Barnett Supply Co., Inc.

National Labor Relations Board - Board Decisions

Mar 17, 1986

278 N.L.R.B. 1005 (N.L.R.B. 1986)

BARNETT SUPPLY CO. 1005
Barnett Supply Company, Inc. and District 31,
United Mine Workers of America . Case 9-CA-
21242
17 March 1986
DECISION AND ORDER
BY MEMBERS JOHANSEN , BABSON, AND
STEPHENS
On 5 November 1985 Administrative Law Judge
Leonard M. Wagman issued the- attached decision.
The Respondent filed exceptions and a supporting
brief.'
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,2 and
conclusions3 and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative • law
judge and orders that the Respondent , Barnett
Supply Company, Inc., Summersville , West Virgin-
ia, its officers, agents , successors, and assigns, shall
take the action set forth in the Order.
Forest H. Roles and Anna M. Norton, Esqs. (Smith,
Heenan, Althen and Zanolli), of Charleston , West Vir-
ginia, for the Respondent.
Jerry D. Miller, of Fairmont, West Virginia , for the
Charging Party.
DECISION
STATEMENT OF THE CASE
LEONARD M. WAGMAN, Administrative Law Judge.
Upon an unfair labor practice charge filed by District 31,
United Mine Workers of America (the Union), on 12
September 1984, against Barnet Supply Company, Inc.
(Company), the Reginal Director for Region 9 of the
National Labor Relations Board issued a complaint and
notice of hearing on 26 October.' The complaint alleges
that the Company had violated Section 8(a)(5) and (1) of
the National Labor Relations Act, by failing and refusing
to comply with a collective-bargaining agreement's re-
quirement that it remit dues to the Union, which the
Company had checked off from unit employees' pay-
checks and by failing to comply with the same collec-
tive-bargaining agreement's requirement that it recall unit
employees to work on the basis of seniority. The Compa-
ny filed a timely answer denying that it had committed
the alleged unfair labor practices. I heard the case on 4
and 5 December, at Charleston, West Virginia, and on 8
January 1985, at Richwood, West Virginia.
Upon the entire record in this case, my observation of
the witnesses' demeanor, and upon consideration of the
briefs filed by the General Counsel and the Company, I
make the following
1 The General Counsel filed limited exceptions and a supporting brief,
but subsequently filed a motion requesting permission to withdraw the
limited exceptions and supporting brief. By Order dated 3 December
1985, the Board granted the motion.
8 The Respondent has excepted to some of the judge 's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd . 188 F.2d 362 (3d Cir . 1951).
We have carefully examined the record and find no basis for reversing
the findings.
The Respondent excepts , inter alia , to the judge 's failure to find that
Ralph Barnett served as chairman of the mine committee for the Charg-
ing Party while he was employed at Ritter -Greene Coal Company and
during the time he allegedly was acting as the Respondent 's agent. We
find, based on Ralph Barnett's testimony at the hearing, that he served as
chairman of the mine committee during the times at issue herein. This
finding , however , does not affect the results of our decision.
We also correct the judge's inadvertent error in twice referring to the
..UMW„ as "UAW."
® In par . 11 of the "Analysis and Conclusions" section of his decision,
the judge found , and we agree , that the Respondent adopted the Ritter-
Greene seniority list on 5 June 1984 and therefore was required under the
United Mine Workers (UMW) Agreement to recall first the employees
who had worked for it from 9 July 1984 to 16 July 1984, and then the
remaining laid-off Ritter-Greene employees when it resumed operations
on 5 September 1984. The judge alternatively found that, even assuming
the Respondent did not adopt the Ritter-Greene seniority list, the UMW
Agreement required the Respondent to recall its employees who had
worked from 9 July 1984 to 16 July 1984 before offering employment to
others. Because we adopt the judge's initial finding that the Respondent
adopted the Ritter -Greene seniority list, we find it unnecessary to rely on
his alternative finding.
Gorey E. Lindsay, Esq., for the General Counsel.
