Alco Mining Co., Inc.

National Labor Relations Board - Board Decisions

Jan 30, 1968

169 N.L.R.B. 491 (N.L.R.B. 1968)

ALCO MINING CO.
Alco Mining Co., Inc. and International Union,
United Mine Workers of America , Charging Party.
Cases 10-CA-6735 and 10-CA-6804
January 30, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On September 21, 1967, Trial Examiner Stanley
N. Ohlbaum issued his Decision in the above-enti-
tled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
The Trial Examiner further found that the Respond-
ent had not engaged in certain other unfair labor
practices alleged in the complaint. Thereafter, the
Respondent filed exceptions to the Decision and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
brief, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner. I
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the Respondent, Alco Mining Company,
Inc., Tuscaloosa, Alabama, its officers, agents, suc-
cessors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order.
I We find it unnecessary to pass upon the Trial Examiner's dicta in fn.
6 of the Appendixes concerning the validity of the authorization cards of
Quinn's employees.
In adopting the Trial Examiner's finding that the Respondent's inter-
rogation of its employees was unlawful, we rely on its failure to conform
to the criteria set forth in our recent decision in Struksnes Construction
Co., Inc„ 165 NLRB 1062.
TRIAL EXAMINER'S DECISION
PRELIMINARY STATEMENT; ISSUES
STANLEY N. OHLBAUM, Trial Examiner : This con-
solidated case' was heard before me in Tuscaloosa,
491
Alabama, on May 2 and 3, 1967, with all parties par-
ticipating throughout by counsel, who subsequently sub-
mitted briefs which, together with the evidence, have
been carefully considered.
The case involves alleged violations by Respondent
Employer of Section 8(a)(1) of the National Labor Rela-
tions Act, as amended, 29 U.S.C. Sec. 151, et seq. (Act);
viz, (1) interrogation, (2) threats of (a) loss of employee
benefits in event of unionization,2 (b) discharge of em-
ployees joining the Union, (c) refusal to enter into any
agreement with the employees' Union, and (d) shutdown
of Respondent's mine in event of unionization, and (3) ex-
tension of bonus to employees, unilaterally in bypass of
the employees' Union, during pendency before the Board
of a union petition for certification as exclusive
collective-bargaining representative. Respondent denies
violating the Act.
Upon the entire record3 and my observation of the wit-
nesses, I make the following:
FINDINGS AND CONCLUSIONS
1. PARTIES; JURISDICTION
Respondent, an Alabama corporation with principal of-
fice in Birmingham in that State, has at all material times
engaged in mining operations at Brookwood, Alabama,
where and whence it mines and sells coal. During the 12-
month representative period immediately preceding is-
suance-of each of the complaints, Respondent sold and
shipped in interstate commerce over $50,000 worth of
coal from Alabama directly to customers outside of that
State.
I find that at all material times Respondent has been
and is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and the Union
(Charging Party) is a labor organization within the mean-
ing of Section 2(5) of the Act; and that assertion of ju-
risdiction herein is proper.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent has been operating a strip coal mine at
Brookwood (near Tuscaloosa), Alabama, for a number of
years. Supervisory personnel include mine superintend-
ent, Oscar D. Osborn, his son, C. O. (Buster) Osborn
(company president), and pit foreman, Busha.
The union organizational activity culminating in events
to be described and forming the basis of charges resulting
in the complaints here, commenced among Respondent's
employees in mid-September.4 On September 26, the
I Case 10-CA-6735: Charge filed October 25, 1966, complaint issued
December 2, 1966. Case 10-CA-6804; Charge filed December 29, 1966;
complaint issued March 23, 1967. Cases consolidated by order of Re-
gional Director for Region 10, March 23, 1967, without consolidation of
complaints.
' Complaint (Case 10-CA-6804) ¶ 12A, added by amendment at hear-
ing.
3 Hearing transcript as corrected by August 4, 1967, order on notice by
me.
4 Unspecified years are 1966 throughout, except January 1967.
169 NLRB No. 69
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union filed a petitions at the Board's Regional Office, Re-
gion 10 (Atlanta, Georgia), seeking certification as exclu-
sive bargaining representative of a conventional produc-
tion and maintenance unit of Respondent's mine em-
ployees. On October 19 the Acting Regional Director for
Region 10 issued his Decision and Direction of Election.
Between (as well as before) then and the date set for the
election (January 6, 1967), various acts of interference,
restraint, and coercion are alleged to have been per-
petrated by Respondent in derogation of its employees'
rights under Section 7 and in violation of the Act, result-
ing in that Regional Director's cancellation of the
scheduled election and in the proceeding here for
determination.6
B. Alleged Violations ofAct
Actions in contravention of Section 8(a)(1) of the Act
are alleged to have been taken by Respondent during the
last few months of 1966. To the extent feasible, these will
be considered chronologically.
1. September?
It is alleged that on or about September 15 Respond-
ent's pit foreman , Busha, interrogated mine employees
concerning their union membership and affairs, and
threatened them with discharge if they signed union cards
and with shutdown of the mine in the event of unioniza-
tion.
Evidence on these matters was supplied through
testimony of General Counsel witnesses Herring, Battle,
and Lee. Herring, a dragline operator formerly in
Respondent's employ, swore that while at work at the
mine on the night shift in mid-September, Busha came to
the minesite around 11 p.m. and asked him "had the
Union men been to see me [Herring]." Herring said yes.
Busha then stated that "that was his [Busha's] business
over there that night, to talk to us [employees], that Mr.
[Mine Superintendent] Osborn was not feeling good and
he [Mine Superintendent O. D. Osborn] got him
[Busha] to come over. And he said that if the Union
made the company sign a contract they would have to
shut down because they couldn't pay it, and that Mr.
Osborn said that if he could find one that signed a card
5 The petition stated that the Employer (Respondent here) failed to
respond to the Union 's September 22 recognition request . (No showing
was made herein, i.e., in the instant case, that the Union represented a
majority of unit employees prior to December 9.)
6 The following is a more complete summary chronology of pertinent
procedural , background events : September 15 (approx.), umon organiza-
tional campaign commences among Respondent 's unit employees; Sep-
tember 26, union files certification petition with Board (Case
10-RC-6866); September 29, Acting Regional Director for Region 10 is-
sues notice of representation case hearing for October 11; October 11,
representation case hearing held before Board Hearing Officer H. Carlton
Bryan, Jr.; October 19, Acting Regional Director issues Decision and
Direction of Election (Case 10-RC-6866), directing election to determine
representation desires of unit employees; election to be held January 6,
1967; October 25, Union files unfair labor practice charges against
Respondent (Case 10-CA-6735; Sec. 8(a)(1), (3), and (5) of the Act);
December 2, Regional Director for Region 10 issues unfair labor prac-
tices complaint against Respondent (Case I O-CA-6735), scheduling hear-
ing for January 10, 1967; December 14, Respondent answers complaint
in Case I0-CA-6735 , December 29, Union files additional unfair labor
practice charges against Respondent (Case 10-CA-6804, Sec. 8 (a)(1) and
(5) of the Act); March 15, 1967, Union files first amended charge (Case
that he would fire them." Respondent's former dragline
oiler, Battle, likewise swore that Busha approached him,
too, on the job at this time and "said that Mr. Osborn was
intending to come out and talk with us [mine employees],
but he [Mine Superintendent O. D. Osborn] was sick and
he [Busha] came out instead .... He [Busha] said that
Mr. [Mine Superintendent O. D.] Osborn said if anybody
signed a Union card he would appreciate it if they would
go somewhere else and hunt a job. He said that organizing
the job, it was our privilege to do as we please but if we
organized it, they would shut the job down." Still another
former dragline operator of Respondent, Lee, testified
that while at work in September, in response to Lee's
inquiry as to how Busha "felt about the Union," Busha
"said that we had the right to organize if we wished, or
sign a card, but the company wouldn't operate under the
Union, they could close it down."
With regard to the foregoing, Respondent's pit foreman
and supervisor, Busha, conceded that he did "remember
talking to Elbert [Herring]" in September and that "it is
possible" that their talk was "about the union," although
it "would be hard to say from this length of time back"
what it was or who first mentioned the Union. Prodded a
bit further (on direct examination), however, Busha con-
ceded that his talk with Herring indeed dealt with "what
the union was doing," and added:
Q. [By Respondent's counsel] Let me ask you
this: did you [Busha] ask him [Herring] if any union
men had been to see him?
A. [By Busha] Yes, I believe I did.
Q. What was his reply, if you remember?
A. He said that they came to see him that day.
Q. What else was said, if anything, if you can re-
member?
A. That was the first time they had been to see
him, was on this particular day.
Denying he told Herring in those words that Mine Su-
perintendent "Oscar Osborn said that if the union made
the company sign a contract that he would have to shut
down because he could not pay it," Busha nevertheless
conceded telling Herring "That I did not believe that we
would continue operations if they made us sign a contract
where it would cost the company 40 cents a ton, because,
personally, I did not believe they were that much profit in
the coal.... Yes, sir, I have made the statement that I be-
10-CA-6804, Sec. 8(a)(1) of the Act); March 23, 1967, Regional
Director for Region 10 issues additional unfair labor practices complaint
against Respondent (Case 10-CA-6804 ) and consolidates case for hear-
ing with earlier case (Case 10-CA-6735) on May 2; March 31, 1967,
Respondent answers complaint in Case I0-CA-6804, April 5, 1967, Re-
gional Director for Region 10 rescinds October 19 Decision and
Direction of Election because of pendency of unfair labor practices cases
(Cases 10-CA-6735 and lO-CA-6804), and dismisses September 26
umon Petition for Certification of Representative.
7 Although the second complaint (i.e., March 23, 1967, Case
10-CA-6804) also speaks of violative action in August - namely, coercive
interrogation and threat on August 29 by Mine Superintendent Oscar D.
Osborn - since no evidence was adduced on this score at the hearing,
these allegations were not established and are being recommended for
dismissal. In view of this disposition of the allegations pertaining to Au-
gust, it is unnecessary to come to grips with the question of whether they
would be barred under Section 10(b) of the Act because of the March 15,
1967, filing date of the Charging Party 's first amended charge and the
doubt as to whether the alleged August episode was fairly covered by the
original December 29 charge (Case 10-CA-6804). A degree of complexi-
ty and confusion, possible engendered by the two separately subsisting
complaints , may be avoided by consulting Table I in the Appendix at-
tached hereto
ALCO MINING CO.
lieve that the man could not operate if he had to pay 40
cents a ton." Busha denied saying that Osborn had told
him that he would fire union card signers or that he would
shut the job down if unionized. Busha testified he was
unable to recall talking to Battle separately, as Battle (and
Herring) testified, but thought he talked to Herring and
Battle together. Then:
Q. [By Respondent's counsel] .... Did you tell
Battle that Mr. Osborn had said he would appreciate
it if those who signed cards would go somewhere else
to work?
A. [By Busha] To the best of my knowledge, no
sir.
Q. Did you say any words to that effect?
A. I do not remember them if I did.
With regard to Lee, asked (also on direct examination)
whether he had ever asked Lee how he felt about the
Union, Busha similarly replied, "If I did, I do not re-
member it." Asked if he ever told Lee that "the company
would not operate under the union, that they would close
it down," after first testifying that he did not say this,
asked if he ever told Lee "anything to that effect,"
Busha's reply (still on direct examination) was, "As far as
I know, I did not."
I was favorably impressed with the testimonial
demeanor of General Counsel witnesses Herring, Battle,
and Lee, who, at Respondent's request, testified after
being segregated. Herring and Lee withstood cross-ex-
amination well, and Battle was not even cross-examined.
On the other hand, I was unfavorably impressed with the
testimonial quality of Respondent's witness Busha, who
himself emphasized his deficient recollective capacity,
and who appeared to hedge and equivocate significantly.
It is obvious that when a witness, such as Busha, does not
unequivocally deny he made statements attributed to him
by credible witnesses, but merely testifies that he is un-
able to remember or recall them, the testimony of the non-
recollecting witness is consistent with the truth of the
testimony of the other witnesses who remember what was
said; and no real need arises to make a choice between
conflicting testimony. Since, as stated, I was well im-
pressed with the demeanor of General Counsel witnesses
Herring, Battle, and Lee and am persuaded that their
testimony is worthy of belief,8 I accordingly credit their
testimony and find that, substantially as alleged in the
complaints, on or about September 15, 1966, Respond-
ent, through its pit foreman and supervisor, Busha, inter-
rogated employees concerning their union membership
and activities, and threatened employees with discharge
8 Were I confronted with need for choice between any of these General
Counsel witnesses, on the one hand, and Respondent's witness, Busha, on
the other, upon the basis of observed comparative testimonial demeanor
I would exercise the choice in favor of the former.
9 I find that the complaint allegation that Mine Superintendent O. D.
Osborn on or about September 12, 1966, threatened employees that
Respondent would never sign a contract with the Union has not been
established by substantial credible evidence.
10 With regard to Respondent's failure to produce Mine Superintendent
O. D. Osborn to testify, the latter's son, C. O. (Buster) Osborn, stated that
his father had sustained four heart attacks (the first about 6 or 7 years
ago), the name or nature of which he was ignorant. He conceded, how-
ever, that at present his father was working and on the job at the mine. No
competent medical proof has been adduced as to the nature, severity, con-
temporaneity; or disabling effect of any alleged heart disease ; since 0 D.
