Allegheny Mining Corp.

National Labor Relations Board - Board Decisions

Aug 17, 1967

167 N.L.R.B. 81 (N.L.R.B. 1967)

ALLEGHENY MINING CORP.
Allegheny Mining Corporation and United Mine
Workers of America . Case 5-CA--3659
August 17, 1967
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On June 5, 1967, Trial Examiner George A.
Downing issued his Decision in this 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. Thereafter,
the Respondent filed exceptions 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 the
brief, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the modification
in the order set forth below.2
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, Allegheny Mining Cor-
poration, Mount Storm, West Virginia, its officers,
agents, successors, and assigns, shall take the ac-
tion set forth in the Trial Examiner's Recom-
mended Order, as herein modified:
Substitute the following for paragraph 2(d) of the
Trial Examiner's Recommended Order:
"(d) Post at its offices, shops, and mines in
Mount Storm, West Virginia, copies of the attached
notice marked `Appendix.' Copies of said notice, on
forms provided by the Regional Director for Region
5, after being duly signed by Respondent's
representative, shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that
81
said notices are not altered, defaced, or covered by
any other material."
I As the record, exceptions, and brief in our opinion adequately present
the issues and the positions of the parties, Respondent's request for oral
argument is hereby denied
2 To comport with our usual practice, we shall direct the Respondent to
post the notice, attached to the Trial Examiner's Decision, at the mine
operations in Mount Storm, West Virginia, where the unfair labor prac-
tices were committed
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE A. DOWNING, Trial Examiner: This proceed-
ing, brought under Section 10(b) of the National Labor
Relations Act, as amended, was heard at Petersburg,
West Virginia, on March 14 and 15, 1967, pursuant to
due notice. The complaint, which was issued on January
19, 1967, on a charge dated November 22, 1966, alleged
in substance that Respondent engaged in unfair labor
practices proscribed by Section 8(a)(1) and (3) of the Act,
by various specified acts of interference, restraint, and
coercion in September and October 1966,' and by
discharging Homer Rush on November 17 because of his
union membership and activity. Respondent answered
denying the unfair labor practices.
Upon the entire record in the case and from my obser-
vation of the witnesses, I make the following:
FINDINGS OF FACTS
L JURISDICTIONAL FINDINGS
Respondent, a West Virginia corporation, is engaged in
the mining and sale of coal at its mine at Mount Storm,
West Virginia. It purchases and receives annually goods
of a value m excess of $50,000 directly from extrastate
points and is therefore engaged in commerce within the
meaning of Section 2(6) and (7).
II. THE LABOR ORGANIZATION
United Mine Workers of America, Union herein, is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction and Issues
Respondent operates near Mount Storm two coal
mines which it purchased in June 1964 and which it com-
menced to operate in the fall of that year. One was a deep
mine operation and the other (at which the alleged unfair
labor practices occurred) was a strip mine. Respondent is
owned and managed by its president, Leonard S. Fry, and
its secretary-treasurer, Fred Shaulis, Fry's son-in-law,
both of whom reside at Mercersburg, Pennsylvania.
Those officers spend on the average of a day or day and
a half a week at Mount Storm, where the actual mining
operations are supervised by Mine Superintendent
I All events herein occurred in 1966 unless otherwise specified
167 NLRB No. 15
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lawrence Streets and by Assistant Superintendent and
Master Mechanic Tom Streets , who is Lawrence' s uncle.
Organizational activities which began at the strip mine
in August were countered by the holding of a meeting
with employees on September 7 at which , among other
things, President Fry announced the granting of certain
benefits and the intention of granting others. Around Oc-
tober 8 Homer Rush , a dragline operator on the day shift
since September 1964, became most active in the or-
ganizational activities and continued his efforts, to
Respondent ' s knowledge , until his discharge on
November 17. Around October 14 Respondent an-
nounced that it would install a swing shift and actually
began it on November 3. Though Rush at first threatened
to quit because of the loss of his day shift , he stayed on
and continued his organizational efforts actively and
openly until discharged.
The chief issues herein concern alleged coercive state-
ments made by Fry in his speech to the employees on
September 7, the promising and granting of benefits at the
time, and the discharge of Homer Rush, which was de-
fended on the basis of various "causes." Also in issue
were alleged threats by Lawrence Streets on September
7 and by Thomas Streets on September 11.
Because of the findings made and the conclusions
reached herein , I deny Respondent ' s requested findings
of fact , conclusions of law , and recommendations.