278 NLRB No. 146
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
INVOLVED
The Company is a West Virginia corporation which
mines coal at Summersville, West Virginia . During the
calendar year 1984 , the Company provided services
valued in excess of $50,000 to Island Creek Coal Compa-
ny. As Island Creek Coal Company is directly engaged
in commerce, I find that the Company's operations satis-
fy the Board's indirect outflow standard and that the
Company is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
I also find that the Union , District 31, United Mine
Workers of America, is a labor organization within the
meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts2
Ritter-Greene Coal Company operated a coal mine at
Summersville , West Virginia, from February or March
1982, until 5 June 1984, under a contract with the lease-
holder, Island Creek Coal Company, to whom Ritter-
Greene sold the mined coal. On 5 June , Ritter-Greene
Unless otherwise shown, all dates refer to 1984.
z Except as noted , the essential facts in this case are not disputed.
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shut down its Summersville operation because of finan-
cial problems.
From 1982 until 5 June 1984, the Union represented
Ritter -Greene's employees under the Bituminous Coal
Wage Agreement of 1981 (the UMW Agreement). At
the hearing before me , the General Counsel , the Compa-
ny, and the Union agreed that the bargaining unit which
the agreement described included all the employees em-
ployed at the Company 's Summersville coal mine oper-
ation , excluding office clerical employees , coal inspec-
tors, weigh bosses , professional employees , technical em-
ployees, guards, watchmen , mine foremen , assistant mine
foremen, and all other supervisors as defined in the Act.
On 5 June , the bargaining unit consisted of 17 employ-
ees whose seniority entitled them to be ranked as fol-
lows:
Howard D . Hinkle (referred to as "John" and "Daryl"
in the record); Kevin Holliday ; Jimmie Legg (also re-
ferred to in the record as "Jimmy "); Homer L . Louder-
milk; John Thompson ; Ralph Barnett; John Akers; Ralph
Dillard ; Charles Ward; William Hoover ; Elmer Duncan;
Daniel Holland ; Timothy Goheen ; Ricie Boggs; Everette
McKinney ; Joseph Proctor ; and Buhal Given. Two of
the above employees, John Akers and Ralph Barnett,
had been on layoff status since 4 June . Ritter-Greene laid
off the remaining 15 unit employees effective 8 June.
On 11 June, Gloria J. Barnett , the Company 's presi-
dent since its formation in 1980 entered into an agree-
ment with Island Creek Coal Company under which the
Company would operate the Summersville mine which
Ritter-Greene had abandoned 6 days earlier . Present
with' Ms. Barnett on this occasion were her husband,
Ralph , who was a laid -off Ritter-Greene employee, and
William Greene , the owner of Ritter-Greene.
On 14 June , the Union 's president, vice president, and
most of the laid-off Ritter-Greene employees , including
Ralph Barnett , met at the Union 's Craigsville, West Vir-
ginia office . During the meeting , Ralph Barnett told the
Union 's vice president , Jerry Miller, who knew that
Gloria Barnett was Ralph 's wife, and the assembled
former Ritter-Greene employees that the Company
would take over the former Ritter -Greene mine. Ralph
also told Miller that the Company would sign a contract
with the Union's parent International after Gloria Bar-
nett had completed negotiations with Island Creek, and
that Gloria was incorporating the Company on that same
day. At the same meeting , Ralph Barnett and four volun-
teers from among the former . Ritter-Greene employees
agreed to perform some maintenance work at the former
Ritter-Greene mine.
On 15 June, Gloria Barnett incorporated the Compa-
ny, as her husband had announced . In preparing the
forms for incorporation, she declared that the Company's
purpose was to engage in deep mining of coal.
Later in June, Ralph Barnett attended three or four
meetings with laid-off Ritter-Greene employees at the
Union 's Craigsville, West Virginia office . The assembled
employees discussed the Company 's resumption of the
former Ritter-Greene mine operation and the collection
of back wages which Ritter -Greene owed them . I find,
from Gloria Barnett's testimony , that in June she "was
aware that [her] husband was having meetings in the
union hall" with the former Ritter-Greene employees.
Ralph also apprised Gloria of the matter which he and
the other participants had discussed.
