-
ing his hourly wage and decreasing the number of hours he
worked, in violation of Section 8(a)(3) and (1) of the Act.
Employee Frank Lee came to work for the Company in
May 1987, and indicated that he had held various jobs, in-
cluding loading coal, cleaning coal, working at the tipple,
running a dragline, a driller’s helper, an oiler, and running
a dozer. Lee testified that he got the dozer job ‘‘perma-
nently’’ in July. Lee had been laid off the week of Septem-
ber 26 because of weather conditions and no alternative
work. Lee testified that on Sunday night (October 2) he re-
ceived a phone call from Terry Pletcher who advised him
that his dozer job was ‘‘more or less completed,’’ and that
they were going to ‘‘park’’ the dozer. Pletcher then told Lee
he would be ‘‘crushing coal,’’ and to report to the appro-
priate jobsite the following morning at 7 a.m. Lee indicated
that he had performed this job in the past ‘‘a time or two,’’
adding that when he was operating the dozer he had received
$9 per hour and was getting 45 hours a week, but when he
went on the crusher, he went to $7.50 per hour and his time
was 8 hours a day.26 According to Lee, he worked on the
crusher for about 2 weeks and in the middle of the third
week his job was changed to that of loading trucks in the
evening at the tipple, and his time started to ‘‘fluctuate.’’ Lee
testified that Larry Sanner then asked him to call in on a
daily basis to find out ‘‘what was lined up and stuff,’’ and
he did so at about 9 o’clock each morning when he would
be told ‘‘whether to go to the crusher at a [sic] such a time
or report down to the tipple at 4 o’clock in the evening and
load trucks.’’ Lee was asked what his average hours were
after being reassigned from the dozer job, and he replied,
‘‘I’d say between twenty-eight and thirty-five hours just off-
hand.’’ Lee operated his own taxidermist business on the
side, which the Company knew about, and Lee testified that
it was ‘‘hard to adjust’’ to his new hours while maintaining
his taxidermist business. Lee testified that in late October he
approached Larry Sanner and told him that he would ‘‘soon-
er be laid off’’ because he could make more money in his
taxidermist business. According to Lee, at that time Sanner
did not give him ‘‘much of an answer on that.’’ Lee testified
that a week or so later he again talked to Larry Sanner and
asked him whether he had given any further thought to lay-
ing him off, to which Sanner replied ‘‘that there was work
here to do and we have to . . . do it.’’ Lee indicated that
‘‘about’’ the second week of October he was assigned to the
tipple, and that job included, among other things, the loading
of trucks at night. Apparently, loading trucks at night on Fri-
days was inconvenient for Lee, and at one point he talked
to Larry Sanner about the matter and Sanner replied that they
loaded trucks 6 days a week and always on Fridays. How-
ever, Lee testified that on the Friday before his conversation
with Sanner, he did not load trucks but went home. Accord-
ing to Lee, Larry Sanner saw him leave, but said nothing to
him.
On cross-examination, Lee conceded that prior to his as-
signment to the dozer, he was an oiler receiving $7.50 an
hour although on occasion he would run a dozer also, and
was then paid the appropriate rate for operating the dozer.
Lee further conceded that he knew that his dozer job was
coming to a completion, and that when he was assigned to
the crusher (on October 3) he replaced employee Neil Berk-
ley, over whom he thought he had seniority.27 Berkley was
thereafter discharged from the Company, and at the time of
his discharge he had been loading trucks at the tipple at night
(between 4 and 8 p.m.), the job he was originally hired to
do. Lee conceded that he knew about Berkley’s discharge,
and that he (Lee) had replaced him on the crusher. Lee also
conceded that since some days at the crusher would be very
busy and others would not be so busy, Larry Sanner told him
to call in in the morning after he had determined what the
coal production would be for that day, and thus he could be
told when to report for work that day. Lee agreed that this
was for his convenience. Lee testified that the normal load-
ing nights at the tipple were Sunday through Tuesday nights,
and he conceded that since he went to church on Sunday
night, that he gave up those hours. Lee further conceded that
Sanner often gave him daytime hours at the tipple in order
to increase his hours, adding that there were days when he
put in ‘‘some long hours.’’ Lee testified that the reason his
hours fluctuated was because of his work on the crusher, and
he denied that there came a time when his hours began to
level out. However, Lee’s timecards reflected that this was
not completely accurate.28
The only testimony that Foreman Terry Pletcher gave in
the case regarding Lee’s reduced hours was that Lee was
hired initially as an oiler and was never a permanent dozer
operator. Larry Sanner testified that the reclamation work in
the pit where Lee was working (pit 21) was completed on
October 3. Sanner indicated that it was then decided to as-
sign Lee to the crusher because there was no other work for
him to do on any other equipment at that time, and they also
had a ‘‘good bit’’ of crushing work at that time. Sanner
added that Lee replaced employee Neil Berkley at the
crusher since Berkley had not been working permanently or
full time at the crusher, but had been working there for just
‘‘fill-in’’ time or additional hours. Sanner related that Fore-
man Terry Pletcher made the actual assignment of Lee to the
crusher, to begin on Monday, October 3. Sanner testified that
676 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
29 Had I found that a prima facie case had been presented, I would
also have found that the Company demonstrated that Lee would
have been assigned from the dozer to the crusher in the absence of
any union support or other protected activity on the part of Lee.
30 Employee Richard Mishler did testify in the case, but not about
Berkley.
31 This discussion is the subject of an 8(a)(1) unlawful interroga-
tion allegation, contained in par. 9(b) of the complaint, and which
I later recommend be dismissed.
the Company had at that time nine dozer operators and that
Lee had the least seniority. Sanner testified that October 12,
Lee was assigned to the tipple, where he worked Monday
through Thursday nights. Sanner added that although the tip-
ple operated on Sunday night, but that Lee had asked for and
received Sunday nights off to attend church. According to
Sanner, the tipple rarely operated on a Friday night, but ‘‘a
lot of times’’ Lee would be asked to work at the tipple
‘‘cleaning up, and stuff like that’’ to get extra hours ‘‘to try
to get a regular workweek’’ for Lee because his crusher
work was irregular.
Sanner testified that about 2 weeks after Lee began work-
ing nights at the tipple, in addition to his irregular hours job
on the crusher, Lee came to him and inquired as to whether
or not he could somehow find a way to report to work on
the crusher at a definite time, because the present situation
was interfering with his taxidermy work. According to
Sanner, they came to the understanding that Lee would call
in at about 9 o’clock in the morning and that he (Sanner)
could then tell him exactly what time to report to the crusher
in the afternoon, thus giving Lee the morning hours to do
his taxidermy work. Sanner indicated that in order to accom-
modate Lee, he scheduled crushing work to be done later in
the day. This allowed Lee to finish his crusher work at about
3:30 p.m. to 4 p.m., and thereafter he could report to the tip-
ple to handle the evening loading at the tipple. Lee had origi-
nally been hired as a dragline oiler and Sanner testified that
during the summer the State Department of Environmental
Resources had required the Company to complete reclama-
tion work (including seeding) on certain pits by the fall.
