Benjamin Coal Co. And Empire Coal Co., Inc., And/Or Benjamin Coal, Co., Debtor-In-Possession, And Empire Coal Co., Debtor-In-Possession

National Labor Relations Board - Board Decisions

May 31, 1989

294 N.L.R.B. 572 (N.L.R.B. 1989)

572 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Benjamin Coal Company and Empire Coal Company,
Inc., and/or Benjamin Coal, Company , Debtor-
in-Possession , and Empire Coal Company,
Debtor-in-Possession and United Mine Workers
of America and Benjamin Employees Against
the Union , Party in Interest
Benjamin Coal Company and Empire Coal Company,
Inc. and United Mine Workers of America, Pe-
titioner . Cases 6-CA-17216, 6-CA-17345, 6-
CA-17392, and 6-RC-9403
May 31, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On July 31, 1985, Administrative Law Judge
Joel A. Harmatz issued the attached decision. The
Respondent filed exceptions and a supporting brief,
the General Counsel filed a brief in response, the
Charging Party and the General Counsel filed
cross-exceptions and supporting briefs, and the Re-
spondent filed a brief in response.
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 briefs and has
decided to affirm the judge's rulings, findings, i and
' The Respondent , the General Counsel , and the Charging Party have
excepted to some of the judge 's credibility findings The Board ' s estab-
lished 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
2 In adopting the judge's conclusion that the Respondent did not vio-
late Sec 8 (a)(1) through its formal election campaign statements, in
which it suggested the possibility of plant closure and bankruptcy upon
unionization and subsequent economic developments , we find it unneces-
sary to rely on the judge 's characterization of decisions involving the le-
gality of plant closure statements In agreeing with the judge that the Re-
spondent did not violate the Act through David Benjamin ' s November 4,
1983 letter to employees predicting dire economic consequences if the
Union were voted in, we note that the letter relied in part on strong evi-
dence that the Union would insist on the terms of the standard agreement
of the Bituminous Coal Operators Association (BCOA) and we also note
that evidence from the Union 's own campaign statements substantiates
the Respondent 's view in that regard
In adopting the judge 's finding that payroll clerk Sara Mahaffey acted
as an agent of the Respondent at all relevant times, we do not rely on the
fact that she served as a trustee under the Respondent's pension plan See
Food & Commercial Workers Local 1439 (Layman 's Market), 268 NLRB
780 (1984) Also, in adopting the judge 's conclusion that the Respondent
unlawfully interrogated employee James McLaughlin , we note that there
is no evidence that McLaughlin was an open union advocate
The Charging Party excepts to the judge 's failure to find that Supervi-
sor Fleming 's threats to employees Thompson and Young in retaliation
for filing charges under the Act violated Sec 8 (a)(4) in addition to Sec
8(a)(I) Because our remedy would not be materially affected , we find it
unnecessary to pass on whether the Respondent violated Sec 8(a)(4)
through Fleming 's threats Cf C E Wilkinson & Sons, 255 NLRB 1367
fn 2 (1981)
In adopting the judge ' s conclusion that the Respondent violated Sec
8(a)(1) of the Act by reversing its longstanding denial of pension benefits
conclusions2 as modified3 and to, adopt the recom-
mended Order4 'as modified. s
We are adopting the judge's recommendation
that we issue a Gissel6 bargaining order. We agree,
for the reasons stated by the judge, that the unfair
labor practices engaged in by the Respondent after
the Union demonstrated a majority in the Novem-
ber 17, 1983 election were of such a nature and
extent that the possibility of conducting a fair rerun
election by the use of traditional remedies is slight,
and that employee sentiment, which was expressed
through the November 1983 election, "would, on
balance, be better protected by a bargaining
order."7 The Respondent, however, argues that the
expression of majority support for the Union ex-
pressed in that election is itself unreliable because it
was tainted by appeals to religious bigotry of a
kind that the Board, in Sewell Mfg. Co., 138 NLRB
66 (1962), and its progeny, has held so contami-
nates the atmosphere that a true picture of employ-
ee sentiment concerning union organization cannot
be obtained.8 For reasons stated by the judge and
for the reasons that follow, we disagree.
to the father of employee David Leasure shortly before the second elec-
tion , Chairman Stephens and Member Cracraft do not rely on any pre-
sumption that benefits granted during an organizing campaign are unlaw-
ful Rather, they infer improper motive and interference with employee
Sec 7 rights from all the evidence presented and the Respondent's failure
to present a persuasive business reason demonstrating that the timing of
this action was governed by factors other than the union campaign
Montgomery Ward & Co, 288 NLRB 126 fn 6 (1988)
3 The judge inadvertently omitted from his formal Conclusions of Law
the Respondent's violation of Sec 8(a)(1) by telling employees it would
never agree to a collective-bargaining contract with a labor organization
We modify the judge's Conclusions of Law accordingly
4 The General Counsel excepts to the judge's recommended Order to
the extent that it does not include a visitatorial clause authorizing the
Board, for compliance purposes, to obtain discovery from the Respond-
ent under the Federal Rules of Civil Procedure under the supervision of
the United States court of appeals enforcing this Order Under the cir-
cumstances of this case we, find it unnecessary to include such a clause
Accordingly, we deny the General Counsel 's request Cherokee Marine
Terminal, 287 NLRB 1080 (1988)
s Based on our analysis of this case we have determined that the Re-
spondent, by the number and extent of its unfair labor practices, has en-
gaged in such egregious and widespread misconduct as to demonstrate a
general disregard for its employees' fundamental statutory rights Ac-
cordingly, we modify the recommended Order to include broad injunc-
tive language against the further commission of any unfair labor practices
by the Respondent See Hickmott Foods, 272 NLRB 1357 (1979)
In accordance with our decision in New Horizons for the Retarded, 283
NLRB 1173 (1987), interest on and after January 1, 1987, shall be com-
puted at the "short-term Federal rate" for the underpayment of taxes as
set out in the 1986 amendment to 26 U S C § 6621 Interest on amounts
accrued prior to January 1, 1987 (the effective date of the 1986 amend-
ment to 26 U S C § 6621), shall be computed in accordance with Florida
Steel Corp, 231 NLRB 651 (1977)
6 NLRB v Gissel Packing Co, 395 U S 575 (1969)
7 Id at 614-615 The election of November 17, 1983, which the Union
won by a vote of 268-211, with 18 nondeterminative challenges, was set
aside pursuant to a stipulation of the parties The Respondent had filed
election objections, and the Union decided its interests would be better
served by agreeing to a new rerun election than by litigating the election
objections through the Board and possibly the courts
8 We note that this is the sole argument on which the Respondent
relies in attacking the judge 's reliance on those election results as demon-
Continued
294 NLRB No. 44
BENJAMIN COAL CO.
The judge found that for many years before the
Union ever appeared to conduct , an organizing
campaign at, the Respondent's facility, antisemitic
remarks concerning the Respondent's president,
who was Jewish, were common; and they were not
confined to rank-and-file employees, but were also
voiced by foremen and higher-level managers.
During the period of the campaign such offensive
remarks continued and, according to the credited
evidence, such statements were uttered by several
members of the Union's inhouse organizing com-
mittee (a committee that was open to any employee
who wished to join) prior to the November elec-
tion.9 The Union did not, however, either in its
campaign literature or through the conduct of its
five full-time staff organizers working on the cam-
paign, either echo or condone these highly offen-
sive sentiments . Indeed, according to the credited
testimony, in the only incident in which the
Union's staff organizers actually heard an antisemi-
tic statement (a comment made at a union meeting
by employee Smocheck, who was not a member of
the inhouse organizing committee), the organizers
immediately quieted Smocheck and told the audi-
ence that such comments were irrelevant to the
campaign. Without question, slurs on the race, reli-
gion, or ethnic background of an employer's
owners or managers are abhorrent and have no
place in 'any organizing campaign . But under all
the circumstances here, we see no basis for attrib-
uting to the Union the prejudiced statements of
some of the employee committee members. i 0 To
strating union majority It does not argue that it was improper to rely on
the results of the first election simply because the parties had agreed to
set the election aside As no party has raised this issue, we do not pass on
it
Member Cracraft adopts the judge's finding of majority support based
on the results of the first election pro forma See her dissenting opinion in
Ron E Savoia Construction Co, 289 NLRB 200 (1988)
Credited evidence established that four members of the committee-
Ken Bee , Thomas McCracken, Tom Bell, and Charles McCombs-had
made such statements either definitely or possibly prior to the election
Bee's remark was instigated by the antisemitic comment of another em-
ployee and there is no evidence anyone else heard it There is no credited
evidence concerning where or when McCracken's and Bell's remarks
were made or how many employees heard them Although McComb's
antisemitic statements occurred prior to the November election and were
apparently heard by several other employees, no credited evidence estab-
lishes that the statements were made at union meetings or in the hearing
of the Union's staff organizers
10 In particular, we find that there is no evidence that the inhouse or-
ganizing committee members had either actual or apparent authority
from the Union to make antisemitic remarks against the Respondent's
president See Pierce Corp, 288 NLRB 97 (1988), NLRB v Herbert Hal-
perin Distributing, 826 F 2d 287 (4th Cir 1987) We are aware that this
case arises in the Third Circuit, which issued NLRB v L & J Equipment
Co, 745 F 2d 224 (3d Cir 1984), on which the Respondent relies with
respect to union agency principles as applied to mplant employee orga-
nizing committees But even in L & J, the court recognized that not all
actions taken by members of such a committee would necessarily be at-
tributable to the union in question Id at 233-234 And the court there
was not faced with conduct of a type shown to have existed among both
employee and management ranks long before the union came on the
scene
573
hold that the election was tainted by such preju-
dice would be to hold that no election could' ever
be held in any plant with a prejudiced work force
unless the union attempting the campaign were
able to accomplish what management itself had
been unable to do before the union came on the
scene, namely , eliminate all expressions of racial,
ethnic, or religious bias . The rule of Sewell Mfg.
Co., supra,, on which the Respondent relies, con-
cerns prejudiced campaign propaganda issued by a
party to the election , not expressions of employee
bias independent of the party ' s own actions. Ac-
cordingly , we agree with the judge that the elec-
tion results were not tainted and that they serve to
establish union majority status for purposes of the
Gissel bargaining order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified and orders that the Respondent,
Benjamin Coal Company and Empire Coal Compa-
ny, Inc., and/or Benjamin Coal Company, debtor-
in-possession, and Empire Coal Company, Inc.,
debtor-in-possession, La Jose, Pennsylvania, its offi-
cers, agents, successors , and assigns , shall take the
action set forth in the Order as modified.
1. Substitute the following for paragraph 1(1).
"(1) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the
Act."
2. Substitute the attached notice for that of the
administrative law judge.
With respect to the question whether antisemitic remarks taint an elec-
tion, NLRB v Silverman 's Men's Wear, 656 F 2d 53 (3d Cir 1981), an-
other precedent on which the Respondent relies, is also clearly distin-
guishable In Silverman 's, the offensive comments were made at a union
meeting by the union's secretary-treasurer
Contrary to his colleagues, Member Johansen finds it unnecessary to
decide whether the Union was accountable under agency principles for
the antisemitic remarks of its inhouse organizing committee members
Rather, he finds that even assuming the Union was accountable for their
remarks, for the reasons cited above in In 9 and the accompanying text,
those remarks were not "so inflammatory as to make a fair election im-
possible " Coca-Cola Bottling Co, 273 NLRB 444, 445 (1984)
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 ordered us to post and abide by this notice.
574 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Section 7 of the Act gives employees these rights.
To organize
To form, join , or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT discourage membership in United
Mine Workers of America, or any other labor or-
ganization , by furloughing , transferring to less re-
munerative work , or by in any other manner dis-
criminating against employees with respect to their
wages , hours, or tenure of employment.
WE WILL NOT threaten to close, go out of busi-
ness, or file for bankruptcy if employees designate
UMWA as their collective -bargaining representa-
tive.
WE WILL NOT tell employees that we will never
enter a collective -bargaining agreement with a
labor organization.
WE WILL NOT threaten employees with dis-
charge or physical violence to persons and proper-
ty in reprisal for their participation and activity on
behalf of the UMWA and because they supported
investigation of unfair labor practice charges.
WE WILL NOT promise that benefits will be im-
proved if employees reject the UMWA as their
collective -bargaining representative.
WE WILL NOT threaten that the pension plan will
be eliminated if the UMWA is designated.
WE WILL NOT coercively interrogate employees
concerning their own and union activities of co-
workers.
WE WILL NOT resolve grievances or grant bene-
fits under conditions discouraging employees from
supporting the UMWA.
WE WILL NOT, under disparate conditions, re-
quire employees to remove UMWA literature from
company vehicles.
WE WILL NOT interfere with the administration
of, and furnish assistance to, BEAU by creating the
impression that said labor organization was used by
us as an instrumentality for conveying antiunion
propaganda and by permitting our agent to serve
as an official thereof.
WE WILL NOT physically assault employees for
having participated in the investigation of unfair
labor practice charges.
WE WILL NOT in any other manner interfere
with , restrain , or coerce you in the exercise of your
rights guaranteed by the National Labor Relations
Act.
WE WILL make-whole Wayne Anderson for any
loss of earnings he may have suffered by reason of
our discrimination against him , with interest.
WE WILL, on request , bargain with United Mine
Workers of America as the exclusive representative
of all employees in the appropriate unit with re-
spect to rates of pay , wages, hours, other terms and
conditions of employment , and if an understanding
is reached, embody such understanding in a signed
agreement . The appropriate bargaining unit is:
All production and maintenance employees
employed by Us at our facilities in Cambria,
Center , Clearfield , Jefferson and Indiana
Counties , Pennsylvania ; excluding office cleri-
cal employees , guards, professional employees,
and supervisors as defined in the Act.
BENJAMIN COAL COMPANY AND
EMPIRE COAL COMPANY, INC.,
AND/OR BENJAMIN COAL COMPANY,
DEBTOR-IN-POSSESSION, AND EMPIRE
COAL COMPANY , INC., DEBTOR-IN-
POSSESSION
Matthew Franckiewicz, Esq and Thomas R. Davies, Esq.,
for the General Counsel.
John F. Dugan, Esq. and Vasilis C. Katsafanas, Esq.
(Berkman, Russlander, Pohl, Lieber & Engel), of Pitts-
burgh , Pennsylvania , for the Respondent.
Kurt Kobelt, Esq., of Washington, D.C., for the Charging
Party.
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge. This
consolidated proceeding originated with the filing of an
election petition in Case 6-RC-9403 on 2 September
1983. Thereafter , pursuant to a Decision in Direction of
Election issued by the Regional Director for Region 6
on 17 October 1983, an election by secret ballot was con-
ducted on 17 November 1983, with the ' tally showing
that of approximately 501 eligible voters, 268 valid bal-
lots were cast for, and 211 against representation by Peti-
tioner, with 18 nondeterminative, challenged ballots.
Thereafter, the Employer filed timely objections to con-
duct affecting the results , and on 11 January 1984, based
solely on a written settlement stipulation executed earlier
by the parties on 9 January 1984, the aforesaid Regional
Director issued a supplemental decision setting aside the
election and directing a rerun i
The rerun election was held on 14 March 1984, with
the tally showing that of 499 eligible voters, 209 cast bal-
lots for, and 261 against Petitioner , with 22 iiondetermin-
ative challenges This time , the petitioning Union filed
timely objections
In entering the stipulation , Petitioner expressly disavowed the exist-
ence of merit in the Employer 's objections See G C Exh 2(9)
BENJAMIN COAL CO 575
On. 21 March 1984, the pending objections were sup-
plemented by the filing of the original unfair labor prac-
tice charge in this proceeding. The initial complaint
issued on 2 August 1984, and on 3 August 1984, the
aforesaid Regional Director, in Case 6-RC-9403, issued
an "Order Directing Hearing On Objections and Notice
of Hearing," concluding that the allegations set forth in
the objections were coextensive with allegations in the
unfair labor practice complaint, raising substantial and
material issues of fact with respect to the conduct of the
elections, warranting resolution on the basis of record
testimony developed at a formal hearing Accordingly,
the Regional Director ordered consolidation, whereby
Cases 6-CA-17216, 6-CA-17345, and 6-CA-17392 were
joined with Case 6-RC-9403 for the purposes of hearing,
ruling, and decision by an administrative law judge.
Thereafter, on 11 October 1984 the acting Regional
Director for Region 6 issued a further consolidated com-
plaint, which, as later amended, alleged that Respondent
independently violated Section 8(a)(1) of the Act by nu-
merous acts of coercion impending employees in the ex-
ercise of their rights to organize and to support the
Union; violated Section 8(a)(1) and (2) of the Act by ren-
dering assistance and support to "Benjamin Employees
Against the Union" (BEAU), allegedly constituting a
rival labor organization, violated Section 8(a)(1) and (3)
of the Act by committing various acts of discrimination
in order to discourage support of the petitioning Union;
and violated Section 8(a)(1) and (4) by discriminating
against employees because they cooperated with the
Board's investigation of unfair labor practice charges
The complaint further alleged that Respondent violated
Section 8(a)(5) and (1) by refusing to recognize and bar-
gain with the Charging Party-Petitioner as majority rep-
resentative of the employees in the appropriate unit. In
this later respect, the complaint alleges that the inde-
pendent violations of Section 8(a)(1), (2), (3), and (4)
were calculated to undermine the Union and to destroy
its majority status, being so serious and substantial that
the possibility of erasing the effects thereof and conduct-
ing a fair election in the future is slight, an allegation
which forms the predicate for a remedial bargaining
order under authority of NLRB v. Gissel Packing Co.,
395 U.S 575 (1969) In its duly filed answer, Respond-
ent-Employer denied that any unfair labor practices were
committed.
Pursuant to the foregoing, a hearing was conducted
before me in Dubois, Pennsylvania, on various dates be-
tween 5 November 1984 and 16 January 1985 After
close of the hearing briefs were filed on behalf of the
General Counsel, the Charging Party-Petitioner, and the
Respondent-Employer
On the entire record in this proceeding,2 including my
direct, personal observation of the witnesses while testi-
2 Following close of the hearing, counsel for the General Counsel
moved to correct the official transcript in certain particulars Consistent
with my recollection and notes, the requested revisions, as well as my
own, are deemed representative of what actually transpired and, accord-
ingly, it is ordered that the transcript by corrected as outlined in the at-
tached Appendix B [omitted from publication)
lying and their demeanor,3 and having considered the
posthearing briefs, I make the following ,
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT-EMPLOYER
Benjamin Coal Company and Empire Coal Company
(the Respondent-Employer) are Pennsylvania corpora-
tions with a place of business located in LaJose, Pennsyl-
vania, from which they are engaged in the surface
mining, sale, and processing of coal at various locations
in North Central Pennsylvania. Since 1 October 1984,
Respondent-Employer has been duly designated by the
United States Bankruptcy Court for the Western District
of Pennsylvania as debtor-in-possession with full author-
ity to continue operations and exercise all power neces-
sary to the administration of the business of Benjamin
Coal Company. Accordingly, Respondent-Employer is
treated herein as a successor in bankruptcy. During the
annual period ending 29 February 1984, Respondent-Em-
ployer in the course of the afore-described operations
sold and shipped from its Pennsylvania facility, products,
goods, and materials valued in excess of $50,000 directly
to points outside the Commonwealth of Pennsylvania
The complaint alleges, the answer admits, and it is
found that Respondent-Employer is now, and has been at
all times material, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and it is
found that United Mine Workers of America (Petitioner-
Charging Party or UMWA) is now, and has been at all
times material, a labor organization within the meaning
of Section 2(5) of the Act.
The complaint further alleged that BEAU4 also main-
tained the status of a statutory labor organization during
the period relevant to the issues raised in the proceeding.
In this respect, evidence discloses that employee griev-
ances were solicited in the name of BEAU and commu-
nicated to management by BEAU representatives. More-
over, in urging rejection of UMWA, BEAU held itself
out as an alternative to that organization, advising repre-
sentatives of management and employees as well that
upon rejection of UMWA it would seek to represent em-
ployees in bargaining concerning wages, hours, and con-
ditions of employment. In the circumstances, it is found
that BEAU is a labor organization within the meaning of
Section 2(5) of the Act.
3 The fact that credibility resolutions hereinafter made might be ac-
companied by, objective rationale does not supplant, but is merely intend-
ed to reinforce, impressions gained from first-hand observation of the wit-
nesses Moreover, testimony that is not referred to herein, whether or not
contradicted, is rejected to the extent that it is irreconcilable with ex-
pressly credited evidence and findings based thereon
4 In the course of the campaign preceding the second election, BEAU
changed its name to "Benjamin Employees All United "
576 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
III. CASES 6-CA-17216, 6-CA-17345, AND 6-CA-17392
A. Preliminary Statement
Among the plethora of issues in this case is the ques-
tion of whether or not the Employer 's aggressive resist-
ance to an initial organization effort waged by UMWA
was punctuated by widespread coercion in the form of
threats, promises of benefits , interrogation , assistance to
an antiunion employee group , the granting of benefits,
and unduly broad restrictions on the distribution and dis-
play of union literature . According to the General Coun-
sel, these unfair labor practices were reinforced by dis-
crimination against union supporters violative of Section
8(a)(3) as well as interference with Board processes
through reprisals against employees who cooperated
with the Board in connection with investigation of the
instant unfair labor practices charges. Finally, perhaps
the most critical issue derives from the General Coun-
sel's claim that proven illegalities were so pervasive as to
warrant a remedial bargaining order under aegis of
NLRB v. Gissel Packing Co., supra.
B. Background
Respondent is engaged in the surface mining of coal
on holdings in five counties in North Central Pennsylva-
nia. The coal industry in the immediate vicinity has been
known historically to be predominately nonunion. As
might be expected, Respondent's employees, numbering
some 500 at times material, had never been represented
for purposes of collective bargaining. Indeed, the instant
campaign was preceded by three separate unsuccessful
attempts by UMWA to organize these operations in
1961, 1963, and 1969
Depressed economic conditions in the coal industry
provide the foreground for the 1983 organizational
effort. Declines in demand for coal, sharpened beginning
in 1982, reducing significantly the price per ton, and coal
revenues generally. The adverse effect on the cash posi-
tion of coal operators was particularly acute in Respond-
ent's case because of litigation with the State Department
of Environmental Regulations (DER), concerning delin-
quencies in its reclamation obligations under state law 5
In this latter respect, it is noted that prior to the squeeze
in the coal market, Respondent financed its reclamation
activity from current revenues. Hence, as sales and prof-
its declined less money was available to meet environ-
mental obligations, which apparently fell to a state of ne-
glect
For employees, shrinking coal markets translated into
layoffs and declining work opportunities. Substantial cut-
backs in Respondent's work force took place in 1982 and
again in 1983 . Overtime was reduced where possible.
However, a new nadir was reached on 5 August 1983.
On that date , David Benjamin , Respondent's president,
met with small groups of employees to communicate
pressing financial conditions challenging the Company
and the need for drastic action in order for the Company
to survive in a highly competitive, "down" market. Em-
5 Testimony offered on behalf of the Respondent reveals that millions
in operating losses were actually sustained in 1982, and as matters turned
out, in 1983 as well
ployees were told that they, along with management,
would make their own contribution to recovery through
wage and benefit reductions, in the form of:
1 A 10-percent across-the-board wage cut.
2. Elimination of personal days
3. Elimination of paid sick days.
4. Elimination of 4 paid holidays 6
The cuts were not received hospitably. Disgruntled
employees called a meeting, which was held on 14
August 1983. Representatives of the UMWA attended,
and apparently were given an opportunity to speak. The
organizational drive was launched officially the next day
when the UMWA notified Respondent by mailgram that
the campaign was in progress' The Union was quick to
achieve substantial support. Within 3 weeks, on 2 Sep-
tember 1983, it filed the representation petition in Case
6-RC-9403.8 As indicated, the Union was designated by
the majority in the ensuing election conducted on 17 No-
vember 1983, but on the Company's objections to the
election , the parties agreed to a rerun . The second elec-
tion was conducted on 14 March 1984, with reversal of
the results, this time showing 209 for representation, with
261 against. In the wake of the rerun election, the Union
filed timely objections, and the series of unfair labor
practice charges which has provided the foreground for
the matters in issue in this proceeding.
In passing, it is noted that shortly before issuance of
the consolidated complaint of 11 October 1984, the Com-
pany on 1 October 1984 filed for reorganization in ac-
cordance with chapter 11 of the Bankruptcy Code.
C. Interference, Restraint, and Coercion
1. The formal campaign
There is little basis for disputing the fact that survival,
bankruptcy, plant closure, and the loss of jobs were im-
portant "bywords" of the campaign waged by Respond-
ent against union representation. Numerous witnesses
were called by the General Counsel to attest to intimi-
dating statements imputed to various of Respondent's su-
pervisors. They presented a more or less balanced pic-
ture of antiunion conduct during the period preceding
each of the respective elections. Statements that the Re-
spondent would close or go into bankruptcy, and that
David Benjamin would never sign a contract were de-
scribed as commonplace throughout, with employees
claiming that on more than 100 occasions they were in-
formed that operations would cease in one way or an-
other, either directly or indirectly, in consequence of the
outcome of the campaign. In virtually each instance, the
General Counsel alleges an independent 8(a)(1) violation.
Considering the written propaganda disseminated by Re-
spondent to employees, together with the parol testimo-
ny as to what was said elsewhere, the issue is not wheth-
6 See R Exh 17 (c) A letter to this same effect was mailed to employ-
ees, over David Benjamin's signature on 25 August 1983 See R Exh
17(d)
See G C Exh 6(a)
8 See G C Exhs 2(a) and 6(b)
BENJAMIN COAL CO 577
er antiunion propaganda raised the spectre of job loss,
but whether it was mentioned in a 'context deeming it
privileged argumentation protected by Section 8(c), as
construed by the Supreme Court in NLRB v. Gissel
Packing Co, supra, 395 U.S. at 616-620, and related
Board and court decisions.
Respondent argues that its campaign pronouncements
were an accurate response to UMWA propaganda,
which constantly referred to benefits in the UMWA's
contract under the them "Benjamin Can Afford The
Best." Respondent contends that its campaign was based
upon objective fact and truth, in an honest and legitimate
effort under Section 8(c) of the Act, to convince em-
ployees of the following.
1. The Company was facing a potentially disas-
trous economic crisis and was not in any position to
absorb increased costs.
2. In light of its economic condition, Respondent
could not afford to operate under the terms of the
UMWA agreement with the Bituminous Coal Oper-
ators Association, herein called the BCOA agree-
ment.
3. If the UMWA were designated it would
demand that Respondent capitulate to the BCOA
standards and/or its costly pension and welfare pro-
grams.9
The General Counsel contends that Respondent,
during campaigns preceding both elections, delivered a
singular, absolute message that unionization would cause
the Company to close, a theme set in motion initially by
Respondent's owner and chief operating official, David
Benjamin. In assessing this claim, it is noted that Re-
spondent admittedly instructed supervisory personnel to
carry its position to the employees and to emphasize the
Company's precarious financial condition and its inability
to absorb increased costs, particularly those in the
BCOA contract Thus, the hundreds of supervisory ex-
pressions litigated on this record as unlawful, in all prob-
ability, are traceable to Benjamin's campaign utterances.
At the threshold of the overall campaign of intimidation
was a letter to employees, over signature of David Ben-
jamin, dated 31 August 1983, in which the following
point was made:
If the UMWA tells you it can get you better
wages and benefits, consider where such money
would come from. We are struggling to keep our
doors open and such demands might result in all
our jobs being lost.
I do not believe the Union is in our best interest.
You have received the highest pay of all local coal
companies. You will have to decide whether you
want a steady job or want to become a Union
9 The BCOA agreement was renewed in October 1984 in negotiations
between UMWA and various employer members of the Bituminous Coal
Operators Association Without exception, this contract appears to cover
every organized mining operation in Pennsylvania which has a collective-
bargaining relationship with UMWA, a fact which enhances probability
underlying the perception that UMWA, if designated, would insist on the
UMWA's regional agreement
member who may end up out of work like the
Union members in our nearby counties.
