Alumbaugh Coal Corp.

National Labor Relations Board - Board Decisions

Feb 6, 1980

247 N.L.R.B. 895 (N.L.R.B. 1980)

ALUMBAUGH COAL CORPORATION
Alumbaugh Coal Corporation and United Mine
Workers of America. Cases 6-CA-10559 and 6-
RC-7911
February 6, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDALE
On July 9, 1979, Administrative Law Judge Thomas
E. Bracken issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the Charging Party filed a
brief in answer to Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings,' findings,2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order,' as modified herein.4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, Alum-
baugh Coal Corporation, Kantner, Pennsylvania, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph l(e):
"(e) Promising or granting benefits, or soliciting
grievances and promising to remedy such grievances,
in order to induce employees not to support the
Union; provided, however, that nothing herein re-
quires Respondent to vary or abandon any economic
benefits or any terms or conditions of employment
which it has heretofore established."
2. Substitute the attached notice for that of the
Administrative Law Judge.
' Respondent excepts to the Administrative Law Judge's denial of its
motion to dismiss the complaint and the objections because of the participa-
tion of Ronald J. Zera on behalf of the Charging Party. Zera is a former
Region 6 employee who had been employed by the Board at the time of the
representation petition and the charge and had subsequently joined the law
firm of counsel for the Charging Party. Respondent contends this participa-
tion violated Sec. 102.119 of the National Labor Relations Board Rules and
Regulations, Series 8, as amended, and tainted the entire proceedings, thereby
denying Respondent due process. We find no merit in such exception for the
reasons fully set forth by the Administrative Law Judge in his Decision. Not
only was Zera's participation minimal, but Respondent has made no showing
247 NLRB No. 112
that Zera's conduct in any way prejudiced its rights in the course of this
proceeding.
' Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless the
clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products. Inc.. 91 NLRB 544
(1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
' Chairman Fanning would in this case date the bargaining order as of the
July 6 demand for recognition that was refused by Respondent, rather than as
of May 2 when the Union achieved majority status but made no demand. See
his partial concurrence in Beasley Energy. Inc.. d/b/a Peaker Run Coal
Company. Ohio Division. 228 NLRB 93. 97 (1977). discussing the scope of a
prospective bargaining order to include matters on which an employer "had
been" unlawfully refusing to bargain.
I The Administrative Law Judge's recommended Order and notice have
been modified to correct inadvertent omissions.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had an opportuni-
ty to. present evidence and cross-examine witnesses,
the National Labor Relations Board had found that
we violated the National Labor Relations Act, as
amended, and has ordered us to post this notice. We
intend to abide by the following:
WE WILL NOT discharge or threaten to dis-
charge employees for supporting the United Mine
Workers of America or any other labor organiza-
tion.
WE WILl. NOT threaten employees that we will
shut the mine down if the Union comes in.
WE WILL NOT coercively interrogate employ-
ees concerning their union attitude or activities.
WE WILL NOT promise or grant benefits, or
solicit grievances and promise to remedy such
grievances, in order to induce employees not to
support the Union, or any other labor organiza-
tion; provided, however, that nothing herein
requires us to vary or abandon any economic
benefits or any terms or conditions of employ-
ment which we have heretofore established.
WE WILL NOT ask employees to withdraw
their authorization cards by which they have
designated the Union as their bargaining repre-
sentative.
WE WILL NOT give employees the impression
that union activities are under surveillance.
WE WILL NOT refuse to bargain with the
Union as the collective-bargaining representative
of the employees in the appropriate unit.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of their rights to engage in self-organization, to
form, join, or assist the above-named Union, or
895
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any other labor organization, to bargain collec-
tively through representatives of their own choos-
ing, and to engage in other concerted activities for
the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any
and all such activities.
WE WILL offer Roger Bouch immediate and
full reinstatement to his former job or, if such job
no longer exists, to a 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 due
to the discrimmination practiced against him,
with interest.
WE WILL, upon request, bargain collectively in
good faith with the above-named Union, as the
exclusive bargaining representative of the em-
ployees in the unit described below, and embody
in a signed agreement any understanding reached.
The appropriate bargaining unit is:
All production and maintenance employees
and truckdrivers employed by us at our mining
operation located in Kantner, Pennsylvania,
excluding all office clerical employees and
guards, professional employees, and supervi-
sors as defined in the Act.
ALUMBAUGH COAL CORPORATION
DECISION
STATEMENT OF THE CASE
THOMAS E. BRACKEN, Administrative Law Judge: These
consolidated cases, consisting of an unfair labor practice case
and a representation case, were heard before me in Somerset,
Pennsylvania, on March 20-23, and April 10-14, 1978. The
charge in Case 6-CA-10559 was filed on September 13,
1977,' and the complaint was issued on December 22 and
amended at the hearing. The complaint alleges that Alum-
baugh Coal Corporation (herein called Respondent, the
Employer or the Company) violated Sectioon 8(a)(1), (3),
and (5) of the National Labor Relations Act, as amended
(herein called the Act.) On January 4, 1978, Respondent
filed its answer, denying the material allegations of the
complaint.'
'All dates are in 1977, unless otherwise stated.
"Thereafter, the following pleadings took place. On January 6, 1978,
Respondent filed a motion for a bill of particulars. The General Counsel, on
January 26, 1978, filed a limited answer and memorandum in opposition to
Respondent's motion for a bill of particulars. By Order dated January 26,
1978. Respondent's motion was granted, in major part, by Associate Chief
Administrative Law Judge Charles W. Schneider. On Febraury 27, 1978, the
General Counsel filed a request for special permission to appeal a portion of
Judge Schneider's Order and on February 28, 1978, filed a partial bill of
particulars. By telegram dated March 21, 1978, the Board denied the General
Counsel's request. At the hearing, the General Counsel supplied the
information to Respondent that she had previously refused to provide in her
response dated February 28, 1978.
'The appropriate collective-bargaining unit, as set forth in the Decision and
Direction of Election, is:
On July 8, United Mine Workers of America (herein
called the Union the charging Party or the UMW) had filed
a petition for a representation election in Case 6-RC-791 1.
Pursuant to a Decision and Direction of Election dated
August 9, an election was held on September 7, in a unit
found by the Regional Director to constitute an appropriate
bargaining unit.' The tally of ballots served upon the parties
following the election showed that of the 24 valid votes
counted, 6 were cast for the Union, and 18 were cast against
the Union, and I ballot was challenged. The challenged
ballot was not sufficient in number to affect the results of the
election. On September 13, the Union filed timely objections
to conduct affecting the results of the election. By letter
dated December 19, the Union withdrew Objections 1, 4, 5,
7, 8, 10, I 11, and 12. In the remaining objections the Union
alleged, inter alia, that the Employer promised employees
benefits, threatened employees with closure or shutdown of
its operations, created the impression of surveillance of its
employees, and threatened employees with the termination
of their employment. On December 28, the Regional
Director ordered that a hearing be held on the Union's
remaining objections and consolidated the unfair labor
practices and representation cases for purposes of hearing,
ruling, and decision by an Administrative Law Judge. The
objections were substantially identical to certain allegations
of the complaint.
At the hearing Respondent moved to dismiss the com-
plaint and the objections on the grounds that the participa-
tion of Attorney Ronald J. Zera on behalf of the Charging
Party was a violation of Section 102.119 of the Board's Rules
and Regulations4 and so tainted the entire proceedings as to
deny Respondent due process.
Zera had been an employee of the Board at Region 6 at
the time the charge was filed, September 13. Subsequently,
he left the Board and become an associate of Kenneth J.
Yablonski, counsel for the Charging Party. Zera did not
participate in the hearing before me, and the record discloses
that he participated in the case in two instances. Sometime
between the date of the election and September 27, he met
with employees Kenton "Mick" Roberts and Robert M.
Snyder and discussed the facts of the case. On December 19,
he transmitted a letter to the Regional Office, withdrawing
certain objections. The motion was denied on the bases that
Zera's actions were minimal and had not so tainted the
hearing as to deny Respondent due process of law and that
the hearing was not the proper forum to consider any
disciplinary proceedings. Respondent renewed the motion in
its brief. Upon the record in this case, and for the reasons
All production and maintenance employees and truckdrivers employed
by the Employer at its mining operation located in Kantner, Pennsylva-
nia: excluding all office clerical employees, and guards, professional
employees, and supervisors as defined in the Act.
'Sec. 102.119 states:
Prohibition of practice before Board of its former regional employees in
casespending in region during employment. -No person who has been an
employee of the Board and attached to any of its regional offices shall
engage in practice before the Board or its agents in any respect or in any
capacity in connection with any case or proceeding which was pending in
any regional office to which he was attached during the time of his
employment with the Board.
896
ALUMBAUGH COAL CORPORATION
stated at the hearing, I adhere to my ruling made at the
hearing and deny the motion.
Issues
The issues to be decided are:
1. Whether Respondent violated Section 8(a)(1) of the Act
by coercively interrogating employees concerning their
union activities and sympathies, by solicitation of employee
grievances, by threats of cessation of operations, by creating
the impression of surveillance, by requesting the withdrawal
of authorization cards, by threats of discharge, and by
promising and granting certain employee benefits to dis-
suade employees from selecting the Union as their collective-
bargaining representative.
2. Whether Respondent violated Section 8(a)(3) and (1) of
the Act by terminating Roger Bouch. its employee, because
of his membership in and activities on behalf of the Union.
3. Whether the election in Case 6-RC-7911 should be set
aside.
4. Whether the Union, on or about May 2, possessed valid
and authentic authorization cards executed by a majority of
the employees in the appropriate unit.
5. Whether Respondent should be ordered to recognize
and bargain with the Union.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of the
briefs filed by the General Counsel, the Company, and the
Union, I make the following:
FINDINGS OF FACT
I. JURISDICTION
The Company, a Minnesota corporation, is engaged in the
strip mining of coal at its sole place of business, located in
Kantner, Pennsylvania. During the 12-month period prior to
issuance of the complaint, Respondent shipped coal valued
in excess of $50,000 directly to points located outside the
Commonwealth of Pennsylvania, and during the same
period Respondent received goods and products valued in
excess of $50,000 directly from points located outside the
Commonwealth of Pennsylvania. The Company admits, and
I find, that it is an employer engaged in commerce within tie
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Alumbaugh Coal Corporation, Respondent, is engaged in
strip mining and the sale of coal from premises located in
Kantner, Pennsylvania, while its office is located in the
nearby town of Friedens.' It is a wholly owned subsidiary of
Donovan Construction Company, whose corporate head-
quarters is located in St. Paul, Minnesota. Prior to becoming
a Donovan subsidiary in 1973, Respondent had been owned
and operated by members of the Alumbaugh family for over
40 years. Joseph Method, a veteran employee and corporate
official of Donovan, became Respondent's president at its
purchase, with overall responsibility for its operation.
Edward Alumbaugh, who had been a part owner when the
mine was family operated, became a vice president and
superintendent, supervising the employees in the pit and the
delivery of coal. William Hunter, Alumbaugh's son-in-law
and also a former partner in the family company, also
became a vice president and superintendent, responsible for
supervising the stripping of the overburden of the coal and
loading the coal into off-the-road trucks. Robert Henry is a
third vice president, and superintendent in charge of safety
and engineering, having been with the Company for only a
few years. Ron Hunter is Respondent's assistant secretary-
treasurer, performing accounting and clerical duties in the
office in Friedens.
Respondent leases four parcels of land, while owning one
small parcel of 160 acres. In strip mining this land, topsoil is
removed by bulldozers, front-end loaders, and draglines and
stockpiled by very large off-the-road trucks, referred to as
"Eucs." Overburden, which is the underlying rock strata
that have been drilled and dynamited, is next removed and
stockpiled by the same equipment. At this point, the coal is
dug out with a power shovel or front-end loader and
transported to purchasers in conventional on-the-road
trucks. The overburden is hauled back and dumped in the
pit, with the topsoil then being returned and spread over the
property, in an effort to return the land to its original
condition.
In the performance of these stripping operations during
1977, Respondent employed between 23 and 26 men in the
classifications of dragline operators, shovel operators, bull-
dozer operators, drillers, front-end loader operators, off-the-
road truckdrivers, on-the-road truckdrivers, oilers, mechan-
ics, welders, laborers, and carpenters. However, as stated by
Respondent in its brief, the work of employees does not
strictly adhere to job classifications. For example, employees
from the mine remodeled Respondent's office and several
company-owned apartments. In the operation of the equip-
ment, the most skilled employees were dragline operators.
Next in skill were bulldozer operators and drillers, followed
by front-end loader operators, truckdrivers, and oilers.
Pitmen, also called laborers, were the least skilled, as they
performed manual labor with pick and shovel.
B. Commencement of Union Interest
In late February and early March, Roger Bouch, an
employee of Respondent since the previous May, discussed
the United Mine Workers of America with other employees.
On or about March 8, Bouch, a former member of the
UMW, telephoned Secretary-Treasurer Walt Harris at the
UMW's district office in Ebensburg. Bouch and Harris had
worked as coal miners at another mine prior to Bouch's
employment with Alumbaugh. Harris thereupon instructed
' All towns are in Pennsylvania unless otherwise stated.
897
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
two district 2 organizers, John Horvath and Robert Mazer-
ik, to contact Bouch." On or about March 31, Horvath and
Mazerik first met with Bouch at his home in Somerset.
Bouch told them that some of Respondent's employees were
interested in bringing in the Union. The two organizers then
explained generally to Bouch their organizing process.
Mazerik advised Bouch that he and Horvath would make a
survey of the situation to see if an organizing campaign was
feasible and requested that Bouch secure for them as many
names and addresses of Respondent's employees as possible.