Sanner thus indicated that Lee was temporarily assigned to
a dozer in order for the Company to meet the State-imposed
fall deadline. Sanner testified that Lee started to operate the
dozer some time in August, and remained on the dozer until
late September, but Sanner indicated that he never directly
supervised Lee (or Yutzy), adding that at the time Lee was
on a dozer he was supervised by Terry Pletcher. Sanner indi-
cated that as long as employees have the capabilities of oper-
ating other equipment, they would ship them from one job
to another as the work is needed.
Regarding the reduction in hours of Lee, I now essentially
credit the testimony of Lee, Terry Pletcher, and Larry
Sanner. Lee was hired by the Company in May 1987 as an
oiler on a dragline at $7.50 an hour. In August (1988) he
was assigned to a dozer, at $9 per hour, in order to timely
complete reclamation work. When that work was completed,
Lee was assigned to the crusher, again at $7.50 per hour. I
find that Lee’s assignment to the dozer was temporary, and
that no other such work was available when he was assigned
to the crusher. Lee’s hours were initially reduced when he
was assigned to the crusher, but he was soon given addi-
tional loading work at the tipple to increase his hours. Lee
himself contributed to his loss of hours by insisting on not
working Sunday nights, and his need for time to engage in
his taxidermy business. Notwithstanding this, his hours con-
tinued to rise and to fluctuate less. Eventually, Lee’s working
hours roughly approached the hours that he had received ear-
lier in his employment (45 hours per week), due mainly to
the efforts of the Company, which continued to honor Lee’s
request not to work Sunday nights and for time needed for
his taxidermy business. I thus find that the General Counsel
failed to prove a prima facie case under Wright Line, and ac-
cordingly I shall recommend that paragraph 10(b) of the
complaint be dismissed.29
D. Employee Berkley’s Reduction in Hours and
His Discharge
1. Testimony and evidence
Paragraph 13(a) alleges that on or about October 3, the
Company unlawfully reduced the hours of employment of
employee Neil Berkley, and paragraph 13(b) alleges that the
Company unlawfully terminated him on October 11, in viola-
tion of Section 8(a)(3) and (1) of the Act.
Neil Berkley testified that he was hired by the Company
in December 1987 as a loader at the tipple and as an oiler
on a dragline, working from 45 to 50 hours per week. Berk-
ley related that he was at first skeptical about the Union, but
after talking to union organizers at the home of one Rick
Mishler on July 18, he did sign a union authorization card.30
Berkley testified that on the day in 1987 when Larry Sanner
hired him, Sanner stated that, ‘‘If this place goes union, you
might as well be looking for another job because I’ll shut the
doors.’’ Douglas Sanner was a co-owner of the Company
and president of Sanner Energies. According to Berkley,
about 2 weeks prior to the union election, and at the tipple,
Douglas Sanner approached him and asked him how he felt
about the Union, to which he replied that if he felt the Union
was going to give him the best opportunity he would vote
yes, but that if he felt management would give him the best
deal, he would vote no. According to Berkley, Sanner re-
plied, ‘‘That’s all we expect from you.’’31 Berkley testified
that about a week before the election he attended a Compa-
ny’s meeting conducted by Larry Sanner, Judith Pletcher,
and Douglas Sanner, where he asked for and received pencil
and paper to take notes, informing the Sanners and Pletcher
that he was going to a union meeting on Sunday with the
notes to compare with what the Union had to say. According
to Berkley, after the meeting he asked Larry Sanner to attend
the union meeting ‘‘for the debate,’’ to which Sanner replied
‘‘No,’’ as they were not allowed to bring their lawyers to the
meeting and that he was afraid that the Union might try to
incriminate him in some way. Berkley testified that some
time in September but before the election (on September 20)
he had a conversation with Larry Sanner wherein he com-
plained about his $7 per hour pay, stating that other workers
at the tipple were paid $7.50 per hour, to which Sanner re-
plied that he could not give him a raise at that time ‘‘due
to what was happening with the Union and stuff.’’ Berkley
testified that his ‘‘second gripe’’ to Sanner on that occasion
was that a man by the name of ‘‘Mike Neil’’ was working
on days that he was sitting at home, to which Sanner replied
that there was no employee at the Company by the name of
677ACTION MINING
32 Berkley testified that he had learned this from employees Tony
Vena and Jim Robertson. Employees Tony Vena and James Robert-
son both testified in this case, but neither were questioned about tell-
ing Berkley about a ‘‘Mike Neil’’ prior to the election. There was
in fact a Mike Neal (spelled throughout the record both ‘‘Neal’’ and
‘‘Neil’’) who worked part time for the Company at that time. Neal
had been laid off at another company, and had come to Beechy, ask-
ing for part-time work. Beechy got Sanner’s permission to try Neal
out working in the ‘‘ditch,’’ in place of Berkley. Beechy had com-
plained to Sanner that Berkley’s work in the ditch was not good.
Sanner testified that in the preelection conversation with Berkley, he
had explained all of this. In this regard, and in his testimony, Beechy
corroborated Sanner.
33 After the election, there was a gathering of union supporters
about a quarter of a mile away.
34 Berkley’s timecards for the weeks ending September 23, Sep-
tember 30, and October 7 were admitted into evidence, and reflect
52 hours, 54 hours, and 23-1/2 hours, respectively.
35 During their testimony, neither Vena nor Robertson was asked
about meeting with Berkley on October 11. Robertson was called as
a rebuttal witness by the General Counsel. During his cross-examina-
tion, counsel for Company did attempt to go into the matter, and the
General Counsel objected on the grounds that it was not the subject
of direct examination, and I sustained the objection.
36 While testifying, Berkley explained that when it rained it be-
came ‘‘pitch dark’’ and the steel on the loaders ‘‘becomes very slip-
pery,’’ and that this was ‘‘very common knowledge.’’
37 Employee Tony Vena testified that prior to Berkley’s employ-
ment with the Company, he and employees Erwin Savage and Jim
Robertson had the job of greasing the loaders, but that when Berkley
came to the Company, greasing the loaders became part of his
(Berkley’s) duties. Vena indicated that prior to Berkley’s arrival,
they tried to grease the loaders every day, but that there were times
when it went ‘‘four days and even longer when [they] were pressed
for working’’ before the loaders were greased. Vena added that he
did not know whether Sanner knew this, but Sanner had never spo-
ken to them about it, and that they were not told to grease the load-
ers every day, but ‘‘just assumed that.’’ Larry Sanner testified that
he had told Robertson and Savage (before Berkley was hired) to
grease the loaders on a daily basis.