Osborn concededly is presently at work on the job as mine superintendent
at the mine„ no reason is apparent why he could not testify without greater
hazard, if any, than arises from his work; and no application was made for
493
if they signed union cards and with mine shutdown in
event of unionization.9
2. October
It is further alleged that on or about October 14, Mine
Superintendent O. D. Osborn interrogated an employee
about union matters, and threatened loss of benefits in the
event of unionization.
General Counsel's witness, Lee, testified that on the
evening of October 14, right after being laid off from his
job with Respondent as dragline operator by pit foreman,
Busha, he visited Mine Superintendent O. D. Osborn at
the latter's home and asked him if his "being laid off was
in any way connected with union activities." According
to Lee, Osborn denied it but told Lee:
that the company wouldn't go Union under any cir-
cumstances. And that if a majority was reached,
which he said he doubted, that if it would be, that
fifty one percent of them could walk the picket line
outside the company grounds and the forty nine per
cent could continue working and the fifty one per
cent could starve to death as far as he was con-
cerned. Further ... he [Mine Superintendent O. D.
Osborn] said he had talked to every man out there
but one dragline operator and myself, and all of them
had told him that they had not signed cards. But he
said that all of them said that [Union Representa-
tive] Mr. Sessions had been to see them on several
occasions, two or three times.
Inasmuch as Mine Superintendent O. D. Osborn did
not testify,10 this testimony of Lee, who impressed me as
a highly credible witness, stands uncontroverted. Credit-
ing Lee's testimony, I find that on October 14, 1966,
Respondent through its Mine Superintendent Oscar D.
Osborn threatened employees with economic loss and
refusal to deal with their Union in the event of
unionization. 11 12
3. November
It is alleged that in November Respondent's pit
foreman, Busha, again interrogated mine employees con-
cerning their union membership, activities, and desires.
As to this, Respondent's oiler-greaser, Hall, still in its
employ, testified that on or about November 14 Busha
approached him at work and inquired whether "any of the
union officials talked to [you]," to which Hall replied in
the negative.
a continuance or pursuit of alternative avenues of testimonial eduction.
Notwithstanding the foregoing, I draw no adverse inference from the
failure of Respondent to produce its Mine Superintendent O. D Osborn
to testify, but nevertheless credit the described testimony of General
Counsel's witness Lee.
11 Respondent urges that Osborn's statements to Lee could not in any
event be considered a threat since Lee was technically no longer in
Respondent's employ when uttered Even assuming that Lee's layoff by
Busha just before he went to see Osborn was meant to be permanent,
Mine Superintendent O. D. Osborn's statements of his intentions in the
event of unionization constituted a clear threat to all employees.
12 In view of Lee's testimonial concession that Osborn did not ask him
"anything about the union," and the absence of other evidence as to em-
ployee interrogation by Mine Superintendent O. D. Osborn in October, I
further find that the complaint allegation that on or about October 14,
1966, Respondent through its Mine Superintendent O. D. Osborn inter-
rogated an employee about union matters has not been established
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pit Foreman Busha's first answer, on direct examina-
tion, to the question whether he ever spoke to Hall about
the Union was, "To the best of my knowledge, no, sir."
However, to the very next question (still on direct ex-
amination), "Did you, on or about November 14th, 1966,
ask Willie Lee Hall if any union officials had talked to
him," Busha's answer was, "yes, sir, it is possible .... If
I said anything to Willie Lee [Hall], it would have been
just to ask him if the union had been to see him," and that
he (Busha) was unable to "remember any more of it."
Crediting Hall's testimony, I find that on or about
November 14, 1966, Respondent through its supervisor,
pit foreman, Busha, interrogated its employee Willie Lee
Hall regarding union activities, substantially as alleged in
the complaint.
4. December
It is also alleged that on or about December 23, during
pendency of the Union's petition to the Board for Certifi-
cation as unit exclusive bargaining representative,
Respondent unilaterally, without consulting with or noti-
fying the Union, but on the contrary bypassing the Union,
granted a bonus to the unit employees; and that on or
about December 26 (shortly before the scheduled elec-
tion) Respondent distributed to its employees a letter
threatening them with discharge in the event of unioniza-
tion.
5. 1966 cash bonus
The basic facts with regard to these matters are not in
substantial dispute. Thus, it is conceded that a few days
prior to Christmas 1966 - while the Charging Union's
petition for certification was pending before the Board,
with an election scheduled by the Board for January 6 -
Respondent paid out a cash bonus to its unit employees
for the first time in its history.13 These bonuses appear to
have been sizeable in proportion to salary.14
With regard to the 1966 bonus, the area of conflict cen-
ters around whether the bonus had been promised to the
employees, as claimed in Respondent's answer, "long be-
fore the Union was heard of," so that "Withholding of the
bonus after election of the Union would have been illegal.
The granting of the bonus was not."
As to this area of factual conflict, General Counsel
witness Jones , who has been (and still is) in Respondent's
employ since November 1965, testified unequivocally
that he had in no way ever been told, before actually
receiving this bonus, that it would be forthcoming.
Evidence given by General Counsel witness Herring, one
of Respondent's original day-shift crew, who had worked
throughout 1964 and part of 1965, is to the same effect.
General Counsel witness Hall (an oiler-greaser since July
1966, who had also worked for Respondent in 1965)
testified that in the latter part of 1965, C. O. (Buster)
Osborn indicated to him and some others that although he
was then unable to give a bonus, he would "give us
something" when able. According to Hall, however,
Osborn gave no indication of what form any eventual
possible bonus would take.'5
13 Respondent had given its employees hams on the preceding Christ-
mas (1965 ). Hams were also dispensed for Christmas 1966.
14 Thus , oiler-greaser Hall, whose weekly pay was $60 , received a $50
cash bonus ; dragline operator Stanley , whose weekly take-home pay
averaged $ 175 to $200 , received a $100 bonus.
Respondent ' s witnesses on the bonus question were its
President C. O. (Buster) Osborn , and its employees Stan-
ley and Street . Osborn claims to have told some em-
ployees, including Herring , in 1964-65, "that when we
began to make money we would give a bonus .... that
we could not give them a raise at that time ; and as soon as
we made money , we would give them a bonus instead of
a raise." (Emphasis supplied.) According to Osborn, the
cash bonus was given in December 1966 because
Respondent at that time "made a little money , yes, very
little, but I have been promising for two Christmases
prior to that , that we were going to give them a bonus. It
looked like I would just keep promising them and promis-
ing them and that is the reason that the bonuses were no
larger than they were ." Also testifying as Respondent's
witness on this subject , dragline operator Stanley stated
that he recalled that late 1965 or early 1966 when he
asked " Buster" Osborn for "a raise ," Osborn turned him
down but added , "What we are going to do , we are going
to give a bonus .... When we make some money we are
going to give the men bonuses. The bonus would depend
on how much profit we make ." Respondent 's witness
Street , a front-end loader operator in its employ for a
year, testified that he had never heard either of the
Osborns say anything about a bonus before he received
it just before Christmas 1966.
No evidence was adduced by Respondent to establish
(1) that no profit, or "insufficient" profit to "justify" a
bonus, was made by it prior to 1966 ; (2) that the profit, if
any, made by it in 1966 was different than in previous
years; (3) the actual profit figures for 1966, or to substan-
tiate the self-serving conclusory statement of "Buster"
Osborn regarding the "little ... yes, very little" money
made to allegedly justify the 1966 bonus ; (4) justification
for the specific timing of the December 1966 cash bonus.
Nor was any explanation offered as to why the cash
bonus could not have been withheld until after the Janua-
ry 6 Board-scheduled union election to be held so shortly
thereafter ; nor as to why the Union was not consulted or
apprised.
Upon evaluation of comparative testimonial demeanor
of the witnesses on both sides , I find that Respondent's
December 23, 1966, cash bonus to its employees was
not, as alleged in its answer , in fulfillment of any promise
made to its employees prior to then.
6. Respondent's preelection letter to employees
It is conceded that within a few days after its distribu-
tion of this unprecedented cash bonus, Respondent also
distributed to its employees a letter concerning the union
election which had been scheduled by the Board's Re-
gional Director for January 6. Apparently, as testified to
by General Counsel witness Jones, Pit Foreman Busha
hand-delivered these letters to employees with the per-
sonal message that "Buster" Osborn wanted the em-
ployees to read it over. The contents of the letter, which
was signed by Osborn, are not in dispute.
After emphasizing the importance of the-union election
about to be held on January 6 as being to the employees
"probably the most important election you-will ever vote
15 In this connection it is noted that concededly Respondent dispensed
hams later in 1965 (as well as 1966), and that Osborn gave no definite indi-
cation of specific timing of any cash bonus, even if cash is what he was
talking about although he did not say so.
ALCO MINING CO.
in" and pointing out to them that "It will affect your fu-
ture and that of your family," the communication urges all
employees to vote "for otherwise you will be leaving your
future in the hands of others ." It then informs the em-
ployees that the Union has only one contract with all
mines in the State , which the:
Union will not change .... because an operator does
not make enough on his coal to pay these items.
(They simply say pay or close down.) .... It would
not make much sense to think that an operator who
does not make 40 cents a ton on his coal would agree
to pay the United Mine Workers Union 40 cents a
ton [for the Union ' s Mine Workers' Pension Fund]
Alco mining does not make 40 cents a tone
[sic] and enough to pay the wages the Union de-
mands .. If the United Mine Workers Union
forces Alco Mining to close, you will have gained
nothing. If the United Mine Workers Union forces
Alco Mining to hire new crews, you will have gained
nothing .... The United Mine Workers Union does
not pay your wages, and the Union cannot force
Alco Mining to pay one cent more than it is willing to
pay. Some of you know what the Union cost their
members in lost wages last summer.
The communication also points out that some operators
could not afford to pay the Union 40 cents a ton (toward
the United Mine Workers pension fund), while others
would not sign a contract and went out of business "or
hired new crews who were willing to let the mine workers
alone." (Emphasis supplied .) The communication con-
cludes: "THINK. Think about yourselves - Think about
your family. If you do, you will vote 'NO' on January
6th."
C. Recapitulation
It is plain from Respondent 's preelection written com-
munication to its employees that it wanted no dealings
with or part of the Union in its mine, whether or not its
employees wanted it, and was warning its employees not
to vote for it - regardless of whether or not they had al-
ready designated it as their collective-bargaining
representative - in the upcoming election . This sentiment,
plainly expressed in Respondent 's December-end letter,
was the climactic overt expression of various antecedent
acts by Respondent , described above, from the time its
employees in September manifested their lawful desire to
associate themselves for collective bargaining with
Respondent by signing the union cards here in evidence.
These actions of Respondent , from the mid-September
advent of the Union until Respondent ' s December-end
letter, resulting in the, Regional Director's cancellation of
the election which he had officially scheduled for January
6, should not be viewed as discrete phenomena unrelated
to each other, like unstrung beads, but in their connected
chronological sweep , for accurate assessment of their
true import and proper evaluation of their real impact
upon the mine employees toward whose minds and votes
they were of course beamed.
Thus, there is here, commencing with the employees'
mid-September manifestation of collective-bargaining
16 Cf. N L.R.B. v. Virginia Electric and Power Company, 314 U.S.
469, 477; Crown Laundry & Dry Cleaners Inc., 160 NLRB 746, 747, fn.
1.
17 Bok, The Regulation of Campaign Tactics in Representation Elec-
tions under the National Labor Relations Act, 78 Harv. L. Rev. 38, 106,
495
desires, until Respondent 's December-end letter, a pat-
tern of interrogation , economic threats, and unilateral
grant of unparalleled economic benefits . There is little
doubt that these , viewed in total sweep as they should
be,'s were coercive and in interference with and restraint
of the employees ' rights to associate themselves, free
from such intrusive restraints , for collective dealing with
Respondent.
To begin with, in regard to the repeated interrogations,
there was an absence of compliance with the Board's oft-
reiterated standards in justification or execution of em-
ployer questioning of employees about their union affairs.
No reason was given to the employees , has even here
been advanced , or is apparent , to justify Respondent's in-
trusive inquiries; nor did any reassuring explanations ac-
company the interrogations . Professor Bok has lucidly
summarized applicable requirements in his statement that
"employers must beware of interrogation unless (1) they
have a valid purpose for obtaining information concerning
the union 's strength ; (2) they communicate this purpose
to the employees ; and (3) they assure the employees that
no reprisals will be taken."" Respondent here satisfied
none of these requirements.
With regard to the economic threats of job or other loss
and mine shutdown in the event of unionization, these
were so clearly unlawful as hardly to require citation of
authority. It may confidently be assumed that no recent
volume of the Board 's reported cases does not include
proceedings in which comparable threats have been con-
demned as violative of the Act. In this connection, it will
be recalled that the Supreme _ Court in the recent
Darlington case (380 U.S. 263), while pointing out that
an employer is privileged to go out of business rather than
deal with a union, took occasion to remind that an em-
ployer may not lawfully threaten his employees with
going out of business as the price they would have to pay
in the event they exercise their statutorily guaranteed
right to associate for collective bargaining through a
union . As Mr. Justice Harlan there stated for the
unanimous Court, 380 U.S. at 274, fn. 20:
Nothing we have said in this opinion would justify an
employer's interfering with employee organizational
activities by threatening to close his plant , as distin-
guished from announcing a decision to close already
reached ....