I hope that you will agree with me that the best
course for you and your families is to avoid the
UMW, refuse to sign their cards and otherwise join
in their effort 10
The General Counsel argues that the coercive thrust at
highest levels was carried forward after the petition was
filed in Case 6-RC-9403 on 2 September 1983, when
David Benjamin forwarded another letter to employees
in which he stated:
As you already know Benjamin Coal will resist
by all legal means this attempt by the UMW
As you should know the timing is terrible. We
are in the midst of a financial crunch in the coal
market that has required a very careful survival
plan We simply cannot let the UMW rock the boat
at this time. You can help by voting "No Union" if
there is an election. 11
In a followup letter, attacking the UMW's pension plan,
dated 21 September 1983, David Benjamin stated:
[T]he most important consideration is cost. The
Benjamin situation with our banks turns on costs
and we can not increase costs and expect to sur-
vive. The UMW has many, many retired miners but
a shrinking number of active miners. Companies in
the UMW plan pay far more a dollar of benefits
than companies who are not in the UMW plan.
The written communications were supplemented
when, about a month before the election of 17 Novem-
ber 1983, David Benjamin met separately with groups of
employees at the various worksites. In those talks, he
outlined the Company's financial predicament, explaining
the economic circumstances within Central Pennsylva-
nia, which distinguish that area from other coal produc-
ing sectors. In this regard, employees were told that be-
cause of thin layers of coal, it is extremely costly to ex-
tract coal in their area, and consequently the UMWA
had no foot-hold in Central Pennsylvania, but prevailed
in other areas of Pennsylvania where mines were suscep-
tible to more efficient operation. He reminded of the
pressures on the Company because of recent losses,
stressing the plan that had evolved to restructure and to
pull the firm out of the "red," with the cooperation of
the banks and pursuant to the consent decree entered
with the DER. He reiterated that the reduction in bene-
fits in August 1983 was absolutely necessary, while
making it "crystal clear" that the Company was in no
position to increase costs and that the restructuring
would probably pull the Company through, but, without
it, bankruptcy was imminent . Benjamin stated that costs
had to be brought down and additional expense could
not be afforded.
As the election grew closer, by letter of 4 November
1983, David Benjamin challenged references in UMWA
10 See G C Exh 3(a)
" See G C Exh 3(c)
578 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
propaganda casting doubt on the Company's declarations
of poverty. To convince as to the Company's plight, he
attached a letter from Respondent's bonding company,
describing it as the "best proof that we are telling the
truth." This latter document expressed the insurer's
view, in the following terms:
.. we are all aware of the pending . . Union
election which if won by the Union will further se-
verely compound Benjamin Coal's financial prob-
lems, thus most likely leading to a ceasing of oper-
ations. 12
In a second letter dated 4 November 1983, David Ben-
jamin addressed the employees "and family" as follows:
[L]et's think the unthinkable. What would be the
predictable, probable consequences if company em-
ployees voted in favor of the UMW in 1983?
In our view, there will never be a right time for
the UMW at Benjamin. But a vote for the UMW at
this time would be the greatest "WRONG TIME"
choice possible.
A vote for the UMW might very well be
"THREE STRIKES AND YOU'RE OUT" in
1984.
The letter then went on to describe three circumstances
in which the Union could strike, including the possibility
that Benjamin could provoke a strike by resisting UMW
demands which it deemed inefficient or uneconomic. It
concluded with the following.
But THREE STRIKES and we might be out-from
president to dozer operator to janitor. We're all in
the same boat. Please vote "NO UNION" on No-
vember 17th." 13
In his letter of 10 November 1983, David Benjamin
approaches the point of suggesting an inability even to
"deal" with the UMW, in which he stated:
[I]f we had to deal with the UMW, how could we
ever guide this company through the perils of the
down coal market, our vicious competition, our tre-
mendous bank loans, and also meet the requirements
of our survival plan?14
David Benjamin opened the second campaign with a
letter dated 10 January 1985, stating- "There is no room
in our recovery plan for the United Mine Workers."15
By letter dated 17 February 1984, David Benjamin re-
iterated: "Benjamin Coal Company is in bad financial
shape and cannot afford the UMW pay and benefits." 16
12 See G C Exh 3(1)
12 See G C Exh 3(1) It is noted that during the second campaign, on
13 February 1984, similar points were made in connection in a letter to
employees over signature of Superintendent Don Hutton See G C Exh
3(s)
14 See G C Exh 3(l)
15 See G C Exh 3(Q)
16 G C Exh 3(t)
Consistent with David Benjamin's theme, another
letter dated 23 February 1984, this time over signature of
superintendent of operations, Donald Hutton, stated as
follows.
If the company were faced with added costs such as
those found in the UMW contract, it might well be
pushed to the wall. Under the present circumstances
bringing the UMW into this company at this time
could be the straw that broke the camel's back.17
Respondent also distributed a handbill publishing a
statement by a former UMWA member, now employed
by Respondent, as follows-
I was lucky. I was in a mine that went UMW. It
only lasted nine months and then closed down. I
got out before the roof fell in!' 8
Finally, David Benjamin, on 12 March, delivered pre-
pared campaign speeches to all the employees. His re-
marks opened with recitation of the history of the finan-
cial crisis that existed at the outset of the organization
drive and which continued thereafter. The possibility of
a close down remained central as should be evident from
the following excerpts from the speech:
If I had avoided the layoffs, the cuts, the shifting
around, and the other components of the survival
plan, we would not be meeting here today These
doors would have been closed! Benjamin Coal
Company would have been out of business! But we
are still here and you are still working. Many others
are not. Even with our efforts and our survival
plan, we have suffered a loss of $2.51 per ton in
1983 or staggering total net loss for the year of
$4,537,579 00.
You must ask yourselves as I did in the late
nights in early 1983 when I couldn't sleep which is
more important-some temporary unhappiness and
inconvenience on your part or the permanent loss
of your jobs? That was the choice I faced and I
chose to save your jobs. It was a bitter pill we had
to swallow!
Last fall, I was saddened by the message that
arose in the union drive that I was a liar and I was
hiding the truth!
Now, I feel anger because the UMW still calls
me a liar and calls these independent professionals
liars and stooges. It is clear to me the UMW doesn't
care a dam about Benjamin Coal-it doesn't care if
we finally die on the vine and have to close our
doors. Why have they rejected all this evidence that
we are in serious trouble? They can continue to tell
you that "Benjamin can afford the best" but the
simple truth is "We are nearly broke!"
I can only say to you: look around. Look to
Johnstown where the union told its men not to be-
17 See G C Exh 3(v)
"See G C Exh 3(dd)
BENJAMIN COAL CO
lieve that the steel companies,were losing money-
loo0to' Clearfield where the union told its men not
to believe A & P was losing money. Yes, these men
didn 't believe their companies were suffering serious
losses and now its too late-their jobs are lost for-
ever!
I ask you how the UMW is going to exact higher
wages and benefits from this company when we
have no profits to pay for those increases! We are
not even paying the banks what our original agree-
ments require We are behind on our loan agree-
ments . They will have to be paid)
One cannot help wondering whether this interna-
tional union is not more concerned with giving
comfort to our competitors than protecting your
jobs here at Benjamin Coal Company, whether this
international union is not more interested in the big
picture of creating a need for coal to be furnished
by other union mines as a result of a shutdown here
at Benjamin Coal Company rather than strengthen-
ing your future here by strengthening Benjamin
Coal Company.
We don't need the UMW we don't need dissen-
sion , slurs, threats , and intimidations. We don't need
division of men against men-families against fami-
lies. I 'll tell you this-if the dissension continues our
productivity will suffer to the point that we will
surely fail in the end
That evening, David Benjamin appeared on local tele-
vision and radio stations and was interviewed in connec-
tion with the impending election. He stated at the time
that Benjamin would bargain with the Union and when
asked if he would stay in business, Benjamin replied that
it was "questionable" but that he had every intention of
staying in business if he could.19
The formal campaign waged over the signature of
David Benjamin , in addition to "job loss," also included
a lowkeyed and hard -hitting effort calculated to dispar-
age the UMW and its benefit programs, attacks which
nevertheless constituted perfectly legitimate antiunion
propaganda. Another issue, however, is presented by
Benjamin 's repeated references to closure, loss of jobs
and other adverse economic effects of unionization. His
remarks, emanating as they did from the highest of
sources within management, provide a background
against which the legitimacy of threats of adverse conse-
quences might be assessed so as to avoid needless repeti-
tion of the controlling principles.
In NLRB v. Gissel Packing Co., 395 U.S. at 617-620,
standards were articulated for testing legitimacy of em-
19 Respondent , in its posihearmg brief, states that David Benjamin
"continuously" stated that he would bargain with the Union Compare
the content of Benjamin's letter of 10 November 1983 In any event,
apart from these broadcasts which may or may not have reached all
within the voting grup, there is no believable evidence that this position
was communicated by Benjamin The latter's uncorroborated testimony
that he made this point at all "group meetings " was not believed Also
rejected as unsubstantiated is the assertion in Respondent ' s brief that the
Company on several occasions communicated its "avowed intention not
to shut down " See R Br 7
579
ployer pronouncements of this nature. In this connection,
the Court stated at 618-620 as follows:
Thus, an employer is free to communicate to his
employees any of his general views about unionism
or any of his specific views about a particular
union, so long as the communications do not con-
tain a "threat of reprisal or force or promise of ben-
efit " He may even make a prediction as to the pre-
cise effect he believes unionization will have on his
company. In such a case, however the prediction
must be carefully phrased on the basis of objective
fact to convey an employer's belief as to demonstra-
bly probable consequences beyond his control or to
convey a management decision already arrived at to
close the plant in case of unionization . . . If there
is any implication that an employer may or may not
take action solely on his own initiative for reasons
unrelated to economic necessities and known only
to him, the statement is no longer a reasonable pre-
diction based on available facts but a threat of retal-
iation based on misrepresentation and coercion, and
as such without the protection of the First Amend-
ment. We therefore agree with the court below that
"[c]onveyance of the employer's belief, even though
sincere, that unionization will or may result in the
closing of the plant is not a statement of fact unless,
which is most improbable, the eventuality of closing
is capable of proof "
[An] employer is free only to tell "what he reason-
ably believes will be the likely economic conse-
quences of unionization that are outside his con-
trol," and not "threats of economic reprisal to be
taken solely on his own volition.
As should be evident from the above, the Supreme
Court, though mindful of the devastating impact that
job-loss predictions might have on the election process,
nevertheless, did not outlaw all such references. It is
clear, however, that self-serving argumentation , lacking
in probable economic foundation , would be held unlaw-
ful as outside of the category of speech protected by
Section 8 (a).20 Consistent therewith speculative refer-
ences to the Employer's "precarious financial condition"
and a Union's "potentially unreasonable demands" would
no longer be recognized as a means for inveighing upon
rights guaranteed employees under Section 7 of the Act.
See, e g., 395 U.S. at 619. As stated by the Ninth Circuit
Court of Appeals , employers are not free to "in an
excess of imagination and under the guise of a prediction,
fabricate hobgoblin consequences outside his control
which have no basis in objective fact." NLRB v. Lenkurt
Electric Co, 438 F 2d 1102, 1106 (1971).
20 Limitations imposed on an employer 's right to discourage support of
a union on the basis of its precarious economic condition was specifically
considered by the Supreme Court in Gissel Thus, the Court affirmed a
finding below that a speech violated Sec 8(a)(1) despite the employer's
explanation to employees that the adverse economic consequences of
unionization would spring from its economic plight See 395 U S at 587-
589
580 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Under challenge at present, however, is the fact that
Gissel has been construed as establishing a strict proof re-
quirement. Pursuant thereto it has been stated that those
employers who would combat unionization by raising
the possibility of job dislocation or plant closure carry a
"severe" burden even where the statements "in context
seem to indicate a good faith concern about high labor
costs and an inability to compete." See NLRB v. Zim's
IGA Foodliner, 495 F 2d 1138, 1137 (7th Cir. 1974). As
stated by the Supreme Court itself "[c]onveyance of the
employer's belief, even though sincere, that unionization
will or may result in the closing of the plant is not a
statement of fact unless, which is most improbable, the
eventuality of closing is capable proof " 395 U.S. at 618-
619.
Nevertheless, recent decisions of the Board subscribe
to what appear to be a more flexible approach in defin-
ing what proof is necessary to substantiate "objective
fact." Consistent with the views of at least three different
circuit courts, the Board has recognized that the margin-
al employer should have wide latitude in fashioning and
communicating rational argumentation, which points to
the fact that the additional economic burden of union or-
ganization may lead to plant closing, loss of work, or
jobs. As shall be seen, this relaxation of the rules govern-
ing employer freedom of speech has been facilitated by
evolving views as to the nature of proof required to con-
firm probability underlying such propaganda. Thus, this
more recent line of precedent extends greater latitude to
employer argumentation where "common knowledge"
and "experience" combine to substantiate that remarks
are based upon demonstrable, probable events, while dis-
pensing with the need for detailed, scientific proof that
the prediction is in reality a statement of fact. In other
words, narrow, restrictive conceptions as to the meaning
of "objective fact" and "demonstrably probable conse-
quences" have yielded to that which is logically replicat-
ed in every day experience, an evidentiary approach,
that has broadened employer latitude dramatically to
stress economic adversity in combatting union organiza-
tion.
Thus, in Clintonville Shoe Co., 272 NLRB 609 (1984), a
Board majority (Chairman Dotson and Member Hunter,
with Member Zimmerman dissenting) held that state-
ments concerning the possible loss of jobs and closure
did not interfere with freedom of choice in an election.
Basically, two letters from the employer were involved.
The first appealed to employees to vote against the union
and included a warning: "Don't let this Local cost you
.. your job security." The second distributed to em-
ployees a week later, stated:
Vote The Union Out! . ..-We will predict that if
we would agree to the new contract proposals that
the union has promised you, the factory would be
forced to close in a matter of days.
The majority reasoned that the references to loss of "job
security" and "plant closure" were based on "objective
facts so as to convey an employer's belief of the probable
consequences of unionization." In lieu of detailed eco-
nomic data, the Board majority reasoned that "based on
the economic situation in the shoe industry, the [second]
letter accurately predicts the probability of plant closure
if the Employer accepted those contract proposals the
Union was advocating. "21 From all appearances this
result was reached without benefit of proof of litigation
of concrete economic fact as to precisely what, or how
little, if anything, the employer could afford. Instead, the
majority appears to have given controlling weight to the
depressed state, of the shoe industry in accepting the
probable accuracy in the employer's overall prediction as
to what would occur if the union were to successfully,
press its demands
In another case, a Regional Director sustained an elec-
tion objection on grounds that certain employer state-
ments contained "veiled threats that business would de-
cline and jobs would be lost." The Board. (Chairman
Dotson and Members Hunter and Dennis) disagreed.
Thus, in Tri-Cast, Inc., 274 NLRB 377 (1985), it was
concluded that the points set forth below made in a
letter to employees constituted permissible campaign'
comment:
1. We are still a young company fighting for new
business. If we have to bid higher or customers feel
threatened because of delivery cancellations (union
strikes) we lose business-and jobs. ^
3 We will lose the flexibility we need to ship
castings and beat the competition We cannot stay
healthy with union restrictions. We are much too
small.
Although the Regional Director had found that "the
Employer failed to show an objective basis for the pre-
dictions," the Board again appeared to view such proof
as dispensable, relying on the inherent logic of the em-
ployer's statements. Thus, the Board upheld the employ-
er's right to refer to the possibility of job loss; on the fol-
lowing grounds-
The Employer's first comment is • couched in
terms of what might happen "if' certain events
occur. We construe this comment as nothing more
than the Employer's permissible mention of possible
effects of unionization. Higher bids or customer's
feelings of dissatisfaction because of problems
caused by Union strikers "can" lead to lost business
and lost jobs. There is no dispute that the Employer
2' As observed by the General Counsel, the Board, in a number of
cases, has held that employers may not threaten job loss and closure on
the basis of speculation as to what the Union would demand if designated
by a majority See, e g , Paul Distributing Co, 264 NLRB 1378, 1383
(1982), and cases cited therein, Swan Co, 271 NLRB 862 (1984), Crown
Cork & Seal Co, 255 NLRB 14 (1981) As a corollary, it is also a truism
that union demands are subject to rejection and hence do not themselves
put employers out of business Nonetheless, there is, and for many years,
has been a conflict in this area Thus, even on the heels of Gissel, a
number of cases have allowed employers to argue that they would close
because unable to afford union demands See Daniel International Corp,
264 NLRB 569 (1982), and cases cited therein, Unijhte Inc, 233 NLRB
1108, 1111-1112 (1977), Birdsall Construction Co, 198 NLRB 163 (1972),
Federal Paper Board Co, 206 NLRB 681-683 (1973) In any event, to the
extent inconsistent with cases relied on by proponents of the complaint,
Clintonville Shoe is obviously to be afforded primacy
BENJAMIN COAL CO
is a young company and that higher wages demand-
ed'by a Union could mean ultimately higher bids
which 'might, in turn, affect the amount of business
garnered by the Employer. Making these reasonable
possibilities known to employees does not constitute
objectionable conduct.22
The dispensibility of collateral proof as to "objectivi-
ty" appears to have been central to the result reached in
EMR Photoelectric, 273 NLRB 256 (1984). There the
Board (Chairman Dotson and Members Hunter and
Dennis), on reconsideration, declined to find a violation
of 8(a)(1) based on a statement by an "executive vice
president" that a "sister" company had "moved to
Puerto Rico" after a strike which resulted in the compa-
ny's loss of government contracts The executive vice
president also added that he "hoped" such a loss of gov-
ernment contracts would not cause "this" plant to move.
The statement was made against a background disprov-
ing its truth. For, as reported in the original decision in
that case, the executive vice president denied "that he
said anything to employees about Puerto Rico in any
context . . . or about a company moving after a strike."
See EMR Photoelectric, 251 NLRB 1597, 1606 (1980). In
fact, the executive vice president testified that a "sister
company" did locate in Puerto Rico, but "solely for tax
purposes." 251 NLRB at 1606, fn. 25 Nonetheless, the
statement was viewed as legitimate , with the Board rea-
soning as follows (273 NLRB at 257):
We are often called on to determine whether
statements warning employees of the adverse conse-
quences of unionization are lawful predictions or
unlawful threats. The statements made here were by
and large neither. They were factual statements
showing that there were possible harmful results
from unionization to be weighed against the possible
benefits to employees. The Respondent informed
the employees that the Union had taken employees
out on strike at other companies and that certain ad-
verse consequences had ensued; that strikers re-
ceived no pay or benefits during a strike and could
be permanently replaced; and that should the Union
win the election and make unreasonable bargaining
demands it would either have to drop those de-
mands or strike. The Respondent did not tell em-
ployees if they selected the Union it would close
the plant or take other reprisals. Instead, the Re-
spondent specifically reassured employees it would
bargain in good faith with the Union if it won the
election and would take no reprisals in that event.
We therefore find that in its overall preelection
campaign the Respondent properly avoided threat-
ening reprisals . See J. J. Cassone Bakery, 247 NLRB
220, 221-222 (1980).
Consistent with the Board's position that "demonstra-
ble probability" need not be substantiated on the basis of
extrinsic proof is another case in which the Board shifted
the burden of proof from the employer to the General
zz See also Michael's Markets, 274 NLRB 826 (1985), and Hanover Ma-
chine, 270 NLRB 841 (1984)
581
Counsel, requiring the latter to show inaccuracy in the
employer's argumentation. Thus Storall Mfg. Co., 275
NLRB 220 (1985), the Board (Chairman Dotson and
Members Hunter and Dennis) evaluated a statement that
customers were stockpiling in the expectation of union-
ization and that orders had been falling since advent of
the union. There was no finding, and probably no show-
ing by the employer that this was an accurate or truthful
representation of what had transpired. The Board, in
viewing the statement as lawful, relied on the fact that
the "accuracy [of the employer's statement] as a descrip-
tion of an existing business condition brought on by
union activity is not challenged by the General Coun-
sel," a rationale which appears to suggest that employer
statements of adverse economic consequences are to be
deemed presumptively truthful.
Much of this trend is on line with the relaxed attitude
toward the "objective fact" standard highlighted in the
decision of the Seventh Circuit Court of Appeals in
NLRB v. Village IX, 723 F.2d 1360 (1983). There the
court validated a speech, stating "if the Union exists at
Shenanigans , Shenanigans will fail ." In that case , the sole
objective support for the close-down prediction was the
employer's "pointing to the competitive nature of the
restaurant business and the fact that only one restaurant
in Decatur was unionized and it was doing badly " In
finding the entire tenor of the speech to be legitimate,
the court stressed that experience alone may suffice to
establish the probability underlying the statement, by ob-
serving:
We do not read Gissel to require the employer to
develop detailed advance substantiation . . . at least
for predictions founded on common sense and gen-
eral experience. . . . [Thus, a] small company in the
restaurant business should not have to hire a high
powered consultant to make an econometric fore-
cast of the probable consequences of unionization
on the restaurant business in Decatur. [723 F.2d at
1368.]
This approach to the evidentiary issue was in conso-
nance with an earlier holding by the Ninth Circuit in
NLRB v. Lenkurt Electric Co., 438 F.2d 1102 (1971), that
a department manager acted within the purview of Sec-
tion 8(c) when he told employees that they would be dis-
advantaged in employment terms if unionized. In that
case, the only "objective" justification for the commen-
tary was the supervisor's "own experience and observa-
tions of the results of prior organization" or his "own ex-
perience as a union member and his observations of
union shop printing operations in the area." 438 F.2d at
1107-1108
The Eighth Circuit in Patsy Bee, Inc. V. NLRB, 654
F.2d 575 (1981), endorsed this approach upholding as le-
gitimate an employer's statement that one or two of the
company's major customers would cancel their contracts
if the Union were designated. This view, by a divided
court, deferred to the employer's "belief" garnered from
its experience and understanding of the policy of its cus-
tomers." The dissent challenged the apparent disregard
of the objectivity standard by observing:
582 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
. . . an employer's sincere belief is not enough.
"Conveyance of the employer's belief, even though
sincere, that unionization will or may result in the
closing of the plant is not a statement of fact, unless,
which is most improbable, the eventuality of closing
is capable of proof " [NLRB v. Gissel Packing Co.,
395 U S 575, 618-619.]
In accordance with these decisions and the projected
effect of their respective holdings,23 I reject the General
Counsel's contention that references in the formal state-
ments of David Benjamin and Superintendent Hutton ex-
ceeded permissible bounds of Section 8(c) and constitut-
ed unlawful coercion. The references to untoward conse-
quences of unionization were articulated in a context of
what the Employer could not afford, why not, and why
the Union was likely to make such demands. The under-
lying claims of poverty had not been sprung suddenly on
a surprised voting group. Even prior to the advent of the
Union, the endangered status of Respondent's operation
was a communicated fact, which should have been em-
bedded firmly in the minds of all employees. The down-
slide in demand for coal and the resulting decline in rev-
enues, the Company's deteriorating position with credi-
tors, and the accumulated indebtedness-all burdened ad-
ditionally by outlays necessary to satisfy reclamation re-
sponsibilities under state law-were matters of common
knowledge and stood as verifiable fact prior to advent of
the UMWA. Through the wage cuts in August 1983, as
well as earlier layoffs, the employees clearly were on
notice that drastic solutions were imperative if the Com-
pany were to survive.24
Moreover, Respondent had every reason to believe
that the Union would insist on a contract which, under
present conditions, would impose substantial new cash
demands on the Company. Thus, coal profitability is
heavily dependent on relative labor costs. The decline in
market demand for coal has had a depressing effect on
union and nonunion operators alike, and layoffs in the
coal fields of Pennsylvania and West Virginia had been
commonplace over the past 3 years. Coal produced in
those fields compete within the same markets as served
by Respondent. In the circumstances, there can be little
quarrel with the assumption that major concessions by
UMWA from its BCOA agreement to a large stripping
operation in the Appalachian fields would threaten the
economic integrity of that agreement and, very likely,
would be grudgingly made. The validity of this assump-
tion is heightened by the fact that during the timeframe
relevant to this proceeding substantial segments of the
UMW membership were either in layoff or permanently
terminated in consequence of the economics in this de-
pressed industry. In practice, the Respondent's fears
were born out by the additional fact that UMWA has no
contract with any operator in the coal fields of Pennsyl-
22 The administrative law judge is duty-bound to identify, interpret,
and apply existing Board policy whatever his personal views as to the
state of the law otherwise See, e g, Iowa Beef Packers, 144 NLRB 615-
616 (1963)
24 During the campaign, David Benjamin offered employees the op-
portunity to verify the Company's economic situation by offering access
to internal financial papers See G C Exhs 3(a) and (t)
vania which differs in substantive content from the
BCOA. Thus, the facts were there and employees would
recognize that the assumption underlying David Benja-
min's pronouncements that Respondent would be unable
to compete as an operator subject to the BCOA were
"founded upon common sense and experience." See
NLRB v. Village IX, 723 F.2d 1360 (7th Cir. 1983).
2. The informal campaign
In addition to the formal campaign utterances by
David Benjamin and Superintendent Hutton, during the
period preceding each of the respective elections unlaw-
ful conduct of an ad hoc nature is imputed to no less
than 19 alleged agents of Respondent, including the
former. In this connection, Respondent admits that front-
line supervision had been urged, from the outset, to
carry forth to employees the Company's antiunion mes-
sage. Thus, early in the campaign, on 9 September 1983,
and again after the first election was set aside, the Re-
spondent conducted meetings of its foremen. The Com-
pany's labor attorneys in the course thereof explained
generally the "DD's and DDN'TS" of waging an antiun-
ion campaign."25 At the first meeting, David Benjamin
addressed the foremen concerning the economic condi-
tions affecting the Company. His notes included the fol-
lowing references:
We don't want the UMW at any time. But to
have them poking around now is really a major
threat to our existence
The belt tightening was essential. We have a sur-
vival plan in effect which can't be disturbed or we
go under with the banks. The timing stinks. We ab-
solutely need a "No Union" vote 26
Beyond this, supervision was not given a fixed agenda,
they were instructed to communicate with employees
emphasizing the Company's precarious financial condi-
tion and its inability to absorb increased costs, without
benefit of specific terminology to be used or that which
was to be avoided. In the words of Harry Benjamin, at
these meetings:
We instructed them to tell . . people . . . under
their supervision just what the survival plan was
We asked them to explain it to them. As I said earli-
er, we explained the do's and don'ts to them And
we wanted them to get the word to each and every
person.
The supervisors responded as directed. However, nu-
merous employees testified that in carrying the Compa-
ny's position to them, statements were made that Benja-
min would shut down automatically on designation of
the Union and/or that Benjamin would never sign the
union contract. Indeed, more than 50 employees, many
of whom remain in Respondent's active employ, impli-
cated 14 management representatives in expressions of
abstract threats. The validity of these expressions must
25 See R Exh 6
26 See R Exh 20
BENJAMIN COAL CO
stand on their footing and are not to be considered valid
because-of, their relationship to the legitimate utterances
in the formal campaign exemplified by written propagan-
da and David Benjamin's speeches at captive meetings.27
Under existing precedent, the former did not privilege
lower level managers to make direct threats of close-
down or statements that Respondent would never sign a
contract, unaccompanied by objective argumentation.28
The illegal threats imputed to supervisors are considered
below, together with other alleged 8(a)(1) allegations To
the extent possible, the allegations are segregated by
election campaign, due to the distinct impact illegalities
within each timeframe might have on the issues present-
ed in Case 6-RC-9403.
3. Independent 8(a)(1) allegations preceding the
first election
a. David Peace29
Employee Thomas Mahaffey, who was on payroll
status at the time of the hearing, testified that approxi-
mately 4 weeks prior to the first election, Dave Peace
quoted David Benjamin as having stated at a foremen's
meeting that. "if the Union comes in on 17 November
. .. he would'shut down The next day, he would shut
down the next day, the 18th."30
Based on Mahaffey's credited account I find that this
direct threat was unqualified by any form of argumenta-
tion and violated Section 8(a)(1) of the Act.
b. Bill Ricketts
David Lewis, an incumbent employee at the time he
testified, related, without contradiction that Ricketts and
admitted supervisor, just prior to the first election, in-
quired if anybody had mentioned the Union to Lewis.