B. The Organizational Activities; the Section 8(a) (1)
Conduct
An active organizing campaign among the strip mine
employees was begun by the Union in August and soon
reached Respondent's attention. As early as September
1 Fry informed Virginia Electric & Power Company
(VEPCO herein) of the organizing activities and that
Respondent's financial condition was such that it needed
an increase in the contract price of coal in order to meet
anticipated increases in labor costs 2 Though promising
"financial relief," VEPCO made no definite commitment
but requested Respondent to develop or to evaluate in its
annual statement on August 31 what the anticipated labor
increase would cost per ton and to meet with VEPCO
about October 1.
Having set up a meeting with the employees for the af-
ternoon of September 7, Fry notified VEPCO of it on the
morning of the 7th and talked further about the union ac-
tivities in the field. Two representatives of VEPCO at-
tended the meeting.
There is little conflict in the evidence concerning what
Fry stated in his speech to the employees, for as Re-
spondent summarizes the testimony:
It was testified to at the hearing by witnesses for
the General Counsel and the Respondent, and never
denied by the Respondent, that during this Sep-
tember 7, 1966, speech Mr. Fry announced to the
employees that the Respondent was granting them a
general wage increase, increasing paid holidays to
five paid holidays, assuming full payment of the
Respondent's current hospitalization plan, instituting
2 VEPCO purchases 95 percent of Respondent's output at a price fixed
by a contract which has several years to run The contract contained what
Fry described as a "vaguely worded escalation or escape clause" which
Fry relied upon in negotiations with VEPCO as justifying an increase in
the price of coal to meet increased living costs and operating costs
a vacation plan and planning to establish a pension
plan.
The meeting was the first one Fry had held with the
employees in some 2 years and the general wage increase
was the only one he had ever given. Furthermore, Fry an-
nounced the benefits in the context of direct references to
the Union and union activities and to what might happen
if the Union were to come in. Thus though Fry stated that
the choice of union or no union would be up to the men,
he testified further that, "I went on to say that I felt that
if the union won the election that the company would
have to be sold; that I was getting along in my age in life;
I had been in the business 30 or 32 years; and my life was
getting too short for negotiations with union people." Fry
also acknowledged that he definitely made that statement
that his stock would be for sale and that someone else
would have to run the Company.
Witnesses for the General Counsel testified that Fry
also made the following additional references to the
Union: (1) that he could work out a better pension retire-
ment plan than that of the Union; (2) that the employees
who had signed cards could get them back by demanding
them from the Union, (3) that if an election were held and
the Union lost, there could not be another election for a
year.
Fry testified that he explained that the Company had
realized for some time that the men were entitled to a
wage increase; that the one being granted would bring
their wages up to the area's prevailing rates; that the wage
increase and the fringe benefits had not previously been
granted because the Company was losing money; that be-
fore giving the increase the Company had to obtain an in-
crease in the price of coal; and that VEPCO had assured
him that morning that certain increases could be obtained.
Fry's further testimony showed, however, that there
was no commitment by VEPCO, and that no increase has
yet been received. Thus Fry testified that by a later con-
tract amendment certain increases were to be paid
provided Respondent improved the quality of its coal to
11,500 BTU's and reached certain production quotas but
Respondent has not met the specified conditions and has
therefore not received "one penny more." Despite that
failure, and though the pension plan was specifically con-
ditioned on the success of negotiating additional money
with VEPCO, the plan was put into effect on January 1
because Fry was "hopeful" that Respondent may yet
meet VEPCO's quality and quantity requirements.
Fry also sought by his testimony to justify the granting
of benefits by certain representations he made in a meet-
ing of employees 2 years earlier, as follows: that he then
offered the men participation on a voluntary basis in a
group insurance or hospitalization plan, with Respondent
paying one-third of the cost and the employees two-thirds
and told the men that the Company hoped to be able to in-
crease wages and other various fringe benefits, such as
vacations and holidays, on an annual basis as the
economic condition of the Company permifted.3 He
testified that in late 1965 the Company raised its con-
tribution to the insurance and hospitalization plan from
one-third to one-half, which increase was handled either
by letter or by oral advice through supervision.