In early April the survey was conducted, chiefly by
Mazerik, which consisted of securing such background
information as tonnage of Respondent, the names of custom-
ers, the places of shipment, kind of equipment used, and the
number of employees. On or about April I 1, the organizers
received permission from the Union to commence an
organizing campaign among Alumbaugh's employees. Later
that day the two organizers telephoned Bouch and requested
that he have some employees at his house the next night.
C. The Signing of Authorization Cards
On the evening of April 12, a Tuesday, Horvath and
Mazerik again went to Bouch's house and met with him and
two other employees, David Swartzwelder and Robert
Snyder. The two organizers explained to the three employees
how their organizing drive would proceed and answered
questions concerning the Union and its functioning. A
packet of nine professionally printed pamphlets extolling the
virtues of the UMW and the benefits contained in its
National Bituminous Coal Wage Agreement of 1974 was
presented to each employee. There was a general discussion,
and then questions were asked by the employees about such
matters as hospitalization benefits, rates of pay, vacations,
and dues. The organizers gave each employee the regular
UMW card, which reads as follows:
AUTHORIZATION FOR REPRESENTATION
I, the undersigned employee of [Company] authorize
the UNITED MINE WORKERS OF AMERICA to represent
me as exclusive collective bargaining agent in all
matters pertaining to wages, hours, terms, and condi-
tions of employment. This authorization cancels any
similar authority previously given any other person or
organization.
The cards were read by the three employees, and their
meaning and contents were discussed, with the organizers
advising them that the card authorized the UMW to
represent the employee as his bargaining agent. The organiz-
ers explained to the employees that, if a majority of
employees signed the authorization cards, the Union would
send a demand letter to the Company for recognition, and, if
the Company did not recognize the Union, then a petition
for an election would be filed. Bouch, Snyder, and Swartz-
welder then each filled in and signed a card and returned
these to the organizers. Horvath and Mazerik then placed
' Horvath and Mazerik had been working as organizers for the UMW for
approximately I year prior to this campaign. Both men had worked as coal
miners for many years before becoming professional organizers and were
solid, credible witnesses.
*These cards and some of the other signed cards also contain the initials of
their initials and the date on the witness line of each card.
(G.C. Exhs. 2-4.)'
The organizers then gave each employee three or four
blank cards and requested that they get them signed. Later
that evening, Snyder saw his brother-in-law Merle Flick and
gave him one of the blank cards. Snyder saw Flick read it,
date it, and sign it. Not knowing that, under UMW
precedent, he was to sign the card as a witness, Snyder did
not do so, and he turned Flick's card over to Bouch on the
next day. Bouch then signed it as a witness.
On the following day, on the jobsite at lunchtime, Bouch,
Snyder, and Swartzwelder discussed the Union and the
signing of an authorization card with another off-the-road
driver, Larry Sturtz. On the next day, April 14, they met
again at lunchtime. Bouch and Sturtz were seated in one
Euc, and Snyder and Swartzwelder were in another, parked
side by side. A card was passed back and forth, with Sturtz
signing it as the other three employees watched and saw him
sign it. Bouch signed his name as witness and affixed the
date of witnessing as "4-14-77." Bouch later turned the
complete card over to Mazerik, who did not initial it, as he
had not seen Sturtz sign it.
On April 13, Horvath and Mazerik secured the signed
cards of James B. Livengood and James H. Dunbar. The two
organizers had gone to the home of Livengood in Meyers-
dale and found him ready to leave for town in his car. Upon
Mazerik's request, Livengood filled out the major blanks on
the card, signing it on the signature line. Mazerik and
Horvath initialed the card as witnesses, and Mazerik wrote
in "4-13-77" on the date line alongside Livengood's
signature and alongside their initials. Since Respondent in its
brief contends that Dunbar's card was not validly executed,
the execution of Dunbar's card is reviewed at length in
section V below.
On April 14, John "Pete" Tataliba met in the basement of
his home in Stoystown with the two organizers. Upon
reading the card, he filled in the blanks in major part,
signing his name on the signature line and dating it. On the
line above the words "Name (Print)" he printed Rosenbaum
& Yoder, this being the mine section of land that he was
actually working on for Alumbaugh. His mother, who was
also present, signed the card as witness. The General
Counsel also contends that Kenton L. Roberts executed a
card on this date, which Respondent denies. The validity of
Roberts' cards is also discussed in section V below.
On April 15, John Tataliba, the father of Pete Tataliba,
met with Horvath and Mazerik and questioned them about
hospitalization benefits and dues. On asking the organizers
what it meant to sign a card, he was told, "that leaves us as
[your] bargaining agent." The senior Tataliba then executed
the card as the organizers looked on, and Mazerik and
Horvath initialed the card as witnesses, inserting the date as
"4-15-77."
On April 20, Blair Lyons met in his home in Rockwood
with Horvath and Mazerik. Lyons executed an authorization
card in their presence. The two organizers then inserted their
initials on the witness line and dated it April 20, 1977. On
"G.O.," who was George O'Bush. a higher echelon union organizer. O'Bush,
who was also working on the Alumbaugh campaign, would initial cards
brought to him by these organizers. although he was not present when the
cards were actually signed.
898
ALUMBAUGH COAL CORPORATION
the same date, the organizers secured the executed card of
Howard Worsell of Stoystown. However, in a certified letter
dated May 3, 1977, Worsell wrote to Horvath as follows:
After reviewing all the documents and information you
presented to me, I would like to reconsider my position
and request that my signature card be voided.
Respondent contends that this is not a valid card, and its
validity will be reviewed in section V below.
The last of the 13 authorization cards secured during the
union campaign for the employees of Respondent was signed
by Millan M. Huzsek on May 2. The two organizers went to
his home in Stoystown, and met with him and his wife.
Huzsek signed the card as Horvath and Mazerik looked on.
Horvath then wrote in "May 2, 77" and the two organizers
signed it "R.M. & J.H. Horvath" and then wrote in "May 2,
77," on the dateline adjacent to Huzsek's name and on the
dateline adjacent to the witness line.
D. The Layoff of Roger Bouch
I. Bouch's period of employment
Bouch had been hired in May 1976, and on his first day of
employment he operated a bulldozer. William Hunter, who
was Bouch's superintendent, decided that "he wasn't too
good at it," and thereafter Bouch drove an off-the-road
truck,' hauling overburden and coal on the Company's
premises. As Hunter candidly admitted, Bouch was as good
a truckdriver "as any of them" and did not thereafter refuse
to work overtime or miss work. Bouch worked on Friday,
April 15, without incident.
On Monday, April 18, Bouch reported to work at the
minesite at his regular time, ready to commence driving the
at 7 a.m. Shortly thereafter, President Method arrived and
called Bouch over to his vehicle to talk to him. Bouch
testified that Method said he was laying him off. Bouch did
not ask him why, but did ask him for how long a period.
Method then told him that they were going to tear the trucks
down and that he did not know how long that would take.
Bouch denied that he was told by Method to look for other
employment.
According to Method, he told Bouch: "I am going to have
to lay you off. I have too many men on the job. As you can
see, Worsell's back to work today. You're the last man here
and you're going to have to be the one that has to go."
Bouch then asked him how long he would be laid off, and
Method replied that he did not know how long he would be
off and suggested that he look for another job. Method
further testified that Bouch then said, "Does this have
anything to do with the Union men at my house?" Method
replied that he did not know anything about any union men
at Bouch's house. The brief conversation of several minutes
then ended.
A dozer operator was paid 75 cents an hour more than an off-the-road
truckdriver.
2. Respondent's reason for
layoff and termination of Bouch
Method testified that in the week prior to Bouch's layoff
he had discussed with William Hunter that Howard Worsell,
a bulldozer operator, who had been hospitalized and off
work for 5 weeks, would soon be coming back to work and
that there would not be enough work for two drag shifts.
Hunter testified that no decision was made as to solving the
problem. On the following Saturday, Method was working
alone in the office when Worsell stopped by and advised him
that he would be returning to work on Monday. According
to Method, he then determined to lay Bouch off, because he
would have too many men on the job. Method then planned
to return Worsell to his bulldozer, which had been operated
during Worsell's absence by D. Croyle, who was one of the
four regular dragline operators. Method further testified
that, around the time Worsell became ill, the Company
could not use four dragline operators because of the location
of the coal, and he had transferred Croyle to Worsell's
bulldozer. Dragline operators were the most skilled and
valuable employees on the job, and the Company could not
afford to take the chance of losing them by laying them off,
so he regularly transferred dragline operators to other jobs
when work was slow for them. Method also admitted that at
times he transferred other employees to jobs other than their
classifications.
Method's testimony that Worsell returned to work on
April 18 and operated a bulldozer was uncontradicted, and I
credit it. Method then assigned Croyle to drive Bouch's Euc.
Neither Worsell nor Croyle was called to testify by any
party.
3. Subsequent events touching on Bouch's separation
On April 19, Respondent received from the Pennsylvania
Bureau of Employment Security a "Notice of Application
and Request for Separation Information" concerning
Bouch's separation from the Company (G.C. Exh. 63).
Method filled in the "Employer's Statement" and under
"Reason for Separation or Partial Unemployment" inserted
an "X" in the box "Lack of Work." Item 4, "Type of
Separation," was followed with matching boxes to be
checked: "Permanent," "Indefinite," "Temporary." Method
saw these boxes that were to designate the type of separa-
tion, but he did not check any of them, because, he testified,
"On April 19, I did not know what type of separation this
was."
Sometime in June, Bouch came to the office parking lot
and talked to Method about the possibility of recall. Bouch
was advised that there was no work in sight and that he
should look for another job. Bouch did in fact look for other
work and placed an advertisement in a local newspaper on
June 11. He also worked for Cardinal Mining Company for
the weeks ending June 18 and 25 and July 2 as a bulldozer
operator.
In early August, Bouch went to the home of William
Hunter and asked him for a job reference for another mine.
Hunter told Bouch to have the boss call him, and Hunter
899
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
admitted that he would have given Bouch a good reference.
Bouch testified that he asked Hunter when he would be
recalled and that Hunter replied that he had no idea if he
were going to be called back and also stated that he "had no
idea that [Bouch] was going to be laid off." Hunter denied
saying that he had no idea in April that Bouch would be laid
off, but he did admit that, at the time of this visit, he did not
know that Bouch had been terminated and would not be
recalled.
4. Credibility resolutions
Throughout this case there were testimonial conflicts in
the sharpest manner between the testimonies of the General
Counsel's witnesses and Respondent's witnesses. Not only
Bouch was an evasive, shifty witness, but his actions before
the Pennsylvania Bureau of Employment Security, as herein-
after set forth, show him to be an untrustworthy witness,
and I do not generally credit his testimony. The remaining
witnesses presented by the General Counsel impressed me as
sincere, blunt, minimally educated, honest coal miners,
telling the truth as best they would recollect it and letting
the chips fall where they would. They withstood long,
searching, and grueling cross-examination, while the hearing
was conducted under the rule of exclusion of witnesses.
Also, these men testified against Respondent while still in its
employ, further supporting their credibility.
Respondent's witnesses who were executive employees of
the Company, with the exception of William Hunter, did not
impress me as witnesses in whose testimony I could have
confidence as to its accuracy and reliability. Rather, I
received the strong impression that they were advocates,
artfully trying to furnish answers that helped their cause
rather than trying to state the facts as they actually
remembered them. Method was particularly adroit in this, as
his testimony about Robert Peterman disclosed. On direct
examination, upon being shown an application for employ-
ment filled in by a Robert Peterman on April 20 for the
position of "welder or laborer," Method was asked, "Was
this applicant hired?" His answer was "This applicant was
not hired because of the area that I have circled on the
form." Method had circled the caption "Have you ever been
convicted of a crime?" He then testified that he had
contacted Peterman's references and had learned that he had
been so convicted. On the bottom of the reverse side of this
application was the written notation by Method "Tried for
one day-paid in cash." The Company's own record is clear
that Peterman was hired and worked as an employee for at
least I day, for which he was duly paid I day's wages.
William Hunter was the clear exception to this pattern of
testimony, and at various times on cross-examination he
forthrightly furnished answers that supported the testimony
of the General Counsel's witnesses and harmed the position
of Respondent.
An amount of $27.15 per month was deducted monthly for dependent
coverage from the pay of employees who authorized such deductions. All
other costs of coverage were paid by the Employer.
'" Bouch's prehearing affidavit, detailing this event, showed that the original
date written therein was mid-March. This date had been crossed out, initialed
by Bouch, and had inserted above it "April 12 and April 18."
5. Concluding findings on Bouch's termination
Respondent in its brief states correctly that in an 8(a)(3)
case an employer must have knowledge that the employee
was engaged in union activity and argues that Respondent
had no such knowledge. The General Counsel admits in her
brief that "there is less than direct evidence of the Employ-
er's knowledge of Bouch's union activity on the date of his
layoff." However, the General Counsel argues that Respon-
dent had knowledge of Bouch's prounion sentiments and
that the inference that the Company had knowledge of his
union activity is justified by the application of the "small
plant doctrine" as expressed in Wiese Plow Welding Co.,
Inc., 123 NLRB 616(1959).
The General Counsel's contention as to the Company's
knowledge of Bouch's prounion sentiments was based on a
conversation that took place between Bouch and Ronald
Hunter. Bouch testified that between April 12 and 18 he
went into the Company's office and informed bookkeeper
Hunter that he wanted to cancel his hospitalization insur-
ance, because his wife's plan was better.' Bouch then
contended that Hunter started a conversation about the
Union and that he responded to Hunter by merely stating
that the Union had "good points and bad points."