38 Regarding timecards, employee Vena testified that what ‘‘‘we’
do is if we work until ten of 4:00, we mark down 4:00, and if we
work past fifteen after 4:00, we put down 4:30.’’ Vena indicated that
he did not know whether Sanner knew this or not.
Mike Neil.32 Berkley indicated that several days later he
brought the subject of a raise up again with Sanner, and that
Sanner replied, ‘‘My hands are tied . . . with this union stuff
going on.’’ Berkley testified that the day after the union elec-
tion he went to the office and had a conversation with cleri-
cal employee ‘‘Roxanne Baer.’’ What ‘‘Baer’’ said to Berk-
ley was the subject of an objection by counsel, which was
sustained. However, a Roxanne ‘‘Crise’’ did testify in this
case. She had known Berkley for some 20 years and she had
worked as a clerical for the Company for the past 7 years.
Crise testified that she and Berkley did have a conversation
in the office the day after the election, and that Berkley com-
plained that he had not been invited to the Company’s post-
election party. Crise indicated that there was a party right
after the union election but that no one was actually invited,
further explaining that everyone stuck around to see how the
vote came out, and that after the results were announced,
those who were not pleased with the outcome left, and those
pleased by the outcome stayed and participated in a party.33
Crise indicated that Berkley ‘‘just assumed he wasn’t in-
vited,’’ and Crise denied telling Berkley that he was not in-
vited because the Company thought he was a union sup-
porter. Crise added that she had no idea of who Berkley sup-
ported and that she had never heard anyone in the Company
talking about Berkley’s union sympathies.
Berkley testified that before the election he averaged 40–
50 hours per week, working from ‘‘9:00 in the morning to
8:00 at night’’ as a loader operator and other ‘‘odd jobs
around the tipple,’’ but that about a week after the election
his hours dropped, sometime as low as 20 hours per week,
and he was also working the 4 to 8 p.m. evening shift, still
as a loader operator at the tipple. Berkley indicated that he
talked to Larry Sanner about his reduction in hours, and that
Sanner told him not to worry about it, and that there was a
train coming which he could help load probably starting at
6 a.m. Berkley testified that thereafter he discovered that
they were in fact loading the train without him. Berkley re-
lated that he then went to Sanner and asked why he had not
been called, and Sanner replied that he had drillers who were
not drilling that day, and that one had more seniority than
him. Berkley related that he pointed out to Sanner that the
driller will get his 40 hours regardless and that he (Berkley)
would not get his, whereupon Berkley indicated that Sanner
just shrugged his shoulders.34
Berkley testified that on October 11 he received a phone
call to come out to the office around lunchtime, and that he
arrived a little early to talk with employees Robertson and
Vena to try and find out what was going on. Berkley indi-
cated that he then learned (from either Robertson or Vena,
or both) that Larry Sanner had been there earlier in the day
checking the loaders and ‘‘seeing that you hadn’t greased.’’35
Berkley then went to the office and met with Sanner and
Beechy, and according to Berkley, Sanner first asked him if
he had greased the loader the previous evening, to which he
replied that he had greased one but not the other because it
was raining.36 Berkley indicated that Sanner then said that
this was not the first time and that he sometimes failed to
grease the loaders for 3 weeks at a time. Berkley maintained
that this was not true, whereupon, according to Berkley,
Sanner asked him if he was calling him a liar, to which he
(Berkley) replied that he was not calling him a liar but that
he had his facts wrong. Berkley conceded that ‘‘numerous
times’’ Sanner had told him to make sure he was ‘‘getting
the loaders at night.’’37 Berkley further conceded that he had
been told to grease certain parts daily. Berkley testified that
Sanner then accused him of falsifying a timecard by entering
the quitting time of 8:30 p.m. when in fact he had left at 8
p.m. Berkley maintained that this was not true, and indicated
once again Sanner asked if he was calling him a liar, to
which he replied that he was not but that his information was
wrong. According to Berkley, he explained to Sanner that if
he left at 8:05 p.m. he would mark down 8 p.m., but that
if he left at 8:15 p.m., he would mark down 8:30 p.m. Berk-
ley related that Sanner then asked him who told him to mark
his timecard in that manner, to which he replied that ‘‘every-
body that works up here does it,’’ and Sanner then said,
‘‘That’s not the way we do things around here.’’38 Berkley
testified that he knew he was going to be fired and asked
Sanner that question, to which Sanner replied that he had not
come to a decision yet. Berkley indicated that he then told
Sanner the only reason why he was doing this was because
he was ‘‘100 percent UMWA,’’ to which Sanner replied,
678 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
39 Berkley was wrong about the initial presence of Pletcher, who
came on the scene later.
40 There is no other evidence or testimony in the case regarding
any ‘‘list.’’
41 Tr. vol. III, pp. 316 and 359.
42 Tr. vol. III, p. 369.
‘‘How would I know that?,’’ and that he replied to Sanner
that he had ‘‘witnesses that will state that you knew how I
voted.’’ Sanner further stated that if he was going to dis-
charge him, that he would do it that afternoon when he came
to work (at 4 p.m.). Berkley testified that when he arrived
that afternoon he met Sanner, Beechy, and Pletcher just out-
side of the office, and Sanner then discharged him.39 Berkley
admitted that he was very angry and ‘‘lost [his] cool,’’ indi-
cating that he did not recall a lot of things that happened,
but that he did remember telling Sanner that there were a lot
of ‘‘unfair labor practices’’ here, and that Sanner better save
his money because the Company was going to owe him a
large amount of backpay. Berkley testified that 3 or 4 days
before he was discharged, he was called into Sanner’s office
and informed of the complaints from truckdrivers not being
able to load, to which Berkley replied that it was not true.
Berkley indicated he told Sanner that he had a list of the
trucks, and that if all the trucks had reported before 8 p.m.,
he had been instructed to leave.40 Berkley then immediately
changed his testimony to indicate that he was staying until
8 p.m., and if the trucks weren’t there by then, he would
leave. Berkley testified that he had observed truck operators
load themselves ‘‘lots of times.’’