Nor is there evidence here that Respondent had made or
was announcing a "definitive decision to close" in the
event of unionization (Darlington , supra, 380 U.S. at
274, fn. 20). It is well settled that economic threats, such
as of job loss , loss of employment benefits, or plant shut-
down, in the event of unionization , are not within the free
speech proviso of the Act.'' Indeed , Section 8 (c) of the
Act explicitly so provides.
We have held that remarks made within the con-
text of an organizing campaign to the effect that em-
ployer would close the plant if the union got in were
violations of section 8(4)(1). Florence Printing Co.
v. N.L.R.B., 333 F.2d 289, 290-291 (4 Cir. 1964).
Threats of discharge or of other discrimination
because of union membership have also been held to
be violative of section 8(a)(1). N.L.R.B. v.
at 107 (1964), cited with approval in N.L .R.B. v Camco , Incorporated,
340 F2d 803,804 (C.A. 5), cert. denied 382 U.S. 926.
18 N.L.R .B. v. Virginia Electric and Power Co., supra at 477, 478;
N.L.R.B . v. Eastern Die Co., 340 F 2d 607, 608 (C.A. 1), cert. denied 381
U.S. 951.
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McCormick Concrete Company of S.. C., Inc., 371
F.2d 149, 152 (4 Cir. 1967); N.L.R.B. v. Associated
Naval Architects, Inc., 355 F.2d 788, 791 (4 Cir.
1966). [Holly Hill Lumber Company v. N.L.R.B.,
380 F.2d 838, 841 (C.A. 4).] 19
Although here, as frequently, the employer attempts to
make light of his threats to his employees, it is to be borne
in mind that presumably they were uttered in order to be
effective; and that, so far as the employees were con-
cerned, they emanated from a source with authority to
make them good. Cf. N.L.R.B. v. Eastern Die Co., supra.
Furthermore, a threat need not be carried out to be coer-
cive in its impact. Id., 142 NLRB 601, 602, fn. 2; The
Rein Company, 114 NLRB 694; Forest Oil Corporation,
85 NLRB 85, 86. Typically, such threats are sought to be
masked in the language of "prediction"; but this does not
alter their character as coercive pronouncements in-
tended, as here, to restrain employees' freedom in exer-
cise of rights to bargain collectively as guaranteed by the
Act. Cf. N.L.R.B. v. Harold Miller, et al. d/b/a Miller
Charles & Co., 341 F.2d 870, 873 (C.A. 2).
While we do not doubt that Wallach proceeded
carefully in attempting to limit his communications
to his employees to the legally permissible, his words
must be judged by their likely import to his em-
ployees. As the Trial Examiner suggested, one who
engages in "brinksmanship" may easily overstep and
tumble into the brink. It is well settled that an em-
ployer has violated § 8(a)(1) of the Act if, in commu-
nicating to his employees during a union organiza-
tional drive preceding an election, he makes
promises of benefit or threats of loss or reprisal for
their vote. N.L.R.B. v. Realist, Inc., 7 Cir., 328 F.2d
840 (1964), cert. den., 377 U.S. 994 (1964);
N.L.R.B. v. Marsh Supermarkets, Inc., 7 Cir., 327
F.2d 109 (1963), cert. den., 377 U.S. 944 (1964);
N.L.R.B. v. Imperial-Eastman Corporation, 7 Cir.,
322 F.2d 679 (1963). A fortiori, such promises or
threats, directed to specific employees and coupled
with interrogation, also violate § 8(a)(1). [Wausau
Steel Corporation v. N.L.R.B., 377 F.2d 369, 372
(C.A. 7).]
Insofar as Respondent's December 23 cash bonus is
concerned, it is to be noted that (1) the cash bonus was
unprecedented; (2) the evidence fails to establish that the
cash bonus was planned, promised, or announced by
Respondent prior to the time its employees manifested
their desires to associate themselves for collective bar-
gaining ; (3) the timing of the cash bonus decision, as well
as of its announcement, was calculated for maximum
coercive effect upon the employees and for maximum in-
ducement on them in the totality of accompanying events,
to provoke disassociation from the Union; (4) no justifi-
cation has been established or advanced, nor is any ap-
parent, why this unprecedented bonus was extended,
under the circumstances that it was - with not only the
Union known to be in the picture but an official election
scheduled by the Board' s Regional Director to be held
shortly - without so much as notice to the Union; (5) it
has not been established that Respondent's 1966
economic circumstances differed from those previously,
or so as to warrant the 1966 cash bonus as claimed; (6) no
"To the same effect , see The Little Rock Downtowner, Inc., 143
NLRB 887, enfd . as modified 341 F.2d 1020 (C.A. 8). The same may be
said of employer statements of the possibility of shutdown in the event of
unionization (N.L.R.B. v. Tru-Line Metal Products Company, 324 F.2d
reason is apparent why any such bonus could not have
been deferred for a brief interval until after the scheduled
January 6 election, instead of being paid out so soon be-
fore that election. All circumstances considered, I am
persuaded that, in the totality of the situation, Respond-
ent's decision to pay this December-end 1966 bonus, as
well as the timing of that decision and the timing of the an-
nouncement to the employees of that decision, were the
direct outcome of or effectively catalyzed by the em-
ployees' September-December union organizational ac-
tivities, and were purposed to interfere with and restrain
and coerce the employees in the further pursuit of those
activities, and to reverse the employees' actions in having
designated the Union as their collective-bargaining
representative, so as to cause them to change their minds
and abandon their collective actions and representative
as unnecessary and futile, if not hazardous to or incon-
sistent with their continued employment prospects at the
mine.
Although it is not a violation of Section 8(a)(1) for an
employer to carry out a wage raise (or bonus) plan al-
ready decided upon, without advancing its effective date
(Motorola, Inc., 163 NLRB 385; Champion Pneumatic
Machinery Co., 152 NLRB 300; Dan Howard Mfg. Co.,
158 NLRB 805; Divco-Wayne Industries, Inc., 154
NLRB 974; T. L. Lay Packing Company, 152 NLRB
342;'Derby Coal & Oil Co., Inc., 139 NLRB 1485, 1486;
True Temper Corporation, 127 NLRB 839, 842-844),
"what is unlawful under the Act is the employer's grant-
ing or announcing such benefits (although previously
determined upon bona fide)for the purpose of causing the
employees to accept or reject a representative for collec-
tive bargaining." (Hudson Hosiery Company, 72 NLRB
1434, 1437.) Employer motive in cases of this type is to
be assessed from the total stream of preceding, concur-
rent, and subsequent related circumstances. N.L.R.B. v.
Harbison-Fischer Manufacturing Co., 304 F.2d 738,
739-740 (C.A. 5). As stated by Mr. Justice Harlan for the
unanimous Court in N.L.R.B. v. Exchange Parts Com-
pany, 375 U.S. 405,409:
The danger inherent in well-timed increases in
benefits is the suggestion of a fist inside the velvet
glove. Employees are not likely to miss the inference
that the source of benefits now conferred is also the
source from which future benefits must flow and
which may dry up if it is not obliged.
Additionally to be considered herein, are the factors
pointed out in Stark Ceramics v. N.L.R.B., 375 F.2d 202,
207 (C.A. 6):
We have pointed out at the outset that the unilateral
action of Stark in respect of the 1964 bonus occurred
in a context of unfair labor practices following an ac-
tively contested election in which Stark plainly
manifested its opposition to the Union.
Also apropos here is the language of the court in Western
Cartridge Co. v. N.L.R.B., 134 F.2d 240, 244 (C.A. 7),
cert. denied 320 U.S. 746, wherein the employer' s timing
of benefits was characterized as "allurements .... to
stem a tide of organization."
It is found and concluded that in the totality of the
record as made , Respondent 's action in giving and timing
the cash bonuses which it paid to unit employees on
614, 616 (C.A. 6), cert. denied 377 U.S. 906), "notwithstanding sincere,
belief that such result would follow." United Fireworks Mfg. Co. v.
N.L.R.B., 252 F.2d 428 ,430 (C.A. 6).
ALCO MINING CO. 497
December 23, 1966, was for the purpose of interfering
with, restraining, and coercing employees in pursuit of
their endeavor and statutory right to bargain collectively
with Respondent; and was in violation of Section 8(a)(1)
of the Act.20
We deal finally with Respondent's December-end (i.e.,
within a few days after the December 23 cash bonus),
written communication to employees emphasizing the
grave importance to them and their families of the upcom-
ing union election in terms of their expectations of con-
tinued employment and livelihood. All circumstances
considered, the net fair intendment of this communication
can only have been to convey the impression to these
mine workers - none of whom was shown to be a student
of labor law or its intriguing semantics - that if they per-
sisted in desiring to be represented for collective bargain-
ing by the Union, Respondent would not meet what it as-
sumed would be the Union's demands but would instead
close down and the union men would lose their jobs; or
that it would replace the Union men with "new crews ...
willing to let the mine workers alone." This was no less
than a thinly veiled threat - indeed, a threat of the most
potent sort, since it directly concerned the employees'
jobs, livelihood, and families - of employer reprisal in the
event the employees exercised the legal right guaranteed
to them by Congress, to associate themselves for the pur-
pose of collective bargaining through the representative
of their choice. The Employer here sought to perpetuate
the weak bargaining power of its individual employees by
threats not to deal with them collectively, or, worse, that
collective-bargaining association would cost them their
jobs. In part, Respondent purported to turn this'upon its
inferential distaste for United Mine Workers, its bargain-
ing opposite. But the law does not require, and an em-
ployer has no right to expect, that employees' choice of
bargaining representative meet with the employer's ap-
probation or even be palatable to the employer. Such a
requirement or right expectancy would pervert the Act's
core guarantee of freedom of choice of bargaining
representative by employees themselves, through placing
the "choice" in the employer's hands or subject to his
veto power. "The right of employees to be represented by
officials of their own choice doubtless must outweigh any
principle ofpersona non grata." N.L.R.B. v. Signal Mfg.
Co., 351 F.2d 471 (C.A. 1), cert. denied 382 U.S. 985.
The answer has already been supplied, in a previous
connection, to the contention that Respondent's
December 26 letter was privileged as "free speech." It is
reiterated that threats are expressly excepted from the
free speech proviso of Section 8(c) of the Act.
Respondent urges in justification of its December 26
preelection letter to Fits employees, that the statements
therein that it was not making 40-cents-per-ton profit on
its coal and therefore would be unable to afford to pay
that amount into the Union's Miners' pension fund in the
event of unionization, were true. The short answer to this
is that employees may be restrained and coerced by truth
as well as by fiction. Indeed, the voice of threat may carry
greater power when it speaks the language of apparent
truth. Cf. N.L.R.B. v. Parma Water Lifter Co., 211 F. 2d
258, 262 (C.A. 9), cert. denied 348 U.S. 829; The Atlas
Underwear Co. v. N.L.R.B., 116 F.2d 1020, 1022-23
(C. A. 6). Additional answers to Respondent's contention
are that such a claim of inability to afford to pay an an-
ticipated demand, even if true, does not relieve an em-
ployer from the statutory obligation of engaging in collec-
tive bargaining, nor constitute a defense or mitigation to
violation of that duty; that matters such as alleged profit
and ability to afford - involving, as they do, such
frequently imprecise, elastic, and debatable formulations
as "fair" return upon investment, the scale of "fair"
managerial-executive-supervisory salaries and emolu-
ments, the proper method of calculation of depreciation
and similar writeoff factors, comparability rationalization
of pay scales of different categories of employees, extent
of "charitable" and like contributions, sinking fund prac-
tices, plant expansion and other reserves, nature and ex-
tent of capital expenditures, amortization picture, overall
and specific plant operational efficiency, sales prices and
practices including identity of purchasers of products,
etc., etc., are, of course, typically matters entering the
mainstream of the collective-bargaining process itself, for
which individual employees are entitled to rely upon the
bargaining expertise of their union, since they are scarce-
ly matters which an individual employee is equipped to
discuss with sophistication or, even if he were, to raise
with impunity or likelihood of success with his employer
on an individual employee basis; that the Union or em-
ployees might not insist upon a 40-cent-per-ton pension
fund payment if persuaded through a fair factual showing
by Respondent of inability to pay it; and that, in the ulti-
mate analysis, if the employees -as a collective-bargaining
entity should elect to test out any apparent resolve by
their employer not to meet their demands, they could ex-
ercise their lawful right to withhold their services (i.e.,
strike) in pursuance of their demands, "justified" or not.
But, in the contextual congeries here presented, the Em-
ployer may not lawfully convey the message to em-
ployees that if they exercise their statutorily guaranteed
right to bargain with him collectively, they will lose their
jobs since he cannot afford and will never agree to pay
what he predicts with certainty the Union will un-
deviatingly insist on. This as much as threatens the em-
ployees' jobs for their mere exercise or continued exer-
cise of a right which Congress has guaranteed to them in-
sulated from restraint or coercion.21
Table I, attached hereto as an appendix, constitutes a
summary recapitulation of relevant details and findings
made with respect to the alleged 8(a)(1) violations spread
throughout the two complaints here.