Hunter agreed that Bouch had come to him to cancel the
dependent coverage, but denied that the visit took place
between April 12 and 18 and denied that he started a
conversation about the Union or that the Union had been
discussed by Bouch. Hunter placed the date of the conversa-
tion in February, and company records support his memory.
Respondent Exhibit 27, a cancellation notice to Prudential
Insurance Company dated March 16, 1977, shows that
Bouch's dependent coverage dropped as of March 1.
Bouch's earning record form shows that the last pay period
in which deduction was made for the $27.15 dependent
coverage was that ending February 6. 1 therefore do not
credit Bouch's version of the conversation and find that it
occurred in February'° and that Respondent could not know
of Bouch's prounion sentiments from this conference.
I now turn to the General Counsel's second position, that
the facts of this case merit the application of the small plant
doctrine. The Board has long held that, absent direct
evidence as to Respondent's knowledge of union activity,
such knowledge may be inferred when statements and
conduct constituting statutorily protected activity have
taken place within a small facility, such as Respondent's."
Bouch's testimony that he talked about the Union to
employees on the minesite in March was corroborated by
Pete Tataliba. On April 12, the organizers had been to his
house and met with him and two other employees, Snyder
and Swartzwelder. On the following 2 days, Bouch had
openly discussed union organizing on the minesite, during
lunch hour, and while sitting in company trucks with
Snyder, Swartzwelder, and Sturtz. As a result of these
conferences, Sturtz signed a union card and turned it over to
Bouch. The smallness of the plant, coupled with Bouch's
activity in the open during working hours and the close
" Respondent on April 18 had a total of 30 employees. Method,
Alumbaugh, Henry, and Hunter regularly patrolled the minesite in their
vehicles, closely observing the 25 production and maintenance employees in
the performance of their work duties.
900
ALUMBAUGH COAL CORPORATION
supervision, makes it likely that the Employer observed this
activity, and I so find.
It is well established that an employer may terminate an
employee for any reason, good, bad, or indifferent, without
running afoul of the Act, providing it is not motivated by
unlawful considerations. It is also true that the burden of
proving discrimination rests always on the General Counsel,
and in this instance I find that the General Counsel has met
that burden.
The record is clear that Bouch was a competent off-the-
road truckdriver whose work record with the Company was
unblemished. Suddenly and without warning he is told that
he is being laid off on a Monday morning, following a week
in which he had engaged in union activity on the minesite.
Method's reason for laying Bouch off does not stand
scrutiny. His statement to Bouch that he was the last man
hired was clearly erroneous, as the Company's own record
(G. C. Exh. 59) shows that Albert Berkey was hired on
February 28, 1977, 9 months after Bouch's date of hire.
Berkey was a laborer, doing work which could have been
done by Bouch, but Bouch was not offered the opportunity
to replace Berkey upon Worsell's return. Also, the fact that
Method hired Robert Peterson, a welder-laborer, 2 days
after Bouch's layoff indicates that there was no real
slowdown of work.
While Respondent's brief admits that Method told Bouch
he was being laid off, Respondent argues that Method really
meant that he was terminated.' I also find that he was
terminated on April 18, but Method concealed this from
Bouch, stringing him along by implying that it was a routine
layoff from which the employee could expect to be recalled,
as Method told Bouch that he did not know at that time,
how long he would be off. Method also concealed this from
the Pennsylvania Department of Employment Security by
failing to check the "Permanent" box under "Type of
Separation." Again, 6 weeks later, Method concealed from
Bouch that he had been terminated when Bouch approached
him on the company parking lot and asked if there were any
work. Method stalled and replied, "[N]o, nothing has
changed." When Bouch pressed him, asking if there would
be work in the future, Method again did not tell him that he
had been terminated, but merely stated that he "didn't have
any work in sight." There was work in sight, as several
weeks after this conference Respondent hired G. Shifflett as
a laborer, bringing its work force up to the same number as
that at the time when Bouch was working.
Respondent's union animus is clearly shown by the many
illegal acts of interrogation, restraint, and coercion per-
formed by its supervisors commencing on April 19, as
subsequently set forth herein. Such postdischarge conduct is
relevant in determining Respondent's motives, and I so find.
Springfield Dodge, Inc., 218 NLRB 1429 (1975); Angwell
Curtain Company, Inc. v. N.L.R.B., 192 F.2d 899 (7th Cir.
1951).
Accordingly, and for all the foregoing reasons, i.e., the
precipitate nature of the termination of a competent truck-
driver with a good record, its following hard on the heels on
t Method was a veteran executive in the coal industry as well as the
construction industry, had dealt with nonunion and union employees on
former jobs, and obviously knew the difference between a layoff and a
termination. While he first testified that layoff and termination have similar
Bouch's union activity, the hiring of a new employee 2 days
later, the application of the small plant doctrine to show that
Respondent knew of Bouch's union activities, the strong
union animus of Respondent, and the concealing from
Bouch that he had been terminated convinces me, and I find,
that Respondent's reason for the termination was a pretext,
that Bouch was discharged because of his union activities,
and that Respondent thereby violated Section 8(a)(3) and (1)
of the Act. Marsden Electric co., Inc., 226 NLRB 1097
(1976); Kimi Sales, Ltd., 223 NLRB 1212 (1976).
E. The Alleged Violations of Section 8(a)(l); Findings
and Conclusions With Respect Thereto
The General Counsel alleged that shortly after Bouch's
discharge Respondent's president and its three vice presi-
dents engaged in some 26 acts of interference, restraint, and
coercion. These allegations are denied in their entirety by
Respondent. The evidence as to these issues is set forth
below.
1. Method's April 19 meeting with Roberts
On the evening of April 19 the wife of Kenton "Mick"
Roberts answered a phone call at her home from President
Method for her husband. Upon returning home from nearby
neighbors, Roberts called Method back and, upon request,
went to the company office. In some prior years Roberts had
been called at home to be told about a job assignment, but he
had never before been called at his home to come to the
office after working hours.
Roberts testified that at or about 7:30 or 8 p.m. he walked
into the office, where Method was sitting at his desk.
Method proceeded to tell him that he had a problem and
that he thought he was the last one to know about it.
Method then asked Roberts if there had been any union
organizers around to see him, and when Roberts answered,
"yes," Method asked if they had given him a card to sign,
and he again answered, "yes." Method then stated that he
did not think there was anything wrong on the job and asked
Roberts what was wrong. Roberts told him that it was
wages, that 4 years previously he had promised the employ-
ees to make them the highest paid miners in the county, and
that he had not done it. Roberts added that the people were
complaining about the hospitalization plan, and he, himself,
was dissatisfied in that he had worked there for 10 years and
had not received a vacation. Method then replied that the
employees would be given a vacation, but he was not sure
when it would be. Method further stated that the Company's
hospitalization was the best that money could buy and that
the only persons that he felt were complaining about it were
Bouch and Swartzwelder. Method then pointed to the
calendar and told Roberts that on the 22d the employees
would have a raise. Roberts then reminded him of a meeting
between them 3 weeks previously in which Method did not
mention a raise. Method then replied," "Well, I thought I
told you." Roberts testified that Method went on to state
meanings, he finally admitted that when a person is terminated "that means
they are without employment, yes."
" At this meeting Roberts had asked for and received permission for a day
off to go to a flea market. He had also asked for a raise and was told that there
(Continued)
901
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that "in a month or so, if things kept on going the way they
were, we would have another raise, and again, this meet-
ing-he stated that if the job went union, he would shut it
down, and he felt he could outlast the men." During the
conversation, the name of Jim Livengood came up, and
Method told Roberts that he knew Livengood was for the
Union, because he lived with a lot of friends who worked at
Penn Pocahantas, and then added, "[G]et serious, you have
a friend over there too." Roberts then told Method that, if
he thought that Roberts had "brought the Union in," he was
way off. Bouch's name was not mentioned in this regard.
Method testified that Supervisor Ed Alumbaugh had
informed him on the afternoon of April 19 that he had heard
from one of the men on the job that employees were talking
union and that Roberts seemed to be the "big mover."'"
Method admitted that he became "concerned" and then
called Roberts to come in. After Roberts sat down, Method
testified to the following events:
I told him that I understood that I had a problem and
that union organizers or union activity or union talk
was coming from the job and that I had heard that he
was the key person.
Method admits that Roberts did tell him that he had a
problem, but that he was not the key person. Method denied
that he asked Roberts if he had seen any union organizers or
if he had been given or signed a union card. Method claims
that he merely told Roberts that, if organizers were in the
area, they would probably be by to see him and then ask him
to sign a card and that this was a serious thing. Method
admitted that Roberts complained about wages, vacations
and insurance. Method then told him that he was "plan-
ning" a wage increase, that "as a matter of fact" he had put
it into effect on April 4, and that it would be in the next
paycheck. Method also testified that he told Roberts that the
Company had received some orders, business was picking
up, and, if it continued to pick up, they would implement
another increase in a month or so. When Roberts told him
that that was fine, but that it failed to do anything about the
vacation or insurance problem, Method advised him that the
Company was going to implement the vacation this year.
When Roberts pressed him about the insurance plan,
Method advised him that nothing would be done as the
Company had a good plan. Method denied stating at that
meeting, or at any other time, that the job would shut down
if it went union.
As previously found, I have generally credited the General
Counsel's witnesses over those of Respondent, and, in the
points of difference between Roberts' testimony and Meth-
od's, I credit Roberts. Never before in Roberts' 4 years of
employment had Method seen the need to summon him
from his home in Somerset to the office in the evening.
However, on this date Method did not have mere mining
problems, but something far more important problems
concerning a union's attempt to organize Respondent's
employees. Roberts was not only his top skilled man, but
also a leader, and Method turned to him as the "big mover,"
was no way that a raise could be given, that profit sharing and the pension
cost a lot of money, and that the Company could not afford a raise at that
time. Method admitted that he had such a conversation with Roberts about a
day off and the request for a raise. The president testified that it was not his
policy to give individual raises.
the "key," to try to learn how to solve the problem to defeat
these organizers in their attempt to unionize his employees.
Method's testimony that he gave this street-wise dragline
operator the advice that, if there were organizers in the area,
they would probably be by to see him is incredible. Method
plainly wanted to know what the problems were, and
Roberts told him right from the shoulder: low wages,
inferior hospitalization, and no vacation. Method right then
and there promised to solve two of these three problems, by
promising that a vacation would be given that year and
promising that a wage increase would appear in the
employees' April 22 paychecks and that in a month or so
probably another raise would be granted. Method did not
promise any improvement in the hospitalization plan, and it
is to be noted that he did not have the power to do so, as
Donovan employees at all of its facilities were covered by a
home office master policy with Prudential Insurance Com-
pany. I also find that Method threatened to shut the mine
down if the employees became represented by a union.
I find, therefore, that Method coercively interrogated
Roberts about his union activities, unlawfully solicited
employees' grievances in order to dissuade these employees
from engaging in union activity, promised benefits of wage
increases and a vacation, and threatened to close the mine
down in order to dissuade Roberts and other employees
from engaging in union activity and thereby violated Section
8(a)(1). I do not find that Method's statement that he knew
Livengood was for the Union because he lived with friends
who worked at Penn Pocahantas, and that Roberts had a
friend over there too, amounts to an impression of surveil-
lance. Method had lived in the area for over 4 years, and
there were innumerable legal and routine ways that he could
have learned that Livengood and Roberts had friends at that
mine.
2. The general meeting of April 29
The General Counsel alleges and Respondent denies that
at a meeting on April 29 Respondent, by Method, solicited
employees' grievances, threatened the closure of the mine,
created the impression of surveillance of its employees'
union activity, requested the withdrawal of authorization
cards, and unlawfully promised benefits and announced the
granting of benefits.
On Friday afternoon, between the working hours of 4 and
4:30 p.m., Method held a meeting of all employees in the
barn on the minesite." Supervisors Henry, Alumbaugh and
Hunter were also present. Henry opened the meeting,
speaking briefly about safety. Method then spoke to the
assembled employees for the balance of the half-hour
meeting. Method testified that he told them that he was
disappointed to hear that there were organizers around and
that they had to talk to a third party to talk to him. He told
them that organizers would probably be around to try to
have them sign cards and that signing a card was a very
serious thing and that in so doing, sometimes you give away
certain rights which you sometimes wish you had back." He
" Roberts physically was a small man, but obviously a leader. He was a
most impressive witness. answering questions rapidly and straight from the
shoulder. without equivocation or evasion.
'' The only employee absent was Roberts who was offto the flea market.
902
ALUMBAUGH COAL CORPORATION
denied that he had told them that, if they wanted to get their
authorization cards back, all they had to do was come to his
office and he would tell them how to do it. Method then
testified as follows:
I reviewed the benefits which had been implemented
since Donovan entered the picture, the insurance
program, the profit sharing program, the pension
program, the holiday program. I told them that on their
pay check they received the prior week they would have
noticed an increase on that check.
I told them that there would be another increase if
business would continue in a month or so. I advised
them then that the vacation plan would be implemented
this year and that the week of July 4th had been
selected as the week for vacation, selected because it
was traditional in the area, selected because it would
make a longer week for them due to the fact that July
4th was a Monday and they would have the weekend
too.
I tried to inform them that it was our plans not to
purchase any additional new equipment. I tried to
inform them that we had received an order for junk coal
and that this would have some bearing on our operation
if we could continue to maintain that order.
I concluded the meeting by telling them that I was
going to be gone the following week or I was going to go
out west to look at some coal and I then said that I
would let their conscience be their guide.'"
At the end of Method's speech, no questions were asked
by anyone, and the meeting ceased at 4:30 p.m., the regular
quitting time.