Prior thereto, Lewis had failed to manifest support of the
Union in any fashion Cf. Rossmore House, 269 NLRB
1176 (1984) In the circumstances, the questioning of
27 Respondent contends that, even if unprotected by Sec 8(c), the alle-
gations based on threats must be dismissed an noncoercive because many
employees openly manifested their support by displaying stickers on their
vehicles, their hats, their lunch pails, or by wearing UMWA buttons,
pins, and hats, and by their willing participation in free and open discus-
sions with management representatives, with whom many employees ru-
minated on friendly terms There is no merit in this view Apart from its
tendency to create false impressions of universality, these generalized ob-
servations would not dispel the fears and sensitivities held by all employ-
ees in all circumstances Evaluation of coercive conduct turns on
"whether the conduct in question had a reasonable tendency in the totali-
ty of the circumstances to intimidate " See Corrie Corp v NLRB, 375
F 2d 149, 153 (4th Cir 1967), NLRB v Brookwood Furniture, 701 F 2d
452, 459 (5th Cir 1983) Respondent's observation in this regard are
beside the point and do not survive that test
38 See EMR Photoelectric, supra at 257, in which a majority, over
Chairman Dotson's dissent, refused to view an abstract threat as privi-
leged by the "general tenor of the Respondent's message to employees "
Rather the majority, viewed the statement in isolation and as violative of
Sec 8(a)(1) All named are admitted supervisors and agents unless other-
wise indicated
29 All named are admitted supervisors and agents unless otherwise in-
dicated
30 Mahaffey named another employee, Dennis Byers, as present on the
occasion in question Byers , though called as a witness , was not examined
as to the incident Peace could not remember making this statement, and
his testimony was limited to a denial that David Benjamin had ever made
such a statement I believe Mahaffey
583
Lewis was calculated to elicit information concerning his
own and the union activity of others, and, since support-
ed by no legitimate purpose, constituted coercive interro-
gation proscribed by Section 8(a)(1) of the Act 31
Russell Harpster, also an incumbent employee at the
time he testified, related that about 3 or 4 weeks before
the first election, on several occasions, Ricketts stated
that he did not believe that the Union was a good idea
As time went by and the election grew nearer, Ricketts
repeatedly stated that Benjamin would not sign a con-
tract, "that he didn't need that kind of stuff, he would
just close the doors." Ricketts admitted that he partici-
pated in many conversations, back and forth, concerning
the Union. Although he initially admitted to having told
Harpster that "Mr Benjamin would not sign a Union
contract, that he would just close his doors down," on
further examination by Respondent's counsel, Ricketts
denied that these were his exact words, correcting his
testimony to reveal that Harpster was simply told that
"if the Union was voted in, and it would cost the compa-
ny" yes he would close the doors This minor aberration
was not viewed as critical. For Harpster did not impress
me as a reliable witness and absent corroboration from
credible sources, his testimony has been rejected The
testimony of Ricketts that the Company would close if
forced to sustain more costs would appear to fall within
the area of privileged argumentation carved out by the
Board in Clintonville Shoe, supra, and Tn-Cast, supra, and
the 8(a)(1) allegation in this respect shall be dismissed
Ricketts admitted to testimony by employee Willis
Martina that Benjamin could not afford to sign the
BCOA contract and if the Company went Union it
would have to shut down The incident was described
by Maruna as occurring a few weeks prior to the first
election. Here again, the statement by Ricketts was
viewed as legitimately qualified. It has been observed
herein that Respondent's perspective that the Union
would insist on the BCOA was sufficiently proximate to
economic truth to permit articulation of that view in
campaign propaganda Since the Company's inability to
afford that contract was a further argument based on re-
ality, hence was an equally tenable premise, here again,
Clintonville and Tri-Cast are deemed controlling. See also
LeBoe Tire & Rubber Co., 208 NLRB 84 (1974), and BF
Goodrich Footwear Co, 201 NLRB 353 (1973) The
8(a)(1) allegation shall be dismissed
Also discredited is testimony of Dale Yarger that
Ricketts stated that "he thought they would have to shut
down if the union was voted in." Yarger's recollection
that the statement was made after the first election was
inconsistent with his prehearing affidavit, and apart from
the shotgun statement he attributes to Rickettts, he ap-
parently could not recall the circumstances surrounding
the conversation, including the length of the discussion
or who first mentioned the Union Ricketts testified to
having told Yarger that anything that would cause the
Company to have more expense would cause them to
shut down because you could only work in the red for
31 Respondent failed to carry its burden of proving that this incident
occurred prior to the 10(b) cutoff date See Saint Mary's Infant Home,
258 NLRB 1024 fn 3 (1981)
584 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
so long. Consistent with the testimony of other employ-
ees, Martina and Terry Howe,32 I find that Ricketts'
statement explained the shutdown would result from ad-
ditional expenses which the Company could not afford
and hence on authority of Clintonville Shoe, supra, it was
protected by Section 8(c) of the, Act.
c. Chad Hannah '
Incumbent employee Scott Williamson testified that
Hannah, while his foreman, commencing about a month
before the first election, staled that "a Union would not
be to our advantage for . . . David would close the
doors and he was sure that he would not sign a con-
tract "33 Hannah admitted talking to Williamson, but
claims that he simply gave his "personal opinion" that
the Company could not afford the BCOA contract, in
"no way, shape, or form and, if the UMW was
voted in the company would shut down." I did not be-
lieve Williamson On the credible evidence the predic-
tion of closedown was based on the Company's capacity
to absorb union demands likely to be made in event of a
victory in the election, and were within the ambit of dis-
course protected by Section 8(c) and the recent decisions
in Clintonville Shoe and Tri-Cast, supra.
d. Ernie Smeal
According to Tim Mazenko, Foreman Smeal repeated-
ly told him prior to the first election "that if we went
Union, David Benjamin would liquidate the company he
could not afford the Union, the Union would stick the
green book down David Benjamin's throat and they
would not let him sign no other contract." When Ma-
zenko argued back that the Union would give Benjamin
an independent contract, Smeal assertedly declared that
they would not, that they would be on strike all the
time, and that Dave would shut down. Mazenko conced-
ed that Smeal always indicated that closedown would
result from union demands, and that when Smeal said
that Benjamin would not sign "a" contract, Smeal
always stated that the United Mine Workers would not
let' Benjamin sign anything other than the "green
book"34 Smeal could recall conversations with Mazenko,
32 As shall be seen, infra, Howe testified that prior to the second elec-
tion he too was told that the shutdown would be caused by the Compa-
ny's inability to afford the UMWA royalties
33 In addition , according to Williamson , Hannah indicated that "he
was sure how the men were going to vote and that they were going to
vote against the Union " The General Counsel contends that this consti-
tuted coercive interrogation On the contrary, this immediate comment
by Hannah appears to amount to no more than a wishful thought as to
what he would like to see develop at the polls It does not appear that
the remark was made in a context suggesting an inquiry on his part, rhe-
torical or otherwise The 8(a)(1) allegation in this respect is dismissed as
having no tendency to impede employees in the exercise of their Sec 7
rights In so holding, it is noted that the testimony of Gordon Frano that
he overheard Hannah reporting on the preferences of his employees to
higher management does not alter my conclusion , or confirm the allega-
tion that Hannah participated in proscribed interrogation It is just as pos-
sible to speculate that Hannah was reporting his impressions, rather than
any facts discerned though accepted forms of interrogation Indeed, the
information could have been acquired through a legitimate polling of em-
ployees See, e g, Struksnes Construction Co, 165 NLRB 1062 (1967)
34 The "green book" is a pseudonym for the BCOA agreement
but nothing like that described by Mazenko He admitted
to discussing the Company's financial position and its in-
ability to withstand increased cost. He denied al y com-
prehension of the term "green book," but admitted to ex-
pressing that the Company "was in bad shape and we
just couldn't afford much of anything else." In any
event, assuming that Mazenko's account were true, it
seems clear enough, that Smeal's views were consistently
prefaced by reference to objective considers demonstra-
bly probable in nature . As indicated, under established
precedent, Respondent was privileged to express such ar-
gumentation . The 8(a)(l) allegation in this respect shall
be dismissed
Tim Mazenko testified that on another occasion, when
he threatened to challenge a statement he attributed to
David Benjamin by filing unfair labor practice charges,
Smeal responded, "If anybody files charges on me, they
better never work for me again." Smeal denied making
such a statement Mazenko named Rich Diehl and Bill
Pusey as present on the occasion in question. Neither tes-
tified concerning the incident and concern as to the
overall reliability of Mazenko was sufficient to warrant
rejection of his uncorroborated testimony. The. denial of
Smeal is credited
According to Gary Lender, an incumbent employee at
the time he testified, Smeal, shortly prior to the first
election, lectured that Leander better think about his
wife and children when he goes to vote because of the
possibility he would be voting their livelihood away, be-
cause Benjamin could not afford the Union, the royalty
on coal and all of that Here again , the statement imput-
ed to the supervisor constituted privileged argumentation
within the meaning of Section 8(c) as construed by Clin-
tonville Shoe, supra, and Tri-Casts, supra. The 8 (a)(1) alle-
gation in this respect shall be dismissed.
e. James Fleming
Fleming was by far the most notorious of the foremen
named as having offended the Act. He was named as
having committed an exhaustive assortment of 8(a)(1)
violations, and was involved easily in more confronta-
tions than any other foreman or representative of man-
agement In an incident which took place prior to the
first election, employee Robert Bell testified that as he
approached Fleming and another employee who were
discussing the Union, Fleming looked at Bell and said,
"What do you think about it?" To this Bell replied "no
comment." Bell had not previously manifested openly
whether or not he supported the Union. Considering
other testimony of record, and my doubt that Bell cre-
ated this incident out of his imagination, I credit him and
find that Fleming's questioning of Bell was without le-
gitimate purpose, and was conducted under coercive cir-
cumstances violative of Section 8(a)(1) of the Act.
Dan Sunderland, a lab technician, who at the time of
the hearing had been employed by the Respondent for
some 14 years, testified that on or about 24 October
1983, in the space of 2 days, Fleming made two coercive
statements in separate conversations. In the first, in the
presence of employees Dan Brink and Danny Schaffer,
Fleming allegedly reported that he had just come from a
BENJAMIN COAL CO
supervisor's meeting, and that David Benjamin had said:
"if the Union was voted in, he would shut down." Ac-
cording to Sunderland, 2 days later in the presence of
Dan Brink, Fleming stated if the Union were to get in,
Sunderland would have caused him to lose his house.
Furthermore, when Fleming observed that there was a
50/50 chance that the Union wuld get in and Sunderland
agreed, Fleming inquired whether Sunderland was "will-
ing to take that chance?" Fleming admitted to the first
conversation with Sunderland, but claimed that he
simply remarked that Benjamin said, "if he had to sign a
BCOA, and had to get the pension and stuff, that they
could not afford it, he would have to shut down." Flem-
ing denied making the statement concerning the loss of
the house. I credit Sunderland Fleming did not impress
me as prone toward niceties in his dialogue, but was a
"bottom line" type who made his points "short and
sweet" with neither qualification nor apology. It was
considered likely to the point of certainty that his predic-
tions were presented in simplified fashion and without
elaboration. The testimony of Sunderland is credited, and
based thereon I find that the unqualified statements con-
cerning Benjamin's intention to close the plant upon des-
ignation of the Union, as well as the reference to loss of
his home, violated Section 8(a)(1) of the Act.
Dennis Young testified to an incident involving Flem-
ing on the day of the second election, in which Fleming
allegedly asked him how he would make house payments
if the Union won In the same conversation Fleming
asked Charlie ^ Mulhollen, where he would find a job at
his age. Mulhollen corroborated the testimony of Young,
which is credited, and based thereon it is concluded that
Fleming associated designation of the Union with loss of
jobs, thereby violating Section 8(a)(1) of the Act.
The comment to Mulhollen, according to Robert Sin-
clair, was also addressed to him abut a few weeks prior
to the first election, when Fleming allegedly asked
where Sinclair "was going to be working in two or three
weeks," I believed him and find that this was clearly co-
ercive, implicit reference to the consequence of a
UMWA victory. Respondent thereby violated Section
8(a)(1).
Many witnesses testified to alleged threats frequently
repeated by Fleming prior to both elections The issues
related thereto are discussed below in connection with
the second election
f David Benjamin
Both Tim and Joe Mazenko testified to coercive re-
marks made by David Benjamin either in the midst of, or
as a digression from, his campaign speeches prior to the
first election. Tim Mazenko testified that after Benjamin
stated that he could not afford another penny and if the
Union was voted in he would shut down if it came to a
strike vote, Tim Mazenko confronted him, stating:
Dave's that's bull . . . they've been saying that
since the 1800's . . . there's companies smaller than
you and bigger then you that have signed.
Benjamin told Mazenko to "shut up," then explained, "I
can't afford no more money over my costs now, if the
585
Union gets in here, it comes to a strike vote . . . I'll
have to shut my doors, I'll liquidate the Company."
Then according to Mazenko, David Benjamin turned to
him stating: "What do you want, the Union or your
job." Benjamin denied making any statement relative to a
strike vote or having to shut the doors, or to having
asked Mazenko whether he wanted a union or his job.
The testimony of previously discredited witness Ma-
zenko was uncorroborated. The denials were believed. It
is noted, however, that even were I to believe Mazenko
the reference to possible job loss was expressed as a re-
sponse to a strike vote, against a background of proven
losses, and the inability of the Employer to afford sustan-
tial cost increases. Hence even on the General Counsel's,
evidence the 8(a)(1) allegation would be dismissed. See,
e.g., Tri-Cast, supra
Joe Mazenko testified that at a speech given by David
Benjamin on 10 October 1983, the latter in discussing the
financial condition of the Company, and again describing
the survival plan, stated, "if ... he had to accept or ne-
gotiate a UMWA contract and pay royalties involved
with that contract, then . . . that would be it." When
Mazenko inquired as to what David Benjamin meant by
"that would be it," Benjamin denied that the Company
would go "belly up, or that he would sell, but that it
might means bankruptcy " Benjamin then reminded that
the men had homes and vehicles to pay for. The testimo-
ny of Joe Mazenko was not denied. Here again, the pos-
sibility of bankruptcy was raised in the context of ad-
verse economic circumstances and the inability of Re-
spondent to afford anticipated demands by UMWA, in-
cluding royalties to finance the latter's pension and wel-
fare programs. In these circumstances, under current
Board precedent, the statements of David Benjamin are
viewed as privileged argumentation protected by Section
8(c) of the Act. See Clintonville Shoe, supra, and Tri-Cast,
supra.
g. Harry Benjamin
Charles McCombs, an incumbent employee at the time
he testified, and an avowed union protagonist, related
that 3 or 4 weeks prior to the first election, Harry Benja-
min, David Benjamin 's son , and second in command,
asked if McCombs planned to attend an "antiunion meet-
ing " McCombs indicated that he might go, whereupon
Harry Benjamin allegedly stated "personally I would not
go within 50 miles of there because if the UMW support-
ers attend, there is going to be violence " Harry Benja-
min denied having had any such discussion with
McCombs. The General Counsel contends that inasmuch
Benjamin had no basis for suggesting the possibility of
violence, his statements constituted an unlawful threat
violative of Section 8(a)(1) of the Act. There is no merit
in the General Counsel's view. The remark was not an
attempt to discourage this known union activist from
pursuing the right to organize, but under any fair inter-
pretation was merely an expression by Benjamin of his
opinion as to what was likely to occur in the event of a
confrontation between the competing factions in this
emotionally charged campaign. Moreover, the statement,
quite simply, had no tendency to suggest that any vio-
586 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
lence would result from any condition sponsored, abet-
ted, supported, or otherwise condoned by the Respond-
ent. The 8(a)(1) allegation in this instance shall be dis-
missed.
James McLaughlin testified that Harry Benjamin ques-
tioned him as to how the Union was doing and inquired
whether he was unhappy about anything or had any
complaints. He insisted that this occurred a few weeks
after the first election even though his prehearing affida-
vit averred that this occurred 2 weeks before the first
election Later, McLaughlin was recalled, conceding that
his affidavit was correct. Nonetheless, he was believed.
Interrogation of him concerning union activity independ-
ently violated Section 8(a)(1) of the Act
h. Ronald Schultz
John Kunsman testified that in October 1983 a month
before the first election, he was alone with Schultz,
when the latter stated, "if the election went for the
Union, Dave would shut doors," Schultz could not recall
the incident, but denied that he would have made the
above statement to Kunsman. He admitted to daily con-
versations with Kunsman, including some in which
UMWA was topical. As shall be seen, the testimony of
Kunsman accords with a pattern of conduct on the part
of Schultz described by other employees, who were con-
sidered credible. In this instance, Kunsman was believed
and I find that Respondent violated Section 8(a)(1) by
this direct, unqualified threat of a shutdown.
Thomas McCracken testified that while seated at a bar
in the LaJose Hotel, a local establishment frequented by
Respondent's personnel, Schultz inquired as to what the
men wanted of Benjamin, whereupon McCracken indi-
cated that all he wanted was representation by the
UMWA. Schultz replied, without further elaboration,
that if the Union got in, "Mr Benjamin would close the
Company down, close the doors." In contrast, Schultz
admits only to saying that "the Company would shut
down if Mr. Benjamin had to . operate under a Union
contract." He admitted that he referred to no particular
contract, but explained that the UMWA contract was the
issue at the time and everybody knew what contract was
involved. I believe McCracken, and find the 8(a)(1) vio-
lation based on his testimony.
i. Bert McGarvey
Tom Pennington testified that at the end of October
1983, in the presence of Harry Smith, McGarvey told
him "If the Union was voted in, Benjamin Coal Compa-
ny would never negotiate." McGarvey could not recall
having made that statement to Pennington. He claims,
however, that when Pennington would proclaim how
the Union could benefit the men, he would respond by
pointing out the financial condition of the Company, ar-
guing that the Company could afford no increase Pen-
nington was not regarded as an entirely trustworthy wit-
ness and I am unwilling to predicate an unfair labor
practice solely on his uncorroborated testimony. The
8(a)(1) allegation involved shall be dismissed.
Gary Hess related that prior to the first election,
McGarvey argued that employees had nothing to gain
by going to the Union because they would be. paying
dues and they now have everything that the Union
might obtain without having to pay dues. According to
Hess, McGarvey went on to state that Dave Benjamin
could not afford to pay the royalties on his coal and
would close his doors before signing a contract. McGar-
vey could not recall making such remarks Based on my
understanding of Hess' testimony, including his admission
on cross-examination that McGarvey elaborated that the
inability to afford increases was due to "the declining
price of coal," I find that the remarks attributed to
McGarvey were simply argumentation based on
common sense and the strong likelihood as to what
would occur if Respondent was forced to enter an agree-
ment requiring a payment of royalties. Thus, the allega-
tion is dismissed as the testimony, at best, simply recants
protected argumentation See Clintonville Shoe, supra.
j Robert Hockinson
Neal Armogast, an employee on payroll status at the
time he testified, related that Foreman Hockinson in late
October 1983 informed that the Company needed Armo-
gast's vote in the election in order to "save our jobs."
Hockinson could recall no such conversation, while indi-
cating his contacts with Armogast were only seldom.
Amogast was a believable witness and it is deemed un-
likely that his encounter with Hockinson was imagined
or concocted Based on his credited testimony, I find
that Hockinson, in effect, equated a vote for the Union
with a loss of jobs, and that Respondent thereby violated
Section 8(a)(1) of the Act
k Darrel Jefferies
Irvin Feaster testified that 4 weeks before the first
election, he was told by Jefferies that Dave could not
afford the contract with the Union and that he would
have to shut down According to Jefferies, he simply in-
formed Feaster that the Company could not afford any
more expenses. I believe Feaster. Based on his testimony,
it does not appear that Jefferies identified the contract
specifically that Dave Benjamin could not afford. None-
theless, as indicated, Respondent could expect rightfully
that UMWA would not depart from crucial, expensive
terms of its contractual charges against coal extracted in
this section of the country. Accordingly, the 8( a)(1) alle-
gation in this respect is dismissed as founded on com-
mentary within protective guarantees of Section 8(c) of
the Act. See Clintonville Shoe, supra.
On the day of the first election, according to employee
Ernest Potutschnig, Jefferies stated, before Potutschnig
voted, that "Benjamin would never go union . he
would shut the door before he would ever sign a union
contract " Jefferies denied making that statement Ac-
cording to the latter's version, he was instructed, that
day, to cut his men down to a straight 40-hour work-
week Apparently, Potutschnig who had been working a
great deal of overtime, protested, and among Jefferies'
responses was a remark that if they had to cut down to
40 hours to meet costs, how in the world could the
Company afford the Union I regarded Potutschnig as
the more credible witness. It is concluded that Respond-
BENJAMIN COAL CO
ent violated Section 8(a)(1) on Jefferies' declaration as to
the futility organization and the threat that the plant
would close before allowed to go Union.
1. Thomas Lemmon
Wayne Anderson, an employee on payroll status at the
time he.testified, related that about 2 weeks prior to the
first election, he was told by Lemmon that there was no
way "in hell" the Union would get in and that Benjamin
would go out of business first Lemmon could not re-
member making any comment to that affect, asserting
that the only point he ever made was that Respondent
could not afford the expense of the Union. The testimo-
ny of Anderson is credited, and it is found, based there-
on, that Respondent violated Section 8(a)(1) of the Act.
m. John Martyak
In early November 1983, about 2 weeks prior to the
first election, a meeting was held with employees not on
payroll status due to sickness or other disability. The
meeting was addressed by John Martyak, Respondent's
personnel manager, and other management spokesmen,
including Superintendent John Rainey and Controller
Barry Young 35 Martyak defined the meeting's purpose
as "to bring . . . employees up-to-date with what had
transpired throughout the Company during that year so
that they would know just where the Company stood fi-
nancially and within the industry " According to Mar-
tyak, this was the only group of employees that David
Benjamin had not addressed during that timeframe.
Nonetheless, Martyak denied that the meeting related to
the organization campaign.
Thomas Pennington testified that Martyak, Rainey,
and Young all said "that Benjamin would never sign a
contract, they would shut down, they couldn't afford the
union." Pennington denied that specific reference was
made to the BCOA contract and could not "recall"
whether the "green book" was mentioned
Charles Dillon's account of what transpired was as fol-
lows:
Q. Do you recall anything being said about the
Union?
A. The only thing that I recall that they said is
that Dave would close down if we voted for the
Union he wouldn't sign a contract
Q. Do you recall who said that?
A. Jack Rainey said it and then Barry young said
it too.
Q. And what about Mr. Martyak9
A Well he said that Dave would never sign a
contract
Another witness for the General Counsel, Jack St.
Clair, a disabled employee, also attended the meeting,
but denied that the Union was mentioned by name. He
also denied that anything was said about what would
happen if the Union got in.
as Neither Rainey nor Young was named in the complaint, nor amend-
ments thereto Neither testified
587
Dillon and Pennington were not regarded as impres-
sive witnesses In the circumstances, it is considered en-
tirely unlikely that the abstract references to closure and
refusal to sign a contract, as they described them, were
in fact made. Accordingly, their testimony in this respect
is rejected and the 8(a)(1) allegation based thereon is dis-
missed.
4 Allegations pertaining to events occurring during
the critical preelection period prior to the rerun
election
Events occurring during this timeframe are critical to
the question of whether employer misconduct interfered
with freedom of choice of employees so as to invalidate
the results of the rerun election conducted on 14 March
1984.36
a. James Fleming
As has become evident, numerous witnesses were
called by the General Counsel to substantiate that Re-
spondent's foremen were engaged in widescale independ-
ent 8(a)(1) violations in the course of both campaigns. As
heretofore indicated, among this group, the most notori-
ous of the alleged offenders was James Fleming With re-
spect to Fleming, employees Thomas Bell, Ronald
McGarvey, Ed Thompson, John Young, George McEI-
heny, John Olson, ' Irwin Holes, Douglas Feaster, and
Daniel Brink testified that on a regular basis prior to
both elections, Fleming variously threatened that, in the
event the Union was designated, Dave Benjamin would
liquidate, close down, go bankrupt, or lease the oper-
ation, and that he would not sign a contract with the
Union. According to Thomas Bell, Fleming regularly
argued that David Benjamin was stubborn, and he would
not sign a contract and he would close the doors, file for
bankruptcy, or liquidate rather than deal with the Union
Ronald McGarvey corroborated that Fleming frequently
questioned employees as to how they would make their
house payments if the Union got in pointing out that
they would lose their house, and their car, while observ-
ing that it is hard to get a job.37 Robert Pennington tes-
tified that during both campaigns, Foreman Fleming told
employees that no contract would be signed, and em-
ployees would have to go on strike and that he some-
times asked employees where they would get jobs if the
operation were shut down. Ed Thompson confirmed that
Fleming repeatedly asked employees where employees
would get a job if the Union came in,38 that employees
31 Under the established rule in the Singer Co, 161 NLRB 956 (1966),
the critical period for assessing preelection misconduct affecting the va-
lidity of a second election begins running from the date of the first elec-
tion Hence, the aforedescribed conduct, which occurred prior to 17 No-
vember 1983, is not determinative of the validity of the 14 March 1984
rerun election in Case 6-RC-9403
37 McGarvey did confirm that on some occasions, Fleming argued that
Benjamin could not afford a contract or a union
31 Robert Sinclair and Larry Young confirmed that they too were
asked by Fleming as to how they would get a job if Benjamin would
close the doors
588 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
would have to strike and Benjamin would shut down the
operation . 39 John Young testified that he was regularly
told during both campaigns by Fleming that David Ben-
jamin would not sign a contract and that if the Union
got'in the Company would close up. George McElheny
also testified that on a regular basis during both cam-
paigns, Fleming stated they would probably shut down if
the Union got in , without attributing the shutdown to
union demands for the BCOA contract, its pension plan,
or royalties . John Olson also testified that twice weekly
during both campaigns Fleming told Olson that with the
Union, the Company would just shut down and go bank-
rupt .40 Employee Irwin Holes also testified to repeated
threats by Fleming during both campaigns that the Com-
pany would "definitely" shut down or declare bankrupt-
cy if the Union won because 'there was no way they
could afford the Union , and that it would not sign a
union contract . Doug Feaster testified that on various
occasions during both campaigns, he was told by Flem-
ing, that if , the Union got in , that David Benjamin would
shut down before he would sign a contract .41 -
In addition , according to Ed Thompson , Fleming
stated , prior to both elections , that should the UMW
strike for its industrywide agreement in 1984 , the Union
would bring its unemployed members from other mines
to replace the Benjamin employees . 42 Daniel Brink testi-
fied that during both campaigns , on a daily basis, he was
told by Fleming that David Benjamin would shut down
if the Union got in Fleming advised that Benjamin could
not afford union wages , at the same time stating that
David Benjamin was old and did not need the aggrava-
tion of running the Company any more, and the employ-
ees would be the "one's" with no work . According to
Brink , Fleming stated that - Benjamin would not sign a
contract , as he had operated on a nonunion basis for 35
years and was not going to change at that juncture.
In addition to Fleming's repeated threats prior to both
elections , his conduct limited to the period between elec-
tions was also highlighted by witnesses for the General
Counsel Thus , Thomas Bell testified to an occasion be-
tween elections, when Fleming shouted to him that his
daughter had worked for a coal company that filed for
bankruptcy , indicating "Mr. Benjamin will do the same
thing," going on to state "that way the union won't have
it." Employees Ron McGarvey, Charles Mulhollen, Ed
Thompson , Larry Young, Robert Pennington all testified
to incidents between elections when ' Fleming raised the
question as to how they would obtain other jobs in the
event the Union were designated . 43 According to Daniel
39 Thompson testified that sometimes Fleming injected that the close-
down would result from the Company 's inability to afford the Union and
higher costs However, Thompson also stated that most of the time Flem-
ing attributed the possibility of shutdown to David Benjamin 's stubborn-
ness and unwillingness to deal with the Union
40 Olson testified that occasionally Fleming would assert that the Com-
pany could not afford to pay the royalties
41 Feaster testified that on some occasions Fleming indicated that Ben-
jamin could not afford the UMW contract
42 According to Robert Sinclair , in mid-October 1983, prior to the first
election , Fleming stated that a competing mine would put Benjamin em-
ployees out on strike and the employees of their competitor would take
their jobs
43 Similar remarks were attributed to Fleming prior to the first elec-
tion Ron McGarvey and Don Young , with corroboration from Moyer,
Sunderland , in December 1983, after the Union 's,victory
in the first elections , Fleming told Sunderland that
"Dave Benjamin would not sign a contract , that the men
would have to go out on strike ." Dan Brink also contrib-
uted that Fleming stated that the Union would "have to
strike to get a contract , and when we went out on strike,
that 's when he'd shut the company down , and [employ-
ees] would be without anything."