2° Respondent's contention on brief that its cash bonus was not unlaw-
ful because there is "no evidence that Alco placed any conditions on the
granting of the bonus and did not mention defeat of the Union in the elec-
tion" is devoid of merit, heaving been laid to rest some years ago by the
Supreme Court in N.L f(.B. v. Exchange Parts Company, supra at
408-410
21 Cf Collins Baking Co. V. N.L R.B., 193 F.2d 483, 486 (C.A. 5);
NL.R.B. v. Electric City Dyeing Co., 178 F.2d 980, 981 (C.A. 3);
N L.R B. v. Hoppes Manufacturing Company, 170 F.2d 962, (C.A. 6),
N L.R.B. v, Gate City Cotton Mills, 167 F.2d 647, 649 (C.A. 5);
N.L R.B v. Montgomery Ward & Co., 133 F.2d 676, 686 (C.A. 9);
N.L.R.B v. Boss Manufacturing Company, 118 F 2d 187, 189 (C A. 7);
N.L.R B. v. Highland Park Manufacturing Company, 110 F.2d 632
(C A. 4); Globe Cotton Mills v. N.L.R.B., 103 F 2d 91, 94 (C.A. 5); The
Trane Company, 137 NLRB 1506,15 10; The Andrew Jergens Company,
76 NLRB 363, enfd. 175 F.2d 130 (C A. 9), cert denied 338 U.S. 827. See
also N.L.R.B v. Parma Water Lifter Co, supra; Joy Silk Mills v.
N L.R.B., 185 F.2d 732 (C.A.D.C.), cert denied 341 U.S. 914, Western
Cartridge Co. v. N.L R B , supra. In making findings involving Respond-
ent's December 26 letter and matters therein alluded to, I "place no
reliance .... on .... words of the respondent disassociated from its con-
duct" (Harlan, J., in N.L.R.B. v. Exchange Parts Company, supra at 409,
fn. 3).
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the foregoing findings and entire record, I state
the following:
CONCLUSIONS OF LAW
1. Alco Mining Co., Inc., Respondent herein, is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. International Union, United Mine Workers of
America, Charging Party herein, is a labor organization
within the meaning of Section 2(5) of the Act.
3. Assertion of jurisdiction herein is proper.
4. By the conduct described and found in section II to
have been engaged in, Respondent has interfered with,
coerced, and restrained employees in the exercise of their
rights guaranteed under Section 7 of the Act, and has
thereby engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
5. Said unfair labor practices and each of them affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
6. It has not been established by a fair preponderance
of the substantial credible evidence that Respondent has
engaged in any of the other acts alleged in the complaints
as unfair labor practices and not found in section II
hereof.
7. Respondent engaged in the unfair labor practices
herein found and concluded to have comprised violations
of the Act, with the purpose, intent, and effect of prevent-
ing and precluding a fair , free, and unfettered choice of
collective-bargaining representative by its employees in
the unit alleged in the complaint dated March 23, 1967,
in Case 10-CA-6804, and hereinbelow found, to be ap-
propriate for bargaining purposes; with the purpose, in-
tent, an effect of interfering with the carrying out of a
fair and free election by the Board's Regional Director on
January 6, 1967, as scheduled; and with the purpose and
intent of overcoming and destroying the Union's existing
bargaining strength and status as exclusive bargaining
representative of the employees of said unit.
THE REMEDY
A. Remedy Sought by General Counsel and Charging
Party
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it be required to
cease and desist therefrom and take certain affirmative
action, including the posting of a notice, designed to effec-
tuate the policies of the Act.
In view of the nature of Respondent's unfair labor prac-
tices and their timing in relation to the election officially
scheduled to be conducted on January 6, 1967, under
Board auspices , necessitating cancellation of that election
by the Regional Director, General Counsel and the
Charging Party seek, by way of additional remedy, an
order directing Respondent to bargain with the Union as
exclusive collective-bargaining representative of a
majority of Respondent's employees in a unit appropriate
for such bargaining purposes. Findings and conclusions
here made as to the purpose and intent of Respondent's
unfair labor practices and their effect on the Board-
scheduled election, necessitate consideration of the ex-
tent of the Union's bargaining representation strength in
the unit alleged to be appropriate for collective-bargaining
purposes.22
B. Appropriate Bargaining Unit, Composition, and
Union Representation Strength
1. Appropriate bargaining unit
In its September 26 Petition for Certification, the
Union sought a collective-bargaining unit consisting of
Respondent's production and maintenance workers at its
mine, excluding executives, supervisors, foremen, techni-
cians, office clerk, guards, and others excluded under the
Act. In his October 19 Decision and Direction of Elec-
tion, after hearing participated in by Respondent and the
Union, the Acting Regional Director for Region 10,
determined the appropriate collective-bargaining unit to
be Respondent's production and maintenance employees,
including truckdrivers, mechanics, and the mine clerk, on
Respondent's payroll at its mine, excluding independent
contractors and their employees, temporary employees,
office clerical employees, professional employees,
watchman, guards, mine superintendent, foreman, and all
other supervisors as defined in the Act. The second com-
plaint herein similarly alleges such a production and
maintenance unit, including truckdrivers and with the
foregoing exclusions, to be appropriate for collective-bar-
gaining purposes. Respondent denies this.23 Since such a
unit (with such exclusions) is a conventional and usual
type of collective-bargaining unit, is presumptively ap-
propriate for such purposes and has not been shown to be
inappropriate, has been determined by the Acting Re-
gional Director for Region 10 after hearing to be ap-
propriate and no newly discovered facts since that deter-
mination have been adduced, there is no history of collec-
tive bargaining, and the proposed unit is clearly an ap-
propriate one, I find that the proposed bargaining unit has
at all material times been and is an appropriate unit for
purposes of collective bargaining within the meaning of
Section 9(b) of the Act, viz:
All production and maintenance employees, includ-
ing truckdrivers, mechanics, and the mine clerk at or
near the Respondent's Brookwood, Alabama strip
mining operation, but excluding independent con-
tractors, employees of independent contractors, tem-
porary employees, office clerical employees, profes-
sional employees, the watchman, guards, mine su-
perintendent, foreman, and all other supervisors as
defined in the Act.
22 That such a bargaining order is appropriate in these circumstances,
even in absence of an allegation of violation of Section 8(a)(5) of the Act,
gee, e .g., Summit Mining Corporation v. N.L.R.B., 260 F.2d 894 (C.A.
3); N.L.R.B. v. Joe Caldarera , d/bla Falstaff Distributing Co., 209 F.2d
265 (C.A. 8); D. H. Holmes Co. v . N.L.R.B., 179 F.2d 876 (C.A. 5); for
remedial order see id., 81 NLRB 753, 756. That in these circumstances
diminution or even loss of union majority does not relieve the employer
of his obligation to bargain , see Ray Brooks v. N.L.R.B., 348 U.S. 96,
102-103; Franks Bros . Company v. N.L.R.B., 321 U.S. 702; Medo Photo
Supply Corporation v. N.L.R.B., 321 U.S. 678.
23 In this connection it is observed that at the representation case
(10-RC-66866) hearing held on October I 1 upon the Union's September
26 Petition for Certification, Respondent stipulated (hearing transcript in
that case, p. 27) that its production and maintenance employees, other
than supervisors, are appropriately includible in a collective-bargaining
,unit. That a production and maintenance unit is presumptively appropriate
for collective-bargaining purposes , see Indiana Refrigerator Lines, Inc.,
157 NLRB 539, 551; Beaumont Forging Company, 110 NLRB 2200,
2201-02.
ALCO MINING CO.
2. Composition of and union representation strength in
bargaining unit
Inasmuch as General Counsel and the Charging Party
seek a bargaining order remedy, it is essential as a
threshold question to consider whether the Union in fact
represented a majority of employees in the appropriate
collective-bargaining unit at a controlling time.
Tables II and III, attached hereto as an appendix, con-
stitute my findings relative to the composition of, and the
Union's representation strength in, the collective-bar-
gaining unit here found appropriate.
C. Recommended Remedy in View of Foregoing
Although violation of Section 8(a)(5) of the Act is not
here charged, General Counsel and the Charging Party
seek a bargaining order in view of the character and ex-
tent of Respondent's violations of Section 8(a)(1), evalu-
ated within the matrix of the overall situation, during the
union organizational campaign.
The totality of Respondent's actions from the inception
of union organizational activities by its employees in mid-
September shows persuasively that (1) Respondent was,
and still is, unalterably opposed to unionization and union
organizational activity among its employees, as well as to
their choice of union collective-bargaining representative;
(2) Respondent has engaged in a continued course of con-
duct, the object of which could have been no other than
to undermine the Union as its employees' chosen collec-
tive-bargaining representative, and to dissipate and
destroy its representation strength among its employees;
(3) through its actions vis-a-vis its employees, the Union,
and the appropriate collective-bargaining unit, Respon-
dent has disrupted and foreclosed the holding of the fair,
free election scheduled by the Board's Regional Director
for this past January 6. Respondent's described actions
aimed at its employees' attempts to exercise their lawful
rights to bargain collectively were premeditated and
deliberate.24 The Board has repeatedly warned that its
elections, stamped as their outcome with the Board's offi-
cial certificate on behalf of the Federal Government,
must be conducted in a fair and free atmosphere, under
what have been referred to as the _ "laboratory condi-
tions" 25 of its social science laboratory, without disrup-
tive huckstering or coercively intrusive tactics by labor or
management.26 Where fair, free election is prevented
24 Because of the nature and extent of the unfai r labor practices engaged
in by Respondent, indicative of an attitude of nonacceptance of and
hostility and continued opposition to basic principles of the Act and the
exercise of employee rights guaranteed by the Act , I deem it appropriate
to recommend that Respondent be required to cease and desist from in-
fringing in any manner upon the rights of employees guaranteed in Section
7 of the Act.
25 General Shoe Corporation, 77 NLRB 124, 127.
2s Cf., e.g., N.L.R.B. v. Exchange Parts Company, supra, Radio Of-
ficers' Union [A. H. Bull Steamship Co.] v N L .R.B , 347 U.S. 17, 51;
N L.R B. v. Eastern The Co., supra; N.L R.B. v Federbush Company,
Inc., 121 F.2d 954, 957 (C.A. 2), Northwest Engineering Company, 148
NLRB 1136; Dal-Tex Optical Company, Inc., 137 NLRB 1782; The
Trane Company, 137 NLRB 1506.
24 Aaron Brothers of California, 158 NLRB 1077, 1078.
28 G.C. Exh. 7, p. 8.
499
through improper interference of a party, it is just that
that party shoulder the consequences of its own actions.
Although the Board prefers an election to union cards as
a more reliable barometer of employee sentiment 27
obviously this preference is meaningful only upon the as-
sumption that the election is fair and free. Where a fair,
free (i.e., coercion-free) election has been subverted, the
alternative mode of determining employee union senti-
ment, i.e., union cards, must be resorted to, since the
preferable alternative, i.e., election, has been scotched by
a contestant. In that case, "The union's card majority, not
discredited at the unfair labor practice hearing, is the only
unblemished record fact relating to the union's actual
majority." (Wausau Steel Corporation v. N.L.R.B., supra
at 374 (C.A. 7). See also Dan Howard Mfg. Co., 158
NLRB 805 at 807, fn. 5. Under these circumstances, it ill
behooves the contestant - here the Employer - who has
brought about this situation by its own affirmative acts, to
complain that the only available fair alternative, namely
union cards, is as a generality unreliable or less reliable
than the fair election which that party has foreclosed.
Respondent here never expressed any doubt, much less
a good-faith doubt, as to the validity of the union cards as
indices of the Union's representative status. It merely, as
expressly stated by its counsel at the representation case
hearing,28 refused to recognize the Union as bargaining
representative. However, it has been pointed out by the
highest authority that, faced with unambiguous union
cards validly executed by a majority of employees in an
appropriate bargaining unit, the cards being untainted by
illegality or impropriety in procurement, an employer
may not, in absence of good-faith doubt as to the Union's
majority representation status, refuse to accord recogni-
tion to the Union, and insist on a Board-conducted elec-
tion certification as of right.29
Respondent's preelection letter of December 26 to its
employees again indicated its determination not to bargain
with the Union, upon the alleged ground that Respondent
could not afford the Union- a subject itself for bargaining
and not a valid reason for advance rejection of the collec-
tive-bargaining principle.30 Respondent's actions, from
mid-September on, with regard to its employees, the
Union, and the bargaining unit, show every hallmark that,
far from doubting the Union's majority, Respondent was
persuaded of it and accordingly took measures to despoil
that majority and thereby to deny to its unit employees
the collective-bargaining right secured to them by the
29 United Mine Workers ofAmerica v Arkansas Oak Flooring Co , 351
U.S 62, 71-72, 74-75. See also N.L.R B. v. Winn-Dixie Stores, Inc., 341
F.2d 750, 755 (C.A. 6), cert. denied 382 U S. 830; Florence Printing Co.
v. N.L.R.B., 333 F 2d 389, 291-292 (C.A. 4); N.L.R B. v Philamon
Laboratones,-Inc, 298 F.2d 176, 179 (C.A. 2), cert. denied 370 U.S. 919.