On 23 June, Ralph Barnett and his colleagues from
Ritter-Greene met and discussed the reopening of the
mine . I find from Homer L. Loundermilk's testimony,
that Ralph - obtained volunteers to work at the mine,
without pay, during the 2-week period from that date
until 7 July, known as "miners ' vacation."3 Ralph and
the other volunteers agreed to make repairs during
miners' vacation to ready the mine for production begin-
ning on 9 July . The volunteers were former Ritter-
Greene forman Richard Ramsey and former Ritter-
Greene employees John Thompson , John Akers, Ralph
Dillard , and Ralph Barnett . During the miners ' vacation,
Gloria Barnett was aware of the maintenance activity in
progress at the mine.
At the meeting of 23 June, Ralph Barnett also an-
nounced that he would call the seven most senior former
Ritter-Greene employees to work the mine when it was
ready for production,' after 7 July. Ralph also told
former Ritter-Greene employee Charles Ward, "You'll
be the eighth man to be called back."4
On the evening of 23 June, Ralph Barnett reported the
highlights of the meeting to his wife , Gloria. Ralph told
Gloria that Kevin Holliday and Homer L. Loudermilk
wanted to be paid for the time they worked. Gloria said,
"There is no problem there." Gloria agreed to the plan
to start coal production in two shifts after the miners' va-
cation.
On 7 July, Gloria Barnett left for Peoria, Illinois. She
did not return home until 16 July.
On 8 July Ralph Barnett telephoned Jimmie Legg and
told him to report to the mine on the following day and
to contact other employees and tell them to report to the
mine on the same day. Ralph also telephoned Howard
D. Hinkle and Kevin Holliday on 8 July and told them
to.report to work at the mine on the following day.
When the mine began producing coal on 9 July,
Homer L. Loudermilk , Jimmie Legg , Howard D.
Hinkle, and Kevin Holliday worked on the day shift.
Elmer Duncan began working at the mine as a mine
electrician on the day shift on 10 July. Richard Ramsey
was foreman . The night shift consisted of volunteers
John Akers, Ralph Dillard , John Thompson, and Ralph
Barnett . The two shifts operated the mine on 8, 10, 12,
and 16 July.5
s Ralph Barnett denied that he asked for volunteers to work at the
mine during the 2-week period referred to as the miners' vacation. How-
ever, for the reasons set forth below in fn. 5, I have rejected Barnett's
denial and have credited Loudermilk, who impressed me as being a more
candid witness.
* I based my findings regarding Ralph Barnett's announcement and
remark to Charles Ward upon the testimony of Joy Russell and Howard
D. Hinkle, who both testified in a straightforward manner. In assessing
Barnett's credibility, I considered the infirmities which I set out below in
fn. 5.
s Ralph Barnett testified that the other employees reported to the mine
on 9 July on their own initiative without any prior solicitation. However;
as Hinkle, Holliday, and Legg impressed me as being more candid wit-
nesses than Barnett, I have credited their testimony showing that on 8
July he asked them to report to the mine on the following day. In assess-
Continued
BARNETT SUPPLY CO.
On 9 July Howard D. Hinkle, Kevin Holliday, Jimmie
Legg, and Homer L. Loudermilk executed checkoff au-
thorization forms, authorizing the Company to deduct
union dues and assessments from their wages and remit
them to the Union. The employees submitted their
signed authorization cards to William Greene , a compa-
ny employee.
Article XV of the UMW Agreement required signato-
ry employers to checkoff dues and assessments from
wages in accordance with their employees ' written
checkoff authorizations . This article also required that
the employer remit the dues and assessments to the
Union within 30 days after the employer had checked
them off. Although the Company withheld union dues
and strike fund assessments from wage payments it made
to Elmer Duncan , Howard D. Hinkle , Jimmie Legg,
Homer L. Loundermilk , and Kevin Holliday on 16 July,
it has not remitted the checkoff dues and assessments to
the Union.
During the period from 9 July to 16 July, Ralph Bar-
nett worked at the reopened mine as an electrician. In
addition , Barnett, on his own initiative, authorized em-
ployee Elmer Duncan to work on the day shift, assigned
Loundermilk to the roof bolt machine, designated the
days on which the mine would operate, and acted as
company spokesman when prospective suppliers visited
the mine.