In other incidents , John Ruffner testified that shortly
after the first election , Fleming , in the presence of
Robert Miles and a number of other employes stated to
Ruffner "I see you still got money " to which Ruffner re-
sponded that he would be doing better after the election
is certified Fleming responded "no you won 't," "you'll
be on welfare ," adding "you won 't have a job , you'll be
on welfare."44
Fleming supervised some 38 employees during the
union campaign . He testified to having been indoctrinat-
ed by company attorneys prior to both elections con-
cerning what supervisors could and could not do in cam-
paigning against the Union 45 He acknowledged that at a
meeting prior to the second election , he was instructed
to convey to the employees that the Company was
"hurting." Nonetheless , Fleming testified that no one
ever told him that he could say that the Company would
shut down , and admits that he was off on his own in
making comments that the Company would shut down if
forced to sign the BCOA He claims that on a daily basis
he did talk to the employees , "mostly about the BCOA
contract ," informing them that the pension plan would
cost more money, the royalty would cost more money,
and, because of the financial shape that the Company
was in, it could not afford additional spending He could
not otherwise recall making statements that if the Union
came in the Company would liquidate , close down, go
bankrupt , lease out, or that Benjamin would not sign a
contract . He acknowledged , however , that he may have
made statements to the effect that if Benjamin shuts
down , how would the employees make payments on
debts incurred on behalf of their families . He testified
that in all of his discussions he stated that there was only
one contract , 46 and that Dave Benjamin would never be
Mulhollen , and Irwin Holes testified that during the critical period prior
to the first election , Fleming inquired as to how they would pay their
bills, maintain their mortgages , and/or take care their families in the
event the Union got in Daniel Sunderland and Robert Sinclair testified
to similar statements made by Fleming prior to the first election
44 Though Ruffner identified 10 to 15 other employees as present, in-
cluding all the mechanics and Robert Miles, his testimony stood as uncor-
roborated
45 The "Do's and Don't 's" of campaigning are in evidence as R. Exh
6 They are a generalized attempt to prevent that which trained experts
have difficulty defining with any semblance of consistency To tell super-
visors that they are not to threaten employees , while condoning refer-
ences to the possibility of closure is not likely to result in a sterile cam-
paign Obviously, R Exh 6 was ineffectual to prevent such references by
Fleming and other supervisors who admitted to statements concerning
possible closedown '
46 Fleming testified that Company's attorneys had instructed him that
there was only one UMWA contract and that was the BCOA agreement
His employees on the other hand argued that there were other agree-
ments , and when they did so he rebuffed them with his conviction that
the BCOA was the only contract
BENJAMIN COAL CO
able to afford that agreement, namely the BCOA con-
tract. He admits to telling employees that he could not
afford the BCOA, it would force him out of business,
and that Benjamin would not sign and could not afford
to sign the BCOA contract. He denies that he ever said
that Benjamin would "never sign any contract," but that
he could not afford to sign the BCOA contract and that
it would force him out of business 47 He could not recall
saying anything to employees about having to go on
strike.
As is true of other segments of this case, several fac-
tors combine to make it difficult to present an incisive
and refined analysis concerning the independent 8(a)(1)
conduct attributed to Fleming. The sheer volume of con-
frontations, joined with the lapse of time, have made it
difficult for the trier of fact to develop a sense of confi-
dence in the capacity of witnesses to recall precise words
used in their precise order. Nonetheless, credible evi-
dence establishes persuasively that Fleming routinely
taunted employees throughout both campaigns with the
likelihood of job loss, seldom supporting his antiunion
diatribe with reference to the BCOA contract or Benja-
min's inability to afford union proposals. An emotional
man, with limited interest in self-control, Fleming be-
lieved strongly that ultimate victory for the Union
would spell absolute doom for Benjamin Coal.48 It was
entirely unlikely that a man of his proclivities would
make his point only after cautious selection of words and
ideas. On balance, persuasive evidence imputes a pattern
of conduct to Fleming, consisting of frequent emotional
references to his own view that Benjamin would close
down, fail, lease, or file for bankruptcy in the event of
unionization . I also believe that in order to highlight the
futility of organization, he often stated that Benjamin
would not sign a contract In the circumstances, on the
totality of the credible testimony, it was my impression
that his inflammatory remarks are not lightly to be ex-
cused because often made as part of an ongoing debate
with employees, who freely exchanged their views. They
were coercive and unlawful, and evidenced a repetitive
pattern of coercive conduct proscribed by Section
8(a)(1).49 I so find.
According to the General Counsel, Fleming, in addi-
tion to the above, engaged in other conduct violative of
Section 8(a)(1). Thus, Ed Thompson, testified that 2 days
41 Along this line, Fleming admitted that he probably had asked Mul-
hollen, in the presence of Craig Moyer, where Mulhollen would find a
job if Benjamin could not afford the BCOA contract and had to shut
down He also admitted to asking Young how he would make his house
payments and where he would get a job at his age
48 Fleming testified that in discussing the UMWA with the employees
his own feelings were as followed "I felt my job was on the line and
their job was on the line, and I have done to the best of my ability to do
what I could do "
49 The violations found are limited to threats of job loss, shutdown,
bankruptcy, etc , and statements that Benjamin would never sign a union
contract References, however, to the inevitably of strikes must be con-
sidered from the standpoint of the history of adversity confronting Re-
spondent economically together with the probability that the UMW
could settle for an agreement which Respondent could absorb financially
Just as Fleming was privileged to refer to the likelihood that Respondent
would close if forced to accept the BCOA, he was privileged to proclaim
that such demands would produce a strike No violation is predicated on
his conduct in this regard
589
prior to the second election, Fleming approached him
stating:
I can't tell you Mr Benjamin said this but I can bet,
I'll bet you my paycheck, that if the union is voted
down this time we'll get our days off back that they
took from us, we'll get our 10% . . . .
Fleming denied making any statement that the cuts of
August 1983 would be restored. I believe Thompson.
Since the comment was lacking in justification in prior
practice, and on its face constituted a promise of benefit
on rejection of the Union, Respondent thereby violated
Section 8(a)(1) of the Act.
Fleming's inability to control his hostilities toward
UMWA was evident in conduct which transcended
verbal threats and warnings as to the futility of organiza-
tion. First, the complaint alleges an 8(a)(1) violation
based on the method by which he removed a prounion
sign from company premises. It appears that during the
hunting season in 1983, apparently just after the first
election, a prounion sign appeared on a jobsite, attached
to a telephone pole high above the ground. Fleming used
his shogun in an attempt to blast it away. After firing 25
shells, Fleming repaired to his son's car where he ob-
tained more ammo, again loaded, firing three or four
more rounds before running out of shells. Apparently,
then, Fleming gave up without having completely de-
molished the sign As concerns the issue of legality, the
General Counsel does not dispute that Respondent had
the right to remove the posting. As stated by the Gener-
al Counsel, "here, the violation consists not in the re-
moval of the sign, but in its destruction." Authority does
not support the General Counsel's position. In this case,
the posting of Respondent's property was neither lawful
nor protected and in the circumstances, the self-help ex-
ercise by Fleming neither directly nor indirectly tended
to impede employees in the exercise of any rights guar-
anteed by Section 7 of the Act. Cases such as Pullman
Trail Mobile, 249 NLRB 430 (1980), and Servico Protective
Covers, 199 NLRB 977 (1980), involved destructive acts
addressed to protected activity, i.e., a grievance in the
former and picket signs used in conjunction with a
lawful strike in the latter.
Nonetheless, the inability of Fleming to constrain him-
self was evident in that incident and several others. Thus,
Ed Thompson testified that after the first election, but
before the rerun, Fleming asked Thompson where he
would look for a job when the Union came in. As the
conversation continued, Fleming said that if the Union
comes in and Fleming loses his job, Thompson would
not have a house because he would burn it down. Ac-
cording to Thompson, Fleming also threaten to shoot his
wife and the tires off of his car. Fleming admitted threat-
ening to burn down Thompson's house, but denied any
threats addressed to Thompson's wife or car. I believe
Thompson and these threats of violence, all addressed to
Thompson's prounion leanings constituted coercive con-
duct violative of Section 8(a)(1). I so find.50
so As shall be seen infra, Respondent also violated Sec 8(a)(1) of the
Act following the second election through Fleming's additional threat to
Thompson and his physical assault of employee John Young
590 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
b Bill Ricketts
Ricketts was highly active in the effort to impress em-
ployees with the hazards of unionization.
In this connection, Willis Maruna testified that after
the Union's victory in the first election, Ricketts stated
that everyone would be losing his job, as the Company
would have to close its doors because it could not afford
the BCOA contract. Ricketts acknowledged having
made the statement. Based on the Board's recent decision
in Clintonville Shoe, supra, and related cases, this state-
ment is deemed a protected exercise of the Employer's
right to present antiunion argumentation as contemplated
by Section 8(c) of the Act. The 8(a)(1) allegation in this
regard shall be dismissed.
In a similar vein, Terry Howe testified that in March
1984, dust prior to the second election, Ricketts, in the
presence of five or six other employees said that they
would soon be voting, that the men knew how they
should vote, because Benjamin would not sign a con-
tract, he could not afford the union royalties, and he
would shut the doors because he could not afford it
Here, again, Clintonville Shoe is deemed controlling, and
the allegations that Respondent violated Section 8(a)(1)
in this respect shall be dismissed.
Although Ricketts testified that in mentioning the pos-
sibility of closedown, he always qualified his statements
specifically to reflect that the Company was unable to
afford additional expenses, the BCOA, or the Union's
royalty payments, employees Harpster, Kunsman, and
Ruffner all testified to unqualified statements by Ricketts
in this respect. First, Harpster testified that prior to the
first, and again between elections, Ricketts repeatedly
stated that "Dave wouldn't sign a union contract . he
would shut the door if the union got in . . . he wouldn't
even bargain with them." According to Harpster, Rick-
etts reasoned "Dave was in his 60's "he didn't need that
kind of stuff, he would just close the doors." Harpster
also recalled that when employees asked what would
happen if the Union demanded to allow conditions to
remain as they were, Ricketts would respond, "Dave
wasn't going to pay the union royalties and stuff on the
coal . he just wouldn't sign a union contract, that he
was the boss and that's the way he wanted it."5 i Harp-
ster was not regarded as a particularly trustworthy wit-
ness. As other witnesses for the General Counsel ac-
knowledged, Ricketts followed a pattern of qualifying
his remarks, and though it is possible that he may have
departed therefrom on occasion, I am unwilling to find
that he did so on the basis of testimony of Harpster.
Kunsman and Ruffner also implicate Ricketts in an un-
qualified threat that David Benjamin would close and
refuse to sign a contract 3 weeks before the second elec-
tion. Their testimony was not entirely consistent. Thus,
Kunsman related that he was working while Ruffner and
Ricketts were engaged in a discussion concerning the
Union in which Ricketts said "no way would Benjamin
sign a contract . he would close the doors " Accord-
ing to the account of Kunsman, he was not a participant
in the conversation but was simply "eavesdropping." Ac-
cording to Ruffner; however, the conversation" was be-
tween Kunsman and Ricketts, with Kunsman stating that
everything will be taken care of on 14 March, to which
Ricketts responded, "No way would Benjamin sign a
contract . . . he would close the doors " Although
Ruffner testified that Ricketts did not refer to any specif-
ic contract, Kunsman testified that he "didn't hear"
whether such a reference was made Considering the ma-
terially discrepant nature of the testimony offered in sup-
port of this allegation, the testimony of Kunsman and
Ruffner is rejected. Accordingly, the 8(a)(1) allegation in
this respect shall be dismissed.
Beyond the foregoing, it is also alleged that Respond-
ent violated Section 8(a)(1) through Ricketts' request
that Timothy Mazenko remove union literature from a
company truck Ricketts admits to having asked Ma-
zenko to remove the literature and that the latter imme-
diately complied. In contrast, a number of witnesses tes-
tified that they were permitted without restriction to
maintain literature in company vehicles Consistent there-
with, Respondent apparently had no policy against em-
ployee retention of literature unrelated to their work in
their vehicles. The General Counsel correctly observes
that Respondent was not free to single out union litera-
ture and instruct an employee as to its removal. Under
existing Board policy, it is unlawful to impose disparate
restrictions on prounion literature See Stanley Furniture
Co, 244 NLRB 589 fn 1, 592 (1979) Indeed, the Board
has gone so far as to hold that "under Section 7 employ-
ees generally have a protected right not only to possess,
but also to display, union materials at their place of
work, absent evidence that Respondent restricted em-
ployee possession of other personal items or that posses-
sion of union materials interfered with production or dis-
cipline." See Dillingham Marine, 239 NLRB 904 (1978),
enfd. 610 F 2d 319 (5th Cir 1980). Accordingly, Re-
spondent violated Section 8(a)(1) of the Act by Ricketts'
instruction that Mazenko remove the union literature.
c. Bert McGarvey
With corroboration from Terry Lender, Richard Byers
testified that on the morning of the day immediately fol-
lowing the first election, McGarvey opened a conversa-
tion, station: "Where the hell is a 50 year old man sup-
posed to find a job?" Byers responded with a query as to
where 117 men would find jobs, a number representative
of the group already laid off McGarvey responded that
"there'd be no one working here by March or April."52
McGarvey offered a quite different account of the con-
versation. He denied that anything said related to the
Union but simply consisted of discussion with Byers as
to the number of men that had been laid off. McGarvey
claims that he simply made the comment that "if they
keep laying off there will be nobody working there by
April or May." Overall, the account Byers and Lender
were viewed as the more impressive Although on their
52 Lender testified that McGarvey added that "Dave Benjamin was a
5' Harpster was the only witness who related that Ricketts said that man of his word and he believed him" in forecasting that no one would
Benjamin would riot pay the royalties All others indicated that Ricketts be working by the following spring Byers failed to confirm that this oc-
said that Benjamin could not afford the royalty curred and to this extent Lender's testimony has been disregarded
BENJAMIN COAL CO
version, the Union was not mentioned, the Union's victo-
ry the day before appeared to furnish a sufficiently plau-
sible explanation for McGarvey's off-handed reference to
job loss to warrant the inference that it violated Section
8(a)(1). I so find
Byers also credibly testified that prior to both elec-
tions, on three or four occasions, McGarvey told him
that Benjamin would never sign a contract with the
Union. McGarvey denied making the statements. In this
instance , I am willing to give McGarvey the benefit of
the doubt Although McGarvey was not the most per-
suasive witness, Byer's uncorroborated testimony in this
respect seemed too pat, and is unacceptable as a reliable
recantation of what occurred. I did not believe him. Ac-
cordingly, the 8(a)(1) allegation in this respect shall be
dismissed.
Gary Hess testified that on about a half dozen occa-
sions before the first election and about 10 times prior to
the second, McGarvey, after union meetings, would
come in on Monday mornings and say "Well, did any of
you fellows go to the union meeting?" Hess admitted to
attending but, on further inquiry by McGarvey, declined
to disclose what had transpired. McGarvey was not ex-
amined as to these incidents. Based on the credited testi-
mony of Hess, I find that the interrogation was not
shown to have been accompanied by legitimate purpose,
and occurring as they did, in the context of a vigorous
antiunion campaign, the incidents are deemed coercive
and violative of Section 8(a)(1) of the Act.
d Darrell Jefferies
Employees John Lescallect and Charles Hutton testi-
fied to incidents in which Jefferies told them that Benja-
min would never sign a contract. According to Lescal-
lect, in December or January 1984, Jefferies asked why
the men had selected the UMWA, rather than some
other union, but then told Lescallect that in any event,
"Dave would not sign a contract " Jefferies could recall
only one conversation with Lescallect during the time-
frame in question. According to him, in discussing the
Company's inability to buy rags because it could not
meet C 0 D. requirements of a vender, Jefferies told
Lescallect "if we can't afford rags, how can we afford
the Union." I believed Lescallect, and based on his testi-
mony it is concluded that Respondent violated Section
8(a)(1) through the declaration that union representation
would prove futile The probability of Lescallect's testi-
mony is hardly undercut by Jefferies' admission that he
occasionally said that David Benjamin could not afford
any kind of union contract, though not necessarily to
Lescallect, that he had been told at foremen meetings
that if the Company was forced to take on more ex-
penses it could not afford to operate, and that it was his
perception that if the Union came in it would automati-
cally mean more expenses. Whatever his reservations, I
find that they went unexpressed to Lescallect.
Charles Hutton testified that between the elections,
Jefferies told him that with respect to the Union "Dave
just couldn't afford it and if it got any where near he
would shut the place down " After another incident oc-
curring a few days before the second election , he claims
that he was approached at work by Jefferies who stated,
591
"I want to talk union." According to Hutton, Jefferies
said, "Dave will never sign a contract if it comes to
union and if union got in he would shut the place
down." Jefferies denied making any such statements to
Hutton. On cross-examination, Hutton acknowledged
that Jefferies also stated that the time was not right for
the Union and that Dave Benjamin could not afford it.
On consideration of Hutton's testimony, it was my im-
pression that there was more to the conversation than he
related and that the risk was great that he was passing on
his interpretation of what was said, rather than the com-
plete argumentation made to him In these circumstances,
it is only fair to assure that the statements made were ac-
companied by expressions as to the inability of David
Benjamin to afford the Union's demands and, hence, it is
concluded that these remarks were protected by Section
8(c) and not violative Section 8(a)(1). See Clintonville
Shoe, supra
Joe Mazenko testified that on 3 March 1984, he was
approached by Jefferies while working, who informed
him as follows: "Joe, I think that after this thing goes
UMWA that Dave will start laying off people" Ma-
zenko allegedly asked what he meant, but Jefferies de-
clined to elaborate. In addition, Jefferies in the same con-
versation assertively expressed the feeling that people
were voting for the Union to get even with Benjamin,
with Jefferies adding "when this thing is over I intend to
get even with some people too " Jefferies testified that
he did not "remember" saying anything like that to Ma-
zenko As against Jefferies, I believed Mazenko Based
on his credited testimony, I find that Respondent violat-
ed Section 8(a)(1) by threats of layoff and reprisals in
connection with union activity
e Thomas Lemmon
According to Gordon Frano, the day after the Union's
victory in the first election, he asked Lemmon what
Lemmon thought now Lemmon responded "this is the
beginning of the end for Benjamin Coal Company," ac-
knowledging that something had to be done, "But, Good
God, not the United Mine Workers " Later, in February
1984, according to Frano, Lemmon allegedly remarked,
"We'll end up just like the A & P stores Dave will
shut down and reopen under another name and all will
be out of work " Although Lemmon was not examined
as to these specific statements, strong reservations were
held as to the credibility of Frano. The latter provided
three separate preheating affidavits to the General Coun-
sel, each of which omitted these highly salient conversa-
tions. There being no explanation for these omissions,
they are difficult to discount as innocent oversight. In
the circumstances, although Frano was an incumbent
employee at the time he testified, his uncorroborated tes-
timony is regarded as too unreliable to furnish a predi-
cate for unfair labor practice findings. The 8(a)(1) allega-
tions in this respect shall be dismissed.
Wayne Anderson testified that I or 2 weeks before the
second election, Lemmon, in the midst of a general con-
versation, stated that the Company would shut down if it
went Union Lemmon testified that the only thing he
might have said was that the Company could not afford
592 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the extra expense of having a Union. On balance, I was
inclined to give him the benefit of doubt and based on
his testimony and the Board's position in Clintonville
Shoe, supra, this was a proper expression, particularly in
the light of the ' Company's financial position and de-
mands likely to be made by UMWA in view of econom-
ics in the coal industry
f. William Cameron
According to the testimony of Edwin Daugherty,
shortly before the second election, Cameron inquired as
to what Daugherty thought about the Union. To that
point in time, Daugherty had made no public display of
his union sentiment . Daugherty was an incumbent em-
ployee, whose testimony, was not viewed as a by-prod-
uct of imagination. The interrogation being unaccompa-
nied by any legitimate purpose, waged in the course of a
vehement antiunion campaign, was coercive and viola-
tive of Section 8(a)(1) of the Act.
g. Delwyn Fry
On the face of the pleadings, an issue was raised as to
the supervisory status of Fry. Contrary to the Respond-
ent, I find merit in the General Counsel's position that he
was a supervisor at all times material, and that unlawful
conduct committed by Fry was binding on Respondent.
Thus, undisputed testimony establishes that his title was
shop foreman, and that nine employees reported to him.
Like other supervisory personnel he wore a white hat
and was allowed use of a company truck. He inter-
viewed job applicants, granted time off, evaluated and
reviewed evaluations with employees, assigned work to
mechanics , transferred mechanics between jobs , and as-
signed overtime. This evidence being uncontroverted, it
is concluded thereon that Fry possessed statutory indicia
of supervisory status, and was held out by Respondent to
the employees as a representative of management as
Paul Smochek testified that, prior to the first election,
Fry in a conversation with another employee in his pres-
ence, referred to Smochek as a man "willing to vote his
job away " Thereafter, on the morning after the first
election, Smochek was sweeping the floors while Fry
was standing around talking to others about the Union's
victory. According to Smochek, Fry stated "just like
your job Paul, it could be done now." Fry provided no
forceful denial that these remarks were made, but simply
indicated that he could not remember doing so. Indeed,
any challenge to Smochek must be considered in light of
Fry's admission that he could have told a Board investi-
gator that he might have made the statements in ques-
tion. I credit Smochek. Accordingly, Fry's remarks vio-
lated Section 8(a)(1) of the Act as linking a prounion
vote with job loss.
h. Floyd Fishel
William Clark, an employee on payroll status at the
time he testified, related that his foremen, Floyd Fishel,
on at least a half dozen occasions during the second cam-
paign stated, "If the union comes in Dave Benjamin
53 Fry testified but offered no comment as to his supervisory status
would shut down and we would all be out of a job."
Fishel died prior to the hearing and, although uncontra-
dicted, I am reluctant to credit Clark Fishel has not
been implicated in any broad pattern of conduct which
would envelope this accusation. Clark's testimony is of-
fered in "shot gun fashion" with only the most general
description of the surrounding circumstances, and with-
out comment as to what else might have been said in
these several confrontations. Though his testimony sug-
gests that many other employees would have heard these
remarks, if made, his testimony was allowed to stand un-
corroborated. In the total circumstances, particularly the
fact that these statements may or may not have been le-
gitimate depending on their entire content and the exact
words used by Fishel, I am reluctant to consider the lim-
ited evidence offered by the General Counsel as a credi-
ble foundation for finding the 8(a)(1) violation in this in-
stance.
i. Harry Benjamin
Greg Bell testified that on 16 January 1984, while he
was on layoff, he met with Harry Benjamin to protest
the fact that employees junior in service to him were still
working. In the course of their conversation, Harry Ben-
jamin allegedly stated, "If this had been a couple of
years ago, there would have been no problem But right
now, we have been operating in the red and if the union
comes in we'll have to close the doors." Harry Benjamin
admitted to a conversation with Greg Bell concerning
his layoff and further acknowledged that, while there
was discussion about the Company's financial condition
and as to the reasons behind his layoff, there was no dis-
cussion about the Union. Bell's testimony did not ring
true, and the 8(a)(1) allegation based on this testimony
shall be dismissed.
j Chad Hannah
Two employees, John King and William Johns, testi-
fied that during the period preceding both elections,
statements were made by Hannah to the effect that Ben-
jamin would never sign a contract and that he would
close the doors. Both relate that no reference was made
either to the BCOA contract or the "green book."
Hannah admitted to advising employees simply that the
Company could not afford the BCOA contract, and that
Benjamin would have to shut down if he sustained more
expenses. I would note in this connection that a witness
for the General Counsel, employee Kerry Lewis, con-
firmed that several weeks before the second election, he
had a conversation with Hannah that if the Union got in,
the Company would just go bankrupt, they could not
afford it, and would shut down. Under the Board's
recent decision in Clintonville Shoe, supra, the require-
ment that the General Counsel present specific proof as
to the precise words used to support an 8(a)(1) threat has
achieved heightened significance. The exculpatory words
"could not afford" appear to be determinative, and I was
not persuaded that this point was not made by Hannah in
the conversation with Johns and King. Accordingly, as
to the critical issue, the testimony of the latter is regard-
BENJAMIN COAL CO
ed as unreliable, and the 8(a)(1) allegations based thereon
are dismissed.
k. Donald Hutton
During the period prior to both elections, Hutton, as
Respondent's superintendent, reported directly to the
Benjamins Coercive conduct was attributed to him by a
number of witnesses for the General Counsel prior to
both elections. Thus, Charles McCombs and Thomas
Pennington testified to statements that Benjamin would
never sign a contract and, if unionized, would liquidate
and go out of business. In addition, Hutton allegedly told
Tom Mahaffey after the UMWA's victory int he first
election, that he did not care what the results of the elec-
tion had been, David Benjamin would not sign a con-
tract. In accordance with his position, Hutton entered a
$100 wager with Mahaffey that the Company would
never sign a contract with the Union. In like vein, Wil-
liam Buck testified to another incident after the first elec-
tion wherein Hutton offered to bet $1000 that Respond-
ent would never sign a contract.
Edward Barrett Jr., an incumbent employee at the
time he testified, related that Hutton stated during a
period prior to the second election that even if the union
were to win the election, "Dave Benjamin would shut
the doors, and we would all be out of work." According
to Barrett in another conversation, Hutton made the
same point, this time indicating that "Benjamin would
just file bankruptcy and that would just end it all." As
was true of other witnesses for the General Counsel,
Barrett attributed the remark to Hutton that "Dave Ben-
jamin would not sign a contract "
Thomas McCracken testified that during the period
between elections, in a bar in the LaJose Hotel, on 14
February 1984, Hutton made the point that conditions
were "rough" at Benjamin, and that he was looking for a
job. To this, McCracken inquired whether Benjamin was
planning to get rid of Hutton, whereupon Hutton replied
in the negative, going on to state, "if the company goes
union on the 14th . . . Dave would close the doors"
Later, on 5 March 1984, Hutton again commented on his
job search, ultimately stating that if the second election
resulted in a union victory, "he'd have to leave and look
for another job because Dave would close the doors "54
Hutton admittedly talked to a lot of people about the
Union, but avers that he simply told the men that the
Company "could not afford any contract, no matter
what it was, if it increased costs to the Company."
On the total record, taking full account of my assess-
ment of Hutton and the surrounding circumstances, I, re-
garded the mutually corroborative testimony exacted
from witnesses for the General Counsel as more reliable
than the assertions by Hutton that, in each and every in-
stance, he referred to Benjamin's inability to afford a
contract or increased expense in uttering the devastating
effects of unionization. I do not believe that he was so
thorough in his dialogue, but instead I am convinced that
he informed employees, repeatedly, and in unqualified
54 Hutton admitted to telling McCracken in the LaJose hotel that if
the operation went union "that that's goin' to be the straw that broke the
camel's back "
593
terms, prior to both elections that Respondent would
close if the Union were designated, and that the com-
ments outlined above violated Section 8(a)(1) of the Act
In a further allegation, Respondent, through Hutton, is
charged with having made an illicit promise of benefit
Thus, employee Ronald Wright testified that dating back
to the period preceding the first organizational campaign
he had been trying for reassignment for an oiler position
to that of a loader operator. He testified that on or about
8 March at the LaJose hotel he asked Hutton if he was
aware of any vacancy in the loader classification and if
he could be transferred to such a position Wright, with
corroboration from employee Thomas McCracken, went
on to testify that Hutton responded that he could do
nothing at the time, but if the employees voted "NO" he
would be able to maintain his position as'superintendent,
and "that way he will be able to do something." Hutton
acknowledged that every time he saw Wright the latter
would ask about the transfer, but claims that his answer
was always, "I'll see what I can do." I believed Wright,
and based on his testimony I find that Respondent violat-
ed Section 8(a)(1) of the Act on Hutton's implicit sugges-
tion that if employees rejected the UMWA, Wright's
prospects for reclassification would be improved.
1. David Peace
Employee Ronald Wright testified that he also had
conversations with Dave Peace concerning his request
for a job transfer. Thus, he claims that prior to the first
election, Peace continually put off his solicitations, but,
about a week before that election, when the issue was
again raised, Peace said that the Company would make
no move until after the election, that they would wait to
see if the Union were voted in, and that if it were, David
Benjamin would shut it down and "there would not be
no company to work for anyway." Wright also testified
to a further incident just prior to the second election,
when he asked about the transfer, whereupon Peace, in
the presence of Larry Johnson, a coworker, said that
they would just have to wait and see how the. second
election turned out because "he'd shut the doors if it
went union."55 Peace did not deny that he had discussed
the campaign "quite a bit" with Wright. He denied ever
having made the statement "close the doors,",but claims
that he told Wright, just like all other employees, that "if
he [David Benjamin] couldn't afford it, he would close
the doors." Peace denied ever saying that closure would
be occasioned just by designation of the UMWA. Peace's
account impressed as an argumentative response to forth-
right testimony, which was detailed and wholly believ-
able. I credit Wright, and based on Peace's threat, con-
clude that Respondent further violated Section 8(a)(1) of
the Act.