30 The statutory obligation to bargain is not conditional upon employer
belief that bargaining will have a successful or happy outcome from his
point of view; refusal to bargain is not even excused by bona fide belief
that bargaining will be futile. N.L.R B . v Sunrise Lumber & Trim Corp.,
241 F.2d 620, 624-625 (C A. 2), cert denied 355 U.S. 818; N.L.R.B. v.
Jacobs Manufacturing Company, 196 F.2d 680, 683 (C.A. 2). Nor does
the fact that the employees ' union is or may be persona non grata to the
employer excuse the latter 's refusal to bargain . N L R.B. v. Signal Manu-
facturing Company, 351 F.2d 471 (C.A. 1),,cert: denied 382 U.S. 985;
Deeco, Inc, 127 NLRB 666, 667. Choice of employees' bargaining
representative is for employees , not employer; the worst choice from em-
ployer's point of view maybe the best from employees'
350-212 0-70-33
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act. Cf. Joy Silk Mills v. N.L.R.B., 185 F.2d 732
(C.A.D.C.), cert . denied 341 U.S. 914.31
As shown above , the Union in fact represented a
majority of Respondent 's employees in the appropriate
collective-bargaining unit ,32 as evidenced by validly ex-
ecuted union cards. The Union ' s majority representation
strength being thus established , under the circumstances,
considering Respondent 's unfair labor practices and its
direct responsibility for foreclosure of the fair, free elec-
tion which the Board 's Regional Director had scheduled
to be held last January 6, a bargaining order should be is-
sued , requiring Respondent without further ado to meet
and bargain with the Union as collective-bargaining
representative of its employees in the unit here found
appropriate . 33 I so recommend here.34 35
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record , and pur-
suant to Section 10(c) of the Act , I hereby make the fol-
lowing:
RECOMMENDED ORDER
Alco Mining Co., Inc ., its officers, agents, successors,
and assigns , shall:
1. Cease and desist from:
(a) Interrogating any employee in violation of the Act
with regard to his or any other employee 's union or other
lawful organization membership , concerted activities or
affairs, desires, or sympathies.
(b) Directly or indirectly threatening any employee
with mine shutdown , job loss, discharge , or any other
"See also N.L.R.B. v. Mid-West Towel & Linen Service, Inc., 339 F.2d
958 (C.A. 7); Florence Printing Co. v. N.L.R.B., supra; N.L.R.B. v.
Overnite Transportation Company, 308 F.2d 279,283 (C.A. 4); N.L.R.B.
v. Philamon Laboratories, Inc., supra at 180; N.L.R.B. v. Trim/It of
California, Inc., 211 F.2d 206, 209-210 (C.A. 9); The Lone Star Com-
pany, 149 NLRB 688; Marriello Fabrics, Inc., 149 NLRB 333; Dazzo
Products, Inc., 149 NLRB 182, enfd. 358 F.2d 136 (C.A. 2); Jas. H.
Matthews & Co., 149 NLRB 161, enfd. 354 F.2d 432 (C.A. 8), cert de-
nied 384 U.S. 1002.
32 l.e., in the very unit including truckdrivers for which Respondent ap-
parently contended as appropriate in the representation case hearing on
October 11 following its shifting of the four "Youngblood group"
truckdrivers from their independent contractor status to its payroll, under
the described weekly salary payback provision, on September 26. Were
the appropriate unit to be considered to be a unit without truckdrivers, as
the Union had petitioned for and continued to seek at the representation
case hearing , the Union's majority representation strength would have
been and would now be even greater.
33 In the described circumstances, the Board, with court sanction, has
traditionally issued a bargaining order, even in absence of a bargaining de-
mand or 8(a)(5) violation charge or finding . See, e.g., Wausau Steel Cor-
poration v. N.L.R.B., 377 F.2d 369 (C.A. 7); United Steelworkers of
America [Northwest Engineering Co.] v. N.L.R.B., 376 F.2d 770
(C.A.D.C.); N.L.R.B. v. Delight Bakery, Inc., 353 F.2d 344 (C.A. 6);
Piasecki Aircraft Corporation v. N.L.R.B., 280 F.2d 575, 591-592 (C.A.
3), cert. denied 364 U.S. 933; Summit Mining Corporation v. N.L.R.B.,
260 F.2d 894 (C.A. 3); N.L.R.B. v. Caldarera, 209 F.2d 265 (C.A. 8); D.
H. Holmes Company v. N.L.R.B., 179 F.2d 876 (C.A. 5), for remedial
order, see D. H. Holmes Company, Ltd., 81 NLRB 753, 756; Better Val-
U Stores of Mansfield, Inc., 161 NLRB 762.
34 Respondent urges that there is no evidence that the Union attained
majority strength in the proposed unit prior to December 9 and that any
unfair labor practices occurring prior to that date could not have
destroyed any majority attained on that date. This contention has at best
-a degree of formalistic validity. To begin with, unfair labor practices prior
to the Union' s attainment of majority strength on December 9 (assuming
that it lacked it prior to then) may well have prevented or delayed the at-
tainment of that strength prior to December 9, and certainly in the usual
coarse have constituted a continuing sapping factor of that strength.
economic loss, detriment , disadvantage , reprisal, or
retaliation , in the event of unionization or because of
union or other lawful organizational membership, affilia-
tion , sympathy , support , assistance , or activity, or for en-
gaging or attempting to engage in the right to bargain col-
lectively under the Act.
(c) Granting , promising , or holding out in expectancy,
directly or indirectly , to any employee any bonus or other
benefit or thing of value to induce him or other employees
to refrain or withdraw from union or other lawful or-
ganizational membership , affiliation , sympathy , support,
assistance , or activity ; or to refrain from engaging in the
right to bargain collectively under the Act; or to deal with
Respondent individually instead of bargaining collective-
ly.
(d) Directly or indirectly interfering with , restraining,
or coercing any employee in the exercise of his right to
designate and bargain collectively through any labor or-
ganization of his choice.
(e) Dealing directly or indirectly with any employee
concerning terms or conditions of employment in such a
manner as to bypass or derogate from the representative
status of the employees ' exclusive collective -bargaining
representative , or with an object of discouraging em-
ployees' union affiliation or activities or right of self-or-
ganization.
(f) Interfering in any other manner with, or restraining
or coercing , any employee in the exercise of his right to
self-organization ; to form , join, or assist any labor or-
ganization ; to bargain collectively through representa-
tives of his own choosing ; to engage in concerted activi-
Respondent , who created the situation resulting from its unfair labor prac-
tices, is hardly in an appealing position to insist that each specific con-
sequence of its unfair labor practices must be precisely paired to a certain-
ty with its specific corresponding causative counterpart . Since Respond-
ent put into motion those unfair labor practices, it would seem fairer to
require Respondent to attempt the intellectually sterile task of
"disentangl[ing] the consequences." (L. Hand, J ., in N.L .R.B. v.
Remington Rand, Inc., 94 F.2d 862 at 872 (C.A. 2), cert. denied 304 U.S.
576). Respondent 's contention further overlooks the fact that it also per-
petrated no less than two substantial unfair labor practices subsequent to
December 9; namely , ( 1) its December 23 unilateral and unprecedented
grant of cash bonuses to the unit employees , at a time when the Board's
Regional Director had scheduled an election shortly to be held on the
Union's Petition for Certification, and (2 ) its December 26 preelection
coercive letter to the unit employees . It is appropriate that Respondent's
unfair labor practices prior to the Union's attainment of majority status on
December 9 also be taken into consideration in assessing the substantiali-
ty and effect of Respondent's unfair labor practices subsequent to
December 9, since it is common knowledge that that which comes later
may take on character from that which has occurred before. Inasmuch as
the described unfair labor practices occurred in a time continuum , involv-
ing the same basic situation at the same place and the same group , it would
offend commonsense to view these events other than as the intercon-
nected whole which they in fact comprised. Thus viewed , it is apparent
that Respondent's described actions in totality were geared toward ac-
complishment of Respondent 's avowed purpose of avoidance of any deal-
ing with the Union even if it were the duly designated choice of its em-
ployees as their collective-bargaining representative.
35 Respondent further contends that reliance on the union cards is
precluded for purposes of determining the propriety of a bargaining order,
since the Union allegedly made no demand upon it for recognition. As has
already been shown (supra, fn. 40), a bargaining demand is not sine qua
non to a bargaining order . Moreover , at the Board-conducted hearing on
October 11 upon the Union's September 26 Petition for Certification,
Respondent explicitly stated that it refused to recognize the Union. (Case
lO-RC-6866, hearing transcript (G.C. Exh . 7 herein), p. 8.) There is no
evidence that Respondent then or at any other time claimed that the
Union did not have majority representation strength.upon the basis of any
adduced, disclosed , or potential card showing.
ALCO MINING CO. 501
ties for the purposes of collective bargaining or other mu-
tual aid or protection ; or to refrain from any and all such
activities.
2. Take the following affirmative actions necessary to
effectuate the policies of the Act:
(a) Upon request , recognize and meet and bargain col-
lectively with International Union, United Mine Workers
of America , as the exclusive bargaining representative of
Respondent's employees in the following appropriate
unit, with respect to rates of pay, wages, hours of employ-
ment , and other terms and conditions of employment, and
embody in a signed agreement any understanding
reached:
All production and maintenance employees, includ-
ing truckdrivers , mechanics , and the mine clerk at or
near Respondent's Brookwood, Alabama, strip min-
ing operation , but excluding independent contrac-
tors, employees of independent contractors , tempo-
rary employees, office clerical employees, profes-
sional employees , the watchman , guards, mine su-
perintendent , foreman , and all other supervisors as
defined in the Act.
(b) Post at its mine premises in or near Brookwood,
Alabama, copies of the attached notice marked "Appen-
dix A."36 Copies of said notice, on forms provided by the
Regional Director for Region 10, after being duly signed
by Respondent's authorized representative, shall be
posted by Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days
thereafter , in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(c) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have
been taken to comply herewith.37
IT IS FURTHER RECOMMENDED that the complaints
herein be and they are hereby dismissed as to all viola-
tions alleged but not herein found.
36 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice. In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
37 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify said Regional Director,
in writing , within 10 days from the date of this Order , what steps Re-
spondent has taken to comply herewith."
other economic loss, detriment , disadvantage,
reprisal, or retaliation in the event of unionization or
because of your union membership , affiliation, sym-
pathy, support , assistance, or activity , or for engag-
ing or attempting to engage in the right to bargain
with us collectively under the Act.
WE WILL NOT grant , promise , or hold out in ex-
pectancy, directly or indirectly, to any of you any
bonus, payment, or other benefit or thing of value to
induce you to refrain or withdraw from union mem-
bership , affiliation , sympathy, support , assistance, or
activity; or to refrain from engaging in the right to
bargaifi with us collectively under the Act; or to deal
with us individually instead of bargaining collective-
ly.
WE WILL NOT directly or indirectly interfere with,
restrain , or coerce any of you in the exercise of your
right to designate and bargain collectively through
any labor organization of your choice.
WE WILL NOT deal directly or indirectly with any
of you concerning terms or conditions of employ-
ment in such a manner as to bypass or derogate from
the representative status of your exclusive
collective-bargaining representative or with an object
of discouraging your union affiliation or activities or
right of self-organization.
WE WILL NOT in any other manner interfere with,
restrain, or coerce any of you in the exercise of your
right to self-organization; to form , join , or assist any
labor organization; to bargain collectively through
representatives of your own choosing ; to engage in
concerted activities for the purposes of collective
bargaining or other mutual aid or protection; or to
refrain from any and all such activities.
WE WILL, upon request , recognize and meet and
bargain with International Union , United Mine
Workers of America , as your exclusive bargaining
representative in the following appropriate unit, with
respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment, and
embody in a signed agreement any understanding
reached:
All production and maintenance employees, in-
cluding truckdrivers, mechanics , and the mine
clerk at or near our Brookwood, Alabama, strip
mining operation, but excluding independent
contractors , employees of independent contrac-
tors, temporary employees, office clerical em-
ployees, professional employees , the watchman,
guards, mine superintendent , foreman , and all
other supervisors as defined in the Act.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL NOT question any of you in violation of
the Act as to your union membership, affairs,
desires, or sympathies.
WE WILL NOT directly or indirectly threaten any of
you with mine shutdown, job loss, discharge, or any
ALCO MINING CO., INC.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board's Regional Office, 730 Peachtree
Street, N. E., Room 701, Atlanta, Georgia, Telephone
526-5760.
APPENDIX B
Table I: Recapitulation and Findings Concerning Alleged Violations of Section 8(a)(1)
12/2/66 3 /23/67 1966
Ref. Complt. Compit. Date
No. (10-CA- (10-CA- or Witnesses Findings
6735) 6804) pprx. and Chief
Par.No. Par.No. Date Allegation Substance G.C. Resp. Ext. Bases Disposition
1 -- 10 8/29 Interrogation of em- - -- -- Not Dismissed for
ployees by Supt. found. absence of
O.D. Osborn roof
2 -- 11 8/29 Threat by Supt. O.D. -- - -- Not Dismissed for
Osborn of mine shut- found. absence of
down rather than proof
signing contract
with Union
3 -- 12 9/12 Threat by Supt. O.D. -- - -- Not Dismissed for
Osborn of never sign- found, absence of
ing contract with proof
Union
4 -- 10 9/15 Interrogation of em- 1.Herring Busha -- Found. Established
ployees by Foreman 2.Battle l.GC wit-
Busha nesses
credited.