9 Significantly none of the witnesses, including Fry, testified that Fry
made any reference to those prior promises in announcing the benefits in
his September 7 speech Furthermore Fry testified that Respondent was
losing money at the time
ALLEGHENY MINING CORP. 83
At the end of Fry's speech, Lawrence Streets held up
a union card and read it to the employees. Streets made
no substantial denial of testimony by Homer Rush and
Raymond Cussins that he informed the men that by sig-
ning such a card they would sign away all their privileges
or their right to any benefits from the Company and that
if they wanted such privileges, for example, as time off for
hunting or fishing, they would have to go to the Union to
do the bargaining. Two later conversations which are also
claimed by the General Counsel to be violative of Section
8(a)(I) contained only repetition of some of the state-
ments made at the meeting. Rush testified that on the next
day he thanked Fry for the raise and that Fry stated he
did not know what was going to happen if the job went
union and would just have to shut down and sell out.
Though Fry denied making any reference to shutting
down or going out of business, the statements which Rush
testified to were substantially to the same effect as those
which Fry admittedly made at the meeting. I therefore
credit Rush's testimony.
In the other conversation between Rush and Thomas
Streets on September 11, Streets admitted making a com-
ment (similar to Lawrence Streets' at the meeting) that if
the mine went union and if Rush wanted a day or two off
to go hunting, he would have to do that through the
Union.
Concluding Findings
The promising and granting of the wage raise and the
other benefits in the context of repeated references to the
Union and its organizational campaign was plainly a
violation of Section 8(a)(l) of the Act. N.L.R.B. v.
Exchange Parts Co., 375 U.S. 405, 409-410; Medo
Photo Supply Corporation v. N.L.R.B., 321 U.S. 678,
686. Indeed, the present case is stronger on its facts than
the cited cases for here the "express purpose" of imping-
ing on the employee's freedom of choice was emphasized
by Fry's threats to sell out the Company or his stock and
by Lawrence Streets' statement that by signing a union
card the employees would sign away company benefits
and privileges previously granted. Thus Respondent's
"other unlawful conduct" made explicit here the motive
found to be "otherwise established" in Exchange Parts,
supra, where the employer refrained from such "other
more obvious violations."
I therefore conclude and find that by promising and
granting wage raises and other benefits on September 7
and since, and by threatening employees on September
7, 8, and 11 with loss of existing benefits and privileges
and with other reprisals if the Union should come in,
Respondent interfered with, restrained, and coerced em-
ployees in the exercise of rights guaranteed by Section 7
of the Act.
C. The Discharge of Homer Rush
Homer Rush was employed by Respondent as a
dragline operator on September 17, 1964, and was
discharged on November 17, 1966. Rush notified Su-
perintendent Lawrence Streets around October 8 that he
was in the Union "up to [his] ears," that he proposed to
back it fully, and that Streets should so inform Fry.4
Thereafter Rush engaged openly, to Respondent's
knowledge, in soliciting for the Union both on and off
company time. As Respondent's defense is based in part
on Rush's violation of an alleged rule against solicitation,
we review preliminarily the evidence concerning said
rule.
It was plain from all the evidence that Respondent had
no rule against solicitation or against employees talking
among themselves on the job and that talking in particular
was commonly engaged in. Raymond Cussins testified he
knew of no rule either against talking or against solicita-
tion of any kind, and he, Thomas Hawk, and Burlin Gil-
laspie testified that both before and after Rush's
discharge employees frequently talked among themselves
on company time in the presence of supervision about
such matters as hunting or fishing without objection from
any member of supervision. Superintendent Lawrence
Streets admitted that sometimes, "in a passing way," he
stood around on company time and talked with the men
about hunting and fishing and that it was his privilege and
right to do so.
As for solicitations, there was also no dispute that col-
lections were occasionally made among the employees on
the job, with supervision also joining in the contributions.
Indeed in two different years the men took up a collection
to buy a Christmas present for Fry himself, one of the
gifts being a case of whiskey.
Though there was no dispute that Fry made references
to talking on the job during his September 7 speech, it
was plain that he was laying down no prohibitory rule but
was expressing only a hope that the men would not waste
too much productive time in talking. Thus Gillaspie
testified that Fry stated he did not mind seeing one, two,
or even three employees standing around talking but he
did not like to see half a dozen doing so. Rush testified
that Fry stated that he did not mind a couple of men
stopping the machine and "shooting the breeze" for a
couple of minutes but that he did not like to see three or
four or five or six men get together and hold up produc-
tion while talking "like a bunch of women." Raymond
Cussins testified that Fry commented on the union cards
being passed around and stated that he did not want the
men "aggravated over the Union, over signing a Union
card...."
Vice President Shaulis substantially corroborated the
foregoing testimony. Thus Shaulis testified that Fry
stated he did not mind if two or three men stood around
talking, but he did not want five or six congregating "like
a bunch of old ladies," because by standing around talk-
ing with a :ch other rather than working, they were in ef-
fect taking money from Fry and the Company, and he
"would appreciate it" if in the future they would not do
such things.