During cross-examination Berkley indicated that he had
been through a prior union organizing drive, and he was con-
cerned about his employment security if he got involved in
another union organizing drive. Berkley conceded that he had
asked union organizers about job security but could not re-
call what their reply was. Regarding the October 4 meeting
with Sanner and Beechy, Berkley denied that Sanner told
him it was important for him to be at the tipple until 8 p.m.
so that drivers would have somebody to load them when they
arrived. In fact, Berkley initially denied that Sanner men-
tioned anything about greasing loaders or not being at the
tipple at 8 p.m. at the October 4 meeting, but in later cross-
examination, Berkley did admit that Sanner mentioned com-
plaints about truckdrivers who were not getting loaded. Berk-
ley maintained that at the October 4 meeting, he did not talk
in a loud voice. Berkley initially could not recall anything
about the loading of railroad cars, and that he only recalled
asking Sanner about getting his time in. Yet, in later cross-
examination, he did remember that he told Sanner that he
should have been working that day loading cars, and that
Sanner replied that Frank Lee was working because he was
not needed on the crusher and had more seniority over him.
Berkley also remembered that Sanner told him that everyone
on the job had more seniority than he did. Berkley further
conceded that he later learned that Ed Hoover, who also was
helping to load the train, had seniority over him. Berkley
conceded that ‘‘at some point’’ he learned from Sanner that
he had been replaced on the crusher, and he knew that em-
ployee Lee had more seniority than him. Berkley also con-
ceded that he had told Beechy, regarding the ditch job, that
he did not want to do ‘‘nigger’’ work and further conceded
that at some point Sanner told him he could stay late at the
tipple if it meant getting the loaders greased. Regarding the
noon meeting with Beechy and Sanner on October 11, and
also during his cross-examination, Berkley conceded that
Sanner mentioned that he had marked time down on his
timecard when he actually was not there, but Berkley main-
tained that at that meeting, he ‘‘was afraid to really show
any type of anger’’ because he feared that he was going to
lose his job, further maintaining that he used no language
that was ‘‘out of the ordinary,’’ and also denied that he
called Sanner a liar, then, or at any other time.41 Berkley
also conceded that at the October 11 noon meeting he asked
Sanner to swear on the Bible, and that he also told Sanner
that if he was going to be fired, he wanted it done at the
tipple in front of other employees. Berkley also conceded
that he told Sanner if he called him at home, he would not
answer the phone. Sanner also admitted that at the time of
his discharge the afternoon of October 11, he got ‘‘very
angry’’ with Sanner, came face to face with him, and shout-
ed at him, but Berkley denied that he told anybody he would
get them on Main Street. Berkley further conceded that
Pletcher came and told him not to threaten Sanner. Also in
cross-examination, Berkley admitted that his ‘‘normal job’’
was loading trucks in the evening from 4 to 8 p.m.42 But
Berkley added that Sanner was very good in getting his
‘‘time in’’ (40 hours or more) until he no longer worked on
the crusher, but conceded that after he was taken off the
crusher, Sanner continued to get him extra hours. Berkley
also testified in cross-examination that after he was dis-
charged and as he was leaving he pointed his finger at
Sanner and told him, ‘‘You’ll get yours some day in a court
of law.’’
Larry Sanner testified that about 2 weeks before the elec-
tion and at the tipple around 11 a.m. Berkley approached him
and asked for a raise to $7.50 per hour, the same as the other
regular tipple employees. Sanner replied that he ‘‘was not at
liberty to discuss any pay raises or benefits with any of the
employees.’’ Sanner indicated that Berkley also asked for
more hours and stated that he had heard there were a few
times that a Mike Neal was working at the ditch near the tip-
ple while he (Berkley) was sitting at home. Sanner then told
Berkley that Foreman Galen Beechy had told him that he
wanted Neal to help him at the tipple because Neal was a
much better worker than he (Berkley) was. Sanner also told
Berkley that Beechy had told him (Sanner) that he (Berkley)
had called working in the ditch ‘‘nigger’’ work. According
to Sanner, Berkley admitted this remark but maintained that
he had done a good job working in the ditch. Sanner then
told Berkley that Beechy had not been pleased with Berk-
ley’s cooperation in the ditch, and had asked if Neal could
help him, and ‘‘that’s the way we set it up.’’ Sanner testified
that Berkley then asked him if he could get a raise after the
election, adding that would make it much easier for him to
decide how he wanted to vote in the election. Sanner again
refused to talk about the raise, and told Berkley that he
would have to make his own decision on how he wanted to
vote in the election. Sanner indicated that work on the ditch
began around mid-June and it was finished around mid-Sep-
tember. Sanner testified that about a week before the elec-
tion, at the tipple, and in front of outside truckdrivers, Berk-
ley looked at one of the drivers and stated, ‘‘Why don’t you
tell Larry [Sanner] he ought to give me a raise,’’ and that
679ACTION MINING
43 Berkley, in his testimony, had indicated that the drivers them-
selves (and on their own) had told Sanner he should give him a
raise.
44 Subsequently, a letter about the matter was received from Rich-
ter, confirming the incident and further indicating that the drivers
‘‘even went to your main office thinking maybe they could find a
telephone number to call for assistance . . . [and] finding no one
around and no number to reach anyone, they left.’’ The two drivers
were James Boyer and David Hendericks, both of whom testified in
the case corroborating Richter’s complaint. On his timecard, Berkley
had noted that he quit at 8 p.m. on September 19.
45 As he had done with Richter at R & M Brokerage, Sanner re-
quested a letter about the incident from Barron Trucking. The letter
was received (dated September 28), and confirmed the events of the
evening of September 21, and indicated that the truck ‘‘had to be
held over to load in the A.M.’’ Here again, on September 21, Berk-
ley noted on his timecard that he quit at 8 p.m.
46 The Company had two loaders, a ‘‘560 Huff,’’ and a smaller
loader which was normally used to load the trucks, an ‘‘80
Kawasaki.’’ Robertson, in his testimony, confirmed that he had in-
structed Berkley on how to grease the loaders.
47 During Terry Pletcher’s testimony, he was never asked about the
Berkley surveillance the evening of September 22.
he reminded Berkley that they had discussed the matter a
week ago and that he (Berkley) knew his position on the
matter.43 Sanner testified that on the morning of the election
(September 20) he approached Berkley and employee Jake
Savage and asked them if they had any questions before the
election and Berkley wanted to know when he was getting
more ‘‘goddamn’’ money, adding that he (Sanner) knew his
girlfriend was pregnant and needed maternity clothes and ‘‘I
need money now.’’ Sanner again reminded Berkley that they
had discussed the matter several times before and that he
could not give him any answers at this time. Sanner testified
that Berkley had been hired in December 1987 to load trucks
in the evening at the tipple, and that his hours were from 4
to 8 p.m., or later if there were additional trucks to load.