Employee Lawrence Johnson testified that Peace,
prior to the second election, in the presence of other em-
ployees, stated that David Benjamin would not sign a
contract and that if the Union came in, Benjamin would
ss No one by the name-of Larry Johnson testified A Lawrence John-
son, as shall be seen , who was supervised by Peace, did testify to certain
statements made by the latter, but did not mention any incident resem-
bling that described by Wright
594 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
shut the doors. On cross-examination, Johnson conceded
that, on the occasions in question, Peace said more than
the few words he attested to, however, he could not
recall the additional comments, and for that matter, he
had no recollection of the exact words used by Peace. In
the circumstances, for reasons heretofore expressed as to
the importance of the precise language used to proper
application of Section 8(c), the instant 8(a)(1) allegation
shall be dismissed as not supported by reliable proof.
Employee John Schaffer testified to a conversation
with Peace prior to the second election, whereupon
Peace, after a meeting conducted by Dave Benjamin
stated to a group of employees, "Dave would not sign a
contract " Peace could not recall making such statement.
The testimony of Schaffer is not considered a reliable
predicate for an unfair labor practice finding. He testified
that the conversation with Peace was witnessed by sev-
eral other unidentified' employees. While acknowledging
that the discussion continued for a period of 5 minutes,
he remembered nothing else about it In these circum-
stances, I do not regard his testimony as a competent ex-
pression of precisely what occurred. The 8(a)(1) allega-
tion based thereon is dismissed.
Kenneth Bee testified to an incident prior to the
second election in which Peace allegedly remarked that
if the Union goes in "Dave is shutting the doors, and
that 'Mr. Benjamin would never sign a union contract.'
Bee described a second conversation shortly before the
second election involving six to eight employees, in
which Peace stated that if the Union goes in, David Ben-
jamin would shut the doors' and there is no way he
would ever sign a union contract. Bee's prehearing affi-
davit included 'no reference to any such statements."56
With respect to the first incident, Peace denied that it
was made, relating that he was asked by another employ-
ee Ron Bennett, as to what would happen if the Union
was voted in. Peace claims that he responded that if Ben-
jamin could not negotiate with them, and work some-
thing out, he would just close the doors As for the
second incident, Peace could not recall having made
such a statement, but denied ever telling the men that
they would lose'their jobs under such conditions. In this
instance, there being no clear corroboration of Bee, I am
inclined to give Respondent the benefit of the doubt. Ac-
cordingly, in light of the General Counsel's failure to
substantiate the allegations in this regard by credible
proof, the 8(a)(1) allegations based thereon shall be dis-
missed
A former employee, David Leasure, testified that
shortly after the first election he requested Peace's "per-
sonal opinion" as to what would happen if the Union
won. According to Leasure, Peace responded by indicat-
ing that "he thought that if Mr . Benjamin wouldn't get a
re-vote that he . . . couldn't afford the union, and that
he would have to close the doors." Peace's sworn re-
sponse was as follows "we talked so many times . . . I
don't remember anything like that." Even were I to
credit Leasure, the clear import of the statements imput-
ed to Peace was that the Company could not afford
56 Ron Bent , an employee, identified by Bee as witnessing the incident,
was not called by either party
union demands. Accordingly, it was legitimate argumen-
tation protected Section 8(c) as contemplated by Clinton-
ville Shoe Co., supra. The allegation in this respect shall
be dismissed
Albert Bell testified that in December 1983, Peace
stated that "they eventually wouldn't be able to afford
the union, if it went in, and that the Company would
close if it went union." Two other employees, Tom
Hutton and Jim Robaugh, were named as present, but
neither was examined in that regard. Although Peace
could not recall making the comment, here again, the
statement would appear to be privileged argumentation
protected by Section 8(c). The independent 8(a)(1) alle-
gation in this respect shall be dismissed.
in. Ronald Shultz
As heretofore indicated, during the period preceding
the first election, employees Kunsman and McCracken
were subjected to illicit threats of shutdown by Schultz.
Other witnesses implicate him in similar misconduct
during the period preceding the second election Thus,
John Potter testified that shortly before the rerun elec-
tion, at the LaJose Hotel, Schultz, together with Don
Hutton, made statements "that the company would never
sign a contract and they would just close up." Schultz
was not questioned as to this specific incident, but indi-
cated generally that he could not recall making any
statement that Respondent would shut the doors. Potter,
whose testimony conforms with that of other 'credible
witnesses showing that Schultz and Hutton engaged in a
pattern of unlawful intimidation, is credited Based on his
testimony, I find that Respondent violated Section
8(a)(1) of the Act
Edward Barrett testified that in late February or early
March 1984, at the LaJose Hotel, Schultz stated that
Dave Benjamin would not sign a contract regardless if
the Union won or what happened and, he would just file
for bankruptcy and that would be it I credit Barrett and,
based on his testimony, it is concluded that Respondent
violated Section 8(a)(1) of the Act
Robert Sheeder, an incumbent employee at the time he
testified, related that on a dozen occasions prior to both
elections, Schultz, his foreman, stated that Benjamin
"would shut the place down . he wouldn't accept the
Union " According to Sheeder these statements were
made both at work and after work at the LaJose Hotel.
Schultz also allegedly stated that he had worked for Re-
spondent for 22 years and he knew tht Benjamin would
never accept the Union. Schultz testified that he could
not remember what he said in what conversation inas-
much as he talked to his men "two dozen times apiece."
Nonetheless, he claims to have told Sheeder "that if Mr.
Benjamin had to operate under contract, and was in the
financial shape he's in . . . why he couldn't stand any
extra cost . . . he'd have to go out of business." Here
again, I did not believe that the Schultz' remarks were so
finely honed, and the testimony of Sheeder was believed.
I find that, Respondent thereby threatened employees
with closedown in the event they designated the Union
under conditions violating Section 8(a)(1) of the Act.
BENJAMIN COAL CO
n. Ernie Smeal
Employee Charles Dillon testified that he had a single
conversation with Ernie Smeal concerning the Union It
allegely took place within a week of the second election.
Dillon claims that Smeal stated, "Dave would never sign
a contract with the UMWA." However, he had no inde-
pendent recollection of anything else said by Smeal.
Indeed, when refreshed on cross-examination, he admit-
ted that the remark was not made to him, but that it was
overheard in a conversation between Smeal and another
employee, Kitko, which was in progress when he arrived
on the scene.57 Considering my reservations as to the ca-
pacity of Dillon for recall, and the strong possibility that
he may not have overheard exculpatory statements by
Smeal on the occasion in question, I consider his testimo-
ny as an unworthy foundation for an unfair labor prac-
tice finding, and hence shall dismiss the 8(a)(1) allegation
based thereon.
o Sara Mahaffey
The complaint alleges that Respondent violated Sec-
tion 8 (a)(1) through promises of benefit by Sara Mahaf-
fey during the period prior to the second election. Pre-
liminarily, Respondent denies that Mahaffey was an
agent or representative , whose conduct was binding on
it.
With respect to the threshold issue of agency, it is
noted that Mahaffey is a long-term employee of Re-
spondent having been hired some 22 years prior to
events in issue here Her position is that of a payroll
clerk, a task involving responsibility for maintenance of
Respondent's payroll and benefit programs. In this ca-
pacity, she had access to all of Respondent's payroll
records and personnel files It does not appear, however,
that she supervised employees. Although Respondent
argues that her functions with respect to the pension
plan are purely administrative and that she had no au-
thority to make decisions regarding the terms thereof, it
is clear from her own testimony that she is in a position
alone, to make interpretations under the plan which
could result in denial or confirmation of an applicant's
eligibility. Mahaffey also testified that she would correct
and resolve, on her own, complaints about payroll dis-
crepancies
During the period between 1967 and September 1983,
Mahaffey served as trustee under Respondent' s pension
plan. A pension booklet distributed to employees identi-
fies her as a trustee. Although during the critical period
after the Union's election petition was filed, David Ben-
jamin removed her from this position-an act not other-
wise explained on this record-the employees were not
formally notified of this status change and indeed Sara
Mahaffey only learned of it herself a year after her al-
leged removal, some 2 weeks prior to the opening of the
instant hearing in October 1984
Of the critical import to the issue of agency is the fact
that prior to the second election, at the direction of the
Benjamins , in January and February 1984, Sara Mahaffey
alone conducted 10 to 12 employee meetings at various
51 Krtko was not called as a witness by either party
595
sites. The meetings were unprecedented, and, according
to Mahaffey, she assumed that they were needed because
"the men needed to know about the benefits so that they
could honestly vote correctly." Attendance was compul-
sory, with employees instructed to attend An attendance
roll was taken at each, and a catchup meeting was held
for those who missed that scheduled for them At the
meetings, Mahaffey discussed, and answered questions
concerning the Company's overall benefit program
The unfair labor practices, which the complaint at-
tributes to Sara Mahaffey, are limited to statements she
made concerning the impact of unionization on the Com-
pany within the realm of her duties as the Employer's
representative for the purpose of administering the pen-
sion fund. Under Board law, agency status is not depend-
ent on the existence of precise delegation of specific
authoirity, but it is sufficient that apparent authority be
conferred under conditions enabling employees to con-
clude reasonably that Respondent was in fact speaking
through the alleged agent. See, e g., Enterprise Aggregates
Corp., 271 NLRB 978 fn 18 (1984). There can be no
question, on the face of this record, that Sara Mahaffey
was held out by Respondent as its expert in the field of
benefit administration, and employees rightfully could
rely on her statements and actions, while serving in that
capacity, as binding on the Company. Accordingly, at all
times material, she is deemed to have acted as an agent
of Respondent within the meaning of Section 2(13) of
the Act.
According to John Ruffner, Sara Mahaffey at one of
the benefit meetings in response to questions concerning
Respondent's pension plan, indicated that changes were
possible, that upgrading the plans was intended, but that
it could not be done because they were "locked into ev-
erything" in view of the union campaign Mahaffey went
on to state that if the Union lost, they had planned to
upgrade the pension, adding that if the Union won, the
pension plan would be dissolved Another employee,
Terry Miller, attended one such meeting and confirmed
that in the course of explaining that plan, Sara Mahaffey
said that it was to be revised after the election, but that if
the Union won, employees would be covered by the
very unstable UMWA pension plan. She indicated that
modifications would relate to (1) the number of hours
one had to work in a year to get pension credits,58 and
(2) lowering the age requirement establishing eligibility
for annual pension credits.59
Richard Diehl testified that at the meeting he attended,
Sara Mahaffey stated that if the Union did not get in
they were going to revise the pension plan and a new
booklet describing the plan would be distributed.
58 Although the pension handbook included a minimum hour work re-
quirement necessary to achieve full pension year credit, according to Ma-
haffey this requirement was disregarded in practice and credits were ac-
corded historically irrespective of the actual hours that were worked
during a particular year
ss Under written eligibility requirements, pension credits could only be
accumulated after the worker reached the age of 25 Thus, those hired at
18 would accumulate no benefits for 7 years According to Miller, Sara
Mahaffey indicated that a change was contemplated whereby the credits
would be accumulated from the first day of employment, irrespective of
age
596 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In addition to the foregoing, Joseph and Timothy Ma-
zenko attributed similar statements to Sara Mahaffey out-
side of the aforedescribed meetings. According to their
testimony, on a day following their meeting, they went
to her office and requested to see a copy of the master
pension plan in order to compare it with the manual dis-
tributed to employees. At the time, according to their
mutually corroborative testimony, Sara Mahaffey stated
that after all this union business is over Dave would
probably update and improve the pension plan. Joe Ma-
zenko added that Sara Mahaffey told him that if the
Union got in, Dave Benjamin would probably terminate
the Company's plan.60
Sara Mahaffey denied that she ever stated that the
pension would be upgraded. She testified that she simply
told employees that the pension booklet would be re-
vised after the union issues were resolved to reflect the
exact manner in which the pension had been adminis-
tered historically. She indicated that many of the require-
ments set forth in the booklet had not been followed
Mahaffey's explanation in this respect was uncorroborat-
ed, and basically she did not impress me as a truthful
witness.
Based on the credited testimony of the Mazenkos,
Ruffner, Miller, and Diehl, I find that Sara Mahaffey
during the critical preelection period preceding the
second election told employees that if the Union were
defeated, their eligibility for pension benefits would be
liberalized but that if the Union won, that plan would be
terminated. As stated by the Third Circuit Court of Ap-
peals in NLRB v. K & K Gourmet Meats, 640 F 2d 460,
466 (1981):
[E]mployer discussions of potential benefits during a
union organizing campaign creates an inference that
the benefits do not come without strings attached
That inference becomes more perceptible where
. . . the proposed benefits are different not only in
degree but in kind from those presently enjoyed by
the employees.
Respondent thereby violated Section 8(a)(1) of the Act.
Sara Mahaffey was also a key figure in a reversal of
position with respect to a disappointed pension applicant.
Thus, John Leasure, while working on the job for Re-
spondent, had a stroke on 29 March 1981. This occurred
shortly before his 62d birthday on 15 May 1981. In con-
sequence, he was deemed permanently disabled; he never
again worked for Respondent.
Thereafter, during 1981, John Leasure's wife and his
son, David, on several occasions, inquired of Respondent
concerning his pension.6 i He was declared ineligible.
80 Sara Mahaffey while denying that she made statements to the effect
that the plan would be upgraded, admits that she told Mazenko that if
the Company went Union, Benjamin would probably terminate the plan
She explained that this was based on her understanding that he could not
have two plans at the same time See, however, Winn-Dixie Stores, 224
NLRB 1418 (1976), Kroger Co, 164 NLRB 362 (1967), enfd 401 F 2d 682
(6th Cir 1968)
S' David Leasure continued to be employed by Respondent during the
organizational campaign
According to David, Leasure, conflicting explanations
were assigned for his ineligibility. Thus, according to his
mother, Sara Mahaffey had indicated that John Leasure
was not entitled to a pension because he was on social
security disability, while Sara Mahaffey had informed
David Leasure that he was disqualified because the dis-
ability was incurred and his employment lasped prior to
his 62d birthday. Having met with no success, in 1981,
David Leasure and his mother dropped their effort to
secure benefits under Respondent's plan.
However, according to David Leasure, prior to the
second election, he had a discussion with Sterry Mahaf-
fey concerning BEAU. When the former asked why
Leasure was pushing the UMWA so hard, Leasure raised
the denial of his father's pension. When Mahaffey at-
tempted to explain that it was because his father had
qualified for a social security disability, Leasure disputed
this.
Thereafter, Sara Mahaffey, the mother of Sterry, and
herself a founder of BEAU, at the conclusion of one of
the benefit meetings in 1984, informed Leasure that his
father's pension had been approved. Indeed, beginning
with the 1 August 1984, pension benefits were paid to
John Leasure, retroactive to 1981. There is no evidence
of any change in status of John Leasure, affecting his eli-
gibility for the plan between 1981 and 1984.
The sole explanation for this reversal was offered
through Sara Mahaffey. According to her testimony,
John Leasure at the time of his stroke was 61 and hence
missed the minimum age limit of 62 for retirement by 2
months. He also had less than 10 years' service with Re-
spondent. Under the pension plan, without 10 years of
service, no benefits are available unless employment is
terminated after reaching the age of 62. According to
Mahaffey, she was troubled by John Leasure's ineligibil-
ity "from the day that it happened." She claims that after
a contact from the plan's actuary in early 1984 concern-
ing another employee, she inquired whether sick benefits
ministered to John Leasure prior to his 62d birthday
could be counted for retirement purposes. Later, she
learned that the sick benefits did count and that John
Leasure was in fact eligible for retirement
Sara Mahaffey claims that she did not discuss the ques-
tion of John Leasure's eligibility with any other repre-
sentative of management. Respondent in its brief argues
that "it would be abhorrent to charge the company with
misconduct in this instance for what was truly an act of
compassion." However, the issue does not turn on
whether the grant of benefit involved an act of munifi-
cence, or its social acceptability, but whether it was
granted for the purpose of interfering with employee
choice during an impending election. Under established
Board policy, the burden is on Respondent to disassoci-
ate this benefit from any desire on its part to influence
employee choice during the organization campaign. See,
e.g., Dravo Lime Co., 243 NLRB 213, 214 (1978); NLRB
v. Exchange Parts Co., 375 U.S. 405 (1964). As indicated,
Sara Mahaffey was not a credible witness, and her expla-
nation that her inquiry concerning the eligibility of John
Leasure, some 3 years after its denial, was rekindled im-
pulsively and without relationship to the union campaign
BENJAMIN COAL CO
is rejected as untrue It is concluded that renewed inter-
est by Respondent in the pension eligibility of John Lea-
sure was in support of an effort to neutralize appearances
of inequity raised during the campaign with respect to
the Company 's pension plan and hence was designed to
further the Company 's effort to defeat the Union at the
polls. Respondent thereby violated Section 8(a)(1) of the
Act.
5. Acts of interference occurring after the second
election
a James Fleming
As shall be seen Fleming's bombastic antics continued
into the period following the second election. On 26
March 1984 an article appeared in a local newspaper out-
lining events mentioned in union objections to the second
election. Alleged threats by Fleming were reported. That
morning Fleming appeared at the place of work, ranting
and raving as to who had written him up in connection
with those charges. Ed Thompson volunteered that he
had fingered Fleming because of the threat Fleming had
made against his wife. With this, Fleming unleashed a
barrage of vindictive remarks claiming that he could sue
Thompson for his house, knock his head off, have him
eliminated, if not by himself, he would hire someone
who could, and that he would take care of the problem,
naming Thompson as the problem. Fleming apparently
carried his anguish to other employees, telling Ron
McGarvey that he had threatened Ed Thompson, while
some 10 days later, again raising the issue, stating. "Ed
had to go or I go." Dan Brink testified that, during the
same basic general timeframe, he witnesses a statement
by Fleming to the effect that "Thompson better hope
that the union got in, because if it didn't he would get
him." According to Craig Moyer, Fleming, in the pres-
ence of Dennis Young and Robert Pennington, admitted
that he told Thompson he would burn his house down,
reiterating that he would in fact do so if Fleming were
to lose his job The General Counsel's witnesses in the
above respect were credible and, based on their mutually
corroborative testimony, it is found - that Fleming's
threats intended to impede employees in their right to
participate in and support the remedial proceses of the
Board and hence violated Section 8(a)(1) of the Act.
Fleming's outrage concerning the filing of charges
against him was not limited to Thompson. Several em-
ployees confirmed a similar incident involving employee
John Young. According to the latter, shortly after the
election, on or about 16 March 1984, Fleming entered
the work area, angrily pitching his hat across the floor,
while remonstrating about the Union. He approached
Young, grabbing 'him by his shirt throwing him up
against the wall, inquiring if Young had filled charges
against him. When Young indicated that it was none of
Fleming's business, the latter laughed and backed off.
According to Young, the incident was repeated by Flem-
ing 2 weeks later around 29 March. Young's testimony as
to the first incident was corroborated by Robert Pen-
nington, Dennis Young, and Daniel Brink. Fleming ad-
mitted to grabbing Young and inquiring whether Young
had made allegations against him, but claims that he was
597
only joking. Although, on the heels of John Young's re-
sponse, Fleming assumed a lightened air, having seen the
error of his way, I am convinced, nonetheless, as in the
case of the Thompson incident, that the situation was fo-
mented initially by Fleming's anger. He thereby con-
veyed an impulsive proclivity toward reprisal against
those who would support or file unfair labor practice
charges, under conditions likely to arouse curiosity
among employees as to how far Fleming would go to
vindicate his wrath. Employees who would invoke the
aid of or support the processes of the Board, may do so
without interference from.temper tantrums or any other
coercive form of reactive behavior by management rep-
resentatives. Through Fleming's response, Respondent
violated Section 8(a)(1) of the Act.
In his brief, the General Counsel refers-to an incident
involving employee Larry Young. He appears to suggest
that in October prior to the first election Fleming stated
that he hoped Benjamin will lose this case because, if the
Company won, a lot of employees would find out who
was running the show. This evidence was not adduced
through the examination-in-chief by counsel for the Gen-
eral Counsel, but emerged on cross-examination of
Young. Moreover, it is clear on the face of the record,
that the incident occurred after the second election on 18
October 1984. The complaint , and amendments thereto,
include no reference to threatening remarks made by
Fleming during this timeframe. Absent such an allega-
tion, Respondent was free to cross-examine Young from
his affidavit without fear that- unalleged facts developed
thereby would prove incriminating The issue was not
appropriately litigated and shall not be the basis for any
unfair labor practice finding herein
b. Donald Hutton `
John Potter testified that after voting in the second
election on 14 March 1984, he went to a local bar, where
he met Hutton and Ron Schultz. After he indicated that
he had voted, Hutton said, "Well . . they have been
out lookin' for a job because after the votin there'd be no
work . at Benjamin Coal." Hutton's denial is discred-
ited. I believed Potter, whose testimony conforms with a
pattern of conduct described by several other employees,
and find that this implied threat that designation of the
union would eliminate job opportunities violated Section
8(a)(1) of the Act.
c. Ernie Smeal
Russell Harpster testified that after the second elec-
tion, Smeal, in the presence of Tom Niebaur and Chuck
Harnich, said that "Dave wouldn't sign no union con-
tract and that during the vote that he had already had
papers filled out with other company's to take care of his
orders in case the union came in." Smeal denied making
any such statement, and I was inclined to give him the
benefit of the doubt, over the uncorroborated testimony
of the heretofore discredited witness for the General
Counsel. The 8(a)(1) allegation in this respect shall be
dismissed.
598 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
d. Chad Hannah
According' to the testimony of Wayne Anderson,
about 4 weeks before the opening of the instant hearing,
he inquired of Hannah whether he had received a sub-
poena. Eventually, Hannah showed Anderson an enve-
lope, speculating that he was subpoenaed in connection
with an allegation against him based on his remark that
Dave Benjamin would shut down and go out of business.
Hannah assertively told Anderson "he would shake the
hand of the man that said it for being honest and not
lying about it." Hannah disputed this version, claiming
that he and Anderson simply had been discussing the
fact that another employee, Bo Johns, had approached
Hannah, explaining to Hannah that he had exonerated
Hannah in his statement to a Labor Board investigator. I
believed Anderson. Nonethelesss, the incident was nei-
ther the subject of an allegation in the complaint, nor its
various amendments, and was not briefed by the General
Counsel Accordingly, no unfair labor practice finding is
made with respect thereto.
e. Floyd Fishel
Roger Farmery testified that when he asked Floyd
Fishel in June 1984 what the Union's election loss meant
for the future, Fishel responded that "Mr. Benjamin will
never go union, he would close the doors and shut down
first " As indicated, Fishel died prior to the hearing. The
entire incident described by' Farmery struck as a bit im-
plausible and simply did not ring true. Other credible tes-
timony that Fishel engaged in coercive conduct is lack-
ing. Accordingly, -corroboration being absent, Farmery's
testimony is rejected, and the 8(a)(1) allegation in this re-
spect is dismissed.
6. The alleged discrimination
a Wayne Anderson
Anderson is named as having been victimized by a
number of incidents of union-related discrimination He
was among the early supporters of the Union who signed
an authorization card at the-outset, and solicited similar
designations from among his coworkers His name and
photograph appeared on union literature as a member of
the employee organizing committee. He demonstrated his
sentiment openly through the wearing of UMWA hats,
T-shirts, and bumper stickers. Tom Lemmon, Anderson's
foreman, acknowledged that he was mindful of Ander-
son's status as a member of the employee organizing
committee. Also significant is the suggestion in testimony
of both Foremen Cameron and Lemmon that at the job-
site to which Anderson was assigned, union activity was
waged only sparingly.
(i) The first act of alleged discrimination derived from
the breakdown of Anderson's rock truck on 1 December
1983. In consequence of this incident Anderson was sent
home and told that the Company would call him when
needed. According to Anderson, after being sent home,
he argued back to Foreman Lemmon that other work
should be available Lemmon responded that his being
sent home had nothing to do with the Union. When An-
derson said "bull shit," Lemmon simply grinned and
drove away.
The next day, Anderson telephoned Lemmon inquiring
whether there would be any work. Lemmon said no. An-
derson filed for unemployment. In consequence of this
incident Anderson was out of work virtually the entire
month of December. He retruned on 5 January.
Anderson testified that on prior occasions when he ex-
perienced breakdowns, he was retained to assist in re-
pairing the vehicle or given other assignments and that
only on rare occasions, when there was nothing to do,
was he sent home. Several employees confirmed that this
was their experience as well. Under any construction of
this testimony, the treatment accorded Anderson appears
to have been unprecedented, for there is no evidence
whatever that any other employees had ever been laid
off indefinitely or for a substantial period of time by
virtue of an equipment breakdown.62
Credible evidence also suggests' an initial intent, later
abandoned, to depart from customary practice whereby
the operator of a down piece of equipment," rather than
face layoff, was assigned to assist the mechanic in the
repair operation. Thus, mechanic John Lescallect testi-
fied that he was assigned to repair Anderson's rock
truck, but no operator was available to assist him. When
he asked Foreman Cameron where the operator was, as
he needed assistance, Cameron himself offered to help
Lescallect. Lescallect testified credibly that in his experi-
ence no foreman had ever offered to assist with the
repair of a vehicle. However, before the'job could be
done, Lescallect was reassigned to another task. Eventu-
ally Anderson was recalled for a day to help repair his
truck.
Respondent, in its posthearing brief, concedes that
work was available for Anderson during this timeframe.
Thus, it is stated therein that "it is certain that if Ander-
son had called in to the front office and asked for work,
he would have been promptly assigned."63 In contrast,
Anderson' testified that he called the Company a couple
of times during the month of December to see if there
was any work, but was told there was nothing.64
62 See for example the testimony of Dale Yarger, Ken Bee, and Dennis
Byers Although Anderson testified that John Delp, a dozer operator, ex-
perienced a breakdown the previous evening, but the next day continued
to work without interruption on another piece of equipment, Delp ap-
peared as a witness but was not examined in this respect I draw no con-
clusions from the testimony of Anderson in this respect Nor did I find
Anderson's testimony that employee Darrel Hope recently was kept busy
during a 2-month period when his loader was down to relate to a compa-
rable situation
63 Respondent's posthearing brief p 45 Anderson testified that after
his layoff he returned to the site and found that the number of operating
rock trucks on his shift had increased Anderson was obviously in no po-
sition to testify on a first-hand basis that this condition was either perma-
nent or temporary The drivers then working were not identified and
there is no evidence whatever that Anderson, under accepted company
policies, had a preference over them Thus, little stock is placed in his
testimony in this regard
64 Cameron testified that when Anderson was recalled to asist in the
repair job, Anderson implied that he preferred layoff as "he'd just as
soon be on unemployment in tht kind of weather " Anderson denied that
this was so I credit him Cameron was an unimpressive witness
BENJAMIN COAL CO
Respondent's testimony is not clear whether Anderson
was put on the availabilty list, a roster of available men,
who though not on payroll status, might be used as re-
placements for those who call in sick or are off or on va-
cation. Cameron could not recall whether he had taken
this step On the other hand, Harry Benjamin, exhibited
some uncertainty but did testify that to his recollection
Anderson was put on that list. Placement on the avail-
ability list would have provided employment opportuni-
ties without necessity for constant phone inquiries. More-
over, although Respondent appears to fault Anderson for
not making a diligent effort to secure work, when An-
derson reported to repair the truck, Cameron conceded
that he told Anderson he had no work for him, and that
Cameron would call "when I needed him." Moreover,
Lemmon, who was Anderson's supervisor, until replaced
by Cameron the day after Anderson's truck broke down,
tacitly agreed with Anderson's testimony that, in sending
Anderson home, he too told Anderson that he would be
called concerning his next day of work. In fact, when
work was made available to Anderson, it was pursuant
to a phone call made by the Company.
In this instance, the General Counsel has established
that in the face of Respondent's avowed opposition to
unionization, a key protagonist of the Union, during the
period when a question concerning representation was
still pending, was laid off for a period of unprecedented
length. Under any view of Respondent's customary prac-
tice of seeking work for those whose equipment was in a
state of disrepair through no fault of there own, Re-
spondent's explanation for its action in this regard was
conflicted and unpersuasive In the circumstances, con-
vincing proof suffices to establish that the General• Coun-
sel has met its initial proof responsibility that protected
conduct was "a" motivating factor behind the Employ-
er's action. See Wright Line, 251 NLRB 1083 (1980). Ac-
cordingly, the onus properly shifted to the Employer to
show that the same treatment would have been accorded
the alleged discriminatee even if he had not engaged in
protected activity. In this instance, Respondent has failed
to produce a cohesive, believable explanation for its fail-
ure to follow its practice of minimizing loss of work by
employees due to equipment breakdowns. Instead, con-
vincing evidence warrants the inference that this practice
was breached and Anderson's employment interests vio-
lated in retaliation for his involvement in the organiza-
tinal effort, Respondent thereby violated Section 8(a)(3)
and (1) of the Act.65
(ii) The General Counsel contends that Respondent
was guilty of a further act of discrimination when An-
derson was transferred from a stripping job (#36) in late
January 1984 to a backfill job (#95). In consequence,
Anderson was reduced from the 48-hour week customar-
ily enjoyed in production 'to the 40-hour week, then at-
tendant in backfill operations. Anderson credibly testi-
fied, without contradiction, that of the eight rock truck
drivers working on two shifts in the mining operation
from which he was removed, he was the only one extri-
65 The allegation that Respondent in this connection violated Sec
8(a)(4) of the Act is lacking in record support and is dismissed
599
cated to the reclamation project. Of this group, only one
was more senior than Anderson.