Fry testified that after referring to the union activities,
he stated that he certainly "hoped" there would be none
conducted on the job and that he would not have to
discharge anyone for any activities that would interfere
with the normal progress of the work on the job.
Lawrence Streets testified that Fry stated that he did not
want any union activities on the job.
Since Shaulis substantially corroborated the testimony
of Gillaspie, Rush, and Cussins, I credit the latter, and I
therefore conclude and find (1) that Respondent had no
4 The testimony of Rush and Streets is in conflict as to whether Streets
replied that Fry did not want the Union on the job or only reminded him
of what Fry said in his speech about the union activities I find that Streets
referred to the latter
310-5410-70-7
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rule against talking or against solicitation on the job; (2)
that if Fry's statements on September 7 were to be re-
garded as establishing a "rule," it was one which was in-
tended to apply discriminatorily against engaging in union
activity; and (3) that it was in fact so applied as regarded
Rush's activities after October 8.
We turn now to the events which intervened before
Rush's discharge. Rush's disclosure of his union alle-
giance on October 8 was followed on October 14 by
Respondent's announcement that it proposed to install a
swing shift, which would result in the loss by Rush of the
day shift on which he had worked exclusively since first
employed.5 That action was taken following complaints
from, and a polling of, employees as to their desires, with
only Rush expressing objection. Rush at first announced
that he would quit, but later informed the Streets that he
would stay on "until hell froze over."
Rush's solicitations for the Union continued apace,
with the following specific instances being shown by the
record:
Thomas Hawk, Rush's oiler, testified that Rush talked
with him "Fairly regular" on the job about the Union but
did not interfere with him.
James Bolyard, a witness for Respondent, testified to
occasions before mid-October when Rush solicited him
to sign a card as they were changing shifts, but those so-
licitations apparently did not encroach on worktime. On
another occasion Bolyard saw Rush engaged in a conver-
sation with Paul Shannon on Shannon's worktime when
Rush had a blue card. Jim Head, another witness for
Respondent, testified that Rush never solicited him to
join the Union but did on one occasion tell him at some
length during worktime what the union benefits were.
Head reported the matt:'r to Thomas Streets, not as a
complaint but because he thought Streets should know.
On November 3 or 4 Rush solicited Harland Smith on
the latter's worktime and was observed doing so by
Thomas Streets, who said nothing at the time to either
man. Around November 13 or 14 Rush solicited Donald
Upole, a new employee, while both were on worktime.
Upole reported the matter to Lawrence Streets, not as a
complaint but to get Streets' advice because, he testified,
he did not know what he was getting into.
Finally Fry testified that he himself saw Rush talking
with three or four other men in the shop, detaining them
from their work, but he admitted he did not know what
they were talking about, and there is nothing in the record
which indicates that the subject was union activities or
that Rush was responsible for initiating or for carrying on
the conversations
The record shows that Respondent objected to Rush's
activities among the men and that it warned him to stop.
Thus Superintendent Lawrence Streets testified that
when he returned from a 2-week vacation around Oc-
tober 28, Thomas Streets reported to him that there was
dissatisfaction between Rush and the other employees on
the dragline and that they and Jim Head, the mechanic,
had reported to Thomas that Rush engaged them in
discussions of the Union and that when they did not
agree, he would curse them or call them names.
Rush testified that Thomas Streets informed him that
the men were complaining about Rush "agitating" them,
5 Though Rush contended that he accepted employment in 1964 on the
promised condition that he work on the day shift, the General Counsel
makes no claim of discrimination because of the change to a swing shift
and when Rush inquired what he meant, Streets replied
he did not know, that he got his orders from higher up,
and that if he did not carry them out someone else would.
Thomas Streets confirmed that the name calling, which
was the chief ground of employee complaints to him oc-
curred in conversations in which Rush was soliciting em-
ployees to sign union cards and that that was what was
"irritating" them, along with Rush's lack of cooperation
on the machine. Though Streets informed Rush of com-
plaints by the men that Rush was not "getting along" with
them, he answered Rush's inquiry concering the nature of
the complaints only by stating, "You know as well as I do
what the trouble is."
Rush also sought an explanation from Lawrence
Stieets of the alleged "agitation," informing Streets he
had not held the men up from doing their work. Streets
replied that an employee (Upole) had reported the contra-
ry a night or two before. Streets admitted that Rush
inquired what it was the men complained of and testified
he informed Rush they complained that Rush did not get
along with them.