The General Counsel produced four witnesses who
testified as to their recollection of what Method said in his
speech. Snyder testified that Method told them they were
going to receive two raises, one effective at that time, and
one about a month later "if everything went all right and
coal production was all right." Swartzwelder and Livengood
testified that Method said he was going to give them 25-cent-
an-hour raises,' while Pete Tataliba testified they were to
receive two raises. All four employees testified that Method
announced that they would receive a week's paid vacation
that summer.
All four employees also remembered that Method dis-
cussed union cards, Livengood testifying that Method
advised them that some employees had signed cards and
Pete Tataliba testifying that Method told them that by
signing a card the employees gave up the right to bargain for
themselves. All four employees testified that Method then
told them, if anybody wanted his card back, he should come
to see him or come to the office, and he would take care of it
for him. Swartzwelder testified that Method stated that if the
Union came in he would close the job down, whereas
Livengood's recall was that Method said he could not
operate under "Union scales."
'" Method testified that his trip consisted of a stop in Pittsburg to pick up
some tools, a stop in Ohio to drop off a blasting machine, inspection of a mine
in Iowa that Donovan was considering purchasing, and a meeting at Donovan
Corporation headquarters in Minnesota.
'? Of the 20 hourly paid employees who recived increases in April and May.
14 received 25-cent-an-hour raises in both months, apd 4 of the remaining 6
employees received a quarter increase in either April or May.
Three of the four employees, Snyder, Swartzwelder and
Tataliba recalled Method ending up the meeting by telling
them that he did not want to scare anybody, but he was
going out "west" to look at some coal.
Employees Snyder, Swartzwelder, Pete Tataliba and
Livengood were all credible witnesses and I find that
Method's speech was substantially as they described it. On
the foregoing facts, it is found that Respondent engaged in
interference, restraint and coercion of its employees in
violation of Section 8(a)(1) of the Act by Method's (1)
promising pay raises, (2) promising a week's vacation, (3)
requesting employees to withdraw their union authorization
cards, and (4) threatening the employees with a cessation of
operations. Method's concluding statement to his employees
that he did not want to scare anybody but he was going out
west to look at some coal was a thinly veiled threat of mine
closure that was readily understandable to these miners
assembled together in the Company's barn. Method did not
tell them that he was going to Pittsburg or St. Louis or to
Minnesota, where he also was going, but ominously closed
the meeting with the chilling statement that he was going
out west to look at coal. This was coal that obviously could
be used as a replacement for the Pennsylvania coal in the
event the employees continued their union activity.
3. The wage increases
Respondent admits that two wage increases were granted,
with the first effective April 4 and appearing in the
employees' paychecks of April 22 and the second effective
May 16 and appearing in the paychecks of June 3. However,
Respondent denies that the increases were promised or
granted to dissuade the employees from selecting the Union
as their collective-bargaining representative, contending that
the decisions to grant the wage increases were made before
Respondent had knowledge of any union activity.
Method testified that the decision to grant the first wage
increase "was made some time between March 31 and April
4." When asked what the basis was for making that decision,
he stated:
The first quarter at that time had just ended, we had
an opportunity to have a look at the first quarter
operations to somewhat project the second quarter
operation, the business was picking up. We came out of
the first quarter in better shape than we had thought.
Method further testified that the decision'" to grant a
second increase "was made right around the 10th of the
month." He stated that, when the books were closed for the
prior quarter, the first increase "appeared to be short," and
"It appeared that we could do better than what we did." He
also testified that the Company had gotten an order for some
really poor grade coal," which they had been stockpiling for
a long period of time.
Respondent argues in its brief that the granting of these
two increases was consistent with its past practices, wherein,
" The decisions to grant the wage increases were made solely by Method.
without any consultation with the vice presidents.
' This coal was referred to asjunk coal. The record does not disclose when
the order was obtained by Respondent. nor was any copy of such order ever
offered for the record.
903
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
since 1973, it had granted wage increases at different times
during the year. An examination of Respondent's Exhibit
48, a compilation of the nine wage increases granted by
Respondent, does not bear this out. The two increases
announced by Method at the April 29 meeting were at an
interval of I month and 12 days. The seven other increases
were at much longer intervals of time, one at I 11 months, one
at 7 months, three at 6 months, and two at 3 months, for an
average interval of 6 months between raises. Method's
testimony that "it's always been my philosophy that two
small increases have more impact than one large increase" is
clearly contradicted by the Company's past policy. In only I
of the 4 years prior to 1977 did Respondent grant more than
one increase per year, and that was in 1974.
Method's testimony that he made the decision on the first
increase between March 31 and April 4 conflicts with his
statement that the first quarter had ended and that he had
reviewed the first-quarter operations. Obviously, the records
for the quarter had not been compiled on March 31. In
explaining why he granted the second raise on April 10, he
stated that the books had just been closed for the first
quarter.
Respondent did not produce a single business record to
corroborate Method's testimony relating to his decision to
grant wage increases effective April 4 and May 16. Rather,
the facts show that out of the blue sky, at his first after-hours
meeting with Roberts, and learning that the main discontent
of the employees was their wages, Method first stated that he
had been "planning" a wage increase and then stated that, as
a matter of fact, it had already been put in effect on April 4,
15 days before this meeting with Roberts.
Method's ex post facto announcement of the wage in-
creases stands in stark contrast to his handling of the
announcement of the granting of paid holidays to the
employees of the Company. Respondent's Exhibit 5 is a
company bulletin, dated November 5, 1974, to all employ-
ees. In this bulletin Method summarizes a meeting he held
with the employees on November 2, 1974, in which they
expressed their preferred dates for holidays. It then informs
them that effective January 1, 1975, the Company would
grant six paid holidays per year, thus giving them almost 2
months' notice of the coming holiday benefit.
There can be no doubt that an employer's grant of
economic benefits to its employees for the purpose of
deterring them from engaging in union organizational
activity is in violation of Section 8(a)(1) of the Act. The
Supreme Court cogently stated in N.L.R.B. v. Exchange
Parts Co., 375 U.S. 405, 409 (1964), that the Act, and
particularly Section 8(a)(l):
. . .prohibits not only intrusive threats and promises
but also conduct immediately favorable to employees
which is undertaken with the express purpose of
impinging upon their freedom of choice for or against
unionization and is reasonably calculated to have that
effect. .... The danger inherent in well-timed increases
in benefits is the suggestion of a first 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.
The evidence presented in the instant case is clear that the
granting of the two wage increases and the vacation was
conceived and effectuated for the purpose of inducing
Respondent's employees to reject the efforts of the Union to
organize them. I therefore find that Respondent's granting
of the wage increases and vacation interfered with its
employees' exercise of Section 7 rights and hence violated
Section 8(a)(1) of the Act. Crown Zellerbach Corporation,
225 NLRB 911 (1976).
4. Events after April 29
a. The General Counsel further alleges in the complaint
various other violations of Section 8(a)(1) by Method.
Snyder and Swartzwelder each testified about a conversation
with Method while they were eating in the pit. Neither
employee was sure of the date of their conversation, Snyder
placing it in mid- or late April and Swartzwelder placing it
after the April 29 meeting but before the July 4 vacation.
Snyder testified that Method told them that they were going
to get two raises and that, if the job went union, he would
shut down and go west, as he could not mine under union
management. On cross-examination Snyder was very con-
fused as to what Method stated at the all-employee meeting
on April 29 and what he said in the pit. When Swartzwelder
testified about the pit meeting, he could only recall Method
stating that if the job went union, he would shut it down.
Method denied these allegations. Both of these witnesses
were vague and confused not only as to the date of this pit
meeting but also as to what was said. Synder, particularly,
blended what he thought Method said on this date with what
he said in his long speech on April 29 to all of the employees.
I therefore do not find that the General Counsel has met the
burden of proof as to these allegations, and I would dismiss
them.
b. General Counsel alleges that Edward Alumbaugh on
two separate occasions requested Snyder to withdraw the
authorization card that he had executed on behalf of the
Union. Snyder, when asked by the General Counsel if he had
any conversation concerning withdrawing authorization
cards, simply testified, "Yes, Ed Alumbaugh has asked me
after the meeting, and quite a few times, if I would come and
have my card withdrawn, and I told him that I would not."
Alumbaugh denied having any conversation with Snyder
about cards, only admitting that he talked to the men from
time to time. Alumbaugh was the most uncertain, evasive,
and contradictory of all Respondent's witnesses, and I do
not credit his testimony. For example, on cross-examination
he was asked the age-old trial question:
Q. Did you-have you talked over your testimony
with anybody before you came here?
A. No.
Q. You didn't talk over your testimony with Mr.
Wienrich [Respondent's attorney]?
A. No.
The hearing adjourned at 6 p.m., with Alumbaugh still on
the stand. The following morning Alumbaugh returned to
the stand for redirft examination, and he was asked:
904
ALUMBAUGH COAL CORPORATION
Q. (Mr. Weinrich)-did you speak with me prior to
this trial concerning incidents which you answered
questions about yesterday?
A. Yes, I did.
Q. On how many occasions?
A. Three or four times, I suppose.
Alumbaugh then proceeded to blandly contradict a series
of other answers he had given the day before while under
cross-examination. I do not find him to be a credible witness,
and I credit the testimony of Snyder, a plain, sincere,
straightforward coal miner. I find, therefore, that Alum-
baugh did request Synder to withdraw his signed union card,
thereby interfering with Snyder's Section 7 rights and
violating the Act.
F. Events Following Union's Request for Recognition
Following Huzsek's signing of an authorization card for
the Union on May 2, the Union's next event of record was
meeting it held on July I at a local restaurant, the Circle 219,
which nine employees attended. Following this meeting the
Union, by a letter dated July 6 to Respondent, requested
recognition as the collective-bargaining representative of the
Company's employees. On July 8 the Union filed a represen-
tation petition, Case 6-RC-791 I1, at Pittsburg with Region 6
of the Board. Since on or about July 11 Respondent refused
and continues to refuse to bargain with the Union.
On August 3 the company officials commenced an open
campaign against the Union, passing out the Company's first
handbills to the employees. Method prepared most of these,
and thereafter, on almost a daily basis up to the date of the
election, Method and the three superintendents distributed
handbills to employees out on the minesite. The General
Counsel does not contest the legality of the wording of these
handbills, but does assert that certain statements made by
company officials, as they drove around the facility and
talked with the employees, were violations of Section 8(a)(l).
The Union was also passing out literature during the same
period of time.
I. Threats
The General Counsel alleges and Respondent denies that
Respondent, by its supervisors, on and after August 3 at
various times threatened employees with cessation of opera-
tion if they selected the Union as their bargaining represen-
tative.
a. Roberts testified that on August 3 he was operating his
dragline when Alumbaugh and Hunter pulled alongside in
their truck. Roberts got down from his dragline, and they
informed him that they had some literature to give him on
the campaign against the Union. Alumbaugh handed him a
bulletin that referred to union dues and mentioned a $100
initiation fee. They then told him that the Company had
been in the Union in the fifties and had gone broke because
of the Union "and that Joe [Method] would not run the job
under the Union, he would shut it down before he would run
it [Union]." Thereafter, Alumbaugh stated that if the men
went union the officials would run the mine themselves, that
he would run the dragline, Bill Henry would run the
bulldozer, and Dave Alumbaugh would load the coal.
Alumbaugh admitted that he and Hunter discussed union
dues with Roberts, but testified that he told Roberts that,
even if the vote "went union," there had to be negotiations
between the Company and the Union to determine wages.
When Roberts replied that if the Union did not get what it
wanted it would "strike the Company and shut it down,"
Alumbaugh testified that he told Roberts:
Twenty years or so ago we was in a union, we had a
deep mine and we was in the union and we run it awhile
that way and we went in the red and we couldn't
continue to run and we had to shut down . . . I also
told him that this time we wouldn't shut down . . . we
could probably run the job ourself, Bill and I and David
Alumbaugh and I could probably run the dragline, I
did it before. Bill could run the dozer and Dave could
do the loading of coal and cleaning.
William Hunter denied that he or Alumbaugh told
Roberts that Method would not run the job union and that
he would shut it down first. Hunter had a very clear
recollection of this long conversation with Roberts, which
was on the first day of the Company's active campaign. The
union constitution, initiation fees, negotiating, and strikes
were discussed by all parties. After Alumbaugh stated that
the Union would have to negotiate with the Company,
Roberts replied that, if the parties could not get together on
the contract, the Union could bring in pickets and shut the
job down, just as it had shut a mine down in Virginia for 10
months. According to Hunter, it was at this point that
Alumbaugh made the statement quoted alone about not
closing down, and running the job themselves.
I credit Hunter's version of the conversation, as he had a
much more detailed recall of what was said, whereas
Roberts' version was admittedly sketchy. I find that Alum-
baugh's statement that they would not close down in the
event of a strike was not a violation of the Act, and I would
recommend that this allegation of the complaint be dis-
missed.
b. On the following day, August 4, Roberts was again
working when Robert Henry came to his dragline with some
company literature. Roberts testified as follows:
[H]e asked me if I knew how much royalty would to be
paid to the Union, and I say yes, I did, and he stated
two hundred thousand dollars, and he said that was too
much, that Joe could not afford that, that he would
shut the job down before he would do that.
Roberts stated that his reply was: I said that the
Company had more to lose than I did because Bob
Henry and Joe are in-plants in this county, I am not, I
worked here all my life, and I worked here, and I intend
to stay here until I want to move, but if the Company
shuts down, you guys will have to move and Henry
agreed.
On cross-examination Roberts was asked if he knew how
much Respondent would have to pay in royalties in a year
and how he knew. Roberts replied. "It's two dollar a ton,
and Joe said he loads a hundred thousand tons. It would be
two hundred thousand dollars."
Henry admitted that on this occasion he talked to Roberts
about the payment of royalties:
905
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I explained to him that the UMW wage agreement of
1974 provided that an employer pay a dollar fifty a ton
royalty, and due to the Union's health and benefit fund
and there was an also additional cost based on the
amount of the employees' hours.