On 10 July Ralph Barnett appeared at the Union's
Craigsville office and said he wanted to sign the UMW
Agreement. The Union's representative, Joy Russell and
the Union's office at Fairmont, West Virginia, would not
accept his signature in lieu of Gloria Barnett's signature.
Instead , at Ralph's instructions , Russell wrote the follow-
ing on a page from a desk calendar:
Effective as of 7-9-84 Ralph Barnet [sic] will
comply with all term [sic] of the 1981 wage agree-
ment.
Ralph immediately signed "Gloria Barnett" at the
bottom of the page . He also assured Russell that Gloria
would sign the UMW Agreement.
In addition to the UMW Agreement, Ralph discussed
two matters with union officials during Gloria's absence.
The first matter arose on 12 July, when former Ritter-
Greene employee Charles Ward filed a grievance claim-
ing that a supervisor had performed bargaining unit
work at the mine . One or two days later, Ralph visited
the Union's office and told Union Representative Joy
Russell that Ward had no claim against the Company.
The second matter concerned safety . Ralph Barnett
discussed this matter with the Union's safety director on
ing Ralph Barnett 's testimony, I noted that Ralph contradicted his testi-
mony that Gloria agreed with his intention to start mining operations at
the former Ritter-Greene site, after the miners' vacation period ended on
7 July. Further , after strenuously denying on cross-examination that he
had discussed his testimony with anyone , Ralph contradicted himself on
redirect examination , conceding that he had discussed his testimony with
the Company's counsel. These infirmities in Ralph Barnett 's testimony,
together with my impression that he was overly anxious to persuade me
that he was not a leader in the effort to resume operations at the Ritter-
Greene mine, convinced me that he was not a reliable witness.
1007
more than one occasion . However, the record does not
disclose the substance or outcome of the discussions.
On her return, on 16 July, Gloria Barnett ordered that
mining operations cease at the former Ritter -Greene site.
That same day, Gloria used personal checks to pay the
five members of the mine's day shift . In computing their
pay, Gloria used a daily wage rate of $114 which Ralph
had received at Ritter-Greene . Gloria also withheld from
the wages money for taxes , union dues , and a strike ben-
efit fund assessment . She also gave layoff slips to the five
day-shift employees.
On 17 July Gloria appeared at the Union's office and
signed the UMW Agreement . I find from her testimony
that "on several occasions" prior to 17 July, she had
gone to the Union's office for that puipose, only to find
that the Union had no copy for her to sign.
Between 16 and 30 July Ralph Barnett conversed with
the Union 's vice president , Jerry D. Miller , on two occa-
sions . These conversations covered the closing and the
reopening of the mine, the recall of the former Ritter-
Greene employees according to the seniority they had
accrued while working for that firm , and a written
agreement , which the Union was preparing , requiring the
Company to compensate the employees for the wages
which Ritter-Greene owed them.
On 30 July Gloria Barnett , her husband Ralph, and a
labor relations consultant met with Vice President Miller
and three other union officials . The participants dis-
cussed Ward's grievance , an agreement to pay the wages
due from Ritter -Greene to its former employees, the
Company's status, i .e., whether it was a successor to
Ritter-Greene, the reopening of the mine, and the recall
of the laid-off employees. The parties failed to reach
agreement on any of the issues before them.
The Company. resumed mining at the former Ritter-
Greene coal mine on 5 September . It employed the fol-
lowing employees at the mine from that date until it
closed the mine on 16 November:
Ralph Dillard Rixie Yarber
Joe Proctor Robert Barnett Jr.
Steven Akers Charles Barnett
John Akers David Kier
Timothy Goheen Todd Barnett
Larry Hicks Ralph Barnett
Buhal Given
Of the former Ritter-Greene employees who worked
at the mine from 9 July to 16 July, the Company did not
recall the following:
Howard D. Hinkle Homer L. Loudermilk
Kevin Holliday John Thompson
Jimmie Legg Elmer Duncan
The Company also failed to recall the following Ritter-
Greene employees laid off by Ritter -Greene on 5 June:
Charles Ward William Hoover
Daniel Holland Ricie Boggs
Everette McKinney
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Article XVII of the UMW Agreement required that em-
ployees party to the agreement recall laid-off employees
from a panel in order of seniority.6 I find from Gloria J.