2.Busha in
effect
concedes.
5 -- 13 9/15 Threat by Foreman l.Herring Busha -- Found. GC Established
Busha of discharge of 2.Battle witnesses
employees if they credited.
signed Union cards
6 7 -- 9/15 Threat by Foreman 1.Herring Busha -- Found. GC Established
Busha of mine shut- 2.Battle witnesses
down in event of 3.Lee credited.
unionization
8 -- 10/14 Interrogation of em- - -- -- Not Dismissed for
ployee by Supt. O.D. found, absence of
Osborn proof
0
(Continued)
APPENDIX B
Table I (Concluded): Recapitulation and Findings Concerning Alleged Violations of Section 8(a)(1)
12/2/66 3/23/67 1966
Complt. Complt. Date
Ref. (10-CA- (10-CA- or Witnesses Findings
No. 6735) 6804) Apprx. and Chief
Par.No. Par.No. Date Allegation Substance G.C. esp. xh. Bases Disposition
8 -- 12A 10/14 Threat by Supt. O.D. Lee - - Found. Established
(added Osborn of loss of em- 1.Lee cred-
at ployee benefits in ited.
hearing) event of unioniztio 2.Uncontro-
verted by
O.D.Osborn,
who did no
testif .
9 -- 10 11/14 Interrogation of em- Hall usha - Found. Established
ployees by Foreman 1.Hall
Busha credited.
2.Busha in
effect
concedes.
10 -- 15 12/23 Unilateral grant of l.Jones 1.C.O. - Found. CC Established
benefits to unit em- 2.Hall Osborn witnesses
ployees during pend- (3.Herring 2.Stanle credited in
ency before Board of (3.Street) preference
Union Petition for to Resp.
Certification witnesses.
11 -- 16 12/26 Threat of discharge 1.Jones - GC Pound. Established
in event of union- 2.Hall Exh Total cir-
ization, in preelec- 5 cumstances.
tion letter'issued
and distributed to
em to ees by Res .
APPENDIX C
Table II: Composition of and Union Representation Strength
in Collective Bargaining Unit on December 9, 1966
Union Card Signer?
Finding re Inclusion
or Exclusion from Reason(s) for
Yes Bargaining Unit Finding;
No.a/ Name Job (Date) No Included Excluded Comments
1 Osborn, O.D. Mine Supt. x x Admitted Super-
visor in Resp.
ans. to 2d com It
2 Duncan, V.E. Foreman x x Stipulated Super-
visor at hearing .
3 Busha, B. Pit Foreman x x Admitted Supervi-
sor in Resp. ans.
to 2d com lt.
4 Gilbert, H.A. C b/ x x
5 Bittinger, E.G. C b/ x x
6 Higginbotham , E. Watchman-
Guard
x x Watchman and
guard.
7 Stanley, B. C b/ x x
8 Browning , T.D C bi x
(9/16)
x GC Exh. 8-1
9 Dockery, V.E. C b/ x x
10 Dockery, H. C b/ x x
11 Hamner, E.B. C b/ x x
12 Stanley, R. C b/ x
(9/18)
x GC Exh. 8-2.
See note c/
13 Reid, L. C b/ x
(9/17)
x GC Exh. 8-3
14 Miller, V. C b/ x x
15 Sellers, J.E. C b/ x
11/17
x GC.Exh. 8-4
APPENDIX C
Table II (Continued): Composition of and Union Representation Strength
in Collective Bargaining Unit on December 9, 1966
Union Card Signer?_
Finding re Inclusion
or Exclusion from Reason(s) for
Yes Bargaining Unit Finding;
No.a/ Name Job (Date) No Included Excluded Comments
16 Williams, B.J. C b/ x
( 9/19 )
x GC Exh. 8-5
17 Reid, S. C b/ x x
18 Hall, W. C b/ x
(9/20 )
x GC Exh. 8-6
19 Youngblood, R.CC Truckdriver
Supervisor
x x Supervisory.
See note d/.
20 Youngblood, R.E. Truckdriver x x See note d/.
21 Youngblood, G. C b/
Truckdriver)
x x See note d/.
22 Crain, B.R. C b/
(Truckdriver)
x
(12/9)
x GC Exh. 8-7.
See note d/.
23 McMurray, L. C b/ x x
24 Clark, L.J. C b/ x x
25 Norwood, J. C b/ x
9/14
x GC Exh. 8-8
26 Loggins , G., Sr. C b/ x
(9/16 )
x GC Exh. 8-9
27 Boyd, J. C b/ x
9/19
x GC Exh. 8-10
28 Carroll, B. C b/ x x
29 Harvey, F. C b/ x
9/20
x GC Exh. 8-11
30 Street, 0. C b/ x
(9/G6)
x GC Exh. 8-12.
See note e/.
0
APPENDIX C
Table II (Continued ): Composition -of and Union Representation Strength
in Collective Bargaining Unit on December 9, 1966
Finding re Inclusion
Union Card Signer? or Exclusion from Reason(s) for
Yes Bargain in Unit Finding;
No.a/ Name Job (Date) No Included Excluded Comments
31 Sellers, L. C b/ x x GC Exh. 8-13.
(9/21)
32 Green, R. C b/ x x GC Exh. 8-14
(9/21 )
33 Jones, F. C b/ x x GC Exh. 8-15.
(9/17) See note f/.
34 Green, C -C b/ x x GC Exh. 8-16
9/20
35 Williams, C.S., Jr. C b/ x x GC Exh. 8-17
( 11/18 )
36 Mathews, E. C b/ 12 1 x
GC Exh. 8-23
37 Williams, T. C b/ 1 1 x GC Exh. 8-18
38 Jones, H. C b/ x x
39 Middlebrooks, R. C b/ x x
40 Franklin, H.A. Truckdriver x x Employee of inde-
(11/30) pendent contract-
or.See note d/.
41 Guthrie, C. Truckdriver x x Employee of inde-
(11/30) pendent contract-
or. See note d/.
42 Barton, D.T. Truckdriver x x Employee of inde-
(11/30) pendent contract-
or. See note d/.
43 Kell, L. Truckdriver x x Employee of inde-
(11/30) pendent contract-
or. See note d/.
0
ON
APPENDIX C
Table II (Concluded): Composition of and Union Representation Strength
in Collective Bargaining Unit on December 9, 1966
Finding re Inclusion
Union Card Signer? or Exclusion from Readon(s) for
Yes Bargaining Unit Finding;
No.a/ Name Job (Date ) No Included Excluded Comments
44 Osborn, N. General x x See note.&/.
Laborer
TOTALS i/ 1/ 23 (19 21 (16 35 9 19/35 Union card
in in signers in unit.
unit) unit)
70 19/35 or 54.3% Union card signers in unit.
(For notes , see Appendix E.)
APPENDIX D
Table III: Composition of and Union Representation Strength
in Collective Bargaining Unit on December 16, 1966
Finding re Inclusion
union Card Signer? or Exclusion from Reason(s) for
No.a/ Name Job Yes Bargain in Unit Finding;
(Date) No Included Excluded Comments
Same as December 9, 1966 (Table II, supra),
except:
1. Exclude Miller, V. (No. 14 on Table II, supra) -- see note h/;
and
2. Include:
44 Stone, J. C b/ x x
45 Mordecai, R. C b/ x x
TOTALS
45 k/ ; if 23 (19
in
22 (17
in
36 9 19/36 Union card
signers in unit.
unit) unit)
% 19/36 or 52.8% Union card signers in unit.
0
00
(For notes, see Appendix E.)
APPENDIX E
Notes to Tables II and III
ALCO MINING CO. 509
(a) Le., number merely for counting purposes herein.
(b) By parties ' stipulation concededly "C" employed in
bargaining unit here found appropriate , on date at head of
Table II (or Table III).
(c) Stanley's testimony , as Respondent's witness, in-
dicates clearly that he had previously been a member of
this Union for 11 years while elsewhere employed, that
he signed the Union card here after reading it, and that he
understood what he was doing and that his signature on
the card would authorize the Union to "negotiate with the
company" as well as to have an election . I find no sub-
stantial evidentiary basis to support the contention that
he was told or believed the card was limited only to
authorizing an election.
(d) Truckdrivers : There are eight - truckdrivers in
question. They fall into two groups , which for reasons
that will become apparent are for purposes of con-
venience here referred to as the "Youngblood group" and
the "Quinn and Peters group."
It will be recalled that on September 26 the Union filed
its petition with the Board for Certification as the unit em-
ployees' exclusive bargaining representative. In the usual
course, a hearing was held on that petition , before Board
Hearing Officer H. Carlton Bryan, Jr., in Birmingham,
Alabama, on October 11 (Case 10-RC-6866). The trans-
cript of that hearing, which is in evidence , indicates that
all of the parties here participated there, through counsel
from the same law firms appearing here. The transcript of
that hearing further shows a sharp cleavage of position
between the Union and the Employer concerning the
status of , truckdrivers at the mine. The Union there took
the position that: (1 ) truckdrivers at the mine comprising
what I here refer to as the "Youngblood group" (i.e., R.
C. Youngblood , R. E. Youngblood , Gary Youngblood,
and Bill Ray Crain) should not be included in the unit
since they were "employees of an independent contrac-
tor" and not covered by the union petition ; (2) trucks
were being operated at the mine by an independent con-
tractor or contractors in addition to the trucks operated
by the foregoing "Youngblood group"; (3) the "Young-
blood group" truckdrivers should in any event be ex-
cluded from the unit because of a colorable purported
change in their status , from independent contractor and
employees of an independent contractor to alleged em-
ployees of the Employer (i.e., of the mine, Respondent
here), during the week preceding the representation case
hearing -- ostensibly to alter the arithmetic of the
representation fraction (i.e., over 50 percent) required by
the Union to prevail ; and (4) even if regarded as em-
ployees, truckdrivers are inappropriate for inclusion in
the unit and are not sought or desired to be represented
by the Union . The Employer (Respondent here) there
took the position that: (1) the "Youngblood group" of
truckdrivers had been placed on the Employer's payroll
the week before the hearing (i.e., substantially subsequent
to the date the Union filed its Petition for Certification),
prior to which they had worked for an independent con-
tractor (Youngblood) and were paid on a tonnage-hauled
basis; and (2) one Quinn , not employed by Respondent,
was also believed to be hauling coal for Respondent at the
mine. The record as made at the representation case hear-
ing consisted in large part of a mixture of vague and in-
conclusive testimony by a witness (Employer' s office
manager, Drummonds) lacking knowledge of facts, and
equivocations and conclusory and argumentative conten-
tions.
Upon the record as made in the representation case,
the Acting Regional Director for Region 10 in his Oc-
tober 19 Decision and Direction of Election: (1) defined
the appropriate bargaining unit to include "truckdrivers"
(not sought or included by the Union in its September 26
petition), "but excluding independent contractors, em-
ployees of independent contractors , [and] temporary em-
ployees ...."; (2) pointed out that since the record be-
fore him did not show whether there are truckdrivers in
addition to the four added to the payroll in the "week of
October 3" (comprising the "Youngblood group"), no
determination was being made with regard to any such
possible additional truckdrivers ; but that if it transpired
that there are such additional truckdrivers and that they
are independent contractors or employees of independent
contractors "they will be excluded" (but would be per-
mitted to vote challenged ballots pending determination
of their status); (3) determined that "With respect to the
four [truckdrivers) on the payroll [i.e., the "Youngblood
group"], I shall include them in the unit as the Peti-
tioner's [i.e., Union's] asserted ground for exclusion
[i.e., that they were not regular employees on the date the
Union 's petition was filed] is invalid."1 Although the
Acting Regional Director ' s October 19 Decision and
Direction of Election was not appealed, it was
"rescinded" and the Union ' s September 26 Petition for
Certification was dismissed by order of the Regional
Director on April 5 , 1967, in view of the pendency of the
instant unfair labor practices cases seeking a remedial
bargaining order. There is no indication that this April 5
order has been appealed.
At the instant unfair labor practices cases hearing, the
Union and Employer , represented by the same law firms
as at the representation case but by different members,
took the following positions with regard to the
truckdrivers: (1) Position of Union (and General Coun-
sel): (a) as to the four truckdrivers in the "Youngblood
group," only two - i.e., Gary Youngblood and Bill Ray
Crain-should be included in the unit , but that R. C.
Youngblood and R. E. Youngblood should be excluded
as supervisors ; and (b) as to the four other truckdrivers,
comprising what is here called the "Quinn and Peters
group" (viz, Franklin , Guthrie, Barton , and Kell), all four
should be included in the unit, even though not appearing
on the payroll , since their work was substantially the
same as that of the "Youngblood roup ." (2) Position of
Respondent : (a) as to the four truckdrivers in the
"Youngblood group," that all four should be included in
the unit since they are and are shown as employees on the
Employer's payroll; and (b) as to the four other
truckdrivers , comprising the "Quinn and Peters group,"
that they should be excluded from the unit since they are
1 The Acting Regional Director's determination continues. "The Board the payroll only for the purpose of padding it for eligibility purposes. As
has historically governed eligibility to vote by the payroll immediately such allegation smacks of an alleged unfair labor practice, it may not be
preceding the date of the issuance of a decision and direction of election , considered in a representation proceeding Jay Kay Metal Specialties
rather than the date of filing the petition . The Petitioner [Union] also Corporation , 129 NLRB 31, 33."
urges that the truckdrivers are not bonafide employees but were added to
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD.
not shown on the Employer's payroll because they are
employees of an independent contractor or contractors
Quinn and Peters.