The transfer of Anderson appears to have been punc-
tuated by a gratuitous slur at the hands of Respondent's
owner and president at the outset of the second cam-
paign Thus, by letter dated 10 January 1984, Dave Ben-
jamin informed employees, inter alia, that agreement had
been achieved for the conduct of a rerun election. That
which was sent to Anderson bore the salutation "Dear
Jerk."66 This reference is explainable solely in terms of
hostility to Anderson emerging from his Section 7 activi-
ty.67
The only justification for the reassignment of Ander-
son was offered through the following colloquy between
Respondent's counsel and Tom Lemmon:
MR. KATSAFANAS: Do you remember a situation
where Mr Anderson's truck and Mr. Anderson
were moved over there at the end of January 1984?
MR LEMMON• That's correct.
Q. Please, explain to us how that happened?
A. His truck down It had been down from the
steering I believe they had ran out of fuel in the
pit, and they pushed the truck to get it out of the
pit, or something, and they busted the steering
column. And, that truck, on that particular day, we
moved it, if I remember correctly, on a Saturday
Mr Anderson didn't even move it, I had another
employee move the truck. The only reason that I
moved that truck was because it was the one that
was settin ' there, in the parking lot. The other two
were right over the hill workin'
Q So, that truck had been down and was in the
parking lot?
A. Yeah, it had been down for a day or some-
thing like that.
Q. And, then it was moved over to the 95 job?
A. That's correct.
Q. Did you need a truck at 95 job, or what?
A. That's right. We had a backfill job to finish
there
Q And, that's the only reason you took that
truck?
A. That's correct. See, we had worked that back-
fill job with two trucks until the rear end went out
of his truck. We shut that backfill job down and
took one truck off the backfill, over to 36 job, to
replace the one that the rear end was out.
Q. So, at this point, the end of January, you took
his truck back over?
A. That's right.
Respondent does not dispute that Anderson was one of
the more senior drivers on job 36 at the time of the
transfer According to Respondent, Anderson was reas-
signed at random solely because his truck was "down,"
and the need for a vehicle on reclamation emerged at the
time of its repair. No reason is offered why his truck,
when again activated, was not assigned to production on
66 See G C Exh 16
67 Later Dave Benjamin formally apologized to Anderson
600 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
job 36 , nor is there indication as to how Respondent's
convenience was served by failing to recognize seniority
in the transfer to backfill . Beyond that , Harry Benjamin
himself afforded testimony which plainly suggests that
the assignment of Anderson for the reasons given by
Lemmon was in conflict with established company prac-
tice Thus, Harry Benjamin testified that in the event of
a breakdown on a production job, "the natural course of
action , which is standard , usually, is to go get a reclama-
tion machine and fill in for the production machine that
is down , until the production machine is repaired . . .
and then we usually return it [the reclamation machine]
to the reclamation ." If I understand Lemmon 's testimony
correctly, when Anderson 's truck was down , his vehicle
on the production job was replaced by a truck from
backfill However , after Anderson 's truck was placed
back in operation, it was returned to the backfill job,
rather than the production job on which it had most re-
cently functioned . Absent explanation as to the reason
behind an exception to the usual practice in this instance,
the conclusion is inescapable that this was an extension
of the harassment against Anderson , triggered by his ac-
tivity on behalf of the Union . Respondent further violat-
ed Section 8(a)(3) by reassigning him to a less renumera-
tive position in backfill in order to discourage union ac-
tivity.68
(iii) The final act of alleged discrimination against An-
derson involved a 15-day disciplinary suspension effected
several months after the second election. It was memori-
alized by a letter dated 29 May 1984, over signature of
Harry K. Benjamin and John Martyak, informing Ander-
son as follows-
This letter confirms that on May 17, 1984 , during
the second shift at #138 Job , you were operating
WABCO #2 when the right rear hoist jack separat-
ed from its frame plate and dropped to the ground.
Your continuing operation of this equipment caused
additional damage to three components of the hoist
jack. You finished the shift using WABCO 85 #1
and neglected to report the incident on your opera-
tors [sic] report or to the base.
Our investigation has revealed that your misjudg-
ment, carelessness and inaction to shut down your
equipment constitutes abuse of equipment as noted
on page 27 of the employee handbook.
Another instance of your misjudgment and care-
lessness, which brought you a verbal warning, oc-
curred on January 24, 1984 , at #36 Job during the
second shift. You failed to properly perform your
equipment pre-start or inspection (Safety Handbook,
section 2G., Task Training, item 5A) and ran out of
fuel while operating WABCO #6. This, in turn, re-
sulted in the need for a dozer to push you to the
top of the hill and in doing so, caused steering box
damage and repairs
After considerable deliberation , you are hereby
notified of the following disciplinary action:
66 The allegation that Respondent thereby violated Sec 8 (a)(4) of the
Act is lacking in record support and shall be dismissed
Employee Wayne F. Anderson, #1387, is placed
on a fifteen ( 15) day [work day ] suspension. This
suspension will start May 18, 1984 and continue
thru June 6, 1984 . The employee will return to his
regular scheduled work on June 7, 1984.
Future improvement of your work performance
will be expected.69
The first incident referred to in Respondent 's letter of
29 May occurred on 24 January 1984. At the time, An-
derson was assigned to 36 job, working the second shift.
That night he ran out of fuel As indicated , he had to be
pushed by a dozer and in the process the steering
column on his truck broke . He testified that it is the re-
sponsibility of the first-shift driver to do all the fueling,
greasing, oil checking , etc., while the second -shift opera-
tor simply checks engine oil, radiators , and tires .70 An-
derson explained that a vehicle will normally work two
shifts on a single tank of gas. Anderson also testified that
the fuel gauges on the truck were broken . Anderson tes-
tified without contradiction that, rather than receive any
warning or discipline in consequence of the incident, he
was overt in his criticism of management for failure to
make a repair job that he had complained of for months
which contributed to the truck' s fuel inefficiency . Ander-
son's testimony including his assertion in this respect,
that the second -shift driver had no responsibility to
check fuel struck as highly argumentative and illogical I
did not believe him
In any event , the incident that triggered the suspension
of Anderson occurred several months later on 17 May
1984. According to Anderson, while working the second
shift on 138 job, as he returned his rock truck from the
dump to the pit, he detected the smell of something
burning. As he started to check , a loader operator in the
pit informed that the hydraulic line on the rear of his
truck was wrapped around the drive shaft. This proved
not to be the case . On visual inspection , it appeared that
oil was running to the ground . One of the hydraulic cyl-
inders on the jack lift had broken from a bracket on the
left side of the frame and dropped between the tires. The
truck at the time was located in the middle of the pit
where production was in progress There were no me-
chanics nor foremen in the vicinity. Anderson claims
that he elected to move the truck before it ran out of oil
and did further damage . He moved the truck approxi-
mately 300-400 feet in order to prevent the job from
being brought to a complete halt. He continued to work
the shift utilizing a spare truck.
Management was quick to respond . The next day, An-
derson was called to Personnel Manager Martyak's
office, who requested a statement concerning the inci-
dent. Anderson obliged Before Anderson departed,
Lemmon gave Martyak a statement over the telephone.
69 See G C Exh 17
10 1 do not construe either G C Exhs 20(a) and (b) as primary evi-
dence that employees were told otherwise It was stipulated at the hear-
ing that these are the only documents involving company rules that
would bear on the allegations of discrimination involving Anderson
However, G C Exh 20(a) does not appear to be in a format suggesting
that it had ever been distributed to employees G C Exh 20(b) does not
impugn the testimony of Anderson
BENJAMIN COAL CO
Also, Harry Benjamin at some point entered Marytak's
office, read the two statements , and informed Anderson
that he would be on a 3-day suspension , pending investi-
gation of the matter . Anderson received no notice of the
final discipline to be imposed until receipt of the 29 May
letter.
Anderson admits that Tom Lemmon was sharply criti-
cal of his actions following this incident . First , Lemmon
angrily importuned Anderson that he should have detect-
ed that the jack had come out of the cylinder at the
dumpsite , before he returned to the pit. Lemmon also
argued that Anderson should not have moved the truck
after his admitted discovery of the damage.
Weighing against the claim of discrimination is Ander-
son's admission the he neglected to include a reference to
the incident on his operator's report He explained that
there was no urgency in doing so because there was a
spare truck on the job, and therefore no driver on the
first shift would be delayed . Later, however , Anderson
was forced to admit that he should have called the shop
and reported that the truck was down in order that a
mechanic might be assigned to perform the repair work
at the outset of the next shift . Despite this concession,
however, Anderson argued that it made no difference in
the Company , because Lemmon on a visual inspection of
the site at 6 a.m. the next morning would have discov-
ered the breakdown. 71
Although in other respects , Lemmon was not regarded
as a believable witness, he impressed me as sincere in his
conviction that Anderson was gulity of negligence in
moving the truck from the dump and that in doing so he
caused excessive damage to the truck. His own view was
described on the record as follows:
No, it's not unusual at all for a hoist jack to break
off, especially on a Wabco . But, it's very unusual
for an employee to move that truck . He drove the
truck from the dump where the jack broke clear
back down to the pit, to the loading area [1500]
And, he said he didn ' t know the jack was broken,
but the jack was wedged in between the back
wheels and the frame of the truck And, it damaged
the jack beyond repair. It damaged the sidewall, the
tire, on the truck , tore all the hydraulic piping out
from under the bed of the truck . And, then, even if
you didn't know it then , when they called it to his
attention , in the pit, he still moved the truck, ap-
proximately , another three hundered feet, and then
parked it right up against the highwall. Didn 't leave
a note in the truck , didn't explain nothing in the
report. We had a spare truck on the job at the time,
and he just went up and crawled in the other truck
and finished his shift . I found the truck settin' in the
pit the next morning
71 I regarded this testimony as an argumentative attempt to mitigate
Anderson 's failure to report the matter A report of the incident would
have been far preferable , as an aid to diagnosis as well as a means of fa-
cilitating prompt assignment of a mechanic , to a foreman's visual inspec-
tion in darkness at 6 am it is entirely possible that the failure to report
by Anderson was indicative of his own sensitivity concerning the judg-
ment he exercised in regard to this breakdown
601
Lemmon also testified, believably , that he had seen jacks
break off on the type of truck Anderson was operating at
least a half a dozen times , but never before had he seen a
jack wedged between the tires . A groove some 8 inches
deep was left in the ground by the jack dragging over
the area that the truck traversed , from dump to pit, and
then to the point where Anderson ultimately parked the
truck.72 The groove was in hard packed material ac-
cording to Lemmon , making it difficult for the drag to
go unnoticed by the driver . He added that when he ar-
rived the next morning, it was his view that Anderson's
truck could have been left in the pit without interfering
with production . According to Lemmon , based on his in-
terpretation of the incident , he recommended that An-
derson be disciplined , a recommendation that had noth-
ing to do with union activity 73
The General Counsel sought to discredit Lemmon ar-
guing that his testimony was internally inconsistent, an
assertion unsupported by the record . Lemmon 's position
consistently was that Anderson should have discovered
the broken jack from its original breaking point at the
dump and that each step taken thereafter aggravated the
original act of negligence . The General Counsel also
argues that testimony of a number of employees disputed
Lemmon 's testimony that rock trucks with broken jacks
never moved but "were always parked at the spot where
the break occurred " Contrary to the insinuation here, I
understood Lemmon to have meant that he had never
seen a truck moved with that degree of damage, i e, the
jack was broken off and wedged between the tires, a po-
sition far narrower than that imputed to him by the Gen-
eral Counsel. As for the employee testimony adduced in
support of the allegation that trucks with broken hoists
were moved , either the incidents occurred outside the
presence of a supervisor or representative of manage-
ment, and without knowledge of any management repre-
sentative , or were clearly different . Thus, Anderson him-
self described an incident when employee Ken Gilbert
stopped his truck when he realized that the jack had
broken Gilbert 's vehicle was moved only after a me-
chanic made adjustments to it and it was "pulled" off to
the side on direction of Foreman Lemmon . Tim Ma-
zenko testified that Bob Washic operated a truck with a
broken jack but, unlike Anderson, on advice of Mazenko
and other coworkers , he declined to move his truck from
the pit area to a nearby parking lot."
John Schaffer , a mechanic , testified to an incident in
which , having arrived at the scene afterwards, he could
tell that a truck with a broken jack had been moved
from a pit about 200 yards where it could be worked on.
Schaffer did not testify that any representative of man-
agement was aware of the incident , or that moving the
72 Lemmon added that the spot selected by Anderson to park the vehi-
cle was tight against a highwall , making it difficult and hazardous for the
maintenance crew to work on the vehicle which required repairs on the
side immediately adjacent to the highwall at risk of possible rock fall
73 Maintenance Superintendent Robert Hockinson testified that an ini-
tial estimate of the damage to the vehicle was in excess of $4000
74 There is no evidence that any damage to the Washic vehicle was
aggravated by his failure to detect the break earlier , nor was any supervi-
sor shown to have been aware that the vehicle had been operated after
Washic should have learned of the break
602 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
vehicle aggravated the damage to it. As the driver was
unidentified, one could only speculate whether discipline
was effected, or Respondent condoned any negligence
evident in the incident. Schaffer testified that he did not
observe the truck being moved and had no idea whether
it was driven, pushed, or towed. Schaffer also testified
that in the past that he had moved equipment out of a
pit, but only "with a foreman's permission."
By the same token, Kenneth Bee testified that some 2-
1/2 years earlier, he discovered a break in his lift jack as
he drove from the dump to the partking lot He failed to
disclose that removal of his damaged truck was wit-
nessed by any representative of management or that his
action in doing so caused further damage to the jack or
the vehicle Russell Harpster followed suit, recalling that
some 4 years ago a hoist broke on a rock truck while it
was coming from the dump onto a ramp, Thereafter, the
truck was moved some 50 feet but only after the dented
hoist was freed from behind the wheel and the fuel tanks
were moved Here again there is no indication that the
short distance that the truck was moved created addi-
tional damage or that the incident was witnessed by any
representative of management.
With the collapse of the attempt to show disparate
treatment, the General Counsel's credibility attack con-
tinued with an assault on references in Harry Benjamin's
testimony as to his belief that Anderson was guilty of de-
liberate destruction of company property. Contrary to
the General Counsel, Harry Benjamin was certainly enti-
tled to his suspicions, and his posture in this respect is
deemed typically human, not necessarily indicative of
bad faith or untoward motive.75
Upon final analysis, despite misgivings concerning the
General Counsel's evidence, and the fact that the inci-
dent occurred 2 months after the second election, the
case-in-chief remains sufficient to support a prima facie
case of discrimination. Nonetheless, although not free
from doubt, it is concluded that Respondent has met its
burden of disassociating the suspension of Anderson
from union considerations. The evidence available to
management is deemed adequate to support a fairly held
conclusion that Anderson was guilty of negligent oper-
ation of a company vehicle under conditions which pro-
duced serious damage which he allowed to go unreport-
ed. This departure from job responsibilities was not mini-
mized by any form of condonation on the part of Re-
spondent pursuant to either established policies or prac-
tices which were of an unambiguous nature. In the cir-
cumstances, I find the defense to be credible and that
Anderson would have received the suspensions in May
1984 even had he engaged in no activity protected by
75 I am also not pursuaded that pretext is necessarily suggested by Re-
spondent's failure to follow procedures defined in G C Exh 18, a letter
written to employees on 29 October 1980 That document purports to re-
quire that a warning letter be issued prior to the imposition of more seri-
ous discipline in connection with negligent operation of company vehicle
Although this document apparently was obtained by the General Counsel
in response to subpoena , its status at times relevant to the action taken
against Anderson was not clarified by stipulation or testimony Even, if
in force, however, where the employer is privately owned and unorga-
nized, the failure to adhere strictly to published employment guidelines is
not such a rarity as to warrant automatically a finding of chicanery
the Act. Accordingly, the 8(a)(3) and (4) allegations in
this respect shall be dismissed.
b. The discrimination against Timothy Mazenko
Tim Mazenko was a leading protagonist of the Union.
He was a member of the in-house organizing committee,
solicited coworkers to sign authorization cards, wore
prounion badges, and brandished stickers on his person
signifying his support of the Union
On 4 January 1984, Mazenko, who historically had
worked in production operations, was transferred to a
less renumerative position in reclamation.76
According to Respondent, this transfer was provoked
by an incident on 31 December 1983. On the latter date,
Mazenko was working on a crew, which included Rich-
ard Diehl, Tom Spangle, and William Pusey. Their
scheduled quitting time was 2:30 p.m. All four left work
that day at 1.30 p.m. Harry Benjamin and Foreman
Roger White happened to observe them leaving.
On the following Monday, Ernie Smeal, the foreman
on the job, reported to the men that Harry Benjamin had
seen them leave, and they had better change their time-
cards and reports to reflect that they only worked 7
hours.,The men, in turn, explained that they had an ar-
rangement between themselves to come in an hour early
that day in order that they might leave an hour early and
put in a full shift. Nonetheless, all parties admit that
Smeal, previously, had not been informed of this ar-
rangement."
According to Harry Benjamin he verified the early de-
parture by visiting the jobsite only to find that the equip-
ment had been parked, with no operators in sight. On ex-
amination of the equipment, no repairs were found, other
than that of Tim Mazenko, which was marked 8 hours.
Benjamin pulled the report, and then called Foreman
Smeal, who knew something of the early departure and
who reported that the men should have been working.
Later, Smeal reported back to Benjamin that, though un-
authorized, the men had reported that they had started
early. Benjamin told Smeal to discuss their breach of
work rules with the men, and also indicated that he
would probably "break the crew up " He later did so by
transferring Mazenko to the backfill job. Harry Benjamin
testified that at the time of the transfer he was aware
that all members of the crew were actively prounion.
Mazenko was replaced on the production job by
Dwayne Smeal , who, according to uncontradicted evi-
dence, had not openly manifested antiunion sentiment.
Although the circumstances surrounding the splitting
of the crew as the remedy for the offense involved is not
above suspicion, the employee, including Mazenko did
attempt to set, their own hours of work, and hence en-
gaged in an offense not shown ever to have been left to
's As was true of Anderson, on his assignment to the backfill oper-
ation , Mazenko's weekly hours were reduced from a regular 48-hour
week to 40 He also lost work and earnings due to assignment to an older
dozer which had startup difficulties in cold weather
79 Another employee on the stripping end of that job, Ken Yarger,
was not informed of the arrangement He reported at the regular starting
time and therefore lost an hour's work that day, when forced, by the de-
parture of the others, to leave early
BENJAMIN COAL CO
stand without some form of management response. This
misconduct was serious and to conclude that the disci-
pline selected by Respondent was pretexual would be
speculative,78 resting on a naked substitution of business
judgment. In the circumstances, although not free from
doubt, it is concluded, that based on the more compel-
ling inferences, Mazenko would have been transferred
even had he not engaged in activity protected by the
Act Accordingly the 8(a)(3) and (4) allegations in this
respect shall be dismissed.
c. Thomas Pennington
It is alleged that in December 1983, Thomas Penning-
ton sustained a reduction in hours and was denied the
use of a company truck in violation of Section 8(a)(1)
and (3) of the Act It appears that Pennington had been a
foreman between March 1973 and January 1983. Some 9
months after his demotion, while having the status of a
dozer operator/water treater, he became active in the or-
ganizational campaign, wearing prounion badges and
hats. On 14 August 1983, Pennington was observed sign-
ing a card by Superintendent Don Hutton.
The instant allegation derived from Respondent's de-
leting from Pennington's work responsibilities, the task of
sampling and treating water at a site formerly mined by
Respondent in Clearfield, Pennsylvania. Performance of
these duties involved a 70-mile round trip thrice weekly
between Clearfield and Pennington's normal backfill as-
signment, and entailed a work cycle of some 4 hours
daily.
Apparently, Pennington was privileged with the use of
a company vehicle pursuant to Respondent's practice
whereby operating foremen were provided company
trucks Upon removal as a foreman, Pennington contin-
ued to enjoy use of the vehicle to facilitate the water
testing rountine at Clearfield.
On the first of December, Pennington, was directed to
return the truck and informed that his duties would be
limited to operating a dozer On removal of the task, a
part of his assigned duties for some 5 years, Pennington
was never offered explanation. It does not appear that he
had ever been criticized directly about the manager or
time expended in the performance of that job.
In addition to the foregoing, discrimination is claimed
by the General Counsel on the basis of testimony by
Pennington that, within the same timeframe, on or about
1 December, his Foreman Bert McGravey informed him
that his hours would be cut to 40 hours weekly. He
claims that this condition continued for a period of 3 to 4
weeks The reasoning behind this reduction also was not
explained to Pennington.
Objective analysis of the record discloses that Pen-
nington was not singled out for discrimination in this re-
spect.79 It is a fact that during the payroll 12/4/83
78 The conduct by the crew , on the admitted facts, was sufficient to
support discipline Splitting of the crew seemed a mild rebuke Respond-
ent having selected this method , could only implement it by choosing be-
tween union protagonists Thus, the selection of Mazenko does not strike
as especially significant
19 R Exh 10(a)
603
through 12/17/83 Pennington was restricted to an 8-hour
day, 5-day week Thereafter, he worked overtime several
days per week. However, the loss of hours for the 2-
week work period is no way related to elimination of
Pennington's Clearfield work duties. Prior to elimination
of the latter, Pennington was not shown to have worked
more weekly hours than others engaged exclusively in
backfill operations. Accordingly, it is fair to assume that,
during this earlier period, the water treatment tasks con-
sumed hours carved out of Pennington's time dedicated
to backfill and hence did not enhance his overtime op-
portunities. The true explanation for the loss of work lies
in believable evidence offered by Respondent which at-
tributes the reduction to considerations which impacted
equally on all engaged in backfill operations, and had
nothing to do with water treatment or the Union. In this
connection, Superintendent Hutton testified credibly that
in December 1983 he received an instruction to reduce
all reclamation operations to 40 hours weekly. This oc-
curred for a temporary period and affected all employees
in backfill operations. The testimony of Hutton in this re-
spect is not contradicted, and is supported by documen-
tation to the effect that other operators assigned to iden-
tical work on the same job as Pennington worked a
straight 40-hour week during the first full 2 weeks in De-
cember.80 Note also the testimony of Tim Mazenko and
Wayne Anderson that they worked only 40 hours
weekly when transferred to backfill. No timecards were
offered to the effect that any employee situated similarly
to Pennington earned overtime during the payroll in
question. Accordingly, convincing credible evidence es-
tablished that the reduction to a 40-hour week affected
all reclamation work in the entire operation, an act not
isolated or related to protected activity.81 Accordingly,
the claim that Pennington was thereby discriminated
against is lacking in merit and unsubstantiated. The
8(a)(3) allegation in this respect shall be dismissed.
With respect to the elimination of Pennington's water
treatment assignment, Respondent contends that this was
an economic decision, having nothing to do with Pen-
nington's union sentiment Credited, uncontradicted testi-
mony by Harry Benjamin is to the effect that Pennington
inherited this job when he was a foreman at Clearfield
After that mining operation ceased, Pennington contin-
ued to maintain ecological duties in connection with a
pond at that site by driving back and forth. However, a
Department of Environmental Resources inspection
report filed in late November 1983 disclosed that treat-
ment operations at the Clearfield pond had not been per-
formed adequately under the existing arrangement' with
80 See R Exh 10(b)
81 In crediting the defense, the General Counsel's attack on Hutton's
alleged lack of certainty in describing the reason for Pennington's reduc-
tion in hours is considered nonmeritorious This followed a colloquy be-
tween Hutton and me In the course thereof, my own misinterpretation of
the timecards, as they related to Respondent's defense, provoked exami-
nation of Hutton on a faulty premise With this in mind, it is noted that
the segment of Hutton's testimony in question does not shake my confi-
dence in the validity of Respondent's position Surely, it would have been
foolhardy were Respondent to contrive a defense on the basis of an al-
leged companywide directive, which, if actually a sham, would be read-
ily discernible
604 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Pennington. 82 In consequence of the report, it was deter-
mined that daily inspections on a 7-day weekly basis
would be required if compliance were to be achieved.
According to Respondent's evidence, it was decided that
the frequency of the required testing would be most effi-
ciently discharged by retention of someone in,the Clear-
field area. Consistent with this thinking, a gentleman, in-
digenous to Clearfield, Richard Hipps, was retained and
effective 1 February 1984, the work formally was con-
tracted out to him.83
On balance, I was inclined to believe that the contract-
ing out and termination of Pennington's responsibility in
connection with the Clearfield pond was based entirely
on solid economic considerations consisting of the need
for 7 weekly inspections and the lack of feasibility in
having, daily treatment conducted by an employee whose
regular duties were 35 miles away.84 Accordingly, it is
concluded that this innovation would have been effected
even if Pennington had engaged in no activity protected
by the Act. As company interests would no longer be
served by Pennington's access to a company vehicle, the
denial of this privilege is viewed as incidental to the le-
gitimate contracting out of the water treatment assign-
ment ,85 and hence perfectly lawful. Accordingly, the
8(a)(1) and (3) allegation based on the elimination of the
water treatment assignment, reduction in hours, and
denial of the company vehicle as to Pennington shall be
dismissed.
d. Discrimination against Maruna, Westover, and
Fontanella
The complaint alleged that Respondent violated Sec-
tion 8(a)(3), (4), and (1) by the temporary layoff in
March and April 1984, of Walter Fontanella, Willis
Maruna, and Randy Westover. All three were members
of the same crew, assigned to the day shift Each had
openly displayed his union support. On the second shift
crew of Smith, Gillin, and Parks, only Parks had overtly
demonstrated his support of the Union
62 See R Exhs 9(a) and 9(b).
83 See R Exh 9(b)
84 My sustaining the defense is based essentially on the strength of its
inherent logic I did not believe all the testimony afforded by Harry Ben-
jamin in support He was given to overstatement in several areas in con-
nection with this issue I particularly did not believe that he was unaware
of Pennington's union sentiment, that he considered that Pennington did
not perform his job adequately, and that Pennington was informed of the
DER citation Nonetheless„ ,it was my decided impression that these ob-
servations sprung from overreaction to a fear of losing and an over-
whelming desire to win, and did not detract from the fundamental accu-
racy of the defense
85 The General Counsel argues that the disparate nature of the action
taken against Pennington is evident by retention of Jack Baum in the dual
capacity of operating a bulldozer and treating water on two other jobs
Baum, who signed an authorization card, did not wear badges, buttons,
or hats signifying his support for the Union According to Baum, his
water treatment responsibility is performed daily, for some 2 to 3 hours
He used his own vehicle Pennington's case was clearly distinguishable
There is no showing that Baum was compelled to travel substantial dis-
tances between the ponds and his fixed jobsite, nor does it appear that
DER required water treatment on a 7-day-per-week basis on his site
Quite simply there was no showing that the circumstances underlying
Baum's water treatment activity and that of Pennington were economi-
cally comparable
There is no question that during the period between 11
March and 2 May, work was lost by both shifts in conse-
quence of a defective loader, which repeatedly was
down and in need of repairs. The General Counsel
claims that the fact that the second shift crew received
more work than Westover and Fontanella is somehow
indicative of discrimination against the entire daylight
crew. In examining this assertion, it is necessary to point
out that a member of that shift, Maruna, who was among
the most ardent of the union supporters, worked more
hours during the timeframe in question than any others
on either the first or second shift.86 Furthermore, with
the exception of 1 and 2 May, dates outside the period
covered under the specific allegation of discrimination,
Smith, Gillin, and Parks lost as much time as Fontanella
and Westover, and far more than Maruna. In explanation
of what transpired on those specific dates, Foreman
White credibly explained from the timecards that the
dozer went down during the second shift on 30 April,
Maruna worked a full shift on 1 May plus an hour of
overtime that day in connection with its repair. The
second shift worked on 1 May, as the loader had been
repaired and was operable at the outset of that shift.