Henry and Roberts then discussed Fedderhauf, a coal
company that had just been unionized. Accordingly to
Henry, he told Roberts that Fedderhauf was in a better
position to absorb the $1.50 per ton, through their parent
company, whereas concerning Alumbaugh "if we were to go
union, we would have to absorb the $1.50 a ton," and it
would wreck the Company's competitiveness.
There is no question but that it was Henry who brought
the subject of royalties up and, by his own words, told
Roberts that if the Company had to pay that royalty, it
would wreck its competitiveness. Henry was an evasive and
equivocal witness. When asked on cross-examination if he
knew how much royalty Alumbaugh would have to pay the
UMW if the Company had been organized in 1977, he
replied that he did not know. He had already testified that
the royalty was $1.50 per ton, and certainly, as the vice
president in charge of engineering, land acquisition, and
safety, he knew how many tons the Company sold in 1977,
and by simple arithmetic, he could have calculated the total
amount. Another example of Henry's lack of credibility was
his testimony on cross-examination that he was not con-
cerned with how many "yes" votes or "no" votes there were,
that it was not part of his job to try and persuade employees
to vote "no", and that in fact he was not trying to persuade
employees to vote "no." The record is clear that he actively
passed out company handbills and talked against union
representation throughout the Company's campaign, telling
the employees about some of the "bad things" about unions
and the "good things" the Company had done for the
employees. I credit Roberts' testimony that Henry said more
than what he admitted to, also saying that Method would
shut the mine down rather than pay the royalty to the
Union.
c. Roberts testified that on the following day, August 5,
Hunter came to his dragline, when the following occurred:
He said he had another piece of literature for me, and
he began to talk, and he said that he thought that I was
better off working the way I was, than to have a union
contract and not have any work, because Joe would
shut the job down, and he said something about
royalties and it was just too expensive and he would just
shut the job down.
Hunter denied that he said that Joe said he would shut the
mine down, but he did recall the incident. His version of the
conversation was that he told Roberts that he did not think
that the Union was all out for the men because of an incident
he had many years before when the Union tried to sign his
company to an agreement. Hunter had informed the Union
that they could not make the royalty payments, and the
organizers had said maybe he could take some money off the
men and be able to pay the royalty that way.
While I have previously found that both Roberts and
Hunter were credible witnesses, I credit Hunter's account of
this conversation over that of Roberts, as I believe that his
recollection of this August 5 conversation was the more
accurate. I would dismiss this allegation of the complaint.
d. On August 31, the Wednesday preceding the election,
Roberts and Method had a conversation on company
premises which Roberts described as follows:
He said that he didn't mind the way I felt about the
Union, but he didn't like it when I was campaigning,
and putting my views onto someone else, and I said that
that's what he was doing. If he could do it, I should be
able to do it, and he said that he could give me a dime
and tell me to call my Union friends in a year, and he
said in a year if I didn't do--or if he didn't do what I
wanted him to do, it would be an awful lot easier for me
to convince the men there to vote for the Union in a
year than it would be now, and he stated that there was
one thing that he had learned from this whole cam-
paign, men do not like money taken out of their
paychecks, like the twenty seven dollars that he takes
out for hospitalization, and he stated that after this was
over, that that would change.
During the conversation Roberts told Method that he had
nothing to lose, that if the Union won he would get a pay
increase and benefits, and if the Union lost Method would
have to do something to keep the Union out, and that
"either way, I would will, I said, unless you would fire me,
and Joe stated that could happen because he didn't like the
way I combed my hair."
Method testified that this conversation took place at about
4:45 p.m., as he saw Roberts and Pete Tataliba loading
firewood into Roberts' Jeep. He was surprised to see
Roberts, because it was after quitting time, so he stopped to
talk. Method denied that he made the statement attributed
to him by Roberts, but did admit that there was conversa-
tion about a dime, which he described as follows:
The thing I did do was I did offer Mick a dime, and I
did tell him to use that dime to make a telephone call,
to call some of his union friends but I said wait a year
before you make that call Mick, and at the end of that
year if you think that you still need the union, if you
think that the union can do more for you than what we
have been able to do then go ahead and use the dime.
Roberts' and Method's testimonies about the offer of the
dime by Method to Roberts to call his union friends in a year
differ only on whether Method said, "if he didn't do what
[Roberts] wanted him to do" or, as Method asserted, "if you
think that the Union can do more for you than what we have
been able to do." I credit Roberts' testimony over Method's.
It must be remembered that Method on April 19 had turned
to Roberts to come talk to him about his "problem" within
hours after Alumbaugh had informed him that Roberts was
the big mover in the .union campaign. At that meeting
Roberts had spelled out what, in his view, were deficiencies
in the company policies as to wages, vacations, and hospitali-
zation. At this August 31 meeting Method was telling
Roberts that he was going to keep increasing wages and
benefits in the coming year, in a manner that would please
him, and that the Company would pick up the cost of the
dependents' hospitalization payment.
I also find that Method impliedly threatened to discharge
Roberts when he told him that he could be fired because of
906
ALUMBAUGH COAL CORPORATION
Method not liking the way he combed his hair. Obviously
Method was giving Roberts the message that he held the
power to fire Roberts at any time, for any reason, including
the subterfuge reason, long stated in our industrial shops, of
not liking the way a person's hair is combed.:"
e. Roberts testified that at or about a week before the
election he was working in the creek in the afternoon when
he was stopped by Robert Henry and Edward Alumbaugh.
On direct examination Roberts testified:
Well, Ed stated that I was better off working for the
wage that I was working for rather than $8.50, because
if I was making $8.50, 1 would not have a job, and
about two or three seconds later, Henry said if Joe
couldn't afford to pay that wage, I wouldn't have a job,
and that's about all I can recall.
On cross-examination he described the conversation as
follows:
[A]nd Ed said that I was better off working for seven
dollars an hour than I would be for eight fifty because if
I was working for $8.50, I wouldn't have a job.
Alumbaugh recalled talking to Roberts about the Union
scale and wages and admitted:
I said that the way I looked at it he would probably be
better off making seven dollars an hour than he would
eight fifty an hour, on account of he would probably be
on strike all of the time and most of the time he'd
probably make more than seven dollars an hour.
Henry recalled that during the conversation he brought
up the strike in West Virginia of a large national union and
then commented "that working regularly was better to make
seven dollars an hour than make eight fifty and be on
strike."
Even though I credit Roberts over Alumbaugh and
Henry, I do not find that the General Counsel has provided
a violation. With a week to go before a hotly contested
election, these three employees were basically talking about
strikes and the effect of strikes on wages. The two supervi-
sors were trying to blunt the advantage of an obviously
higher union rate by pointing out that employees while on
strike, and not working, earn no wages. I would dismiss this
allegation of the complaint.
f. Swartzwelder testified that about 2 weeks prior to the
election he took a day off and did not call in to report his
absence, as was the custom. The next morning he was
working on the stockpile when Method came along and
called him down off the hill. Swartzwelder came down, and
according to him, the following occurred:
Swartz, he said, I have a good reason, he said I have a
good reason to fire you, if I knew you was for the
Union, and I just didn't say nothing. I just stood there,
and he said which he don't think that I am.
Method then commenced discussing pensions and profit
sharing as set forth in detail below. Method recalled calling
Swartzwelder down to talk to him:
'" Although this implied threat of discharge was not alleged in the
complaint, it was fully litigated at the hearing. Roberts' testimony was elicited
on March 23. 1978. and Method replied to it on April 13, 1978.
I told him I was a little concerned about him because
he wasn't at work yesterday and it is our practice and
the men all know it's our practice, if you are not at
work, you at least call in to let us know why.
I informed him had this been a union job and he had
missed a day of work like this-it could have serious
consequences. I said but it's not a union job and we do
have flexibility and it doesn't have the consequences,
but in the future, I would appreciate a call.
I credit Swartzwelder's testimony and find that Method
made an implied threat of discharge. Method's testimony is
highly implausible as it portrays him gently chiding one of
his miners for not calling in as he tells him that working in a
union mine has much harsher rules on employees who are
late than working in Respondent's nonunion mine. I find the
implied threat to be a violation.:'
2. Impression of surveillance
a. During the 2-week period prior to the election Roberts
spoke to Henry practically every day, to Alumbaugh
frequently, and to Method only once about the forthcoming
election. His conversation with Method was on the same
evening, August 31, that Method had offered him the dime
to call his friends in a year. Roberts testified as follows:
He said he thought he was going to win by twenty-
four votes, and I told him that I did not think that he
was going to win by twenty-four votes because I was
going to vote yes.
According to Method, he told Roberts that the vote was
going to be 24 to 0 and then Roberts said "[N]o, it's going to
be 24 to I."
Roberts also testified about a conversation he had with
Henry that occurred just several days before the election.
Roberts described it thusly:
He [Henry] said how's your election going, Mich,
and I said well, I said I figure it's eighteen to six in favor
of the good guys, and he asked me when did you take
that poll, and I said just a couple of days ago, and he
said well, that's not the same poll that he gets.
According to Henry, the incident occurred as follows:
I was working with Mr. Roberts regularly, and I
happened to come up with him that morning and said
how are things going, and he said to me, it looks like the
good guys are winning, and I kind of smiled at him, and
said well, I'm glad for that, and in addition, I said,
that's probably not the same feeling I get.
I credit Roberts' testimony as to both of these conversa-
tions. However, I do not find that either the comment of
Method or that of Henry rose to the level of a violation of
the Act. In determining whether a respondent created an
impression of surveillance, "the test applied by the Board is
whether employees would reasonably assume, from the
statement in question that their union activities had been
placed under surveillance." Schrementi Bros., Inc., 179
:' This implied threat to discharge was not alleged in the complaint, but was
fully litigated at the hearing.
907
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NLRB 853 (1969). In both of these conversations the
statements by Method and Henry were too ambiguous to
support a finding. Board predictions of the outcome of
elections are common ploys by opposing sides in American
elections of every variety. Both Method and Roberts were
exercising their right to brag in support of their side and I
would dismiss these allegations of the complaint.
b. A third conversation in the same period of time about
vote counts occurred among Roberts, Snyder and Edward
Alumbaugh, which I find to be a violation. Snyder decribed
the conversation as follows:
Ed said he had a list of yes votes and no votes. At
that time I was on the list of yes votes for the Union,
but after the talk he said he might be able to put me on
the no side against the Union, and he said that after the
election, he would show me the list of the names of the
yes and no votes.
On direct examination Alumbaugh perfunctorily denied
that he told Snyder that he had a list of "yes" and "no"
votes, that he had considered him to be a "yes" vote, or that
he would show him this list after the election. However,
several minutes later, on cross- examination, when asked to
tell about his conversations with Snyder, he replied, "I don't
remember too much talking to Bob Snyder," and when
pressed as to whether he had talked to Snyder, he replied, "I
probably did, but I just dont't recall talking to him and what
I said."
I credit Snyder's testimony and find that Alumbaugh did
tell Snyder that he had a list of "yes" votes and "no" votes.
Using the test cited in Schrementi Bros., supra, I find that
Alumbaugh's statement would cause Snyder to believe that
the employees' union activities had been placed under
surveillance. The vice president's statement that he had a list
of employees broken down as to whether they were going to
vote for or against the Union is a serious assertion that
cannot be passed off as a light bit of preelection bragging.
When Snyder was asked by Respondent's counsel if he were
told by Alumbaugh how he compiled such a list, he replied,
"From talking to them and stuff, yes." The miner's use of
the word "stuff' embraces those worries felt by him that the
Respondent had secured such a list not only by talking
openly to the employees but also by convert means. I
therefore find that Respondent, by Alumbaugh's statement,
violated Section 8(a)(1) of the Act by creating an impression
of surveillance of its employees' union activities.
3. Promise of benefits
The General Counsel alleges that in the last 1-1/2- to 2-
week period before the election Respondent promised
employees increased pension and profit-sharing benefits and
other benefits in order to dissuade these employees from
selecting the Union as their bargaining representative.
*2 Roberts admitted that he received the profit-sharing-plan booklet and
glanced through it.
" The record does not disclose that any similar record was sent to the
employees about their rights in the pension plan.
" Snyder and the other employees used the terms "profit-sharing plan" and
"pension plan" interchangeably. Obviously, Snyder was referring to the
pension plan at this time.
" In Roberts' prehearing affidavit he stated that Method said this was the
It is undisputed that the parent corporation, Donovan,
instituted (1) a pension plan and (2) a profit-sharing plan for
Respondent's employees, each effective January 1976. In
November 1976, booklets describing the plans were distrib-
uted to Respondent's employees. In May or June 1977,
Method received certificates of participation for the profit-
sharing plan from the St. Paul office for each employee,
which showed certain data, including the contribution made
by the Company to that employee's account for the past
year.2 These profit-sharing certificates were distributed to
the employees soon after their receipt.
Snyder testified that one evening at quitting time, down at
the shed, Method told him that he had a computer
"readout" on the profit-sharing plan.2' Method then took the
form, proceeded down the list of names to his, and then went
to the end of that line, which showed Snyder the amount he
could receive at age 65. Snyder also testified that Method
told him that this figure was a projection of how much he
would receive at age 65 and that in order to make the
projection on a computer, the Company had figured a 5-
percent wage increase every year. He readily admitted that
Method did not say that he, Snyder, was going to receive a 5-
percent wage increase every year.
Swartzwelder testified that he was working on the
stockpile when Method called him down off the hill and
showed him the pension he would receive from the "miner's
retirement," and then showed him a computer printout
which contained the amount he would receive under
Respondent's plan, when he reached age 65. Swartzwelder
testified that Method told him that at that age he would
retire with $85,000. He did not recall if Method had broken
the $85,000 figure down to a monthly amount or not.