Sanner further told Berkley that he would be given extra
work, if available. Sanner indicated that from the middle of
March to the end of May the Company stopped loading coal
at night because sales went way down, and there was no
need for a second shift at the tipple, thus Berkley was laid
off. Sanner indicated that in late May Berkley was recalled
and resumed loading trucks, and further was given another
job operating the crusher to obtain additional hours. Sanner
related that there was no regular schedule of hours to be
worked on the crusher, and that some days there was a lot
of coal to be crushed, and on other days there was very little
or no coal to be crushed. Thus, he arranged for Berkley to
call in to the office around 9 o’clock a.m. to find out what
time to report to work. Sanner testified that on October 3 he
replaced Berkley with Frank Lee on the crusher because Lee
had been running a dozer and his work was finished and they
had no other position to put Lee in, adding that Lee was a
full-time employee and was an older man, and that Berkley
was hired in the beginning as ‘‘just a night shift loader at
the tipple’’ (working usually from 4 to 8 p.m.). Sanner added
that some time in July the Company gave Berkley all of the
benefits that other employees had, but that he was still con-
sidered a part-time employee on the 4 to 8 p.m. shift at the
tipple. Sanner related that when Berkley came to work at 4
p.m. on October 3, he asked why he had not been called that
day to work on the crusher, and he told Berkley ‘‘that he
would probably no longer be running the crusher for a
while,’’ indicating that Lee was placed in that position, but
adding that he would still be able to load the trucks from 4
to 8 p.m. as he was hired to do originally. At that time,
Sanner also told Berkley he would get extra hours loading
railroad cars if Lee had crusher work to do, but added that
if Lee had no crusher work, he (Lee) would be the one help-
ing to load railroad cars.
Sanner testified that on September 20, Judy Pletcher had
informed him that she had received a phone call from one
Bill Richter from R & M Brokerage, who had related that
two of his trucks were at the Company’s tipple the previous
evening at 7:45 p.m., but that there was no one present to
load the trucks.44 Sanner testified that on September 22, Judy
Pletcher again told him that she had received another phone
call from Barron Trucking, indicating that they had a truck
in at 7:40 p.m. the night before (September 21), and there
was no one at the tipple to load the truck.45 Sanner testified
that on Tuesday, September 27, he examined Berkley’s time-
card for the previous week and discovered that Berkley had
noted his quitting time to be 8 p.m. on each day he worked
except Friday, September 23 (indicating a quitting time of
4:30 p.m.). Sanner indicated that that evening (September 27)
he came back to the office at about 7:15 p.m. to observe
when Berkley left, which turned out to be 8:00 p.m. on the
following evening, September 28, Sanner again went to the
office to observe Berkley’s departure time, which turned out
to be 7:58 p.m., but he also observed that Berkley failed to
grease the loader which, according to Sanner, Berkley was
supposed to do every night before he left the tipple. Sanner
related that there were approximately 20 grease fittings on
the loaders, and that he had personally told Berkley to grease
the loaders each night, and to stay late if he had to in order
to accomplish greasing the loader. Sanner indicated that the
day Berkley was hired, he had instructed employee James
Robertson to show Berkley how to grease the loaders.46
Sanner testified that again on Thursday evening (September
29) he went to observe Berkley, accompanied by Terry
Pletcher, and that they observed Berkley leaving at 8:44 p.m.
After Berkley left, Sanner and Pletcher then checked the
grease fittings on the two loaders, and discovered that only
five or six grease fittings on each loader had been greased,
and Sanner indicated that those fittings could all be greased
from one spot.47 Sanner further testified that he also ob-
served Berkley leaving on the nights of Tuesday, Wednes-
day, and Thursday (September 27, 28, and 29), and that on
Tuesday and Wednesday Berkley left at 8 p.m., and on
Thursday at 8:44 p.m. On his timecard, Berkley had indi-
cated that his quitting time on Tuesday was 8:30 p.m., and
on Thursday 9 p.m. Sanner indicated that on October 4 he
examined Berkley’s timecard for the last week in September,
discovered the two defects, and that afternoon he had a con-
versation with Berkley in his office. Also present was Fore-
man Galen Beechy. Sanner testified that he confronted Berk-
ley with the truckloading complaints regarding September 19
and 21, and his failure to grease the loaders. According to
Sanner, Berkley got very angry, calling the truckdrivers liars,
claiming that he did grease ‘‘those damn loaders every
night,’’ and stating ‘‘this is all bullshit.’’ Sanner indicated
that he also intended to bring up the timecard discrepancies,
but that he did not do so at that time because ‘‘the meeting
680 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
48 In his rebuttal testimony, Robertson was certain that the time
was not 7:15 a.m., but 11:15 a.m. Robertson also testified that he
agreed with Sanner that the ‘‘steering arms’’ on the (560 Huff) load-
er had not been greased, but that it did appear the ‘‘center pins’’
had been greased. According to Robertson, they called up Jake Sav-
age who appeared driving the ‘‘Kawasaki’’ loader and said he (Sav-
age) was also greasing ‘‘that machine too.’’ Sanner apparently then
checked the steering arms of the Kawasaki, and stated that they also
had not been greased. Robertson’s testimony here was very confus-
ing. Savage was also called in rebuttal and testified that he had start-
ed running the Kawasaki at 6:30 a.m. the morning of October 11
and had loaded ‘‘a couple of trucks’’ when he was called to meet
with Sanner and Robertson ‘‘somewhere between 6:30 a.m. and
10:00 a.m.,’’ and that Sanner then checked his loader (the Kawasaki)
and stated that it appeared as if it had not been greased (presumably
the night before, by Berkley). Savage then reminded Sanner that the
Kawasaki had been running that morning, and that dust could have
gotten the grease fittings. Savage testified that Sanner then said
‘‘don’t you think you’d at least made it look like it had been
greased?,’’ to which he (Savage) made no reply, and the conversa-
tion then ended.
49 The testimony of Sanner, Robertson, and Savage here is confus-
ing and somewhat inconsistent, to say the least.
50 Sanner indicated that the Company never had a ‘‘rounding off’’
policy, that timecards were done on the honor system, and that as
a result of Berkley’s claims, he talked to all of his supervisors about
the matter, and they knew of no one else who was rounding off.
was getting much out of hand.’’ Sanner testified that again
that evening (October 4) he had observed Berkley leaving at
10:15 p.m., and he thereafter checked the loaders and discov-
ered that they again were not greased. Sanner testified that
he next talked to Berkley on Thursday, October 6 at about
11 o’clock a.m. when Berkley pulled up in his pickup truck
and asked why he had not been called to help load railroad
cars that morning. Sanner related that Berkley was ‘‘loud’’
and ‘‘very angry,’’ and that he told Berkley that the employ-
ees loading the railroad cars were older men with more se-
niority, and that his help was simply not needed that morn-
ing. Berkley then said that he needed more time and Sanner
replied that he would give him all the extra time that he
could, but that he was not going to make work for him.