Barnett's testimony that in hiring employees to work at
the mine during the period from 5 September until 16
November, she did not look to any panel of former.
Ritter-Greene employees.
The Company reopened its mine on 2 January 1985.
The record does not disclose the names of the employees
who worked at the mine on and after that date.
B. Analysis and Conclusions
Looking to NLRB v. Burns Security Services, 406 U.S.
272 (1972), the Company conceded that it was a succes-
sor to Ritter-Greene and was therefore obligated to rec
ognize the Union as the employees' exclusive bargaining
agent . The record showed that all the Company's em-
ployees, who worked at the former Ritter-Greene site
from 9 July until 16 July were laid-off Ritter-Greene em-
ployees, and that the Union had represented these em-
ployees under the UAW Agreement. I find, therefore,
that the Company's duty to bargain with the Union arose
on 9 July, when its work force of former Ritter-Greene
employees began performing essentially "the same tasks
at the same place they had worked in the past." NLRB
v. Burns Security Service, supra, 406 U.S. at 278. Accord:
e.g., Jeffries Lithograph Co., 265 NLRB 1499, 1503-1504
(1982).
However, I disagree with the Company's further con-
tention that it was not obligated to honor the checkoff
provision in the UMW Agreement for the period from 9
July until 16 July, or to comply with the recall provi-
sions of that agreement when it resumed its Summers-
ville, West Virginia mine operation on 5 September. My
disagreement with the Company turns on the question of
whether Ralph Barnett was its agent in-his dealings with
the Union and with those former Ritter-Greene employ-
ees-who worked at the Company' s mine site from 9 July
until 16 July.
Contrary to the Company's contention, I find ample
evidence that Ralph Barnett had apparent authority to
conduct himself as the Company's agent in dealing with
the Union and the former Ritter-Greene employees who
worked with him at the mine from 9 July to 16 July.
When Ralph met with union officials and former Ritter-
Greene employees on 14 June, he announced that his
wife's Company would take over the former Ritter-
Greene mining operation and sign a contract with the
United Mine Workers of America. On 15 June Gloria
fulfilled part of the blueprint which her husband had laid
out to the Union and the employees.
6 Art. XVII of the UMW Agreement entitled "seniority," provided in
pertinent part:
Section (a) Definition of Seniority
Seniority at the mine shall be recognized in the industry on the
following basis : length of service and the ability to step into and per-
form the work of the job at the time the job is awarded... .
Section (d) Panels
Employees who are idle because of a reduction in 'the working
force shall be placed on a panel from which they shall be returned to
employment on the basis of seniority as outlined in Section (a)... .
Thereafter, until 30 July, Ralph and Gloria afforded
the Union and the former Ritter-Greene employees fur-
ther ground for believing that Ralph spoke for the Com-
pany. On 23 June Ralph sought and obtained volunteers
to prepare the mine for production during the next 2
weeks. For the next 2 weeks, while Gloria was aware of
their presence at the mine, the volunteers labored there,
getting it ready for the mining of coal, without her inter-
vention.
Also, on 23 June, Ralph announced that he would call
the seven most senior Ritter-Greene employees to mine
coal at the Company's site after 7 July. The record
shows that on 8 July, Ralph telephoned Jimmie Legg
and told him to report to the mine on 9 July and to de-
liver the same message to other employees. Ralph also
contacted Ralph D. Hinkle and Kevin Holliday and di-
rected them to report to the mine on the following day.
In addition to Legg, Hinkle, and Holliday, an electrician,
Elmer Duncan, and Homer L. Loudermilk, John Akers,
Ralph Dillard, John Thompson, and Foreman Richard
Ramsey all joined Ralph Barnett at the mine on 9 July.
Aside from Ramsey and Elmer Duncan, those who ap-
peared at the mine on 9 July were the most senior em-
ployees whom Ritter-Greene had laid off. From Ralph's
announcement on 23 June, and the evidence of his calls
to Legg, Hinkle, and Holliday, I find that Ralph was re-
sponsible for the appearance of the seven most senior
former Ritter-Greene employees at the mine on 9 July.