However, as White explained, the dozer apparently
broke down again that evening. Thus the first shift on 2
May, was canceled, but Maruna again worked a full
shift, plus 1-1/2 hours overtime, on repair of the dozer,
while Fontanella and Westover did not work. However,
because the truck was again fixed prior to the start of the
second shift, the latter crew lost no hours that day.
White credibly testified that until repair of the dozer,
there was no backup machine, and no work was avail-
able White's testimony was viewed as an accurate re-
construction of what Respondent's timecards reflect, and
what in all probability occurred. Based thereon, the
record contains persuasive support for the view that the
loss of work on the part of Fontanella and Westover was
due purely to the unfortunate timing of breakdowns on 1
and 2 May, that the failure of the second shift crew to
lose time was due solely to the availability of the dozer
at the outset of their shift, and that in all other respects,
union and nonunion employees on that particular oper-
ation were treated on parity.87 The 8(a)(3), (4), and (1)
allegations in this respect shall be dismissed See General
Counsel Exhibits 5(a) through (f).
e The alleged discrimination against Farmery, Bauch,
and Maruna
The complaint initially alleged that Respondent discri-
minatorily denied Maruna, Bouch, and Farmery work
during the weekend of 19 and 20 November 1983. How-
ever, at the hearing, after examining timecards showing
88 In light of clear evidence that Maruna worked longer hours than
anyone on either shift, it is incomprehensible that the General Counsel
continues to insist that he was victimized by unlawful discrimination
87 Even were I in a position to accept and to apply faithfully the Gen-
eral Counsel's general testimony to the effect that employees do not usu-
ally lose work in consequence of breakdowns, I am not convinced that
the treatment accorded Fontanella and Westover was inconsistent with
the great wealth of evidence to the effect that often an entire shift or part
thereof was lost because a machine in disrepair could not be replaced and
no work was available
BENJAMIN COAL CO
that the weekend designated in the complaint could not
have been affected by discrimination, the General Coun-
sel amended the complaint to read as follows-
Respondent denied work during a weekend in late
November or December, 1983 to its employees,
Willis Maruna, Dennis Bouch and Daniel Farmery.
To date, the weekend, which is the focus of the al-
leged discrimination, has not been identified. The allega-
tion is based entirely on testimony by Maruna that a
radio communication between Harry Benjamin and Wil-
liam Ricketts was overheard by Maruna while listening
on his scanner. The latter claims that he heard Benjamin
ask Ricketts "if he would have his day shift . work
extra this weekend to get a block of coal." Ricketts said
he would have them work. According to Maruna, his
shift did not work during the ensuing weekend, but he
appeared at the jobsite only to note another crew work-
ing. Although Maruna testified that he believed this to
have occurred on 17 November, the day before the
rerun election, he too apparently was convinced based
on payroll records that this could not have been the cor-
rect date. Although Maruna could not identiy the week-
end, he testified that whatever weekend it was, his crew
did not work.
Even were I to accept that Maruna has provided an
accurate replication of what he heard, serious question
would exist as to the substantiality of this evidence. Any
number of events unrelated to union activity could have
caused a change in plans. Indeed , as matters stand, one
wonders why Respondent would have scheduled the
overtime shift in the first instance, if almost immediately
thereafter, it was to be scotched as a reprisal for union
activity. In any event, I did not consider Martina's testi-
mony to be reliable and the 8(a)(3) and (1) allegation in
this respect shall be dismissed.88
f. The alleged discrimination against Joe Mazenko
Here again, the General Counsel argues that discrimi-
nation was manifested by loss of work on the part of a
union protagonist due to an equipment failure. In this
regard, Joe Mazenko admits that several weeks after the
second election on Saturday, 30 March 1984, in the
course of routine maintenance, a problem was detected
on the dozer he was operating warranting further re-
pairs. Mazenko was instructed to park the dozer. He lost
no time, however, finishing out the day by helping a me-
chanic on a rock truck. At quitting time, Mazenko
admits that his foreman, Darrel Jefferies, told him "Joe,
I'll get in contact with you to let you know where you
are going to work and when." Mazenko also admits that
the following day Saturday, 31 March, he was not home
at all the entire day. Finally, Mazenko admits that on
Sunday, 1 April, he ran into Jefferies, who informed him
88 Contrary to the General Counsel, a prima facie case of discrimina-
tion has not been made out, and hence Respondent cannot be faulted for
failing to present affirmative evidence refuting the assertions made by
Maruna Indeed, the vague and nebulous allegations concerning the time
period involved would necessarily make it difficult for the Respondent to
confront Maruna's assertions firmly and with a semblance of accuracy
605
"Joe, I tried to call you on Saturday to go to work Sat-
urday evening . running another dozer."
Mazenko was not called back to work until Tuesday, 3
April.
Jefferies testified that Mazenko was placed on the
available list and that he tried to call him on Saturday
for assignment to another repair job, but got no answer.
Jefferies denied that Mazenko was given time off because
of his union activity 89 I believed Jefferies.
Here again, the General Counsel points heavily to a
wealth of testimony offered by employee witnesses to
the effect that they usually lost no time due to break-
down. I have deep mistrust as to the relevance, accura-
cy, and substantive value of much of this testimony The
fact of the matter is that even prior to union activity,
entire shifts were lost due to equipment failures Most
employees acknowledged that they often, during this
same timeframe lost portions of shifts for that reason.
Nonetheless, despite my misgivings conerning this testi-
mony, its relevance to the situation is compromised by
the strong persuasive evidence that Mazenko lost work
because of his unavailability on Saturday, 31 March, evi-
dence which contributes firmly to the conclusion that
what transpired thereafter would have occurred even if
Mazenko had not engaged in any activity protected by
the Act. Accordingly, the 8(a)(3), (4), and (1) allegation
in this respect shall be dismissed.
7. Unlawful assistance to the BEAU; resolution of
grievances
In mid-January 1984, BEAU was established as a vehi-
cle to fend off employee support of UMWA. Sterry and
Sara Mahaffey were among its founders and at least, ini-
tially, its key functionaries.
The allegation that Respondent rendered "support and
assistance" to BEAU in violation of Section 8(a)(2) of
the Act is specifically addressed to the following.
(1) Respondent permitted Sara Mahaffey to serve as an
officer of BEAU.
(2) David Benjamin, Harry Benjamin , and Martyak
participated in "regular meetings" with BEAU.
(3) Respondent arranged for speakers to address
BEAU meetings.
(4) Respondent resolved grievances presented by
BEAU
Strong suspicion exists whether BEAU was truly an
independent employee vehicle for opposition to UMWA.
Most striking in this regard is a statement in a speech de-
livered by David Benjamin in March 1984, strongly, sug-
gesting that BEAU did his "bidding" as a conduit, used
by the Company to carry forth its own strategy in con-
vincing employees as to the economic reasons for reject-
ing unionization. Thus, in a speech given employees at
various sessions on or about 12 March 1984, Benjamin
stated-
89 The General Counsel attempts to discredit the defense by reason of
Respondent's failure to "offer any evidence to corroboprate Jefferies
claim that efforts were made to contact Mazenko " In this respect, the
circumstances were such that Jefferies' account could hardly receive
more convincing corroboration than that which was provided by the tes-
timony of Joe Mazenko himself
606 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
When the second election was ordered, I made up
my mind I would remain silent but tht I would
make available the Company's certified public ac-
countant, our banker, our bond broker, a former
head of D.E.R. to tell you the situation I was
unable to make you understand that this company is
in the most serious financial condition since . . .
founded . . in 1947.
It is a strange coincidence that as matters turned out
prior to the speeches given by Benjamin on 12 March,
the following speakers had been scheduled to address
BEAU meetings on the dates specifted:90
2 February Respondent's C.P A : Jones
12 February Respondent's Banker:
Keating
19 Ferbuary Respondent's Bonding
Agent Hondru
26 February D.E.R Representative
Ercole9 i
Despite the clarity with which employees on 12 March
were apprised that this approach originated with and
was conceived by David Benjamin, the sworn testimony
afforded by Benjamin and Sterry Mahaffey was to the
effect that this agenda was conceived by BEAU, but dis-
cussed with David Benjamin only to obtain his permis-
sion to use this slate of guest speakers.92 In any event,
even if this were so, the 12 March statement by David
Benjamin not only implied to employees that Respondent
endorsed BEAU, but that BEAU was being used as an
instrumentality through which the Company sought to
deliver its own antiunion message. Thus, the 12 March
speech depicted BEAU as a labor organization not only
favored and endorsed by the Respondent, but one which
could be expected to do Respondent's own bidding.93 At
the very least, the foregoing not only reaffirms my grave
reservations concerning the truthfulness of David Benja-
min and Sterry Mahaffey, but presents a circumstantial
chain sufficiently substantial to support an inference that
Respondent did arrange for speakers to address BEAU
meetings, an act violative of Section 8(a)(2) and (1) of
the Act See World Wide Press, 242 NLRB 346, 358, 362
(1979)
On the other hand, contrary to the General Counsel,
the evidence fails to establish that BEAU participated in
regular "meetings" with David Benjamin, Harry Benja-
min, and Martyak There is no question that Sterry Ma-
haffey both before and after the establishment of BEAU,
90SeeGC Exh 10,p 4
91 It is not without significance that this chronology is in the precise
sequence outlined in David Benjamin's speech
92 Mahaffey was a thoroughly unbelievable witness In this connection,
after denying that he had received the names and addresses of the speak-
ers from Respondent's counsel, Belin, Mahaffey was confronted with his
sworn preheating affidavit He then admitted that Belin did in fact give
him the names and addresses of the speakers
93 Although BEAU was not officially on the ballot in the representa-
tion proceeding before the Board, it was a labor organization, which held
itself out as an alternative to UMWA in connection with the representa-
tion of employees with respect to negotiation of terms and conditions of
work while fostering the idea that a "No" vote in the election was a vote
for BEAU
participated in impromptu conversations with manage-
ment representatives concerning employment issues
However, apart from the personalities involved, nothing
unusual is found in these exchanges, which, in all likeli-
hood, were mirrored, in general content and frequency,
by similar confrontations between other members of the
voting group, having no association with BEAU. The
same could not be said of an early meeting between
BEAU representatives, in which David Benjamin will-
ingly participated, and in which BEAU was discussed as
a possible alternative to UMWA, with David Benjamin
listening as Sterry Mahaffey aired his ideas as to possible
revisions in employment terms in that eventuality. How-
ever, the probative, primary evidence merely discloses
that this type of meeting occurred but once, that no rec-
ognition was conferred or bargaining took place, and
that no other representative of management participated
in any similar confrontation. No merit is found in the al-
legation that Respondent violated Section 8(a)(2) by
virtue of this isolated incident.
Sara Mahaffey's participation in BEAU is, however,
viewed as unlawful. She was its first secretary-treasurer,
while her son, Sterry, served as its chairman. In this ca-
pacity, she took minutes of meetings, received contribu-
tions from employees, and paid expenses, writing checks
on her personal account, for which she was reimbursed
Although Sara Mahaffey claims that she stepped down
from her office and severed ties with BEAU in late Janu-
ary 1984,94 evidence is to the contrary. Sara Mahaffey
was still writing checks on behalf of BEAU as of 4 Feb-
ruary 1984.
During the period of her involvement with BEAU,
Sara Mahaffey was acting as Respondent's agent, being
the sole management representative charged with respon-
sibility for the conduct of meetings dufing the election
campaign to educate or reeducate employees as to the
scope and nature of Respondent's benefit programs. As
an agent, held out to be a management representative in
the area of employee relations, her participation as an of-
ficer of BEAU, under conditions known and condoned
by Respondent, constituted unlawful support and assist-
ance violative of Section 8(a)(2) of the Act. I so find.
Beyond the foregoing, however, there is little to sup-
port the allegations of assistance other than suspicion.
Too much of the General Counsel's claim must stand on
the strength of negative implication from unbelievable
testimony by hostile witnesses, secondary evidence, and
strained interpretation of events or matters which must
necessarily be swept aside as de minimis.95
In this category is the evidence that James Steiner, an
artist from Altoona, Pennsylvania, prepared visual charts
for use at antiunion meetings conducted by both Re-
spondent and BEAU. From the evidence, it simply ap-
pears that Steiner was introduced to Sterry Mahaffey by
94 When she resigned, Sara Mahaffey was succeeded by her daughter,
Sally Long Sara Mahaffey testified that she resigned after being warned
that there could be a conflict of interest because of her status as a trustee
under the pension plan Sterry Mahaffey testified that he asked his
mother to resign for reasons of health in view of the stress of that posi-
tion
95 See, e g, Coamo Mills, 150 NLRB 79 (1964)
BENJAMIN COAL CO
Sara Mahaffey and Harry Benjamin, in what appears to
have been a chance encounter in Respondent's office.
There is no evidence that dealings between Steiner and
BEAU were not otherwise totally independent of Re-
spondent. Also inconsequential was the fact that Sterry
Mahaffey requested and was given names and addresses
of employees as well as a copy of Respondent's DER
consent decree. In this same category was the authoriza-
tion given Respondent's bank to release information to
Mahaffey concerning Respondent's credit status.96 There
is no evidence that the information made available to
Mahaffey would not have been provided on request of
any other employee, irrespective of their point of view
on the issue of union representation.
Although certainly more controversial, Foreman
Hockinson's providing Mahaffey with copies of a leaflet
calculated to inform employees of findings by a Federal
judge as to illegality with respect to segments of the
UMWA pension fund,97 was isolated and evidenced
action by a low-level supervisor more closely identified
with the commonality of interest in defeating UMWA,
than hard evidence of support or assistance to a labor or-
ganization.
Finally, among the assertions by the General Counsel
which are deemed discountable are BEAU's seeking
clearance from David Benjamin before publication of fi-
nancial statements, which might have included sensitive
material , and David Benjamin 's verbal objections to the
content of segments of propaganda disseminated by
BEAU. The evidence in this respect fails to suggest em-
ployer action strengthening or enhancing the status of
BEAU and constitutes nothing more than arm's-length
communication to be expected between any segment of
employees and their employer.
Also lacking in merit is the claim by the General
Counsel that Respondent maintained an attitude of toler-
ance toward BEAU activity, while suppressing that of
UMWA. The examples cited in support of this claim are
isolated and too minor to support an unfair labor practice
finding. The first derives from James Fleming's Novem-
ber 1983 destruction of a prounion sign, contrasted with
Wayne Anderson's testimony that 3 weeks prior to the
second election, Lemmon had a BEAU sticker in the
windshield of a company truck. In this latter regard,
Lemmon credibly testified, without contradiction, that
the BEAU sticker was not posted on his windhshield,
that it had been placed on the dash, and remained there
only until removed permanently when he left the job.
Apart from this incident, despite the number of supervi-
sors involved in this hard hitting campaign, 7 months in
duration, there was no other incident in which a foreman
publicly promoted BEAU. Similarly nonmeritorious is
the claim that Respondent permitted BEAU to campaign
96SeeGC Exh 11
91 The document is in evidence as G C Exh 3(ff) Mahaffey originally
testified that Hockinson gave him copies of this document and "told" him
to distribute them to employees, which he did When called as a witness
for the Respondent, Mahaffey appeared to soften his earlier testimony,
relating that Hockmson merely invited the distribution, by stating "why
don't you take some of these and hand them out " At that juncture, Ma-
haffey appeared intent on dispelling any notion that Hockinson's offer
was a "directive "
607
on company time, while denying like privileges to
UMWA. Although there was some testimony that indi-
vidual foremen in certain isolated situations directed em-
ployees who were discussing the UMWA to return to
work, the campaign atmosphere was one of free and
open debate, waged by UMWA partisans in the presence
of, and with condonation by, foremen during periods
when the participants were fully paid.98
The General Counsel contends also that Respondent
fostered the impression that BEAU had ready access to
Respondent's officials and hence was an effective means
through which employees might present their problems.
Other than what has been heretofore stated there is little
direct, primary evidence that this was the case It is true
that Sterry Mahaffey had informed employees and boast-
ed of his contacts among the Benjamins and other high
ranking mangers. However, none of these statements
were made in the presence of any official of, or shown to
have been specifically condoned by any representative of
Respondent. They were hearsay by Mahaffey, an indi-
vidual not shown to be possessed of agency status Un-
disputed is the fact that Respondent's representatives, in-
cluding Martyak, admitted to discussing job problems
and employee complaints with Mahaffey While it is
clear that Mahaffey discussed employment issues with
management, it does not appear that these discussions
were conducted outside the framework of traditional dis-
course between management and employees, or that the
same privileges were not extended to other rank-and-file
employees, including avowed supporters of the UMWA.
Nor do these exchanges rise to a level of significance in
consequence of the fact that Mahaffey received explana-
tions in problem areas from management, which he re-
layed back to the aggrieved employee. Here again,
absent evidence that management ever declined to ex-
plain its resistance to an employee complaint raised by a
supporter of the UMWA, the cooperation with Mahaffey
would fall within the realm of normal and traditional
personnel relations, and would not constitute evidence of
unlawful assistance or interference with a labor organiza-
tion.
Beyond the foregoing, allegations that Respondent vio-
lated Section 8(a)(1) by resolving grievances are also of-
fered in support of the General Counsel's arguments that
Respondent assisted BEAU unlawfully under Section
8(a)(2). The General Counsel contends that in each in-
stance the employee discussed the grievance with Sterry
Mahaffey, only to learn thereafter that management had
responded favorably to his claim.
The first involved employee James McLaughlin As
indicated previously, McLaughlin had attempted for for
several years to obtain reassignment from his driller posi-
98I was unimpressed by testimony by a single employee that activity
on behalf of the UMWA was "squelched" while that of BEAU was per-
mitted This "shot gun" testimony by Russell Harpster was to the effect
that while BEAU supporters were only told "once or twice to back
off," if the men started talking UMWA "the foreman would send them to
work and tell them they were not allowed to campaign on the job " Not
only was this testimony uncorroborated, but appeared at odds with the
atmosphere described by numerous witnesses from both sides of the aisle
Harpster's testimony is rejected in this respect
608 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tion.99 His conversations, in this regard, with Harry
Benjamin and foremen proved inconsequential. Later,
however, McLaughlin, about 3 or 4 weeks before the
second election, had a conversation with Sterry Mahaf-
fey who indicated that through BEAU he would be
taking care of complaints, and inquired whether
McLaughlin had any. McLaughlin told Mahaffey that he
wanted a different job. About 5 days later, he was called
to Martyak's office. The latter assertedly told McLaugh-
lin that it had been brought to his attention that
McLaughlin wanted reclassification from the drill to
dozer, and that management was trying to straighten out
any complaints that the men had. Martyak reported that
he had informed Bill Ricketts, McLaughlin's foreman,
that a vacancy on a dozer had come up. The following
Monday, McLaughlin reported for work on that dozer.
According to Martyak, the reclassification occurred
much earlier, in January 1984, and was pursuant to a re-
quest by Harry Benjamin . Martyak testified that Benja-
min asked him to meet with McLaughlin, inter alia, be-
cause McLaughlin had been approaching him time and
again in the interest of transferring from the drill. Ac-
cording to notes, Martyak allegedly made at that meet-
ing, it took place on 13 January 1984, a time interval too
early to have been inspired by anyone acting as a repre-
sentative of BEAU. i oo The General Counsel challenges
the authenticity of these notes, in effect contending that
they were manufactured. On the contrary, although
Sterry Mahaffey was probably involved in discussions
concerning the reclassification,' ° i I believe that determi-
nation was made to resolve McLaughlin's complaint
prior to the establishment of BEAU.
Based on a composite of the credible evidence it is
concluded that McLaughlin was reclassified prior to the
advent of BEAU, and that any role played by Sterry
Mahaffey in that process was limited to that of a con-
cerned coworker. This does not, however, provide an
answer to the allegation that Respondent violated Sec-
tion 8(a)(1) in this respect. The adjustment of McLaugh-
lin's grievance entailed the grant of a benefit during the
critical preelection period between elections, and shortly
after the Regional Director acted on 11 January 1984, to
set aside the first election. i o z The evidence as to the
reason for this action was that offered through Harry
Benjamin , an unimpressive witness. His explanation was
insufficient to rebut the presumption of illegality. He tes-
tified in this regard as follows:
"McLaughlin credibily testified that when initially assigned to the
drill some 3 years earlier, he was told that his assignment thereto would
be "temporary "
too See R Exh 13
101 Contrary to the assertion in Respondent's posthearing brief, Harry
Benjamin did not deny that he had a conversation with Sterry Mahaffey
concerning the matter Mahaffey himself did testify that shortly after the
first of the year prior to the formation of BEAU he had a conversation
with Martyak concerning McLaughlin's request for transfer Martyak
could not recall the incident Martyak confirms the testimony of Harry
Benjamin that he was told to look into the matter. Pursuant thereto he
met with McLaughlin, and in a subsequent conversation that day with
Hutton and Benjamin , learned of a vacancy in the dozer position and was
instructed by the latter that McLaughlin start the following Monday
102 See G C Exh 2(g)
Well, for nearly a two and a half year period,
Jim had been discussing with me, if there would be
any, opportunity for him to be moved off a drill and
onto a bulldozer. And, at the time, it was impossible
because we were producing the amount of tonage,
that we needed every drill we had. And, we only
had a limited amount of drillers. So, for a long time
there was no way he could get off. And, then after
about a year and a half, almost two years of asking,
he started to develop a sinus problem. And, as our
production decreased, we began to get excess
drillers, and the ones that were complaining of the
problem, were the first ones we took off the drills
Jim came to me and had been asking to be taken
off drill. The opportunity was right and we did him
a favor of taking him off He had been doing a
good job, and since we had excess drillers, I felt
that he deserved it.
Apart from my mistrust of Harry Benjamin, there are
other suggestions that arouse doubt that the reassignment
of McLaughlin was merely a rountine personnel action,
triggered through an evolving process, through which,
after several years, a suitable vacancy suddenly emerged.
While I would agree that Respondent was not obligated
to avoid routine recurrent personnel action during this
relatively lengthy organizational campaign, Respondent's
own testimony as to the events of 13 January belie that
this was the case The actions of Martyak, Harry Benja-
min, and Hutton possessed a "hurry-up" flare, whereby,
through the burst of energy described by Martyak, an af-
firmative effort was made to locate a vacancy and, once
confirmed, to put McLaughlin in it immediately Consist-
ent with McLaughlin's credited testimony as to the
sudden interest of management in straightening out "any
complaints the men had," it is concluded that this resolu-
tion of a longstanding grievance was discretionary, pro-
voked by Respondent's desire to open the new election
campaign by eliminating a longstanding injustice, and an
act calculated to contribute to reversal of the results of
the first election. It is concluded that the grant of bene-
fits was designed to interfere with employee choice at
the election, and hence violated Section 8(a)(1) of the
Act.
Less persuasive is the General Counsel's claim founded
upon the case of William Rounds. Rounds had been laid
off in July 1983. In this connection, Sterry Mahaffey tes-
tified that an unidentified employee had mentioned that
Rounds should be working because he was laid off out of
seniority. He admits that he mentioned that matter to
Martyak, but took no followup steps.los
ios In this regard, Russell Harpster testified that an employee named
Chuck Harnich asked Mahaffey how come Rounds had been laid off
when he had 7 years service Sterry indicated that he would check into
it According to Harpster, Mahaffey raised the matter at a BEAU meet-
ing observing that Bill Rounds had been unjusty laid off and stating that
he had checked the matter out with Dave Benjamin Mahaffey allegedly
said that Benjamin told him there was a freeze and Rounds could not be
recalled until after the vote, but that he would be recalled after the vote
I have not regarded Russell Harpster as a credible witness His uncorro-
borated testimony as to what he heard at a BEAU meeting is rejected
BENJAMIN COAL CO
Martyak testified that Rounds was within a group re-
called from layoff in July 1984, some 4 months after the
rerun election. It does not appear that he was granted
any preference. It was the sense of Martyak's testimony
that the recall at that time was based on a request from
operations that additional manpower was needed and
that he consulted with no one in scheduling Rounds
within the group slated for recall. In this instance, the
uncontradicted testimony of Martyak was believed "I
In the circumstances, the evidence does not establish that
the recall of Rounds derived from intercession by Sterry
Mahaffey or that it was in any way related to an effort
to assist BEAU in violation of Section 8(a)(2). Further-
more, it is clear that the recall of Rounds was totally dis-
associated from any attempt to influence the outcome of
the earlier election, and the evidence is also sufficient to
refute any notion that this rountine action was designed
to influence any future question concerning representa-
tion Hence no grant of benefit violative of Section
8(a)(1) of the Act was involved.
On balance, while it is clear that Respondent and
BEAU shared at least one common objective namely,
defeat of UMWA, the evidence of unlawful assistance is
limited to the condoned participation of Sara Mahaffey
in that organization, and the impression conveyed by
David Benjamin that it was his own decision to utilize
BEAU as the conduit for presentation of speakers to ar-
ticulate Respondent's campaign views, a declaration not
only evidencing substantial assistance to BEAU in
waging its own antiunion campaign, but also conveying a
strong message that BEAU held the imprimatur of man-
agement as a labor organization in which employee par-
ticipation was welcomed. To this extent, it is found that
Respondent violated Section 8(a)(2) and (1) of the Act.
IV. CASE 6-RC-9403
The objections filed by the Petitioner-Charging Party
with respect to employer conduct interfering with free
choice in the rerun election conducted on 14 March 1984
are coextensive with certain alleged unfair labor prac-
tices set forth in the consolidated complaint 105 By
virtue of unfair labor practice findings heretofore made,
and occurring within the critical period preceding the
rerun election, certain objections based on threats, coer-
cive interrogation, statements that unionization would be
futile, promises and grants of benefit, assistance and sup-
port to a rival labor organization, and the discriminatory
layoff and transfer of Wayne Anderson have been sub-
stantiated. Accordingly, the aforesaid objections are sus-
tained and based thereon it shall be recommended that
the election conducted on 14 March 1984 be set aside.
THE REMEDY
A. The Gissel Allegation
1. Preliminary statement
The consolidated complaint in this proceeding alleges
that the unfair labor practices alleged therein entailed a
104 See R Exh 15
105 See G C Exh 2(i)
609
course of conduct precluding the holding of a fair elec-
tion among the employees in the unit. Accordingly, it is
claimed tht entry of a remedial order requiring Respond-
ent to recognize and bargain with the Union as exclusive
majority representative of employees in the appropriate
unit is warranted under authority of NLRB v. Gissel
Packing Co., 395 U.S 575 (1969) Such relief was author-
ized by the Supreme Court under conditions where "the
extensiveness of an employer's unfair labor practices in
terms of their past effect on election conditions and the
likelihood of their recurrence in the future . . . [indi-
cates] . . . that the possibility of erasing the effects of
past practices and of insuring a fair election [or a fair
rerun] by the use of traditional remedies, though present,
is slight "106
2. The appropriate unit
The complaint alleges, the answer admits, and it is
found that the following employees of the Respondent-
Employer constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section
9(b) of the Act:
All production and maintenance employees em-
ployed by Respondent at its facilities in Cambria,
Center, Clearfield, Jefferson and Indiana Counties,
Pennsylvania; excluding office clerical employees
and guards, professional employees and supervisors
as defined in the Act
3 The request for recognition
By mailgram dated 2 September 1983, UMWA noti-
fied the Employer that "the majority of your employees
in an appropriate bargaining unit at . . . Benjamin Coal
Company operations have designated the United Mine
Workers of America as exclusive representative of all
such employees with the purpose of collective bargaining
in respect to rates of pay, wages, hours, and other terms
and conditions of employment " while further stating:
The Union requests negotiations with you with re-
spect to rate of pay, wages, hours, and other terms
and conditions of employment. 107
4. The Union's majority
By amendment to the complaint the General Counsel
alleged that between 14 August 1983 and 31 December
1983, UMWA obtained majority support from employees
101 395 U S at 614
107 See G C Exh 6(b) Respondent contends that issuance of a bar-
gaining order is not supported because no request for bargaining was
made at a time after UMWA's designation by a majority Even if the fac-
tual premise underlying said claim were accurate, an issue that need not
be reached herein, under established Board policy such a demand is dis-
pensable where all that is sought is a bargaining order "to remedy
extensive unfair labor practices " See, e g, Naum Bros, 240 NLRB 311
(1979) Contrary to Respondent the decision of the Third Circuit in Hed-
strom Co v NLRB, 558 F 2d 1137 (1977), is not inconsistent with Board
policy in this respect As shall be seen, although the complaint alleges an
8(a)(5) violation, resolution of subordinate issues with respect thereto will
not otherwise affect the remedy, or the result, and hence the 8 (a)(5) alle-
gation is not passed on here
610 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
in the appropriate unit. In connection therewith, it ap-
pears through documentary evidence and stipulation that
the appropriate unit during that timeframe consisted of
501 employees In support of its claim of majority, the
General Counsel presented authorization cards signed by
298 employees which on their face purport to be valid
designation of UMWA.