Sanner testified that he then told Berkley that he was con-
cerned about his ‘‘responsibilities,’’ mentioning that the load-
ers had again not been greased Tuesday evening (October 4),
whereupon Berkley ‘‘got real loud’’ and ‘‘real upset,’’ again
maintaining that he greased the loaders every night before he
left, and that he always was there until 8 p.m. Sanner indi-
cated that he told Berkley at that point that the best thing
he can do right now is just report to the tipple at 4 p.m.,
whereupon Berkley ‘‘stormed’’ away.
Sanner testified that at about 7:15 a.m. on Tuesday, Octo-
ber 11, he and employee Robertson checked the 560 Huff
loader and determined that it had not been greased the night
before.48 Sanner indicated he then went to the office and
checked Berkley’s timecard for the prior week (the week
ending Friday, October 7). Sanner had observed Berkley
leave at 10:15 p.m. on Tuesday, October 11, and on checking
Berkley’s timecard he found that Berkley reported 10:30
p.m. as his quitting time that evening. Sanner indicated that
he then told Judy Pletcher to call Berkley and tell him to re-
port to the office at 12:30 p.m., and that he then went back
over to the tipple to check the other (Kawasaki) loader to see
if it had been greased the night before. According to Sanner,
present at the loader were also employees Robertson and
Jake Savage, and Sanner testified that he determined that the
Kawasaki loader had not been greased the night before.49
Berkley arrived at the office around 12:30 p.m. and he,
Sanner, and Galen Beechy went in to the conference room
at the office. Sanner testified that he then confronted Berkley
with again turning in incorrect timecards and failing to
grease the loaders, whereupon Berkley called him a liar and
stated that he had greased the loaders. Sanner replied that he,
Robertson, and Savage had all observed the loaders earlier
that day and agreed that they had not been greased the night
before. According to Sanner, Berkley then indicated that he
had greased the Kawasaki loader, but not the 560 Huff be-
cause it had started to rain. Sanner then and again told Berk-
ley that he, Robertson, and Savage had all observed that both
loaders had not been greased, and according to Sanner, Berk-
ley did not further deny not greasing the Kawasaki. Sanner
testified that they then discussed the timecards, and that
Berkley claimed ‘‘if he worked past fifteen minutes past the
hour, or past the half hour . . . he would round his time off
to the next half hour.’’ Sanner then asked Berkley who told
him he could do that, to which Berkley replied that he
learned it from one of the other employees.50 Sanner testified
that he then accused Berkley with occasionally marking his
timecards later than the time he worked, and still not grease
the loaders. Sanner indicated that Berkley again accused him
of lying, and that Berkley’s voice kept getting louder
throughout the entire conversation. Sanner testified that he
then told Berkley that he had actually observed him leaving
earlier than his timecard reflected, and without greasing the
loaders, whereupon Berkley replied that he was trying to get
even with him because of his union activities. Sanner ex-
plained that the Union had nothing to do with the reason for
the discussion, and that he did not know what union activi-
ties Berkley had engaged in. Sanner testified that at one
point Berkley asked for Beechy to leave the room, and that
he (Sanner) said no, but that he wanted Beechy present be-
cause ‘‘these problems we’re having need to be worked
out.’’ Whereupon Berkley kept getting louder with Berkley
remarking that if he was going to be fired, he wanted to be
fired at the tipple in front of the crew, adding that he wanted
an audience. Sanner related that he then told Berkley to fig-
ure on reporting back to work at 4 p.m. unless he (Sanner)
decided to terminate him, in which case he would call him
by 3:30 p.m. According to Sanner, Berkley then told him not
to bother calling his house because he would not answer the
phone if it rang. Berkley then stated that he would discuss
it again at 4 p.m., and got up, stated, ‘‘Remember my
girlfriend is pregnant, and I will not quit,’’ and Berkley then
left, slamming the door shut as he went out. Sanner testified
that he and Beechy thereafter discussed Berkley for ‘‘prob-
ably an hour,’’ considering various things, including the fact
that Berkley had been lying to them, the fact that you
couldn’t have a discussion with him without it getting out of
control, the fact that he was still considered a part-time em-
ployee and had been with the Company for less than a year,
the fact that he had a terrible attitude, his poor cooperation
while on the job (discussing the ditch digging incident), and
the fact that Berkley had called him a liar. Sanner indicated
that he and Beechy then made the decision to terminate
681ACTION MINING
51 Larry Sanner only mentioned two occasions where trucks were
not able to load. There was, in fact, a third occasion. Richard Steers
testified that he was a truckdriver for Croner Cartage, but that in
September 1988 he was employed as a truckdriver for one Gary
Gribble. Steers indicated that one night in September he was told to
pick up a load at Action Mining, and that on arriving at around 7:40
p.m. he could not find anyone to load his truck, but waited a few
minutes, drove to the top of the coal pile where the loading took
place, and then left and tried to reach Gribble by phone. After trying
for about 30 minutes, he was not able to reach Gribble. He then
went to a nearby truck stop and spent the night. At 8 a.m. the fol-
lowing day Steers reached Gribble by phone and explained to him
what had happened the previous evening. Gary Gribble also testified
in the case, corroborating Steers’ testimony completely, and adding
that thereafter he called KT Transit and Barron Trucking and told
them what had happened at Action Mining the previous night.
Gribble testified that the dispatcher at Barron Trucking was ‘‘pretty
upset’’ and stated that he would be calling the Sanner’s ‘‘right
away.’’
Berkley when he reported for work that afternoon at 4 p.m.,
and Sanner also asked Beechy to be present.
When Berkley reported for work that afternoon Sanner
(with Beechy), on the walkway outside of the office, told
Berkley he was terminated ‘‘as of now.’’ According to
Sanner, Berkley began ‘‘yelling and screaming’’ that he
wanted to be fired up at the scalehouse with an audience,
and Sanner refused to do this. Sanner indicated that Berkley
stated they would pay for this, that he would see them in
court, and ‘‘if I have to, I’ll catch you on Main Street.’’
Sanner related that Terry Pletcher, having heard the ‘‘ruck-
us’’ outside, came out of the office, and Berkley told him
‘‘about the same thing,’’ adding that Berkley was screaming
and using profanity at Pletcher, who told Berkley to watch
his mouth. Sanner indicated that he then told Berkley he had
been terminated and had no right to remain on the property,
and suggested that he go into the office and fill out a time-
card and collect the pay that was due him. Berkley did this,
and apparently thereafter left the premises.