Ralph Barnett demonstrated to the employees at the
mine that he had authority to speak for the Company
during the period from 9 July to 16 July. He authorized
Elmer Duncan to work as the electrician on the day
shift, and assigned Homer L. Loudermilk to operate the
roof bolt machine. Further, Ralph designated the days
on which the mine would operate and acted as the Com-
pany's representative when prospective suppliers sought
to do business with it.
On 10 July Ralph attempted to bind the Company to
the UAW Agreement. He came to the Union's office and
offered to sign the agreement for the Company. When he
learned that his signature was not acceptable to the
Union, he nevertheless made an effort to bind the Com-
pany, effective 9 July. He also assured the Union that his
wife would sign the contract on her return from her trip.
When Gloria returned on 16 July, she ratified Ralph's
attempt to obligate the Company to the UMW Agree-
ment and the Ritter-Greene seniority list. She paid the
day-shift employees and withheld union dues and a strike
fund assessment , as required by the agreement 's checkoff
provision. More important,- she signed the agreement on
17 July without repudiating Ralph 's attempt to bind the
Company to that agreement, retroactive to 9 July. Final-
ly, she issued layoff slips to the day-shift employees in-
stead of discharging them. By this act, Gloria treated
them as company employees who had an expectation of
reinstatement when she reopened the mine.
From the foregoing recitation of the Barnetts' conduct
in' June and July, I find that the Company "held out"
Ralph Barnett as its agent . See Bio-Medical Application of
Puerto Rico, 269 NLRB 827, 828 (1984). Specifically, I
find that Gloria ratified her husband Ralph's hiring of
BARNETT SUPPLY CO. 1009
the day shift on 9 July, his attempt to bind the Company
to the UMW Agreement on 10 July, and his committ-
ment on the Company's behalf to honor the Ritter-
Greene seniority list. See Airborne Freight Corp., 263
NLRB 1376, 1384-1385 (1982).
In sum , I find that the UMW Agreement covered the
Company's Summersville mine employees effective 9
July. Accordingly, under the UMW Agreement, the
Company was obligated to remit to the Union the dues
and strike fund assessment it withheld from at.least four
of its employees on 16 July.7
I also find that the Company adopted the Ritter-
Greene seniority list as it existed on 5 June . I find , there-
fore, that the UMW Agreement 's recall provision re-
quired that the Company recall first the employees who
had worked at its mining operation from 9 July to 16
July and thereafter the remaining laid-off Ritter -Greene
employees , when it resumed operations at the Summers-
ville mine on 5 September . However, as an alternative, I
find that even if Ralph 's and Gloria's conduct did not
bind the Company to the Ritter-Greene seniority list, the
UMW Agreement -required the Company to recall first
all the employees who had worked at its mine operation
from 9 July to 16 July, before offering employment to
others, when it resumed operations on 5 September.
In sum , I find that the Company violated Sections
8(a)(5) and ( 1) of the Act by failing to remit the
checked -off dues and strike fund assessmentss of bargain-
ing unit employees, and by hiring new employees for its
resumed mining operation on 5 September , without
regard for the Ritter -Greene seniority list, all without
giving to the Union prior notice and an opportunity to
negotiate and bargain about these departures from the
UMW Agreement.
In light of the foregoing findings of fact and on the
entire record in this case , I make the following
CONCLUSIONS OF LAW
1. The Company, Barnett Supply Company, Inc., is an
employer engaged in commerce within the meaning of
the Section 2(2), (6), and (7) of the Act.
2. The following employees of the Company constitute
a unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act:
All employees employed at the Company's Sum-
mersville, West Virginia coal mine operation, ex-
cluding all office clerical employees , coal inspec-
tors, weigh bosses, professional employees, techni-
cal employees , guards, watchmen , mine foremen, as-
sistant mine foremen, and all other supervisors as
defined in the Act.
° The record shows that Howard D. Hinkle , Kevin Holliday, Jimmie
Legg, and Homer L. Loudermilk executed checkoff authorization forms
on 9 July . There was no showing that Elmer Duncan executed an author-
ization form during the period from 9 July to 16 July.
8 Although the complaint only alleges that the Company failed to
remit dues , the record shows that the Company also failed to satisfy its
obligation to remit strike fund assessments . As the matter of the Compa-
ny's failure to remit strike fund assessments was fully litigated and is
closely related to the alleged violations , Board policy permits me to find
that the failure to remit the assessments also violated Sec. 8(a)(5) and (1)
of the Act.