Roberts testified that he was working down by the shop
when Method came along and told him that he wanted to
talk to him about his pension. Method then showed Roberts
a "list" of names, found his nne and checked across from
it, and then told Roberts that, if he worked there until he
was 65, he would receive $1,300 a month as his pension.
Method then produced the Union's bluebook, turned to the
list2" of union pension figures, went down that list, and told
Roberts that, if he worked at Respondent's under the UMW
contract for x years, he would receive much less, like $400
less per month than he would receive from Respondent's
pension plan. Roberts also testified that Method told him
that Respondent's plant was better than the Union's but did
not promise him that he was going to improve the plan.
Method testified that in August, as the campaign acceler-
ated, several employees asked him about Respondent's
pension plan and how it would compare with the Union's
plan.2 As the original booklet did not lay out the actual
retirement figures as set forth in the Union's bluebook,
Method had the plan administrator in the St. Paul office
prepare by computer certain projections. These figures
showed the pension benefits that Respondent's employees
anticipated figure he would receive. Roberts was obviously not familiar with
actuarial terms, and I find this difference to be in semantics, not substance.
"' The National Bituminous Coal Wage Agreement of 1974, p. 131. sets
forth a table of pensions to be paid to union miners who retire in 1976 or 1977
based on age and years of service. Resp. Exh. 32A.
" Although the pension booklet distributed in 1976 described the plan,
Method stated that it merely made some general assumptions "in a very hazy
way " to show employees some financial data.
908
ALUMBAUGH COAL CORPORATION
would receive upon reaching age 65 as compared with the
Union's figures in the bluebook. Projections were also
prepared for the profit-sharing plan." Method had instruct-
ed the home office to insert a figure of 3 percent or 5
percent s as a projected wage increase for each year in
calculating the future pension benefits and profit-sharing
benefits. He had also instructed the administrator to project
the Union's pension plan with a 1.5-percent annual wage
increase. After the printout was received by Method, he
wrote in by hand beneath the 1.5-percent projection a
projection calculated for a 2.5-percent annual wage increase
for the union pension plan. Method admitted that the 1.5-
percent figure was an arbitrary one which he used to
improve the existing union pension benefit. So also was the
2.5-percent wage increase.
After Method received the computer printout, and after
entering therein, in pencil, the 2.5-percent wage increase
projection, he took the large, elaborate form with him and
went around the minesite in his vehicle and talked to
virtually all employees:' °
I explained to them that these were projections and that
they were based on increases in annual salaries, they
were based on increases in the fund itself and that this is
the projection of what they were to receive at retirement
age 65.
While Method was testifying, he reviewed the pension
printout and pointed out several examples of predicted
pensions for current employees who worked to age 65. For
Pete Tataliba, Jr., a young man of 25 years of age, it had
three preprinted lines, the first being the Donovan plan, with
a cash pension figure of 2,087.32 per month. The line
directly below showed the union plan with no projection and
a $572 monthly pension. The third preprinted line showed
the union plan projected at 1.5 percent a year and a monthly
pension of $1,085.02, and below that line was Method's
handwritten line with the projection of 2.5 percent and a
monthly pension of 1,653.95. Method also reviewed the
projections for Roberts at age 65, which showed a company
pension of $1,455; a union plan pension, with no projection,
of S404; the same with a 1.5-percent projection, of $640.96,
and the same with the handwritten 2.5-percent projection, of
S868.60. The same calculated pension benefits for F. Yoder,
a much older employee, showed, respectively, $94.30,
$112.50, $128.63, and $140.50.
Method denied that he promised the employees that they
would receive projected wage increases of 3 percent or 5
percent. He also told the employees that the profit-sharing
plan was a voluntary plan and that "there is nothing that
says that the Company must make contributions continual-
ly." Method also told them that "in the event we were to go
union, that it is very possible that the Union would try to
bring in their plan," and in the event the Union did bring in
the Union's pension plan, they would not be covered under
"' No comparison was made with the Company's profit-sharing plan, as the
Union had none.
" Method could not recall whether he told the administrator to use a figure
of 3 percent or 5 percent. Synder testified credibly that when Method went
over the computer printout with him, he was told that the Company had
included thereon a 5-percent wage increase per year, and I so find. Method
selected this percent wage increase apparently on the grounds that it was an
amount that the Company had exceeded each year since Donovan took over.
Respondent's plan." Method admitted that he was trying to
show the employees that Respondent's plan was far superior
to the Union's plan.
Respondent argues in its brief that the projections of its
pension and profit-sharing plans were not individual prom-
ises of benefits, as the Board has held that, where the
employees had knowledge about an existing benefit, explana-
tions of the details do not violate the Act. Respondent's
contention is correct as far as it goes, but it does not go far
enough. Method did far more than merely explain the details
of an existing pension plan and existing profit-sharing plan.
He did not simply refer them to the existing pension booklet
that the Company had provided each employee in the
previous year, as the employer did in one of the cases cited
by Respondent, Colonial Wax Products Division of Victrylite
Candle Company, 171 NLRB 548 (1968). Method arbitrarily
told the home office administrator to build into the existing
pension plan and profit-sharing plan calculations a 5-percent
wage increase per year for as many years as it took the
existing employees to reach age 65. In Pete Tataliba's case
this was a span of 40 years.
Although Respondent did not produce the original pen-
sion booklet issued in 1976, there can be no doubt that
whatever pension benefits were set forth therein were less
than the pension benefits projected on the computer print-
out, containing Method's gratuitous insertion of a 5-percent
wage increase per year. The realities of this situation show
these coal miners working at their jobs when the president of
the Company appears in his vehicle and calls them off their
equipment to discuss their pension and profit-sharing plans.
He produces the very large, complex, official-looking com-
puter printout, tells the employees that the projections were
based on increases in annual salaries, and then runs his
finger down and across the page and says, "This is the
pension benefit you will receive at age 65, under our plan,
and look how much more it is than the Union's pension
benefits." When Method completed his explanation of that
printout, the bottom line, as far as the employee was
concerned, was the amount of money Method pointed to
that he would receive at age 65 as a monthly pension and the
amount he would receive as profit sharing. Method's
presentation of the increased pension and increased profit
sharing amounts to the employees may not have amounted
to a contractual obligation to pay the increased benefits set
forth thereon, but it was at the very least a veiled promise of
increased pension benefits and profit-sharing benefits and
thereby violated Section 8(a)(1) of the Act. El Rancho
Market, 235 NLRB 468 (1978).
In this same period of time, early September, Snyder's
equipment was broken down on the job when Robert Henry
approached him and discussed the Union:
He told me I was supposed to give Joe another year,
that things would get better, that they were working on
a better medical plan at that time and trying to improve
'° On direct examination Method testified that he talked to "people who
had asked me about them," of whom he had only recalled Dunbar and
Worsell. Later he admitted that he had talked to all the employees except one
or two.
" On cross-examination Method stated that he did not tell the employees
that if the Union won they would lose their company pension plan, but that he
told them that it would then be a matter of negotiations.
909
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the medical and things would be better in a year's time,
and he said why, P.B.S. don't go union and stuff like
that, and I said sure, because they pay Union wage, and
have good medical benefits that's the reason why they
don't go Union.
Henry remembered the conversation and described it as
follows:
I told Mr. SnDer that Joe Method had done him a good
job in the past and that our programs were under
continuous review since 1973. I said that Joe had done
them a good job in the past and that they could trust
him, and there was no reason that he wouldn't do a
good job in the future.
Henry further told Snyder:
Since Donovan has brought the Company, we have
improved the wages and in some cases, we have doubled
them. We have added an insurance plan, a pension plan,
and we've even improved on our safety program
I credit Snyder's testimony not only because he was a
credible witness but also because of the inherent probabilities
involved therein. Respondent knew from Roberts' confer-
ence with Method on April 19 that the employees were very
dissatisfied with wages, no vacations, and the Company's
hospitalization plan. Method had long since increased the
wages and had established vacations, but had done nothing
about the hospitalization benefits. Here, Snyder was griping
about the Company's medical benefits, and yet, according to
Hunter, he did not even mention the medical plan in
discussing the various benefits the Company provided the
employees. It was most logical that Henry would discuss
medical benefits just as Snyder testified. I find that when
Henry told Snyder that the Company was working on and
trying to improve the medical plan, that was an implied
promise that the medical plan would be improved, just as
soon as the Company was rid of the Union, and Respondent
thereby violated Section 8(a)(1) of the Act.
Swartzwelder testified that about 2 weeks before the
election he had a conversation with Robert Henry, which he
described as follows:
Well, we was talking about our wage, and about other
strip jobs, what they were getting around the area, and I
said about Swank was making a dollar an hour more
than we were, and we mentioned Shady mine, they were
making more money than we were, and then it lead up
to P.B.S. and Henry told me that well, why do you
think P.B.S. is making so much money, and I said
because of the Union, and he said that's right.
Q. Do you recall anything further about this conver-
sation?
A. He said Joe would take care of us too.
Robert Henry placed the time of this conversation in July:
I told Mr. Swartzwelder that the wages are continually
under review, since 1973, and in some cases wages have
doubled and I told him to stick behind JoeMethod, he'd
done a good job for them in the past, and there's no
reason why he wouldn't do a good job for them in the
future.
I The Company's campaign began in August, as testified to by Method. and
there is no record of any other conversations between supervisors and
employees during July.
Although Swartzwelder was not an articulate witness, I
credit his testimony that the conversation took place a few
weeks before the election' and that Henry said that "Joe
would take care of us too." I find that in the context in
which the statement was made, Respondent was making an
implied promise to increase employees' wages so as to
encourage the employees to reject the Union and thereby
violated the Act.
d. In early September, Swartzwelder and Henry had a
second conversation on the job, which Swartzwelder testified
to as follows:
Well, he said that you know, talking about our
insurance plan and the faults that we had with it, and
he said the Company was going to do something about
that, our insurance.
Swartzwelder stated that later in the conversation Henry
said "to give Joe another year, and things would work out."
The conversation concluded with Henry telling Swartzweld-
er, "[We] are going to be one of the highest paid strips in
Somerset County."
Henry recalled speaking to Swartzwelder and testified that
he merely said:
I told them that Joe Method had done a good job in the
past, and there was no reason that he wouldn't do a
good job in the future.
I also told them that in the past we have reviewed
their programs and that all of the programs were under
complete review every year.
Crediting Swartzwelder, I find that Henry said that the
Company was going to do something about the insurance
and that Henry said that Respondent's strip mine was going
to be one of the highest paid mines in the county. I further
find that Henry's statement that the Company was going to
do something about the insurance was an implied promise to
increase the benefits paid for in the current hospitalization
coverage. I also find that, when Henry said that Respon-
dent's strip was going to be one of the highest paid mine in
the county, he was impliedly promising that the wages of
Respondent's employees would be raised to the level of the
highest paid miners in the county. Such promises of benefits
violate the Act.
IV. THE OBJECTIONS TO THE ELECTION
Objections 2, 3, 6 and 9 to the election held on September
7, in Case 6-RC-791 I1, have been referred to me for hearing.
Objection 2 maintains that Respondent, by its agents, made
promises of benefits, such as payment of insurance premi-
ums, increased profit sharing and retirement and other
benefits, during the course of the Employer's campaign in
order to influence the votes of its employees. My findings,
that Respondent committed 8(a)(1) violations by Method's
promises to pay the dependents cost of hospitalization
insurance and by promising to increase pension and profit-
sharing benefits, encompass this objection. I recommend
that Objection 2 be sustained.
910
ALUMBAUGH COAL CORPORATION
Objection 3 asserts that Respondent, by Method, Henry,
Alumbaugh and others, made threats of closure or shutdown
to its employees in order to influence their vote. My findings
that Respondent committed 8(a)(1) violations by Henry's
threat to Roberts on August 4 and by Method's threat to
Roberts in late August encompass this objection. I recom-
mend that Objection 3 be sustained.
Objection 6 contends that Respondent, by Method,
Henry, and Alumbaugh, created an impression of surveil-
lance. My finding that Alumbaugh's conversation with
Roberts and Snyder in late August in which he informed
them that he had a list of "yes" and "no" votes created an
impression of surveillance encompasses this objection. I
recommend that Objection 6 be sustained.
Objection 9 asserts that Respondent, by Method, Henry,
and Alumbaugh, threatened employees with termination by
constantly reminding them that the Employer had already
terminated Roger Bouch for union activities. I have previ-
ously found that Method threatened Roberts with discharge
on August 31 and that Method threatened Swartzwelder
with discharge in late August, in violation of Section 8(a)(l).
While Method did not remind Roberts and Swartzwelder at
the time that they were threatened that the Employer had
already terminated Bouch, I regard this as subordinate to
the main thrust of the objection, which is the threats of
termination that were actually made. I recommend that
Objection 9 be sustained.
Conclusions
I find that Respondent's conduct in promising the
payment of the dependents' hospitalization insurance premi-
um and in promising increased pension and profit-sharing
benefits as found in Objection 2, in threatening to close or
shut down the mine as found in Objection 3, in creating an
impression of surveillance as found in Objection 6, and in
threatening the discharge of Roberts and Swartzwelder as
set forth in Objection 9 is conduct which interferes with
employees' free choice and is ground for setting aside the
election, and I so recommend.
V. THE GENERAL COUNSEL REQUESTS A BARGAINING
ORDER
The General Counsel, relying on the Gissel case," con-
tends that a bargaining order should issue under the
principles enunciated therein. In Gissel, the Supreme Court
recognized two categories of unfair labor practices commit-
ted by an employer in which a bargaining order would be a
more appropriate remedy than that of having a rerun
election.