Foreman Galen Beechy testified that Berkley worked
under his supervision part time in June, July, and a part of
August doing ditch work for drainage and helping to put in
a water sprinkling system at the tipple, and reporting to work
at 11 a.m. during this period. Beechy indicated that he would
give Berkley instructions on what to do, and then left to
check his pit operations, and when he came back to check
Berkley’s work, he would find that it either wasn’t done or
it was done very poorly. Beechy related that Berkley
‘‘wouldn’t follow my instructions or else just didn’t care.’’
Beechy testified that once, on a very hot day, he was work-
ing with Berkley shoveling in the ditch, and Berkley re-
marked that this was ‘‘nigger’’ work and he didn’t think he
should have to do it. Beechy then asked Larry Sanner to as-
sign someone else to assist him in the ditch work. Beechy
indicated that later that day he was in the office and Judy
Pletcher introduced him to Mike Neal, who needed part-time
work. Beechy then took Neal to the ditch, instructed him in
what he wanted done, and Beechy indicated that Neal did ‘‘a
very fine job’’ and helped him complete the job.
Beechy was present when Sanner talked to Berkley on Oc-
tober 4 about not being present to load trucks. According to
Beechy, there were three such incidents.51 Beechy testified
that Berkley immediately jumped up, pointed his finger at
Sanner and said, ‘‘You’re full of shit, you’re lying,’’ and
maintained that he was at the tipple until 8 p.m., and further
accusing the truckdrivers of lying. Beechy indicated that
Sanner then brought up the fact that Berkley had failed to
grease the loaders, and Berkley again called Sanner a liar,
adding that Berkley was ‘‘very loud’’ and ‘‘out of hand’’
and Sanner then asked Berkley to leave, and the conversation
ended. Beechy was also present during the first conversation
with Berkley on October 11 when Sanner brought up the in-
correct timecards and, again, the fact that Berkley was still
not greasing the loaders. Berkley again told Sanner that he
was ‘‘full of shit,’’ maintaining that he did grease the load-
ers. Sanner replied that he, along with employees Robertson
and Savage checked the loaders that morning and that they
all came to the conclusion that the loaders had not been
greased. Berkley then conceded that he did not grease one
of the loaders because it had started to rain ‘‘real hard’’ and
he had no rain coat. Sanner again told Berkley that neither
loader had been greased, and Beechy indicated that at that
point Berkley no longer denied that he did not grease the
loaders. Sanner then brought up the timecards and Berkley
then conceded that if he worked until 7:45 p.m., he would
mark down 8 p.m. and that if he left at 8:15 p.m., he would
mark down 8:30 p.m. Sanner then asked Berkley why he did
that, and Berkley replied that he had heard from other em-
ployees that this was the way to do it. Sanner then told Berk-
ley that he wanted the time which was actually worked
marked on the cards. According to Beechy, Berkley then
‘‘got really loud again’’ and accused Sanner of picking on
him because of his union activities, and that he knew he was
going to be fired. Beechy testified that both he and Sanner
then ‘‘stressed’’ to Berkley that union activities had nothing
to do with it. Beechy related that Berkley again got very
loud, indicating that he wanted to be fired in front of an au-
dience, to which Sanner replied that he never intended to fire
him during the conversation, adding that all he wanted was
the facts and that he would then have to ‘‘study’’ on what
further decision he was going to make. Sanner also told
Berkley that he would make the decision some time that
afternoon, to which Berkley replied that if you are going to
call me, I am not going to answer the phone. Beechy testi-
fied that after Berkley left, he and Sanner discussed Berk-
ley’s fate for ‘‘probably a half hour,’’ and that they both
came to the conclusion that Berkley had to be terminated.
Beechy related that at about 4 o’clock that day, he and
Sanner talked to Berkley outside of the office, where Sanner
then told Berkley he was terminated, whereupon Berkley got
very loud and said, ‘‘I’ll meet you in Main Street in town
and I’ll get you for this, and you better have a good lawyer
because you’re going to need it.’’ Beechy testified that at
this time Terry Pletcher apparently heard the loud talking
and came out and asked what the problem was. Beechy indi-
cated that Berkley immediately threatened Pletcher in the
same manner in which he had threatened Sanner, and
Pletcher told Berkley to watch his mouth, but Berkley was
still ‘‘loud and frantic’’ and kept on threatening Sanner and
Pletcher. Beechy related that Sanner then told Berkley he
was no longer an employee and that he should go to the of-
fice and collect any pay that was due him, and the confronta-
682 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
52 During his testimony, Foreman Terry Pletcher essentially cor-
roborated the testimony of Sanner and Beechy regarding the
postdischarge actions of Berkley. Roxanne Crise testified that Berk-
ley left in a ‘‘rage.’’
53 Larry Sanner was not questioned about this ‘‘warning’’ subject
during his testimony.
54 In this supplemental decision, and regarding the alleged viola-
tions of Sec. 8(a)(3) of the Act, I have now credited all of the Com-
pany’s officials and other witnesses. With one possible exception,
and regarding the alleged violations of Sec. 8(a)(1) of the Act (all
occurring on or prior to the day of the election), I still discredit gen-
erally the testimony of Company officials and its other witnesses. I
find a vast difference between the Company’s preelection and post-
election conduct. I find that the Company’s attitude and actions after
the election (which was won by the Company) reflected an air of
‘‘back to business as normal.’’ There was no vindictive attitude on
the part of the Company, and no evidence that it was ‘‘out to get’’
union supporters. The one possible exception involves Sec. 9(b) of
the complaint involving unlawful interrogation by Douglas Sanner
on September 12. The only testimony in support of that allegation
came from Berkley, alone. This matter will be discussed later in this
decision.
55 There was some testimony in the case that certain employees
rounded off their hours, but I am convinced that the Company had
no knowledge of this and had no policy to support it. The timecards
were completed by the employees themselves, on an honor system,
and the Company expected (and assumed) that they were completely
accurate.
tion then ended.52 During his cross-examination, Beechy ini-
tially denied that Berkley said something about a ‘‘warning’’
on October 11, but Beechy had made notes about the Berk-
ley matter when he got home the evening of October 11, and
he was shown a page of those handwritten notes and then
remembered that Berkley had said that he had not considered
the previous discussions about his greasing the loaders to be
a warning.53 The page from Beechy’s notes also indicates
that Berkley admitted that on occasions, he failed to grease
the loaders, but during his testimony, Beechy could not actu-
ally remember Berkley making that admission on October
11. During his cross-examination, Beechy maintained that his
loader and dozer operators at the pits greased every day ‘‘in
almost all instances.’’