3. Since 9 July 1984, and at all times material, the
Union has been , and is now, the exclusive bargaining
representative of the employees in the appropriate unit.
4. The Company violated Section 8(a)(5) and (1) of the
Act by withholding . dues and strike fund assessments
from the paychecks of unit employees for the period
from 9 July to and including 16 July 1984 and by failing
to make a proper tender of dues and assessments to the
Union.
5. The Company violated Section 8(a)(5) and (1) of the
Act commencing on 5 September 1984, by failing and re-
fusing to recall bargaining unit employees to work at its
Summersville , West Virginia mining operations on the
basis of seniority , as required by the National Bituminous
Coal Wage Agreement of 1981.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that the Company has engaged in cer-
tain unfair labor practices, I shall recommend that it be
ordered to cease and desist and to take certain affirma-
tive action designed to effectuate the policies of the Act.
Having found that the Company violated Section
8(a)(5) and ( 1) of the Act by failing to remit to the Union
the dues and assessments it had withheld from at least
four and possibly five of its employees ' paychecks for
the period 9 July 1984 to and including 16 July 1984, I
shall recommend that the Company be required to remit
to the Union the dues and assessments it properly9 with-
held from its employees' paychecks for that period, with
interest on the dues and assessments to be computed in
the manner prescribed in Florida Steel Corp., 231 NLRB
651 (1977).10
Having also found that the Company violated Section
8(a)(5) and (1) of the Act, commencing on 5 September
1984, by failing to recall employees in accordance with
their seniority, as provided in the National Bituminous
Coal Wage Agreement of 1981 , and recognizing that the
Company resumed mining operations on 2 January 1985,
I shall recommend that the Company be ordered to rein-
state any of the employees on the Ritter-Greene seniority
list as of the end of the workday on 5 June 1984, includ-
ing those who worked at the Company 's Summersville,
West Virginia mine from 9 July until 16 July 1984, but
were not recalled during the period 5 September, to and
including 16 November 1984, and those other former
Ritter-Greene employees whom the Company should
have recalled from 5 September 1984, had the Company
recalled its employees in order of seniority. I recommend
the Company also be ordered to make those employees
whole for any loss of wages they may have suffered by
reason of the Company's failure to recall them in order
of seniority. The Company's backpay liability shall be
8 It is recommended that the Regional Director, on seeking compliance
with the Order in this decision, determine whether Elmer Duncan exe-
cuted a checkoff authorization permitting the Company to withhold
union dues and assessments from Elmer Duncan's wages for the period
from 9 July to 16 July 1984.
10 See generally Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
computed on a quarterly basis from the date each em-
ployee was entitled to recall to the date of a proper offer
of reinstatement , less any net interim earnings , as pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
plus interest as computed in Florida Steel Corp., supra. I
shall also recommend that the Company be required to
restore to the former Ritter-Greene employees the se-
niority to which they would be entitled , but for the
Company's failure to recall them to work in order of se-
niority.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed11
ORDER
The Respondent , Barnett Supply Company, Inc., Sum-
mersville, West Virginia, its officers, agents, successors,
and assigns , shall
1. Cease and desist from
(a) Failing and refusing to remit to District 31, United
Mine Workers of America the dues and assessments it
was authorized to withhold from its employees' pay-
checks for the period from 9 July 1984 , to and including
16 July 1984, as required by the collective-bargaining
agreement between it and the Union.
(b) Failing and refusing to recall bargaining unit em-
ployees to work on the basis of their seniority as re-
quired by the collective-bargaining agreement between it
and District 31, United Mine Workers of America, in the
following bargaining unit:
All of the employees employed at the Company's
Summersville , West Virginia coal mine operation,
excluding all office clerical employees , coal inspec-
tors, weigh bosses , professional employees, techni-
cal employees , guards, watchmen , mine foremen, as-
sistant mine foremen , and all other supervisors as
defined in the Act.