Rush testified that he was discharged at the end of his
work shift on the day following the foregoing conversa-
tion with Lawrence Streets. Streets handed Rush his pay
envelope, stating, "Well, I guess this is it, Homer," and
"He said to give this to you when you finished your shift
tonight." Rush asked the reason and Streets replied that
he just worked there the same as Rush did and that, "He
said to give this to you." Streets added that he had
nothing to say against Rush's work and that he hated to
see Rush go.
Rush testified that he returned on November 23 and
asked Fry to reconsider and to give him his job back.
When Fry stated that he had not fired Rush in the first
place, Rush replied that he had not been able to find out
who did so. Fry asserted that Rush had quit, but Rush re-
minded Fry that he had told Thdmas Streets he was going
to stay on. Fry then referred to the agitation or the trouble
among the men, and Rush stated he had tried to get to the
bottom of that claim and that neither of the Streets could
tell him what it was or to face him with the alleged ac-
cusers. Fry in turn stated that neither would he reveal
another man's name who reported something about
another employee.
Respondent contends that it discharged Rush for a
number of "causes," though the testimony of its chief wit-
nesses (Fry and the Streets) was in conflict not only as to
what causes were taken into consideration but also as to
what it was which finally triggered the discharge action.
Furthermore the testimony of employee witnesses upon
which Respondent relies fell far short of establishing
Respondent's claim of complaints against Rush, both as
to time and in content.
Beginning with supervision, Fry testified that the deci-
sion to discharge was one which Respondent had "care-
fully weighed" since mid-October and that the final
"straw that broke the camel's back" was the occasion on
which Fry himself saw Rush talking with three or four
other men. Thomas Streets testified to the contrary that
what brought matters to a head was an incident in which
Bolyard got Rush "backed up against the wall" because
6 Significantly, Fry characterized that incident as "the straw that broke
the camel's back", i e., as precipitating the decision to discharge
ALLEGHENY MINING CORP.
of something Rush said about Bolyard, as a result of
which Streets "felt that we had to do something."
Besides being inconsistent both of those claims were
subject to stringent discounting on the entire record. As
previously observed, Fry was admittedly unaware of the
subject under discussion, his testimony did not establish
that it was Rush who was responsible for the loss of
worktime, and none of his alleged concern was directed
at other participants in the conversations. Significantly,
too, Fry admitted that nothing happened after that in-
cident which led to Rush's discharge. Thomas Streets'
testimony was in turn exploded by the testimony of
Thomas Hawk and of Bolyard himself as Respondent's
witness, which established that though the name calling
and the confrontation between Bolyard and Rush oc-
curred, the incident happened back in August according
to Hawk, or in August or September according to
Bolyard, and that Bolyard accepted Rush's apology at the
time. Furthermore Bolyard testified he had no further ar-
guments with Rush despite the fact that Rush solicited
him on a number of occasions to join the Union.
Finally, whatever force remained to the testimony of
Fry and Thomas Streets was dissipated by Lawrence
Streets, the last of Respondent's officials to testify con-
cerning the discharge. Thus, though Fry denied that
Rush's union activities had anything to do with the
discharge, Lawrence Streets repeatedly acknowledged
that one of the reasons for the discharge was the fact that
Thomas Streets and some of the employees were report-
ing that Rush was passing out union cards and engaging
in union activities on company time.7 As that
acknowledgement served but to confirm the conclusion
which is impelled by the entire evidence, the additional
reasons asserted by Respondent need not be reviewed at
length.
Briefly summarized those reasons were that Rush did
not get along with the other employees, that he failed to
cooperate or to communicate with employees on the
dragline on matters which were essential to an efficient
operation, that he interfered with the work of the other
men by talking with them on worktime, and that he cursed
and called them names behind their backs. Finally the
Streets testified also to reports from employees that they
would quit rather than work on the same shift with Rush,
which reports as they reached Fry were such as to
present "a choice between either Homer Rush going or of
the other men quitting."
On cursing and name calling Respondent's evidence
highlighted the Bolyard incident, but the significance of
that evaporated entirely under the testimony of Bolyard
and Hawk as previously observed. Harold Sherwood,
also Respondent's witness, testified that though he heard
that Rush was cursing him behind his back, he did not
speak to Rush and just let the matter go. Sherwood did
mention the matter to Lawrence Streets, however, and
thereafter Streets spoke to both men, telling them that
they had to get along together and to cooperate on the
machine. Hawk, who overheard Streets admonish Rush
about the name calling, fixed the time of the incident as
July.