2. Analysis and conclusions regarding Berkley’s
layoff and discharge
I now generally credit all of the witnesses who testified
about the layoff and discharge, except for Berkley, himself.54
Berkley was a poor employee with a quick and nasty temper.
His conduct toward and in front of Company officials after
the election was reprehensible, and his attitude was always
negative. This, together with Berkley’s recantations, and gen-
eral testimonial demeanor and manner, leads me to conclude
that the significant portions of Berkley’s testimony in this
case were untruthful. Even up to the end, Larry Sanner con-
tinued to find extra hours for Berkley, who complained con-
stantly about his need for more money. I find that the Com-
pany legitimately still considered Berkley as a part-time em-
ployee. The extra hours that Sanner found for Berkley in-
cluded work on the crusher. When employee Lee’s dozer
work became completed, I find that his replacement of Berk-
ley on the crusher was logical, and not accomplished with
the intent to discriminate against Berkley by cutting his
hours because of his possible or probable union support or
sympathies, which I find that the Company knew nothing
about at the time. There is no evidence in the case that Berk-
ley was an outward union supporter. Berkley was ‘‘on the
fence’’ about the Union, and openly stated this to Company
officials. The only evidence in the record which indicated
that Berkley supported the Union (over the Company) was
Berkley’s own testimony that he gave a ‘‘thumbs up’’ signal
to someone who was holding a ‘‘Vote No’’ sign as he went
in to vote. Even assuming that this ‘‘thumbs up’’ signal indi-
cated that Berkley was going to vote for the Union, there is
absolutely no evidence in the record linking the individual
holding the sign to the Company’s management. Addition-
ally, Berkley himself testified that he had previously been in
another union organizing campaign, and as a result he was
worried about his own job security. I also find that the daily
greasing of the Company’s mechanical equipment was, al-
though unwritten, a Company policy, and known by all em-
ployees. There were occasions on which conditions, or the
nature and status of a job rendered daily greasing impossible,
but such was not the case with Berkley.
I further find that the poor quality of Berkley’s work, his
poor attitude, the failure to grease the loading machines, the
false entries on his timecards,55 his failure to be present for
the loading of the three trucks, and his behavior, language,
and name calling, especially in front of and to Larry Sanner
in the presence of Galen Beechy, all contributed solely to the
decision to terminate him. Thus I find that under the Wright
Line test, the General Counsel failed to present a prima facie
case that Berkley’s hours were discriminatorily reduced, or
that he was discriminatorily discharged. Accordingly, I shall
recommend that paragraphs 13(a) and (b) of the complaint be
dismissed.
E. Effect of New Findings on Earlier Alleged
8(a)(1) Violations
The above new findings effect, in my opinion, only the
violation alleged in paragraph 9(b) of the complaint, which
alleges that the Company, through Douglas Sanner and on or
about September 12 at the tipple, interrogated employees re-
garding their union activities and sympathies in the upcom-
ing representational election. As far as I am able to deter-
mine from the record, this allegation is supported only by the
testimony of Berkley, whom I have discredited. This allega-
tion deals with a conversation between Berkley and Douglas
Sanner (president of Sanner Energies) at the tipple 1 to 2
weeks before the election. According to Berkley, Sanner
asked him if he had any questions about the election, and
‘‘how [he] felt about the election and the situation that was
happening at the time.’’ In his testimony, Sanner denied that
he asked Berkley how he felt about ‘‘the Union,’’ adding
that ‘‘After extensive counseling that we was not allowed to
interrogate employees, and we was all very much aware of
that.’’ Berkley’s testimony was definite in that Sanner asked
him how he felt about the ‘‘election,’’ and Sanner gave no
testimony relative to asking Berkley how he felt about the
‘‘election.’’ I have discredited both Berkley and Sanner in
this instance which, makes the matter moot. Even if I had
credited Berkley over Sanner, in my opinion it is arguable
that merely asking an employee how he felt about the ‘‘elec-
tion’’ is not a violation of Section 8(a)(1) of the Act.
683ACTION MINING
Accordingly, I shall recommend that paragraph 9(b) of the
complaint be dismissed.
On the foregoing findings of fact and on the entire record,
I make the following
AMENDED CONCLUSIONS OF LAW
1. The Respondent, Action Mining, Inc./Sanner Energies,
Inc., is an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
2. The Union, United Mine Workers of America, is a labor
organization within the meaning of Section 2(5) of the Act.
3. That on or about July 25, 26, and 27, 1988, and on or
about August 25, 1988, the Respondent violated Section
8(a)(1) of the Act by threatening to close its mining oper-
ations if employees chose to be represented by the Union.
4. That on or about July 27, 1988, the Respondent interro-
gated an employee regarding his union activities and sym-
pathies, and about the Union’s organizational campaign, in
violation of Section 8(a)(1) of the Act.
5. That on or about July 27 and 28, 1988, the Respondent
created the impression among its employees that their union
activities were under surveillance by the Respondent, in vio-
lation of Section 8(a)(1) of the Act.
6. That on or about September 7, 1988, the Respondent,
in front of a group of employees, threatened that the employ-
ees would get no pay raises because of the union organizing
campaign, in violation of Section 8(a)(1) of the Act.
7. That on September 19, 1988, the Respondent threatened
employees that its mining operations would lose customers
and be unable to operate properly if the employees chose to
be represented by the Union, in violation of Section 8(a)(1)
of the Act.
8. That on September 20, 1988, the Respondent, before a
group of employees, impliedly threatened that employees
would lose their jobs if they chose to be represented by the
Union, in violation of Section 8(a)(1) of the Act.
9. That the Respondent has not otherwise violated the Act
as alleged in the consolidated amended complaint here.
THE AMENDED REMEDY
Having found that the Respondent has committed certain
unfair labor practices in violation of Section 8(a)(1) of the
Act, I will recommend that it be ordered to cease and desist
therefrom, post an appropriate notice, and to take other ap-
propriate action. Since the time and nature of the violations
support, in great part, the Objections to Conduct Affecting
the Results of the Election filed in Case 6–RC–10066, and
are of such a character that they would have a substantial im-
pact on the employees’ freedom of choice and prevent a fair
and free election, I shall recommend that the election held
in the representation case on September 20, 1988, be set
aside, and a new election held when the Regional Director
deems that the circumstances permit a free choice of a bar-
gaining representative. Since I have now found the Company
did not commit any of the hallmark violations (Sec. 8(a)(3)
and (1) of the Act) previously found, I now will not rec-
ommend that the Company be ordered to recognize and bar-
gain with the Union.
[Recommended Order omitted from publication.]