Notwithstanding the foregoing positions previously
taken, counsel for Respondent now on brief "concedes"
that the four truckdrivers comprising the "Quinn and
Peters group" are in the unit, but contends that the union
cards which they each concededly signed should not be
counted since allegedly improperly procured through the
urging or insistence of their employer or supervisor. Since
it is apparent that this attempted "concession," contrary
to positions firmly taken by Respondent heretofore with
the Board, is patently a belated attempt to alter the
arithmetic of the situation by increasing the denominator
(i.e., total number of employees in the unit) while not af-
fecting the numerator (i.e., total number of valid Union
card signers) of the critical fraction determinative of the
issue of the Union's representation strength,2 I reject it at
the threshold. Plainly, a party cannot alter or remold facts
so as to establish or disestablish a majority by such jug-
gling with the Board in the form of a purported 11th hour
unilateral "concession."
On the subject of the four "Youngblood group"
truckdrivers, Respondent's president, C. O. (Buster)
Osborn, testified at the instant hearing that from July 11
to September 26 they had hauled for Respondent at the
mine (washer to railhead, about a mile, or to river, about
8 miles , i.e., to marketing transport) at a fixed price per
ton under a contract; and that on September 26, i.e., the
very day the Union filed its Petition for Certification with
the Board, they were placed on Respondent's payroll as
employees and have remained there since, with regular
social security and tax withholding and other deductions
as in the case of other employees; that the method of pay-
ment since September 26 has been by direct weekly pay-
ment (same as other employees) by Respondent on an
hourly basis (amounting to approximately $60 to 75 per
week); that in addition to this weekly pay, at the end of
the month Respondent pays to R. C. or R. E. Young-
blood 3 a lump sum (which has ranged from around $2,000
to $7,000) based upon the total tonnage hauled by this
group during the preceding month, minus the weekly
sums paid to the group members (including R. C. Young-
blood) on the hourly basis; that R. C. Youngblood owns
all trucks used by this group and pays for the insurance
and usually also for repairs on those trucks, as well as for
gas and oil, out of the month-end lump sum based upon
tonnage hauled; that these trucks are not used for any
purpose other than work at Respondent's mine; and that
R. C. Youngblood hires and fires the drivers in this group,
and any "problem with the trucks or anything" or "about
a driver" (including even firing) is discussed by manage-
ment with R. C. Youngblood, who has "authority" over
the other three men in his group and assigns and shifts
these men around.
On the subject of the four "Quinn and Peters group"
truckdrivers, Osborn testified at the instant hearing that
beginning around August 1 they had commenced hauling
coal for Respondent from pit to washer (up to about 3
miles, involving going off the mine property, but, like the
"Youngblood group," ordinarily within the mine
premises); that they work from 2 to 11 hours per day, de-
pending upon the amount of trucking available for them;
that the trucks used by them are owned by "Quinn and
Peters," with whom Respondent had a contract to haul
coal at a fixed price per ton, paid to Quinn and Peters
upon the basis of railroad invoice weights; that Quinn and
Peters were paid by Respondent by the ton, and Quinn
and Peters in turn paid their drivers by the load; that
these drivers took orders from Quinn in the usual routine,
and Quinn received these from Mine Superintendent
Osborn, Foreman Duncan, or Pit Foreman Busha; that
Quinn and Peters also engaged in trucking other than for
Respondent (although Osborn appears to have stated the
contrary in a pretrial affidavit to the Board); that Quinn
and Peters paid for insurance, gas and oil, repairs, and
maintenance on these trucks, and Respondent at no time
did; that none of these drivers has at any time been on
Respondent's payroll, that Respondent has never paid
any of these drivers nor made any social security pay-
ments for them, and that they are not covered by Respond-
ent's workmen's compensation or unemployment insur-
ance; and that since there came a time when Respond-
ent was unwilling to pay Quinn and Peters more money,
Respondent terminated its arrangement with Quinn and
Peters on February 1, 1967, at which time Respondent
purchased its own trucks which it has since been operat-
ing with its own employees (not Franklin, Guthrie, Bar-
ton, or Kell).
Further according to Osborn's testimony, Respondent
had fully or partly financed one or more trucks owned by
Peters, R. C. Youngblood, and possbily also by Quinn; in
December (later, during examination by Respondent's
counsel, changed to October) Respondent sold two
trucks to R. C. Youngblood and two to Peters, each of
whom at the time already owned other trucks; the trucks
of both groups are ordinarily parked in a designated area
on the minesite; and there is no interchange of drivers of
either group to trucks of the other group.
There was no testimony by any driver of the "Young-
blood group." "Quinn and Peters group" truckdrivers
Barton, Guthrie, and Kell testified credibly that they
were hired by, drove for, and paid only by Quinn
(Guthrie; also Franklin) or Peters' (Barton and Kell); and
that they received wage payments from the foregoing em-
ployers (Guthrie from Quinn, Kell from Peters) by check
(or, in Guthrie's case, sometimes in cash) of those em-
ployers, not from Respondent.
Upon the entire record thus presented with respect to
these eight truckdrivers, I find and conclude:
(1) With regard to the "Youngblood group":
Truckdrivers R. E. Youngblood, Gary Youngblood, and
Billy Ray Crain should be and are included in the bargain-
ing unit here found appropriate. R. C. Youngblood should
be and is excluded, since the testimony of Respondent's
President C. O. Osborn clearly establishes his powers
and functions (notably those to hire, discharge, assign,
8 The evidence shows that all four drivers comprising the "Quinn and
Peters group" signed what would be valid union cards entitled to be
counted in the proposed unit, provided they were members of that unit.
Obviously, mere signature of a union card does not establish the signer to
be an employee or member of the unit . It is also observed , in passing, that
of the "Youngblood group" of four truckdrivers added by Respondent to
its payroll , only Crain was a union card signer.
8 There was considerable confusion and uncertainty at the hearing as to
who is R. C. and who is R. E. Youngblood. In the interest of clarity, for
purposes of this decision hereafter the Youngblood who received these
month-end payments and who acted as boss and general factotum of the
"Youngblood group" of truckdrivers will be assumed to be and will be
referred to as R. C. Youngblood.
4 Peters is also referred to in the record as "Peterson."
ALCO MINING CO.
and responsibly direct his subordinates; i.e., the other
three truckdrivers) to be supervisory within the meaning
of Section 2(11) of the Act. Cf. Indiana Refrigerator
Lines, Inc., 157 NLRB 539, 549-550. In thus resolving
the unit status of the four truckdrivers comprising the
"Youngblood group," I have, among other things, given
effect to' the parties' stipulations concerning the ap-
propriateness of, including Gary Youngblood and Crain
in the unit, the essential indistinguishability of the work
and status of R. E. Youngblood from that of Gary Young-
blood and Crain; and, of course, credited testimony of
Respondent's President C. O. Osborn as recounted
above. I am also mindful of the record before, and the Oc-
tober 19 decision of, the Acting Regional Director in the
representation case, as well as the Regional Director's
subsequent rescission of the decision therein. With regard
to Respondent's insistence that the Trial Examiner is
"bound" -at any rate, it would seem , for purposes cur-
rently to be favorable to Respondent's present posi-
tion-by the Acting Regional Director's October 19 deci-
sion, it may be observed that counsel's open concession
upon the record at the instant hearing that they were here
volte-face reversing positions elected by their own law
partners at the representation case hearing, thereby
removing the underpinning for the Regional Director's
determination, would appear to render untenable the cur-
rent contention that the Trial Examiner nevertheless here
continues to be rigidly bound thereby to the extent that it
appears to lend support to Respondent's present position.
Furthermore, it is noted that in the representation case
the supervisory status of R. C. Youngblood was not
litigated; that although the facts with regard to R. C.
Youngblood were obviously within Respondent's
knowledge at the representation case hearing, for reasons
best known to Respondent it failed to present them to the
Board or to produce at that hearing a knowledgeable wit-
ness or to display candor regarding those facts; that the
Acting Regional Director's decision expressly excepts all
supervisors from the unit, as indeed they must be; that
5 The union cards of these four drivers ("Quinn and Peters group" -
Franklin, Guthrie, Barton, and Kell) on their face indicate that the Union
itself entertained uncertainty as to their true employment status, since the
Union added modifying language to the cards - i e., "employee of Alco
Mining Co Inc., through Peters Coal Co." Union Representative Ses-
sions conceded that the Union considered these four to be "in a somewhat
different category" than the other employees, with their status as em-
ployees questionable since apparently not directly employed by Respond-
ent. (Although a similar qualifying phrase is to be found on the card of
"Youngblood group" truckdnver Crain, it is of no significance, not only
in view of the findings with regard to his status as an employee of Re-
spondent but also because of the parties ' stipulation including him as a
member of the bargaining unit)
6 However, were I otherwise to reach this question, I would not be
prepared to find and conclude upon the basis of the record as made that it
has been established by substantial credible evidence, as required, that
these ' four union cards should be voided on the suggested basis. The
evidence (testimony of Barton, Guthrie, and Kell) shows merely that the
four "Quinn and Peters group" truckdnvers were furnished transportation
by Quinn - the employer of two (i.e , Franklin and Guthrie) of the four,
and not the employer or supervisor of the other two (i e., Barton and Kell),
nor an employee, supervisor or agent of Respondent with regard to any of
the four,, but only an independent contractor with Respondent - in meeting
with Union Representative Sessions to decide whether to sign union
cards, which they understood and wanted to sign The mere fact that
Quinn had remarked in effect that he, as an independent contractor, could
recoup from Respondent any higher wages he (Quinn) might have to pay
them as union members, would not in and of itself upon the record
presented appear to constitute sufficient reason for voiding the union
511
that decision was formally rescinded, with no review
sought of that action; that the issue of the supervisory
status of R. C. Youngblood was tendered and fully
litigated here, as detailed above; and that every apparent
consideration of fairness, equity, and administrative legal
propriety is served by arriving at a result based on the
true facts as adduced "on a fully litigated record," rather
than on wooden reliance upon rigid procedural technicali-
ties of dubious applicability. Cf. The Maxwell Company,
164 NLRB 713.
(2) With regard to the "Quinn and Peters group"; As
urged by Respondent at the instant hearing, all four
truckdrivers comprising this group should be and are ex-
cluded from the bargaining unit here found appropriate.
Undisputed credited testimony establishes that these four
truckdrivers have at no time been employees of Respond-
ent, but on the contrary at all material times employees
of an independent contractor or contractors. It is noted in
this connection that the Acting Regional Director ex-
pressly refrained from making any determination respect-
ing the unit status of any truckdrivers other than those in
the "Youngblood group," while also explicitly excluding
from the unit employees of independent contractors.5 The
specific evidentiary facts here adduced appear to portray
a situation lacking the tightly integrated full control by
common carrier trucker respondents and other features
present in Deaton Truck Lines, Inc., 143 NLRB 1372,
enfd. 337F .2d 697 (C.A. 5), cert. denied 381 U.S. 903;
The Maxwell Company, 164 NLRB 713; and Indiana
Refrigerator Lines, Inc., 157 NLRB 539, which impelled
inclusion of all drivers, including owner-drivers, multiple-
owner-drivers, and drivers of other owners, within the
units there found to be appropriate. In view of this
disposition excluding the four truckdrivers of the "Quinn
and Peters group" from the bargaining unit, I do not reach
the question, now sought to be injected by Respondent
(via its "concession" that they may be considered to be in
the unit), that their union designation cards should be
voided as the product of supervisory procurement.6
cards of Quinn's employees as well as those of Peters ' employees as
matter of law
It is to be noted that were the "Quinn and Peters group" tuckdnvers to
be considered within the unit upon the foregoing or any other basis (cf.,
e.g, Sec. 2 (3), Greyvan Lines, Inc v Harrison , 156 F.2d 412 (C A. 7);
affil. sub nom United States v. Silk, 331 U S 704 , 713, Bon Hennings
Logging Company v. N.L R B ., 308 F . 2d 548 (C A 9); Deaton Truck
Lines, Inc, 143 NLRB 1372, enfd 337 F .2d 697 (C A. 5)), the Union's
representation strength as here found would not be diminished but
enhanced as of the critical dates above considered The question of the ef-
fect, as a possible unfair labor practice or otherwise, of Respondent's ac-
tion on September 26 (the date the Union filed its Certification Petition
with the Board) purportedly integrating four of its independent contractor
oruckdrivers (Youngblood group) into its regular staff by showing them on
its payroll under the described arrangement (including a recogpment fea-
ture by Respondent of their weekly "pay" by deducting it from their
monthly tonnage payment), is not here considered since neither tendered
by the pleadings nor litigated . The same holds true for Respondent's
February 1, 1967, replacement of the "Quinn and Peters group"
truckdrivers (all union card signatories) by its own alleged additional
truckdrivers supposedly for economy reasons not here established. Cf.,
e g , Bon Hennings Logging Co. v. N L R B., 308 F.2d 548 (C.A. 9)
' Before leaving the subject of the truckdrivers, it may , finally, be ap-
propriate to recognize , without giving effect to the circumstance , that if
the bargaining unit as petitioned for by the Union, namely one not includ-
ing any truckdrivers , had been or were now to be deemed appropriate
herein - or perhaps more appropriate than a unit including truckdnvers, in
view of the described September 26 and subsequent actions of Respond-
(Footnotes continued on following page)
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) As Respondent's witness, Street testified that he
signed the union card in evidence, and that Union
Representative Sessions (who presented the card to him)
told him "That to sign this card would allow us to have an
election .... The signing of this card would only permit
us to vote on the union, whether we wanted it or not. And
to become a member of the union would come after we
voted the union in." Conceding that he read the card,
Street now claims "not .... thoroughly," while testifying
that "I was under the impression, at the time, that it said
membership card." On cross-examination, however, he
appeared to alter his testimony by claiming he was
unaware that the card was a "membership card."