There was also testimony by Lawrence Streets that Jim
7 Because of the contradictions and the inconsistencies in the testimony
of Fry and the Streets as above set forth, I do not credit their testimony
where it is elsewhere in conflict with that of Rush or of the other wit-
nesses.
85
Head was one of the employees who reported to him that
Rush cursed and called Head names when Head did not
agree to join the Union and that "tempers flared." Head's
testimony, however, contained no confirmation of the al-
leged cursing and name calling; and though Head testified
that he reported to Streets that Rush was discussing the
Union with him, he did not do so in the guise of making a
complaint. Again the report as it reached Fry was further
magnified, for Fry referred to it as an incident of "near
fisticuffs" between Rush and Head. There was no sub-
stantiation of such a report.
Furthermore, it was not disputed that it was common
to hear cursing and swearing on the job by persons other
than Rush, and Lawrence Streets admitted that he cursed
on the job as much as the other men.
Respondent also failed to substantiate alleged reports
that other employees threatned to quit rather than to
work with Rush.8 The only employee whom Respondent
sought to identify as making such a statement was Burlin
Gillaspie (by Lawrence Streets), but Gillaspie's
testimony contained no confirmation of his alleged threat.
Indeed, Gillaspie worked on a different shift than Rush,
as an oiler for Harold Sherwood.
We turn now to Rush's attitude toward other em-
ployees on the job and his alleged failure to cooperate
with them. The witnesses on both sides were in agree-
ment that Rush did not get along well with the other em-
ployees on the dragline, that sometimes he would speak
to them and sometimes he would not, and that his attitude
worsened after the swing shift was announced (over his
dissenting vote). However, Bolyard admitted on cross-
examination that Rush's attitude had been the same for
the year and a half he had known Rush and that, "Homer
was always pretty moody on the machine."
There were also claims that Rush sometimes did not
pass on necessary instructions at shift changes and did
not make proper entries in the log book. The evidence
concerning those matters, however, was in some dispute.
Burlin Gillaspie (Sherwood's oiler on the shift which re-
lieved Rush) testified, for example, that on one occasion
his crew could not find in the log book any notation as to
the time the oil fittings on the dragline had been greased.
Gillaspie asked Rush if he knew when the machine was
supposed to be greased and got no definite answer from
him. Gillaspie admitted that he did not know whether the
entry in the book was one which would or should have
been made on Rush's shift. Rush testified that he kept the
log book in the same manner both before and after the
swing shift was started and that on the occasion when
Gillaspie asked him about the oil change, he simply told
Gillaspie to look in the log book and he would see.
Jim Head testified that in the month of October
Thomas Streets called to his attention the fact that the fire
extinguishers were empty on the dragline but did not
criticize him about it. Head testified that though it was his
duty to see that the fire extinguishers were filled, it was
the responsibility of the operator (Rush) or the oiler
(Hawk) to bring the extinguishers to the shop when they
were empty so that Head might have them filled. Head
made no attempt to explain the basis for his apparent con-
clusion that the extinguishers became empty during a
6 Since the alleged resentment against Rush grew chiefly out of his or-
ganizational activities, such reports, if true, would not avail Respondent
as a defense. See Altamont Shirt Corporation, 131 NLRB 112, and cases
cited therein at 120.
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shift on which Rush and Hawk were operating the
machine.
Respondent also contended that Rush interfered with
the work of other employees by keeping certain company
tools and parts in his truck , and although it concedes in its
brief that Rush returned tools which he "removed" from
the dragline , it argues that his conduct "would still
amount to a `theft ' of these tools." There was little sub-
stance to the contention and even less to Respondent's
exaggerated claim of theft , for the evidence showed only
the following:
Bolyard testified to an occasion when his shift needed
to replace a nipple on a valve and none could be found in
the toolbox . He mentioned the matter to Rush the next
morning who said that he had some nipples in his pickup
truck, and that is all that was said . Thomas Streets, who
learned of the incident , admitted that he did not know
whether the nipples belonged to the Company and agreed
that they could possibly have been Rush's.
Harold Sherwood was questioned about some incident
involving tools which had been removed from the
machine but testified that he could not say what happened
to them and that some were lost. He testified further that
some of the small tools on the machine belong to the
operator , who takes them home , but that it is customary
for the bigger tools to stay on the machine.