The first category involves "outrageous" and "pervasive"
conduct, the coercive effects of which cannot be eliminated
by the application of traditional remedies, with the result
that a fair and reliable election or rerun election cannot be
had. In such cases the Board may issue a bargaining order
without inquiring whether the union possessed a card
majority.
"N.L.R.B. v. General Packing Co.. Inc., 395 U.S. 575 (1969).
" It is to be noted that the "critical date" was July 8. the date on which the
Union filed a petition for election.
The second category involves "less pervasive" unfair labor
practices which nonetheless still have the tendency to
undermine majority strength and impede the election pro-
cesses. In this situation the Board may issue a bargaining
order if the union had at one point a valid majority and if the
Board finds that the possibility of erasing the effects of the
unfair labor practices and of insuring a fair election or rerun
election by the use of traditional remedies, though present, is
slight and that the employees' sentiment, once expressed
through cards, would, on balance, be better protected by a
bargaining order.
The General Counsel contends that May 2 is the "opera-
tive" date" to be used for the establishment of its majority
representation as on that date the Union possessed 13 valid
and authentic cards, which constituted a majority of the
employees in an appropriate unit. I agree, as set forth
hereafter.
A. The Unit
There is no contest as to the unit description, as the unit
alleged in the complaint as an appropriate unit was so
admitted by Respondent in its answer. Accordingly, I find
this unit appropriate for purposes of collective bargaining:
All production and maintenance employees and
truckdrivers employed by the Respondent at its mining
operation located in Kantner Pennsylvania; excluding
all office clerical employees and guards, professional
employees and supervisors as defined in the Act.
There is, however, a sharp dispute as to how many
employees should be included in this unit. Respondent
contends that the appropriate unit includes the following 25
employees:
D. Alumbaugh
A. Berkey
J. Berkey
D. Croyle
J. Dunbar
A. Durst
M. Flick
R. Hetzer
M. Huzsek
J. Livengood
B. Lyons
K. Roberts
F. Yoder
G. Shifflett
M. Putman
A. Shontofski
D. Slickerman
R. Snyder
C. Sturtz
L. Sturtz
B. Swank
D. Swartzwelder
J. Tataliba
J. Tataliba, Jr.
H. Worsell
The General Counsel contends that the name of Roger
Bouch should be included on this list. This is correct, and
Bouch's name will be added to the list. As previously found,
Bouch was discriminatorily terminated on April 18, and it is
reasonable to presume that Bouch would have been working
on May 2, and thereafter, but for Respondent's discrimina-
tion. The General Counsel also contends that the name of G.
Shifflett should be eliminated, as he was hired on June 27.
This is correct, and Shifflett's name shall be eliminated. The
addition of Bouch's name and the elimination of Shifflett's
leaves 25 remaining names.
911
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, the General Counsel further contends that the
names in the unit must be further reduced by excluding
Forrest Yoder, Donald Slickerman and Albert Berkey,
leaving a total of 22 names in the unit. Respondent argues
that all three of these employees share a community of
interest with the other employees and should be included in
the unit.
None of these three employees testified and their duties
must be gleaned chiefly from the uncontradicted testimony
of President Method. Yoder was hired in January 1976 as a
carpenter-driver, and his hourly rate of pay in May was
$5.75 an hour, which was in line with the rates of pay of the
other employees. He also received the same vacation,
holidays, pension, profit sharing and insurance benefits
received by the other employees. However, Yoder main-
tained one other relationship with Respondent that was
totally unlike the regular employer-employee relationship of
any other employee.
Yoder and his wife were lessors of a tract of land" to
Respondent, as lessee, which lease commenced in September
1973 and was still in effect at the hearing. Under the terms of
this lease Respondent was granted the right to strip the
Yoders' land and mine the underlying coal. In return
Respondent was to pay royalties, on a monthly basis, per ton
of coal mined, as well as pay a flat rate per ton for the
surface rights. During the year 1977, Respondent paid the
Yoders $15,388 pursuant to the terms of the lease. The lease
required that the Yoders pay the real estate taxes on the
premises.
I find that Yoder's lease with Respondent so aligns his
interest with management as to extinguish his community of
interest with the other employees. Yoder's pecuniary inter-
ests are directly tied to Respondent's ability to mine coal, so
if coal is not mined, as during a strike, neither he nor his wife
would receive any royalties. Yoder and his wife would also
be required to pay real estate taxes during such a strike,
despite the fact that they would be receiving no royalties.
Thus, in the event of a strike called by the Union, Yoder
would have loyalties to his wife as colessor and to Respon-
dent as lessee that would be contradictory to the purpose of
the striking employees, that no coal be mined. He should be
excluded from the unit.
Donald Slickerman was hired on February 10, 1975, with
the job classification of welder. Three other employees, Abe
Durst and Clete and Larry Sturtz, also do some welding,
although they are not classified as welders. The Company
supplied the cutting torches and welding machine used in
performing their work as welders. It also furnished a
company-owned truck to Slickerman, which contains a
diesel welding machine. Slickerman does not have a welding
shop, but works throughout the minesite, in contact with
other employees. Occasionally, Slickerman performs other
work, such as mechanic's work and operating equipment.
His supervisors are William Hunter and Edward Alum-
baugh. He receives the same benefits as the other employees:
Holidays, vacation, pension, profit sharing, and insurance.
" The size of the tract was deleted. by agreement, from the copy of the lease
received into evidence. G.C. Exh. 61. So, also, was the number of years that
the lease was to be in effect.
" The monthly rate of $2,000 times 12, $24,000, divided by 52 weeks. Based
The General Counsel relies on an employment agreement
between Slickerman and Respondent as the wall that would
separate him from the bargaining unit. This contract was
entered into on February 10, 1975, and runs for a period of 3
years. It is a brief, basic agreement in which Slickerman
agrees to devote his full time to the business of the
Company, "[r]easonable absence because of illness and
vacations excepted." It also provides that he be assigned a
company vehicle for use during the day, as well as to and
from home, and that he receive the same fringe benefits
offered to the other employees. As compensation he was to
be paid, during the period relevant herein, $2,000 per month.
The agreement was terminable at the will of the Company.
There is no question but that Slickerman's work is closely
allied with the work of the other employees. It is also
apparent that his pay is not out of line with the other hourly
paid employees. When Slickerman's salary is broken down
to an hourly wage rate, he received $7.50 per hour.'" Clete
Sturtz, a mechanic, receives $7.20 an hour. Thus, on the 54-
hour-week basis, which is the Company's regular workweek,
Sturtz would receive $439 per week. Clete Sturtz and
Slickerman have other similarities in employment. Sturtz is
furnished with a company-owned truck that has a mechan-
ic's bed. Both employees take their trucks home, and are
both called in for emergency work on nights and weekends.
Slickerman's contract, which makes him subject to discharge
at any time, just as any hourly paid employee, does not
breach his community of interest with the other employees,
and he should be included in the unit.
Albert Berkey was listed on the General Counsel's Exhibit
59 as a laborer, with a starting date of February 28, 1977.'
In prior years he had worked for the Commonwealth of
Pennsylvania, removing snow from the highways on a
contract basis. When Berkey commenced full-time work for
Respondent he owned three pieces of adjacent property in
Friedens, on one of which was a filling station, and on
another a building. On April 19, he sold all three pieces to
Respondent for cash, with Respondent converting the first
floor of the building to its office. The second floor was
refurbished into a two-bedroom apartment, and Berkey lives
therein, under an oral agreement, at a monthly rent of $100.
In Berkey's first month of employment, he worked at the
filling station as a mechanic and then was transferred to
working as a mechanic and laborer. At various times he
performed mechanical work on Respondent's vehicles and
other equipment, at both the minesite and the service
station. Occasionally, he performed carpentry work. Mick
Roberts testified that during the summer of 1977 Berkey
worked with him doing the same construction work on
Respondent's Hooversville Creek job. Berkey's starting rate
was $4 an hour, and sometime in 1977 Method gave him a
$1 raise to $5 an hour. He works the same hours as the other
employees, has the same supervisors, and receives the same
holidays and vacation benefits.
It is evident that Berkey shares a substantial community
of interest with the other employees. The General Counsel's
position that Berkey's interests are more clearly aligned with
on the Company's 54-hour workweek (40 hours at straight time and 14 hours
at time and a half), the hourly rate is S7.50.
" Berkey's name, for reasons not set forth in the record, did not appear on
the eligibility list prepared by the Company for the September 7 election.
912
ALUMBAUGH COAL CORPORATION
management than with those in the bargaining unit rises or
falls with the lease he has for an apartment over Respon-
dent's office, at a monthly rent of $100. However, two other
employees, R. Hetzer and M. Huzsek" also occupy
company-owned apartments in a building on the minsite.
They each pay $85 a month for renovated duplexes that are
slightly larger than Berkey's. I find that Berkey's interests
are sufficiently aligned with those of the bargaining unit, and
just as Huzsek is included in the unit, I find that Berkey
should be included therein.
The elimination of Yoder's name leaves 24 employees in
the bargaining unit.
B. Contested Cards
The General Counsel introduced 13 cards, of which
Respondent in its brief, specifically attacked 3, those of
James H. Dunbar, Kenton Roberts and Howard Worsell.
Respondent contends that the card of Dunbar should not be
counted on two grounds: (1) that he was told by the
organizers that the card was to be used solely to obtain an
election and (2) that he did not properly authenticate the
card.
Organizers Horvath and Mazerik went to the home of
Dunbar, where he was getting ready to dig up his garden. In
the 4- to 5-minute conversation that ensued Dunbar execut-
ed a union authorization card. (G.C. Exh. 6) Horvath saw
Dunbar sign the card, but admitted that he did not see him
date it. Horvath then wrote in his initials, "J.H.," alongside
the word "witness" and wrote the date on the same bottom
line, "4/13/77." The dateline alongside of Dunbar's admit-
ted signature carriers a pen-written date "4/13/77," with the
"4" having been written over an indistinct "5" and the last
"7" having been written over a distinct "6." Dunbar recalled
that he wrote the date on the card, but he did not recall
making changes in the date, although he testified "I have a
habit of doing that, marking down the wrong date, then
changing it."
On cross-examination, Dunbar was asked the leading
question, "And they told you that the card would be used
only to get an election?" and he replied, "Yes." On redirect
examination, Dunbar denied that the organizers told him
that the only reason for signing the card was to get an
election. He also testified that he read the card before he
signed it and that he understood it when he signed it.
Mazerik testified credibly that he saw Dunbar make the date
changes on his card.
The cards used herein were unambiguous and clearly
stated a single object, i.e., to authorize the Union to
represent the employee as his exclusive collective-bargaining
representative with Respondent. Dunbar read this card
before he signed it, and he understood its simple meaning. In
accordance with Horvath's and Mazerik's regular proce-
dure, he would not have been told by them that its only
purpose was to secure an election, and on redirect examina-
tion Dunbar so stated. Respondent contends in its brief that
Dunbar could not recall dating this card. This is inaccurate,
" Huzsek signed an authorization card on May 2, and the General Counsel
relies on it to achieve the 13 valid cards.
" Roberts had previously obtained permission from Method to be off work
as Dunbar did recall writing the date on the card and that it
was on the day that the organizers came to his house.
The dominant date alongside his signature is "4/13/77,"
and I find that to be the date Dunbar signed it. Such
marking over and correction of figures are regular occu-
rences in American business, as witness Respondent's
experienced bookkeeper, Ronald C. Hunter, in Respondent's
Exhibit 28, mistakenly entering one figure and then crossing
it out upon discovering his error. Horvath signed this card
on April 13, 1977, and there is not one work of testimony
contradicting the organizers' testimony. Accordingly, the
card is a valid designation for purposes of determining the
Union's status as a bargaining representative, and it shall be
counted.
Respondent also contends that the card of Kenton
Roberts should not be counted, as it was dated May 14,
1977, which was after the date on which the General
Counsel alleges that the Union had a majority, May 2.
Roberts testified that he signed the card on April 14, and
mistakenly wrote down "5-14-77." He was certain that he
had signed it in April, because he went to a flea market in
April, and he had signed it before he went to the flea
market." He remembered that it was on a Thursday'0 and
that his dad was also present when organizer Mazerik came
and talked to him. He also remembered that the day on
which he signed the card was 5 days before Method
summoned him to Respondent's office for the evening
conference on April 19.
Mazerik testified that he saw Roberts sign the card and
knows that it was done on April 14, as on May 14 he was in
the Brock area, 75 miles away, working on another cam-
paign. The organizer attributed his failure to notice the
wrong date to the fact that he and Roberts' dad were talking
"quite a bit." Although Mazerik initialed the card as a
witness, he did not write thereon the date of witnessing. The
record does not indicate that Horvath, the more experienced
organizer, was with Mazerik when he solicited Roberts'
card, although his initials and George O'Bush's initials
appeared on the witness line, following Mazerik's initials. I
find that Roberts and Mazerik testified credibly that Roberts
signed the card on April 14, 1977, and that, accordingly, it is
a valid designation for purposes of determining the Union's
status as bargaining representative and shall be counted.
Respondent also objects to the admission of the card of
Howard Worsell, on the basis that Worsell lawfully revoked
his card prior to the Union's achievement of majority status.
Worsell had executed a card on April 20 and turned it over
to organizer Horvath. By a certified letter, dated May 3,
Worsell wrote to Horvath, stating that he had reconsidered
his position, and requested that his "signature card be
voided." Horvath admittedly received this letter. In any
event, there can be no doubt that Worsell's card was a valid
card on May 2, and I find that it is a valid designation for
purposes of determining the Union's status as bargaining
representative and shall be counted.