Respondent challenges the validity of the cards on
several grounds. With a single exception, however, these
contentions would not appear to raise a material issue as
to the Union's majority. Having examined the record,
reservations expressed by me to the parties during trial,
as to necessity for litigating majority on the basis of
cards, have been confirmed. It will be recalled that in
the first election, conducted on 17 November 1983, the
Union was designated by a majority in a secret-ballot
election conducted by the Board. In the circumstances of
this case, that majority provides stronger prima facie evi-
dence, albeit informal, of the extent of union support
than might be gleaned from "notoriously unreliable" au-
thorization cards. The fact that the election was set aside
was a technicality which, in the light of UMWA's non-
admission, did not alter the fundamental truism that the
Union was designated by a majority in that secret-ballot
election. Any taint to the majority that had emerged in
consequence of said election was subject to litigation in
this proceeding, and the challenge thereto which was in
fact registered by the Respondent, would, if substantiat-
ed, have the same disabling impact upon the authoriza-
tion cards 108 In other words, if Respondent's contention
should prove sufficient to negate the results of the elec-
tion, the cards would necessarily fall by the same stroke.
At the same time, the General Counsel is in no way
prejudiced by refusal to canvass the cards or a finding
that the Union did not actually represent a majority until
17 November 1983 Thus, the 8(a)(5) allegation is ren-
dered superfluous if a remedial bargaining order is
deemed appropriate here, although dependent on the
same rationale. Furthermore, to find that the UMWA re-
presentated a majoirty at any earlier date would fail to
affect any other allegation in the complaint or any
remedy to be deemed appropriate here. Accordingly,
findings with respect to each of the respective cards, in
order to ascertain whether or when the Union achieved
majority support, constitutes nothing more than a time-
consuming sterile exercise
The only viable challenge to the majority evident from
the results of the first election is the claim by Respond-
ent that UMWA engaged in blatant' appeals to anti-Semi-
tism to further its organizational interest,109 a contention
108 The reverse, however, would not be true Thus an attack on au-
thorization cards on grounds that they were not properly authenticated,
or failed to reflect majority support fails to diminish the evidence of ma-
jority reflected on the face of the tally furnished after the election
109 Respondent appears to contend brodaly that the results of the
second election, in which the Respondent received a majority, should be
sustained if the claim of improper racial appeals is substantiated The
effect of this contention is that the Employer's unlawful interference with
that election should be overlooked and employees denied an opportunity
to an expression of choice because of an alleged pattern of inspired bigot-
ry Contrary to Respondent, this issue has limited application to the ques-
tion of whether the UMWA ever represented an uncoerced majority of
employees in the appropriate unit The question concerning representa-
which raises a fundamental question whether the Union
in fact ever represented an uncoerced majority.
Harry Benjamin and David Benjamin are of the
Jewish faith. Undeniably, anti-Semitic comments were
made by employees who campaigned actively for the
UMWA and were members of the employee organizing
committee. It is also clear, however, that the singling out
of the Benjamins' religious beliefs for derisive comment
was not isolated to this campaign or to employee protag-
onists of the Union. Most of the witnesses, who afforded
testimony in support of this contention, conceded that
prior to the union campaign derogatory references to the
religion of David Benjamin were commonplace if not
rampant."° Indeed, the source of anti-Semitic remarks
pertaining to the Benjamins' was not limited to the rank-
and-file employees, but foremen and higher managers
were implicated as having participated in these profane
references.111
Contrary to the Respondent, I have difficulty in relat-
ing these remarks to any conduct condoned or inspired
on the part of UMWA. Several witnesses testified with-
out contradiction tht despite a history of anti-Semitism
by rank-and-file and foremen alike, it was its heaviest im-
mediately after the wage cuts were announced, when
frustration and ill-will toward the Benjamins peaked. As
indicated the cuts were announced prior to UMWA's ar-
rival on the scene, suggesting that the revitalization of
anti -Semitism was an irrational, spontaneous employee
outburst with which UMWA could not have been associ-
ated. At the very least, Respondent has not shown that
this initial flurry of activity was spawned, nurtured, con-
doned, or even took place for that matter, while UMWA
had an organizational interest in employees of Benjamin
Coal
Moreover, credible evidence fails to establish any at-
tempt on the part of nonemployee organizers or the
UMWA itself to exploit or further any form of ethnic di-
visiveness Not a single epithet has been imputed to any
UMWA official or professional representative or any
publication generated or approved by the organiza-
tion. 1 12 Nor does it appear that the Union sponsored
speakers from the community, tending to be respected by
the employees, who made anti-Semitic remarks in an
effort to encourage employees to support the Union. 113
tion, however, is not affected thereby, and the Board's holding in San-
gamo Weston, Inc, 273 NLRB 256 (1984) (Sangamo II), does not require
otherwise In that case, the Board simply held that union misconduct
might be considered in determining whether loss of majority was causally
connected to an employer's unfair labor practices The question whether
the union's misconduct would prevent the holding of a rerun election
was not before the Board in that case, as the petition in the representa-
tion case had been dismissed by the Regional Director on issuance of the
unfair labor complaint See Sangamo Weston, Inc, 251 NLRB 1597, 1599
(1980) (Sangamo I)
' 10 See testimony of Russell Harpster, Mary Queen, Daniel Carlson,
and Donald Mooney
111 See testimony of Randy Westover, Daniel Mooney, Joe Mazenko,
Bill Buck, and David Leasure Indeed, Bill Buck testified, credibly and
without contradiction, that he heard anti-Semitic remarks from the fol-
lowing foremen James Fleming, Ronald Schultz, Bill Ricketts, Darrel
Jefferies, and Superintendent Don Hutton
112 Cf NLRB v, Silvermen's Wear, 656 F 2d 53 (3d Cir 1981), in which
an allegation that the Union's secretary-treasurer at a campaign meeting,
6 days prior to the election, referred to the Union as a "stingy Jew "
113 Cf NLRB v, Triplex Mfg, 701 F 2d 703 (7th Cir 1983)
BENJAMIN COAL CO
The strength of Respondent's case rests on remarks by
employee participants on the in-house organizing com-
mittee However, the credible evidence does not estab-
lish that any slurs against the Union were made by mem-
bers of the employee organizational committee in the
course of union meetings or under conditions known or
condoned by UMWA. Indeed, the only evidence of de-
rogatory religious references having been made by them
in the presence of UMWA officials was afforded through
Sterry Mahaffey, Frank Errigo, and Randy Westover. I
have already expressed my reservations concerning the
credibility of Sterry Mahaffey His assertions concerning
conduct of McCracken and McCombs at UMWA meet-
ings possibly held as early as August 1983 was lacking in
corroboration from believable sources. Here again, it was
my impression tht Mahaffey's testimony was a function
of his willingness to provide whatever was necessary to
further Respondent's interest in the proceeding. My as-
sessment of Errigo was no different The obviously exag-
gerated scenario depicted in his testimony failed even to
approximate any other reports of what transpired, and
the grudging resentment he portrayed toward the
UMWA might well have sprung from his past business
dealings with Harry Benjamin, a relationship Errigo
sought to hide.' 14 I credit neither of them. Randy West-
over's testimony was inconclusive, for, at best, he related
that in November 1983 he provided a statement to the
Respondent expressing the fact that he "thought" he
heard McCombs call Benjamin "a dew son of bitch" at a
UMWA meeting. However, the balance of his testimony
plainly reveals his lack of certainty as to who made the
statement. Westover could not recall the circumstances
and had no recollection whether or not a UMWA offi-
cial reacted to it In my opinion this is a far too flimsy
and isolated a mantle to support the claim that UMWA
condoned an ethnic slur
To counter Respondent's position in this regard, the
General Counsel produced McCracken, Mazenko, Cathy
Buck, and William Buck, all of whom testified that
during numerous meetings that they attended, a sponta-
neous remark by Ray Smocheck an employee who was
not a member of the organizing committee, contained the
only reference to the Judaic faith ever made at a union
meeting According to their testimony, Smocheck was
quickly quieted by UMWA organizers Larry Pasquale or
Rich Chirstman, who informed those in attendance that
remarks of that kind were irrelevant.
On balance, it is nothing less than regrettable that
workplace anti-Semitism has been rampant for many
years in the Benjamin operation Convincing evidence
establishes that rank-and-file employees, foremen, and
high-ranking management officials, including the third in
command of production operations, Superintendent Don
Hutton, were guilty of ethnic slurs against the Benja-
14 Erngo denied that Harry Benjamin was a customer of his Indeed
he merely characterized his association with the Benjamins as "I just
know of them " Harry Benjamin, on the contrary, acknowledged that he
had purchased items from Errigo on three separate occasions, a contra-
diction that I find difficult to reconcile with the fact that Errigo was an
antique dealer in the small community of Mahaffey, Pennsylvania, who
most certainly would have a recollection of a repeat customer whose
most recent purchase was during the Christmas season of 1983
611
mins. Yet, the insulting and profane references contribut-
ed by prounion employees to this unfortunate history
were not shown to have varied from the manner in
which hostility, anger, and frustration were directed
toward their employer over the years. The entire phe-
nomenon might well be categorized as empassioned ob-
scenity, rather than a calculated effort to exacerbate
racial or religious feelings However disgraceful these re-
marks, there is no basis for finding that the Union was
responsible for them. The credible testimony implicating
Charles McCombs, Thomas McCracken, Kenneth Bee,
and Tim Mazenko in such conduct does not describe
these occurrences as having taken place at official union
functions, or within the presence of union representa-
tives. Whatever responsibilities under law that a labor or-
ganization might have for those participating on an in-
house organizing committee, no authority is called to my
attention which renders a union vicariously liable for any
and all conduct of such individuals, whether or not con-
doned, ratified, or authorized Beyond that, not a single
comment with racial or ethnic overtones was imputed to
any union representative, nor does it appear that the
Union's propaganda included even the remotest refer-
ence to ethnic considerations or the spiritual beliefs of
the Ben lamins Respondent's claim that the majority en-
joyed by UMWA on 17 November 1983 was tainted by
UMWA's effort to "exacerbate racial feelings" on the
basis of "inflammatory appeals" is totally lacking in evi-
dentiary support and is deemed nonmeritorious. I i s
B. The Appropriateness of a Bargaining Order
The General Counsel seeks a Gissel II remedial bar-
gaining order pursuant to an allegation that that Re-
spondent has committed unfair labor practices "so sub-
stantial in character that the possibility of erasing the ef-
fects of these unfair labor practices and conducting a fair
rerun election by the use of traditonal remedies is slight
and . . . sentiments regarding representation, having
been expressed through authorization cards would, on
balance, be protected better by issuance of a bargaining
order, than by traditional remedies alone."
There is no debating that it is often difficult to identify
the circumstances where a remedial bargaining order
will appropriately apply. The issue is to be resolved on a
case-by-case basis, without benefit of mechanical equa-
tion. Compounding the uncertainty is the fact that the
focal point of the Gissel doctrine is a hypothetical event,
thus requiring at least a degree of enlightened specula-
tion and judgment not always explainable in concrete
terms. This being the case, it is to be expected that rea-
sonable minds will differ as to the quantum of illegality
necessary to injure beyond repair the Board's election
process. Yet there can be no mistaking the importance of
the Gissel remedy to the integrity of that process The
Board volumes are legion with cases in which freedom
i i s In this connection it is noted that the Second Circuit Court of Ap-
peals in NLRB v Utell International, 750 F 2d 177, 179 (1984), affirmed
the Board's action in overruling objections based on references to race by
employee members of an in-house committee stating in part, "it must be
remembered that these statements were not made, and certainly not ex-
pressly ratified, by any Union official "
612 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of choice would have been reduced to a naked platitude
if left to the mercy of those whose only interest is total
subversion of the procedures created in Section 9 of the
Act With all its shortcomings, the Gissel doctrine has
heightened the confidence of working men and women
in the right guaranteed them to form, join, and support a
labor organization. It is important therefore to approach
the issue in principled fashion mindful of the fact that to
withhold the remedy sanctioned therein in a fitting case
is dust as destructive of employee choice as to apply it
where unwarranted.
At present, prevailing views do not appear to lend the
most receptive climate for consideration of relief under
Gissel. Recent appellate court decisions have continued
to stress concern as to the propriety of a bargaining
order, reiterating a strong "preference . that the
union representative be chosen in a free election." See,
e.g., NLRB v. K. J Coty Messenger Service, 762 F.2d 92
(2d Cir. 1985), NLRB v. K & K Gourmet Meats, 640 F.2d
460 (3d Cir. 1981). See NLRB v. Village IX, 723 F.2d
1360, 1370 (7th,Cir. 1983), NLRB v. J. M. Machinery
Corp., 410 F 2d 587, 591, (5th Cir. 1969).
The evidence strongly suggests that the Board now
shares the point of view that the election process is to be
abandoned, in favor of a bargaining order, only sparing-
ly. First, as shall be seen, research discloses that since 1
January 1983, the Board has approved remedial bargain-
ing orders in but nine cases where the issue was contest-
ed before the Board.' 16 In addition, the Board has re-
called cases previously decided and pending in the cir-
cuits for reconsideration of Gissel remedies. Further in-
dicative of the Board's sensitivity to this form of relief is
its refusal to issue summary judgment on Gissel com-
plaints even though uncontested due to the employer's
failure to file an answer, an oversight whereby such alle-
gations are deemed true under the Board's Rules and
Regulations, Section 102.20 See Power Jet Cleaning, 270
NLRB 975 (1984); Handy Dan's Convenience Store, 275
NLRB 394 (1985).
Perhaps the most ominous sign concerning the future
of the Gissel remedy appeared in the Board's recent deci-
sion Sangamo II, supra, in which it was suggested that
the undermining of a majority in consequence of an em-
ployer's unfair labor practices must be demonstrated by
"more than speculation," a view implicit in reasoning by
116 Bargaining orders were approved in Photo Drive Up, 267 NLRB
329 (1984) (Members Jenkins, Zimmerman, and Hunter) in the face of
massive violations including the discharge of the main union activitst and
threats of plant closure, in Tall Pines Inn, 268 NLRB 1392 (1984) (Chair-
man Dotson and Members Zimmerman and Hunter), in which massive
unfair labor practices, included unlawful discharge of 25 percent of those
signing union authorization cards, in Soil Engineering Co, 269 NLRB 55
(1984) (Chairman Dotson and Members Zimmerman and Hunter), in
which one-third of the appropriate unit was terminated unlawfully, in
Swan Coal Co, 271 NLRB 862 (1984) (Chariman Dotson and Members
Hunter and Dennis), in which one-third of the bargaining unit was vic-
timized by discriminatory termination, and in both Bernal Electric, 271
NLRB 1557 (1983) (Chairman Dotson and Members Zimmerman and
Hunter), and Balsam Village Management Co, 273 NLRB 420 (1984)
(Members Zimmerman and Dennis, with Chairman Dotson dissenting), in
which the violations consisted of no less than discharge of the entire bar-
gaining unit Such relief was approved recently in Moe Warehouse & Ac-
cessory, 275 NLRB 1132 (1985), but on a pro forma basis, as the employer
failed to except to the administrative law judge's recommendation
the Board that in Sangamo said loss might have been at-
tributable to other causes, such as.
[T]hreats [in the union's propaganda] could have
backfired on the Union and caused employees to
want to have nothing further to do with it . . . .
[Employees] may have been influenced by the Re-
spondent's legitimate arguments concerning the pos-
sible adverse effects of voting the Union in as bar-
gaining representative. [273 NLRB at 258.]
From the foregoing, the Board went on the conclude as
follows (ibid):
With all these factors operating on employee
choice, it would be little more than speculation to
conclude that Respondent's unfair labor practices
were the factor that decisively tipped the scales.
No matter how severe and pervasive the unfair labor
practices, this dictum is sui generic and broad enough to
be interposed in any circumstance as a means for deny-
ing relief under Gissel At the very, least, it signals selec-
tive approval of bargaining orders in only extreme cases.
While the trend is apparent, the Board's minimum re-
quirements have not crystalized to unmistakable levels,
for, a degree of flexibility appears to have been pre-
served in three recent cases, which were not expressly
overruled in Sangamo II, supra. Each sanctioned a reme-
dial bargaining order in the face of multiple "hallmark"
violations In Horizon Air Services, 272 NLRB 243 (1984),
enfd 761 F 2d 22 (2d Cir. 1985), the owner of the busi-
ness himself committed violations in circumstances
where 6 of 12 employees were targets for 8(a)(1) con-
duct, which included threats of job loss, and the dis-
criminatory discharge of an employee, who with a co-
worker, had been the initial union contact and the most
active protagonist Members Zimmerman, Hunter, and
Dennis approved issuance of a remedial bargaining order
on these presents. A like result was reached in J. Coty
Messenger Service, 272 NLRB 268 (1984), on threats of
closure and discharge, promises of benefit, and the un-
lawful discharge of a union supporter. (Members Zim-
merman and Hunter; with Chairman Dotson dissent-
ing.)' 17 See also J. & G. Wall Baking Co, 272 NLRB
1008 (1984), in accord
On authority of these latter decisions, it is concluded
here that Respondent's employees will be unable to exer-
cise a choice in a future election unencumbered by the
lingering coercive effects of the instant unfair labor prac-
tice. Thus, the facts show that both elections were pre-
ceded by a widespread pattern of misconduct. Most sig-
nificant, however, was the fact that immediately after the
parties agreed to. set aside the first election, management
reacted with alacrity to neutralize issues, readily identifi-
able as having given impetus to the UMWA organiza-
tional effort. Thus, Personnel Manager Martyak, Harry
Benjamin, and Superintendent Hutton collaborated only
11 Enforcement of the bargaining order was denied in NLRB v J
Cory Messenger Service, 762 F 2d 92 (2d Cir 1985), but solely on the basis
of the Board's failure to consider "subsequent" events which might have
mitigated the effects of the unfair labor practices
BENJAMIN COAL CO
4 days later to resolve the longstanding grievance of em-
ployee McLaughlin by transferring him to a more desira-
ble job Later, the strongest rallying point for UMWA
was undermined when Foreman Fleming promised that,
with defeat of the Union, the wage and benefit cuts that
had caused employees to initiate union activity in the
first instance would be restored. On the hotly debated
issue of retirement benefits, Sara Mahaffey stole the
UMWA's thunder by promising that certain controver-
sial qualification standards in Respondent's pension plan
would be eliminated. The sincerity behind her offer was
soon reinforced by Respondent's unlawful change of po-
sition with respect to its denial of a pension to John Lea-
sure some 3 years earlier. Also, corresponding with the
announcement of the rerun election was the discrimina-
tion against Wayne Anderson, a leading proponent of the
UMWA and member of the in-house organizing commit-
tee. Thus, on the heels of Anderson's restoration to
active employment following an unlawful furlough, he
was greeted by David Benjamin with the "Dear Jerk"
letter, an act of hostility explainable only in terms of An-
derson's union activity. This animus, shortly, thereafter,
was reaffirmed by a further act of discrimination, in the
form of Anderson's transfer to a less remunerative posi-
tion.
These "hallmark" violations, committed after the
union demonstrated its majority through the election of
17 November 1984, were augmented throughout by addi-
tional misconduct, which there is every reason to believe
reached each and every sector of the voting group Prior
to the second election, as was true of the first, front-line
supervision was encourgaged to carry forth the Compa-
ny's antiunion message. They responded with a massive
and continuing assault on statutory rights, consisting of
threats of job loss and expressions that the Respondent
would never sign an agreement with the UMWA On a
daily basis employees were prepared with threats, reiter-
ated during the second campaign by seven supervisors as
well as the third in command of the overall operation,
Superintendent Donald Hutton Virtually every type of
peril within imagination was linked to UMWA, including
retaliatory discharge, plant closure, layoff, personal vio-
lence, and destruction of property. Beyond that loss of
homes, automobiles, and other personal effects were
identified dramatically by management as among the
perils of voting "Yes." Consistent with teachings of such
circuit court decisions NLRB v. Jamaica Towing, 632
F.2d 208, 212-123 (2d Cir 1980); NLRB v. Town &
Country Supermarkets, 666 F.2d 1294, 1305 (10th Cir.
1981), violations of this type are acknowledged as "hall-
mark," and hence a rightful predicate for a bargaining
order The principle that numerous "hallmark" violations
furnish a presumptively appropriate background for a
Gissel remedy appears in consonance with present Board
policy as reflected in Horizon Air Services, supra, J. & G.
Wall Baking Co., supra, as well, as J. Coty Messenger Serv-
ice, supra, in which the Board majority stated:
It has long been established that threat of loss of
employment . . . and the threat of plant closure
. . . are likely to have a lasting and inhibiting effect
on a significant portion of the workforce, detroying
613
election conditions, and are therefore "hallmark vio-
lations, supporting the issuance of a bargaining
order absent significant mitigating circumstances. [272
NLRB at 269 (emphasis added).]
Those cases also subscribe to the point of view that
direct involvement by owners and high-level managers in
a pattern of coercive conduct will reinforce the serious-
ness of the threat to a fair election in the future, render-
ing the possibility of uncoerced choice unlikely. Under
this view the participation of chief functionaries tends to
reinforce indelibly in the minds of employees the serious-
ness of the employer's action at the expense of traditional
Board remedies.
Against this background, including David Benjamin's
machinations with BEAU, grants of benefits by Harry
Benjamin and Personnel Manager Martyak, and numer-
ous coercive comments, perhaps communicated on a
daily basis by Plant Superintendent Hutton, the Employ-
er's unfair labor practices are sufficiently extensive to
preclude the effectiveness of conventional Board reme-
dies in achieving a climate in which employees in the
future could register their sentiment on the issue of rep-
resentation in genuine fashion Accordingly, it is con-
cluded that the majority demonstrated in the election
conducted by the Board on 17 November 1983 consti-
tutes a more reliable indicia of employee desires than
would be true of any conducted in the future. Accord-
ingly, it shall be recommended that Respondent, on re-
quest, recognize and bargain with the Union as the ex-
clusive representative of employees in the appropriate
bargaining unit. i i s
C. General Remedial Provisions
Having found that the Respondent has engaged in cer-
tain unfair labor practices, it shall be recommended that
it be ordered to cease and desist therefrom and take cer-
tain affirmative action necessary to effectuate the pur-
poses and policies of the Act.
It having been found that Respondent violated Section
8(a)(3) of the Act by first furloughing, and thereafter
transferring employee Wayne Anderson to a less remu-
nerative position, during the period December 1983
through February 1984, it shall be recommended that
Respondent be ordered to make him whole for earnings
lost by reason of the discrimination against him, with
backpay to be computed on a quarterly basis pursuant to
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest
118 There is no merit in Respondent's claim that changes in circum-
stances since the UMWA was designated by a majority impel the with-
holding of a bargaining order First the identity of the voting group,
though reduced in size (500 to 362), otherwise remains the same with no
new hires in the interim Second, the evidence that supervisory perpetra-
tors of unfair labor practices have been "demoted" or "departed" was
not litigated with any degree of thoroughness, is cryptic and underdevel-
oped, while lacking in any showing that Respondent was the catalyst
behind such action or that employees were apprised that any personnel
changes were effected in the interest of neutralizing the effects of unlaw-
ful conduct Finally the fact that Respondent, while the initial complaint
was pending filed a reorganization petition for bankruptcy under chapter
11 of the Bankruptcy Code furnishes no ground for frustrating the statu-
tory remedial scheme beyond the qualification articulated in NLRB v
Bildisco & Bildisco, 465 U S 513 (1984)
614 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
as prescribed in Florida Steel Corp., 231 NLRB 651
(1977).119
CONCLUSIONS OF LAW
1 The Respondent is an Employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2 The UMWA and BEAU are labor organizations
within the meaning of Section 2(5) of the Act
3. Respondent independently violated Section 8(a)(1)
of the Act by threatening employees that the plant
would close, be sold, or go into bankruptcy in the event
of unionization; by telling employees that reprisals, in-
cluding discharge and violence to person and property,
would be effected against UMWA supporters and/or
those who afforded evidence against the Employer in the
investigation of unfair labor practices charges, by coer-
cively interrogating employees concerning their own and
the union activities of others; by requiring employees to
remove union literature from company vehicles under
disparate conditions; by promising benefits to employees
conditioned on their rejection of UMWA; by granting
benefits to employees to discourage support of UMWA;
and by physically assaulting an employee because he sup-
ported an investigation of unfair labor practice charges.
4 Respondent violated Section 8(a)(2) and (1) of the
act by condoning the participation of a management rep-
resentative agent, Sara Mahaffey, in BEAU, and by
making statements to the employees implying tht BEAU
was an instrumentality used by management to communi-
cate its antiunion views.
5. Respondent violated Section 8(a)(3) and (1) of the
Act in December 1983 by denying employment to
Wayne Anderson, and by transferring him in January
1984 to a less remunerative backfill job, all in reprisal for
his union activity.
6. All production and maintenance employees em-
ployed by Respondent at its facilities in Cambria, Center,
Clearfield, Jefferson, and Indiana Counties, Pennsylvania,
excluding office clerical employees, guards, professional
employees and supervisors as defined in the Act, consti-
tute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act
7. The UMWA since 17 November 1983 is and has
been at all times material, the designated representative
of a majority of employees in the unit described above
and is the exclusive bargaining representative of the
aforesaid employees within the meaning of Section 9(a)
of the Act
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed1zo
119 See generally Isis Plumbing Co, 138 NLRB 716 (1962)
120 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order 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
ORDER
The Respondent, Benjamin Coal Company and Empire
Coal Company, Inc., and/or Benjamin Coal Company,
debtor-in-posession, and Empire Coal Company, Inc.,
debtor-in-possession, LaJose, Pennsylvania, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Discourageing membership in a labor organization
by furloughing, transferring to less remunerative work,
or in any other-manner discriminating against employees
with respect to their wages, hours, or tenure of employ-
ment.
(b) Threatening to close, go out of business, or file for
bankruptcy if employees designate UMWA as their col-
lective-bargaining representative.
(c) Informing employees that their designation of
UMWA would prove futile because Respondent would
never enter a collective-bargaining agreement with a
labor organization
(d) Threatening employees with discharge, physical vi-
olence to their persons and property, and other unspeci-
fied reprisals because of their activity on behalf of the
UMWA or their participation in investigation of unfair
labor practice charges.
(e) Promising that benefits would be improved if em-
ployees rejected the UMWA as their collective- bargain-
ing representative.
(f) Threatening that the pension plan would be elimi-
nated if the UMWA were designated
(g) Coercively interrogating employees concerning
their own and union activities of coworkers.
(h) Resolving grievances or granting benefits under
conditions discouraging employees from supporting
UMWA
(i) Under disparate conditions, requiring employees to
remove UMWA literature from company vehicles.
(1) Interfering with the administration of, and furnish-
ing assistance to, BEAU, a rival labor organization, by
creating the impression that said labor organization was
used by management as an instrumentality for conveying
antiunion propaganda and by permitting an agent of
management to serve as an official thereof.
(k) Physically assaulting employees for having partici-
pated in an investigation of unfair labor practice charges.
2 Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make whole Wayne Anderson for any loss of earn-
ings he may have suffered by reason of the unlawful dis-
crimination against him in the manner set forth in the
remedy section of this decision.
(b) 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.
(c) On request, bargain with United Mine Workers of
America as the exclusive representative of all employees
of the appropriate unit with respect to rates of pay,
wages, hours, and other terms and conditions of employ-
ment, and, if an understanding is reached, embody such
BENJAMIN COAL CO
understanding in a signed agreement. The appropriate
bargaining unit is.
All production and maintenance employees em-
ployed by Respondent at its facilities in Cambria,
Center, Clearfield, Jefferson and Indiana Counties,
Pennsylvania; excluding office clerical employees,
guards, professional employees and supervisors as
defined in the Act
(d) Post at its facility in the aforesaid counties copies
of the attached notice marked "Appendix 111 21 Copies of
121 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 "
615
the notice, on forms provided by the Regional Director
for Region 6, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER RECOMMENDED that the election con-
ducted on 14 March 1984 in Case 6-RC-9403 be set
aside and that the petition be dismissed.