Burlin Gillaspie testified that on one occasion Rush
took away from the job a wrench which he had mistaken
for his own , but that Rush brought it back , and Gillaspie
did not know whether Rush took it intentionally. There
was no evidence that the temporary absence of the
wrench interfered in any way with the work of other em-
ployees.
The foregoing summary, which covers the testimony of
all of the employees who testified to alleged "complaints"
against Rush shows plainly that Respondent 's officials
exaggerated their claims of misconduct on Rush 's part.
Indeed , most of the employees testified that they were
not making complaints but were merely reporting on ac-
tivities in which they assumed Respondent was in-
terested.
Respondent 's case was no stronger, of course , than that
which it sought to make out by calling the informants to
support the alleged complaints. Furthermore , as previ-
ously found , the testimony of Respondent 's officials was
both inconsistent and contradictory in assigning the fac-
tors which motivated the discharge. Thus Thomas Streets
assigned as the precipitating incident the personal en-
counter between Bolyard and Rush which occurred
months before the discharge and which was settled
between the men by Bolyard 's acceptance of Rush's
apology. Fry assigned instead an incident of a conversa-
tion between Rush and other employees . Finally
Lawrence Streets acknowledged that Rush 's union activi-
ties on the job was one of the motivating reasons for the
discharge , thereby contradicting Fry's denials that such
was the case.
Though that final admission was alone sufficient to
establish a violation of Section 8(a)(3),9 the present deci-
sion need not rest solely on that basis. For what the
evidence in its entirety showed was that Rush was
discharged because of his union activities alone and that
the other miscellany of stale, exaggerated , and unproved
complaints were only pretexts by which Respondent
sought to build a record of "cause."
Thus the record shows (in addition to facts previously
found) that prior to October 8, Rush was not only re-
garded as a satisfactory employee (despite his moodiness
or other personality traits ) but had for 2 years been ac-
corded his preference of work shifts. But once Rush an-
nounced his intention of backing the Union fully, he sud-
denly became persona non grata. Indeed , Fry admitted
that as early as mid - October the matter of discharging
Rush was being seriously considered and that he was per-
fectly willing to let Rush quit at that time. It was then also
that Rush began to intensify his organizational efforts,
which Respondent countered by warnings to stop "agitat-
ing" the men. Significantly Respondent avoided defining
what the "agitation" consisted of and refused to divulge
the identity of the alleged accusers . A final inconsistency
developed concerning the discharge itself , with Lawrence
Streets clearly implying that Fry had ordered the
discharge , while Fry denied that he had done so.
To summarize my findings , I have previously found
that Respondent had no rule against talking or against sol-
icitation on the job , or at best an invalid rule which it ap-
plied discriminatorily for the purpose of restraining Rush
in his organizational activities . Cf. Rowe Industries, 152
NLRB 70, 74, The Rose Company , 154 NLRB 228, 270.
I conclude and find further that Respondent discharged
Rush because of his union activities among the em-
ployees and to discourage membership in the Union and
that Respondent failed to establish that it discharged
Rush for any of the causes which it assigned. Finally, I
find alternatively that in any event a substantial and
motivating reason for the discharge , as acknowledged by
Lawrence Streets, was Rush ' s organizational activities
among the employees . See footnote 9, supra, and cases
there cited.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case , I make the following-
CONCLUSIONS OF LAW
1. By interfering with, restraining , and coercing its em-
ployees in the exercise of rights guaranteed in Section 7
of the Act, Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(1).
2. By discharging Homer Rush on November 17,
1966, to discourage membership in the Union , Respond-
ent engaged in unfair labor practices within the meaning
of Section 8(a)(3) and (1) of the Act.
3. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent engaged in certain un-
fair labor practices , I shall recommend that it cease and
desist therefrom and that it take certain affirmative action
as provided in the Recommended Order below which I
N It is well established that even though a discharge is based on other
reasons as well, if an employer is partly motivated by union activity, the
discharge is violative of the Act N L R B v Whiten Machine Works, 204
F 2d 883 , 885 (C A 1 ), and cases there cited , N L R B v Great Eastern
Color Lithographic Corp , 309 F 2d 352, 355 (C A 2), cert denied 373
US 950, N L R B v Jamestown Sterling Corp, 211 F 2d 725, 726
(C A 2), cf N L R B v Town & Country Mfg Co , 316 F 2d 846, 847
(C A 5)
ALLEGHENY MINING CORP.
find to be necessary to remedy and to remove the effect
of the unfair labor practices and to effectuate the policies
of the Act. For reasons which are stated in Consolidated
Industries, Inc., 108 NLRB 60, 61, and cases there cited,
I shall recommend a broad cease-and-desist order.