(c) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Remit to District 31, United Mine Workers of
America the dues and assessments it was authorized to
withhold from the paychecks of the bargaining unit em-
ployees for the period from 9 July 1984, to and including
16 July 1984, plus interest , as set forth in the remedy sec-
tion of this decision.
(b) Promptly offer employment at its Summersville,
West Virginia mine operation to Howard D. Hinkle,
Kevin Holliday , Jimmie Legg, Homer L. Loudermilk,
John Thompson, Charles Ward, William Hoover, Elmer
Duncan , Daniel Holland , Ricie Boggs, and Everette
McKinney , in accordance with their seniority under the
Bituminous Coal Wage Agreement of 1981, dismissing, if
If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions, and recommended
Older shall , as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
necessary , any employee with less seniority than these
employees have, without prejudice to their seniority or
other rights or privileges previously enjoyed , and make
them whole , with interest , for any loss of income they
may have suffered as a result of its failure to recall them
from layoff in order of seniority.
(c) Restore to Howard D. Hinkle, Kevin Holliday,
Jimmie Legg, Homer L. Loudermilk , John Thompson,
Charles Ward, William Hoover , Elmer Duncan , Daniel
Holland , Ricie Boggs, and Everette McKinney the se-
niority they had accrued as employees of Ritter-Greene
Company, as of 5 June 1984, and such further seniority
as they would have accrued , but for the Company's fail-
ure to recall them on and after 5 September 1984.
(d) Preserve and, on request , make available to the
Board or its agents for examination and copying , all pay-
roll records , social security payment records , timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(e) Post at its mine at Summersville , West Virginia,
copies of the attached notice marked "Appendix."12
Copies of the notice , on forms provided by the Regional
Director for Region 9, after being signed by the Re-
spondent 's authorized representative , shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted . Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
1$ If 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 Nation-
al 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice,
Section 7 of the Act gives employees these rights.
To organize
To form, join , or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
BARNETT SUPPLY CO.
WE WILL NOT fail and refuse to remit to District 31,
United Mine Workers of America, the dues and assess-
ments we were authorized to withhold from our employ-
ees' paychecks for the period from 9 July 1984, to an in-
cluding 16 July 1984, as required by our collective-bar-
gaining agreement with District 31.
WE WILL NOT continue to fail and refuse to recall em-
ployees in the following bargaining unit to work on the
basis of their seniority, as required by our collective-bar-
gaining agreement with District 31:
All of the employees employed at the Company's
Summersville , West Virginia coal mine operation,
excluding office clerical employees, coal inspectors,
weigh bosses , professional employees , technical em-
ployees, guards, watchmen , mine foremen, assistant
mine foremen , and all other supervisors as defined
in the Act.
WE WILL NOT in any like or related manner interfere
with , restrain , or coerce our employees in the execrise of
the rights guaranteed them by Section 7 of the Act.
WE WILL remit to District 31, the dues and assess-
ments we were authorized to withhold from our employ-
ees' paychecks for the period 9 July 1984, to and includ-
loll
ing 16 July 1984 , as required by our collective -bargaining
agreement with District 31.
WE WILL promptly offer employment at our Summers-
ville, West Virginia mine operation to Howard D.
Hinkle, Kevin Holliday, Jimmie Legg, Homer L. Lou-
dermilk, John Thompson, Charles Ward, William
Hoover, Elmer Duncan , Daniel Holland , Ricie Boggs
and Everette McKinney in accordance with their seniori-
ty under the Bituminous Coal Wage Agreement of 1981,
dismissing , if necessary , any employee with less seniority
than these employees have, without prejudice to their se-
niority or other rights or privileges previously enjoyed,
and WE WILL make them whole , with interest, for any
loss of income they may have suffered as a result of our
failure to recall them from lay off in order of seniority.
WE WILL restore to Howard D. Hinkle, Kevin Holli-
day, Jimmie Legg, Homer L. Loudermilk, John Thomp-
son, Charles Ward, William Hoover, Elmer Duncan
Daniel Holland , Ricie Boggs and Everette McKinney
the seniority they had accrued as employees of Ritter-
Greene Company as of 5 June 1984, and such further se-
niority as they would have accrued, but for our failure to
recall them from 5 September 1984.
BARNETT SUPPLY COMPANY, INC.