I also find that Respondent may not rely on Worsell's
withdrawal of his card as a basis to refuse to recognize the
Union, as this withdrawal came just 4 days after the
so as to attend a flea market. Attendance at the flea market caused Roberts to
be absent at the April 29 meeting, as set forth in sec. Ill, E, 2. herein.
I April 14 was on a Thursday.
913
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employer's captive-audience meeting of April 29. In that
meeting Method threatened to cease operations, promised
pay raises and a vacation, and requested employees to
withdraw their authorization cards. Worsell's withdrawal,
coming so soon after Respondent's heavyhanded attempt to
undermine the Union, cannot be disassociated from Respon-
dent's unfair labor practices. N.L.R.B. v. Gerald G. Gogin
d/b/a Gogin Trucking, 575 F.2d 596 (7th Cir. 1978), enfg.
229 NLRB 529 (1977).
I agree with the General Counsel's position that May 2 is
the "operative date" which must be focused upon in this
case. It was on that date that Huzsek signed the last card
secured by the Union, giving it a total of 13 valid
authorization cards, a majority of the unit of 24 employees.
Just 2 weeks prior to that date, Respondent had embarked
on its unlawful course of action to undermine and destroy
the employees' support of the Union, by terminating Bouch.
The next day its president extensively interrogated Roberts,
the man he thought was the key employee. In the following
week, the president called an all-employees meeting in which
he threatened to close the mine, created an impression of
surveillance of the employees' union activity, requested the
withdrawal of authorization cards, and promised various
benefits. Over the following weekend, the Union secured its
last signed authorization card, and thereafter it secured no
more cards. The sledge hammer blows given to the Union's
organizing campaign by the discharge of Bouch and the
coercive speech given to the employees at the captive-
audience meeting on April 29 dried up any further signing of
cards.
C. Conclusions With Regard to a Bargaining Order
As previously stated, the General Counsel contends that a
Gissel order is warranted in this case under either of the two
categories of unfair labor practices set forth therein, that is,
that the employer's conduct was outrageous and pervasive,
so a bargaining order is the only available effective remedy
for the substantial unfair labor practices, or that the
employer's conduct was marked by less pervasive unfair
practices which, nevertheless, still have the tendency to
undermine majority strength and impede the election pro-
cesses and requires a bargaining order.
Respondent contends that a bargaining order is not called
for herein, as Gissel also provides for a third category, of
minor or less extensive unfair labor practices, under which a
bargaining order should not be issued, because of their
minimal impact on the election processes. While denying
that it committed any unfair labor practices, Respondent
argues that, if any violations are to be found, they are "de
minimus," thereby falling under the third category, and are
insufficient to warrant a bargaining order.
I find in the instant case that the many threats to close the
mine down and cease operations, the discharge of Bouch, the
interrogation, the solicitation of grievances, the promises of
wage increases and the granting of wage increases, the
promising and granting of vacations, the request that
employees withdraw their authorization cards, the threats of
" It is to be noted that, in accordance with Board practice, this Gissel
bargaining order is based upon all unfair labor practices committed by
Respondent, not just those committed during the critical period. Baker
discharge, the impression of surveillance, and the promises
of improved pension, profit-sharing, and hospitalization
plans, all together, at least, had a tendency to undermine,
and did undermine the Union's majority status in the
election of September 7 and prevented the holding of a fair
election.
I also find that by refusing to recognize and bargain with
the Union as requested on July 6 and instead engaging in its
course of unlawful conduct, which continued to undermine
the Union's majority status, Respondent also violated
Section 8(a)(5) of the Act.
Under the circumstances of this case, the sentiment of the
unit employees expressed through the union authorization
cards is a more reliable measure of their desires on the issue
of representation than the election held September 6. To
remedy Respondent's unfair labor practices, a bargaining
order is necessary, whether the violation be viewed as
category-unfair labor practices under Gissel or as category 2.
Curtin Matheson Scientific. Inc.. 228 NLRB 996 (1977).'
I am convinced that a rerun election or any traditional
lesser Board remedy would not convince the employees of
Respondent that the Board could successfully prevent their
Employer from conveying its many threats to shut the mine
down if they choose the Union to represent them. These
employees saw the spearhead of their organizing campaign
laid off just a few days after the union campaign com-
menced. They knew that their natural leader, Roberts, was
called to the office and grilled about the Union and about
problems at the mine. These employees knew that they had
been called to a meeting and promised many benefits, as
never had been done before, to show them that they needed
no union to better their wages or benefits. They saw two
rapid increases in wages in their paychecks, and they
experienced their first paid vacations in July. In August they
heard high officers of the Company, through interviews out
on the minesite, hammer home that the mine would be
closed if the Union came in conversely, and, that the
Company would take care of the employees wage and
hospitalization problems if they voted against and got rid of
the Union. Respondent's message of its total power over the
men's jobs, wages, and benefits had been driven home to
these employees, and while not as timeless as the mountains
surrounding the mine, it would not be dissipated for many
years. Certainly it would not be erased so as to allow a fair
election in the immediate future. The bargaining order will
be issued as of May 2, 1977, the date on which the Union
attained its majority and on which Respondent's unlawful
course of action was continuing. Rapid Manufacturing
Company, 239 NLRB 465 (1978); Beasley Energy, Inc.,
d/b/a Peaker Run Coal Company, Ohio Division #1. 228
NLRB 93 (1977); Hedstrom Company, a subsidiary of
Brown Group, Inc., 235 NLRB 1193 (1978).
CONCLUSIONS OF LAW
1. Alumbaugh Coal Corporation is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
Machine & Gear. Inc., 220 NLRB 194 (1975); Idaho Candy Company. 218
NLRB 352 (1975).
914
ALUMBAUGH COAL CORPORATION
2. United Mine Workers of America is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees and truck-
drivers employed by the Respondent at its mining operation
located in Kantner, Pennsylvania; excluding all office
clerical employees and guards, professional employees and
supervisors as defined in the Act, constitute a unit appropri-
ate for the purpose of collective bargaining within the
meaning of Section 9(b) of the Act.
4. By terminating Roger Bouch on April 18 because of his
support for the Union, Respondent had violated Section
8(a)(3) and (1) of the Act.
5. By threatening to close the mine down, by coercively
interrogating employees about their union activities, by
soliciting grievances, by promising and granting wage
increases and a vacation, by requesting that employees
withdraw their authorization cards, by threats of discharge,
by creating an impression of surveillance of employee union
activities, by threatening employees with discharge, and by
promising improved pension, profit-sharing, and hospitaliza-
tion plans, Respondent interfered with, restrained, and
coerced employees in the exercise of the rights guaranteed
them in Section 7 of the Act, in violation of Section 8(a)(l)
of the Act.
6. At all times since May 2, 1977, the Union has been the
duly designated representative of the employees in the unit
described above, within the meaning of Section 9(a) of the
Act. Respondent's misconduct undermined the majority, so
Respondent's refusal to bargain with the Union since its
request of July 6, 1977, constituted an unfair labor practice
in violation of Section 8(a)(5) of the Act.
7. Respondent's unfair labor practices nullified the results
of the September 7, 1977, representation election, and these
unfair labor practices cannot be corrected by conventional
remedies, including a rerun election. Accordingly, it is
appropriate and necessary that Respondent be ordered to
bargain with the Union, as of May 2, 1977, at which time the
Union had a majority of valid authorization cards, in a
period in which Respondent was committing unfair labor
practices.
THE REMEDY
Having found that Respondent has committed acts in
violation of Section 8(a)(1), (3), and (5) of the Act, I shall
recommend that:
I. It cease and desist from its unfair labor practices.
2. It offer Roger Bouch full reinstatement, with backpay
computed on a quarterly basis and interest thereon to be
computed in the manner prescribed in F. W. Woolworth 90
NLRB 289 (1950), and Florida Steel Corporation, 231
NLRB 651 (1977),'2 from the date of discharge to the date of
a proper offer of reinstatement.
Respondent, in its brief, contends that, even if it is found
herein that Bouch was unlawfully laid off, he is not entitled
to reinstatement due to his uncontroverted postdischarge
misconduct. Respondent presented at the hearing credible
oral and documentary evidence through a representative of
the Pennsylvania Bureau of Employment Security, an
agency of the Commonwealth of Pennsylvania, that, after
Bouch's layoff, he applied for unemployment compensation
benefits and in so doing falsified records in connection
therewith. Bouch worked for the Cardinal Mining Company
for the weeks ending June 18, June 25, and July 2, during
which weeks he earned $357, $120, and $108, respectively.
He failed to report these earnings to the Pennsylvania
Bureau of Employment Security in the weekly reports he
was required to file, although he signed his name to each
report that "the above answeres and earning information as
given are true and correct." He received unemployment
compensation for each of those weeks, in the amount of $141
per week.
In August Method received a "Charge Form" from the
Commonwealth, showing that Bouch received unemploy-
ment compensation in June and July. Having heard that
Bouch had worked for Cardinal Mining Company in June,
Method protested Brouch's receipt of compensation. After a
hearing the Bureau ruled that Bouch was not entitled to
unemployment benefits for those 3 weeks and required him
to repay those 3 weeks. The referee further assessed 5
penalty weeks on Bouch for "knowlingly failing to disclose a
material fact." Method testified at the hearing herein that he
considered that the receipt of unemployment compensation
not due to Bouch was the same as "stealing money from the
Company" and that "lying" on the forms to the bureau was
"lying to the Company."
While Bouch's actions in dealing with the bureau were
reprehensible and demolished his credibility before me, it
must be remembered that his falsifications to the bureau
could not have happened but for the Respondent's discrimi-
natory action in laying him off. What came first here was the
Company's illegal act when Method laid him off. Except for
his union activities, Bouch would have continued in Respon-
dent's employment and would not have been laid off. Of
course, if he had not been laid off, he would not have applied
for unemployment compensation and would not have been
subject to falsifying the bureau's forms. Since Respondent's
illegal act precipitated Bouch's illegal act, I find that Bouch
is entitled to the regular remedy for a discriminatory
discharge, as set forth aabove. It is well settled that state
unemployment compensation benefits do not constitute
interim earnings, and therefore they will play no part in
whatever amount of backpay is due Bouch under this Order.
Yama Woodcraft, Inc., d/b/a Cal-Pacific Furniture Mfg.
Co., 221 NLRB 1244 (1975); N.LR.B. v. Gullet Gin Co., 340
U.S. 361 (1951).
3. It bargain with the Union, upon request, as the
exclusive bargaining representative of the employees in the
unit found appropriate herein and embody any understand-
ing reached in the signed agreement. Said order shall be
retroactively effective as of May 2, 1977, the date on which
the Union had its majority of cards, and in which period the
Company was continuing its campaign of unfair labor
practices.
Finally, I shall recommend that the election in Case 6-
RC-7911 be set aside and, in view of the bargaining order
entered herein, that Case 6-RC-8365 be dismissed.
4. Post the notice provided for herein.
': see, generally, Isis Plumbing IHeating Co.. 138 NLRB 716 (1962).
915
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Because Respondent by its conduct violated fundamental
employee rights guaranteed by Section 7 of the Act and
because there appears from the manner of the commission of
this conduct an attitude of opposition to the purposes of the
Act and a proclivity to commit other unfair labor practices,
it will be recommended that Respondent cease and desist
from in any manner infringing upon the rights guaranteed
employees by Section 7 of the Act. N.LR.B. v. Entwistle
Mfg. Co.. 120 F.2d 532 (4th Cir. 1941); P R. Mallory & Co..
Inc. v. N.LR.B., 400 F.2d 956 (7th Cir. 1968), cert. denied
394 U.S. 918 (1969).
Upon the foregoing findings of fact and conclusions of law
and the entire record, and pursuant to Section 10(c) of the
Act, there is hereby issued the following recommended:
ORDER4
The Respondent, Alumbaugh Coal Corporation, Kantner,
Pennsylvania, its officers, agents successors, and assigns
shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against any
employee for supporting United Mine Workers of America
or any other union.
(b) Threatening its employees with closing the mine down
if the Union comes into the mine.
(c) Threatening the employees with discharge if the Union
comes in.
(d) Coercively interrogating employees concerning their
union attitude or activities.
(e) Promising or granting benefits, or soliciting grievances
and promising to remedy such grievances, in order to induce
employees not to support the Union.
(f) Soliciting its employees to withdraw their designations
of the Union as their bargaing representative.
(g) Creating the impression of surveillance of the employ-
ees' union activity.
(h) Refusing to bargain with the Union as the collective-
bargaining representative of Respondent's employees in the
unit found appropriate.
(i) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed
them under Section 7 of the Act.
" In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board. the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act:
(a) Offer Roger Bouch immediate and full reinstatement
to his former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him whole
for his lost earnings in the manner set forth in the section of
this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all records necessary to analyze
the amount of backpay due under the terms of this Order.
(c) Upon request, bargain collectively and in good faith
with the United Mine Workers of America as the exclusive
bargaining representative of the employees in the unit
described below, and embody in a signed agreement any
understanding reached. The unit is:
All production and maintenance employees and
truckdrivers employed by the Respondent at its mining
operation located in Kantner, Pennsylvania; excluding
all office clerical employees and guards, professional
employees and supervisors as defined in the Act.
(d) Post at its mine in Kantner, Pennsylvania, and in its
office in Friedens, Pennsylvania, copies of the attached
notice marked "Appendix."" Copies of the notice on forms
provided by the Regional Director for Region 6, after being
duly signed by Respondent's representative, shall be posted
by Respondent immediately upon receipt thereof, and be
maintained 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 6, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the results of the represen-
tation election of September 7, 1977, in Case 6-RC-791 1, be
set aside, and that said proceeding be dismissed.
IT IS ALSO ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found herein.
- In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
916