Upon the foregoing findings of fact and conclusions of
law and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following:
RECOMMENDED ORDER
Allegheny Mining Corporation, its officers, agents,
successors, and assigns , shall:
1. Cease and desist from:
(a) Promising and granting to its employees wage
raises and other benefits for the purpose of affecting their
right freely to choose or to join United Mine Workers of
America, or any other labor organization.
(b) Threatening its employees with loss of existing
benefits or privileges or with any other reprisals if the
Union should come in.
(c) Discouraging membership in the Union, or in any
other labor organization of its employees, by discharging
them or in any other manner discriminating against them
in regard to hire or tenure of employment or any term or
condition of employment.
(d) In any other manner interfering with, restraining,
or coercing its employees in the exercise of their right to
self-organization, to form, join, or assist said United Mine
Workers of America, or any other labor organization, to
bargain collectively through representatives of their own
choosing, or to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection, or to refrain fi om any or all such activities ex-
cept to the extent that such rights may be affected by an
agreement authorized by Section 8(a)(3) of the Act.
2. Take the following affirmative action:
(a) Offer to Homer Rush immediate and full reinstate-
ment to his former or substantially equivalent position,
without prejudice to his seniority or other rights and
privileges, and make him whole for any loss of earnings
he may have suffered by payment to him of a sum of
money equal to that which he would have earned from the
date of his discharge to the date of the offer of reinstate-
ment , less his net earnings during said period (Crossett
Lumber Company, 8 NLRB 440), said backpay to be
computed on a quarterly basis in the manner established
by the Board in F. W. Woolworth Company, 90 NLRB
289, together with interest thereon at the rate of 6 percent
per annum. Isis Plumbing & Heating Co., 138 NLRB
716.
(b) Notify the said Homer Rush if presently serving in
the Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Train-
ing and Service Act, as amended, after discharge from the
Armed Forces.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Recommended Order.
(d) Post at its offices, shops, and mines at Petersburg,
West Virginia, and at Mercersburg, Pennsylvania, copies
of the attached notice marked "Appendix."t° Copies of
said notice, to be furnished by the Regional Director for
87
Region 5, after being duly signed by Respondent's
representatives, shall be posted by Respondent im-
mediately 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.
(e) Notify the Regional Director for Region 5, in writ-
ing, within 20 days from the receipt of this Decision, what
steps have been taken to comply herewith. I t
10 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."
I 1 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify the Regional Director for
Region 5, in writing, within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith "
APPENDIX
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 promise or grant wage raises or
other benefits for the purpose of affecting our em-
ployees' right freely to choose and to join United
Mine Workers of America, or any other labor or-
ganization.
WE WILL NOT threaten our employees with loss of
existing benefits or privileges or with any other
reprisals if the Union should come in.
WE WILL NOT discourage membership in United
Mine Workers of America, or in any other labor or-
ganization of our employees, by discharging em-
ployees or in any other manner discriminating in re-
gard to hire or tenure of employment or any term or
condition of employment.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of their
right to self-organization, to form, join, or assist said
United Mine Workers of America, or any other labor
organization, to bargain collectively through
representatives of their own choosing, or to engage
in other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection
or to refrain from any or all such activities except to
the extent that such rights may be affected by an
agreement authorized by Section 8(a)(3) of the Act.
WE WILL offer to Homer Rush immediate and full
reinstatement to his former or substantially
equivalent position, without prejudice to his seniority
or other rights and privileges, and make him whole
for any loss of earnings he may have suffered as a
result of our discrimination against him in the manner
provided in the Trial Examiner's Decision.
88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become and remain mem- presently serving in the Armed Forces of the United
bers of United Mine Workers of America, or any other States of his right to full reinstatement upgn application
labor organization, except to the extent that such right in accordance with the Selective Service Act and the
may be affected by an agreement authorized by Section Universal Military Training and Service Act, as
8(a)(3) of the Act. amended, after discharge from the Armed Forces._
This notice must remain posted for 60 consecutive
ALLEHGENY MINING days from the date of posting and must not be altered,
CORPORATION defaced, or covered by any other material.
(Employer) If employees have any question concerning this notice P
Dated By or compliance with its provisions, they may communicate
(Representative) (Title) directly with the Board' s Regional Office, 6th Floor, 707
North Calvert Street, Baltimore, Maryland 21202,
Note: We will notify the above-named employee if Telephone 752-8460, Ext. 2100.