Nevertheless, also on cross-examination, he also swore
that "I distinctly remember hearing him [Sessions] say,
`This is a membership card allowing you to vote on the
union."' Street also conceded he was unable to recall the
whole conversation with Sessions, and insistently swore
that he had never discussed this case with anyone, not
even with C. O. Osborn or Respondent's counsel. I was
adversely impressed with Street's testimonial demeanor
as observed. In view of this strong impression, and his
contradictory, evasive, and seemingly inaccurate
testimony, his confessed alleged ability to recall only a
portion of the conversation at the time he signed the card,
and his admission regarding having read the card - the
language of which is clear and unambiguous and which
does not so much as mention election or restriction of use
for the purpose of election - I am unable to credit so
much of Street's testimony as suggests that he was told or
led to believe, or was under the impression, that by sig-
ning this card he was only authorizing an election to be
held. Cf. IUE [S.N.C. Mfg. Co.] v. N.L.R.B., concurring
op. of Burger, J., 352 F.2d 361 at 363-364 (C.A.D.C.),
cert. denied 382 U.S. 902; N.L.R.B. v. Cumberland Shoe
Corporation, 351 F.2d 917 (C.A. 6); N.L.R.B. v. Winn-
Dixie Stores, Inc., 341, F.2d 750 (C.A. 6), cert. denied
382 U.S. 830; N.L.R.B. v. Mid-West Towel & Linen Ser-
vice, Inc., 339 F.2d 958, 963 (C.A. 7); N.L.R.B. V. Stow
Manufacturing Co., 217 F.2d 900, 902 (C.A. 2), cert. de-
nied 348 U.S. 964; Joy Silk Mills v. N.L.R.B., 185 F.2d
732, 743 (C.A.D.C.), cert. denied 341 U.S. 914;
N.L.R.B. v. Sunshine Mining Co., 110 F.2d 780 (C.A. 9),
cert. denied 312 U.S. 678; American Cable Systems,
Inc., 161 NLRB 332; Dubois Fence & Garden Co., Inc.,
156 NLRB 1003; Gorbea, Perez & Morrell, S. en C., 133
NLRB 362, 370, enfd. as modified 300 F.2d 886, 887
(C.A. 1). I accordingly find and conclude that Street's
union card, which has at no time been canceled or
requested to be canceled or withdrawn, was and is valid
for the purposes, specified therein, and that it should be
counted in determining union representation strength.
(f) The testimony of Floyd Jones, called as Respondent's
witness, indicates that he was formerly a member of the
Union when elsewhere employed and that he apparently
was desirous of or willing to resume his membership, par-
ticularly to retrieve his pension eligibility. According to
Jones' testimony, when he signed the card Union
Representative Sessions mentioned that "I believe we are
(Footnotes' continued from preceding page)
ent in attempting to dilute the union representation strength by shifting
the "Youngblood group" truckdrivers onto its payroll pursuant to the
described weekly pay refund arrangement - an unsavory "numbers game"
or game of musical chairs, apparently within the Employer's ready control
by shifting ubiquitous truckdrivers on and off its payroll, could have been
avoided, and an avenue of escape from basic policies and purposes of the
Act could have been closed for the future as well as here. Cf E. H.
going to have an election pretty soon." I am fully per-
suaded and find that under the circumstances shown,
Jones fully and clearly apprehended that he was signing
the card in order to resume and reinstate himself into
union membership, and that he fully intended and desired
to do so, of his free and uncoerced will; that Sessions'
statement to him did not signify, and was not intended by
Sessions or understood by Jones to signify, that the card
was limited to the purpose of authorizing an election. It is
noted in this connection that when Jones signed the card
(November 17), the Union had already petitioned (Sep-
tember 26) for certification and had every reason to be-
lieve an election would be held "pretty soon," as Sessions
said (Acting Regional Director's Decision and Direction
of Election dated October 19). Jones' union card ac-
cordingly should be and is counted in determining union
representation strength herein.
(g) Testimony of Respondent's President C. O. Osborn
shows that his 20-year-old brother Nicky Osborn (son of
Mine Superintendent O. D. Osborn) has been employed
at the mine since its inception , as a general all-around
worker, although he also attends school while school is in
session; that during summers (when school is not in ses-
sion), he works at the mine full time (40-60 hours per
week), while during school sessions he works at the mine
nights and Saturdays (15-25 hours per week), this ar-
rangement being of several years' standing. Respondent
accordingly contends that Nicky Osborn should be in-
cluded in the bargaining unit. General Counsel and the
Charging Party contend he should be excluded because
he is the Mine Superintendent 's son and at one time pos-
sessed supervisory authority. I credit the uncontroverted
testimony of C. O. Osborn regarding Nicky Osborn's em-
ployment arrangement with and activities at the mine, as
described above. It is true that ordinarily (cf. Marriello
Fabrics, Inc., 149 NLRB 333, 345; Bridgeton Transit,
P.A. Mueller and Sons, Inc., 105 NLRB 552, 553),
although perhaps not inevitably (cf. Cherrin Corporation
v. N.L.R.B., 349 F.2d 1001 (C.A. 6); cert. denied 382
U.S. 981), a sole corporate stockholding principal's or
partner's child falls within the exception of "any in-
dividual employed by his parent" in Section 2(3) of the
Act's definition of "employee." However, the record
here is barren of evidence as to the share ownership of
Respondent . Supposition , speculation , or assumption that
Mine Superintendent O. D. Osborn, the father of Nicky
Osborn (as well as of Nicky Osborn's brother, C. O.
Osborn, president of Respondent), is the sole (or even a)
stockholder of Respondent cannot warrant'a finding to
that effect. Nor is there evidentiary warrant for a finding
that Nicky Osborn enjoys special status because of the
family (i.e., not necessarily parent-child) relationship (cf.
Uyeda v. Brooks, 365 F.2d 326 (C.A. 6); N.L.R.B. v.
Sexton, 203 F.2d 940 (C.A. 6); Kern County Broad-
casters, Inc., d/b/a Kero Radio-TV, '116 NLRB 194;
International Metal Products Company, 107 NLRB 65,
67; with which cf. Dan Howard Mfg. Co., 158 NLRB
805, fn. 4, and 816; and Sullivan Surplus Sales, Inc., 152
NLRB 132, 155) or has supervisory functions. Upon the
Koester Bakery Co., Inc, 136 NLRB 1006 (driver-salesmen), with which,
cf., N.L R.B. v. Tallahassee Coca-Cola Bottling Co., 381 F.2d 863 (C.A
5) (driver-salesmen ). In such event, if the appropriate bargaining unit had
been or were now to be defined as a conventional production and main-
tenance unit without truckdnvers , the Union would command an even
clearer majority (i e., 18 /32 or 56 . 3 percent on December 9, and 18/33 or
54.5 percent on December 16)
ALCO MINING CO.
record here made he should therefore (as a regular full-
time employee during summers and a regular part-time
employee at other times) be and is included in the bar-
gaining unit . The Horn & Hardart Company, 147 NLRB
654, 658.
(h) Miller appears on Respondent's payroll for the week
ending December 9, but not December 16. The
testimony of Respondent's president, C. O. Osborn, in-
dicates that Miller is a common laborer who was laid off
on and has not been recalled since December 9, although
he may be called back if needed. The transcript of the
representation case (10-RC-6866) hearing held on Oc-
tober 11 before Board Hearing Officer H. Carlton Bryan,
Jr., indicates that the Union there contended that Miller
was an as sistant to a carpenter named Simmons, who
completed a specific task he was hired to do at the mine;
and that counsel of the Employer (here Respondent)
there contended that these two individuals were em-
ployees according to a "record" in his possession which
was not produced in evidence. Under these circum-
stances, in his October 19 Decision and Direction of
Election the Acting Regional Director stated that he was
refraining from determination of Miller's status, but that
"If they [i.e., Miller and Simmons; the latter is not here
claimed as an employee] were employed only for a
specific job they will be excluded as temporary em-
ployees." Under the circumstances, particularly since
Respondent has been on clear notice since the Acting Re-
gional Director's October 19 decision of the necessity for
proof as to the true nature of Miller's former employment,
and Respondent has failed to adduce satisfactory factual
evidence thereof, it is found and concluded that it has not
been established by substantial credible evidence, as
required , that Miller was an employee of Respondent
who should be counted in the bargaining unit at any time
after December 9, 1966; and that, although Miller should
be and is counted as a member of said unit for the week
ending December 9, he should not be and is not counted
therein for or after the week ending December 16, 1966.
(i) Based on Respondent 's payroll for week ending
December 9 (G.C. Exh. 3-B), except for truckdrivers
Franklin, Guthrie, Barton, and Kell (i.e., "Quinn and
Peters group") shown in column 1 of Table II, Appendix
C, as Nos. 40, 41, 42, and 43.
(j) Although the name of David Roland does not appear
on Respondent 's payrolls in evidence , and Respondent
did not in the representation case ( 10-RC-6866) hearing
on October 11 before Board Hearing Officer Bryan claim
Roland as an employee , Respondent now contends that
Roland should also be included in the bargaining unit as
a shovel operator on ,temporary", layoff. On the subject
of Roland, Respondent's president , C. O. Osborn,
testified that he worked for, Respondent full time as a
cpal-loading shovel operator from early 1965 to late
1966. After first testifying that Roland was "temporarily
laid off" on December 2', Osborn later testified that Ro-
land has not worked for Respondent since "about Oc-
513
tober 1966." Osborn's testimony shows that the reason
Roland was laid off was Respondent 's discontinuance in
its operations of the shovel method of coal-loading and its
replacement with a front-end loader . Notwithstanding
Osborn's presently professed "intention ... of someday
recalling him to work if he wants the job ," Osborn con-
ceded that Roland was laid off because Respondent
"didn't have any further use for [the shovel Roland was
operating ] because of its peculiar size or something," and
that Roland is unqualified to operate a dragline or, so far
as is known , other equipment at Respondent 's mine. Con-
cededly, Roland , who has found other employment, has
not (with the possible exception of an alleged short spell
in December) been recalled to work by Respondent as of
the date of the hearing herein in May 1967. The picture
presented with regard to Roland 's future prospects of em-
ployment with Respondent is too vague and indefinite to
warrant including him in the collective -bargaining unit of
employees at the mine. Respondent did not succeed in
persuading me that it has any real intention of reemploy-
ing him or of even offering him reemployment . I find and
conclude that Roland should not be and is not considered
as a member of the collective-bargaining unit, since his
employment with Respondent ceased a reasonably sub-
stantial time ago with discontinuance by Respondent of
the only equipment he ever operated for it or has been
shown or is known to be qualified to operate ; Respondent
has no real intention of keeping his job alive, recreating it,
or recalling him to its employment ; there is little if any
likelihood of his return to Respondent 's employment; he
has found other employment; and he no longer has any
community of bargaininginterest with the other unit em-
ployees, and it would be unrealistic to consider him as
part of this bargaining unit. He is accordingly not counted
therein. Cf. Sullivan Surplus Sales, Inc., 152 NLRB 132,
157; Booth Broadcasting Company, 134 NLRB 817,
823; Ballas Egg Products, Inc., 121 NLRB 107, 109;
Norris-Thermador Corporation, 118 NLRB 1341, 1343.
(k) Based on Respondent 's payroll for week ending
December 16 (G.C. Exh. 3-A), with same four excep-
tions described in note (i) supra.
(1) Respondent's counsel urges that coercion of union
card signers is established or evidenced here by the fact
that coal mine strikes occurred throughout Alabama dur-
ing April and May preceding the mid-September signing
of the earliest card here. This contention - clearly an af-
terthought, since Respondent at no time even suggested
this as its reason for not dealing with the Union - is re-
jected, no connection whatsoever to the cards here being
established or warranted in any way upon the evidence
presented. There is no substantial credible evidence as to
any illegality , coercion , misrepresentation, or impropriety
of any nature in the procurement, delivery, or use of any
of the cards here counted as establishing the union
majority. In this connection , it is noted that union litera-
ture distributed to employees indicating a Board-con-
ducted secret election would be held, is subsequent to the
filing of the election petition by the Union.